Abortion and the right of locomotion

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The U.S. Constitution does not explicitly guarantee the freedom of movement. Law enforcement authorities may detain a person from leaving a state if they suspect that person of committing a crime. Alternatively, prosecutors can ask state authorities in another state to extradite a criminal suspect for trial, forcing the person back to the state where the alleged crime took place.

This leads to two questions. First, may a state allow civil suits against a woman who leaves her state to obtain an abortion where it is legal? Second, may a state that has banned abortion prosecute a woman who has traveled out of state to obtain one?

In an upcoming article in the Columbia Law Review, three law professors argue that “some states will pass laws creating civil or criminal liability for out-of-state abortion travel while others will pass laws insulating their providers from out-of-state prosecutions.” Half the states are expected to have such laws. Massachusetts will be an exception.

Although the court’s six conservative justices joined together to overrule the nearly 50-year-old precedent of Roe v. Wade, recognizing a woman’s constitutional right to an abortion, they did not all agree on the issues raised by these two questions. Justice Brett M. Kavanaugh specifically raised these questions in his concurrence in Dobbs v. Jackson Women’s Health Organization: “May a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”

The freedom of movement, of locomotion, is rooted in migration history. 

The British journal History notes that “migration has formed one of the enduring characteristics of the human race, and there have been particular periods when peoples have migrated for a variety of reasons from their homelands to somewhere new.  Sometimes, this was a matter of choice, but in most cases, unfavorable circumstances were at the heart of movement.” 

Mark J. Miller, who lives in Aquinnah, and his colleagues have confirmed this in the sixth edition of their now classic work, “The Age of Migration: International Population Movements in the Modern World.” They observe that “while movements of people across borders have shaped states and societies since time immemorial, what is distinctive in recent years is their global scope, their centrality to domestic and international politics, and their enormous economic and social consequences.”

While the Constitution is silent on locomotion or movement, the Supreme Court has repeatedly confirmed that no state can prohibit a person from traveling from one state to another. Here are a few examples.

In 1867, in Crandall v. Nevada, the justices held that no state can prohibit a person from leaving a state by taxing them (Nevada levied a $1 tax on anyone who exited the state). Two years later, in Paul v. Virginia, one the most scholarly justices to serve on the court, Stephen Field, ruled that a citizen possesses “the right of free ingress into other states, and egress from them.” He cited the Constitution’s privileges and immunities clause, which reads that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” 

In 1900, the Court in Williams v. Fears declared that “undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any state is a right secured by the 14th Amendment and by other provisions of the Constitution.”

In 1999, in Saenz v. Roe, the court ruled that the 14th Amendment protects the right to travel, allowing citizens to move freely between states. As Justice John Paul Stevens put it, “the word ‘travel’ is not found in the text of the Constitution. Yet the constitutional right to travel from one state to another is firmly embedded in our jurisprudence.”

The court reasoned that the amendment and other provisions that authorized unimpeded travel are implicitly rooted in the liberty component of the due process clause, which reads no state shall “deprive any person of life, liberty, or property, without due process of law.” It is also embedded in the privileges and immunities clause, as noted above, and, as Kavanaugh stated in his Dobbs concurrence, the right of interstate travel, found in Congress’s authority in Article I to regulate interstate commerce.

Thus, the right of locomotion, of movement exists in the Constitution, because the court, as the final arbiter of what the law and Constitution mean, has consistently said so. After all, people move across state lines all the time for medical treatments. And no criminal or civil case will succeed in overcoming the substantial evidence that constitutional protections trump state civil or criminal statutes.

Or it should.

 

Jack Fruchtman, who lives in Aquinnah, has written “The Supreme Court and Constitutional Law,” now in its third edition, and “American Constitutional History,” now in its second.

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