Proponents of abortion rights have long denounced the proposed travel restrictions as an unconstitutional scope. They may now have an unlikely ally: Conservative Supreme Court Judge Brett Kavanaugh, who sided with the majority to remove the constitutional right to abortion.
In his concurrent opinion in Dobbs v. Jackson Women’s Health published on June 24, Kavanaugh seemed to shake hands on the issue of traveling across state borders.
“Some of the… Abortion-related legal issues raised by today’s decision,” he wrote, “are not particularly difficult as a constitutional issue. For example, a state may ban a resident of that state. to travel to another state to have an abortion? In my opinion, the answer is based on the constitutional right to travel interstate. “
These three lines, buried within his 12-page opinion, have sparked debate. Some liberal jurists believe she may be choosing her words carefully, posing a narrow stance on policies that openly restrict the freedom of movement of pregnant women. Some conservatives think it may be brewing more expansive unrest with the extension of the abortion ban beyond state borders.
Kavanaugh’s feelings on the subject could be consistent, because he now feels at the center of the court on many issues. He tends to show more judicial moderation than the other four Conservative associate judges. But he is usually less restrained than Chief Justice John Roberts, a conservative known for being respectful of precedents and aware of the court’s credibility with the public. (In Dobbs, for example, Roberts agreed with other Conservatives in defending Mississippi’s anti-abortion law at the center of the case, but separated from the rest of the Conservative bloc on the issue of overthrowing Roe).
Therefore, Kavanaugh’s stated opposition to abortion-related travel bans may mean that, with Roberts ’support, the balance of power is shifting in favor of removing those travel bans, legal experts said.
“If a state passed an interstate travel ban, I think there is definitely a majority to overturn it, now that Kavanaugh has made his reasoning clear,” said Craig Collins, a lawyer who wrote a book in 2015. arguing in favor of the overthrow of the law. Roe against Wade. That majority, he and other court observers said, would likely consist of at least the three Liberal judges, Roberts and Kavanaugh.
The issue has acquired a new urgency following the court’s decision, which could lead to an explosion in the number of women requesting abortions outside their home states. In Texas, after the Legislature passed an anti-abortion law in 2021, the number of women traveling to nearby states to have an abortion multiplied by ten, according to the University of Texas at Texas University’s Texas Policy Evaluation Project .
The Massachusetts Planned Parenthood League has said its “doors are open” for out-of-state women. Gov. Charlie Baker issued an executive order seeking to thwart conservative states ’efforts to take action against Massachusetts residents, including abortion providers.
The prospect of a majority prepared to remove interstate travel restrictions may be a relief to supporters of the right to abortion. But other threats to interstate access are on the horizon, warns Greer Donley, a jurist who co-authored an article on the subject that was cited in Dobbs’ dissent signed by the three liberal judges.
The National Committee on the Right to Life has distributed model legislation that would criminalize as “trafficking” the act of transporting a pregnant minor to obtain an abortion without parental consent. States with abortion bans could try to prosecute out-of-state abortion doctors for murder, said Donley, a professor at the University of Pittsburgh Law School.
States could also target organizations that provide information and other resources to women seeking abortions outside the state, said Elizabeth Nash, a state policy analyst at the Guttmacher Institute, a liberal think tank focused on reproductive rights. Texas Attorney General Ken Paxton said he can pursue civil sanctions against companies that pay to send their employees out of state for abortions, as many corporations have pledged to do.
Under Texas law, some anti-abortion groups have proposed allowing private citizens to sue people who help a resident of a state that has banned abortion to end a pregnancy outside of that state. Relying on these civil lawsuits rather than prosecutions could prove to be less constitutionally problematic and perhaps not break the bright line that Kavanaugh seemed to draw in his concurrence.
The wide range of possible tactics to prevent out-of-state abortions has left judicial observers on both sides of the political divide trying to analyze Kavanaugh’s brief foray into the matter. Did that mean I only had reservations about travel restrictions? Or was he telegraphing a more widespread unrest with attempts to extend the abortion ban beyond state borders?
Liberals distrust Kavanaugh, given his apparent face-off from the statements during its confirmation verification in the Supreme Court about dump Roe, you may be inclined to see the game’s skill in its wording.
“In this view, Justice Kavanaugh wanted to be perceived as a voice of moderation,” Donley said. “He makes a lot of maneuvers to say,‘ Both parties have reasonable opinions and I’m not deciding this issue, I’m just going back to the states. Its inclusion of that [language about interstate travel] It was a bit of a settlement in that direction: even if I’m going to overthrow Roe, I’m not going to seal everything the anti-abortion movement does. “
“But when the rubber hits the road,” Donley said, “how will you really vote?”
David Cohen, one of Donley’s co-authors, stressed that Kavanaugh’s language focuses closely on policies that would prevent pregnant women from crossing state borders for abortion. It says nothing about the punishments for abortion providers or any helper who can offer money or a trip.
But some conservative scholars think liberals may be rethinking the issue.
“I think [Kavanaugh] he’s leaving his options open, but obviously he doesn’t feel comfortable with overtime [of abortion bans beyond states lines] of that kind, ”said Charles Fried, a professor at Harvard Law School who as attorney general during the George HW Bush administration advocated Roe’s overthrow before the Supreme Court in 1989.
Kavanaugh has said nothing more about the matter and a Supreme Court public information officer told the judges, “They don’t delve into their decisions,” which leaves the public, like law scholars, to interpret the words. of Kavanaugh by himself.
You can contact Mike Damiano at mike.damiano@globe.com.