The New Abortion Battleground

82 Pages Posted: 16 Feb 2022 Last revised: 5 Aug 2022

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: August 4, 2022

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 has spawned perplexing legal conflicts across state borders and between the state and federal government. We emphasize 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 the immediate aftermath of Roe’s reversal and what lies ahead.

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 stake a claim. Beyond promoting access to medication abortion, federal regulations may preempt state abortion bans and federal land could provide shelter for abortion services. Ultimately, once the constitutional protection for pre-viability 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. We explore the interjurisdictional issues sure to arise while looking ahead to creative strategies to promote abortion access in a country without a constitutional abortion right.

This July draft substantially updates our February draft, in particular about Dobbs, shield laws, preemption, federal lands, and licensing.

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 (August 4, 2022). 123 Columbia Law Review (2023, Forthcoming), 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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