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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.


19 Responses

  1. I’m of the opinion that even if the senate codifies Roe it may not hold because the supreme court would overturn it.

    Anyone who finds out they are pregnant should honestly just not tell anyone and make plans to go to another state if they want to terminate. I read where Pittsburgh clinics have been overloaded with people from Ohio and WV coming to get abortions.

    • You certainly could be right, this Supreme Court is lawless. But it is hard for me to see how they could contend that such a law would violate the Constitution, except that they don’t like it. They would be saying that Congress does not have the right to pass laws expanding personal rights. If not ,then who would? Only the Court?

      • WOW… have comment in moderation for an unknown reason.

      • Well, they took on the EPA because they didn’t like it. Gorsuch completely lied in his SC opinion regarding school prayer.

      • So when the comment didn’t show up, I posted it again, and it said Duplicate comment, so I assumed it was in moderation.

        Trying again.

        If not ,then who would? Only the Court?

        Only certified GOP™ legislators and jurists.

        PHEW… had a scare today, 4 letters, known positions, 3 guesses left, and 4 possibilities. Got lucky, should have concentrated on making my 4th guess hone in on the answer.

        • Ah, yes, I probably had the same four letters at two, and then missed on two tries, and then, since one letter was not possible as I had already tried it, I got the word in five. The one I barely got the other day was liver, because I somehow had not guessed an l early, and so after learning there was no b in the word, for biker, or g, for giver., or m for mixer I was down to liver or liker on my last guess. Not well played, but I do not like the “er” endings.

  2. It’s time to assist women who want to leave these horrendous states permanently. Bankrupt the economy of every red state that literally makes it illegal to be a woman. Desert them. Leave nothing behind but rednecks and tumbleweeds. They brought it on themselves.

    • I think that the economic power of the majority should be organized and used. Exactly how, is tricky, but I do not see why people who live in blue states and who are are horrified and these punitive and malicious laws and prosecutions, should not organize boycotts of companies and even states. They can’t make people buy things, and the corporations which support the Far Right should not be supported by people’s dollars. They seem to think that even though people complain ,they line up to pay them money. There has to be a price that these companies and states should pay,, legal and non-violent, butt still significant.

      • I would force every red state to become self supporting. Too many of the red states rely on NY & CA to fund them.

        • I have thought about that a lot: how can California, which is probably the world’s sixth biggest economy if it were a country, avoid what has always been the situation, that the federal taxes we pay here go to the federal government, and then are disbursed so that we are essentially supporting the red states, which pay less in their taxes than they get from the blue states?

          We don’t have the power to keep that money from them, but maybe someone can come up with a way. Because you are so right, it is like the blue states are the workers who are toiling for the benefit of the red state owners. Note that under Trump, the tax code was deliberately changed so that people in CA and NY could not deduct their state taxes from the year before, thus making the tax bills higher, more ultimately going to the red states.

  3. I am very encouraged by efforts from individuals and groups in states that still allow abortions to help women get legal abortions in those states. I have written before about my own family’s history as Quakers who were part of the anti-slavery Underground Railroad. Now, as others have said, we need to create a pro-choice Underground Railroad. In many cases, women seeking out-of-state abortions will need financial help, transportation and a place to stay.

    A personal note: When my brain tumor was not so far advanced, there was still a possibility that I could receive treatment from a top neurosurgeon at a major medical hospital in another state. I asked a friend who lived in the city where that hospital was located for information about the area (safe places to stay, transportation options near the hospital, etc.). I was not asking for anything more than information. He responded by saying, “I hope you have the decency not to come here.” I could not believe how cold and heartless he was. It still pains me to remember his words.

    My hope is that women who are now seeking help to obtain out-of-state abortions that could save their lives will receive the compassion, love and support they need and deserve.

    • Beata! How wonderful to see you here! Thrilled that you are still with us and hope you are doing well.

      I’m horrified that you were treated so cruelly when you were seeking information re: treatment for your tumor. Why someone would act that way is beyond my comprehension.

      Best regards,
      Roz in NJ/NYC

      • Thank you, Roz. It is always good to see you.

        Remember the book (on Keats, IIRC) you said your daughter was editing? Has it been published yet? What is the title? I would love to read it.

        • Beata, I will ask her and let you know.

          In January of this year, I read “The Young Romantics: The Tangled Lives of England’s Greatest Poets,” by Daisy Hay. I’m pretty sure it was you who mentioned it. A fascinating read.

          Roz in NJ/NYC

          • Beata, You have an excellent memory! Our daughter did, indeed, copyedit a book about Keats. “Keats: A Brief Life in Nine Poems and one Epitaph,” by Lucasta Miller, published by Knopf. It was reviewed in The NY Times on April 15, 2022.


            Roz in NJ/NYC

          • I think I am going to love this book about Keats, Roz. Thank you!

            I have read Lucasta Miller’s biography of the Bronte sisters (“The Bronte Myth “). It was excellent.

  4. Beata, I’m a Brontë fan. I don’t recall reading that book, so I’ll definitely get it from the library.

    Roz in NY/NYC

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