Jurisprudence

No, South Dakota Can’t Ban Its Residents From Traveling to Get an Abortion

Kavanaugh raises his right hand as he faces Kennedy, who is seen from behind.
Brett Kavanaugh being sworn in as associate justice of the Supreme Court by retired Associate Justice Anthony Kennedy at the White House in October 2018. Brendan Smialowski/Getty Images

Soon after the constitutional right to an abortion was ended with the overruling of Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, elected officials in states that are set to ban the procedure were discussing the possibility of trying to prevent women who reside in those states from traveling to another state where abortion is legal to undergo the procedure. “There’ll be a debate about that,” South Dakota Gov. Kristi Noem said when asked about the possibility of her state trying to implement a travel ban. Any such effort is almost certainly doomed to failure, though.

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One big reason is that the key vote in Dobbs was Justice Brett Kavanaugh, who ruled out travel bans in a concurring opinion. Kavanaugh wrote that such a ban would fail “based on the constitutional right to interstate travel” and described the question as “not especially difficult as a constitutional matter.” That view was echoed by Attorney General Merrick Garland in a post-Dobbs statement: “under bedrock constitutional principles, women who reside in states that have banned access to comprehensive reproductive care must remain free to seek that care in states where it is legal.”

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Indeed, the Supreme Court has actually ruled on the issue before in a 7–2 decision in the 1975 post-Roe case Bigelow v. Virginia. The defendant in Bigelow ran a newspaper in Virginia and published an ad for abortions in New York, where they were legal, when they were still illegal in Virginia. The court ruled that Virginia could not prevent its residents from receiving information about services that were lawful where they were to be performed. If Texas or any other state attempts to make it a crime for a woman to travel to another state to obtain an abortion that is still lawful there, Justice Harry Blackmun wrote in Bigelow that states cannot apply their laws to conduct undertaken outside their borders.

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The Virginia Legislature could not have regulated the advertiser’s activity in New York, and obviously could not have proscribed the [abortion] activity in that State. Neither could Virginia prevent its residents from traveling to New York to obtain those services or, as the State conceded, [at oral argument], prosecute them for going there.

As the court continued, “A State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State.”

In other words, what a South Dakota resident does in another state, regarding an abortion or anything else, is none of South Dakota’s business. That is true if the person traveled to another state to be married at an age when their home would not issue that person a marriage license or to obtain a divorce on a ground not recognized in their prior state. Similarly, if South Dakota banned all gambling, it could not make it a crime for its citizens to fly to Las Vegas and toss away their life savings.

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The court’s other right-to-travel cases more typically involve situations in which the state to which the individual has gone imposes a barrier to receiving a service or obtaining a benefit, such as welfare payments, for those who have recently arrived. In general, the court has allowed states to ensure that the traveler is in fact a bona fide resident of their new state, but not much more. The right to travel to obtain an abortion is the opposite side of these earlier cases, which were cited in Bigelow, but the principle—that states generally cannot prevent or penalize interstate travel—is the same.

Still, after Dobbs, it is unclear that any prior precedent in this area of law should be considered a settled issue, whatever Kavanaugh says. Ideally, Congress would enact a law codifying the right to travel generally, and for abortions specifically, but it would be very difficult to avoid an almost certain Senate filibuster on that subject. But if a state like South Dakota decides to charge a woman who travels elsewhere to obtain an abortion where it is legal, or charges someone who takes her there as an aider or abettor, the Justice Department should intervene and make it clear that those extraterritorial reaches are unconstitutional.

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