Interstate Preemption: The Right to Travel, the Right to Life, and the Right to Die
State laws differ, and they differ on issues of tremendous importance to the ways that we conduct our lives. Abortion and the right to die are two issues on which state law intersects with deeply held moral convictions, and on which state laws vary. With so much hanging in the balance, it is not surprising that those who find themselves outvoted or outmaneuvered in local political processes sometimes seek a legal climate more compatible with their beliefs about human decency and dignity. The right to “vote with one’s feet” – to travel or move to another state and trade a law one finds repugnant for a better one is defined and circumscribed by the constitutional limitations peculiar to the conflict of laws.
This article argues that, although the answer may depend upon the precise contours of state regulation, at least in the abortion and right to die cases states typically cannot regulate their citizens’ conduct in this way. States do possess the power to regulate their citizens’ conduct in other states in the usual case. I will argue, however, that abortion (and, analogously, the right to die) is not “the usual case.” Most states that choose not to prohibit abortion to the extent constitutionally permissible are not merely expressing a simple lack of interest in the abortion issue. They are, instead, affirmatively granting to those within their borders the freedom to make the choice whether to have an abortion.