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States such as Missouri are planning to make it illegal for a citizen of Missouri to go to a different state to get an abortion if Roe is ultimately overturned. It attempts to evade legal challenge by using the same "allow private citizens to sue" legal terms (which some would view as loopholes) that Texas enacted last year.

Ignoring the enforcement mechanism, which some believe has shaky legal ground of its own, what sort of precedent exists currently on a state regulating its citizens conduct while out-of-state?

Ekadh Singh - Reinstate Monica
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Gramatik
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    I think this would get in trouble due to the interstate commerce clause but I could be wrong. – Joe W May 05 '22 at 17:18
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    This question might be a better fit on the law stack exchange. – quarague May 05 '22 at 17:30
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    @JoeW - Freedom of movement is covered, generally, by Art IV, Sec 2, Privileges and Immunities. See also, Freedom of movement under United States law. "Strong constitutional protection for the right to travel may have significant implications for state attempts to limit abortion rights, ..." – Rick Smith May 05 '22 at 17:39
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    @RickSmith I was not referring to that section but the commerce clause instead because it could be seen as a business proposition. The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. – Joe W May 05 '22 at 17:42
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    @quarague It would likely be on topic on both sites and is covered here because it is talking about the legality of government actions. – Joe W May 05 '22 at 17:43
  • I'm not sure "Ignoring the enforcement mechanism" is possible. Adults don't need help crossing state lines. ;) – TTT May 05 '22 at 22:48
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    The broader question becomes whether committing what is a crime in your state of residence in another state where that act is legal is enforceable. Say I live in a state where public nudity is illegal and visit another state where it is legal and go on a naked hike there. Can I be charged with criminal public nudity upon returning home if someone posted photos on the internet and I got recognised? The same would be valid for abortion tourism as well. – jwenting May 06 '22 at 17:00
  • @jwenting Given the number of fireworks shops that I see clustering around a border between states that allow them and states that don't, I'd assume that it isn't. – Bobson May 12 '22 at 16:54
  • @Bobson not quite, possession of something that's illegal doesn't care where you got it. But those stores and their customers bet on the fact that the police can't catch them all. It's the same where I live, there's a LOT of fireworks being smuggled in and police catch literally metric tons of it every month. But that's still only the tip of the iceberg. – jwenting May 12 '22 at 17:17

3 Answers3

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This law would be unconstitutional. There is a well established constitutional right to travel and relocate. In general, a state can't burden that, partially also under the doctrine known as the dormant commerce clause.

There are quite a few laws that do make it illegal to cross state lines for a particular purpose.

For example, the Mann Act (also known as the White-Slave Traffic Act of 1910) is a federal law that criminalizes the transportation of “any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose.”

But, those laws are almost always federal laws that are using the crossing of a state line as a trigger to show that the activity involves interstate commerce, which is something that Congress is expressly authorized to regulate by Article 1, Section 8, Clause 3 of the U.S. Constitution.

While states can regulate commerce in a way that incidentally and unavoidable impacts interstate commerce (which almost everything does), unlike Congress, states can't prohibit their citizens from engaging in interstate commerce or interstate travel as a result of these twin doctrines.

The main exception is a requirement in a pre-trial release order in a criminal case, or in a custody degree, prohibiting someone from leaving a state during the pre-trial or custody litigation period respectively, to prevent a court from losing jurisdiction over a party to a lawsuit during the pendency of that lawsuit in a situation where the court already has broad authority to detain someone (in the case of a criminal case where there is a pretrial release) or to say where a child is supposed to be physically (in the case of a custody dispute).

The authority of states to regulate interactions that necessarily involve interstate commerce is very limited and the dormant commerce clause basically reflects that implicit limitation.

This said, an outcome motivated set of judges could certainly decide to create an exception to the right to travel, abrogate the right entirely, or discard the dormant commerce clause entirely, if they could marshal (in the case of appellate courts) majorities of judges to overrule these precedents.

ohwilleke
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There is no definitive answer to this.

An existing answer suggests this is a settled matter, but really this is one of those issues in which there is not a clear consensus and legal experts hold a variety of opinoins. See here:

https://www.theguardian.com/world/2022/may/03/us-abortions-travel-wave-of-restrictions

“I think states are not going to rest with just saying ‘there won’t be abortions in our state.’ I think they’re going to want to ban abortion for their citizens as much as they can, which would mean stopping them from traveling,” said David Cohen, professor at Drexel University’s Kline School of Law and lead author of a forthcoming article on cross-state legal issues that could arise in the abortion context.

