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Sunday, December 05, 2021

Will Federalism (and Conflicts of Law Doctrine) Deregulate Abortion?

Over the last three decades, commentators have provided both skeptical and optimistic assessments about whether and how federal decentralization might cope with abortion were Roe-Casey to be reversed. The optimistic view is that Roe-Casey’s reversal would promote pluralism by allowing each state to go its own way on a divisive topic, thereby reducing political polarization and gridlock at the national level. The pessimistic take comes mostly from law profs familiar with the train wreck known as conflicts of law “doctrine.” In a post-Roe/Casey world, women in anti-abortion states would have to migrate to pro-choice jurisdictions in order to take advantage of less restrictive abortion laws, but conflicts of law doctrine does not define plainly which state law ought to govern such interstate transactions. State legislatures seeking to end abortion will attempt to extend their bans into pro-choice states, perhaps by penalizing those who facilitate interstate migration or by bringing criminal actions against women upon their departures from, or return to, their states of domicile. The resulting controversies over which state’s laws should apply will simply reproduce the divisiveness of Roe/Casey, especially if judicial measurements of rival state’s interest in regulating abortion turn on assessments of the value of fetal/unborn infant life. In the words of then-2L Will Baude back in 2006, “state regulation will make a complex legal matter even more complicated, and the divisions over abortion that much wider.” (For the extended scholarly version of this take, read Seth Kreimer’s classic 1992 article, The Law of Choice and Choice of Law. And, if you are not sated by Baude and Kreimer, Dick Fallon’s 2007 essay, If Roe Were Overruled, provides another similarly sober assessment).

In my view, both the optimistic and pessimistic predictions about a post-Roe/Casey world are likely mistaken. Federal decentralization will not produce a diversity of different states’ responses to abortion but rather a fairly uniform policy of de-regulation. Put bluntly, in a world of federalism-based interstate migration, deregulatory states will always have the advantage, in the same way that pro-plaintiff states win the forum-shopping war in torts. But the pessimists are also mistaken in thinking that, because conflicts of law doctrine is a mess, the question of which state’s law to apply will be messy.

My prediction is that, to the contrary, state legislatures, courts, and Congress will all gravitate towards a fairly crude “territorial” rule that enforces the law of the place where the abortion was performed, a rule that insures nationwide victory for pro-choice states. My reasoning, explained in more detail after the jump, is rooted more in politics than doctrine — to be precise, the politics of case captions. No politician, even one clad in black robes, wants to put an abortion-seeking woman on one side of the “v.” in a criminal case. The great political advantage that anti-abortion legislators have enjoyed since Roe was decided is that there have been few Roes as parties: Abortion clinics (often Planned Parenthood) have instead appeared in the captions. Roe-Casey’s reversal will end that political advantage, because the domicile of the migrating woman will be the most likely legally available basis for applying the restrictive abortion laws of a regulating state to an out-of-state transaction. Anti-abortion politicians will find it politically unpalatable, however, to drag women rather than abortion clinics into courtrooms, so they will shrink from using the only regulatory tools left open to them by interstate migration. The result will be that anti-abortion laws fall into practical desuetude by foot-voting women escaping such restrictions with bus tickets rather than lawsuits. [Update: In light of a misrepresentation of this post by Professor Liz Sepper on twitter, I guess I should repeat before the jump what I originally wrote below the jump: “Foot-voting” described here does not require a change of domicile and would not be acceptable “foot-voting” if it did, because “changing domicile is extremely costly, especially for low-income persons dependent on networks of family, friends, and employers in their home state”].

1. A Quick Summary of Conflicts of Law and Abortion

Start with the messiness of conflicts of law doctrine. Not only are such state-law doctrines chaotic but federal constitutional law also does little to make sense of the chaos. Under the half-dozen or so “conflicts theories” that jostle for predominance among state courts, the applicable law is defined by some “controlling contact” (to use Doug Laycock’s phrase) that variously include the domicile of an actor, the location of an activity, or the location of the deciding forum. Due Process and Full Faith & Credit doctrine imposes only minimal limits on a state’s extension of its own law to a dispute, just so long as the regulating state coincides with either the location of the disputed activity or the domicile of a disputant. Such domicile or physical location of an activity suffices if the connection suggests that the state has some sort of “interest” in the resolution of the dispute. (Allstate Insurance v. Hague (1981) and Phillips Petroleum v. Shutts (1985) remain the most-cited precedents, although their relevance to criminal law is open to doubt: For expositions of both conflicts and conlaw doctrine applicable to abortion, Seth Kreimer’s classic 1992 article remains the best discussion; for other expositions, see Bradford (1993) and Dellapenna (2008)).

