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Monday, December 06, 2021

Will (Should) Congress Use Its FF&C “Effects” Power to Regulate Post-Roe “Abortion Tourism”?

Neil Buchanan over at Dorf on Law has asked about the odds of Republicans in Congress proposing a post-Roe/Casey statutory ban on abortions, a proposal that, Neil suggests, would expose the GOP’s insincerity on federalism. Over here on Prawfsblawg, Howard has suggested that such a GOP proposal would not necessarily be hypocritical, because Republicans object not so much to the centralization of the abortion issue but rather to juristocracy: According to Howard, Congress’ democratic credentials would legitimize such proposals from the GOP’s point of view.

Contrary to Neil, I think that the odds of the GOP’s enacting any federal ban on abortion are vanishingly small, but not because the GOP reps are sincere about federalism. (I assume that all pols are mostly sincere only about one thing: getting reelected). Rather, federalism gives political cover to GOP representatives who need to duck a risky vote: “Let the States Decide!” is a great way to placate the suburban parts of one’s district without openly antagonizing the median (not diehard) pro-life voter. Contrary to Howard, however, I do not think that the GOP has any antipathy for juristocracy: The GOP’s 2016 Platform embraces both centralization and juristocracy by calling for a fetal right to life protected by the 14th Amendment.

There is, however, one sort of federal statute on abortion that Congress might be pressured to enact despite the electoral insurance provided by federalism described above: Congress might exercise its power under Article IV, section 1 to “prescribe…the effect” of states’ “public acts” prohibiting abortion. As I suggested in an earlier post, “abortion tourism” might severely undercut the power of pro-life states’ anti-abortion laws. If substantial numbers of women who can afford the trip travel to abortion clinics in pro-choice states, pressures might mount from anti-abortion activists for Congress to step in to decide what law ought to apply to such interstate transactions. (Note btw that out-of-state clinics are sometimes physically closer to women’s hometown than intrastate clinics, because the latter are few and far between in anti-abortion states). The model for such legislation would be the Parental Kidnapping Prevention Act, which provides federal standards governing the obligations of state courts to give full faith and credit to the child custody decrees of other states.

Does Congress have the power to choose a conflicts-of-law rule under which the pro-life states’ anti-abortion laws would follow their domiciliarles wherever they travel? After the jump, I suggest that SCOTUS has reasons to place constitutional limits on Congress’ “Effects” power to prohibit such a rule. Moreover, even anti-abortion members of Congress might be secretly pleased by this judicial limit on their power. Why? Because both SCOTUS and those congresspeople might value what I shall call a “Maltese civil peace” in which anti-abortion restrictions are tempered by the right to travel. For SCOTUS and Congress, this right of exit has the virtue of a safety valve: It protects the stability of the federal compromise on abortion by reducing the incentives of middle-class, educated women to lobby for the imposition of a centralized pro-choice rule on the entire nation.

1. What do precedent, history, and structure say about Congress’ use of the “Effects” power to impose either a domicile- or territorial-based conflicts-of-law rule on abortions?

On the legal merits, I think that the law is ambiguous. Stephen Sachs has laid out an originalism-inflected theory of the “Effects” power that gives Congress virtually unlimited power to declare the effect of a state law. I have criticized that theory on the pragmatic ground that it would create a “preposterously centralized regime…for no better reason than what a bunch of lawyers said about Mills v. Duryee between 1813 and 1822.” You should decide for yourself.

But, as you decide, keep in mind that it would not be completely far-fetched for the SCOTUS to allow congressional selection of a domicile-based rule for abortions. As I noted in my earlier post, the interest-based FF&C analysis favored by the precedents seems to allow states to extend their laws to protect their domiciliaries, and maybe a fetus/unborn infant counts as such. Again, the obvious analogy is child custody: Lower courts have generally held, despite the parents’ right to travel, that states may bar parents from leaving the state as part of the enforcement of child custody decrees.

Against such a domicile-based rule is the very long tradition of states’ using the law of the place of alleged offense to govern crimes. Most categorically stated in Nielsen v. California (1909), the rule provides that “for an act done within the territorial limits of [a state], under authority and license from that state, one cannot be prosecuted and punished by [another state].” (Dicta from Bigelow v. Virginia offers much the same categorical declaration regarding anti-abortion laws).

Could a tradition-minded SCOTUS cite Nielsen to bar Congress from extending states’ anti-abortion laws across state lines to cover out-of-state abortion clinics? One obstacle to such a judicial limit on Congress’ “Effects” power is that the latest batch of anti-abortion laws in the model of Ohio’s SB 8 are not actually “criminal laws” in the strict sense, because they provide for private enforcement. Nevertheless, such laws might plausibly be best described as “penal,” and the traditional rule for “penal laws” is still “territorial” to protect the “sovereignty” of the state in which an allegedly wrongful act occurs. In international contexts, a “passive personality” rule (see Restatement (Third) Foreign Relations Law, section 402(2) allows nations to extend their laws to govern the conduct of their citizens abroad. But it is not obvious that the retained sovereignty of states would not restrict the domestic imposition of such a rule by Congress.

