Congress now After failing to pass a bill that would guarantee abortion rights across state lines, many fear that conservative states that have begun restricting abortion rights may soon decide to prevent abortion seekers from leaving their states for that purpose. Many Republican lawmakers are already discussing the possibility. But are such draconian restrictions possible—or at least legal?
Recognizing that Congress may not act on abortion rights until mid-November, the Biden administration has been working to determine what the executive branch can do to protect its own abortion access. President Joe Biden signed an executive order earlier this month directing the Department of Health and Human Services (HHS) to expand access to the abortion pill, protect patient privacy, and more.
Under the executive order, the U.S. Justice Department announced the creation of a reproductive rights task force that will “monitor and evaluate” bans on the abortion pill, preventing someone from having an abortion in a state where it is legal, or punishing federal law enforcement for providing health care that is legal at the federal level. employee. How much the Justice Department can do to protect the right to interstate abortion, and whether states can ban people from doing so, is still unknown.
What the Justice Department can do if a state bans travel for abortion purposes, and the most likely response is to file a lawsuit against the state. Mary Ziegler, a law professor at the University of California, Davis, said the agency would argue that such a ban is unconstitutional. (The Justice Department itself did not respond to a request for comment.)
Judge Brett Kavanaugh wrote in his concurring opinion Dobbs v. Jackson Women’s Healthoverthrown Roe v Wade, states can’t ban people from having abortions across state lines. That said, Ziegler isn’t entirely convinced that the right to travel will continue to be protected.
“What Kavanaugh said was really vague. There’s a right to travel, but I don’t know how good that is for you,” Ziegler said. “There used to be abortion rights, but not now. That may change when courts talk about rights that are not listed. Even if you take Kavanaugh’s word for it, it doesn’t answer all questions.”
The right to travel is generally considered to be protected by the Fourteenth Amendment, and the Supreme Court has upheld this in the past.However, the right to abortion was also seen as something protected by the Fourteenth Amendment until roe was overthrown.
“I think the effort to try and deal with the right to travel — that’s in many ways uncharted territory. There isn’t a lot of broad precedent around the right to travel,” said NYU law professor Melissa Murray. “A lot of it Some questions will be raised that the court will feel or look like a first impression. “
