When the Supreme Court decided Dobbs v. Jackson Women’s Health Organization and overturned Roe v. Wade, commentators debated which constitutional liberties might be eliminated next. Justice Clarence Thomas, who concurred in Dobbs, suggested that the time had come to undo rights to contraception and same-sex marriage and intimacy. The justices who dissented from the Dobbs decision pointed out that the test that the majority adopted for recognizing rights unenumerated in the Constitution — a test based on a narrow view of tradition and history — put those rights in danger. So it makes sense to worry about any liberty that the Supreme Court has connected to constitutional privacy. But if the state of Idaho has its way, another constitutional protection is in more immediate jeopardy: the right to travel anywhere in the country.
Idaho recently passed the first law in the nation that restricts that right. It borrowed the idea from a leading antiabortion group, the National Right to Life Committee, which put out a playbook for conservative states in the aftermath of Dobbs. The group’s general counsel worried that even states with strong abortion bans might not get anywhere if people could travel to states like Massachusetts with more liberal policies, or if they could order abortion pills online and have telehealth consultations. Missouri had already proposed a bill that would allow bounty hunters to sue anyone who helped a person seeking an abortion out of state. Members of the Texas Legislature’s Freedom Caucus threatened corporations and law firms with criminal sanctions and adverse tax consequences if they reimbursed their employees for abortion-related travel.
Since the fall of Roe, progressive states like Massachusetts have responded with shield laws designed to protect doctors and other residents from extradition and sanctions when they did things that were legal or even constitutionally protected where they lived and worked.
For a time, those shield laws might have seemed unnecessary. When conservative-led state legislatures went into session for the first time after the Dobbs ruling, they had a lot to say about abortion, but relatively little about travel. But last week, dueling rulings on mifepristone, a drug used in more than half of abortions, put access to medication abortion in doubt. While Washington Judge Thomas O. Rice ordered the Food and Drug Administration to preserve access to mifepristone in 17 liberal states and Washington, D.C., Texas Judge Matthew Kacsmaryk suspended approval of mifepristone and suggested that mailing it was a federal crime under the Comstock Act, an arcane anti-vice law from 1873 that barred the mailing of anything intended or adapted for abortion. Kacsmaryk’s ruling highlights one path forward for the antiabortion movement — in the courts.
Lawmakers in Idaho and elsewhere have a backup plan if that doesn’t work, and it involves a fight against the right to travel. State legislators adopted a proposal from the National Right to Life Committee that focuses on minors. Federal law already criminalizes the “recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a minor for the purposes of a commercial sex act.” Antiabortion groups proposed repackaging abortion travel for minors as its own form of trafficking: exploitative and never truly voluntary. Idaho adopted this model, criminalizing the act of helping an unemancipated girl travel to receive an abortion or obtain abortion pills without parental consent. Anyone, including other family members, would face at least two years in prison for violating the law. If parents do sign off on abortion-related travel, it still won’t be easy for defendants to escape criminal punishment: Parental consent, under the law, is an affirmative defense — that means that anyone accused of violating the law will have to prove their innocence, rather than prosecutors having to establish their guilt.
As extreme as that may sound, Idaho’s law does not go nearly as far as other abortion opponents want to. They understand that abortion laws are almost impossible to enforce if people can travel to progressive states or rely on telehealth. They would prefer to create a national ban. This is why so many abortion opponents have invested in the Comstock Act. Although that law forbade the mailing of material related to abortion, courts have narrowed the interpretation substantially since the early 20th century. Antiabortion groups are challenging that now and hope to use the law to criminalize all abortions, even those performed in blue states. Judge Kacsmaryk just bought this interpretation, and as his ruling is appealed, we will soon see if the US Supreme Court agrees with him.
If a national ban doesn’t work, the next best thing for abortion opponents is to stop people from traveling to states with progressive policies, or even to punish doctors and others who help those who travel to end a pregnancy.
The National Right to Life Committee is starting with travel restrictions for minors for a reason. In the past, the organization became one of the best-known champions of antiabortion incrementalism. At the time, a frontal attack on Roe v. Wade seemed impossible, and so leading antiabortion groups developed an alternative: focusing on restrictions that the courts would uphold. This plan would hollow out abortion rights, allowing for more and more obstacles, and weaken protection for abortion.
Now, Idaho is hoping to apply the same strategy to the right to travel. In Dobbs, Justice Brett Kavanaugh concurred with the majority opinion but suggested that the Constitution still protected the right to interstate travel. However, antiabortion groups could chip away at that right just as they once eroded the right to abortion.
Incrementalism has hardly been a stunning success for the antiabortion movement. Incrementalists did pass a breathtaking number of abortion restrictions, but they failed to change public opinion on the right to abortion itself. It seems unlikely that they would have better luck attacking the right to travel. But changing popular opinion may no longer be the point. Antiabortion groups increasingly recognize that voters do not support sweeping bans on abortion. Their cause, which they describe as the human rights fight of our time, is more important to them than what voters want, or even than democracy itself.
So why bother with more incrementalism? Because the antiabortion movement still has to convince the courts. If everything goes according to plan, Idaho’s law will face a legal challenge and then be upheld by conservative judges. That will set the precedent for a more ambitious travel ban, which will lead to a still-more sweeping travel restriction, and soon Kavanaugh’s commitment to the right to travel will mean little at all.
Idaho lawmakers don’t think this scenario is far-fetched. We’ve seen one just like it before, and it led to the death of Roe v. Wade.
Mary Ziegler is the Martin Luther King professor of law at the University of California Davis. Her latest book is “Roe: The History of a National Obsession.”