My very tentative intuition, therefore, is that a tradition-minded SCOTUS (e.g., Gorsuch and Thomas) could go either way, either imposing a territorial limit on Congress or allowing Congress to choose a domicile-based rule. To back up the former, they might rely on Doug Laycock’s classic 1992 article arguing that the very concept of equal and territorial states requires such territorialism. Against this option, however, they could instead opt for Sachs’ erudite originalist position and give Congress a free hand.

2. The incentives to choose a territorial rule to secure a “Maltese civil peace”

Suppose that you agree with me that the law here is ambiguous. What larger “pragmatic” concerns, beyond straight doctrine and history, might play a role in SCOTUS’s decision regarding the “Effects” power?

Suppose, in particular, that both SCOTUS and GOP congresspeople wanted to reduce the political conflict arising out of abortion restrictions. One way to achieve such conflict reduction is to impose a “territorial” conflicts-of-law rule on Congress. Such a rule leaves anti-abortion jurisdictions’ laws intact but also insures that women with sufficient means can migrate to pro-choice jurisdictions to obtain abortions free from fear of civil suits or criminal prosecutions.

Why would either SCOTUS or anti-abortion congresspeople want a rule that actually undermines enforcement of anti-abortion laws? One reason might be what I will call the desire for a “Maltese civil peace.” I base the term on the system of abortion regulation in the European Union, where Malta maintains one of the most restrictive anti-abortion laws in the world. In Vo v. France, the ECHR adopted the same regime that would govern the USA in a post-Roe/Casey world: Neither the fetal right to life nor the woman’s right to obtain an abortion are protected by central law. Such a regime naturally provokes a lot of “abortion tourism” by Maltese women seeking abortions abroad, sometimes aided by abortion referral services and underground travel networks.

Whatever its merits or demerits from the point of view of either pro-choice or pro-life advocates, this “Maltese civil peace” has attractions for those in charge of any federal system where pro-life and pro-choice jurisdictions are supposed to co-exist. The reason is that the right to travel provides a safety valve that reduces visible conflict over abortion. The people who can take advantage of that right to travel will usually be people with sufficient money and education to identify and pay for travel options to abortion providers abroad. Because wealth and education are highly correlated to political influence, these constituents will also tend to be the most vocal and effective activists in favor of centralizing a pro-choice regime. To the extent that politicians and judges want to reduce conflict arising out of abortion politics, therefore, they might favor a safety valve that reduces the incentives of this group for abortion-related political activity. One might regard the “exit” option provided by the “territorial” conflicts rule as a way to mute abortion-related “voice” with an “exit” option as described by Albert Hirschman: By providing an abortion option to those most likely to overturn the federal accommodation, the territorial rule thereby protects that accommodation.

If the SCOTUS overrules Roe/Casey, then it will be in the same position as the European Union under Vo v. France: There will be neither a centrally protected right to life nor a centrally protected right to choose abortion. That sort of mixed federal regime is naturally unstable, as Will Baude has noted. The moral intensity with which pro-life and pro-choice activists approach the issue of abortion impels each to nationalize their preferred rule. It is not obvious that a house so divided can stand.

SCOTUS — or, at least, Chief Justice Roberts — might be aware of this instability. Allowing anti-abortion regimes to be extended into neighboring states with a domicile-based rule increases that instability. It cuts off exit and thereby provokes more vocal dissent from the mixed regime protected by the federal accommodation. One can imagine, therefore, that Roberts might favor a conflicts-of-law rule that shores up an uneasy federal compromise. The “Maltese civil peace” described above has at least that attraction.

As for anti-abortion members of Congress, they would likely welcome any conflicts-of-law rule that did not mobilize suburban women against them. The territorial rule has that virtue, from their point of view. Moreover, a SCOTUS decision that barred Congress from overturning such a rule would provide them with political cover, protecting them from their more diehard anti-abortion constituents. For this reason, they might secretly welcome a SCOTUS decision that struck down a domicile-based rule that allowed anti-abortion states to be maximally grabby, even as such politicians loudly denounced the SCOTUS for the decision. Following the Whittington theory of judicial review, the SCOTUS would be helping out politicians by taking issues off the agenda that expose those pols to more political risk.

