Idaho’s new abortion law violates constitutional protections for interstate travel | Opinion

Recently, the state of Idaho adopted a law that makes it illegal to, among other things, help young women leave the state for an abortion in another state where it is legal to obtain an abortion without their parents’ prior knowledge and consent.

We think this new Idaho law is unconstitutional.

Currently, a minor can obtain an abortion in certain states, including California, without her parents’ knowledge or consent. Two provisions of the U.S. Constitution guarantee the rights of American citizens, regardless of age, to travel between the states to be able to exercise rights legally protected in other states.

Both provisions are in Section 1 of the 14th Amendment to the U.S. Constitution. The first is the Privileges and Immunities Clause which states that “No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States...”. The other is the Citizenship Clause which states that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Courts could and should interpret one or both of these provisions as recognizing a constitutional right of any U.S. citizen, regardless of age, to travel from an anti-abortion state to a pro-choice state to procure an abortion. (In two concurring opinions in a 1941 Supreme Court case, Edwards v. California, four Justices agreed that the Privileges and Immunities and Citizenship Clauses protected an American citizen’s right to travel freely between states.)

Certainly, it will be argued that the new Idaho law deserves special treatment for two main reasons — because it focuses on parental consent, and because it subjects to criminal punishment people helping juveniles seeking abortions, and not the juveniles themselves. Both distinctions should not make a constitutional difference.

First, the relevant Constitutional protections do not distinguish between adults and juveniles. They speak in terms of citizens and do not limit their protections to adult citizens. And how could they? It would be like saying the protections in the Constitution against slavery only apply to adults and not juveniles, or apply to juveniles only with parental consent.

An argument might be made that protecting children by requiring parental knowledge and consent is a special issue that might restrict the constitutional rights of children. But this argument applies to whether the destination state can adopt a law that allows a juvenile to have an abortion without the parent’s knowledge or consent. If that destination state can legally do so under the federal constitution, then the federal constitutional rights to interstate travel protect the right of any citizen, including a juvenile, to travel to that destination state to exercise any lawful rights which exist in that state, including this one.

Someone defending the new Idaho law might also argue that criminally punishing facilitators of interstate travel for an abortion is more constitutionally permissible than an outright ban on interstate travel itself. But constitutional law has long recognized that laws which unduly chill or burden the free exercise of a constitutional right must be held unconstitutional in order to protect the underlying constitutional right.

For the Constitutional protections of interstate travel to be effective, they must bar unconstitutional burdens on interstate travel, not just direct bans. There is no question that a law which imprisons persons aiding a citizen who wants to exercise their constitutionally protected right to interstate travel severely burdens and restricts the citizen’s right to interstate travel. Indeed, that is certainly the intent of the law. Similarly, a state law which imprisoned newspaper editors who published articles supporting the right to an abortion in other states would chill and violate the free speech rights of the authors of the articles, not just the newspapers.

The U. S. Supreme Court decision in the Dobbs case (Dobbs/Mississippi Dept. of Health v. Jackson Women’s Health Organization) last year has transferred much of the legal battle over abortion to the state level (although the recent litigation over the FDA and abortion pills shows there are still issues at the federal level).

But, so long as some states afford broad legal rights to in-state abortion, the U.S. Constitution’s powerful protections of interstate travel protect a woman’s right to travel freely and unencumbered to any state in the Union in order to access the legal rights she would have in that state, and control state laws which interfere with that federal right.

There is no exception in these constitutional provisions for citizens under the age of 18 or 21, nor for laws which unduly burden the woman’s constitutional right to travel across state lines.

Alan Howard is an emeritus law professor at St. Louis University Law School, specializing in U.S. Constitutional law. Bruce Howard is a lawyer practicing in Los Angeles, California, and was a law professor at the University of Southern California Law School.