Preemption

Introduction The Supreme Court’s decision to overturn Roe v. Wade will usher in a new era of abortion law and access.[footnote]In Roe v. Wade , the Supreme Court held that criminal laws banning abortion were an infringement of a constitutional right to privacy under the Fourteenth Amendment’s Due Process Clause. 410 U.S. 113, 164 (1973). In Planned Parenthood of Southeastern Pennsylvania v. Casey , the Court preserved constitutional protection for abortion but gave states greater discretion to restrict access to abortion. 505 U.S. 833, 873 (1992) (plurality opinion). One of Casey ’s central holdings is that a state cannot ban previability abortions. Id. at 872. On June 24, 2022, the Court overturned both of these precedents. Dobbs v. Jackson Women’s Health Org., No. 19-1392, slip op. at 5 (U.S. June 24, 2022).[/footnote] 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.[footnote]See generally David S. Cohen & Carole Joffe, Obstacle Course: The Everyday Struggle to Get an Abortion in America (2020) (exploring the various state laws restricting abortion and their impact on patients and providers). It is important to contrast what had been a national right to the national reality of access, which has always been marked by significant race and class disparities. See id. at 88.[/footnote] 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;[footnote]See infra Part II.[/footnote] at the same time, the federal government may intervene to thwart state attempts to control abortion law.[footnote]See infra Part III.[/footnote] 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.[footnote]See Dobbs , slip op. at 14–15. The Supreme Court ruled that neither the history and tradition of abortion regulation nor the text of the Constitution supports the “egregiously wrong” judgment in Roe , reiterated in Casey , that the Fourteenth Amendment protects previable abortion decisions. Id. at 5–6. States are free to regulate, even ban, abortion so long as there is “a rational basis on which the legislature could have thought that it would serve legitimate state interests.” Id. at 77.[/footnote] As of November 2022,[footnote]The state of the law and events described by this Article has developed at a rapid pace since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and continues to do so. This Article reflects developments through November 5, 2022.[/footnote] 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.[footnote]Caroline Kitchener, Kevin Schaul, N. Kirkpatrick, Daniela Santamariña & Lauren Tierney, Abortion Is Now Banned in These States. See Where Laws Have Changed., Wash. Post (June 24, 2022), https://www.washingtonpost.com/politics/2022/06/24/abortion-state-laws-criminalization-roe/ (on file with the Columbia Law Review ) (last updated Oct. 10, 2022) (reporting that Alabama, Arkansas, Georgia, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota, Tennessee, Texas, West Virginia, and Wisconsin ban most or all abortions but that the bans in Arizona, Indiana, North Dakota, Ohio, South Carolina, Utah, and Wyoming are currently enjoined).[/footnote] 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.[footnote]Abortion Policy in the Absence of Roe , Guttmacher Inst., https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe [https://perma.cc/N226-J2EF] [hereinafter Guttmacher Inst., Abortion Policy] (last updated Oct. 1, 2022).[/footnote] 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.”[footnote]Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 986 (1992) (Scalia, J., concurring in the judgment in part and dissenting in part).[/footnote] Abortion law will become simpler, the argument continues, because states will be able to craft laws without the threat of constitutional litigation.[footnote]Stenberg v. Carhart, 530 U.S. 914, 956 (2000) (Scalia, J., dissenting) (arguing that overturning Roe and Casey will remove the Court from the “abortion-umpiring business” and “return this matter to the people” (quoting Casey , 505 U.S. at 995–96 (Scalia, J., concurring in the judgment in part and dissenting in part))).[/footnote] Justice Samuel Alito adopted this argument in the Dobbs opinion, noting that Casey saddled judges with “an unwieldy and inappropriate task.”[footnote] Dobbs , slip op. at 62 (citing Lehnert v. Ferris Fac. Ass’n, 500 U.S. 507, 551 (1991) (Scalia, J., concurring in the judgment in part and dissenting in part)); see also id. at 59–62 (discussing the difficulty of applying Casey ’s rules in prior cases).[/footnote] 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.[footnote]See Caroline Kitchener, The Next Frontier for the Antiabortion Movement: A Nationwide Ban, Wash. Post (May 2, 2022), https://www.washingtonpost.com/nation/ 2022/05/02/abortion-ban-roe-supreme-court-mississippi/ (on file with the Columbia Law Review ) (“Leading antiabortion groups and their allies in Congress have been meeting behind the scenes to plan a national strategy that would kick in . . . [post- Roe ], including a push for a strict nationwide ban on the procedure . . . .”); Caroline Kitchener, Roe ’s Gone. Now Antiabortion Lawmakers Want More., Wash. Post (June 25, 2022), https://www.washingtonpost.com/politics/2022/06/25/roe-antiabortion-lawmakers-restrictions-state-legislatures/ (on file with the Columbia Law Review ) [hereinafter Kitchener, Roe ’s Gone] (“On the heels of their greatest victory, antiabortion activists are eager to capitalize on their momentum by enshrining constitutional abortion bans[] [and] pushing Congress to pass a national prohibition . . . .”).[/footnote] 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.