In short, I do not have confident predictions to make, but, if forced to place a bet, I would guess that SCOTUS and Congress will gravitate towards a territorial rule for governing state regulations of abortion clinics. Whatever the ambiguities in the precedents and originalist history, the territorial rule best reduces political risks for the pols and protects the stability of the post-Roe/Casey system of federalism.

Posted by Rick Hills on December 6, 2021 at 03:14 PM | Permalink


>Joe implies that the “political risk” posed by judicial recognition and enforcement of national rights ought to be irrelevant to the willingness of Courts and Congress to protect those rights. As he puts it, “National rights are risky.”

That sounds weak when you frame it so bluntly, huh?

As noted, a blog post (or comment) can be an inexact medium.

I surely do not think prudence [if I may use that framing] should never be a factor when drawing lines involving such an open-ended thing as "national rights."

But, there are certain basic rights that we do have, and taking everything into consideration, it's good we do. It's fine to debate the details (I myself offered a rejoinder on the details in another comment).

Rights of free speech, religious liberty, freedom from slavery et. al. are risky. But, if your campaign is to put every basic constitutional right, every basic human right, to some "civil peace" test or whatever, go at it.

I think your analysis of the details repeatedly are wrong too here. Anyway, I thank you again for leaving open the comments.

Posted by: Joe | Dec 11, 2021 10:35:41 AM

Joe implies that the “political risk” posed by judicial recognition and enforcement of national rights ought to be irrelevant to the willingness of Courts and Congress to protect those rights. As he puts it, “National rights are risky.”

This is the starting point for a long conversation, Joe — one that probably isn’t suited for comments on a blog post. The question of whether or not the recognition of a “national right” should turn on whether some national consensus approves of the right is a controversial one. The critical case is Washington v. Gluckberg, 521 U.S. 702 (1997), where Rehnquist’s majority opinion argued that the 14th Amendment did not protect a right to physician-assisted suicide, because no such right is “objectively, deeply rooted in this Nation's history and tradition.” Part of the investigation of whether such “deep objective roots” exist was the Court’s judicial inventory of existing state laws to see whether some critical mass of states protected or recognized the right in question.

One could cite Glucksberg for the proposition that the judicial assessment of political risk *is* relevant to whether some right ought to be recognized as a “national right” protected by the Constitution. One aspect of such risk, after all, is the percentage of the nation that rejects the right in question. If lots of state legislatures and state constitutions refuse to recognize the right and show a willingness to burden or violate it, then this lack of a consensus behind the right might be a sign that it should not be enforced as a national right. (FWIW I discuss this method of managing political risk in "Counting States," 32 Harv. J.L. & Pub. Pol’y 17 (2009)).

The famous cautionary tale of the SCOTUS’s getting out ahead of popular opinion is Furman v Georgia’s holding that the death penalty violated the 14th Amendment. The popular backlash to this decision arguably pressured the SCOTUS into backtracking in Gregg v Georgia (1976).

Glucksberg’s apparent reliance on popular consensus to define fundamental rights is not unique. Holmes’ dissent in Lochner also maintained that the 14th Amendment ought not to be construed “to prevent the natural outcome of a dominant opinion.” What constitutes a “dominant opinion” or “objectively, deeply rooted traditions” is obviously a tricky question: Presumably one would look not just to opinion polls at a particular moment in time but also to longitudinal studies of opinion. Perhaps the judicial surveying of state constitutions and statutes is a proxy for such a study.

But I do not believe that it’s good constitutional law for courts to define rights by relying on purely judicial intuitions about which liberties are “important” or “fundamental” while ignoring the degree to which large number of Americans have rejected or accepted those rights.

And I keep comments open because I am always happy to hear from readers. No need to worry about “saying too much”!

Posted by: Rick Hills | Dec 7, 2021 5:23:20 PM

"risky to nationalize"

National rights are risky.

Freedom of speech causes many disputes.

Basic control of one's body & all that is entailed here is not without problems. But, I think it best we have it. The breadth, as with all rights, including freedom of speech being more complicated. A basic floor? Less so.

This is not really just the "impassioned" -- the median position is some form of Planned Parenthood v. Casey, though it might be watered down some. Just "returning it to the states" -- even if it is a good idea [which is the argument by Prof. Hills] -- is a minority position.

It would be "politically risky" to do that. Chief Justice Roberts might be factoring in that when pushing for something a bit less complete.

I probably said too much & will now (including if a new thread arises) step aside. I appreciate comments being open.

Posted by: Joe | Dec 7, 2021 4:54:38 PM

PaulB writes: “It's too late to worry about Republicans seeking to federalize abortion law in a post-Roe world because Senators Sanders and Warren have beat them to it.” True enough — but the Democratic Party hasn’t taken a firm nationalizing position in their platform, have they? The GOP has, by declaring that the fetus has a 14th Amendment right to life that (presumably) Congress has a section 5 duty to protect with a statute. That makes it tough for individual GOP congresspersons to use federalism as political cover to duck what will, I predict, be a very risky vote likely harmful to GOP incumbents.

