In a Post-Roe World, Can States Prevent Women From Seeking Abortions Out-of-State?
by Michael C. Dorf
A bill pending in the Missouri legislature would forbid women in the state from traveling to other states to obtain abortions. It would use an SB8-style mechanism that relies on private enforcement, presumably for the same reason that Texas adopted that approach: to evade federal judicial review. Such circumvention might be thought necessary, even if the Supreme Court overrules Roe v. Wade and allows states to forbid abortions, because the Missouri bill could be unconstitutional even if there is no right to abortion. After all, various federal constitutional provisions limit the ability of states to regulate extraterritorially or to restrict their citizens' ability to travel to other states.
Here are some of the relevant doctrines and provisions that limit what states can do to restrict people going in and out: the dormant Commerce Clause; the Privileges and Immunities Clause of Article IV; the Privileges or Immunities Clause of the Fourteenth Amendment; the Citizenship, Due Process, and Equal Protection Clauses of the Fourteenth Amendment; and an unenumerated structural principle. The Supreme Court endorsed the unenumerated principle in the appropriately named case of United States v. Guest, where Justice Potter Stewart wrote for the majority:
Although the Articles of Confederation provided that "the people of each State shall have free ingress and regress to and from any other State," that right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.
That broad principle is not all that's at stake. The Missouri bill is especially ugly in light of Dred Scott v. Sandford, in which the Supreme Court allowed Missouri to effectively extend slavery beyond its borders into Illinois and Wisconsin. The fact that so many of the modern right-to-travel cases are grounded in Section 1 of the Fourteenth Amendment, which overruled Dred Scott, makes it highly problematic that Missouri might now try to extend the reach of reproductive servitude beyond its borders.
So, if the bill passes, and assuming that some way can be found to challenge it notwithstanding its SB8-style enforcement mechanism, then even in a post-Roe world, it will be struck down, right? Maybe, but maybe not.
The modern right to travel cases mostly involve limits on states' ability to keep people out of their states. Here Missouri would be attempting to prevent its own citizens from traveling to another state. Can it do that? If Missouri literally prevented people who had broken no laws in the state from leaving the state, the answer would clearly be no. But that's not exactly what the proposed bill would do.
To be sure, language in Bigelow v. Virginia seems to doom the Missouri bill. There the Court invalidated a Virginia law that made it illegal to advertise a legal abortion in New York. The case was decided on First Amendment grounds, but Justice Blackmun's opinion also contained the following statement: "Neither could Virginia prevent its residents from traveling to New York to obtain [abortion] services or, as the State conceded, prosecute them for going there." The majority then cited three precedents. However, none of them quite decided that a home state may not punish its citizens for actions they undertake in a host state so long as the host state allows those actions.
First, the Bigelow Court cited Guest at the pages that contain the language I quoted above. The problem is that Guest itself was a case about congressional power, so the language there was dicta as a freestanding limit on states' regulations of conduct in other states. The second case cited was Shapiro v. Thompson, which involved a state effort to keep people out, not in. And third, the Court cited Doe v. Bolton, the companion case to Roe; it held, among other things, that Georgia could not restrict abortion access to Georgia residents. That's another case of keeping people out.
Although there is no case directly on point, I nonetheless think that the Supreme Courts that decided the modern right-to-travel cases up to and including Saenz v. Roe in 1999 might have concluded that the Missouri bill unconstitutionally infringes the right to travel, even if abortion is not a constitutional right. Although keeping people from entering is different from keeping people from leaving a state, there's no reason to think that the latter is less constitutionally offensive--and the Missouri bill seems like an overreach to regulate extraterritorially.
And yet I have no great confidence in the current Supreme Court. Indeed, I'm not even fully persuaded that states cannot regulate the extraterritorial conduct of their citizens, at least not as a categorical matter. Distinguishing the Bigelow language at greater length but in similar respects to what I've offered above and also reviewing earlier cases that the Court has never overruled, Professor Mark Rosen explained in a 2002 U. Penn. L. Rev. article:
Many courts and noted commentators have concluded that states cannot bar their traveling citizens from doing in a sister state what the sister state permits its own citizens to do. This Article shows that this view is incorrect. A careful analysis of the many constitutional provisions that bear on extraterritoriality - due process, the right to travel, Article IV's privileges and immunities clause, and the dormant commerce clause - demonstrates that states have significant powers to regulate their citizens' out-of-state activities for the purpose of ensuring the efficacy of constitutional state policies.
A hypothetical example may illustrate why the regime Professor Rosen describes is plausible, at least in some contexts.
