Crossing state lines to get an abortion is a new legal minefield, with courts to decide if there’s a right to travel
By Naomi Cahn, University of Virginia and Sonia Suter, George Washington University,
2024-09-06
Almost half of the states in the country have made it harder to get an abortion since the Supreme Court in 2022 overturned the federal right to get an abortion. Fourteen states ban abortions in almost all circumstances, and another eight in almost all cases after 6 to 18 weeks of pregnancy .
As law professors who teach about reproductive justice , we view attempts to restrict abortion travel as one of the frontiers in the anti-abortion rights movement, raising new legal questions for courts to unravel.
This law prevents people from helping minors who are not their children get abortions – without parental consent – including in another state.
Idaho’s attorney general has interpreted the law to mean that health care providers cannot refer patients to abortion clinics in other states. And based on this interpretation, the new law also means that a grandparent or teacher, for example, could not provide advice to a pregnant teenager.
Under these laws, people can sue anyone who travels through their cities or counties to get an abortion in another state. Supporters of these laws describe “abortion trafficking” in broad terms, because as one anti-abortion activist has said, “ the unborn child is always taken against their will ” by a pregnant person.
This understanding of “abortion trafficking” effectively treats the fetus as a person, in line with other fetal personhood efforts by anti-abortion rights groups. They are also carefully crafted to avoid constitutional challenges.
In some cases, it is individual people, not states, who are trying to block people from traveling to get an abortion.
As the courts consider whether it is legal to ban interstate travel for abortion, it is useful to consider the 1975 Supreme Court case, Bigelow v. Virginia .
This case materialized after a Virginia newspaper published an advertisement for an abortion clinic in New York. The state of Virginia convicted the managing editor for violating a Virginia law that made it a misdemeanor for any person “by publication, lecture, advertisement, or by the sale or circulation of any publication” to encourage getting an abortion.
The Bigelow case was also decided just a few years after Roe v. Wade established a constitutional right to abortion. Such a right no longer exists after Dobbs.
This legal situation raises uncertainty about whether and how the Supreme Court would protect the right to travel for abortion.
States trying to protect abortion rights
There are approximately 22 states that have responded to other states’ abortion bans and other restrictive measures on interstate travel by adopting statutes called “shield” laws. These laws seek to prevent states with abortion bans from investigating their residents’ efforts to get an abortion in the shield state.
Along these same lines, the Biden administration issued a rule in 2024 that protects the privacy of people’s personal health information with respect to abortion when such care is legal.
The Dobbs decision returned the question of abortion to the states. But it has not settled many other legal issues related to abortion, such as whether there is a right to travel to get an abortion.
The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.
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