In theory, therefore, anti-abortion states would be free, insofar as the Constitution is concerned, to impose their abortion restrictions on women who migrate to other states seeking to take advantage of less restrictive rules. Yes, there is some language in Bigelow v. Virginia (1975) stating that “[a] State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State.” But Bigelow’s language, perhaps dicta, is probably superseded by the Hague/Shutts doctrine allowing states with an interest to impose their law on disputes arising out of activities taking place in other state’s territory.

With Roe-Casey’s demise, therefore, it would likely be constitutionally permissible for an anti-abortion state like, say, Texas to prohibit women from traveling to pro-choice states like New Mexico to terminate a pregnancy. The obvious precedents for imposing Texas law on transactions occurring in New Mexico would be cases dealing with child custody, where state courts have repeatedly upheld court orders limiting parents’ rights to relocate without the permission of the other parent. If the state can protect the best interests of the child by barring a parent from traveling to another state, then the state can probably likewise protect the best interests of a fetus/unborn infant in the same manner. Of course, it remains theoretically open for SCOTUS to hold that states have no legitimate interest under Hague/Shutts in protecting the fetus/unborn child by so limiting the movement of mothers, because the former is not really a “person.” But that sort of analysis would likely run up against the reversal of Roe-Casey. In any case, such a holding would reproduce all of the controversy created by Roe-Casey that federalism is supposed to defuse.

In sum, at least so long as the person seeking an abortion remains domiciled in the regulating state, that state has an interest in regulating that domiciliary’s behavior, even if that behavior takes place in other states. As Don Regan observed 35 years ago, even if “one can…abandon one's state and its laws by changing one's citizenship,” it does not follow that “one can take a holiday from the state's laws, while remaining a citizen, by sojourning elsewhere.” It might be that women could place themselves beyond the constitutional reach of their home state’s restrictive laws by changing their domicile, but changing domicile is extremely costly, especially for low-income persons dependent on networks of family, friends, and employers in their home state. “Abortion tourism,” in short, is likely regulable by the home state of the “tourists.” The old cases placing ex parte divorces in Nevada beyond the reach of the divorcee’s home state are instructive here. Those cases required those divorcees to acquire Nevada domicile while they were getting their quickie divorce). As Justice Douglas observed back in Williams v. North Carolina (1945) in requiring parties to an ex parte divorce to acquire domicile in the state conferring the divorce, the regulating state “ought not to be foreclosed by the interested actions of others, especially not a State which is concerned with the vindication of its own social policy and has no means, certainly no effective means, to protect that interest against the selfish action of those outside its borders.”

2. A Quick Assessment of the Politics of Case Captions

Does this doctrinal permissiveness, allowing aggressive extension of anti-abortion laws to interstate abortion transactions by enforcing those laws against migrating women, really mean that (in Will Baude’s words) states will actually “use child custody laws to curtail the movements of pregnant women”? A Disclaimer: In answering this question about political prediction, I concede I am on shakier ground than when I discuss legal doctrine. I am, after all, just a law prawf, not a political scientist.

Speaking purely as an informed lay observer, however, I am skeptical that Texas politicians will be eager to deploy cops waving ultrasound wands on the New Mexico border to interdict buses containing women headed for a clinic in Albuquerque. I also doubt that Texas prosecutors will relish arresting those women on their return and arraigning them on charges of evading Texas’ anti-abortion laws. The optics of such enforcement actions simply do not fit with the preferred narrative of the pro-life movement, which has been focused on the alleged villainy of abortion clinics and the alleged victimhood for their clients. Pro-life rhetoric pitches itself in a pro-woman key, arguing that those women seeking abortions are victims exploited by “abortion mills” who later regret their decision to terminate their pregnancies. I humbly submit that nothing could be more devastating to this rhetorical stance than photos of women in orange jumpsuits, awaiting punishment for crossing state lines with the immoral purpose of ending a pregnancy.

