The Supreme Court’s decision to overturn Roe v. Wade will usher in a new era of abortion law and access.
Borders and jurisdiction will become the central focus of the abortion battle. What had been, until now, a uniform national right has become a state-by-state patchwork.
In a post-Roe country, states will attempt to impose their local abortion policies as widely as possible, even across state lines, and will battle one another over these choices;
at the same time, the federal government may intervene to thwart state attempts to control abortion law.
In other words, the interjurisdictional abortion wars are coming. This Article is the first to offer insights into this fast-approaching transformation of abortion rights, law, and access.
Though access to abortion was already scarce in many regions, for the past fifty years the Supreme Court had held steadfast to the principle that the Constitution protected the right to previability abortion everywhere in the country. The Court upended that long-standing precedent in Dobbs v. Jackson Women’s Health Organization, holding that the U.S. Constitution lacks any abortion right.
As of November 2022,
twenty-one states—mostly in the Midwest and South—have banned or tried to ban abortion in almost all circumstances. Seven state bans, however, have been stymied by courts.
The remaining states—mostly along the coasts—continue to offer legal abortion, regulated to varying degrees, with some states codifying abortion rights and expanding access.
Antiabortion jurists and advocates have long forecasted that abortion law will become simpler if Roe is overturned. This claim has been a central part of their efforts to overturn Roe and Planned Parenthood v. Casey—the case that upheld Roe ’s protection of previability abortion. According to this argument, these cases created an unworkably complex legal framework. In Casey, for instance, Justice Antonin Scalia wrote in dissent that the undue burden test for evaluating the constitutionality of previability abortion restrictions was “inherently manipulable and will prove hopelessly unworkable in practice.”
Abortion law will become simpler, the argument continues, because states will be able to craft laws without the threat of constitutional litigation.
Justice Samuel Alito adopted this argument in the Dobbs opinion, noting that Casey saddled judges with “an unwieldy and inappropriate task.”
As this Article makes clear, the opposite is true: Overturning Roe and Casey will create a complicated world of novel interjurisdictional legal conflicts over abortion. Instead of creating stability and certainty, it will lead to profound confusion because advocates on both sides of the abortion controversy will not stop at state borders in their efforts to apply their policies as broadly as possible. Antiabortion activists have made clear that overturning Roe is the first step toward their goal of making abortion illegal nationwide.
Right now, there are not enough votes in Congress nor is there a supportive White House to achieve that goal. That will leave the effort to antiabortion states who will, with Roe overturned, not only pass laws that criminalize in-state abortion but also attempt to impose civil or criminal liability on those who travel out of state for abortion care or on those who provide such care or facilitate its access.
In a post-Roe country, abortion-supportive states will seek the opposite and, in an effort to expand abortion access as broadly as possible, pass laws that protect their providers from legal sanctions after helping out-of-state residents obtain care.
The country is seeing the start of these battles. A model law authored by the National Right to Life Committee bans assisting a minor across state lines to get an abortion without parental consent, “[r]egardless of where [the] illegal abortion occurs.”
At least one “sanctuary city” in Texas has likewise included such language, banning abortion for city residents “regardless of where the abortion is or will be performed.”
Missouri has now twice considered passing a statewide law to this effect: with a 2021 bill that would have applied the state’s abortion restrictions to out-of-state abortions performed on Missouri citizens
and a 2022 bill that imposed civil liability on those helping Missouri citizens travel out of state to obtain an abortion.
From the abortion-supportive side of the ledger, a Connecticut law adopted in April 2022 became the first in the nation to offer protection for those who provide and assist in the provision of abortions to out-of-state patients, and four other states have since followed suit.
In the wake of Dobbs, twelve governors from abortion-supportive states have issued executive orders indicating they will not extradite abortion providers and limiting state employees from participating in out-of-state investigations of abortions legally occurring within those states. These examples are the first of many to come.