Despite wide disapproval by child development experts, all U.S. states permit parents to use physical punishment to discipline their children, even as all states also forbid child abuse. States differ on where they draw the line between permissible punishment and impermissible abuse. Suppose that State A forbids "any physical punishment that causes serious injury," but State B permits physical punishment "unless it is intended to cause and in fact causes serious and permanent injury." Now suppose that Alex, a resident of State A, takes his two-year-old son Andrew on a family vacation to State B. While in State B, Alex spanks Andrew in a way that causes Andrew to fall down, bloody his mouth, and lose a tooth. Alex seeks medical attention. The doctor, familiar with the laws of State B, concludes that Alex did not intend to do more than administer a spanking and that a lost baby tooth is not a permanent injury. Thus, the doctor does not report Alex to the authorities in State B. However, when Alex returns to State A, someone at Andrew's daycare reports the incident and the State charges Alex with misdemeanor child abuse under the no-serious-injury law, which clearly states that it applies to citizens of the state and their minor children even when outside the state. State A has an interest in protecting the children of the state that does not seem to be diminished by the fact that those children were temporarily present in another state. Other than dicta, there is nothing in SCOTUS precedent that clearly forbids the application of State A's law here.
You can see where this is going. Now suppose that State B permits parents to kill their minor children. Surely State A has an extremely strong interest in punishing a parent who takes their minor child across state lines to murder the child. And in a post-Roe world, a state will be permitted to treat some abortions that are now constitutionally protected as murder.
You might be worried about line drawing. Could Missouri make it a crime for Missouri residents to use recreational marijuana while in Illinois or other states in which it's legal? And what about enforcement? How will the home state know what someone did while visiting another state?
These and other considerations suggest that there are good reasons why states generally shouldn't regulate what their citizens do when in other states. And there certainly will be cases in which the state's interest is so attenuated or in active conflict with the law of the host state that it makes no sense to apply the home state's law. For example, State A shouldn't be able to regulate how fast its licensed drivers drive while in other states. Applying different speed limits to drivers from different states on the same stretch of road is affirmatively unsafe. But such examples tend to show that there are limits to a state's ability to regulate its citizens' conduct while in other states, not that states have no such ability.
To be sure, not everyone agrees. In a series of articles (e.g., here, here, and here), Professor Seth Kreimer has developed powerful historical, doctrinal, structural, and normative arguments for construing the right to travel and other constitutional doctrines to forbid states' extraterritorial regulation of their citizens' conduct with respect to abortion even in a post-Roe world. I would like to find him more persuasive than Professor Rosen, and if push comes to shove, I might just end up with Professor Kreimer. But to my surprise, after reading them both I came away thinking that the question is at least somewhat open and difficult.
As Professor Rosen explains in a footnote at the conclusion of his article and in response to the third article by Professor Kreimer linked above (which was itself a response to Professor Rosen's article):
as a matter of positive law, states are not flatly prohibited from regulating their citizens’ out-of-state activities. [T]o what extent they have such regulatory powers turns on largely normative considerations: whether extraterritorial application would be “arbitrary” or “fundamentally unfair,” and whether there is a “substantial reason” for a Host State to apply the Home State’s law to a visitor in accordance with the Home State’s wishes.
There's at least a plausible argument that Professor Rosen is right about both of those points. If so, it seems that a Court that is eager to overrule Roe would run with the argument that some extraterritorial regulation of a state's citizens is permissible and would also think that a state has "substantial reason" to apply its abortion laws extraterritorially and thus does not act in a way that is "arbitrary" or "fundamentally unfair."
In sum: (1) States typically don't and typically shouldn't regulate their citizens' out-of-state conduct when that conduct is legal under the laws of the state where it occurs; (2) dicta in modern cases suggest that attempts to regulate out-of-state conduct in that way are per se unconstitutional; (3) powerful arguments (by Professor Kreimer and others) provide a solid grounding for that dicta; but (4) no modern case squarely forecloses states' regulation of their citizens' out-of-state conduct; (5) some precedents that have never been overruled authorize it; (6) there are legitimate reasons for such extraterritorial regulation in at least some settings; and (7) a Supreme Court that is willing to overrule Roe might also conclude that if extraterritorial regulation of citizens' conduct is ever permissible, it's permissible as applied to abortion restrictions.
Dred Scott was wrongly decided because slavery was a great evil. The case's determination of questions of interstate federalism, to the extent that those questions can be isolated from the underlying evil of slavery, was more complex. Likewise now, as then, the chief problem with Missouri's effort to extend the reach of its law beyond its borders is that it does so in the cause of human bondage and inequality.