Linda Hirshman has an excellent piece at the Washington Post examining the question of how far states will be able to take their "states' rights" if Roe v. Wade were to be overturned. In particular, she looks at the issue of whether or not states where abortion would be criminalized would be able to prosecute women who travel to states where the procedure is legal to obtain an abortion.
If John McCain wins the election, we are but a few years, at most, from witnessing the overturn of Roe. It looks clear that at least one, if not two, spots will be opening up on the highest court in the land, and McCain has repeatedly indicated that he will appoint judges like Roberts and Alito. The overturn of Roe v. Wade is a real possibility at this point. So what would happen if Roe was tossed out?
Well, abortion wouldn't automatically become illegal throughout the land. Rather, the issue of the legality of abortion would be left to the states. There are a number of states where abortion would become illegal following the demise of Roe. And just as was the case before abortion rights were nationally recognized, women living in states criminalizing abortion would travel to states without criminal abortion laws to obtain the procedure. "Okay," you might think, "not such a big deal. Women can still get abortions, they just have to travel a bit." A woman living in Missouri - a state which will likely criminalize abortion nanoseconds after Roe is overturned - would just have to travel across the border into Illinois to get the procedure done. No problem (as long as you can manage to get the money together to make the trip). Missouri couldn't do anything to stop her or penalize her for doing something in another state, right?
Well, apparently it's not that simple. It seems silly to think that an individual could be prosecuted in his or her home state for doing something in another state which is perfectly legal in that state. To me, that sounds like saying that the US government can charge you for possession of marijuana because you bought and smoked some in a cafe in Amsterdam. But it looks as though there are some precendents in favor of allowing states to do just that. According to Hirshman,
Under the American constitutional system, a state does have some authority to regulate its citizens' conduct even when they aren't on its territory. The Tenth Amendment and numerous Supreme Court rulings have recognized the broad reach of state sovereignty. In 1792, the Supreme Court approved Virginia's prosecution of a Virginian for stealing a horse from another Virginian, even though the dastardly deed took place entirely in the District of Columbia...
...In some indirect -- but ominous -- cases, the Supreme Court has shown itself to be open to the idea that a state has an interest in its citizens' behavior wherever it occurs. In 1985, the court allowed Alabama to prosecute an Alabama defendant for his wife's murder, even though he had already been tried and convicted in Georgia, where the actual murder occurred. In 1993, the court recognized the interest of a state that forbids gambling in upholding a federal law prohibiting broadcasters from tempting its citizens with advertisements for out-of-state lotteries.
So it looks like a state with an abortion ban might have some Constitutional backing if it decided to bar women from leaving to obtain abortions or prosecute after the fact. And we shouldn't forget that if a majority of five neo-con justices were to include in their reversal of Roe a declaration that the fetus is a person, states might then have the power to prevent women from leaving their boundaries by claiming that such action is necessary to protect the fetus. If the state can take custody of a child for its protection, and the fetus has all the same rights as a child, then the state might argue that it has custody over the fetus, and bar the woman from taking the fetus outside the state. (This, of course, ignores the whole issue of bodily autonomy. But the anti-choice side of this debate never actually addresses that issue anyway)
Thankfully, it looks like there is some Constitutional support for the conclusion that states cannot prosecute women for deeds in other states:
There are, of course, limits to what states can do to stop out-of-state abortions. They have to comply with the restrictions of the federal Constitution, such as the clause saying that no state may deprive any person of life, liberty or property without due process of law. Courts apply this due-process clause to prohibit states from taking "arbitrary" actions. A state's decision to prosecute a woman for an abortion that it holds to be illegal but that was legal where she got it could be seen as arbitrary -- meddling in behavior that's none of its business -- unless that state shows that it has a legitimate interest in the out-of-state act.
Unfortunately, it looks like we've already suggested a way in which a state with an abortion ban might argue that it has a legitimate interest in the out-of-state act - if a SCOTUS ruling contains a declaration that a fetus is a person, then the woman's home state could claim that it has a legitimate interest in protecting the fetus.
In fact, it might not even be necessary for SCOTUS to make the declaration. If the state itself has amended its Constitution to confer the status of personhood on the fetus (as was attempted in Colorado recently), then that just might give the state enough of a ground to claim legitimate interest in the out of state act.
Hirshman looks at this issue from a number of angles in her article, but I think the article leaves out two critical facets of this issue that should be examined. First, while she is keenly aware of the fact that this issue boils down to a question of states' rights, her article fails to bring into the discussion the fact that conservative justices are often staunch supporters of states' rights. Prima facie, this would lead one to conclude that they will be more likely to rule in favor of the states that are attempting to assert their "rights" - that is, the states that wish to prosecute their citizens for obtaining an abortion in a state where it is legal. That should trouble those who are concerned with protecting the right of women to terminate a pregnancy.
Second, I think it important to keep in mind the highly emotional nature, for many, of the abortion issue. Justices are human; they have deepseated convictions and dearly held beliefs just like anyone else. I do not find it improbable that a number of the Justices on the court who oppose abortion rights will select a ruling that matches their dearly held beliefs and then find a legal justification for it, rather than following legal justifications to the ruling. It very well might be that for such Justices, the relevant states' rights case law will take a back seat to preventing women from obtaining abortions.
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