The decision of the Supreme Court to overthrow the almost 50-year-old Roe v. Wade this month’s decision could soon plunge the states into a constitutional crisis as they seek to punish pregnant women who seek health care.
Wires has done an excellent job of staying on top of this aspect of the changing US legal landscape. The publication was one of the first that identify license plate readers as a technology that can be used by law enforcement and private entities against the pregnant. Wires is now asking a question I’ve been asking for a while: at what point do states violate the 14th Amendment?
The right of Americans to travel between states is protected by Section 1 of the 14th Amendment to the US Constitution, which states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State in which they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within his jurisdiction the equal protection of the laws
This patchwork of abortion laws generates all sorts of uncomfortable questions: what would a travel ban look like? Would states force anyone with a uterus to take a pregnancy test within their borders? What would happen if, say, a state resident had a miscarriage while out of state? Will they be jailed pending investigations? What if the other state (or state, millions of Americans can just drive to Canada or Mexico) didn’t want to participate in such a ghastly endeavor?
I don’t have answers to these questions, nor do I Wiresthat’s why he spoke to one few professors of constitutional law:
As for what the Justice Department might do if a state were to ban travel to obtain an abortion, the most likely response would be a lawsuit against that state. Mary Ziegler, a law professor at UC Davis, says the agency would argue that such a ban is unconstitutional. (The DOJ itself did not respond to a request for comment.)
Judge Brett Kavanaugh has written according to his common opinion in Dobbs v. Jackson Women’s Health Organizationwhich upside down Roe v. Wade, that states cannot prevent people from traveling across state lines to obtain an abortion. That said, Ziegler isn’t exactly sure that the right to travel will remain protected.
“What Kavanaugh said was really unclear. It’s true that he has the right to travel, but I don’t know how much it does you,” says Ziegler. “There used to be a right to abortion, but now there is not. When the court is talking about innumerable rights, this can change. Even if you take Kavanaugh’s word for it, it doesn’t answer all the questions.”
What’s really scary is that in Texas, the onus is on private individuals to file a lawsuit against people who may have had a procedure out of state. The state does not press charges, leading to bounty hunter-style enforcement that can escape judicial oversight.
How surprising that we have yet to hear from the staunch sovereign citizen who claims that freedom of movement in the US is so sacrosanct you don’t even need a driver’s license or license plate to do this. If you’re not too disgusted by the wholesale destruction of yet another constitutionally protected right, you can read more at Wires.