In short, the only way that state politicians can interdict pro-choice migration is to sacrifice their most valued rhetorical posture of attacking the clinic rather than the woman who uses it. I predict, therefore, that the politics of case captions will deter anti-abortion DAs and attorneys general from bringing such cases or state legislators from allowing them to be brought.

Just to be clear, I am not suggesting that such cases will never be brought by the more diehard opponents of abortion: We live in strange times where bad politics do not deter fanatics on either side of the aisle. I am certain, however, that the political strategists of the abortion movement will reasonably regard such prosecutions as a political liability. Undoubtedly, such politicians will strain to drag out-of-state abortion clinics into anti-abortion states’ courts, perhaps by using on-line advertisements as the minimum contact sufficient to create personal jurisdiction. Unfortunately for them, the absence of the clinics’ domicile or physical presence in, or any other “purposeful availment” of, the regulating state probably dooms such efforts under Bristol-Myers Squibb.

Or maybe fortunately for such politicians: Nothing would provide them with better political cover than to enact grabby long-arm statutes purporting to drag abortion clinics into anti-abortion states’ clutches only to have federal courts veto such prosecutions invoking boring personal jurisdiction doctrine. Such a post-Roe/Casey strategy protects both politicians and courts from the diehards while allowing the politicians to avoid the political suicide of prosecuting likely indigent women for crossing state lines to escape an unwanted pregnancy.

In sum, I predict that the theoretical availability of extra-territorial regulation based on domicile will yield to the political necessity of avoiding lawsuits and prosecutions against pregnant women. My prediction is worth what you paid for it: I repeat that I am not an expert here. The important point, however, is that, by decentralizing abortion law, the reversal of Roe/Casey changes abortion politics by changing the “localizing contacts” that trigger state law. Those contacts determine the caption, and the caption importantly affects the political optics of anti-abortion prosecutions. Concede me that much, and I am happy to yield on political odds-making.

3. Two Cheers for the Faux Decentralization of Federalism

The likely consequence of ending Roe/Casey, in short, is to nationalize the pro-choice states’ deregulation of abortion through interstate migration. Yes, I am aware that such migration is not costless. Given the paucity of abortion clinics even under Roe/Casey, however, the marginal increase in migration costs from reversing Roe/Casey will be small, and it is the marginal increase in cost from that reversal, not the absolute cost of travel, that is relevant to predictions about how reversing Roe/Casey will affect behavior. Right now, a woman in Lubbock has to travel hundreds of miles within Texas to get an abortion: Traveling to Tucumcari or Albuquerque NM might be a pretty small additional increase in cost above the Roe/Casey status quo. Moreover, organizations like NARAL and Planned Parenthood will, post-Roe/Casey be able to devote the resources they now use for litigating “undue burden” to defraying those travel costs: As they switch from hiring law firms to paying for hotel rooms and buses, they can also re-deploy besieged clinics within restrictive states to the frontiers of pro-choice states. That shift in strategy should reduce further the costs of interstate travel.

Should we applaud or deplore this deregulatory consequence? Obviously, the answer to this question will mostly depend on where you stand on abortion. My predictions, therefore, should be comforting to pro-choice readers and sobering to those pro-life readers who thought reversing Roe/Casey would practically advance their cause.

But what about those few who, like me, actually care about federalism as a system for handling divisive social questions? Should I applaud federal devolutions that lead to nationally uniform deregulatory outcomes? After all, federalism is often defended as a form of pluralistic tolerance. (I myself have made such a defense of federalism in both articles and blog posts. It turns out, however, that, at least on the issue of abortion, formal federal decentralization is not likely to lead to a pluralistic diversity of state policies. Instead, such devolution leads (if I am correct in my prediction above) to nationally uniform deregulation via interstate migration. Some states’ deregulatory policies will practically defeat other states’ restrictive policies across the national board, because women will vote with their feet for less regulation, turning those restrictions into dead letters, on the law books but not actually stopping any abortions.