[footnote]See infra sections II.A–.B.[/footnote] 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.[footnote]See infra section II.D.[/footnote] 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.”[footnote]Memorandum from James Bopp, Jr., Gen. Couns., Nat’l Right to Life Comm., Courtney Turner Milbank & Joseph D. Maughon, to Nat’l Right to Life Comm. 14 (June 15, 2022), https://www.nrlc.org/wp-content/uploads/NRLC-Post-Roe-Model-Abortion-Law-FINAL-1.pdf [https://perma.cc/G46B-KZF7] [hereinafter NRLC Model Law].[/footnote] 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.”[footnote]See, e.g., Slaton, Tex., Ordinance 816, at 7 (Dec. 13, 2021) (on file with the Columbia Law Review ); see also Cisco, Tex., Ordinance 0-2021-17, at 5 (Oct. 12, 2021) (on file with the Columbia Law Review ) (declaring it illegal to “procure . . . an abortion in the City of Cisco, Texas,” without limiting the geographical range of such procurement); cf. Isaiah Mitchell, From Waskom to Abilene: Behind the Movement of Sanctuary Cities for the Unborn, Texan (Apr. 13, 2022), https://thetexan.news/from-waskom-to-abilene-behind-the-movement-of-sanctuary-cities-for-the-unborn/ [https://perma.cc/QC9Y-AFK2] (reporting inaccurately that Cisco’s ordinance contained the same language as Slaton’s, whereas the version included in the reporting was not the one ultimately promulgated). [/footnote] 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[footnote]S.B. 603, 101st Gen. Assemb., Reg. Sess. (Mo. 2021).[/footnote] and a 2022 bill that imposed civil liability on those helping Missouri citizens travel out of state to obtain an abortion.[footnote]H.B. 2012, 101st Gen. Assemb., 2d Reg. Sess. (Mo. 2022).[/footnote] 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.[footnote]See infra section II.D.[/footnote] 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.[footnote]See infra section II.D. [/footnote] 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.[footnote]The pandemic catapulted the idea of virtual abortion care from a distant dream to a new reality, revolutionizing how abortion care is offered. See Rachel Rebouché, Greer Donley & David S. Cohen, Opinion, The FDA’s Telehealth Safety Net for Abortion Only Stretches So Far, Hill (Dec. 18, 2021), https://thehill.com/opinion/healthcare/586329-the-fdas-telehealth-safety-net-for-abortion-only-stretches-so-far/ [https://perma.cc/DB5S-6PCK] [hereinafter Rebouché et al., Safety Net] (noting that, during the COVID-19 pandemic, a federal district court enjoined the in-person dispensation requirement and the Biden Administration suspended enforcing it).[/footnote] 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.[footnote]Id.[/footnote] Early abortion care has, as a result, become more portable in the states that permit telehealth for abortion.[footnote]Cf. Medication Abortion, Guttmacher Inst., https://www.guttmacher.org/state-policy/explore/medication-abortion/ [https://perma.cc/QC5W-Y872] [hereinafter Guttmacher Inst., Medication Abortion] (last updated Oct. 1, 2022) (noting restrictions placed by antiabortion states on provision of medication abortion, preventing portability in those states).[/footnote] The portability of medication abortion will impact abortion access even in states that prohibit telehealth or ban abortion after Roe . In those jurisdictions, people[footnote]Not every person capable of becoming pregnant is a woman; trans men, girls, and gender nonbinary patients also need access to abortion and reproductive healthcare. There are also times, however, when gender’s intersection with abortion is important and relevant. This Article does its best to thread that needle by using a variety of terms in its discussion. For more context, see Jessica A. Clarke, They, Them, and Theirs, 132 Harv. L. Rev. 894, 954–57 (2019); see also Loretta J. Ross & Rickie Solinger, Reproductive Justice: An Introduction 6–8 (2017).[/footnote] 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.[footnote]See infra section I.B; see also Caroline Kitchener, Covert Network Provides Pills for Thousands of Abortions in U.S. Post Roe , Wash. Post (Oct. 18, 2022), https://www.washingtonpost.com/politics/2022/10/18/illegal-abortion-pill-network/ (on file with the Columbia Law Review ) (describing efforts to provide covert access to medication abortion).[/footnote] 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.[footnote]See Letter from Elizabeth Warren, U.S. Sen., et al., to Joseph R. Biden, President of the United States (June 7, 2022), https://www.warren.senate.gov/download/20220607-letter-to-potus-on-abortion-eo/ [https://perma.cc/CG37-C64R] [hereinafter Senate Letter] (encouraging presidential action to increase access to medication abortion, establish a reproductive health ombudsman at the Department of Health and Human Services, enforce “Free Choice of Provider” requirements, and use federal property and resources to increase access to abortion); Fact Sheet: President Biden to Sign Executive Order Protecting Access to Reproductive Health Care Services, The White House (July 8, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/07/08/fact-sheet-president-biden-to-sign-executive-order-protecting-access-to-reproductive-health-care-services/ [https://perma.cc/ERE2-X5BP] [hereinafter White House, Protecting Access] (outlining the contents of President Joseph Biden’s executive order, “Protecting Access to Reproductive Health Care Services”).[/footnote] 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.

Preemption

THE NEW ABORTION BATTLEGROUND

IMPEDING INNOVATION: STATE PREEMPTION OF PROGRESSIVE LOCAL REGULATIONS