Travel Rights in a Culture War

12 Pages Posted: 1 Sep 2022 Last revised: 27 Oct 2022

See all articles by Noah Smith-Drelich

Noah Smith-Drelich

Chicago-Kent College of Law - Illinois Institute of Technology

Date Written: July 30, 2022

Abstract

Emboldened by Dobbs, right-wing states are rushing to ban or limit abortion, including via restrictions on abortion-related travel. Targeting travel in this context makes a certain political sense. For those who are pro-choice, facilitating abortion-related travel is key to broadening abortion access; for those who are pro-life, prohibiting such travel is crucial to limiting abortions. A large component of post-Dobbs abortion policymaking thus appears likely to center around travel. This is not, moreover, just an abortion issue. Similar restrictions on travel for gender-affirming care, conversion therapy, or physician-assisted suicide have been proposed or appear likely to be.

The aggressive ways in which states are increasingly legislating to maximize the reach of their contested moral agendas has sparked a developing body of scholarship focusing primarily on comity, extraterritoriality, and enforcement mechanisms designed to evade judicial review. The interaction of these laws with the constitutional right to travel, though increasingly recognized, has been given less attention.

This essay sets out a right-to-travel conceptual framework, laying the groundwork for considering the variety of anti-travel legislation that has been passed or is being considered. The Constitution’s travel rights should serve as a primary bulwark against this emerging class of restrictions. Because the Constitution's travel protections are robust and are distinct from other limitations discussed in the scholarship on aggressive moral legislation, they add an important dimension to discussions of travel restrictions imposed under guise of moral necessity.

Keywords: travel, right to travel, fundamental rights, Dormant Commerce Clause, Privileges and Immunities, abortion, abortion access, Dobbs, Roe, gender affirming care, physician assisted suicide, moral legislation, transportation, state lines

Suggested Citation

Smith-Drelich, Noah, Travel Rights in a Culture War (July 30, 2022). Texas Law Review Online, Vol. 101, Forthcoming 2022, Available at SSRN: https://ssrn.com/abstract=4199596 or http://dx.doi.org/10.2139/ssrn.4199596

Noah Smith-Drelich (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

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