Should we regard this practical national deregulation through de-nationalization as a bug or a feature of federalism? I am of two minds on this question. There is both a problem with and a benefit from practical nationalization of policy through decentralized foot-voting. The benefit is that the nation gets to choose sides in a divisive fight in a covert and, therefore, less divisive way. The problem is that the mechanism by which this choice is made — interstate migration by those burdened by regulation — arguably does not give fair representation to regulation’s beneficiaries. Nationalizing foot-voting, in short, might be politically advantageous for civil peace but nevertheless be illegitimate from the perspective of promoting pluralistic democracy.

Start with the benefits of nationalizing foot-voting in terms of civil peace. Unlike the national rule established by Roe/Casey, the nationalization achieved through foot-voting is covert. There is no rule announced, no general principle based on legalistic concepts like trimesters and viability. There are only hundreds of thousands of individual choices that, in the end, amount to a pattern of deregulation without any single set of reasons justifying or explaining that pattern. Unlike Roe/Casey, such results without reasons do not contradict anyone’s beliefs or criticize anyone’s arguments. Mere results take no position on when life begins or what personhood consist of. They will be, I predict, much less divisive than judicial opinions that take loquacious stances on contentious issues. Will Baude predicted in 2006 that “state regulation will make a complex legal matter even more complicated, and the divisions over abortion that much wider.” I predict, to the contrary, that the legal complexities will fall away, because political incentives will deter domicile-based regulation of women, leading politicians, grudgingly or happily, to regulate the clinics alone using a simple lex loci delicti conflicts of law rule. As for political divisiveness, I have no doubt that anti-abortion activists will be frustrated (and pro-choice ones, elated) by caravans of buses crossing state lines. Those activists will, however, lose SCOTUS as a visible target for their frustration. They will have to content themselves with enacting anti-abortion restrictions that will gradually become as emptily symbolic as fault-based divorce laws did in the 1960s. Just as the latter lost all practical effect with the rise of ex parte divorces in Reno, the former will gradually become impractical relics that can be evaded with a bus ticket rather than a lawsuit.

In short, I predict that overruling Roe/Casey will promote civil peace. But will it provide pluralistic respect to both of the contending sides, by giving pro-choice and pro-life factions geographic enclaves in which their respective views can prevail through subnational democratic processes? I am doubtful. The decentralized uniformity produced by foot-voting is faux pluralism: It shortchanges any constituencies that benefit from the regulations that foot-voters evade. For pro-life voters, those constituencies consist of footless fetuses/unborn infants whose interests the pro-life voters believe are ignored by foot-voting migrants who carry them. Pro-life voters might rightly argue, therefore, that the diversity of legal regimes produced by federal decentralization is a practical fraud. Federalism does not equally accommodate rival views on abortion, anymore than devolution of usury law has produced diverse regulation of credit cards. Instead, women seeking abortions will escape restrictive laws by visiting uniformly pro-choice states just as banks evade limits on credit card charges by sending their card operations to South Dakota.

My tentative view, therefore, is that the federal devolution of abortion scores higher on civil peace than on democratic pluralism. It is difficult to argue, however, that Roe/Casey performs better on either of these criteria. So two cheers for the Potemkin pluralism of federal devolution: It will likely disappoint anti-abortion activists, but it will do so without endlessly miring our politics in the bitter struggle that Roe/Casey has provoked for almost a half-century.

Posted by Rick Hills on December 5, 2021 at 06:31 AM | Permalink

Comments

“In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.”


JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAGAN join, dissenting.

They believe abortion to be a constitutional right and that the right to privacy trumps the right to life.

Oh what a tangled web has been weaved by those who consider the lives of certain innocent beloved sons and daughters to be a burden and not a Blessing.

In this, Slavery, The Holocaust, and Abortion, are all cut from the same thread, a state sponsored destruction of human life, due to the denial of the inherent equal Dignity of the human person. If the Constitution does not serve first and foremost to protect and secure our inherent Unalienable Right to Life, upon which our inherent Right to Liberty and The Pursuit of Happiness depends, it has become merely a dead letter.

Posted by: N.D. | Jan 26, 2022 11:44:11 AM

They are personalised sweatshirt in london which is good.

