Constitutional Law Blog Essay

Prison Gates at the State Line

A spate of illiberal legislation has recently emerged in state legislatures. A dangerous form of law with a dark past lurks among the troubling proposals: the criminalization of movement. In Missouri and Idaho, legislators have proposed draconian laws that would burden or criminalize residents who leave the state for purposes the state deems immoral. These proposals are incongruous to a fundamental, associative right to travel that is embedded in the American constitutional tradition.

Idaho lawmakers are pushing legislation to ban gender-affirming healthcare for transgender children as a form of “genital mutilation.” Not content to deny mainstream standards of care for gender non-conforming youth within Idaho, legislators have also included a clause criminalizing anyone who “removes or causes, permits, or facilitates the removal of a child” from Idaho to obtain gender-affirming care that would be illegal within the state. An Idaho parent of a transgender child would face an impossible choice: leave Idaho permanently or secure medical care across state lines and return home a felon.

A Missouri proposal would target those who leave the state to seek abortions indirectly, making out-of-state abortion providers and anyone who helps Missouri women travel to obtain abortions liable if the procedure would have been unlawful in Missouri. Already, Missouri only has a single abortion clinic, so many women seek care in neighboring Kansas or Illinois. The Missouri proposal, introduced as an amendment to pending legislation, would empower private parties to sue individuals directly (an approach modeled after Texas’s S.B. 8). Notably, though, the proposed law would not create a private right of action for “conduct taken by a pregnant woman who aborts or seeks to abort her unborn child.” The proposal has been widely criticized. But even if the private-suit enforcement model is struck down, the targeting of out-of-state conduct could represent a dangerous new trend. And while this type of legislative handiwork has so far only appeared in Missouri and Idaho, it is likely that attempts to criminalize travel will metastasize.

There is an invidious history behind states restricting mobility as a form of social control.  Antebellum Illinois, for example, restricted the freedom of movement for Black Americans, imposing requirements on Black migrants and criminalizing the transportation of enslaved persons into Illinois to free them from bondage. But even in more modern history, states have worked perniciously to prohibit associative travel. Loving v. Virginia held that states could not prohibit interracial marriage under the Fourteenth Amendment.  The Court didn’t need to go beyond an equal protection analysis or a due process analysis to answer the constitutional question, but Loving also implicated the right to travel. After all, when Richard and Mildred Loving were convicted for violating Virginia’s anti-miscegenation statute, they were specifically charged under a provision that forbade leaving the commonwealth to evade the prohibition of interracial marriages by getting married elsewhere.

Was the Lovings’s decision to go to Washington, D.C. and return home to Caroline County, Virginia also constitutionally protected, in addition to their basic freedom to marry? As a reflexive matter, many would conclude the answer is “yes.” However, because the intrastate marriage prohibition itself was struck down, the Court didn’t need to reach that question. Consequently, the doctrine regarding the right to interstate travel and the power of a state to regulate out-of-state resident conduct remains a more open question and a subject of earnest debate. Particularly in anticipation of the Supreme Court unraveling abortion rights, scholars continue to grapple with the meaning of the freedom of movement and contemplate its constitutional footing. For example, Professor Seth Kreimer argues that, consistent with federalism principles, individuals should enjoy a robust right to leave their home jurisdictions because the “moral sovereignty of each state ends at its borders.” Conversely, Professor Mark Rosen offers a more muscular understanding of state power, proffering  that “states have significant powers to regulate their citizens’ out-of-state activities for the purpose of ensuring the efficacy of constitutional state policies.” 

The Supreme Court noted in 1966 that the “freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.” Notwithstanding the freedom of movement’s long-standing historical recognition, as Justice Brennan observed, “[t]he textual source of the constitutional right to travel . . . has proved elusive.” Supreme Court opinions have pegged the right of interstate travel to various constitutional provisions, including the Commerce Clause, the Privileges and Immunities Clause of Article IV, and the Privileges or Immunities Clause of the Fourteenth Amendment. Members of the Court have also unearthed the right to travel through observations that it is inherent in the Constitution’s structural design and necessary for citizens to participate in national governance.

Whatever its constitutional hook, the Supreme Court articulated in Saenz v. Roe that at the heart of the right to travel lies “at least three different components.” These components include “the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.”

The Court’s framing of the right to travel in Saenz is focused on states creating legal impediments aimed to fence people out of their jurisdictions. That stands in contrast to what legislators want to achieve in Missouri and Idaho: creating a legal regime with chilling effects to fence residents in. And the Saenz Court’s treatment of the right to travel is primarily concerned with the individuals who move between states, not the third parties who assist them in their legitimate travels.

Should legislation of this ilk become law in states across the country, federal courts must explicitly recognize what has long been true, but perhaps buried, in many discussions on the right to travel. First, there is a presumptive right to travel for the benefit of securing lawful goods and services permitted in other states without criminalizing a right to return home. This is already contemplated by the first component of the right to travel articulated in Saenz. Second, and most critically, there is an associative component to the right to travel that is part of national citizenship.

The landmark 1941 Supreme Court decision, Edwards v. California, captures the associative right to movement’s essence. The Edwards decision overturned Fred Edwards’s conviction under California’s anti-Okie law, which barred persons from bringing “any indigent person who is not a resident” to California. Edwards was prosecuted after leaving his home in California to bring his brother-in-law from Texas back to California. When Edwards arrived in Texas, he discovered that his brother-in-law, Frank Duncan, had a mere $20 to his name. Nevertheless, Edwards brought Duncan back to California. By the time they arrived, Duncan had spent the $20 and was unemployed for ten days until he obtained financial assistance from the Farm Security Administration.

The Supreme Court struck down the California statute as an unconstitutional burden on interstate commerce. Like other cases where the Court struck down unwelcoming laws, the Edwards freedom of movement principle rejected state economic protectionism. A perhaps understated element of Edwards was that the Court’s rhetoric spoke more to Frank Duncan’s plight and the constraining of movement vis-a-vis the criminalization of poverty. At the same time, it also characterized Edwards’ actions as a form of commerce. Justice Jackson, uneasy with the Court’s treatment of the claim, authored a concurrence, writing:

“But the migrations of a human being, of whom it is charged that he possesses nothing that can be sold and has no wherewithal to buy, do not fit easily into my notions as to what is commerce. To hold that the measure of his rights is the commerce clause is likely to result eventually either in distorting the commercial law or in denaturing human rights.”

Justice Jackson spoke to the heart of the problem with defining the situation in Edwards as commerce. The majority opinion did not adequately capture the indignity of California’s law on individuals suffering from poverty, nor did it sufficiently describe the nature of Edwards’s humanitarian actions. Indeed, what the Court protected in Edwards—even without explicitly stating—was an associative freedom to move across state lines that is part and parcel of the very meaning of national citizenship. That value is directly implicated by what legislators are proposing in Missouri and Idaho: they aspire to have the state enforce a social stigma by chilling interstate associations through measures that deter assisting others who want to travel.

Criminalizing travel smacks of authoritarianism and harkens back to a darker time in American history to which we should not wish to return. Lawmakers cannot throw roadblocks in the way of their residents who want nothing more than to take advantage of the benefits of national citizenship with the aid of other citizens. Just as the right to travel and associate protected Fred Edwards and Frank Duncan, and surely must have protected Richard and Mildred Loving, so too must an associative right to travel protect the private decision-making of individuals today— and especially in circumstances that involve sensitive choices about a person’s bodily autonomy. The Constitution does not permit states to make prisoners of citizens within its boundaries and regulate who can help at their gates.