The Reproductive Rights Charter

Abstract

While scholars have previously addressed the prevalence of state-level abortion regulation, the story of the contestation of reproductive rights at the local level remains largely untold. Roe reserved significant power to the “state” to regulate the when, where and how of obtaining abortions, a role secured even further by the lenient standard of review adopted in Casey, and “[i]n many instances, the federal government set[] the floor and local governments [sought to] set the ceiling.” These structuring attempts unfolded against a backdrop of robust state-level abortion regulation, as well as city-state preemption conflicts. They reflected recognition by both reproductive rights proponents and antagonists that cities affected the lives not only of municipal denizens, but, given the limited availability of reproductive health services in rural and suburban communities, were the predominant provider location for many more, irrespective of their place of residence.

In addition to federal and state-level reproductive rights contestations, municipalities have utilized various tactics to intercede in these interpretative debates. These include direct determinations of which providers and organizations to fund; comprehensive and ad hoc zoning determinations; policies regarding the use of public facilities or taxpayer funds; policies governing the benefits offered by the locality as employer; participation in litigation challenging national or state policies or intercession in prominent cases involving access in other jurisdictions; the use of resolutions to advocate or dissent from existing or projected policies; use of the contracting power to enforce conditions on entities with presences far beyond the local; enforcement by municipal officials of benefit and penal regimes; and regulation under state conferred police powers - whether through legislation or referenda at the ballot box. The range of available tactics reflects the contrasting home rule and state-level legislative regimes under which localities in each state labor.

Keywords: Local Government, Constitutional Rights, Roe v. Wade, Zoning, Voter Referendum