Posted by: Aqsuk | Dec 21, 2021 9:43:29 AM

"In short, the only way that state politicians can interdict pro-choice migration is to sacrifice their most valued rhetorical posture of attacking the clinic rather than the woman who uses it. I predict, therefore, that the politics of case captions will deter anti-abortion DAs and attorneys general from bringing such cases or state legislators from allowing them to be brought."

I'm not sure that going after the women is the "only way". Why wouldn't the foes of abortion go after the bus companies and the funders on an aiding and abetting theory? Couldn't they under state law seize the buses as instrumentalities of a crime. And if the funders (out of state, lets assume) are paying entries in the state for something illegal under state law (even if the final act is out of state) isn't this a pretty solid nexus for the mess of choice of law?

Posted by: Randy Milch | Dec 10, 2021 7:04:47 PM

Thanks, Ken. I understand thst criminal “prescriptive jurisdiction” that follows a citizen’s domicile is common in international law. (I. Glenn Cohen has a nice discussion in “Circumvention Tourism,” 97 Cornell L. Rev. 1309 (2012)). But has such criminal jurisdiction ever been recognized in purely domestic interstate conflicts between two states’ criminal laws? I was unaware and would love to have some examples.

Posted by: Rick Hills | Dec 9, 2021 6:00:35 PM

The problem with choice of law analysis here is that criminal law conflicts have generally been treated as matters of jurisdiction to prescribe, not choice of law--if you have jurisdiction to prescribe, that is traditionally enough. "Fraud on the law" (leaving a place to do something illegal there and then coming back) has a long US history, concerning dueling and prizefighting as well as abortion: in other words citizenship jurisdiction (called nationality jurisdiction in transnational crime) has a pretty long history here. And the federal courts have not generally applied personal jurisdiction rules to criminal cases--if there is jurisdiction to prescribe, no further jurisdiction to adjudicate is needed as a matter of federal constitutional law.
As for the claim that there is name-of-defendant problem--yes that's true, but I don't think it's as important as you do. IIRC, most of the anti-abortion laws in the old days criminalized the conduct woman who received an abortion as well. I expect that a number of legislatures will do that again, with few prosecutions resulting.
So, I'm not at all sure that the pessimists are wrong.
Now I need to go back and read Kreimer's article.

Posted by: Ken Gallant | Dec 9, 2021 5:28:17 PM

James Grimmelmann writes: “I would like to see your analysis of whether and how anti-abortion states might attempt to restrict their residents' access to abortions by applying their laws against the out-of-state clinics performing those abortions. In light of the SB8 litigation, and the Supreme Court's willingness to revisit previously settled legal questions, it does not strike me as obvious that such attempts are doomed to fail.”

James, I think it is fair to say that Bristol-Myers Squibb v Superior Court (1027) narrowLT construed the states’ power to assert “specific” personal jurisdiction by requiring something like a causal link between the injury and the “minimum contact” supporting jurisdiction. Moreover, Alito at least has stated in his concurrence in Ford Motor Co v Montana Judicial District Court (2021), that he is committed to the requirement of such a causal link.So, unless a clinic specifically solicits business in another state (say, through billboards or radio ads, for instance), I really doubt that the state could assert jurisdiction merely because one of their domiciliarles ended up using that clinic. There just would not be the sort of “purposeful availment” that the current doctrine seems to require. (Even forum-state-specific ads might not be enough btw).

But would the SCOTUS revisit these very recent cases just to allow states to get grabby with out-of-state abortion clinics? I doubt it: The conservative wing of SCOTUS has tended to be more suspicious of states’ aggressive extension of their long-arm statutes, perhaps because such suspicion protects out-of-state corporations from a grabby plaintiffs’ bar. Gorsuch and Thomas in their Ford Motor Co. concurrence have suggested that the whole framework for specific jurisdiction might be so confused that the area should be revised to be consistent with 19th century understandings of corporate presence in a state. But they have not offered much in the way of hints about how they’d do so, beyond citing Stephen Sachs’ excellent article. Even under 19th century understandings of corporate presence, however, I do not see how a clinic in, say, Illinois is somehow present in, say, Mississippi merely because a client from Mississippi shows up in Illinois.

So I’d say that the clinics are pretty safe behind pro-choice state boundaries — and, ironically, that’s because conservatives have resisted calls from liberals to broaden personal jurisdiction so that states can regulate greedy corporations! (See eg, Sotomayor’s dissent in Bristol-Myers).

