Back in 2003, the Las Vegas Convention and Visitors Authority, along with the advertising company R&R Partners, cooked up an ad campaign to rebrand Sin City. The campaign, called “What Happens Here, Stays Here,” is one of the most successful campaigns in advertising history. The commercials are funny, slick, and sexy, and rooted in one indelible fact: in Vegas, you are free to do things that you are not free to do at home.

And what Vegas teaches us is this: No – states are not going to be able to criminalize interstate travel for abortion services. You cannot be arrested in Idaho for visiting a brothel in Reno. You cannot be arrested in Texas for using marijuana in Colorado. And unless there is a systemic failure somewhere along the line, you will not be arrested and charged with a crime in a state that bans abortion if you travel elsewhere to get one.

The role of the Interstate Commerce Act

The most likely approach to denying states the right to ban travel for abortion goes through the Interstate Commerce Act. Passed by Congress in 1887, the Interstate Commerce Act was a response to states attempting to regulate the railroads:

Small businesses and farmers were protesting that the railroads charged them higher rates than larger corporations, and that the railroads were also setting higher rates for short hauls than for long-distance hauls. Although the railroads claimed economic justification for policies that favored big businesses, small shippers insisted that the railroads were gouging them….

When Congress failed to act, some states adopted their own railroad regulations. Those laws were struck down in 1886, when the Supreme Court ruled in Wabash v. Illinois that the state of Illinois could not restrict the rates that the Wabash Railroad was charging because its freight traffic moved between the states, and only the federal government could regulate interstate commerce.

We have moved beyond rail freight, of course, but the heart of that matter – that states cannot make laws which negatively impact commerce in other states – has remained fairly constant. Its interpretation by the Courts has changed, from broad to narrow to broad again, depending on the Court and the issue. The Interstate Commerce Act has been cited as the reason why there could be no individual mandate to purchase health insurance (NFIB v. Sebelius) as well as why Massachusetts can’t tax its milk products (West Lynn Creamery Inc. v. Healy).

All of these interpretations hinge on the “Dormant Commerce Clause,” which acts to restrict states from overreaching. As there is no federal ban on traveling outside the state (or even the country) for medical services, it is unlikely that states can make it illegal to travel for abortions. If they did, parents across the country may be barred from seeking help at St. Jude for their children, for example.

The role of the Fourteenth Amendment

States may be barred from banning travel for out-of-state abortions because of the Due Process Clause of the Fourteenth Amendment – an ironic twist, given that the Court recently struck down Roe and Casey which had been based, in part, on the very same Amendment. Ilya Somin, Professor of Law at George Mason University, explained how this might work in an essay for Reason:

[One] potential line of attack on state abortion travel bans is that states lack the authority to regulate activity that takes place beyond their borders. This is often treated as a violation of the Due Process Clause of the Fourteenth Amendment, but can also be seen as an inherent limitation on state sovereignty. That sovereignty is territorial. State A only has jurisdiction over activity that takes place on its own territory, not that of States B and C. To be sure, things become more complicated if activities undertaken in B have a direct impact on the territory of A. But, in this case, an abortion conducted in B does not in fact threaten any legal rights of anyone located in A at the time, or inflict any kind of tangible harm on them at all.

[…]

Finally, state abortion travel bans are open to challenge because they violate the constitutional right to travel. The Supreme Court has recognized a constitutional right to travel between states since before the enactment of the Fourteenth Amendment (the Court ruled that it was a background structural element of the Constitution), and more recent precedent has also held that there is a right to travel under either the Due Process Clause or the Privileges or Immunities Clause of the latter amendment.

A quick note about states banning abortion medications

The other question we have been seeing lately involves states banning certain medications, such as mifepristone. Per the Guttmacher Institute, the Courts have said that banning the drugs outright is unconstitutional – but that has not stopped states from doing it in more subtle ways, such as saying such medications cannot be prescribed except in person by a physician, and then levying criminal charges against providers who offer abortions.

To date, Attorney General Merrick Garland has said that states “may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy,” and indeed, a state would likely lose a court battle for banning an FDA-approved drug. On July 8, 2022, President Biden signed an executive order “that attempts to safeguard access to abortion medication and emergency contraception, protect patient privacy and bolster legal options for those seeking access to such services [and] directs Health and Human Services Secretary Xavier Becerra to submit a report within 30 days that would address many of those items.”

In short, it looks as though the Executive Branch of the government is ready to push back against states that attempt to criminalize the purchase and use of abortion medications.

In the meantime, Maryland has expanded access to abortion; as of July 8, 2022, “nurse practitioners, nurse midwives and physician assistants who receive special training” are now legally allowed to provide abortions, making it one of only 14 states which allow non-physicians to perform these services.

Carey Law Office has served clients in Bowie, Crofton, Owings, and throughout Maryland for more than 40 years. Founder Joseph Carey is admitted to all courts in Maryland, as well as the U.S. Court of Appeals for the Fourth Circuit and the Supreme Court of the United States. To learn more about our services, or to schedule a consultation with a criminal defense attorney, please call 301-464-2500 or fill out our contact form.