May 09 2024

Office of Legal Counsel recognizes the right to travel

In researching the law on the right to travel to obtain an abortion, we were pleased to notice an advisory opinion from the Office of Legal Counsel (OLC) that, although only in passing, explicitly acknowledges the right to travel.

OLC is the division of the US Department of Justice that serves as the office legal advisor to the White House and all Executive Branch agencies of the federal government. OLC publishes only a handful public advisory opinions each year, so each of them is significant.

In late 2022, the General Counsel of the US Postal Service asked OLC for advice on whether existing Federal laws (specifically the Comstock Act of 1873) should be interpreted as prohibiting the Postal Service from accepting packages containing abortion-inducing drugs.

OLC’s opinion on this issue includes the following comment, with footnote:

[Even] if a state prohibits a pregnant person from ingesting mifepristone or misoprostol for the purpose of inducing an abortion, such an individual has a constitutional right to travel to another state that has not prohibited that activity and to ingest the drugs there.

Footnote: See Dobbs, 142 S. Ct. at 2309 (Kavanaugh, J., concurring) (“[M]ay a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”); id. (referring to the question as “not especially difficult”); see also Bigelow v. Virginia, 421 U.S. 809, 824 (1975) (explaining that Virginia could not “prevent its residents from traveling to New York to obtain [abortion] services or . . . prosecute them for going there” (citing United States v. Guest, 383 U.S. 745, 757–59 (1966))).

We find this portion of the OLC opinion noteworthy for two reasons:

First, it’s been relatively rare in recent decades for the U.S. government, perhaps especially at the highest levels of overall Federal policy and legal thinking, to explicitly acknowledge the right to travel, much less to acknowledge that it is well established Constitutional law.

Second, the fact that this opinion was issued in this particular context highlights the truism that most people become concerned about rights only when their own rights, or those of people they identify with, are threatened. In other contexts, the same Federal administration (like its predecessors) has been vigorously defending the authority of Federal agencies to impose arbitrary extrajudicial restrictions on the right to travel.

The reality, of course, is that it could be any one of us whose rights are restricted. Human right should be a concern for each of us, whether or not we are currently being targeted. Each of us could become a target of the government, for reasons we may not be able to anticipate. The only way to effectively defend our rights is to defend everyone’s rights.

Legislators and Federal agency officials shouldn’t wait until their own rights, or the rights of those they can identify with, are threatened. But better late than never.

We are glad that OLC has, in this case, recognized the right to travel. We hope they remember to apply the same principles and act consistently in other cases.