“But Whoever Treasures Freedom…”: The Right to Travel and Extraterritorial Abortions

In a prior article, I addressed the problem of extraterritorial abortions under the assumption that the federal constitutional right of reproductive choice would be repudiated by the Supreme Court on Justice Scalia’s theory that such rights lack sufficiently deep roots in the history and traditions surrounding the framing of the Constitution and the Fourteenth Amendment. I argued there that a constitutional methodology that relied on traditions and expectations of the Framers would provide a strong basis for concluding that the Constitution imposes severe limits on states’ power to project their moralities extraterritorially. If Justice Scalia is serious about a regard for history and tradition, a right of American citizens to travel to more hospitable moral climates in other states is at least as solidly rooted as the power of states to prohibit abortions. The Framers both of the Constitution and of the Fourteenth Amendment wove into the fabric of the Constitution the presumption that states’ regulatory authority ended at their own boundaries.

As it turns out, Justice Scalia did not prevail in Casey, and one cannot simply turn his methodology to the question of extraterritorial prosecutions. The conclusion that we should avoid such prosecutions is not, however, limited to a historically bound, originalist constitutional approach.

In this article, I undertake to examine the question further from a normative perspective. Assuming that courts do, or should, incorporate contemporary political insights into the legal structure, is the traditional presumption against extraterritorial prosecution in this context one that should, as a matter of political theory or practice, claim allegiance? I argue that, at least where American citizens seek to take advantage of locally legal abortion options in sister states, the home state should not be permitted to enforce its conflicting criminal statutes extraterritorially. My argument has two parts. First, I argue that concerns of constitutional structure support a territorial conception of state regulatory authority over state citizens’ activities in sister states. Second, I maintain that the “duty of allegiance,” which is sometimes thought to support such regulation, lacks support from the theories that generally underpin an obligation to obey the law.