A preprint of the paper can be downloaded from here:

https://scholarship.law.pitt.edu/fac_articles/517/

I will respect the wishes of the authors and not directly quote from the paper, but there is an entire section of the paper on this issue which can be summarized as saying that the legality of such a law is unclear.

Again, you can find scholars who would answer "definitely yes", "definitely no" and anywhere in between. I would note that given the potential end of Roe, along with other decisions the court has been / is making (particularly around Chevron Deference), this does not appear to be a court that places great value on past precedent.

eps
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    The "do not quote" is directed at academics, and means that they should quote from and cite the peer reviewed paper and not the version on a pre-print server. It doesn't mean that a a Q&A site shouldn't quote from the article. Feel free to add direct quotes, if you think it would improve the answer. – James K May 05 '22 at 23:59
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    @JamesK : I believe "do not quote" is also to protect information value of novel content until the work is published, and the answer to this question is exactly the content the paper considers novel. Copyright law has stronger protections for unpublished work, especially when the substantiality of the citation is evident such as this case. This allows the work to be peer reviewed for example, without losing control of the content. I think respecting the directive may be appropriate. Thoughts? – shannon May 06 '22 at 07:31
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    I believe from a copyright perspective, this is a published work, by virtue of us, the public, having access to it. The academic concept of "published" is stronger and more like "published in a reputable journal". From a copyright perspective, quoting small sections to discuss the findings is likely to be fair use. From an academic publishing perspective, it's unlikely that this will cause the authors problems, because this forum is unlikely to be perceived as an academic publication that has "scooped" the work - although I can understand the desire to respect the author's wishes. – James_pic May 06 '22 at 09:34
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    @shannon the article, or rather that specific draft of it, has been published within the meaning of copyright law (edit: as noted by James_pic in a comment posted after I began composing this one). It is certainly not a violation to quote the article here within the bounds of fair use (or of similar exceptions to copyright protection in jurisdictions other than the US). The question is whether to respect the author's wishes (to the extent that they can be determined) even in cases where they do not have the force of law behind them. – phoog May 06 '22 at 09:38
  • @James_pic (and at phoog) : Heard. Before my comment I did investigate both what legally constitutes published (why I mentioned accessibility for peer review) and what constitutes fair use (why I mentioned the novel / valued / substantial content). Basically, I understand "posted on the internet" need not mean "published", and even a small citation can exceed fair use. Would love it if you spoke to those points. Either way, thanks for the replies! – shannon May 06 '22 at 12:05
  • Can yuo at least summarize the arguments thatcould be used to make it constitutional? The usual justification for anti-abortion laws are that the fetus is a person so abortion is murder. Would a law prohibiting state citizens from traveling out of a state to kill someone be constitutional? – Barmar May 06 '22 at 14:12
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    Ultimately, the only thing that can prove fair use is a court of law. But I'd have thought at the very least that quoting from the abstract (possibly the second paragraph of it) is likely to be unproblematic - where I've heard of snippets being ruled not fair use, it's been where these snippets were a substitute for the copyrighted work that would compete with and devalue the work itself, which wouldn't be the case for the abstract. – James_pic May 06 '22 at 15:41
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It's probably worth keeping in mind that the situation is not static. Even assuming that crossing state lines for an abortion is legal in these states today, it seems clear from recent statements from legislators that such a situation will be challenged.

Citi Bank recently announced it would provide travel resources to employees affected by changes in legislation

"In response to changes in reproductive health care laws in certain states in the U.S., beginning in 2022 we provide travel benefits to facilitate access to adequate resources."

The initial response to this appears to be an attempt to cancel Citi Bank, this is unlikely to be the end of response by legislators.

Republican Party of Texas chairman Matt Rinaldi called the policy "appalling" and said the group is urging Republicans to snub Citi's services.

And

Dozens of U.S. House of Representatives Republicans on Tuesday demanded that the chamber drop Citigroup Inc...

A similar policy at Tesla produced threats of legislation, and this paywalled article suggests similar for other tech giants.

Texas State Representative Briscoe Cain, a Republican, has said he would propose legislation barring local governments in the state from doing business with any company that provides travel benefits for employees seeking abortions. Nationally, U.S. Sen. Marco Rubio introduced a bill on Wednesday that would prohibit companies from claiming tax deductions for such costs.

ABC reported in March 2022 on a Missouri law aimed at making it legal to sue anyone who aids a Missouri resident in obtaining an abortion.

A proposal that could be debated in the Legislature as soon as next week seeks to make it illegal to "aid or abet” abortions outlawed in Missouri, even if they are performed in other states.

Jontia
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