In both parties, impassioned rank-and-file members are pushing to nationalize an issue that is politically risky to nationalize. But the GOP perhaps rank-and-file push harder. In both cases, the rank-and-file members are driving each Party to “overreach” (Morris Fiorina’s term in Unstable Majorities), which may be responsible for the notorious midterm slump of the incumbent party.

Posted by: Rick Hills | Dec 7, 2021 12:06:14 PM

“Simply, the axis of Roe is viability, and the very scientific definition of viability may change (to more modern and advanced perception of definition of life). But, not Roe as stare decisis then.”

I suppose if the axis of our inherent Unalienable Right to Life was viability, in no way, shape, or form, could we have a Constitution that could possibly serve for the sake of the posterity or the prosperity of this Nation or the World.

Posted by: Nancy | Dec 7, 2021 11:04:05 AM

"Once one side of the debate claims that this is a national and not a state issue, you can't very well yell "hypocrisy" if the other side of the abortion debate takes them up on that"

This doesn't work.

Democrats think reproductive liberty is a constitutional right. They argue it is a national issue in that respect like voting or equal protection in the area of racial equality. They are acting consistently.

IF Republicans on principle believe it should be left to the states, "you started it," will not be an answer to hypocrisy. If they can pass a national ban, Republicans would equally have the power one would suppose to overturn the Democratic national abortion protection law.

This would CONSISTENTLY follow the Republican principle.

I'm not going to go into the weeds here on how pragmatically useful a national pro-choice statute. But, the argument here doesn't work.

Posted by: Joe | Dec 7, 2021 10:41:12 AM

It's too late to worry about Republicans seeking to federalize abortion law in a post-Roe world because Senators Sanders and Warren have beat them to it. Today's Salon has reported that they demand that Congress take action to legalize abortion in all states, and that to do so, it will be necessary to first abolish the Senate filibuster.

Once one side of the debate claims that this is a national and not a state issue, you can't very well yell "hypocrisy" if the other side of the abortion debate takes them up on that.

The idea that the national government should determine what if any restrictions should be set on abortion is a very, very bad idea for pro-choice supporters. On a state by state basis, places like Louisiana and North Dakota would presumably enact a near total ban on abortion but states offer almost no clinics where an abortion can be obtained. Do members from Vermont and Massachusetts really want to have their abortion rules set by a future Congress and President?

I do agree with Prof Hills that enough Republicans and probably some Democrats as well will view the argument that states should decide the matter as in their own best interests as well as in the interest of lowering the temperature of the debate. Assuming the SC upholds the Mississippi law, what is more important is the language used in the decision. If the court uses the occasion to provide a pro-life ruling while at the same time indicating that this is not a step in the reversal of Roe, things will calm down after the initial caterwauling of the Liz and Bernies of politics.

A final point that seems to be overlooked in articles about the case. In 2019 (per CDC), 92.7% of all abortions occur on or before 13 weeks. 99% occur on or before 20 weeks, and I'd be surprised if a significant number of those later are elective in nature.

Sorry to semi-hijack your post regarding abortion tourism but Howard wouldn't allow comments!


Posted by: PaulB | Dec 6, 2021 7:09:56 PM

Interesting, and bearing, many, or too many complications here.

But, we don't know yet of course, to what extent and if at all, Roe may be reversed. So, predictions are problematic. One particular theory is extremely interesting:

That in fact, formally, Roe wouldn't be reversed, but, abortions banned. And how ? Simply, the axis of Roe is viability, and the very scientific definition of viability may change (to more modern and advanced perception of definition of life). But, not Roe as stare decisis then.

But, to that point of territorial sovereignty or jurisdiction of one state:

Not to forget, the territorial jurisdiction, is the rule. Yet, general rule. It bears many exceptions. And this might become pretty ugly in legal terms:

Like, that even if the action of the offense, has been committed outside of the state at issue, yet, if the impact of it, has penetrated the state at issue, it may become definitely, the issue of that state. So, even traveling for abortion to another state, may become the issue of the state of origin of the pregnant woman one may argue. For, the person "assassinated" was present in the state, and just assassinated out of the state, while the "killer" has come back, and is present now here.

As such, committed out of the state, but, the effect, is projected or implied let's say, on the state at issue. Imagine conspiracy for drug trafficking outside California, but, final destination, is selling it, in California itself. Wouldn't it be the business of California then ? Even without any geographical nexus ! (at the very phase of conspiracy even).


Posted by: El Roam | Dec 6, 2021 6:20:52 PM

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