Legality of Traveling Out Of State To Get An Abortion
Planning to move out of the conservative society to get an adoption? Will that be so easy? I guess no. Legal experts caution against taking for granted the rights of patients to travel outside of their state for abortion treatment, despite the DOJ’s assurances to that effect. MANY are concerned that conservative states that have started restricting abortion rights may soon decide to prevent people seeking abortions from leaving their own state for that purpose. This is because CONGRESS failed to pass a bill that would have guaranteed a right to travel across state lines to obtain an abortion. This potential outcome is already being discussed by several Republican politicians. However, are such severe limitations even feasible—or, at the very least, legal?
Legality of Traveling Out of State in order to get Adoption
A new legal battleground was opened up when the U.S. Supreme Court overturned Roe v. Wade, the landmark ruling that had secured abortion rights nationwide for five decades.
Legal experts argue that one of the most difficult questions to resolve is whether governments that forbid abortions have the right to criminally prosecute women who leave their state to have an abortion or those who assist them in doing so.
This issue is critical since the judges’ decision to overturn Roe gave states the authority to legalize or outlaw abortion, limiting access to the procedure to a patchwork of states. Now, women who reside in places where abortion is illegal may choose to get the operation in a state where it is lawful.
So yet, no state has passed legislation outlawing this travel. However, it has been attempted: In Missouri, a measure is now under consideration that would use civil litigation to enforce abortion restrictions if the procedure is performed outside of the state.
To determine if limits on getting an abortion outside of one’s home state would be sustained as legal in the future, we analyzed published legal opinion since the court’s ruling on June 24 and spoke with twelve legal professionals. In the end, the majority of these experts predicted that the Supreme Court and other courts would rule in either direction.
Many groups, including a few businesses that have promised to pay for travel fees for employees who need abortions, are still urging patients who cannot obtain an abortion in their own state to go across state boundaries to receive care.
Mr. Cohen said that individuals should travel and seek medical attention wherever they can.
Kavanaugh on Ban on Out of State Travel for Abortion.
Kavanaugh was one of four justices who concurred in the decision in Dobbs v. Jackson Women’s Health Organization, which was announced today. According to the draught ruling, the Supreme Court did in fact overrule Roe, the judgment from 1973 that said the U.S. Constitution protected a woman’s right to an abortion. Kavanaugh and Justice Clarence Thomas each submitted their separate concurring opinions. The question before the court, according to Kavanaugh, is “what the Constitution says about abortion,” not the policy or morality of abortion. And “The Constitution does not take a position on the abortion debate. As a result, the Constitution is neither pro-life nor pro-choice. The Constitution is impartial, leaving it up to the people and their elected officials to decide how to proceed in the States or Congress via the democratic process.” Briefly stated: Each state has the discretion to determine whether or not abortion is lawful.
But may states determine that its citizens cannot have an abortion outside of their state?
No—in fact, Kavanaugh adds in his concurring opinion, it’s not even “particularly complex as a constitutional matter
To be clear, there is no legal significance to this conclusion in terms of creating precedent. However, it does offer insight into at least one justice’s position on the matter, and as a result, may help subordinate courts make decisions.
Because persons have a constitutional right to interstate travel, Kavanaugh argues that a state cannot prevent its citizen from going to another state to get an abortion.
A state cannot “retroactively impose culpability or penalty for an abortion that happened before today’s ruling takes effect,” he adds, rejecting this notion as well.
Additionally, Kavanaugh rejects the notion that the Dobbs judgement allows the Court to overturn rulings regarding interracial marriage, same-sex marriage, and birth control (Griswold v. Connecticut, Obergefell v. Hodges) (Loving v. Virginia). “Overruling Roe does not indicate that other precedents will be overruled, and it does not threaten or imply that those precedents will be overturned,”
Thomas noted in his decision that “in future instances, we should review all of this Court’s substantive due process precedents, including Griswold, Lawrence”—which dealt with sexual behavior between same-sex partners—”and Obergefell,”—which goes somewhat against what is being said here. (Thomas omitted bringing up Loving again.)
However, Kavanaugh’s interpretation of these precedents is more in accord with the majority judgment, which makes a distinction between Loving, Lawrence, Griswold, and Obergefell and another abortion case (Planned Parenthood v. Casey). These rulings “do not support the right to get abortion care, and by the same token, our determination that the Constitution does not grant such a right does not in any way weaken them.”
So far no law is there prohibiting women from moving out of state to have an abortion, but conservative states are likely to pass legislation on the issue outlawing women from traveling out of state to get an abortion.
Contributed by Sanal Pillai
Edited by Imtiaz Ullah