The Volokh Conspiracy

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Government Action and Constitutional Rights

When (1) states seek to protect abortion rights / gun rights / speech rights against private restriction, and (2) Congress seeks to encourage such private restrictions by preempting the state law protections, might such federal preemption violate the Constitution?


Imagine the following hypothetical scenario:

  1. Property owners are, of course, generally entitled to decide whether to allow abortions to be performed on their property (just as they are generally entitled to decide what other conduct or speech can be performed on their property).
  2. A state legislature sees that there's a movement among property owners to refuse to rent or sell property to abortion clinics, to the point that it gets quite difficult for abortion providers to find space that's convenient for them and their clients. Perhaps some property owners are themselves anti-abortion, or perhaps they are reacting to pressure from their customers or their other tenants, or perhaps they just want to avoid anti-abortion protesters on the sidewalks outside their property.
  3. The legislature therefore provides that any landowner (or perhaps just any large corporate landowner) that rents or sells space to medical offices may not discriminate against abortion providers.
  4. Congress, in order to encourage ""'Good Samaritan' blocking of abortions," preempts these state statutes, and returns maximum discretion to property owners.

It seems clear to me that this federal statute doesn't make the property owners into government actors, subject to the constitutional abortion rights secured by Planned Parenthood v. Casey; the property owners are just getting back their traditional common-law property rights. But the federal statute clearly is itself government action.

Now say that:

  • An abortion clinic is refused space in a medical building.
  • It sues under the state antidiscrimination statute.
  • The building owner asserts the federal statute as a defense.
  • The clinic argues that the federal statute unconstitutionally burdens its patients' abortion rights, because it is intended to make it harder to get abortions and because it preempts state law protections for abortions, so as to get private entities to do what it can't do itself.
  • Therefore, the clinic argues, the state law isn't preempted, and continues to require the building owner to rent to the clinic.

Do you think this is a sound argument, taking as given the Court's precedents holding that the Constitution protects abortion rights? If you'd like, consider the same problem with gun stores or private schools instead of abortion clinics.

As you might gather, this is intended to illuminate the discussion about 47 U.S.C. § 230, which is structurally quite similar. (To be sure, § 230 was passed before states began to try to impose nondiscrimination rules on social media platforms; but it was indeed a deliberate attempt to encourage "'Good Samaritan' blocking and screening of offensive material," and anticipatorily preempted state statutes that might have protected such "offensive material.")