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June 24 will mark two years since the Supreme Court ended recognition of a federal constitutional right to reproductive liberty and allowed abortion to be regulated by the states. Yet the country remains deeply divided about whether to permit abortion. These divisions are among regions, among states, and within states. In the South, no state permits abortions after 12 weeks of pregnancy. In New England, along the West Coast, in a strip from Montana to New Mexico, and in the upper Midwest, abortion remains largely available. People in Miami may have to travel over 1,000 miles to Chicago for care, about a 20-hour drive. Reproductive justice advocates are understandably concerned. But so are abortion opponents who seek a nationwide ban.
In the face of such deep moral disagreement within a single nation, a federalist political system—one that is designed to have some issues regulated by states rather than the federal government—has advantages. Each side gets a partial loaf: abortion remains available in some states and largely unobtainable in others. These differences reflect one long-standing justification for federalism: It enables smaller political units that differ culturally, ethnically, religiously, or ethically, to form a larger unit for common defense or other perceived benefits.
The U.S. has taken advantage of this justification for federalism, first horrifically to protect slavery, more recently to permit differences in health care practices from the right to try experimental drugs to the availability of medical aid in dying. The U.S. has benefited from other justifications for federalism, too. Federalism allows experiments within one state that can be followed if they succeed or curtailed without further damage if they fail. Experimentation with medical marijuana has proven largely successful, while experimentation with full drug decriminalization in without adequate social services has not. Government closer to the people has allowed ballot measures on state constitutional protections for abortion, legislation in favor of medical aid in dying, or acceptance of the federal offer to expand Medicaid. The availability of multiple layers of government for protecting rights has enabled states such as California and Virginia to increase protections for sensitive personal information.
These justifications rely on a further aspect of federalism in the United States: freedom of movement across internal borders. From Supreme Court decisions early in the Republic, such as the 1849 Passenger Cases prohibiting states from taxing passengers on ships arriving in their ports, freedom of movement has been an accepted part of the U.S. constitutional system.
Most importantly, freedom of movement allows residents who disagree with their state's policies to seek more favorable environments. Movement tests acceptability of a state's experiments. Idaho may be seeing this with the exodus of physicians; reportedly 22 percent of obstetricians have left the state and three hospitals have closed maternity services after the state banned all abortions except to save the patient's life or after reported rape or incest.
Freedom of movement can also enable people to benefit from the half a loaf that federalism provides. Polling data indicates that even in the most restrictive states, significant minorities of residents disagree with their state's policies. According to the Pew Research Center, 45 percent of people in Idaho and Texas and 36 percent of people in Mississippi believe that people should be able to get abortions in most or all cases. Women denied abortions in life-threatening situations are suing their states for damages in Tennessee and Texas.
Freedom of movement is not an ideal solution. Women experiencing emergencies may not have time to seek care elsewhere. Movement may be impractical for people who lack resources, need childcare, or face abuse. Minors, people with disabilities, or people who lack documentation may find travel out of the question. But for others travel out of state may be the only option.
But freedom of movement remains an advantage of federalism in a deeply divided nation. And it, too, is under threat. Idaho criminalizes "abortion trafficking"—helping a minor leave the state for an abortion without parental permission. Some Texas jurisdictions already ban travel on state roads to help people leave the state for abortions.
Another threat to movement was recently avoided—threats to medical records about out-of-state care. In late 2023, the Texas attorney general sent a civil demand to Seattle Children's Hospital for medical records of any Texas resident minor receiving gender affirming care, claiming possible violations of Texas consumer protection law. Seattle Children's, protected under the state's law shielding care given legally, sued in Texas to prevent enforcement of the demand. In April, the parties settled on the condition that Seattle Children's withdraw its business registration in Texas. This settlement is not precedent; similar conflicts between states seeking records and states shielding them are likely. And it came at a practical price for business crossing state lines.
Laws like these are unacceptable. A federal republic that allows states to enact differing laws on deeply contested moral issues must also allow people within those states to travel to states with policies they prefer. If you can travel across state lines to buy and set off fireworks, try marijuana, or gamble, you should also have a recognized right to travel across state lines to get the health care you need. Federalism has the advantage that states may agree to disagree, but this advantage will be lost if states can impose their will on what their residents do elsewhere.
Leslie P. Francis and John G. Francis are the authors of States of Health: The Ethics and Consequences of Policy Variation in a Federal System (Oxford University Press, May 2024). They are both professors at the University of Utah.
The views expressed in this article are the writers' own.
