The second anniversary of the end of constitutional protection for reproductive rights is upon us. On June 24, 2022, the Supreme Court overruled Roe v. Wade; Utah’s trigger law was declared effective that same evening. That law would prohibit all abortions except when necessary to save the woman’s life, when needed to avoid a serious risk of substantial and irreversible impairment of a major bodily function of the woman, or when the pregnancy resulted from reported rape or incest. The law would also permit abortions if two maternal/fetal medicine physicians determine that the fetus has a defect that is “uniformly diagnosable” and “uniformly lethal” or has a “brain abnormality” so “severe” that it will “live in a mentally vegetative state.” This trigger law was immediately challenged and put on hold by the courts.
Utah awaits a decision from its Supreme Court about whether the law violates the Utah State Constitution. For now, abortions in Utah are permissible up to 18 weeks of pregnancy. But Utah has already been affected by a steady drop in the numbers of medical school graduates seeking residency training in the state; this past year alone, Utah saw almost 1,000 fewer applications than the year before.
What will people in Utah do if the trigger ban goes into effect? More than half of all abortions in the United States are medication abortions. Whether Utahns will need to leave the state may depend on the conditions under which this method continues to be available — an issue expected to be decided by the United States Supreme Court by the end of June. If the new Utah law goes into effect, people in Utah will either need to use medication abortion if it is available to them, or leave the state for abortions. People in nearby Idaho will be affected, too, because currently, patients who do not come within Idaho’s even stricter ban are airlifted to Utah in cases of emergency.
Where could Utahns go? The closest Colorado clinics are in Glenwood Springs and Cortez; in Nevada, people will need to go to Las Vegas or Reno; and the clinic in Ontario, Oregon, is just across Idaho’s border. Some of these clinics have limits on the services they provide. Several post driving directions from Utah on their websites, as well as driving directions from states even farther away, such as Texas, where strict abortion prohibitions are in effect. But residents of Salt Lake City will face drives of about five and a half hours to Ontario or six hours to Steamboat Springs or Las Vegas — hardly an easy day trip. In this, they face shorter driving times than residents of Miami who, if they are more than six weeks pregnant, might have to drive 12 hours to North Carolina where they can get an abortion up to 12 weeks of pregnancy, or residents of New Orleans with pregnancies that threaten permanent damage to their health who might have to drive 12 hours to Illinois.
In our just-published book, “States of Health,” we argue that this right to interstate movement is critical to the U.S. federal system. Rights to movement further some of the most important justifications for federalism. Experimentalism is one such value. When people can readily leave the state — or decide not to come, as many early-career physicians are doing — state experiments get put to the test. State residents and hopefully their legislators may be led to modify policies as they see what they are losing. Recognition of cultural or religious differences is another.
Rights to movement allow states to pursue separate paths on controversial moral issues like abortion without restricting people to an environment where they are in a minority. In Utah, 47% of the population believe that abortion should be legal in most or all cases — hardly a small number. If these people were unable to come and go from the state to access services that they believe are critical to their lives and perhaps even morally obligatory, the imposition on their liberty could be crushing. Government closer to the people is a further justification for federalism, but one that is being eroded as gerrymandering creates legislatures that are increasingly unrepresentative.
Finally, a uniquely American justification for federalism was James Madison’s idea of the dual republic, where rights could be protected at both the federal and the state level of government.
In the U.S. today, where protection for reproductive rights at the federal level has been taken away, it remains possible for states to continue to protect these rights, as many states have done — and, with movement, for people who disagree with their home states to experience these protections through movement back and forth across state lines.
Rights to interstate movement are not perfect. For many, movement is impractical. People may not be able to take time away from jobs or family responsibilities, especially if distances are large. People with disabilities, minors or people who are undocumented may find movement especially challenging. But when there are deep moral disagreements, movement to take advantage of different choices made by states is far better than erecting barriers to movement, as states such as Idaho and Texas are attempting to do.
(Photo courtesy of Leslie P. Francis and John G. Francis) Leslie P. Francis and John G. Francis
Leslie P. Francis and John G. Francis are the authors of “States of Health: The Ethics and Consequences of Policy Variation in a Federal System” (Oxford University Press, May 2024). They are both professors at the University of Utah.
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