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What happens when a citizen of a state that bans abortions seeks an abortion that is perfectly legal in another state, such as Maryland?
In his concurring opinion in Dobbs v. Jackson Women’s Health Organization, Justice Brett Kavanaugh dismissed the issue out of hand by saying that a state may not bar its residents from traveling to another state to obtain an abortion because of the constitutional right to interstate travel. But this overly simplistic pronouncement utterly disregards our history, which proves that mass travel in search of freedom can wreak havoc on the nation.
It is foolish to believe that red states, having now won the hard-fought right to go to extreme lengths to ban abortions, would be content to view travel by their citizens to other states to circumvent their new laws as benign – the way gambling junkets to Nevada have been regarded for decades in states that ban casinos.
And if fertilized cells now have rights that must be protected by the state even at the cost of the life of the mother and in cases of rape and incest, then, as the dissent in Dobbs wryly noted, we also can fully expect restrictions on travel out of the state to seek abortions to be “in the offing.”
Bounty hunters?
Texas’s anti-abortion law already criminalizes those who aid women who seek abortions, without clarifying whether that includes those who provide travel assistance to other states. In Oklahoma, which has a law banning most abortions from the moment of fertilization, the attorney general has pledged to enforce the law against those who “solicit” abortions in Oklahoma, which could include even companies that support employees traveling out-of-state for abortions.
In Missouri, a bill is pending that would prohibit anyone from helping a Missouri resident have an abortion — from the out-of-state physician who performs the procedure to those who transport a person to a clinic in another state.
Can it be long before states banning abortion permit bounty hunters and vigilantes akin to the slave catchers of old to hunt down citizens who travel to defy abortion bans in their home states, along with those who aid them, even if that entails crossing state lines?
We predict that the Dobbs case will give rise to divisive contests implicating the concepts of interstate travel and states’ rights such as we have not had since the legal wrangling that ensued between the slave states and the free states surrounding the fugitive slave laws of the early nineteenth century. The refusal of northern states to enforce the rights of slave owners to have their fugitive slaves returned caused seismic divisions in our country – divisions that erupted into the Civil War.
In fact, when South Carolina seceded in 1860, one of the main grievances enumerated in its Declaration of Secession was that “an increasing hostility on the part of the non-slaveholding States to the institution of slavery has led to a disregard of their obligations.” The disregarded “obligations” referred to the non-slave-holding states’ refusal to enforce slave owners’ statutory rights to have their human property returned to face justice in their home states.
Reflecting an eerie similarity to the modern rift opening today between states banning abortion and those that do not, the South Carolina Declaration of Secession went on to criticize the citizens of non-slaveholding states for having “encouraged and assisted thousands of our slaves to leave their homes.”
Fugitive slaves who traveled for freedom and those who assisted them created profound and divisive legal complications that could not be contained neatly within state borders. So, too, will those who travel for abortions and those who assist them.
Nullification
The interstate travel scramble over abortion rights already has started. On June 25, 2022, the Democratic governor of Minnesota announced an order commanding state agencies in Minnesota not to assist other states’ attempts to seek civil, criminal or professional sanctions against anyone seeking, providing or obtaining legal abortion services in Minnesota. Other blue states are sure to follow Minnesota’s lead.
But just as the northern states nullified both state and federal fugitive slave laws protecting slave owners by willfully disregarding those laws, orders such as the one in Minnesota nullify the laws of the states that now ban abortions – at least to the extent that such states also prohibit aiding their citizens to obtain abortions.
Other than vigilantism, there will be little recourse available to states banning abortions but to seek federal intervention if they want to prevent nullification of their laws. And just as the slaveholding states were not content to sit still and let non-slaveholding states nullify their laws, we cannot expect states that ban abortion not to push the envelope as far as they can.
Without a federal statute guaranteeing at least a baseline of reproductive rights shared by all citizens – which is what Roe v. Wade did effectively for nearly 50 years – there simply are no rules or limits as to how far individual states will go to flex their newly acquired power after Dobbs.
Editorial Advisory Board members Arthur F. Fergenson and Debra G. Schubert did not participate in this opinion.
EDITORIAL ADVISORY BOARD MEMBERS
James B. Astrachan, Chair
James K. Archibald
Gary E. Bair
Andre M. Davis
Arthur F. Fergenson
Nancy Forster
Susan Francis
Leigh Goodmark
Roland Harris
Michael Hayes
Julie C. Janofsky
Ericka N. King
Angela W. Russell
Debra G. Schubert
H. Mark Stichel
The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.
