"inJohn Roberts' America....."

Sanford Levinson SLevinson at law.utexas.edu
Fri Jul 22 07:46:24 PDT 2005

Assume that Roe is overruled (with the presumed support of Roberts).  Given that I support the overruling of Roe for crass political reasons, I am not disturbed by the possibility that Roberts would overrule it.  My genuine (i.e., non-rhetorical) question is the following:
Assuming that Roe is overruled, which would presumably allow a state to criminalize abortion, could the same state criminalize one of its citizens travelling to another state to get an abortion?  My immediate response is no, that that would be protected by the "right to travel."  But, of course, the US claims the right to criminalize US citizens travelling to Thailand to engage in sex with children, and there is universal jurisdiction to try pirates and torturers.  And what if Congress "authorized" states to engage in such extra-territorial jurisdiction?  
Another possibility, of course, is that Congress would criminalize abortion because, after all, it is part of the economy and, surely, the medical instruments have travelled in interstate commerce.  If Roe is overruled, would anyone, liberal or conservative, doubt Congress's power to do that under current doctrine?  (For what it is worth, I am altogether confident that no such legislation could get through Congress, unlike the extraterritorial bills mentioned above, which simply have to get through a state legislature.)
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