Wall Street Journal: Can a state stop abortion travel?

The political fallout still isn’t clear, but a legal question now percolating is whether restrictive states can make it a crime to help a woman obtain an abortion elsewhere. Alabama Attorney General Steve Marshall has argued yes, but the answer from a federal court is no. “The attorney general cannot constitutionally prosecute people for acts taken within the state meant to facilitate lawful out of state conduct, including obtaining an abortion,” writes Judge Myron Thompson.

Alabama has a law punishing any “conspiracy formed in this state to do an act beyond the state, which, if done in this state, would be a criminal offense.” The state was sued by the nonprofit Yellowhammer Fund, the Alabama Women’s Center and others. Collectively, the judge says, they “receive as many as 95 weekly inquiries from clients about the availability of out-of-state abortions.” Before responding, they want a declaratory judgment that they can’t be prosecuted.

In a motion to dismiss, Marshall argued Alabama’s law “does not forbid a woman from leaving the state to obtain an abortion,” but instead merely “regulates certain assistance,” and in any case it’s “supported by strong, legitimate interests including preserving unborn life.” So far Judge Thompson has merely denied the motion to dismiss, though in a way that suggests his view of the law and the Constitution.

The core of his ruling is on the right to travel. The judge says it goes back at least to the Magna Carta in 1215, which promised “all merchants may enter or leave England unharmed and without fear.”

After U.S. independence, the Articles of Confederation guaranteed citizens “free ingress and regress to and from any other state,” with “all the privileges of trade and commerce.” This was the backdrop for the Constitution, which entitles Americans today “to all privileges and immunities of citizens in the several states.”

Justice Brett Kavanaugh went a similar route in a concurrence to Dobbs, the ruling overturning Roe. “As I see it,” he said, “some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter. For example, may a state bar a resident of that state from traveling to another state to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”

Judge Thompson’s small extension is to say that if a state can’t directly stop women from leaving for abortions, “it cannot accomplish the same end indirectly by prosecuting those who assist them.” If Alabama held such power, it’s hard to see the limiting principle. Other states could try to enforce their values by punishing anyone who helps their citizens fly to Las Vegas to gamble, to Colorado to smoke marijuana or to Alaska to hunt majestic grizzly bears.