Will such a law be constitutional? It’s hard to be sure. The doctrine is a tangled mess, and the Supreme Court has declined to provide definitive guidance. Although legal scholars have argued in favor of the right to travel in search of an abortion since the 1990s, the last time judges directly addressed the question of the state’s power to punish crimes outside of it was in… um… 1941.
In short, we cannot predict how the court will react to one state’s attempt to ban its citizens from having abortions in another. But one does not have to be a proponent of choice to see the strength of the argument against such a law.
Let’s start with the basic question: can a state punish its citizens for violating state laws while outside it? It would seem, yes. In 1941, the Supreme Court ruled that Florida could punish its residents for breaking Florida law on the high seas. In the decades that followed, other states successfully prosecuted crimes committed at sea.
It would seem not either. In the age of human enslavement, the general rule was that one state could not enforce its own laws on the matter beyond its borders. In Lemmon v. The People (1860), for example, the New York Court of Appeal held that the legal status of slaves brought to New York would be determined by New York law alone; thus they were released.
The process worked and vice versa. I recently came across an 1831 decision that stated that Indiana’s ban on slavery could not prevent Indiana residents from owning slaves held in other states.
Here is a way to harmonize cases. In the Florida case (as in many others involving conduct on the high seas), the crime is committed outside the jurisdiction of any state. No counter-interest. However, the case of 1831 arose because of the contradiction of the laws of two separate states. Kentucky allowed slavery; Indiana didn’t; the court ruled that an act legal in Kentucky could not be prevented because the person who committed it could not have done it at home.
I am not saying that the pro-choice side should rely on deeds handed down from generation to generation in an era when people were property. But it is worth noting that pre-war cases arose due to the fact that different states had different laws on this issue. Thus, there is every reason to heed the advice of my Yale colleague Lea Brilmeier, who argued that the right of one state to punish its citizens for what its own law forbids should be inferior to the right of another state to take a strong political position in its favor.
The issue of politics matters. As…