Introduction
On July 1, 2022, the Indianapolis Star reported that a ten-year-old Ohio girl, who had been raped and was six weeks pregnant, had sought an abortion in Indiana. Abortion had been outlawed in Ohio mere hours after the Supreme Court overturned Roe v. Wade, but it remained legal ˙in neighboring Indiana. The Ohio girl was able to cross the state border, get the abortion, and—presumably—return home safely. But if lawmakers like those in Missouri, South Carolina, Texas, and a handful of other states have their way, pregnant© children in abortion-restrictive states will be unable to avail themselves of neighboring states’ abortion-permissive laws.
While many post-Dobbs restrictions have imposed variously severe bans on abortion itself, some states have proposed—and at least one has implemented—a particularly pernicious type of regulation: the travel ban. Some of these proposed statutes mirror the design of Texas Senate Bill 8, imposing no direct restrictions on women seeking abortions. Instead, they would bar third parties from aiding, either physically or financially, out-of-state abortion travel. Such proposals have been met with skepticism in the legal community, and there is extensive scholarship rejecting the notion that states may prohibit abortion travel. Indeed, Justice Kavanaugh explicitly stated in his Dobbs concurrence that such restrictions would be unconstitutional. Such reassurances may be cold comfort to those who cannot travel, but they are vital nonetheless. Before Roe struck down state abortion bans, more than forty percent of abortions were performed on women outside their state of residence. By 2019, that figure had fallen to just over nine percent. With Roe overturned, it seems likely to rebound—and travel protections will be essential.
A subcategory of abortion travel bans exclusively target minors and, unlike their more generally applicable analogues, the constitutionality of such laws is far from clear. For example, a newly enacted Idaho law makes it a crime to procure an abortion for a minor by transporting them within the state. Similarly, a legislative proposal in South Carolina would make it a felony for anyone to bring a pregnant minor to another state to obtain an abortion. More such laws are likely to be proposed soon. The conduct these regulations proscribe is not hypothetical: there is a documented phenomenon of more minors seeking out-of-state abortions when in-state restrictions such as parental notification requirements are imposed.
The threat of juvenile travel bans is significant, and this Note provides a roadmap to protection. It argues that, in the absence of a constitutional abortion right, abortion access can and should be secured through other constitutional doctrines. The right to travel is a strong contender for three reasons: it is deeply rooted in our nation’s legal tradition, it bolsters federalism interests, and it may eventually serve to protect other rights on the Court’s chopping block.
Part I of this Note explores the history and justification of the constitutional right to travel, in both interstate and intrastate contexts. It then explains how fundamental rights in general—and the right to travel in particular—have been evaluated, and occasionally diminished, when applied to minors. Part II identifies a gap in the literature: while there has been litigation over minors’ right to intrastate travel, there has been little academic or judicial analysis of their right to interstate travel. The Part then argues that minors have a fundamental right to interstate travel that should be subject to the same heightened scrutiny as the parallel adult right. Finally, Part II demonstrates why juvenile abortion travel bans are unlikely to survive such scrutiny.