Freedoms Under Attack - The Right to Travel

 

Recent proposals from some anti-abortion legislators have convinced me that many in positions of authority in some states either have not read our Constitution or do not believe that its' provisions apply to women.

In her Substack posting for September 1, 2023, Heather Cox Richardson writes of moves by some legislators to punish or restrict movement by women who seek to leave the state to receive abortion services. heathercoxrichardson@substack.com

She writes, in part:

“Meanwhile, Republicans continue to focus on ending abortion, and their determination is leading them to assert power over citizens of Republican-dominated states in a way that is commonly associated with authoritarian governments.   

Alabama Attorney General Steve Marshall claimed in a court filing on Monday that Alabama, which has one of the strictest abortion bans in the country, can prosecute people who help women travel out of the state to obtain an abortion as part of a "criminal conspiracy." 

Today, Caroline Kitchener reported in the Washington Post that at least 51 jurisdictions in Texas have passed ordinances to make it illegal to transport anyone on roads within city or county limits to get an abortion. Their hope is to target interstates and the roads around airports to block off routes out of Texas and keep pregnant women trapped in the antiabortion state. 

The laws also allow any private citizen to sue any person or organization they think is violating the ordinance, leading to expensive lawsuits against the friends and family members of the most economically vulnerable people in society. Antiabortion activists call aid to women seeking abortions "abortion trafficking," which makes it sound like women are being forced to get an abortion, when in fact, the ordinances ensnare women who want to get an abortion and their friends, preventing them from leaving an antiabortion state. Even if such an ordinance is impossible to enforce, it legally endangers the people who would help someone trying to get an abortion, moving such reproductive care beyond the financial reach of many women, and makes people hesitant to help each other. 

Such barriers are precisely the same as those for people trying to leave authoritarian countries. Someone who is prohibited from leaving a jurisdiction is not a citizen but a subject. Free and full citizens of a democracy have the right to travel, both inside the country and out of it. That right is guaranteed to U.S. citizens by the Constitution. But authoritarian countries often restrict travel for their subjects outside their borders out of concern that exposure to freer countries will weaken the authority of the government at home.” 

Richardson continues by likening the rights of women restricted in this manner to the restrictions placed on enslaved persons during the times before emancipation. They were not given the rights of citizenship, so did not have the right of free movement.

So, is the AG of Alabama now claiming that women do not have the right to free movement in and out of that state?

Will women need to take a pregnancy test to get on a plane or drive across the state line? Will they need a doctor's note to go on a family vacation? Has he read the Constitution, which allows for transit from one state to another without restriction?

Specifically, travel is permitted in several places:

"The Supreme Court has over the years defined the right to travel (or the freedom of movement) as one of the "unenumerated rights" of the Constitution. Specifically, the Supreme Court has ruled that this right to travel includes the right of citizens to move freely between states, the right to be treated equally in all states when visiting, and the rights of new citizens to be treated like longtime citizens of a state." (Annenberg Classroom)

We find these rights in the Constitution in article IV of the Fourteenth Amendment, which states:

"The Privileges and Immunities Clause says that a citizen of one state is entitled to the privileges in another state, from which a right to travel to that other state may be inferred. Under this clause, such an internal passport, which is in use in a small minority of countries, would be unconstitutional."

As I read this interpretation, I see that citizens of one state may travel to another state and enjoy the rights and privileges accorded to citizens living there. There is nothing here that infers that if one state does not like the privileges granted by state number two, state number one may refuse travel to that state by its residents. Nothing indicates that a state may question such travel or deny it for any reason.

I am convinced that any laws restricting this travel of women or attempts to prohibit travel among consenting adults, mislabeled 'abortion trafficking' will not be upheld by the courts.

Take a moment and look at countries that do not allow their citizens to have free movement: North Korea, China, and Russia come to mind. Do we wish to copy these authoritarian countries, often considered among the worst in humanitarian rights? Are elected officials in anti-abortion states so convinced of their zealous philosophies that they will overlook their oaths to uphold the Constitution?

The Washington Post in the article mentioned above goes into great detail about the efforts anti-abortion supporters are making, allowing average citizens to challenge neighbors or strangers they believe are engaging in 'abortion trafficking'. While they have not yet challenged the laws, some believe they are difficult to bring to court.

"While these restrictions appear to violate the U.S. Constitution — which protects a person's right to travel — they are extremely difficult to challenge in court, said Mary Ziegler, a law professor at the University of California at Davis who focuses on abortion. Because the laws can be enforced by any private citizen, abortion rights groups have no clear government official to sue in a case seeking to block the law."

The article describes the consternation in the town of Llano, Texas which anti-abortion activist Mark Dickson, a Director of the east Texas Right to Life movement, targeted because it sits at the nexus of many highways in the state and could be a stopping point for travelers. In his remarks to the town council, he spoke of the passage of the restrictions on travel in other jurisdictions in the state. He claimed a ‘baby-murdering cartel' was coming for Texas residents. When questioned about the legality of the proposal, he likened it to the Mann Act, which prohibits interstate travel for immoral purposes:

"Asked about the constitutionality of his ordinances, Dickson cites the Mann Act, a federal law from 1910 that makes it illegal to transport "any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose." If the Mann Act is constitutional, he says, so is this. "

He claimed that the 'unborn child' would be forced to travel against its will. I cannot accept the idiocy of this statement.

The reporter, Caroline Kitchener, spoke with people in the town, which voted overwhelmingly for DJT in the two previous elections. Many in the town and on the council were supporters of abortion restrictions but were divided about this proposal, which some felt went too far. Residents of nearby Chandler, Texas did not approve the proposals when presented to them recently; the council in Odessa passed it. So, Dickson traveled to the next town on his list and will probably continue on his quest to deprive women of their rights.

Others in the state of Missouri have attempted to pass similar restrictions.

Republicans in Wisconsin are now trying to impeach the newly seated justice on their Supreme Court because she was publicly supportive of abortion rights and that community financially contributed to her election. It was the most costly ever in the state as the conservatives battled the progressives for control of the Court. Now that they lost, Republicans are trying to change the rules.

According to the Hill Newspaper:

“Wisconsin's Republican-controlled Legislature is talking about impeaching a newly elected liberal state Supreme Court justice even before she has heard a case.

The unprecedented attempt to impeach and remove Justice Janet Protasiewicz from office comes as the court is being asked to throw out legislative electoral maps drawn by the Republican-controlled Legislature in 2011 that cemented the party's majorities, which now stand at 65-34 in the Assembly and a 22-11 supermajority in the Senate.”

Actions such as those discussed above make me even more concerned about elections in 2024. We have always been primarily a nation of laws. We play by the rules in our various states. Gerrymandering is a terrible precedent. I say this even though I live in a state that is a big offender. Wisconsin, under former Governor Scott Walker, threw out many rules and did away with some unions and local districts. They redrew lines that were disallowed by the courts but reasserted them, anyway. Even though Democrats won a majority of votes, due to gerrymandering, they only control about one-third of the legislature. Now that this power might be threatened, they are trying to again change the rules.

Will we be able to have free and fair elections across the country or will these radical legislative bodies refuse to choose electors according to the popular vote in their states? We won't need false electors if the real ones don't follow the laws. I think it is quite past the time to do away with the Electoral College. But, with a divided Congress, this is unlikely to happen.

I am fearful about our future freedoms since so many elected officials no longer appear to believe in Democracy and our Constitution.

‘Til next week-Peace.