Our research demonstrates that a post-Roe landscape is far more complicated than most Americans appreciate. Overturning Roe won’t simply kick the matter back to state governments. It will trigger new kinds of battles – among the states, and between states and the federal government – that will strain our federalist system.
If the Court overturns Roe, as the draft opinion indicates will happen, each state will be allowed to set its own abortion policy – banning it entirely or protecting it aggressively. That means roughly half the country will ban abortion and half the country will not.
But it won’t end there. The anti-abortion movement’s ultimate goal is to end abortion nationwide. To that end, some anti-abortion legislators and prosecutors will try to legislate beyond their borders to chill abortion everywhere. In response, abortion rights legislators will attempt to make their states abortion havens.
Here are just a few of the unsettled questions coming down the pike that show the myriad uncertainties of a post-Roe country.
Can a state’s anti-abortion laws apply beyond its borders?
The end goal of the anti-abortion movement is to ban abortion nationwide. While it waits to have the votes necessary to pass such a federal law, anti-abortion legislators, prosecutors and advocates may attempt to use other state tools to stop as many abortions as possible, reaching outside state borders to limit travel or punish out-of -state providers who provide abortion for their citizens.
Missouri has already given us a taste of what this will look like. Earlier this year, a Missouri legislator introduced an amendment that would create civil liability for anyone who helps another person travel out of state to get an abortion. While this bill did not become law, it is a clear signal that anti-abortion legislators are already thinking about this next frontier.
If they do move in this direction, they will be acting against basic principles of how Americans think about travel and law. Most of us assume that if we travel out of state, we must follow the laws of wherever we are and that the laws of our home state do not apply. Think of gambling in Las Vegas before it was widely legal elsewhere – people traveled there without even a thought that their home state, where gambling was illegal, would punish them when they returned from Nevada.
However, there is no settled law that clearly reflects this understanding. Though there are strong arguments that various parts of the Constitution – including the Due Process Clause, the Privileges or Immunities Clause, the Citizenship Clause and the Dormant Commerce Clause – prohibit states from exercising their jurisdiction beyond their borders, the precedent on these points is not well developed. This lack of precedent is easily manipulated by anti-abortion judges and justices to uphold state efforts to limit abortion travel or prosecute out-of-state providers. After all, few people believed that SB8, the Texas law that creates civil liability for providers offering abortions after about six weeks of pregnancy, would be upheld, but the current Supreme Court did just that.
Can liberal states provide abortion care for people from out of state?
As abortion restrictions tighten, states with abortion rights legislators are already acting to help out-of-state people seeking abortions. Connecticut is leading the way, passing a bill that awaits the governor’s signature that will make the state a safe place for providers to care for people from other states. The bill says that the courts and agencies of Connecticut will not participate in out-of-state investigations, lawsuits or criminal prosecutions related to abortion that is lawfully performed in the state. It also allows Connecticut residents to countersue in state courts if they are roped into an SB8-style civil lawsuit after offering assistance to abortion patients in another state. Efforts to pass similar laws are already underway in California, New York and Illinois, and other abortion-supportive states are sure to follow suit in the wake of Roe‘s demise.
These laws are creative ways to protect abortion access. However, even these bills’ most ardent supporters recognize that they undermine some of the key principles of our federalist structure. States normally cooperate out of respect for one another. These abortion-supportive bills test this basic principle of interstate comity. We have advocated elsewhere about the importance of such laws, but we can not fail to recognize that these laws would chip away at a key facet of our national structure. These interstate conflicts could also wind up before the Supreme Court, where basic constitutional issues around national citizenship and state sovereignty would be at stake.
What about abortion by mail?
Historically, states have controlled abortion by controlling the providers who performed abortion procedures. But medication abortion – the two-drug regimen that the FDA has approved to end a pregnancy in the first 10 weeks – is now available by mail. People who live in a state where abortion is illegal can buy abortion pills online, either on their own or with the help of international providers. And patients have found ways to obtain abortion pills via telehealth even when they live in states that forbid the practice by using mail forwarding or giving the address of a friend or family member who can forward the medication to them.
This exposes patients, particularly the most vulnerable patients, to various legal risks. But with state and local officials having no ability to tell what a package contains (and no legal authority to inspect packages without specific suspicion and a warrant), mailed pills will be difficult to police. Anti-abortion states understand that the changing landscape of early abortion care threatens to undermine abortion bans. To that end, states are increasingly passing bans on telehealth for abortion and banning distribution of drugs within the state. Nevertheless, the practical reality is that some of those laws are going to be very difficult to enforce.
What role can the federal government play post-Roe?
Federal law is supreme over state law, so when state laws conflict with federal law, federal law prevails. There are a variety of federal laws and regulations, including those that govern its regulation of abortion medication through the FDA, as well as medical emergencies that might conflict with state abortion laws and poke holes in a state’s ability to ban abortion. For instance, advocates might argue that the FDA’s approval and regulation of abortion medication could invalidate a state’s attempt to ban it or that the federal law requiring hospitals to treat medical emergencies prohibits states from denying medically-necessary abortion care to patients.
The government could, conceivably, try to use its power over federal land to permit abortions in anti-abortion states, although there are limits to this power. If the federal government were to lease property to an abortion provider, for instance, there are legal arguments that state abortion laws might not apply to abortions on the federal land. These arguments rely on the basic principle that the federal government controls the laws on federal lands – and, as yet, there are no specific federal laws banning abortion. To be clear, there is no movement behind this idea yet, but this is one way the Biden administration could work around the policies of anti-abortion states. Once again, how the Supreme Court rules on such a move would be hard to predict.
The interstate and interjurisdictional conflicts on the horizon will test fundamental assumptions about the reach of state and federal power. f Roe is overturned, as is looking very likely, the draft opinion’s approach of returning this issue to the states could create more interjurisdictional battles than ever before, which is likely to only intensify the political conflict over abortion rights.