The New Abortion Battleground

100 Pages Posted: 16 Feb 2022 Last revised: 29 Jan 2023

See all articles by David S. Cohen

David S. Cohen

Drexel University Thomas R. Kline School of Law

Greer Donley

University of Pittsburgh - School of Law

Rachel Rebouché

Temple University - James E. Beasley School of Law

Date Written: January 28, 2023

Abstract

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.

Note:
Funding Information: None to declare.

Declaration of Interests: None to declare.

Keywords: Roe, Dobbs, abortion, interjurisdictional, preemption, licensure, extraterritoriality

Suggested Citation

Cohen, David S. and Donley, Greer and Rebouche, Rachel, The New Abortion Battleground (January 28, 2023). 123 Columbia Law Review 1 (2023), U. of Pittsburgh Legal Studies Research Paper No. 2022-09, Temple University Legal Studies Research Paper No. 2022-05, Available at SSRN: https://ssrn.com/abstract=4032931 or http://dx.doi.org/10.2139/ssrn.4032931

David S. Cohen (Contact Author)

Drexel University Thomas R. Kline School of Law ( email )

3320 Market Street
Philadelphia, PA 19104
215-571-4714 (Phone)

Greer Donley

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

HOME PAGE: http://www.law.pitt.edu/people/greer-donley

Rachel Rebouche

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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