Now that conference has failed to pass bill that would guarantee the right to travel across state lines to have an abortion, many are concerned that conservative states that have begun restricting abortion rights could soon decide to ban people seeking abortion from leaving their own state for that purpose . Many Republican lawmakers are already discuss this possibility. But would such drastic restrictions even be possible — or at least legal?
Aware that Congress is unlikely to act on abortion rights before the November midterms, the Biden administration has been working to determine what the executive branch itself can do to protect access to abortion. President Joe Biden signed an executive order at the beginning of the month that ordered the Department of Health and Human Services (HHS) to expand access to abortion pills, protect patient privacy and more.
Following that executive order, the United States Department of Justice announced the establishment of a Reproductive Rights Task Force, which will “monitor and evaluate” efforts to ban abortion pills, prevent someone from having an abortion in a state where it is legal, or provide federal employees with health care that is legal in the federal state level. How much the Justice Department can do to protect the right to travel across state lines for an abortion, and whether states can ban people from doing so, remains glaring unknowns.
In terms of what the Justice Department could do if a state banned travel for an abortion, the most likely response would be a lawsuit against that state. Mary Ziegler, a law professor at UC Davis, says the agency would argue such a ban is unconstitutional. (The DOJ itself did not respond to a request for comment.)
Justice Brett Kavanaugh wrote in his unanimous opinion in Dobbs v. Jackson Women’s Health Organizationwhich overthrown Roe v. Wade, that states should not prohibit people from traveling across state lines to have an abortion. That said, Ziegler is not really confident that the right to travel will continue to be protected.
“What Kavanaugh said was very vague. It’s true that you have the right to travel, but I don’t know how much you get,” Ziegler says. “There used to be a right to abortion, but not anymore. When the judge talks about myriad rights, that could change. Even if you take Kavanaugh at his word, it doesn’t answer all the questions.”
The right to travel is generally seen as protected by the Fourteenth Amendment, and this is confirmed by the Supreme Court in the past. However, the right to abortion was also seen as something protected by the Fourteenth Amendment until roe was overthrown.
“I think efforts to address the right to travel – this is uncharted territory in many ways. There isn’t much broad precedent about the right to travel,” said Melissa Murray, a law professor at New York University. “A lot of it will pose problems that will be or appear to be a first impression for some courts.”