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Can states ban residents from traveling out of state to get an abortion?

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  • Can states ban residents from traveling out of state to get an abortion?

    A few states have discussed such legislation. Libertarian blogger Ilya Somin argues that there are two likely reasons this would not fly. One is that this likely violates interstate commerce laws; he does note that at least two Supreme Court justices are on record disagreeing with the Dormant Commerce Clause, but not five. The second reason given is that states simply lack jurisdiction over occurrences in other states. The third reason given is that it would require the Supreme Court to reinterpret its longstanding view on a right to travel.

    I suspect that laws crafted like this would target organized travel providers (likely Planned Parenthood, or maybe more broadly, companies like Amazon offering money to allow employees to travel out of state for this purpose) more so than individual people traveling for their own abortions. I'm not sure if that changes Volokh's calculus at all as that distinction wasn't made in the article.

    Somin acknowledges he may be wrong about what courts would actually do. He also says what may be obvious; that Congress could pass a law banning such travel, though this is a moot point as it is difficult to imagine Congress would be willing to do this but not ban abortion altogether.

    https://reason.com/volokh/2022/05/10...is-overturned/

    (I know this is written from a pro-choice perspective, but few seem to be talking about it, and it's written in a largely objective manner until the activism near the end.)
    "I am not angered that the Moral Majority boys campaign against abortion. I am angry when the same men who say, "Save OUR children" bellow "Build more and bigger bombers." That's right! Blast the children in other nations into eternity, or limbless misery as they lay crippled from "OUR" bombers! This does not jell." - Leonard Ravenhill

  • #2
    Legal arguments aside, even if it did pass I can't see a practical way of enforcing such a law without the government getting bigger and more intrusive than it already is. It may become one of those laws that is on the books but never or rarely enforced.

    Comment


    • #3
      If you live in a state that doesn't allow gambling, you can go gamble in another state that does allow it.

      If you live in a state that doesn't allow prostitution, you can go to another state that does allow it[1].

      If you live in a state that doesn't allow the use of marijuana, you can go to another state that does allow it[2].

      I think these are the sort of things that get spitballed about at times like this, but have no chance of being enacted much less enforced.




      1. AFAIK, the only one is Nevada, and even then, only in a few counties.

      2. barring federal intervention, and you cannot bring any back to a state that prohibits it.

      I'm always still in trouble again

      "You're by far the worst poster on TWeb" and "TWeb's biggest liar" --starlight (the guy who says Stalin was a right-winger)
      "Overall I would rate the withdrawal from Afghanistan as by far the best thing Biden's done" --Starlight
      "Of course, human life begins at fertilization that’s not the argument." --Tassman

      Comment


      • #4
        Originally posted by rogue06 View Post
        If you live in a state that doesn't allow gambling, you can go gamble in another state that does allow it.

        If you live in a state that doesn't allow prostitution, you can go to another state that does allow it[1].

        If you live in a state that doesn't allow the use of marijuana, you can go to another state that does allow it[2].

        I think these are the sort of things that get spitballed about at times like this, but have no chance of being enacted much less enforced.




        1. AFAIK, the only one is Nevada, and even then, only in a few counties.

        2. barring federal intervention, and you cannot bring any back to a state that prohibits it.
        But things like gambling and prostitution are a net gain economically for the state. Killing fetuses is a net loss, assuming liberal states subsidize it, which seems likely.
        "What am I doing here?" -- Joe Biden 2021

        Comment


        • #5
          Originally posted by seanD View Post

          But things like gambling and prostitution are a net gain economically for the state. Killing fetuses is a net loss, assuming liberal states subsidize it, which seems likely.
          Which state are we talking about here? These laws would prohibit traveling out of state to spend money elsewhere. This is an implicit loss of revenue for the state whose residents are gambling/whoring elsewhere.

          If we're talking about the other angle, abortion tourism would be a short term economic boon. I imagine they don't care about the loss of population from other states.
          "I am not angered that the Moral Majority boys campaign against abortion. I am angry when the same men who say, "Save OUR children" bellow "Build more and bigger bombers." That's right! Blast the children in other nations into eternity, or limbless misery as they lay crippled from "OUR" bombers! This does not jell." - Leonard Ravenhill

          Comment


          • #6
            Originally posted by KingsGambit View Post

            Which state are we talking about here? These laws would prohibit traveling out of state to spend money elsewhere. This is an implicit loss of revenue for the state whose residents are gambling/whoring elsewhere.

