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On June 24, the Supreme Court voted 6-3 to overturn the constitutional right to abortion, leaving it up to states to decide whether a pregnant woman is forced to give birth against her will. The Confederate view of states’ rights—where a person’s basic human rights are not protected by the constitution and instead are abrogated at the state level—has long been supported by conservatives and modern Republicans. He praised the court’s decision saying that it “gives power back to the states” and emphasized that the power the states are getting is a matter of controlling the bodies of women, girls and pregnant women.
And states bent on taking away reproductive rights have no intention of standing on their borders. Already, Republican states have moved to introduce laws restricting women’s and pregnant people’s access to abortion in other states. Missouri is considering legislation modeled after Texas Senate Bill 8, which would limit people’s ability to rely on private actors to transfer care. And Texas Attorney General Ken Paxton sent a letter to Sidley Austin, a law firm, threatening legal action over its new policy to deny workers out of Texas access to reproductive health care.
These conservative gambits Shouldn’t work. Freedom of movement between states is a very old concept, it predates the US Constitution. Those who prefer to be guided by historical trivia will note that the Magna Carta, written in 1215, contained protections for the right of way. And the right to travel has been recognized by the Supreme Court several times in American history. Courts have found that the right to travel is granted under Article IV of the Rights and Immunities Clause and the right to travel in the 14th Amendment to citizenship and due process.
But just like the word “abortion”, the phrase “right to travel” is not written in the text of the constitution. The same people who think that rights should or should not be written clearly in the quills of the founders can argue that restrictions on travel do not violate fundamental constitutional rights. And some of these people may be on the Supreme Court.
Indeed, the first constitution expressly denied the right to travel…to people whom this country stole from their homes and families. Article IV included the Fugitive Slave Clause in plain text. “Any person held for service or labor in one state who escapes to another state and is held for service or labor shall not be released from service or labor by reason of any law or regulation, but shall be given on his claim. Party to whom this service or employee may be provided”
Meanwhile, even in the 20th century, travel for white women was restricted in many ways. Since it is unusual for a woman to travel alone without her husband, the United States began issuing passports to married women in 2010, not the long-standing practice of issuing joint passports in the husband’s name. It was in 1937. And of course, black women never had the same freedom of movement that white women did. Journalist and activist Ida B. Wells was denied a passport because the government called her a “known racist.”
The right to travel is, in other words, an unenumerated right – a right that is fundamental to a free and functioning society and recognized by the courts but not defined in the Constitution. Like abortion.
In the concurring opinion that repealed abortion rights because it was not written by white people who were allowed to participate in the constitution-making process, attempted rape suspect Brett Kavanaugh said he supported the same unenumerated right to travel. “For example,” he wrote, “does a state prohibit a resident from traveling to another state to obtain an abortion? In my opinion, the answer is no, it is based on the constitutional right to move between states. That line may seem comforting until you remember two things: Cavanaugh has lied about his previous patronage, and his statement about interstate travel obscures the real issues at play.
Writing in New York TimesAdam Liptak pointed out that the “real world issue” is not whether states with forced births prevent pregnant women from leaving, but what happens to them or those who helped them when they return. It’s unlikely that a state would pass a law banning pregnant women from traveling for nine months, and even if it did, there’s no real way for the state to enforce it (unless the Transportation Security Administration makes women strip before going through security). But a state can do more to punish those suspected of having an abortion or those who assisted in the abortion when they return home.
Additionally, states may prosecute or encourage private citizen bounty hunters to sue out-of-state doctors who provide abortion services. Anticipating this possibility, abortion clinic operators in Montana have begun requiring proof of residency before providing care, because they worry about being sued by neighboring state governments. It’s worth reminding people here of the Fugitive Slave Clause (and later the Fugitive Slave Act of 1850), which was designed not only to recapture enslaved people, but also to punish whites who might help them, condemning their behavior and enslaving them. They believe that people will not be willing to help anywhere.
So will the goal of these new fugitive womb laws: pregnant women who are powerless to defend themselves against frivolous accusations will be ostracized and trapped. Activists who want to give people information and options are criminally prosecuted and banned from helping. Doctors, even those in free states, should be on the lookout for abortionists eager to solicit bounties from their patients.
Whites who shout about “states’ rights” have never accepted the basic right of non-whites to leave their oppressed territories. Not in our enslaved times, and not in our current theocratic times. Conservatives don’t want certain people to have rights, but they certainly don’t want those people to miss out.
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