Does the right to travel for an abortion include the right to avoid punishment? Kavanaugh concurrence is not going so far

Constitutional Law

Does the right to travel for an abortion include the right to avoid punishment? Kavanaugh concurrence is not going so far

Justice Brett Kavanaugh.

When the U.S. Supreme Court ruled last month that there was no constitutional right to abortion, Justice Brett Kavanaugh commented on the limitations of the decision in a consensual opinion.

“Can a state prevent a resident of that state from traveling to another state to have an abortion?” Kavanaugh asked. “In my view, the answer is not based on the constitutional right to travel on the interstate.”

But Kavanaugh’s opinion may not be as courageous as for those traveling for abortion, the New York Times reports. “The real issue in the world,” the article says, “is not whether women seeking abortion will be stopped at the state border but what will happen after that — to the women, to those who helped them travel and beyond. of the state. abortion providers. ”

The Times spoke with University of Pennsylvania law professor Seth Kreimer, who said Kavanaugh’s description of the right to travel was “strangely limited,” in the words of the Times.

“Read carefully,” Kreimer told the Times, Kavanaugh “may not suggest protection against prosecution to the resident upon his return — or a desire to punish doctors in the sanctuary states either by prosecution or damning actions. “

Kavanaugh did not cite the 1975 Supreme Court decision Bigelow against Virginiawho said a woman in a state that prohibits abortion can travel to a state where the procedure is legal, and the woman cannot be charged for obtaining an abortion.

The case was withdrawn on the First Amendment basis of the judgment of a newspaper editor who ran an ad in Virginia for abortion services in New York at a time when abortion was illegal in Virginia.

Law professors at Hill and Bloomberg Law point out that the right to travel is not explicitly mentioned in the Constitution. But the long -before derives the right to travel from the structure of the Constitution, the dormant commerce clause that prevents states from burdening interstate commerce, and the privileges and safety clause.

The Bloomberg Law article calls on Congress to enact legislation that protects the right to travel for abortion care and to ensure that no one is prosecuted in connection with abortion in another state.

Two bills have already been introduced to prevent states from banning abortion travel and punishing those who obtain, assist or provide abortions out of state, Politico reports. The prospects of the bill are uncertain.