The unconstitutional plan to trap women who need an abortion in Texas

More than a year ago, anti-abortion activists appeared eager to prohibit anyone seeking an abortion in a state where it is banned from traveling to another state where it is legal. Indeed, many lawmakers appeared so eager to enact such travel bans that Justice Brett Kavanaugh, of all people, attempted to cut off these laws before they could be enacted.

“May a State bar a resident of that State from traveling to another State to obtain an abortion?” Kavanaugh asked in his concurring opinion in Dobbs v. Jackson Women’s Health Organization (2022), the decision overruling Roe v. Wade. “In my view, the answer is no,” Kavanaugh replied to his own question, “based on the constitutional right to interstate travel.” The Constitution has long been understood to allow US citizens to travel among the states.

For the most part, state and local lawmakers have not tested whether Kavanaugh would hold to this view if a travel ban actually became law. But a few jurisdictions in Texas are now breaking with this consensus. As the Washington Post reports, two Texas counties and two Texas cities have passed local ordinances making it illegal to transport someone through one of these counties or cities for the purpose of obtaining an out-of-state abortion.

Notably, this list of anti-abortion localities includes Mitchell County, Texas, a sparse community of about 9,000 people. This matters because Interstate 20, the route that many people traveling from Dallas to New Mexico to receive an abortion will take, passes through Mitchell County. Several other counties with major highways or airports are also considering similar laws.

These ordinances and proposed ordinances largely track model legislation, which anti-abortion activist Mark Lee Dickson shared on Twitter, that is itself modeled after SB 8 — the statewide anti-abortion law that allows private bounty hunters to sue abortion providers and collect bounties of $10,000 or more.

In fairness, Dickson’s model legislation does prohibit such bounty hunter suits from being filed against “the pregnant woman who seeks to abort her unborn child.” But the legislation would potentially allow abortion funds that help pay for abortion care, or anyone who drives a pregnant patient to an out-of-state abortion clinic, to be sued.

Ordinarily, Kavanaugh’s preemptive rejection of travel bans would be a clear sign that these laws will not survive judicial review. But, in Whole Woman’s Health v. Jackson (2021), the Supreme Court effectively shut down federal lawsuits challenging unconstitutional laws that are enforced solely by bounty hunters. And Kavanaugh joined the Court’s decision in Jackson.

The upshot is that these unconstitutional Texas ordinances may succeed, not because they are lawful but because the Supreme Court has largely immunized them from constitutional review.

Travel bans are unconstitutional

Citizens of the United States have a right to travel freely among the states. As the Supreme Court said in Shapiro v. Thompson (1969), “the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.”

Indeed, the Supreme Court held over 150 years ago that states may not impose even fairly insignificant barriers on US citizens who wish to travel outside that state. This issue arose in Crandall v. Nevada (1867), which struck down a Nevada law that imposed a tax of one dollar “upon every person leaving the State by any railroad, stage coach, or other vehicle engaged or employed in the business of transporting passengers for hire.”

In striking down this fairly small tax, the Court spoke in sweeping terms about each citizen’s right to travel freely. “We are all citizens of the United States, and as members of the same community must have the right to pass and repass through every part of it without interruption, as freely as in our own States,” the Court declared in Crandall.

Moreover, the Court also made clear that this rule applies equally to “persons residing in the State who may wish to get out of it, and upon persons not residing in it who may have occasion to pass through it.”

Again, Crandall involved a fairly minor imposition on travelers: a single dollar tax (about $18 in today’s value). If the Constitution does not permit such a small burden to be laid on interstate travelers, it follows that a state or local government may not effectively take someone hostage for months — potentially for the duration of their pregnancy — in order to prevent them from leaving the state to obtain an abortion.

As the Court explained in Saenz v. Roe (1999), the right to travel has “three different components” — the right of citizens to “enter and to leave another State,” the right to be treated “as a welcome visitor” when visiting another state, and the right to be treated the same way as established residents of a state after moving to that state. Each of these rights flows from a different provision of the Constitution.

