Freedom of movement, the freedom to travel from one state to the next, is a fundamental constitutional right in the United States. It is among the liberties of citizens protected by the privileges and immunities clause of the Fifth Amendment, as later extended by the 14th Amendment.
As early as the Articles of Confederation the Congress recognized freedom of movement (Article 4), though the right was thought to be so fundamental during the drafting of the Constitution as to not need explicit enumeration.
The U.S. Supreme Court in Crandall v. Nevada, 73 U.S. 35 (1868) declared that freedom of movement is a fundamental right and therefore a state cannot inhibit people from leaving the state by taxing them. However, in United States v. Wheeler, 254 U.S. 281 (1920), the Supreme Court held that the Constitution did not grant the federal government the power to protect freedom of movement. Under the “privileges and immunities” clause, this authority was given to the states, a position the court held consistently through the years in cases such as Ward v. Maryland, 79 U.S. 418 (1871), the Slaughter-House Cases, 83 U.S. 36 (1873) and United States v. Harris, 106 U.S. 629 (1883).
Finally, in United State v. Guest, 383 U.S. 745 (1966), a criminal conspiracy case against KKK members acting to deny African Americans full and equal enjoyment and utilization of goods and services, including access to state highways and free travel to and from Georgia on public streets:
In an 8-1 opinion authored by Justice Potter Stewart, the Court held that a criminal conspiracy affecting an individual’s right of free interstate passage violated the law. The Court reasoned that the indictment contained an express allegation of state involvement sufficient at least to require denial of a motion to dismiss. If the predominate purpose of the conspiracy is to prevent the exercise of the right of travel, or to oppress a person of that right, as was the case here, then whether or not motivated by racial discrimination, the conspiracy becomes a proper object of federal law under which the indictment was brought. Therefore, the federal indictment was based on an offense under the laws of the United States.
If a state participates at all in a conspiracy it has violated the Fourteenth Amendment with regard to any individuals whose rights are infringed, based on the constitutional right to travel.
Guest may have some new utility in the wake of the U.S. Supreme Court overturning Roe v. Wade. Republican states are seeking to prohibit their citizens from seeking an abortion in another state where abortion is still legal. Some of these Republican states want to go so far as to prosecute not just their citizen who leaves the state for an abortion, but the OB/Gyn doctor who performs the legal abortion in a state where abortion is still legal.
The theocratic Republic of Texas has gone so far as to enact a modern-day Fugitive Slave Act which provides for vigilantes, who could be anyone in any state in the United States, to collect a bounty for reporting a citizen of Texas or the Ob/Gyn doctor who performs an abortion in another state where abortion is still legal for prosecution in Texas. The same activst radical Republican U.S. Suprene Court which struck down Ro v. Wade let this heinous vigilante abortion law stand.
If Republican states join the theocratic Republic of Texas in this “conspiracy to prevent the exercise of the right of travel, or to oppress a person of that right,” the conspiracy becomes a proper object of federal law for prosecution, and those Republican states should be treated as participants in a conspiracy to deprive citizens of their fundamental constitutional right of freedom to travel. The Federal government should aggressively pursue these rogue theocratic states.
Greg Sargent writes, ‘Fugitive Moms Acts’ in red states? Biden’s new move suggests yes. (excerpt):
Right now, antiabortion activists and red-state politicians are developing proposals to criminalize when a woman from a state that has banned abortion seeks care in a state where it’s legal.
These state efforts include ideas like authorizing residents of antiabortion states to bring vigilante lawsuits against women seeking treatment elsewhere. These efforts may also target people who help those women, possibly including people in blue states — though how far that’ll get is unclear.
Patients crossing state lines for abortions and facing such prosecutions, then, might benefit from legal assistance marshaled by the feds.
Leah Litman, a professor at the University of Michigan Law School, says such prosecutions might arise in two ways. First, they might proceed from something that’s being discussed on the right: New laws that explicitly criminalize the act of crossing state lines to seek an abortion.
But a zealous prosecutor could also pursue a case even if such a law isn’t passed. They might argue that a woman who crossed state lines entered into a conspiracy to break her home state’s law against abortion, Litman says.
Either way, federal assistance might benefit women facing such prosecutions. It might also benefit providers who legally administer abortions to those women but then face prosecutorial efforts across state lines.
[T]here are limits to federal action. As Post reporter Caroline Kitchener points out, Biden lacks the power to protect women in anti-abortion states who seek medication abortion by mail from other states. That could still be criminalized — a big area of bitter contestation going forward.
The possibility that antiabortion states might try to reach across state lines has inspired many comparisons to the situation after passage of the Fugitive Slave Act of 1850, which required enslaved people who escaped to free states to be returned to enslavers.
Others have noted that the antebellum North’s reaction to that law is similar to pro-choice states preparing to defend women who seek abortions in them, as well as providers there, from antiabortion law enforcement efforts. A number of blue states have launched such defenses.
The situations, of course, are not parallel. But the comparisons are not mere provocation, either. As historian Lawrence Glickman told me, both involve an effort to deputize state officials and even private citizens to enforce laws across state lines that are “only technically operable in some states.”
