When the Supreme Court overturned Roe v. Wade, it did more than just supercharge the assault on the right to have an abortion. It also opened up a corresponding attack on the right to travel.
That attack is a straightforward consequence of giving states the power to ban abortion. An abortion ban in Ohio, for example, does not actually end abortion. It simply pushes it underground or, for those who have the means, out of state.
It is important to say that the Supreme Court has recognized a right to travel between states on multiple occasions in cases stretching back to the 19th century.
In Crandall v. State of Nevada, decided in the late 1860s, the court invalidated a Nevada law that imposed a $1 tax “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.” Americans, wrote Justice Samuel Miller, have a right to movement that is “in its nature independent of the will of any state over whose soil he must pass in the exercise of it.”
The court reaffirmed this right in Williams v. Fears in 1900. “Undoubtedly,” wrote Chief Justice Melville Fuller, “the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty.
In 1999, in Saenz v. Roe, a court majority recognized that the right to travel, as Justice John Paul Stevens wrote, quoting Justice Potter Stewart, “is a virtually unconditional personal right, guaranteed by the Constitution to us all.”
There is nothing in the Supreme Court’s reasoning in Dobbs v. Jackson Women’s Health that would explicitly threaten the right to travel between states. In his concurrence, Justice Brett Kavanaugh even says that in his view a state may not “bar a resident of that state from traveling to another state to obtain an abortion.”
But that’s exactly where some Republican-led states want to take the law.
Missouri lawmakers, for example, have introduced a “bounty” bill similar to the one now in operation in Texas, which would allow private citizens to sue anyone who helps a resident obtain an abortion out of state. Another bill would apply Missouri’s laws to abortions that occur in other states.
In Washington, congressional Republicans have rejected an effort to affirm the right to travel. “Does the child in the womb have the right to travel in their future?” asked Sen. James Lankford of Oklahoma, objecting to a bill that would bar restrictions on women traveling to get a legal abortion.
There are few, if any, modern precedents for laws that limit the right of Americans to travel between states. To the extent that there is a history here, it lies in the legal conflicts over both fugitive slaves and free Black individuals in the decades before the Civil War.
“As the North began emancipating those slaves whom slaveholders brought into free jurisdictions, slave states strove to strengthen a slaveholding power structure thought to be under northern attack,” historian Edlie L. Wong writes in “Neither Fugitive nor Free: Atlantic Slavery, Freedom Suits, and the Legal Culture of Travel.” Slave states, she writes, enacted increasingly punitive restrictions “that prohibited free blacks from traveling into slave jurisdictions.”
On the other side, slaveholders sought to use the legal system to restrict the movement of enslaved Americans out of the South. If the northern state governments would not recognize the existence of slave property, then federal courts would.
The federal government was also reluctant to grant free Northern Black people the documents needed to secure their freedom beyond the states in which they lived. The result was a world in which Black Americans were deprived of freedom of movement. This was true even after the Civil War when, in the wake of Reconstruction, “redeemed” southern states put limits on the right of Black Americans to use public transportation and other forms of transit.
As Wong notes, the landmark case Plessy v. Ferguson in 1896 was “fought over equal access to the technologies of intrastate railway travel.” In his famous lone dissent, Justice John Marshall Harlan reminded the court that “‘personal liberty’ as it has been well said, ‘consists in the power of locomotion, of changing station, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint.’”
There is no direct parallel between the travel rights of women, girls and others who can give birth under anti-abortion laws and the travel rights of Black Americans under various forms of legalized unfreedom. But there is an echo of a question that relates to both situations: What happens to the rights of citizens when their bodies become property under the law?
And make no mistake: When a state claims the right to limit your travel on account of your body — when it claims one of the most fundamental aspects of your personal liberty in order to take control of your reproductive health — then that state has rendered you little more than another form of property.
Jamelle Bouie | The New York Times
Jamelle Bouie is a columnist for The New York Times.
