Is such a law constitutional? Difficult to ascertain. This doctrine is a bewildering mixture, and the Supreme Court has refused to provide definitive guidance. Although legal scholars have been arguing since the 1990s in favor of the right to travel to seek abortion, the last time judges directly addressed the question of the state’s power to punish crimes outside its borders was… um… 1941.
In short, we cannot predict how a court will deal with one state’s attempt to prevent its citizens from obtaining an abortion in another. But one need not be pro-choice to see the strength of the argument against such a law.
Let’s start with a basic question: Can a state punish its citizens for violating state laws outside its borders? The answer seems to be yes. In 1941, the Supreme Court ruled that Florida could punish its residents for breaking Florida law while on the high seas. Over the following decades, other nations successfully prosecuted crimes committed at sea.
It also seems that the answer is no. During the era of human servitude, the general rule was that a single country could not impose its own laws on matter outside its borders. In Lemon v. the People (1860), for example, the New York Court of Appeals ruled that the legal status of slaves brought to New York would only be determined by New York law. And so they were released.
The process also worked in the opposite direction. I recently came across an 1831 resolution that stated that the ban on slavery in Indiana could not prevent Indiana residents from owning slaves held in other states.
Here’s a way to coordinate cases. In the Florida case (as in many other cases involving conduct on the high seas), the crime is committed outside of any state’s jurisdiction. There is no compensating benefit. However, the 1831 case arose as the laws of two separate states were in conflict. Kentucky allowed slavery. Indiana did not. The court held that no legal action could be prevented in Kentucky because the person who did it could not do it at home.
I am not saying that the pro-choice side should depend on the issues handed down in the age when human beings were property. But it’s worth noting that pre-war situations arose because different states had different laws on the subject. There is, therefore, good reason to heed the advice of my colleague at Yale University, Leah Premiere, who has argued that a nation’s right to punish its citizens for doing what its law prohibits must lead to another nation’s right to take a strong political position in its favour.
The policy point is important. As Brillmayer notes, there is no conflict “if the first state wants to ban certain types of behavior, while the second is simply indifferent”. The problem only arises when two countries are actively working to promote different answers to the question. If this argument is correct—and I think it is—in a state where Roe v. Wade is no longer a constitutional law, it is better for pro-choice states to adopt laws that expressly recognize the right to abortion. By writing their preferences into politics, they would create enough conflict to prevent the pro-life state from imposing its law outside its territory.
Even if all this is unconvincing, there are still precautionary reasons that states considering severe abortion restrictions should not try to penalize their residents for having abortions in the neighboring country.
The most obvious reason is reciprocity. Take, for example, two neighboring states, such as Missouri and Illinois. Missouri is likely to ban all or most abortions. Not only does Illinois allow abortion, but it enacted a law in 2019 that states that a woman has a “fundamental right” to access abortion and that “a fertilized egg, fetus, or fetus does not have independent rights.” If abortion law oversteps the bounds, why doesn’t Illinois law apply in Missouri if Illinois travels there? (A similar caveat might apply if employers are prevented from paying the expenses of employees traveling for an abortion, although the legal issues are somewhat different.)
There is another precautionary concern, unrelated to miscarriage. In March, the US Supreme Court agreed to hear an appeal against a California law that restricts the sale of pork products unless farms meet certain criteria, even though nearly all of the farms involved are out of the state. The challenge is based on previous decisions, such as the 1996 case where a majority of judges warned that “a state may not impose economic sanctions on violators of its laws with the intent of changing the legal behavior of perpetrators of harm in other states.”
No, the problem is not the same from a distance. But this kind of case is a reminder that we live in a time when states try all kinds of devices to regulate behavior outside their borders, even when behavior is legal elsewhere. We should take the time to think about whether this is the direction we want to move.
More Bloomberg’s opinion:
• The Supreme Court has a nasty surprise in store for business: Noah Feldman
• January 6, the Commission filed the case against Trump: Jonathan Bernstein
• Democrats Need Stacy Abrams’ Guide to Fighting Raw: Juliana Goldman
This column does not necessarily reflect the opinion of the editorial staff or Bloomberg LP and its owners.
Stephen L. Carter is a columnist for Bloomberg Opinion. Professor of Law at Yale University, he is the most recent author of Invisible: The Story of the Black Woman Lawyer Who Brought Down America’s Most Powerful Gang.
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