The Right to Travel

There is no sentence in the Constitution which says, “The right to travel freely among the states and territories shall be enjoyed by all citizens.” But many cases have stood for the free right of travel. No one has really attempted to argue that a United States citizen does not have the right to travel freely from state to state, or within a state. Until now.

The fanatic anti-abortionists would never be satisfied with just packing the Supreme Court with judges who would overturn Roe v. Wade, and leaving the right to abortion to be decided by each state. That was not nearly enough for them, because they could not impose their will on everyone else.

So they now seek ways to stop any resident of an anti-abortion state from going to another state to get an abortion which would be legal in that state. They are looking to pass laws which prohibit a state resident from doing that. That would seem akin to slavery, but they don’t look at it that way, or maybe they do, but don’t want to say it.

Democrats in the Senate are trying to pass a bill which would shield those women from prosecution who travel across state lines to have an abortion, as well as shielding the providers of the abortion services. The bill is called “The Freedom to Travel for Health Care Act of 2022.” It was authored by Senators Gillibrand, Cortez Mastro and Murray. But the Senate Republicans blocked the bill, as they always do with bills which attempt to assert individual rights supported by a majority of the population, but which they and their donors do not favor.

The arguments behind the bill can rest on the Interstate Commerce Clause, or Fourteenth Amendment Equal Protection; that as the Amendment guarantees equal protection under the laws to all citizens, this should mean that any citizen has the right to the protection that another citizen might enjoy. If you happen to live in Texas, you should not have less personal rights than if you lived in Connecticut, even if you have to travel to Connecticut to avail yourself of them.

Senator Murray said, after the bill was blocked, “(They) have already set their sights on ripping away the freedom to travel. Let’s be really clear what that means. They want to hold women captive in their own states. They want to punish women and anyone who might help them for exercising their constitutional right to travel within our country to get the services that they need in another state. I hope everyone observes how extreme and how radical and how un-American that is.”

Republicans do not agree. Republicans want to allow the states which they control to have the long arms which can reach into other states and capture and punish those who leave it, even temporarily, to obtain an abortion. Actually, they want the right to abortion to be gone completely, and will pass such a ban if they control the Congress, and then only need a Republican President to sign it, and then abortion is a crime, punishable by who knows what? In North Carolina, they are trying to pass a bill that would impose the death penalty for any woman who has an abortion.

But for now, they want to make sure that no woman can escape their edicts. Not only that, but a doctor who lives in another state, and provides the abortion to the out of state person, is also to be punished. That is what they are trying to do to Dr. Caitlin Bernard, who provided abortion services in Indiana for a ten-year old from Ohio, who was pregnant due to being raped by a 29-year old man there, and could not obtain a legal abortion there.

These fanatics want to make damn sure that no uppity girl of ten can somehow go to another state to get an abortion. And the Attorney General of Indiana wants to show his loyalty to the cult of zealotry by looking into ways to prosecute Dr. Bernard for doing something that is totally legal in that state, at least until the zealots ban it there, too.

This reminds me of the Wicked Witch of the West shouting “Seize Them!” as Dorothy and her companions try to escape. And this shows one, if nothing yet has, that what we are looking at, is a deranged, evil group of people who hide behind their version of religion to exert power over anyone who does not do what they want them to do. This is the modern equivalent of burning “heretics” at the stake, “for their own good,” and “the glory of (the zealots’ version of) god.”

They will tell you that that life begins at conception; and then once they force the woman to bear the child, even if it is at great risk to their health and life, they lose all interest in the child, or the mother. They are on their own. This never was about any of their sanctimonious pronouncements, it was always about punishing women for having intercourse, even if forced or incestuous. It is the need for some very warped people to have power over others.

Back to the main subject here: until and if they can ban all abortions, they want to make sure that the states which ban them keep the power over their residents so that it is illegal for any of them to obtain the abortion in another state. They will use all the police and extrajudicial powers of their states, including vigilantes who collect bounties on the citizens by turning them in.

