37

Alabama passed new laws recently, making abortion a very limited option. In that context is it legal for a US national who lives in Alabama to

  • have an abortion in another state where it is legal in the circumstances she in in?
  • have an abortion abroad, in circumstances which are illegal in the US?

Does the "US national" above matter?

In other words: is the specific act of abortion illegal on itself in Alabama (or another state if it matters), just because of the geographic constraints - or is it related to the fact that someone lives in Alabama or, more broadly, is a US citizen (second bullet of my question)?

Or, yet phaserly differently: can someone who lives in Alabama just travel to another state and get an abortion, then come back safely (= Alabama law enforcement does not care) or is it still a felony to have an abortion outside of Alabama?

Note: Alabama is taken as an example following the recent law changes and their wide broadcasting in France. Any other state with a similar law will do.

  • 1
    I understand your reason for choosing Alabama as your example, but it might be better to use the state of Georgia instead, as it passed a similar law that actually does mention traveling out of state for an abortion. – aherocalledFrog May 22 at 14:46
  • 1
    @aherocalledFrog: thank you for the information. There is more on the subject in an article I found (which may or may not be accurate, I am not a lawyer and crucially - not in the US so many subtleties may not be clear for me), notably "If a Georgia resident plans to travel elsewhere to obtain an abortion, she may be charged with conspiracy to commit murder, punishable by 10 years’ imprisonment". – WoJ May 22 at 15:03
49

Does the "US national" above matter?

The nationality of the person is not relevant. Like most criminal statutes, the law applies to acts within the jurisdiction of Alabama, which basically means within the state's territory. The only foreign people who would be immune from that jurisdiction would be diplomats and the like, but such people would not be licensed to practice medicine in Alabama. This brings us to the point in the next paragraph.

is it still a felony to have an abortion outside of Alabama?

No. It is not even a felony to have an abortion inside Alabama. The law does not criminalize having abortions. It criminalizes performing abortions. See section 5 of the law:

Section 5. No woman upon whom an abortion is performed or attempted to be performed shall be criminally or civilly liable. Furthermore, no physician confirming the serious health risk to the child's mother shall be criminally or civilly liable for those actions.

To extend your question, let us consider a doctor who is licensed to practice medicine both in Alabama and in some other jurisdiction where abortion is legal. Such a doctor could not be convicted under Alabama law for performing abortions in the other jurisdiction.

  • 34
    "The only foreign people who would be immune from that jurisdiction would be diplomats and the like, but such people would not be licensed to practice medicine in Alabama." Of course, such a person would also be immune from prosecution for practicing medicine without a license. – Acccumulation May 21 at 20:33
  • 4
    +1 It might also be worth noting that the Alabama law has not yet taken effect (Section 10 of the article's text says that it does not take effect for 6 months following its passage and approval by the Governor) and that it will almost certainly be enjoined by courts from taking effect at least until the U.S. Supreme Court decides to review it, if they so decide. – reirab May 21 at 20:36
  • 4
    @Acccumulation yes. But if such a person did practice medicine without a license, or do anything else in flagrant violation of state law, the person would likely be declared persona non grata and expelled from the US. – phoog May 21 at 21:08
  • 7
    "It is not even a felony." - it's not even criminal. "It criminalizes performing abortions." +1. So, find someone willing to do it, that won't get you killed in the process, and you're good to go. The weekly 'D&C' death count of yore, anyone? – Mazura May 22 at 3:14
  • 6
    "Furthermore, no physician confirming the serious health risk to the child's mother shall be criminally or civilly liable for those actions." Does "those actions" mean the action of telling a mother that they are at serious health risk is acceptable, or that doctors are legally allowed to perform abortions when the mother is at serious health risk? – JMac May 22 at 13:09
35

First of all, this entire discussion assumes that Alabama's law will be upheld, and Roe will be overturned. Roe is still good law, and under it the Alabama law is pretty clearly invalid. However it is possible that the US Supreme Court will overrule itself and Roe will no longer apply. The Court has overruled itself in the past, perhaps most rapidly and thoroughly in West Virginia State Board of Education v. Barnette 319 U.S. 624 (1943), (the second flag salute case) which overturned Minersville School District v. Gobitis (1940). Gobitis involved a very similar law and almost exactly similar facts, and there had been only one change in the membership of the Court. Moreover the West Virginia law included extensive quotes from Gobitis and was clearly intended to follow that decision closely. But the Court changed its ruling totally in only 3 years (from 8-1 to 6-3 the other way).

As discussed at length in this Wikipedia article Freedom of Movement is a right protected under the US constitution. It has been recognized as such at least since Paul v. Virginia, 75 U.S. 168 (1869), and is traced to a right guaranteed under Article Four to the Articles of Confederation prior to the current US Federal Constitution. Travel between states is now protected by the Privileges and Immunities Clause. See Saenz v. Roe, 526 U.S. 489 (1999). See also This article on "The Right to Travel" from the Legal Information Institute.

Therefore, a state law attempting to prohibit a person from traveling out of state (or out of the US) to obtain an abortion would be unconstitutional. To the best of my knowledge, neither the Alabama law nor any other recently passed or seriously proposed law purports to impose such a prohibition.

A federal law to this end would surely be contested, and might well be held unconstitutional, but there is no case in direct point that I know of. The federal Mann act did once prohibit interstate "transport of females" for "immoral purposes" (generally sex) and now criminalizes interstate travel for purposes of illegal prostitution. A similar law to prevent travel to obtain an abortion might be upheld, no one can be sure until one is passed and challenged.

If a person traveled outside a state, such as Alabama, that prohibited abortion, to one that permitted it, and had an abortion there, and then returned to the original state, an attempt to prosecute such a person would be highly likely to fail. First of all, the current Alabama law does not purport to prohibit out-of-state abortions. Secondly, such a prosecution would probably be held to be a burden on the right to travel. There is also the history of people traveling to other states to obtain divorces not lawful in their own states. Attempts to hold such divorces invalid did not succeed. The hypothetical case seems similar.

  • 3
    Thank you for your answer and sorry if I was not clear in my question. I was less concerned about the prohibition of travel (which is not realistic) and more about the fact that a pregnant woman from Alabama who gets an abortion outside of Alabama, and then comes back to Alabama would be or not subject to the "abortion in Alabama is illegal" law (provided that there is a way to prove that it was abortion). – WoJ May 21 at 12:40
  • 2
    @WoJ I have tried to address your comment in the edited answer. – David Siegel May 21 at 14:02
  • 5
    There is currently U.S. federal law against committing certain actions outside of the country, particularly in regards to sex trafficking and production of child pornography, so it would seem that right to travel has not successfully been used to overcome such laws. That said, this is all kind of moot since, as you mentioned, the Alabama law does not purport to criminalize either travel or any action taken outside the state of Alabama. – reirab May 21 at 20:24
  • 7
    @reirab Freedom of travel is a federal right, and Congress may regulate it in ways that individual states may not, just a Congress may regulate interstate commerce. Thus state laws which have disparate impact on travel and travelers have been ruled unconstitutional as a burden on travel, where a similar provision in a Federal law would be tested by different standards, and might well be upheld. This is currently hypothetical on at least 2 levels, however. – David Siegel May 21 at 20:42
  • 2
    @gnasher729 at the moment there is no US law prohibiting crossing any border, state or national, in quest of an abortion. If a federal law to that effect was ever passed, then it would depend on how that law was worded. A state law to that effect would not be constitutional, because regulation of interstate and international travel is reserved to the Federal government. – David Siegel May 22 at 19:15

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.