The Supreme Court is back in session for the 2025-2026 term, but many people are still dealing with the fallout from previous rulings — namely dozens of vague abortion restrictions introduced after the justices struck down the law. Roe v. Wade in 2022. These laws contain confusing dictates for doctors and patients that make them dangerous and even deadly.
In states with outright bans, pregnant people seeking abortions are forced to travel elsewhere or get pills in the mail from doctors in states where protect laws protect providers against criminal and civil prosecution.
Meanwhile, anti-abortion states like Texas and… Louisiana try to that criminalize doctors – and their patients. For advocates seeking to challenge such laws, the current right-wing judiciary presents a challenging legal landscape.
But there is hope. I’m a legal historian and I think I’ve found a promising argument in an unlikely place: Dobbs vs. Jackson– the same 2022 Supreme Court case that ended federal abortion protections in the US
Traveling for an abortion? Kavanaugh could say yes
The legal landscape surrounding out-of-state abortion care is messy.
In addition to attacks on shield laws, Louisiana and at least three other states have filed suit to ban the shipment of abortion drugs. Idaho has a “abortion traffickinglaw that prohibits helping a minor travel across state lines for an abortion. Texans cannot drive through some parts of their state on their way to get an out-of-state abortion.
The guidance I found Dobbs comes not from any of the liberal justices’ dissents, but from Justice Brett Kavanaugh’s unanimous opinion. Kavanaugh has chosen to write his own opinion, in which he makes a very clear argument for preserving the constitutional right to travel between states.
“[M]Can a state prohibit a resident of that state from traveling to another state to have an abortion?” Kavanaugh asked. “In my opinion, the answer is no, based on the constitutional right to interstate travel.”
I suspect many readers roll their eyes at the thought of taking a conservative right at his word. Clarence Thomas has questioned the very idea of trust precedentand the Court’s handling of the Trump administration’s cases has drawn criticism federal judges.
But under the circumstances, I think it’s foolish to exclude any legal argument from the pro-choice arsenal, and Kavanaugh has offered one.
This is my thought:
Legally speaking, abortion care is already being considered trade because it concerns payment for services provided. It becomes interstate commerce when doctors prescribe abortion pills across state lines or when people travel to another state for abortion care.
As such, travel for abortion care falls quite clearly under the umbrella of interstate travel protections. In theory, lawyers seeking to protect access to abortion across state lines could challenge travel bans and prosecutions of doctors from foreign countries based on the right to travel between states. And they could use Kavanaugh’s words to make their case.
Kavanaugh has indicated that he considers interstate travel a fundamental right under the Constitution. Although this right is not explicitly described in the document, many cases support this view.
A general right to travel was first recognized in 1849 when a group of cases became known The passenger suitcases found that state laws requiring taxes for entry were unconstitutional. In 1920 the Supreme Court ruled United States vs. Wheeler that citizens have “the fundamental right … to move from place to place at will” and deemed any state law restricting interstate travel – for their residents or anyone else – to be discriminatory.
United States v. Guest reaffirmed the constitutional right to interstate travel in 1966 and three years later the Supreme Court has declared it a “fundamental” rightThis means that any attempt to curb this will require a higher level of legal oversight.
Legally speaking, there is a precedent. If we are considering challenging a restrictive abortion law, then the question facing judges would be: Does this law discriminate against interstate commerce? If so, it is clearly invalid.
If they find that an anti-abortion law is not discriminatory under the Commerce Clause, courts will review it against another precedent set by Pike v. Bruce Church, Inc. in 1970: This law imposes a burden on interstate commerce that is “manifestly excessive” compared to local benefits? If so, that law would be invalid.
This is the kind of case that could reach the Supreme Court.
How the judges could vote
In addition to Kavanaugh’s agreement in Dobbshis dissent in another recent case, National Pork Producers Council v. Rossexpresses concern about the protection of interstate commerce.
National pork producersfrom 2023, is a confusing decision; it consists of seven different written opinions. But the conclusion is a 5-4 ruling that a California law banning the sale of pork raised in inhumane conditions does not violate the interstate commerce clauseand could therefore remain standing.
