The Next Abortion Battlegrounds

The Supreme Court may have overturned Roe v. Wade, but it has not ended legal battles over abortion.

The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization overturned Roe v. Wade and concluded that the Fourteenth Amendment's Due Process clause does not protect a fundamental right to terminate a pregnancy. This will put an end to cases questioning whether a given set of abortion regulations constitute an "undue burden" on a woman's right to an abortion, but (as Ilya notes below) it will not put an end to abortion-related litigation.

One consequence of the Dobbs decision is that much abortion litigation will shift from federal to state court. Just because there is no right to abortion in the federal constitution does not mean there is no such right to be found under state constitutions. Just as (to take one example) the Ohio Supreme Court has concluded that the Ohio Constitution provides greater protection for private property against eminent domain than does the Fifth Amendment to the U.S. Constitution, state supreme courts may conclude that state constitutional provisions protect abortion rights through state-level rights to privacy (as in Montana) or other liberty-protecting provisions. Of course, such claims will not always be successful. The Iowa Supreme Court recently issued a state-level Dobbs decision, rejecting prior decisions that had recognized a state-level abortion right.

Many of the post-Dobbs legal fights over abortion will involve questions about the scope of federal and state power over abortion, such as whether states can limit the ability to cross state lines to obtain abortions or whether federal drug regulation constrains the ability of states to limit access to medication abortions.

A forthcoming article in the Columbia Law Review by Professors David S. Cohen, Greer Donley, and Rachel Rebouché surveys some of the new abortion "battlegrounds" we can expect to see. In this article they write:

In this post-Roe world, states will attempt to impose their local abortion policies as widely as possible, even across state lines, and will battle one another over these choices; at the same time, the federal government may intervene to thwart state attempts to control abortion law. In other words, the interjurisdictional abortion wars are coming. . . .

The article provides a useful overview of many of the legal issues that will arise in these "interjurisdictional abortion wars," in which the central legal questions will not concern substantive due process, but the scope of federal preemption, the autonomy of federal lands and enclaves, and the ability of states to limit interstate shipment of abortion medications, constrain interstate travel, or otherwise extraterritorialize their abortion laws. As I noted here, the White House has been consulting with academics to examine some of these questions, and I expect we will see the first rounds of litigation on some of these questions quite soon.

Perhaps anticipating some of these issues, it is notable that (as my co-bloggers have noted) Justice Kavanaugh made explicit reference to the constitutional right to interstate travel in his Dobbs concurrence. It may also be notable that Court's conservative justices tend to split on questions of federal preemption (as we saw in Virginia Uranium v. Warren in 2019).

One issue the article does not discuss is the extent to which the so-called "Comstock Laws" could constrain the interstate distribution of abortion medications.  18 U.S.C. Section 1461, for instance, makes it illegal to mail "obscene or crime-inciting matter," and defines such materials to include "Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose."

Much like state laws limiting or prohibiting abortion have come back into force after Dobbs, I saw some claim that this would be true of the Comstock Laws as well. As this would be quite a staggering result (about which I had seen little discussion), I asked Profs. Cohen, Donley, and Rebouché about this, and here was Prof. Cohen's response (which I repost with permission):

We didn't mention these laws because the circuit courts long ago declared that they only apply to unlawful items. So, since abortion is legal and the FDA has approved distribution of mifepristone as safe and effective, including by mail, these are lawful activities and items, thus the law, as interpreted by the courts, doesn't apply. Even now that some states have made abortion illegal, the pills still are legal under federal law. This is why no one in any of the litigation, regulatory comments, or other advocacy around medication abortion for the past decades has raised these laws, even the Trump administration in the litigation about mailing pills that went to the Supreme Court.

To put a finer point on it, any contrary interpretation than what I explained here would ban abortion everywhere because every device used to perform an abortion in a clinic (forceps, cannulas, etc.) would be banned from being shipped to the clinics (none of the clinics make their own!). These are lawful items for lawful procedures so they can be sent in the mail.

As Professor Cohen notes (and the paper discusses) there will be legal wrangling over whether states can impose restrictions on mifepristone above and beyond those restrictions the FDA has determined are necessary to ensure that it is safe and effective under the Food, Drug and Cosmetic Act, but he does not foresee the Comstock Laws constraining the FDA.