Missouri preventing women from abortions in other states is likely unconstitutional

With the U.S. Supreme Court’s reversal of Roe v. Wade appearing ever more likely and in fact imminent, the battle lines of the abortion wars in the country are shifting rapidly. One major confrontation will likely be over the extent to which anti-abortion states can restrict the right of citizens to travel to pro-choice states for an abortion. Missouri has already begun preparing such a law, S.B. 603. I believe such laws would violate the U.S. Constitution.

Fifteen years ago, I worked on a law review article in the St Louis University Law Journal authored by my brother, Alan Howard, a constitutional law professor at the law school, addressing the question of the constitutionality of such an anti-travel, anti-abortion law. The article argued that there are two provisions of the U.S. Constitution that courts might and should construe to bar such a law, both in Section 1 of the 14th Amendment. The first is the Privileges and Immunities Clause, which states that “no state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States.” The other is the Citizenship Clause, which states that “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

The article argued that courts could and should interpret one or both of these provisions as recognizing a constitutional right of a U.S. citizen to travel from an anti-abortion state to a pro-choice state to procure an abortion. (The article cited a 1941 Supreme Court case, Edwards v. California, in which, in two concurring opinions, four justices agreed that the Privileges and Immunities and Citizenship Clauses protected an American citizen’s right to travel freely between states.) For example, Illinois currently protects the right of women to obtain an abortion in Illinois. If Missouri enacted S.B. 603, it would mean that Missouri was seeking to apply its current (and eventually, stricter) abortion restrictions to a Missouri resident who would travel across the Mississippi River to Illinois to procure her abortion.

Punishing a Missourian for availing herself of the fundamental right Illinois accords its residents to procure an abortion simply by traveling to Illinois would violate her rights under the Privileges and Immunities Clause and/or the Citizenship Clause. Both these constitutional provisions accord to all U.S. citizens the right to travel freely and unimpaired to any state, and once there, to enjoy all of the rights that state affords its own residents.

Logically, one could question whether these constitutional provisions could actually limit the right of a state to arrest people trying to exit at their borders for committing a state crime, even such as murder, in another state. I believe the answer is probably yes, if the state the person is trying to enter protects the particular activity as a fundamental right (such as abortion) even though the home state outlaws it (even treating it as a “fundamental wrong”). Other examples would be a conflict between states with different euthanasia laws or, to a lesser degree, different laws on the use of marijuana.

Missouri is attempting to bolster its authority in this dispute (and possibly to insulate its law from the 14th Amendment) by emphasizing acts that occur in Missouri before a woman travels to Illinois for the abortion. But it is clear that such preliminary acts are being regulated only because of the eventual abortion occurring legally in Illinois. But for the out-of-state abortion, essentially none of the preliminary acts (for example, sex and conception) would be regulated or treated as improper or grounds for enforcement under Missouri law. Focusing the anti-abortion law on otherwise lawful in-state acts is just a pretense to get around the protections in the 14th Amendment.

Clearly, this is a conflict between the laws of two states — a fundamental right in one state versus a fundamental wrong in the other. Which state law controls? I argue that the Privileges and Immunities and Citizenship Clauses in the 14th Amendment protect the right of every American citizen to have unimpaired access to the rights afforded by the protective state, regardless of stricter or radically different laws in her own state. Under the 14th Amendment, every American citizen must have unfettered access to rights which are provided somewhere, anywhere, in the United States, and may not be barred at a state line.