It's Not Squarely Settled: Why States Can Still Attempt to Limit Interstate Travel for Abortion Despite a Fundamental Right to Travel Between States
This Note explores the tension between the fundamental right to interstate travel and state abortion restrictions limiting out of state travel for abortions. Legal scholars long contemplated what would happen if Roe and Casey were overturned. That day has come, and states are now free to regulate abortion subject to rational basis review. . . unless another fundamental right is implicated.
In his Dobbs concurrence, Justice Kavanaugh cited the fundamental right to interstate travel as justification for barring states from banning out of state travel for abortions. Although he cited no precedent for his statement, he seemed to believe this was an open-and-shut question. This Note will seek to examine whether the fundamental right to interstate travel can protect the ability to travel between states for an abortion. If it does, then state abortion restrictions should still be subject to strict scrutiny. Even still, states may be able to put forth compelling justifications to support their laws.
To test this argument, this Note will examine Idaho’s HB 242—the nation’s first law limiting interstate travel for abortions. Though this law has not yet been challenged, we can expect that it will soon make its way before the courts.
Even though HB 242 regulates abortions, its impact on interstate travel will likely still make it subject to strict scrutiny.