In the coming state vs. state free-for-all over abortion, federal power will, in one way or another, play some role in mediating these conflicts — which of course gives rise to another possibility. If a Republican enters the White House in 2025, many efforts that Biden is putting in place — and others to come — may be rolled back or scrapped entirely.
And what that will look like is anybody’s guess.
In the meantime, the House passes bills to protect abortion access following Roe reversal:
The House on Friday passed two bills aimed at protecting access to abortion, marking the chamber’s first legislative attempts at safeguarding the procedure after the Supreme Court overturned Roe v. Wade last month.
The first bill — the Women’s Health Protection Act — passed in a 219-210 vote, clearing the House for a second time in the past year. The lower chamber previously approved the measure in September, but it was twice blocked in the Senate (by the Senate filibuster rule which two Vichy Democrat collaborators with the enemies of democracy will not agree to a carve out for women’s reproductive freedom. Manchin is anti-abortion. Sinema calls herself a feminist, but not enough for a filibuster carve out to protect women’s reproductive freedom).
And let’s never forget the mythical moderate from Maine, Susan Collins, and Lisa Murkowski from Alaska who also cliam to be feminists who support women’s reproductive freedom, also not enough for a filibuster carve out to protect women’s reproductive freedom.
So that’s three female senators who say they support women’s reproductive freedom, but they will not lift a finger to do a carve out to the antiquated Senate filibuster rule to protect women’s reproductive freedom. They are less than useless.
Texas Rep. Henry Cuellar was the only Democrat to vote against the bill, which all Republicans present opposed as well. He also opposed the measure when it was brought up for a vote in September.
The legislation seeks to ensure that people have access to abortion nationwide by codifying the right to the medical procedure into federal law.
The measure, however, will likely face headwinds in the Senate. Senate Republicans and Democratic Sen. Joe Manchin (W.Va.) blocked the bill in February and March when it was brought up for consideration.
Sixty votes are needed to overcome a legislative filibuster.
The House passed the second bill — titled the Ensuring Access to Abortion Act — in a 223-205 vote.
Three GOP lawmakers supported the measure, including Reps. Adam Kinzinger (Ill.), Brian Fitzpatrick (Pa.) and Fred Upton (Mich.). Cuellar also voted in favor of the measure.
The legislation protects women who travel to another state to receive an abortion if their home state prohibits the medical procedure. And in states where abortion is lawful, the bill seeks to make it illegal for facilities to limit access to the medical procedure for individuals who arrived from out of state.
Additionally, the measure includes a provision to protect people who assist others in receiving an abortion in a state where they do not reside. It also shields the state-to-state transportation of abortion drugs that have received approval from the Food and Drug Administration.
Republican leadership recommended that members of the GOP conference vote against both bills, according to a GOP congressional aide.
The House passed the pair of pro-abortion rights bills exactly three weeks after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturned the nearly 50-year precedent that protected access to the medical procedure.
During debate on the House floor Friday, Rep. Judy Chu (D-Calif.) said the Women’s Health Protection Act, which she sponsored, will help preserve protections in Roe.
“[The Women’s Health Protection Act] is the bill that will protect the right to access abortion after the tragic fall of Roe vs. Wade. It ensures in federal law the right to abortion care for every woman in every state and ensures states may not erode that right,” she said.
“You will hear Republicans say our bill goes too far, but that’s simply not true. Our bill preserves the protections of Roe that we’ve lived with for 50 years, affirmed through decades of subsequent court decisions,” she added.
A number of Democrats, in arguing for the bill, referenced the 10-year-old rape victim from Ohio who had to travel to Indiana to receive an abortion because of strict laws against the medical procedure in the Buckeye State. Rep. Earl Blumenauer (D-Ore.) described the girl’s ordeal as “barbaric.”
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During her weekly press conference on Thursday, Speaker Nancy Pelosi (D-Calif.) said Democratic lawmakers had other bills in the works in the aftermath of Roe’s reversal.
In a letter to colleagues days after the ruling was released, she mentioned a bill that seeks to protect reproductive health data, including information on apps, arguing people were worried the information “could be used against women by a sinister prosecutor in a state that criminalizes abortion.”
It remains unclear, however, if the House will bring up the bill.
On Friday, House Majority Leader Steny Hoyer (D-Md.) announced the House next week will vote on the Right to Contraception Act, which seeks to protect access to contraceptives. He pointed to a concurrent opinion in the June ruling penned by Justice Clarence Thomas arguing the court should also “reconsider” its rulings on access to contraceptives and same-sex marriage.
“In his concurring opinion in Dobbs v. Jackson, Justice Clarence Thomas made it very clear that the extremist ruling that ended Roe v. Wade could be used to overturn other precedents, and he specifically referenced the case that recognized Americans’ constitutional right to access contraception,” Hoyer said in a statement.
“The House will not sit back and allow extremist Republicans and their judicial appointees to limit Americans’ access to contraception, which is why I will bring H.R. 8373, the Right to Contraception Act, to the House Floor next week,” he added.