Comity & Federalism in Extraterritorial Abortion Regulation
73 Pages Posted: 3 Feb 2023 Last revised: 8 Dec 2024
Date Written: February 2, 2023
Abstract
On June 24, 2022, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization and held that states may regulate abortion in whatever manner they wish. In the wake of Dobbs, commentators and laypeople have focused primarily on its implications for reproductive rights and other fundamental rights — such as gay marriage. Less often discussed are the questions that arise regarding state extraterritorial jurisdiction. Since Dobbs, a patchwork of laws has developed: pro-life states have placed greater restrictions on abortion, while pro-choice states have sought to expand abortion access. Questions arise regarding whether and to what extent states may regulate the out-of-state conduct of pregnant women who seek abortion, those who provide assistance to pregnant women, and abortion providers. This patchwork has the potential to generate interstate conflict and creates new urgency for thinking about the legal and constitutional principles that constrain state extraterritorial jurisdiction. This Article outlines state jurisdictional powers and articulates a number of legal barriers to state extraterritorial regulation, including: historical exercises of state jurisdiction, the Due Process and Full Faith and Credit Clauses, the Commerce Clause, and the individual right to travel. It then identifies and resolves nuanced questions raised by abortion regarding which out-of-state actors may face extraterritorial liability, and which kinds of liability — criminal or civil — may have greater reach. This is the first Article to comprehensively consider these issues following Dobbs.
Keywords: Abortion, Extraterritorial Jurisdiction, Right to Travel, Commerce Clause, Due Process, Federalism
JEL Classification: K1
Suggested Citation: Suggested Citation