Roe’s demise is just one part of the story behind the seismic shift in abortion law; the other is that abortion practice has changed in ways that make borders less relevant. The rise of telehealth for medication abortion—abortion completed solely with pills—allows abortion provision to occur across state and country lines.
Virtual clinics, offering remote medication abortion through telehealth, have begun to operate in greater numbers, and brick-and-mortar clinics have expanded their practice into virtual care as well.
Early abortion care has, as a result, become more portable in the states that permit telehealth for abortion.
The portability of medication abortion will impact abortion access even in states that prohibit telehealth or ban abortion after Roe. In those jurisdictions, people
already obtain this medication through the mail, often through international physicians, pharmacies, and advocates, allowing patients to have an abortion at home in an antiabortion state.
Even for patients who travel to abortion-supportive states to obtain medication abortion legally, if they consume one or both sets of medications in the antiabortion state, it raises novel questions about where an abortion occurred. Out-of-state and out-of-country providers could be guilty of state crimes if they knowingly send pills into antiabortion states; but antiabortion states will struggle to establish jurisdiction over these providers, while abortion-protective states will attempt to protect their providers from out-of-state prosecutions. The legal uncertainty in this newly developing world of remote abortion will shape the actions of patients, providers, and the networks that support them in the years to come.
Additional interjurisdictional conflicts will arise because the federal government could play a more pronounced role in abortion regulation, whether deploying strategies to protect or limit abortion nationally. Whatever the political agenda, federal action in this area could create jurisdictional conflict with state regulation of abortion. The Biden Administration has already taken some executive action in the immediate aftermath of Dobbs that creates this federal–state conflict, and members of Congress have advocated for more aggressive ideas.
This Article tackles these tricky interjurisdictional issues while considering strategies to protect abortion access in a country without a constitutional right to abortion. Part I starts by describing what a post-Roe country looks like when each state is free to ban abortion at any point in pregnancy. It highlights both the legal heterogeneity across states and notes how the law will alter the practice of abortion on the ground, paying attention to the growth of self-managed abortion and remote abortion access across state and country lines.
Next, Part II focuses on the next generation of interstate abortion conflicts. It first explores the legal complexity that will result when antiabortion states attempt to punish extraterritorial abortion through general criminal laws like conspiracy or through laws specifically targeting abortion providers, helpers, and even patients. The Constitution’s general prohibition of state restrictions on interstate travel, burdens on interstate commerce, or application of a state’s law outside its borders should make it difficult for antiabortion states to enforce these laws. Yet, these constitutional defenses are underdeveloped and subject to debate, leaving courts as the ultimate arbiters of these interstate battles. It then explores how states in which abortion remains legal might prevent antiabortion states from enforcing their laws in other jurisdictions. These dueling strategies, however, come at a cost by undermining key tenets of federalism and comity.
Finally, Part III highlights how the federal government, given the Biden Administration’s commitments to reproductive rights, might protect abortion access in states that ban it. It argues that the supremacy of federal law provides a novel and untested argument for chipping away at state abortion bans. The FDA’s exercise of authority over medication abortion since it was approved in 2000 suggests that FDA regulation preempts contradictory state laws, potentially granting a right to medication abortion in all fifty states. Other federal laws governing health privacy and emergency medical treatment could also poke holes in state abortion bans. Moreover, because state law does not always apply on federal land, some abortions provided on federal land within antiabortion states might not be subject to state abortion bans. Federal policy decisions could also promote access to medication abortion through telehealth and multi-state physician licensing.
Ultimately, without a constitutional right to abortion, the coming battles over abortion access will move the half-century war over Roe into a new interjurisdictional arena. These conflicts will make abortion jurisprudence much more complex than before, in ways that test the principles underpinning the country’s federalist system of government. But these conflicts also open the door to unexamined possibilities in a new era of abortion access—a future that will no longer be tethered to constitutional rights. This Article concludes by highlighting how an abortion rights movement might pivot from defense to offense, from short game to long game, and capitalize on the same strategies that led to the antiabortion movement’s success.