The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Should the Supreme Court narrow or eliminate the federal constitutional right to abortion in Dobbs, this will not eliminate the legal and constitutional questions concerning the regulation of abortion, but the terrain will shift. Overruling Roe and Casey in the entirety would remove the constitutional obstacle to state regulation or prohibition of abortion within a state's borders. But questions about the extent to which states may regulate travel across state lines would remain.
California is indicating that it may seek to be a "sanctuary" jurisdiction for women in other states who seek an abortion, and we can imagine that a Texas or Mississippi might consider enacting laws barring their citizens from engaging in such conduct. Such developments could raise a range of "horizontal federalism" issues that implicate the Full Faith and Credit clause and the right to travel (which is protected by the Fourteenth Amendment's Privileges or Immunities clause).
Over at Prawfsblawg, Rick Hills have a few posts that explore these and related questions that are of potential interest to VC readers. Here are the posts:
- Will Federalism (and Conflicts of Law Doctrine) Deregulate Abortion?
- Will state officials actually enforce their new restrictions on abortion against women? Some Evidence from 2016
- Will (Should) Congress Use Its FF&C "Effects" Power to Regulate Post-Roe "Abortion Tourism"?
Rick also flags this 2006 NYT op-ed by William Baude, which explores similar issues.