Posted by: Rick Hills | Dec 5, 2021 2:11:28 PM

An update criticized a tweet regarding foot voting.

My reference is general there w/o going into the weeds there. That is, I'm not just talking about any one person.

But, if it is better, remove that part. Federalism is reasonable for many things. Then, there are basic human rights.

When THEY are involved, it is much less sensible.

Posted by: Joe | Dec 5, 2021 12:26:58 PM

"absence of waiting periods, sonograms, and other hurdles that are routinely added by anti-abortion state legislatures"

Such things will still be in place in many states that allow abortions.

If they ALSO will have a bunch of out of state travelers, there will be even more pressure for it. Others can figure out things regarding nearby non-abortion ban states there.

The book "Obstacle Course" explains in detail all the "marginal" and non-marginal burdens in place already. Now, we have on top of that the need to travel out of state (more than that already is required already). A lot more than "six hours" at times is necessary already.

But, what of the "civil peace" benefits? Well, only "a few" prosecutions will be brought. A few already are brought now. We can handwave things there if we believe hard enough, surely. All things have costs!

Courts will still be a battlefield too. Abortion will continue to be a major issue politically just like guns was with or without D.C. v. Heller.

Plus, especially in certain places, there will be less safe abortions. Instead of "six" hours of travel, there is likely to be some sort of black or gray market of abortion pills. "A few" people will also have abortions via the "Jane" system of yore, which in "a few" cases will lead to major problems.

In the end, I question this "civil peace" argument, though admit a live experiment, with the rights of persons at risk, will help us see what happen. And, to be blunt, I think it goes down better when you do not really find the right at issue important. Some "vote by feet" mechanism for slavery, for instance, isn't call for.

Well, a form of it is, but don't worry, it won't be enforced THAT much.

Posted by: Joe | Dec 5, 2021 12:15:53 PM

I would like to see your analysis of whether and how anti-abortion states might attempt to restrict their residents' access to abortions by applying their laws against the out-of-state clinics performing those abortions. In light of the SB8 litigation, and the Supreme Court's willingness to revisit previously settled legal questions, it does not strike me as obvious that such attempts are doomed to fail.

Posted by: James Grimmelmann | Dec 5, 2021 10:56:27 AM

“But I predict that those who favor a constitutional right of fetuses to be free from abortions will be even more bitterly disappointed when they discover that reversing Roe/Casey actually does not stop abortions but merely moves them to interstate rather than intrastate transactions.”

Those who recognize that abortion is a violation of our inherent Unalienable Right to Life, just as slavery is a violation of our inherent Unalienable Right to Liberty, recognize that human persons are not chattel, subjects of commerce, and thus are not products for “interstate or intrastate transactions”.

Clearly a change of heart is necessary for those who desire to continue to deny the personhood of certain beloved sons and daughters residing in their mother’s womb, in order to justify the destruction of those lives through the act of abortion.

How then, do you begin to change the hearts and minds of those who see human life as a burden, and not a Blessing, if a State no longer desires to secure and protect our inherent, Unalienable Right to Life? If a State no longer has an interest and no longer believes it has a duty to secure and protect the inherent, Unalienable Right to Life of the innocent and most vulnerable, what does that reveal about that particular State?

Posted by: N.D. | Dec 5, 2021 9:14:43 AM

Asher asks: “Where will the women in … Mississippi, go on these Planned Parenthood-financed buses [to obtain an interstate abortion]?”

Asher, there’s no doubt that interstate travel adds to the marginal costs of getting an abortion. But the marginal burden is not prohibitive. By your own calculation, Roe/Casey’s reversal would add less than five hours to the car trip between Southern Mississippi and Cairo, Illinois, because someone in Hattiesburg would already have to drive for more than an hour to get to Jackson. I’m guessing that the additional driving required for interstate migration to an abortion-protecting jurisdiction is similar in the Midwest, because the state courts in Iowa and Kansas both protect the right to terminate a pregnancy under their state constitutions, providing other sanctuaries for women in Midwestern states. And so forth: More than half of the states protect the right to terminate a pregnancy, so there will generally be a sanctuary within a six-hour drive.

