Abortion

States Can't Ban Out-of-State Travel To Get Abortions, Writes Kavanaugh

He also nixes the idea that states could "retroactively impose liability or punishment for an abortion that occurred before today's decision takes effect."

Elizabeth Nolan Brown | 6.24.2022 12:51 PM

(Michela Ravasio/Westend61 GmbH/Newscom)

After a leaked draft opinion revealed in May that the Supreme Court was likely to overturn Roe v. Wade and upend U.S. abortion laws, one big question that hung in the air was whether states with abortion bans would be able to stop residents from traveling out of state to get abortions. The answer to that question is no, suggests Justice Brett Kavanaugh.

Kavanaugh was one of four justices who joined Justice Samuel Alito's ruling, released today, in Dobbs v. Jackson Women's Health Organization. True to the draft opinion, the Court did indeed overturn Roe, the 1973 decision saying the U.S. Constitution protected the right to get an abortion. Justice Clarence Thomas and Kavanaugh also filed their own concurring opinions.

"The issue before this Court…is not the policy or morality of abortion" but rather "what the Constitution says about abortion," writes Kavanaugh in his opinion. And "the Constitution does not take sides on the issue of abortion.…The Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress." In short: Each state can decide for itself about the legality of abortion.

But can states decide that their residents can't travel out of state for an abortion?

No—and it's not even "especially difficult as a constitutional matter," writes Kavanaugh in his concurring opinion.

To be clear, this opinion does not carry any legal weight in terms of setting precedent. But it does provide a view of where at least one justice is on the issue, and as such may inform decisions made by lower courts.

A state cannot bar its resident from traveling to another state to obtain an abortion because people have a constitutional right to interstate travel, suggests Kavanaugh.

He also nixes the idea that a state could "retroactively impose liability or punishment for an abortion that occurred before today's decision takes effect."

Additionally, Kavanaugh rejects the idea that the Dobbs ruling means the Court may reverse decisions related to birth control (Griswold v. Connecticut), same-sex marriage (Obergefell v. Hodges), or interracial marriage (Loving v. Virginia). "Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents," he writes.

This runs somewhat counter to what Thomas suggested in his opinion: "In future cases, we should reconsider all of this Court's substantive due process precedents including Griswold, Lawrence"—relating to sexual activity between same-sex partners—"and Obergefell," he wrote. (Thomas did not mention revisiting Loving.)

But Kavanaugh's vision on these precedents is more in line with the majority opinion, which distinguishes between Roe and another abortion precedent (Planned Parenthood v. Casey) and Loving, Lawrence, Griswold, and Obergefell. These decisions "do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way."

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