If Roe is overturned, what is the legality of laws prohibiting crossing state lines for abortion?

Question

States such as Missouri are planning to make it illegal for a citizen of Missouri to go to a different state to get an abortion if Roe is ultimately overturned. It attempts to evade legal challenge by using the same "allow private citizens to sue" legal terms (which some would view as loopholes) that Texas enacted last year.

Ignoring the enforcement mechanism, which some believe has shaky legal ground of its own, what sort of precedent exists currently on a state regulating its citizens conduct while out-of-state?

Answer 1

This law would be unconstitutional. There is a well established constitutional right to travel and relocate. In general, a state can't burden that, partially also under the doctrine known as the dormant commerce clause.

There are quite a few laws that do make it illegal to cross state lines for a particular purpose.

For example, the Mann Act (also known as the White-Slave Traffic Act of 1910) is a federal law that criminalizes the transportation of “any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose.”

But, those laws are almost always federal laws that are using the crossing of a state line as a trigger to show that the activity involves interstate commerce, which is something that Congress is expressly authorized to regulate by Article 1, Section 8, Clause 3 of the U.S. Constitution.

While states can regulate commerce in a way that incidentally and unavoidable impacts interstate commerce (which almost everything does), unlike Congress, states can't prohibit their citizens from engaging in interstate commerce or interstate travel as a result of these twin doctrines.

The main exception is a requirement in a pre-trial release order in a criminal case, or in a custody degree, prohibiting someone from leaving a state during the pre-trial or custody litigation period respectively, to prevent a court from losing jurisdiction over a party to a lawsuit during the pendency of that lawsuit in a situation where the court already has broad authority to detain someone (in the case of a criminal case where there is a pretrial release) or to say where a child is supposed to be physically (in the case of a custody dispute).

The authority of states to regulate interactions that necessarily involve interstate commerce is very limited and the dormant commerce clause basically reflects that implicit limitation.

This said, an outcome motivated set of judges could certainly decide to create an exception to the right to travel, abrogate the right entirely, or discard the dormant commerce clause entirely, if they could marshal (in the case of appellate courts) majorities of judges to overrule these precedents.

Answer 2

There is no definitive answer to this.

An existing answer suggests this is a settled matter, but really this is one of those issues in which there is not a clear consensus and legal experts hold a variety of opinoins. See here:

https://www.theguardian.com/world/2022/may/03/us-abortions-travel-wave-of-restrictions

“I think states are not going to rest with just saying ‘there won’t be abortions in our state.’ I think they’re going to want to ban abortion for their citizens as much as they can, which would mean stopping them from traveling,” said David Cohen, professor at Drexel University’s Kline School of Law and lead author of a forthcoming article on cross-state legal issues that could arise in the abortion context.

A preprint of the paper can be downloaded from here:

https://scholarship.law.pitt.edu/fac_articles/517/

I will respect the wishes of the authors and not directly quote from the paper, but there is an entire section of the paper on this issue which can be summarized as saying that the legality of such a law is unclear.

Again, you can find scholars who would answer "definitely yes", "definitely no" and anywhere in between. I would note that given the potential end of Roe, along with other decisions the court has been / is making (particularly around Chevron Deference), this does not appear to be a court that places great value on past precedent.

Answer 3

It's probably worth keeping in mind that the situation is not static. Even assuming that crossing state lines for an abortion is legal in these states today, it seems clear from recent statements from legislators that such a situation will be challenged.

Citi Bank recently announced it would provide travel resources to employees affected by changes in legislation

"In response to changes in reproductive health care laws in certain states in the U.S., beginning in 2022 we provide travel benefits to facilitate access to adequate resources."

The initial response to this appears to be an attempt to cancel Citi Bank, this is unlikely to be the end of response by legislators.

Republican Party of Texas chairman Matt Rinaldi called the policy "appalling" and said the group is urging Republicans to snub Citi's services.

And

Dozens of U.S. House of Representatives Republicans on Tuesday demanded that the chamber drop Citigroup Inc...

A similar policy at Tesla produced threats of legislation, and this paywalled article suggests similar for other tech giants.

Texas State Representative Briscoe Cain, a Republican, has said he would propose legislation barring local governments in the state from doing business with any company that provides travel benefits for employees seeking abortions. Nationally, U.S. Sen. Marco Rubio introduced a bill on Wednesday that would prohibit companies from claiming tax deductions for such costs.

ABC reported in March 2022 on a Missouri law aimed at making it legal to sue anyone who aids a Missouri resident in obtaining an abortion.

A proposal that could be debated in the Legislature as soon as next week seeks to make it illegal to "aid or abet” abortions outlawed in Missouri, even if they are performed in other states.