Kavanaugh Voted To Overturn ‘Roe’—But His Words Could End Up Helping to Protect Abortion Access

The Supreme Court is back in session for its 2025-2026 term, but many people are still dealing with the fallout of its past rulings—namely, dozens of vague abortion restrictions enacted after the justices overturned Roe v. Wade in 2022. These laws contain confusing dictates to doctors and patients that make them dangerous, even deadly.

In states with complete bans, pregnant people who want abortions have been forced to travel elsewhere or get pills by mail from doctors in states where shield laws protect providers from criminal and civil prosecution.

Meanwhile, anti-abortion states like Texas and Louisiana are trying to criminalize those doctors—and their patients. For advocates hoping to challenge such laws, today’s right-leaning judiciary presents a challenging legal landscape.

But there’s hope. I’m a legal historian, and I think I’ve dug up a promising argument in an unlikely place: Dobbs v. Jackson—the very same 2022 Supreme Court case that ended federal abortion protections in the U.S.

Travel for abortion? Kavanaugh could say yes

The legal landscape around out-of-state abortion care is messy.

In addition to attacks on shield laws, Louisiana and at least three other states have sued to ban the mailing of abortion medication. Idaho has an “abortion trafficking” law that outlaws helping a minor to travel across state lines for an abortion. Texans can’t drive through some parts of their state en route to get an out-of-state abortion.

The lead I found in Dobbs comes not from one of the liberal justices’ dissents but from Justice Brett Kavanaugh’s concurring opinion. Kavanaugh chose to write an entirely separate opinion, making an argument to preserve the constitutional right to interstate travel very plainly.

“[M]ay a State bar a resident of that State from traveling to another State to obtain an abortion?” Kavanaugh asked. “In my view, the answer is no based on the constitutional right to interstate travel.”

I suspect many readers are rolling their eyes at the thought of taking a conservative justice at his word. Clarence Thomas has questioned the very idea of relying on precedent, and the Court’s handling of Trump administration cases has drawn criticism from federal judges.

But under the circumstances, I think it foolish to exclude any legal argument from the pro-choice arsenal, and Kavanaugh has offered one up.

Here’s my thinking:

Legally speaking, abortion care is already considered commerce because it involves payment for services rendered. It becomes interstate commerce when doctors prescribe abortion pills across state lines or when people travel to another state for abortion care.

As such, travel for abortion care pretty clearly fits under the umbrella of the protection of interstate travel. In theory, then, lawyers looking to protect access to abortion across state lines could challenge travel bans and prosecutions of out-of-state doctors based on the right to interstate travel. And they could use Kavanaugh’s words to bolster their case.

Kavanaugh has expressed that he sees interstate travel as a fundamental right under the Constitution. Even though this right is not explicitly outlined in the document, many cases support this view.

A general right to travel was first acknowledged in 1849 when a group of cases known as The Passenger Cases found state laws requiring taxes for entry were unconstitutional. In 1920, the Supreme Court ruled in United States v. Wheeler that citizens have “the fundamental right … to move at will from place to place” and deemed any state law limiting interstate travel—for their residents or anyone else—discriminatory.

United States v. Guest reaffirmed the constitutional right to interstate travel in 1966, and three years later the Supreme Court determined it to be a “fundamental” right, meaning any attempt to curb it requires a higher level of legal scrutiny.

Legally, the precedent is there. When considering a challenge to a restrictive abortion law, then, the question facing judges would be: Does this law discriminate against interstate commerce? If so, it’s patently invalid.

If they find that an anti-abortion law isn’t discriminatory under the commerce clause, courts will then assess it against a different precedent, set by Pike v. Bruce Church, Inc. in 1970: Does this law impose a burden on interstate commerce that is “clearly excessive” compared to the local benefits? If so, that law would be invalid.

This is the kind of case that could reach the Supreme Court.

How the justices could vote

Beyond Kavanaugh’s concurrence in Dobbs, his dissent in another recent case, National Pork Producers Council v. Ross, communicates his concern for protecting interstate commerce.

National Pork Producers, from 2023, is a confusing decision; it consists of seven distinct written opinions. But the takeaway is a 5-4 ruling that a California law barring the sale of pork raised in inhumane conditions did not violate the interstate commerce clause, and could therefore stand.

