In July, shortly after the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization that overruled Roe v. Wade, a group of conservative Texas legislators announced their intent to pass new statutes to impose criminal and civil penalties for assisting with abortions involving a Texas resident, “regardless of where the abortion occurs, and regardless of the law in the jurisdiction where the abortion occurs.”
Are these laws constitutional, and who will make that decision? The controlling legal principles are clear, but how they apply to these new laws is not. It also remains to be seen whether state or federal courts will be resolving constitutional challenges to such laws.
Any constitutional challenge to such a law will likely involve the right of interstate travel. The Supreme Court has assumed the existence of such a right for many years but has not actually done much with it.
A good example appears in the Slaughterhouse Cases, decided in 1873. Concerned about public health, the City of New Orleans consolidated all animal-slaughtering operations into one, government-owned facility. Private slaughterhouse owners sued, arguing that this law violated their “privileges or immunities” of citizenship, protected by the newly enacted Fourteenth Amendment.
The Supreme Court rejected that challenge, concluding that the “privilege or immunities” clause protected only rights of national citizenship. As an example of such a right, the court identified the right to travel between states, saying: “[A] citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that state.”
Other right-to-travel cases are in this same vein – identifying the right as one protected by the Constitution, but not actually applying it to the case at hand.
Another example is Bigelow v. Virginia from the 1970s. Bigelow was the editor of a newspaper in Virginia that ran an ad for a New York service that facilitated access to abortion. He was convicted under Virginia law at the time, a majority of the Supreme Court vacated that conviction.
While that case turned on the First Amendment’s protection for commercial speech, the majority observed generally: “A State does not acquire power over the internal affairs of another State, merely because the welfare of its own citizens may be affected when they travel to that State.”
That is strong language and deals directly with a case about abortion. But that language has to be taken with a grain of salt, as this case was decided not long after Roe, was written by Justice Harry Blackmun (the author of Roe) and a dissenter was Justice William Rehnquist – at the time a young conservative firebrand, but today the philosophical inspiration for the conservative majority of today’s Supreme Court.
The right of interstate travel made a brief appearance in Dobbs in Justice Brett Kavanaugh’s concurrence, when he said: “For example, may a State bar a resident of that State from traveling to another State to obtain an abortion. In my view, the answer is no, based on the constitutional right to interstate travel.” That statement leaves unanswered questions – what if the law at issue isn’t an absolute bar but a law allowing private lawsuits for civil penalties such as Texas’s SB8? Or an advertising restriction similar to the one at issue in Bigelow?
In sum, while the law in this area is settled at a very high level – the Constitution has long been assumed to protect a right to interstate travel – how that general principle may apply to the new laws now under consideration remains to be seen.
Another potential source of legal challenges to cross-border abortion laws is the “Dormant Commerce Clause.” Article I of the Constitution grants Congress the authority to regulate interstate commerce. The Dormant Commerce Clause cases say, generally, that this grant of power forecloses state laws in the area of interstate commerce, even if Congress has not taken action in that area. Again, while that general principle is well-settled, it is not easy to say how it may apply to any specific new law that tries to regulate abortion across state lines.
These laws may also be challenged based on more commonly litigated principles about due process – specifically, whether a law is impermissibly vague – as well as First Amendment protections for both political and commercial speech.
For example, if a law prohibits “assistance,” does that word include financial help? If it does, would it include reimbursements by a nationally operated benefits program or only individuals writing checks from their personal bank accounts? Would it include communication that the First Amendment is assumed to protect, such as accurate factual information or expressions of political opinion?
The traditional frameworks for evaluating issues such as these will be tested by applying them in the new, novel context of a state law that tries to reach out across that state’s boundaries.
Those are the major substantive doctrines that will come into play. Procedurally, it is notable that this constitutional litigation will go forward in both state and federal court. In late 2021, when it rejected a pre-enforcement challenge to SB8, the Supreme Court held that state courts may and should hear constitutional challenges to that kind of state law in the context of an appeal from a final judgment.
Of course, the Supreme Court is the ultimate arbiter of constitutional questions, whether those issues come through the federal system or from a state supreme court. That said, the Supreme Court hears only a small fraction of the cases that seek its review, which means that intermediate appellate courts are often the last word on many important legal issues.
The contrast between state and federal appellate courts is particularly strong for Texas. The U.S. Court of Appeals for the Fifth Circuit is widely recognized as a conservative court on these matters. For example, its rejection of the challenge to SB8 in 2021 was largely affirmed by the Supreme Court. In contrast, the Texas courts of appeal for large urban areas have become predominantly Democratic and can be expected to have a more liberal view of abortion-related laws.
The Texas Supreme Court, of course, is a conservative, all-Republican court, but like the U.S. Supreme Court it is only able to hear a small percentage of the cases that seek its review. It can be expected to view abortion-related laws in a similar way to the Fifth Circuit, but it does not have to hear any such case if it decides not to.
As a result of the contrast between the state and federal appellate systems, somewhat arcane questions of appellate procedure may become outcome-determinative in abortion cases. Those seeking to maintain access to abortion will likely try to position their cases so they go no further than the Texas intermediate courts of appeal, while those seeking an expansive voice for state regulation will try to guide those cases into the federal system and seek Texas Supreme Court review of them.
Furthermore, the broad reach of some proposed laws suggests that we will see more voices and perspectives in this type of litigation than has historically been the case. Abortion litigation has traditionally seen a prominent role for a state’s providers, such as Jackson Women’s Health in the Dobbs case. But new laws reach more broadly, potentially including employers who pay for abortion-related services, Uber drivers or pilots who take someone to another state for an abortion or even attorneys attempting to provide advice about the scope of a law.
In sum, the basic principles about cross-border abortion laws are well-settled. But uncertainty about how those basic principles may apply to specific new laws, coupled with real differences in viewpoint between the intermediate state and federal appellate courts, means that constitutional litigation about these laws is likely to continue for some time.
David Coale is an appellate partner at Lynn Pinker Hurst & Schwegmann. He publishes 600camp.com, a popular blog about business cases in the U.S. Court of Appeals for the Fifth Circuit, and 600commerce.com, a similar blog about the Dallas Court of Appeals and Texas Supreme Court.