Will Interstate travel bans be upheld by Supreme Court?
Despite seeming unconstitutionality of it, there are some arguments that may hold sway with the Supreme Court.
Scholars have debated the potential constitutionality of state laws banning interstate travel for abortions, focusing on the Full Faith and Credit Clause. It has great implications for abortion seekers and providers, with the bans creating fear that serves as a deterrent for reproductive care.
“Overall, the court hasn't made a clear decision either way about whether these clauses clearly prohibit abortion travel bans,” Rahinm said. “But my interpretation is based on the cases and the current Supreme Court's conservative nature.”
If those bans are upheld, it could affect everyone, from relatives and friends helping women get abortions to abortion funds who provide logistical and financial support.
“If there was some kind of case that came down and upheld a state ban, I think that would drastically reduce women who are going for abortions in other states because they would be afraid,” Rahim said.
Legal scholars have argued that several clauses of the U.S. Constitution restrict a state’s ability to prescribe legislation extraterritorially and thus could be used to challenge abortion travel bans. The Dormant Commerce Clause and Privileges and Immunities Clause are two such clauses that will be explored here.
However, cases that the Court has struck down for violating the Dormant Commerce Clause all applied to noncitizens of the regulating state. In contrast, for abortion travel bans, states would be banning their citizens from traveling, Rahim wrote in her paper.
That abortion bans affect citizens of the regulating state makes it more likely that these bans would be permissible because a state could assert that it has jurisdiction to regulate the conduct of its citizens.
The Privileges and Immunities Clause prohibits states from making or enforcing laws that abridge the privileges of U.S. citizens, including the right to travel. Bans on abortion travel could be challenged as violating this protected right to travel, Rahim wrote. But relying on the right to travel when challenging abortion travel bans is problematic because the state is not preventing anyone from leaving its borders – just requiring that when traveling interstate, one must still abide by the home state’s restrictions on abortion.
Rahim recommends passing abortion shield laws is important. She also thinks reproductive rights leaders should provide legal support and resources for doctors to alleviate the fear of legal fees.