Kavanaugh and three other justices—Chief Justice John Roberts, Samuel Alito, and Ketanji Brown Jackson—dissented, with varied reasoning for doing so.

What does any of this have to do with abortion rights?

The connection comes here: Roberts argued that California’s law regulating the sale of pork created a substantial burden on interstate commerce because it required a change in how pigs were raised to be sold as pork.

Kavanaugh added in his own dissent that California’s law “has attempted, in essence, to unilaterally impose its moral and policy preferences for pig farming and pork production on the rest of the nation.”

Kavanaugh then points out that the imposition of moral preferences might not stop at pork sales but extend to abortion care: What, Kavanaugh asks, if a “state law prohibits ‘the retail sale of goods from producers that do not pay for employees’ birth control or abortions’ (or alternatively, that do pay for employees’ birth control or abortions)?”

Many pro-choice scholars have argued that the pork decision will make it harder to protect abortion access across state lines. They are concerned that it suggests the dormant commerce clause doesn’t impose many limits on morality-based state laws.

For example, if Missouri not only banned abortion but also banned traveling to neighboring Illinois to get an abortion, anti-abortion lawyers could argue that interstate travel and commerce aren’t implicated because National Pork Producers didn’t find a problem with imposing morality-based policy in this case. And, of course, the U.S. no longer has a national right to abortion.

I have a different takeaway.

This case was not decided along partisan lines. The majority in the California pork case consisted of two liberal justices and three conservatives; the dissenters were also ideologically mixed.

Should a case challenging state laws barring abortion access across state lines reach the Supreme Court, it’s possible that some of the conservative justices might rule in the petitioners’ favor.

Alito would almost surely switch sides to uphold a state law restricting abortion, even if that law also burdened interstate commerce. But I think Kavanaugh might stay the course on these particular grounds. The Chief Justice looks swayable, too, based on his concurring opinion in Dobbs and dissent in National Pork Producers.

Roberts joined the majority in Dobbs in upholding Mississippi’s 15-week abortion ban but claimed in his concurring opinion that he only wanted to throw out the “viability standard” of Roe v. Wade—not trash all abortion protections. Practically speaking, that would just be a less extreme version of overturning Roe.

Still, his nod to judicial restraint in Dobbs is noteworthy. That, combined with Roberts’ dissent in National Pork Producers—on the basis of not burdening interstate commerce—suggests that there’s an opening to protect abortion access across state lines on those grounds at the Supreme Court.

All three of the Court’s liberal justices can very likely be counted on to vote to protect abortion access in any case. I believe this is true even of Kagan and Sotomayor, who sided with the conservatives on interstate commerce in National Pork Producers. When abortion is at the center of the case, both have consistently chosen to protect abortion rights.

Three plus Kavanaugh and Roberts makes five—enough to win a Supreme Court case protecting abortion on the grounds of interstate travel and commerce.

Such a ruling wouldn’t strike down state-level abortion bans. But it might ensure that residents of those states can still access legal abortion care elsewhere.

A history book as the playbook

Other scholars are less sure of the weight of Kavanaugh’s concurrence in Dobbs, and of the general usefulness of relying on interstate commerce and travel protections to achieve an end of abortion protections.

But this wouldn’t be the first time a concurring opinion was used as precedent or was necessary to clarify some aspect of a majority opinion.

In 1927 the Supreme Court upheld Anita Whitney’s conviction for speech that presented a “clear and present danger.” Whitney had given a fundraising speech for the California Labor Party, and the state considered it an incitement to violent communism. Justice Louis Brandeis concurred with the majority, but with reservations about the implications for muzzling free speech.

In his concurrence, Brandeis argued that “the remedy to be applied is more speech, not enforced silence.” His argument calling for a higher standard for restricting speech was mostly adopted in Brandenburg v. Ohio in 1969.

Around the same time, in Katz v. United States, the Supreme Court ruled that FBI recordings of public telephone conversations were inadmissible as evidence without a warrant. However, John Marshall Harlan II’s concurring opinion created the “reasonable expectation of privacy” standard now regularly used when determining if evidence is admissible under the Fourth Amendment.

History shows that concurrent opinions can be used to either constrain or clarify the Court’s majority opinion. So why wouldn’t we use Kavanaugh’s own argument to protect abortion access?

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