Adding 6 hours of driving to the cost of getting an abortion is not a trivial cost. Note, however, that such a cost should be offset by the absence of waiting periods, sonograms, and other hurdles that are routinely added by anti-abortion state legislatures, permitted by Casey, but absent in pro-choice states. In other words, the marginal costs of reversing Roe/Casey are real, but it is not obvious to me that they will suffice to stop interstate deregulation of abortion, because the marginal benefits of Casey’s “undue burden” test as protections for the right to an abortion are more modest than its defenders recognize.

Those who support a right to terminate a pregnancy are correct to be disappointed by Roe/Casey’s reversal. But I predict that those who favor a constitutional right of fetuses to be free from abortions will be even more bitterly disappointed when they discover that reversing Roe/Casey actually does not stop abortions but merely moves them to interstate rather than intrastate transactions.

Posted by: Rick Hills | Dec 4, 2021 8:13:47 PM

I'm just struck by how sanguine your take on the practical upshot of a post-Roe world is. Where will the women in the state in Dobbs, Mississippi, go on these Planned Parenthood-financed buses? Southern Illinois, seven-and-a-half hours from southern Mississippi? Not Kentucky; they have a trigger law and an overwhelmingly Republican state legislature. Not Alabama, or Georgia or Louisiana or Arkansas or Tennessee.

Posted by: Asher | Dec 4, 2021 7:11:16 PM

Interesting, and even surprising I must admit here.

Yet, what bothers me in that post or ideas presented, is as if, the supremacy of the constitution, as well the very existence of federal courts, were totally ignored almost here all around.

I mean, fourth amendment, second amendment, bunch of constitutional issues are hectically discussed in federal courts, and, as if, it is possible, that an issue like abortion or not, would stand alone as a state issue.

And how exactly ? The right for abortion or not, is a sublime constitutional issue in federal terms. How would it happen then? On one hand the viability of the fetus, on the other hand, the right of one woman for privacy and exercising autonomy on her body and soul. Can it go missing here ?

And effectively, bunch of preliminary injunctions would be issued here by federal courts. Even universal injunctions etc.... Women and clinics would petition courts endlessly.

Doesn't really make sense with all due respect.

In political terms, well:

I am pretty convinced, that once politicians have done everything they could, in legislative terms, to fight abortions, that would be sufficient. Because, no one really believes anyway, that "the oligarchs of the West coast" as stated by Abbot, would ever comply with pro-life approach. Hey, and last time checked by me, they are both pure Americans, and living there actually.

But, surprising one.....

Thanks

Posted by: El Roam | Dec 4, 2021 5:48:56 PM

Peter Gerdes notes, “The only reason these states can't stop their citizens from getting abortions is that the voters don't want them to punish women who get abortions.” So why are the pro-life states being shortchanged by their exiting citizens?

Fair point: If Texas (for instance) is unwilling to detain those migrating women from crossing state lines because the political optics are bad, then maybe that’s an indication that Texan politicians are less serious than they claim about their rhetoric analogizing abortion to homicide/infanticide. Talk is cheap: Arresting women who cross borders is politically expensive.

And maybe that’s an advantage of nationalizing the deregulatory abortion regime through foot-voting rather than SCOTUS decisions. The former might more forcefully than the latter force politicians to be explicit about how far they will go to enforce a restrictive regime that they say they support in theory. SCOTUS decisions that prohibit such restrictions relieve these politicians of the need to be so explicit in their legislation, thereby allowing them to indulge prohibitionist rhetoric that they know they’ll never have to back up with prohibitionist action. Forcing politicians to take responsibility was James Bradley Thayer’s justification for judicial deference to political determinations: To paraphrase Mencken, Thayer thought that politicians knew what they wanted and deserved to get it good and hard.

Posted by: Rick Hills | Dec 4, 2021 4:26:26 PM

I guess I don't understand in what sense those pro-life states are being in some way shortchanged. This isn't even a case like with say drugs where it's an enforcement difficulty. The only reason these states can't stop their citizens from getting abortions is that the voters don't want them to punish women who get abortions.

I mean every law has costs to it and this is just a usual case where voters feel the costs are too high

Posted by: Peter Gerdes | Dec 4, 2021 3:49:33 PM

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