2016 Articles

The Laws of Others: Mandating “Rights Through Travel” Between Discrimination, Moral Hazard, and Irrationality

Ergas, Yasmine

Abortion travel can constitute a locus of collective action as well as an individual response to restrictive laws and practices. Women cross borders to access services where they are legal, or less expensive, or come with other advantages such as increased privacy or medical guarantees. But today, “abortion travel” may also allow states to elide their obligations. Ensuring “rights through travel” can enable states to enforce regulations within their own territory that would not pass constitutional or political muster if there were not another state willing to provide the services they are themselves intent on denying. Recently, for instance, Texas argued that the existence of a clinic in New Mexico that would practice abortions meant that the restrictions it intended to place on providers within its own borders did not unduly burden women seeking to end their pregnancies.3 The United States Supreme Court rejected Texas’ arguments (inter alia, focusing on the distance women would have to travel to obtain legal abortions), but in the jurisprudence of the Council of Europe’s European Court of Human Rights (“ECtHR”), allowing states to rely on the “laws of others” may constitute a new paradigm for balancing contracting states’ latitude in interpreting their obligations against individuals’ rights. The Court has applied this paradigm with respect to abortion, as this contribution discusses, but it has also done so in other contexts—for instance, with respect to assisted reproductive technologies.4