The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Assume for now that Dobbs takes off the table the question of whether the 14th Amendment protects a right to abortion. What are the major legal questions about abortion likely to arise in the federal courts going forward? I've been trying to come up with a list of the major categories.
1. Other federal constitutional claims to abortion. Perhaps somebody will press the 13th Amendment argument (see Koppelman; but see Lash) though it is hard to imagine it going any where. There are also free exercise arguments, which I suspect will also fail, though not quite for the same reasons that Josh Blackman has given.
2. The life/health of the mother. Does the 14th Amendment provide any limit on abortion laws that imperil the life or health of the pregnant woman? Dobbs adopts a rational basis standard, and even Justice Rehnquist's dissent in Roe, for instance, conceded that the 14th Amendment "does place a limit, albeit a broad one" on abortion laws, specifically opining that "If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective."Additionally, some commentators such as Shirif Girgis have argued that history and tradition might require some kind of life-of-the mother exception. But I don't think we can regard either argument as certain, nor is it certain how they would extend to severe health risks or other scenarios.
3. State constitutional claims. Kansas is the most salient example here, but there are a lot of state constitutional lawsuits already filed, and I think it's hard to predict how they will all go. These could also give rise to proposals for constitutional amendment, and related disputes about the validity of those amendments, etc.
4. Federal preemption/mail for non-surgical abortions. One set of questions is about the FDA approval of mifepristone and the extent to which it preempts state law, another is about the ability of states to search the mail and other interstate delivery services that might be shipping mifepristone or other medications. (We could include as a footnote the interpretation of the federal statute that forbids the mailing of "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; and")
5. Federal power to enact further abortion legislation. Could Congress use its commerce power, or less plausibly (under current doctrine) its 14.5 power to enact nationwide restrictions or nationwide liberties with respect to abortion? Justice Thomas of course questioned this power in Gonzales v. Carhart, but it has never been settled. As a matter of political legitimacy, it would be nice if we could settle the answer to this question ex ante and symmetrically, adopting the same test without knowing whether it will be a nationwide liberty signed into law by President Biden in 2022, or a nationwide ban signed into law by President Pence in 2025. Unfortunately, we likely won't.
Additionally, it occurs to me that if the commerce power is held to be more limited, Congress might still be able to use its tax power to enact quite punitive taxes on abortion procedures. It is harder to use the tax power to create a liberty, though Congress might get creative. So federal power might not be symmetric in this respect in any event.
6. Travel/territoriality. Can a state prevent its residents from going to another state to obtain an abortion? If it does or must allow them to go, can it still punish them upon their return? Can states punish anyone, or their citizens more specifically, for acts they take outside of state boundaries? If no, how do we decide where certain inchoate or virtual acts take place? (For instance, placing a call or going on a website in order to take steps to obtain an abortion . . . .) Justice Kavanaugh opined on the first of these questions in his concurring opinion in Dobbs, but even if we assume that his views are both dispositive and set in stone, it is not totally clear how they would play out across the full range of questions in this area.
7. Due Process / retroactivity. Can a state punish abortions obtained in violation of state statute, before the effective date of Dobbs? What is the effective date of Dobbs (the date of the decision? the date the mandate issues? the date of some dispositive action taken on remand?)? Can a state punish abortions going forward under a "trigger law" or a non-trigger law that was enacted before Roe and then unenforced for the past 50 years? Even if these laws are permissible as a matter of federal law, do state common law or state constitutional law doctrines limit them? What about abortions undertaken while a state trial court's preliminary injunction is pending, if that injunction is then reversed as improper? (Compare Mitchell with Morley on this.) Could some of these actions trigger state law "mistake of law" defenses in criminal prosecutions? Again, Justice Kavanaugh opined on the first of these questions, but that leaves many other questions in this string unaddressed.
8. The right to fund. If there is no right to obtain an abortion, does it follow a fortiori that there is no right to spend money to help others obtain an abortion? What about spending money in an illegal-abortion state to facilitate obtaining an abortion in another state? What about spending money to facilitate the exercise of the right to travel to obtain an abortion in another state (see #6)? It seems to me that the most relevant precedents here are from campaign finance law (see Eugene on the right to spend money on rights) which will surely make all concerned uncomfortable.
Are there more?