It is not unusual for Colorado governors to issue executive orders. Traditionally, executive orders are used by governors to direct and manage state government, specifically its administrative and executive functions. To date, in 2022, Gov. Jared Polis has issued 36 executive orders. These orders directed state action regarding broadband deployment, wildland fires, and COVID-19. The typical executive order is mundane and non-controversial.
Polis’ July 6 executive order is extraordinary because not only does it depart from form, but for its scope and purpose.
This executive order was drafted as a direct response to the United States Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which reversed Roe v. Wade. Polis’ order may have been the first time, in recent history, a sitting Colorado governor has issued an executive order in opposition to a United States Supreme Court decision.
The July 6 executive order’s explicit purpose is to prohibit state agencies from cooperating “with criminal or civil investigations for actions that are fully legal in our state.” In other words, the authority of the state will not assist with any attempts by any other state to limit a woman’s ability to receive abortion services.
For some, this executive order may seem purely symbolic, and its provisions unlikely ever to be needed. To take this position is naïve and ignores the political and legal realities of the post-Roe world.
In this post-Roe world, not only are reproductive health rights at risk, but also the overall right to be secure in our persons, as evidenced by the rights to travel, privacy, assembly, and association.
In his concurring decision in Dobbs, Justice Clarence Thomas unashamedly argued the Supreme Court should revisit its previous decisions extending constitutional protections to same-sex relationships, same-sex marriage, and access to contraceptive services.
Some conservative legal scholars and politicians have questioned whether interracial marriages should continue to be afforded constitutional protections. However, in the short term, the constitutionally guaranteed right to travel is under the most pressure.
Prior to the Dobbs decision, state lawmakers throughout the United States were feverishly exploring avenues to restrict a woman’s ability to cross state lines to receive abortion services. In 2021, Missouri state Rep. Mary Elizabeth Coleman, a Republican, proposed legislation to allow private citizens to sue anyone who performs or assist with an abortion, even if the abortion occurs out of state. The National Association of Christian Lawmakers, an anti-abortion group, is drafting model legislation to restrict women from crossing state lines to obtain an abortion. Both proposals and their progeny are a direct affront to our constitutional norms.
In Saenz v. Roe, the United States Supreme Court wrote the right to travel “is firmly embedded in our jurisprudence…the right is so important that it is ‘assertable against private interference as well as governmental action…a virtually unconditional personal right, guaranteed by the Constitution to us all.’”
In 1964, Justice William O. Douglas wrote in his concurring opinion in Aptheker v. Secretary of State, perhaps, the most full-throated defense of the right to travel ever drafted:
“This freedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it often makes all other rights meaningful-knowing, studying, arguing, exploring, conversing, observing and even thinking. Once the right to travel is curtailed, all other rights suffer, just as when curfew or home detention is placed on a person.”
Sadly, this nation has a long history of restricting the travel and movement of its citizens for misogynistic and racist reasons.
Enslaved persons were prohibited from moving freely and assembling in groups. After slavery was abolished and the Reconstruction period ended, many of these same laws were reestablished through the enactment of Jim Crow laws.
In parts of the southwest United States, Mexican Americans suffered under the harsh brutality of laws designed to mimic Jim Crow laws. Asian Americans have endured similar wrongs in this nation. In 1848 at Seneca Falls, New York, Elizabeth Cady Staton and the other women who gathered with her produced the Declaration of Sentiments, which conveyed in great detail how women in the United States were denied basic freedoms.
At the end of the day, proposals to restrict movement and limit travel flow from the very same historical well which produced the Slave Codes, Native American boarding schools, anti-miscegenation laws, anti-sodomy laws, and condoned marital rape.
Each of these laws and practices were and are driven by a desire to control others by restricting their movements and by extension their bodies. The Dobbs decision has emboldened authoritarians of all sorts to pursue their anti-democratic agenda. They do not fight for an America for us all, but an America of myth that never was.
Terrance Carroll is a former speaker of the Colorado House. The first and only African American to ever hold that position in Colorado. He is a Baptist preacher, attorney, and police officer. He is on Twitter @speakercarroll.
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