Kavanaugh and three other justices – Chief Justice John Roberts, Samuel Alito and Ketanji Brown Jackson –dissenting opinionwith varying reasons for doing so.
What does all this have to do with the right to abortion?
The connection is here: Roberts argued that California’s law regulating the sale of pork placed a significant burden on interstate commerce because it required a change in the way pigs were raised to be sold as pork.
Kavanaugh himself added disagreement that California’s law “essentially attempted to unilaterally impose its moral and policy preferences for hog farming and pork production on the rest of the nation.”
Kavanaugh then points out that the imposition of moral preferences may not stop at the sale of pork, but extend to abortion concerns: What, Kavanaugh asks, if a “state law ‘prohibits the retail sale of goods from producers who do not pay for employees’ birth control or abortions’ (or alternatively, who do pay for employees’ birth control or abortions)?”
Many pro-choice scholars have argued that the pork decision will save the day more difficult to protect access to abortion across state lines. They worry that this suggests that the dormant Commerce Clause does not place many restrictions on morality-based state laws.
For example, if Missouri were to not only ban abortion but also ban traveling to neighboring Illinois to get an abortion, anti-abortion advocates might argue that interstate travel and commerce are not involved because National pork Producers found no problem in this case with imposing morality-based policies. And of course, the US no longer has a national right to abortion.
I have another takeaway.
This case was not decided along partisan lines. The majority in the California pork case consisted of two liberal justices and three conservatives; the dissenters were also ideologically mixed.
Should a case challenging state laws banning access to abortion across state lines reach the Supreme Court, it is possible that some conservative justices will rule in favor of the petitioners.
Alito would almost certainly switch sides to uphold a state law restricting abortion, even if that law would also tax interstate commerce. But I think Kavanaugh might stay the course on these specific grounds. The Chief Justice also seems impressionable, based on his unanimous opinion Dobbs and dissenting opinions National pork producers.
Roberts joined the majority Dobbs in upholding Mississippi’s 15-week abortion ban, but claimed in his concurring opinion that he only met the “viability standard” of Roe v. Wade– don’t throw away all abortion protections. Practically speaking, that would just be a less extreme version of falling over Roo.
Yet his nod to judicial restraint is in Dobbs is remarkable. That, combined with Roberts’ dissent National pork producers– on the basis of not taxing interstate commerce – suggests that there is an opening to protect access to abortion across state lines on those grounds at the Supreme Court.
All three of the Court’s liberal justices can most likely be counted on to vote to at least protect access to abortion. I believe this is even true of Kagan and Sotomayor, who sided with conservatives on interstate commerce. National pork producers. If abortion is central, that applies to both consistently chosen to protect abortion rights.
Three plus Kavanaugh and Roberts makes five — enough to win a Supreme Court case protecting abortion on the grounds of interstate travel and commerce.
Such a ruling would not overturn abortion bans at the state level. But it could ensure that residents of those states still have access to legal abortion care elsewhere.
A history book as a script
Other scholars do less certain of the weight of Kavanaugh’s endorsement in Dobbsand of the general utility of relying on interstate commerce and travel protections to end abortion protections.
But this wouldn’t be the first time a concurring opinion has been used as a precedent or necessary to clarify some aspect of a majority opinion.
In 1927 the Supreme Court upheld the conviction of Anita Whitney for her speech that posed a “clear and present danger.” Whitney had given a fundraising speech for the California Labor Party, and the state viewed this as an incitement to violent communism. Justice Louis Brandeis agreed with the majority, but had reservations about the implications for restricting free speech.
In his concurrence, Brandeis argued that “the remedy to be applied is more speech, and not enforced silence.” His argument calling for a higher standard for restricting speech was largely accepted Brandenburg vs. Ohio in 1969.
Around the same time, in Katz v. United Statesthe Supreme Court ruled that warrantless FBI recordings of public telephone conversations were inadmissible as evidence. However, John Marshall Harlan II’s concurring opinion created the standard of “reasonable expectation of privacy” that is now regularly used in determining whether evidence is admissible under the Fourth Amendment.
History shows that concurrent opinions can be used to limit or clarify the opinion of the Court’s majority. So why not use Kavanaugh’s own argument to protect abortion access?
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