The New Abortion Battleground
100 Pages Posted: 16 Feb 2022 Last revised: 29 Jan 2023
Date Written: January 28, 2023
This Article examines the paradigm shift that is occurring now that the Supreme Court has overturned Roe v. Wade. Returning abortion law to the states will spawn perplexing legal conflicts across state borders and between states and the federal government. This Article emphasizes how these issues intersect with innovations in the delivery of abortion, which can now occur entirely online and transcend state boundaries. The interjurisdictional abortion wars are coming, and this Article is the first to provide the roadmap for this aspect of the aftermath of Roe’s reversal.
Judges and scholars, and most recently the Supreme Court, have long claimed that abortion law will become simpler if Roe is overturned, but that is woefully naïve. In reality, overturning Roe will create a novel world of complex, interjurisdictional legal conflicts over abortion. Some states will pass laws creating civil or criminal liability for out-of-state abortion travel while others will pass laws insulating their providers from out-of-state prosecutions. The federal government will also intervene, attempting to use federal laws to preempt state bans and possibly to use federal land to shelter abortion services. Ultimately, once the constitutional protection for previability abortion disappears, the impending battles over abortion access will transport the half-century war over Roe into a new arena, one that will make abortion jurisprudence more complex than ever before.
This Article is the first to offer insights into this fast-approaching transformation of abortion rights, law, and access, while also looking ahead to creative strategies to promote abortion access in a country without a constitutional abortion right.
Funding Information: None to declare.
Declaration of Interests: None to declare.
Keywords: Roe, Dobbs, abortion, interjurisdictional, preemption, licensure, extraterritoriality
Suggested Citation: Suggested Citation