            If we're talking about the other angle, abortion tourism would be a short term economic boon. I imagine they don't care about the loss of population from other states.
            I read your OP wrong.
            "What am I doing here?" -- Joe Biden 2021

            Comment


            • #7
              Foremost, a state government would have no reason to know why any citizen is travelling anywhere. I can drive to either Arkansas, Kansas or Oklahoma from my home is less than 2 hours. My state government wouldn't even know I made the trip.

              What would be interesting is if state A designated 2nd-trimester abortions as "manslaughter" (or something), and a person from there travelled to state B to have the procedure performed. Upon return, could they be arrested under state A's laws (if discovered)?
              "You should just assume going forward that if I am ever wrong it is a typo" - Backup
              "
              Reality simply does not change based upon consensus or desire." - rogue

              Comment


              • #8
                Originally posted by rogue06 View Post
                If you live in a state that doesn't allow gambling, you can go gamble in another state that does allow it.

                If you live in a state that doesn't allow prostitution, you can go to another state that does allow it[1].

                If you live in a state that doesn't allow the use of marijuana, you can go to another state that does allow it[2].

                I think these are the sort of things that get spitballed about at times like this, but have no chance of being enacted much less enforced.




                1. AFAIK, the only one is Nevada, and even then, only in a few counties.

                2. barring federal intervention, and you cannot bring any back to a state that prohibits it.
                I remember years ago it being illegal to transport alcohol from Missouri into Kansas, which prohibited me from buying a specific brand of Trader Joe's beer (at the time, Kansas prohibited full strength beer in grocery stores, so TJ simply didn't make it available on the Kansas side). It was a largely unenforced law, but at the time I was a real stickler for following the law to a T.
                "I am not angered that the Moral Majority boys campaign against abortion. I am angry when the same men who say, "Save OUR children" bellow "Build more and bigger bombers." That's right! Blast the children in other nations into eternity, or limbless misery as they lay crippled from "OUR" bombers! This does not jell." - Leonard Ravenhill

                Comment


                • #9
                  The closest thing I can think of as an analogue is travel agencies organizing trips out of state to casino destinations. Openly advertising these isn't illegal. The optics might be awkward if a state did want to crack down on it; as a pro-lifer, I'm prepared not to care about optics (beyond not supporting sloppily written legislation that happens to also ban legitimate healthcare). The more legitimate concerns are those of government overreach that have been mentioned here already.
                  "I am not angered that the Moral Majority boys campaign against abortion. I am angry when the same men who say, "Save OUR children" bellow "Build more and bigger bombers." That's right! Blast the children in other nations into eternity, or limbless misery as they lay crippled from "OUR" bombers! This does not jell." - Leonard Ravenhill

                  Comment


                  • #10
                    Originally posted by rogue06 View Post
                    If you live in a state that doesn't allow the use of marijuana, you can go to another state that does allow it[2].



                    2. barring federal intervention, and you cannot bring any back to a state that prohibits it.
                    Oddly, if you take marijuana from a state where it is legal to another state where it is also legal you can be charged under Federal law for taking it across state lines.

                    Comment


                    • #11
                      Originally posted by Alien View Post

                      Oddly, if you take marijuana from a state where it is legal to another state where it is also legal you can be charged under Federal law for taking it across state lines.
                      Marijuana isn't actually legal anywhere as federal law supersedes state law; it's not being strictly enforced right now, but anyone who partakes in a "legal" state is still very much violating the law. So this shouldn't be a cause for confusion.
                      "I am not angered that the Moral Majority boys campaign against abortion. I am angry when the same men who say, "Save OUR children" bellow "Build more and bigger bombers." That's right! Blast the children in other nations into eternity, or limbless misery as they lay crippled from "OUR" bombers! This does not jell." - Leonard Ravenhill

                      Comment


                      • #12
                        Originally posted by KingsGambit View Post
                        A few states have discussed such legislation. Libertarian blogger Ilya Somin argues that there are two likely reasons this would not fly. One is that this likely violates interstate commerce laws; he does note that at least two Supreme Court justices are on record disagreeing with the Dormant Commerce Clause, but not five. The second reason given is that states simply lack jurisdiction over occurrences in other states. The third reason given is that it would require the Supreme Court to reinterpret its longstanding view on a right to travel.

