In their march to shred the Constitution and establish an authoritarian state, Republicans in various state legislatures are proposing bills that would criminalize a pregnant person traveling outside the state to seek an abortion, which these Republicans have made illegal in their states after the jerry-rigged Supreme Court revoke the Roe decision.
Based on two parts of the Constitution–the Privileges and Immunities Clause (Article IV, Section 2, Clause 1) and the Commerce Clause (Article I, Section 8, Clause 3)–courts have reinforced the right of citizens to travel freely between states for nearly any reason. Perpetually ignorant of what the Constitution says, Republicans now want to introduce laws upending those rights.
Even the prospect of these laws is ludicrous. If states could punish people for doing something in another state that was illegal in theirs, Las Vegas would not be. It would have been illegal to gamble in Sin City and to bring those winnings home. Going to a dog race in Florida would have landed a Kentuckian in jail. If an Arizonan were to travel to New Mexico and spit on the sidewalk, he would face a six-month prison sentence upon returning home. (Yes, according to Arizona state law, it’s illegal to spit in public.)
Do states punish people who partake of things in states they’re visiting that they can’t do back home? Of course not. That’s kinda the root of the entire tourism industry, an important part of our national economy responsible for hundreds of billions of dollars in spending, so no state wants to stifle tourism.
A subsegment of tourism, medical tourism, isn’t new either. I live in Maryland, and thanks to institutions like Johns Hopkins Hospital and the University of Maryland Medical System, people from all over the world come to Baltimore for their medical care. JHH not only encourages it; they cater to it. They have facilities for wealthy Middle Eastern patients, with a floor of the hospital looking more like a Ritz Carlton hotel than a traditional recovery ward.
Many of these same states that would punish people for going to another state for abortions are what are known as “right to try” states: states where patients can access treatments that are not legal in their states because they have not gotten full approval from federal agencies. These states allow patients with a terminal diagnosis to get drugs that are still in clinical trials even though they are not authorized for general treatment. Should those patients be punished upon returning home because they got potentially life-saving treatment in another state? Of course not.
(I am not necessarily a “right to try” advocate. Too many times, patients and families put so much hope in a miracle drug they believe is available in another state and they abandon traditional life-extending therapies for a long-shot treatment they read about on the internet, doing more harm than good for the patient. In my opinion, it’s different when a doctor refers you to a therapy versus when someone decides to try it for themselves after reading a story on WebMD.)
Another example of this is a new type of cancer treatment called proton therapy, a process by which a fine stream of protons targets a tumor, destroying it but saving surrounding tissue. This therapy is available at centers in about 22 states right now. Should people be punished for seeking proton therapy that is not yet licensed in their states? Of course not.
The selective enforcement of these laws–only for abortion services and nothing else–demonstrates the contempt Republicans hold for pregnant patients looking to terminate a pregnancy for any reason, even to save their lives or restore a degree of normalcy to a rape victim.
In practice, these laws will be impossible to enforce. Authoritarian red states would have to require sworn statements from travelers that they are not pregnant when leaving the state, or that they are still pregnant when they return. They would literally have to set up invasive examination stations to have state-sponsored exams because no doctor can share a patient’s medical information with the government due to HIPAA.
Ultimately, these laws will be ruled unconstitutional on multiple grounds, from the two clauses cited above to HIPAA laws, as will the “snitch” laws put in place by states like Texas and Oklahoma. But unfortunately, the damage will be done for those patients before the courts can address them.
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Side note: In composing this, I intended to start with the analogy of a boy in 1982 crossing state lines with the intention of avoiding the laws of his state because he could get something legally in the neighboring jurisdiction, and how he went unpunished for it. But while putting it to paper, I realized the analogy was wrong: Brett Kavanaugh said he would go to Washington, DC from Maryland in 1982 to drink beer–he really likes beer, in case you hadn’t heard–because 18-year-olds were grandfathered in to the drinking age in DC while the drinking age in Maryland was set at 21, so he would go to DC to do something that was illegal for him in Maryland, and he presumably would return to Maryland in an illegal physical condition: an underage teenager under the influence of alcohol.
The problem with the analogy is that it still would have been illegal for Kavanaugh to drink beer in DC because he was only 17 in 1982, so Kavanaugh crossed state lines with the intention of breaking the law. He just went to a place where, with a fake ID, it would have been easier for him to break the law. (I know how easy it was to do because I did it myself. I’m not chiding Kavanaugh for doing it; I’m blasting him for lying about it under oath.)