Of those three components, the right to travel out of state to obtain an abortion flows from the right to citizens to “enter and leave another State,” and the Court indicated in Edwards v. California (1941) that this right is rooted in a doctrine known as the “Dormant Commerce Clause.” The Constitution gives Congress the power to “regulate commerce . . . among the several states,” and the Court has long held that, by vesting authority over multi-state commerce in the national government, the Constitution implicitly prevents states from enacting laws that impose excessive burdens on commerce among the states.

That includes laws that burden people’s ability to travel across state lines. As Edwards held, “it is settled beyond question that the transportation of persons is ‘commerce.’”

For what it’s worth, Dickson told the Washington Post that his model ordinance is lawful because it is similar to the federal Mann Act, which makes it illegal to transport “any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose.” If the Mann Act is constitutional, he argued, so too must a travel ban targeting abortions be constitutional.

Dickson might have a point if Congress enacted a Mann Act-like law that prohibits interstate travel to obtain an abortion. But, again, the Constitution gives Congress, and not state or local governments, exclusive authority over interstate commerce. Neither Texas nor any Texas county may pass a law that targets conduct occurring in New Mexico. Nor may they prevent people in Texas from leaving the state.

The fact that travel bans are unconstitutional might not matter to this Supreme Court

The Court’s decision in Whole Woman’s Health v. Jackson looms over this discussion of travel bans like a plague. Dickson’s model legislation was clearly written with Jackson in mind, as it relies on the sort of private bounty hunters that the Court embraced in Jackson.

As a general rule, someone who fears that their rights will be curtailed by an unconstitutional state or local law may obtain a federal court order blocking that law. The Supreme Court held in Ex parte Young (1908) that someone seeking such a court order must sue the specific state official who is tasked with enforcing the unconstitutional law. So, for example, if Texas passed a law ordering the state police to blockade I-20 to prevent anyone from traveling on it to obtain an abortion, a plaintiff who wished to block this law might sue the head of the state’s police force.

SB 8, the law the Court embraced in Jackson, tried to immunize itself from judicial review by stating that no state official may attempt to enforce it — only private bounty hunters filing lawsuits could do so. And, in a 5-4 decision, the Supreme Court agreed that this bounty hunter framework immunized the law from federal lawsuits seeking to block it.

In fairness, someone who is sued under SB 8 could still allege at their trial that the law is unconstitutional. But SB 8 permits virtually anyone to sue any abortion provider who performs an abortion after the sixth week of pregnancy. So anyone accused of violating the law risked being bombarded with so many lawsuits that their legal fees would bankrupt them.

That’s why it was so important to block the law before anyone was sued under it, and why the Supreme Court’s decision to immunize SB 8 from federal review was such a harsh blow to abortion rights in Texas.

Meanwhile, Dickson’s model legislation uses a similar mechanism to evade judicial review. Under that legislation, the ban on traveling through the wrong Texas county to help someone obtain an abortion “shall be enforced exclusively through … private civil actions.”

As a practical matter, it’s unclear if this framework will actually be effective in deterring people from traveling to New Mexico to seek abortions. If a man drives his pregnant girlfriend through Mitchell County on the way to an abortion clinic in New Mexico, how is anyone other than the two of them supposed to know where they are headed?

But the law could wind up deterring women in abusive relationships, or other patients whose acquaintances or family members learn that they are seeking an abortion. Indeed, according to the Washington Post, Dickson suggested that “a husband who doesn’t want his wife to get an abortion could threaten to sue the friend who offers to drive her.”

If that lawsuit happens, the wife’s friend should prevail — he can argue at trial that the Mitchell County ordinance violates the constitutional right to travel. But even if this friend does prevail, they will wind up having to hire legal counsel and endure the stress of a lawsuit that never should have been filed in the first place.