constitutional-law abortion fourteenth-amendment tenth-amendment
Congressional power to protect right to travel across state lines for accessing abortion
<p>I recently posted a <a href="https://law.stackexchange.com/questions/81479/durability-of-federal-legislation-protecting-abortion-rights-in-us">question</a> concerning the likelihood that Federal statutory protection (so far only proposed) of abortion rights might be upheld by the Court in light of the recent ruling in <a href="https://en.wikipedia.org/wiki/Dobbs_v._Jackson_Women%27s_Health_Organization" rel="nofollow noreferrer">Dobbs</a>.</p>
<p>As a related matter, lawmakers in some states have suggested criminalizing the travel to other States (including other nations) for purposes of accessing abortion by individuals residing in a State having imposed a ban.</p>
<p>Does Congress have the power to limit  States'  enforcement of legislation characterizing such travel as criminal conspiracy, and is such power substantially more likely to be upheld by the Court, compared to more broad proposed legislation for guaranteeing abortion rights in all States?</p>

<blockquote>
<p>Does Congress have the power to limit States' enforcement of
legislation characterizing such travel as criminal conspiracy,</p>
</blockquote>
<p>Yes. This flows from the Article I, Section 8 power of Congress to regulate interstate commerce.</p>
<blockquote>
<p>and is such power substantially more likely to be upheld by the Court,
compared to more broad proposed legislation for guaranteeing abortion
rights in all States?</p>
</blockquote>
<p>Probably.</p>
<p>A law prohibiting states from criminalizing travel or aid to travelers is likely to be upheld (and indeed, might be the result that the courts would reach in the absence of any legislation).</p>
<p>Broad proposed legislation for guaranteeing abortion rights in all States could very well also be upheld, but it is more vulnerable to constitutional attack on the ground that it does not squarely fit within a specifically enumerated power of Congress either in Article I, Section 8, or in the enforcement clauses of several of the constitutional amendments, or in other places where Congress is expressly granted power (e.g. the Article III power granted to Congress to create inferior courts and regulate appellate jurisdiction). This is somewhat less blatantly interstate commerce, although the power to regulate interstate commerce has been held to be very, very broad (e.g. encompassing growing grain for personal consumption on your own farm that is entirely within a single state).</p>
