Gilead in Texas
It is a violation of my natural external freedom not to be able to go where I please, and to experience other restrictions of this kind. . . . Even though the body and life are something external, just like property, nevertheless my personality is wounded by such experiences, because my most immediate identity rests in my body. (Georg Hegel)
I have frequently mentioned the 14th Amendment. It was enacted post Civil War, in part to redress the racial inequities before, during, and after the Civil War. Most notably, it contains the “equal protection” clause. It was that clause that Chief Justice John Roberts used to squash race-based admissions to colleges (see here).
Section 1 of the 14th Amendment reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
From this Section of the 14th Amendment, we have taken the principle or doctrine of a “right to travel.” According to the Cornell Law School, this doctrine has three components.
1) A citizen has the right to travel freely across state lines. This right has been taken as a given for a long time — even though the textual basis for it is not clear. And we know what the current SCOTUS thinks of those situations.
2) A citizen who visits another state has the “Privileges and Immunities” of the state they are visiting. As a US citizen, that person is afforded the full rights upon entering a new state. The question is, do they then lose rights that they may have had in their home state?
3) (And least applicable here). A citizen who moves to a new state establishes the same rights as those who already live there. Some states have “durational residency” requirements, which means that one must live in that state for a period of time before acquires the full rights and protections. But again, that might entail a loss of rights.
As you can see above, the second sentence of Section 1 of the 14th Amendment states that a state cannot “make or enforce” a law that impinges upon “privileges and immunities” of any citizen.
How does that apply to what’s happening in Texas?
Although not an entirely novel idea, jurisdictions in Texas have begun enacting laws that make it a crime to travel along the municipal, county, and state roads in order to obtain an abortion. So, they have not made a law that says a citizen cannot obtain an abortion in a neighboring state. They know that they cannot limit what a citizen does in another state. Instead, they have said that it is a crime to travel along publicly funded roads in order to obtain an abortion in another state.
They call it “abortion trafficking.”
Under the “right of travel,” I can drive from New York to Florida, passing through several states, to vacation in the Keys. While there, I have the rights and privileges of a resident of the state of Florida — up to a certain point. I cannot vote, for example. That requires a period of time to establish residency. Travel for vacations is legit, and states do not regulate or impinge upon my right to travel to another state to take a vacation. Perhaps my state would prefer I not go to Florida. Perhaps it would prefer that I spend my dollars in New York instead of Florida, but it does not limit me. New York might even have a “compelling reason” (a concept often at the heart of the constitutionality of a law) to keep my money within the state, but it does not.
More to the point, I cannot buy and deploy fireworks in New York — though my neighbors don’t seem to adhere to that around the 4th of July. The state of Pennsylvania, however, does allow the sale and deployment of fireworks. I see the fireworks stores at the first exit when I enter PA. So, fireworks are illegal in NY and legal in PA. Right now, I cannot purchase fireworks in PA and bring them back home and set them off (despite my neighbors). I would be violating NY state law. I probably cannot even purchase them in PA. Here’s another one of those limitations on crossing state lines. The store in PA is supposed to check my driver’s license. Seeing a NYS license, the employee is not supposed to sell the fireworks to me. I do not have that right. And I would knowingly be breaking the law. Despite all of that, NYS does not limit my right to drive to PA. It DOES prevent me from obtaining legal fireworks in another state and using them illegally in my own state. But the travel is not limited.
On the other hand, I can drive to PA and deploy fireworks. Maybe my cousin who lives in PA has purchased some. I can drive to her house, and I can set off those fireworks. I can then return to NY. NY will not limit my ability to do so. NY will not criminalize my partaking in fireworks, even though it is illegal in NY. I have engaged in an activity that is legal in PA. I can then return to NY unimpeded and unencumbered.
This latter situation is analogous to obtaining an abortion in a neighboring state. No, I am not saying fireworks and abortions are the same thing. However, in the face of the law, they are analogous situations. In both cases, the good or service is illegal in my home state (an abortion in Texas, fireworks in NY). In both cases the good or service is legal in a neighboring state. In both cases, I can drive to the neighboring state, avail myself of the good or service, and return home without penalty.
That is NOT the stance being taken in Texas. As many as 51 jurisdictions have now proposed and/or passed a law that criminalizes driving on public roads for the purpose of leaving the state to obtain an abortion. According to KXAN, Cochran, Mitchell, Lubbock, and Goliad counties, for example have passed travel bans. According to KSAT, towns and cities, including Odessa, Amarillo, and Little-River Academy have also passed bans.
The overreach is staggering. The limitation is unimaginable. The loss of rights is unprecedented. And, yet, here we are. We see a group of politicians and officials who are chipping away at personal and legal freedoms. As Hegel says, it is a violation of a personal sense of self not to be able to travel freely. Our legal system has long recognized the right of citizens to travel freely.
We have legitimate limitations. We have many crimes. I cannot just grab someone’s sandwich from their plate as I walk by. I cannot just take my neighbor’s electric lawnmower (however, much I want it). We cannot go to a store and rob it. However, the robbery is the crime. Driving along the road to get to the restaurant or store is not a crime.
After Donald Trump announced his candidacy for the presidency in 2015, two old books skyrocketed to the top of sales charts: Brave New World (1932) and The Handmaid’s Tale (1985). Both feature dystopian worlds in which the rights of citizens, and specifically women in the latter case, are curtailed. In Handmaid’s, women are strictly controlled by a theocracy. The officials (mis)use Biblical passages to justify their treatment of women. They use religion to limit women’s freedoms, including their right to travel freely. They can only travel if accompanied by an appropriate male figure, and even then, those movements are restricted. They are limited in what they can learn and what they can read. They are compelled to give birth.
Sounds familiar, does it not? It sounds like the fictional world of The Handmaid’s Tale. It sounds like the real-life world of Afghanistan under Taliban rule. It sounds exactly like what is happening in Texas. All of it.
These travel bans may not be enforceable. They may not be constitutional. However, if they are appealed and get sent up to the Supreme Court, who knows?
The thing that should worry us, however, is the inclination, the impetus to impinge upon our long-established rights. They may or may not succeed in this particular case, but the fact of the matter is is that they are ready and willing to take away our legal rights for their personal aims.
Gilead is not that far away.
Ritch Calvin is an Associate Professor of Women’s, Gender, and Sexuality Studies at SUNY Stony Brook. He is the author of Queering SF: Readings, Feminist Epistemology and Feminist Science Fiction (Palgrave McMillan) and edited a collection of essays on Gilmore Girls (McFarland). His most recent book is Queering SF: Readings (Aqueduct Press).