They will look at medical records, they will track any health device which follows the period cycles, to see if a woman has missed one or two, and thus might be pregnant, and prevented from having an abortion. They will use search engines, peruse social media, to play the fiendishly exciting game of discovering who might be pregnant; and making sure that they do not take one step toward considering an abortion.

This is so maniacal and draconian that I think that even the wholly subsidized Supreme Court majority might shrink from this. Of course, there would have to be a test case. If brought by the pregnant woman, it would be too late for her to have the abortion if she wins. In fact, I recall reading about Judge Kavanaugh deliberately and cruelly delaying a decision on the right to an abortion in a particular case, so that it would be too late for her to get the abortion, Thus a current case involving a pregnant woman would have to be brought by the state trying to prevent the travel, but the state would likely rather just ban or impede or punish the travel, and let somebody sue them.

The famous, or infamous, Dred Scott case involved a man who was a slave in Missouri. then having his enslaver move to the Louisiana Territory for a time, which the Missouri Compromise had designated as “free,” which Scott argued made him a free man, and thus could not be again enslaved, after he was brought back to Missouri. Chief Justice Taney, writing the 7-2 decision, stated that slaves were not intended to be citizens, so that Scott had no rights to assert.

So that awful decision was not on the freedom to travel issue. Even so, there is something very unsettling about the comparison. If you are a woman living in a “slave” (you cannot have an abortion) state, and you travel to a “free” (you have some right to an abortion) state, are you still “owned by” the laws of the state you traveled from?

Since all court decisions (except the ludicrously evil “Bush v. Gore”) have precedential impact upon other ones, we can see what a decision in favor of a state’s right to essentially ban travel to another state, would imply. You can’t travel to have an abortion. Then you can’t travel, or even use interstate commerce, to buy birth control pills? If the state bans the selling of certain books (and they’re coming to that), they can make it a crime to buy them from another state? If they ban certain music groups from performing, it is a crime to go to see them in another state?

I don’t think that even this unspeakably bad Supreme Court would stand for the principle that a state could ban travel to another state. Now, the state would say, we are not banning the travel, we are not even banning the purpose of the travel, we are banning the end result of it. But that sounds like the classic distinction without a difference. If you are traveling for an abortion, your state is banning that travel. Your state cannot force the other state to follow its laws, so it can only try to prevent its own residents from traveling to obtain rights which their own state does not provide.

Is a person a citizen of the United States, or of a home state? I don’t know if this has even been questioned. States have the rights to make laws and restrictions, as long as they do not infringe on a constitutionally protected right. Now, admittedly, this Supreme Court is so radical that you cannot count on anything anymore. But we do know that if one state has a speed limit of 55mph, they cannot arrest someone who has driven into another state to go 65mph under its laws.

They do not have an arm which can reach into the doings in another state, and punish their own state’s residents for doing something legal there. This would be essential as to why we started the United States in the first place, to prevent the chaos which would occur if every state had its own tariffs and tolls, to some degree designed to constrain travel.

So I would guess that even this Supreme Court would not hold that a state could arrest someone for availing themselves of something that was legal in the visited state, but not in the home state. Of course, they could simply refuse to hear such cases, in their snickering adolescent way, letting the states and citizens battle it out, while they enjoy their own steak dinners and protected spaces.

I would hope that a woman who traveled to another state to have an abortion, and was fined or imprisoned after it, would file a lawsuit against the state, charging an infringement of their civil rights. The Supreme Court would have to hear one of those cases, or otherwise completely abrogate its duty to adjudicate disputes involving individual constitutional rights versus state police power.

If the Court held in favor of the state, then we officially would cease to be a republic, but would become some kind of collection of city-states; unless we turned into a dictatorship, in which case the Supreme Court would have only ceremonial duties, and could proudly rename themselves, “A Body of Partisan Hacks Ruled by the One Leader.” And we won’t need the likes of Pete Williams and Jonathan Turley to expound on their “decisions” anymore.

Right now, we have to win the elections. But we also must find out if the Supreme Court is ever going to support embedded constitutional principles. or just let the zealots run the country.

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