1

I recently posted a question concerning the likelihood that Federal statutory protection (so far only proposed) of abortion rights might be upheld by the Court in light of the recent ruling in Dobbs.

As a related matter, lawmakers in some states have suggested criminalizing the travel to other States (including other nations) for purposes of accessing abortion by individuals residing in a State having imposed a ban.

Does Congress have the power to limit States' enforcement of legislation characterizing such travel as criminal conspiracy, and is such power substantially more likely to be upheld by the Court, compared to more broad proposed legislation for guaranteeing abortion rights in all States?

Improve this question
4
  • 1
    There is a constitutional; right to travel within the UIS. State laws attempting ro prohibit such travel or to charge an exit fee, have been overturned in the past. The purpose of the travel is irrelevant. I will try to find sources to convert this to an answer.
    – David Siegel
    Commented Jun 28, 2022 at 1:59
  • Does this answer your question? Is it legal to have an abortion in another state or abroad?
    – BlueDogRanch
    Commented Jun 28, 2022 at 3:15
  • @DavidSiegel, The question is slightly different, whether a law in a State would be upheld if it sought to hold someone culpable for criminal conspiracy who shall have returned to a State of residence from another State in which she shall have accessed an abortion.
    – brainchild
    Commented Jun 28, 2022 at 16:51
  • 1
    @BlueDogRanch, No, I'm afraid not. I think it is of limited use to compare condition three years ago versus the condition in a hypothetical near-future scenario in which new laws may appear in certain States.
    – brainchild
    Commented Jun 28, 2022 at 16:52

1 Answer 1

Reset to default
1

Does Congress have the power to limit States' enforcement of legislation characterizing such travel as criminal conspiracy,

Yes. This flows from the Article I, Section 8 power of Congress to regulate interstate commerce.

and is such power substantially more likely to be upheld by the Court, compared to more broad proposed legislation for guaranteeing abortion rights in all States?

Probably.

A law prohibiting states from criminalizing travel or aid to travelers is likely to be upheld (and indeed, might be the result that the courts would reach in the absence of any legislation).

Broad proposed legislation for guaranteeing abortion rights in all States could very well also be upheld, but it is more vulnerable to constitutional attack on the ground that it does not squarely fit within a specifically enumerated power of Congress either in Article I, Section 8, or in the enforcement clauses of several of the constitutional amendments, or in other places where Congress is expressly granted power (e.g. the Article III power granted to Congress to create inferior courts and regulate appellate jurisdiction). This is somewhat less blatantly interstate commerce, although the power to regulate interstate commerce has been held to be very, very broad (e.g. encompassing growing grain for personal consumption on your own farm that is entirely within a single state).

Improve this answer

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .