This spring, Missouri considered, but did not pass, a measure that would have criminalized out-of-state travel for an abortion, creating a bounty-hunter incentive similar to Texas’ new anti-abortion law to enforce it. Exercising “extraterritoriality,” or trying to enforce one state’s laws inside the jurisdiction of another state, would be a new frontier in abortion restriction, but in a post-Roe world, legal scholars can’t rule it out. In New York, which has declared itself a safe-harbor state for abortion, legislators have introduced a bill to protect abortion providers from being extradited to anti-abortion states for prosecution, and Connecticut has passed a law that protects against extradition and also judgments handed down in other states.
Collisions between the legal codes of states as people cross their borders—or medications do, or the internet does—is just one conflict that might arise. Cross-border travel and interstate commerce are constitutionally protected, for instance, and delivering the mail is a federal project. Approving the safety and sale of pharmaceuticals nationwide is the responsibility of the FDA. GenBioPro, which manufactures mifepristone, is suing the state of Mississippi because its restrictions on the drug’s availability are stricter than what the FDA has set.
“The federal government has control over the mail, and the federal government also has control over whether a medication can be available and sold in the US,” says Khiara M. Bridges, a professor of law at the UC Berkeley School of Law. “So we expect a conflict between a state’s ability to regulate the practice of medicine and the federal government’s ability to regulate the availability of any medication in the US.”
The reproductive-law scholars watching this slow-motion crash predict that legislators in anti-abortion states won’t wait for courts to rule on these conflicts before acting to roll back abortion access. They expect those states to go ahead with imposing restrictions on the privacy of the mail, the movement of goods between states, the prerogatives of other states to direct the conduct of health care—and to keep doing so until a decision at some level of the court system tells the infringing states that they have overreached.
That could mean it will fall to entities within health care—abortion clinics, telehealth providers, hospital systems, drug manufacturers—to try to sue preemptively to block new laws. It could also mean having to rely on criminal defense attorneys, who are not generally expected to be up to date on health law, to defend women. In the past, law scholars point out, anti-abortion states have pursued providers of abortion but declined to charge people who obtain them. The case of Lizelle Herrera of Texas, who was arrested and charged with murder in April for what the local sheriff’s office called a “self-induced abortion,” suggests that carve-out may be ending. “As providers get harder to track down, what happens if states turn their attention to the people terminating their pregnancies?” asks Rachel Rebouché, the third author on the review article and associate dean for research at Temple University’s James E. Beasley School of Law.
Legal experts envision years of judicial turmoil and, under the cover of that tumult, the possibility that other rights now thought settled will be taken away. As with abortion, social actions that now are settled legalities—same-sex marriage, interracial marriage, access to fertility procedures and birth control—are not explicit in the Constitution. They arose from court decisions that found the Constitution confers the right to privacy and bodily autonomy. As the fate of Roe seems likely to show, such decisions can be reversed.
“If the court is willing to overrule a 50-year-old precedent, then they may be willing to overrule other landmark cases that have not been around for as long,” says Tanya Washington Hicks, a professor at the Georgia State University College of Law. “What I see at the jurisprudential level is that this is going to create social chaos. People shape their lives based on what they’re allowed to do.”
Update 5-16-2022 6:11 PM ET: This story was updated to correct the spelling of Seema Mohapatra’s name.
This spring, Missouri considered, but did not pass, a measure that would have criminalized out-of-state travel for an abortion, creating a bounty-hunter incentive similar to Texas’ new anti-abortion law to enforce it. Exercising “extraterritoriality,” or trying to enforce one state’s laws inside the jurisdiction of another state, would be a new frontier in abortion restriction, but in a post-Roe world, legal scholars can’t rule it out. In New York, which has declared itself a safe-harbor state for abortion, legislators have introduced a bill to protect abortion providers from being extradited to anti-abortion states for prosecution, and Connecticut has passed a law that protects against extradition and also judgments handed down in other states.
Collisions between the legal codes of states as people cross their borders—or medications do, or the internet does—is just one conflict that might arise. Cross-border travel and interstate commerce are constitutionally protected, for instance, and delivering the mail is a federal project. Approving the safety and sale of pharmaceuticals nationwide is the responsibility of the FDA. GenBioPro, which manufactures mifepristone, is suing the state of Mississippi because its restrictions on the drug’s availability are stricter than what the FDA has set.
“The federal government has control over the mail, and the federal government also has control over whether a medication can be available and sold in the US,” says Khiara M. Bridges, a professor of law at the UC Berkeley School of Law. “So we expect a conflict between a state’s ability to regulate the practice of medicine and the federal government’s ability to regulate the availability of any medication in the US.”
The reproductive-law scholars watching this slow-motion crash predict that legislators in anti-abortion states won’t wait for courts to rule on these conflicts before acting to roll back abortion access. They expect those states to go ahead with imposing restrictions on the privacy of the mail, the movement of goods between states, the prerogatives of other states to direct the conduct of health care—and to keep doing so until a decision at some level of the court system tells the infringing states that they have overreached.
That could mean it will fall to entities within health care—abortion clinics, telehealth providers, hospital systems, drug manufacturers—to try to sue preemptively to block new laws. It could also mean having to rely on criminal defense attorneys, who are not generally expected to be up to date on health law, to defend women. In the past, law scholars point out, anti-abortion states have pursued providers of abortion but declined to charge people who obtain them. The case of Lizelle Herrera of Texas, who was arrested and charged with murder in April for what the local sheriff’s office called a “self-induced abortion,” suggests that carve-out may be ending. “As providers get harder to track down, what happens if states turn their attention to the people terminating their pregnancies?” asks Rachel Rebouché, the third author on the review article and associate dean for research at Temple University’s James E. Beasley School of Law.
Legal experts envision years of judicial turmoil and, under the cover of that tumult, the possibility that other rights now thought settled will be taken away. As with abortion, social actions that now are settled legalities—same-sex marriage, interracial marriage, access to fertility procedures and birth control—are not explicit in the Constitution. They arose from court decisions that found the Constitution confers the right to privacy and bodily autonomy. As the fate of Roe seems likely to show, such decisions can be reversed.
“If the court is willing to overrule a 50-year-old precedent, then they may be willing to overrule other landmark cases that have not been around for as long,” says Tanya Washington Hicks, a professor at the Georgia State University College of Law. “What I see at the jurisprudential level is that this is going to create social chaos. People shape their lives based on what they’re allowed to do.”
Update 5-16-2022 6:11 PM ET: This story was updated to correct the spelling of Seema Mohapatra’s name.