                        I suspect that laws crafted like this would target organized travel providers (likely Planned Parenthood, or maybe more broadly, companies like Amazon offering money to allow employees to travel out of state for this purpose) more so than individual people traveling for their own abortions. I'm not sure if that changes Volokh's calculus at all as that distinction wasn't made in the article.

                        Somin acknowledges he may be wrong about what courts would actually do. He also says what may be obvious; that Congress could pass a law banning such travel, though this is a moot point as it is difficult to imagine Congress would be willing to do this but not ban abortion altogether.

                        https://reason.com/volokh/2022/05/10...is-overturned/

                        (I know this is written from a pro-choice perspective, but few seem to be talking about it, and it's written in a largely objective manner until the activism near the end.)
                        Not to mention that other than pure 1984 surveillance of all communications and activity, there's no practical way to know if someone is leaving the state for abortion or for any of countless infinite reasons that one travels out of one's state. It's simply not enforceable. Even less enforceable than the liberal 'universal background check' nonsense for guns.
                        "So when you actually get the virus, you're going to start producing antibodies against multiple pieces of the virus. So, your antibodies are probably better at that point than the vaccination."
                        - Pfizer Scientist Chris Croce

                        Comment


                        • #13
                          Originally posted by seanD View Post

                          But things like gambling and prostitution are a net gain economically for the state. Killing fetuses is a net loss, assuming liberal states subsidize it, which seems likely.
                          Why would state A care if someone went to state B and cost that state some money?

                          I'm always still in trouble again

                          "You're by far the worst poster on TWeb" and "TWeb's biggest liar" --starlight (the guy who says Stalin was a right-winger)
                          "Overall I would rate the withdrawal from Afghanistan as by far the best thing Biden's done" --Starlight
                          "Of course, human life begins at fertilization that’s not the argument." --Tassman

                          Comment


                          • #14
                            Originally posted by KingsGambit View Post

                            Which state are we talking about here? These laws would prohibit traveling out of state to spend money elsewhere. This is an implicit loss of revenue for the state whose residents are gambling/whoring elsewhere.

                            If we're talking about the other angle, abortion tourism would be a short term economic boon. I imagine they don't care about the loss of population from other states.
                            It is a loss only if the state they live in allows gambling / prostitution and a resident goes elsewhere to participate in such activities.

                            It is also little different from someone going on vacation out of state. Their home state is losing revenue in the exact same way.

                            Again, the idea of prohibiting someone from traveling out of state sounds like the sort of kooky ideas that tend to get bandied about as a major change is about to take place, and has about as much chance of passing and being enforced as a snowball has in... a blast furnace.

                            I'm always still in trouble again

                            "You're by far the worst poster on TWeb" and "TWeb's biggest liar" --starlight (the guy who says Stalin was a right-winger)
                            "Overall I would rate the withdrawal from Afghanistan as by far the best thing Biden's done" --Starlight
                            "Of course, human life begins at fertilization that’s not the argument." --Tassman

                            Comment


                            • #15
                              Originally posted by rogue06 View Post
                              If you live in a state that doesn't allow gambling, you can go gamble in another state that does allow it.

                              If you live in a state that doesn't allow prostitution, you can go to another state that does allow it[1].

                              If you live in a state that doesn't allow the use of marijuana, you can go to another state that does allow it[2].

                              I think these are the sort of things that get spitballed about at times like this, but have no chance of being enacted much less enforced.




                              1. AFAIK, the only one is Nevada, and even then, only in a few counties.

                              2. barring federal intervention, and you cannot bring any back to a state that prohibits it.
                              Yup. This sounds like more liberal scare tactics to use against people to make them think how "horrible" revoking RvW would be. There is nothing to stop someone from traveling to another state to do anything they want that is legal in that state. Next they will be telling people that they can't move to a state that allows abortion if they live in a state that outlaws it.


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