INTRODUCTION 401 I. THE NEW ABORTION LEGAL LANDSCAPE 406 A. The Anti-Abortion States 407 B. The Pro-Access States 412 C. Practical Impacts 413 II. CONSTITUTIONAL RESTRICTIONS ON EXTRATERRITORIAL ABORTION 416 REGULATION A. The Privileges and Immunities Clause of Article IV 418 1. The Right to Equal Treatment 420 2. The Right to Travel 423 B. The "Dormant" Commerce Clause of Article I, Section 8 439 III. VERTICAL CHOICE-OF-LAW PROBLEMS AND FEDERAL PREEMPTION 455 A. FDA Regulation of Mifepristone 456 1. The Federal Regulatory scheme 456 2. Preemption of State Law 461 B. Emergency Medical Treatment and Active Labor Act (EMTALA) 466 1. EMTALA'S Regulatory Scheme 466 2. EMTALA Preemption of State Anti-Abortion Law 468 3. Litigation Involving EMTALA's Preemption of State 471 Abortion Restrictions a. The Idaho Suit 472 b. The Texas Suit 476 IV. CIVIL SUITS AND CONFLICTS OF LAW 480 A. Personal Jurisdiction 481 B. Choice of Law 488 C. Recognition of Judgments and Retaliatory Suits 491 V. PRIVATE ACTORS AND CONFLICTS OF LAW 495 A. Private Employee Benefits for Abortion-Related Expenses 496 1. ERISA Preemption of State Regulatory Statutes 498 2. ERISA Preemption of State Criminal Statutes 500 B. Data Privacy 502 C. Religious Exemptions 509 CONCLUSION 517
INTRODUCTION
On the subject of abortion, the so-called "United" States of America are becoming more disunited than ever. The U.S. Supreme Court's precipitous decision in Dobbs v. Jackson Women's Health Organization overturned the nationwide framework for abortion rights that had uneasily governed the country for fifty years. (1) In the immediate aftermath of that decision, it is becoming increasingly clear that states governed by Republicans and those governed by Democrats are moving quickly and decisively in opposite directions. Indeed, since the U.S. Supreme Court issued its decision, at least nineteen states have increased restrictions on abortion access, (2) while at least twenty states and the District of Columbia have adopted new legal regimes focused on protecting the right to an abortion. (3)
These partisan and geographic divides create perhaps the biggest set of nationwide conflicts of law problems since the era of the Fugitive Slave Act before the Civil War. (4) Indeed, practically every aspect of the new abortion legal landscape is now characterized by uncertainty. Out-of-state abortion activity may give rise to in-state criminal prosecutions, as anti-abortion states attempt to punish those seeking abortions beyond their borders or those who perform the procedures. (5) Anti-abortion states are also seeking to ban the provision of abortion pills to in-state residents, a growing issue given that medication abortions now account for over half the abortions in the United States. (6) In addition, citizen "bounty hunters" may now bring civil suits against patients, abortion providers, their staff, and anyone who has "aided or abetted" an abortion, especially those associated with abortion funds. (7) These suits, whether criminal or civil, will be brought in the courts of anti-abortion states, but many of the defendants will either reside in another state or will have committed the acts giving rise to liability while in another state. Meanwhile, on the other side of the divide, pro-access states are enacting provisions seeking to block such extraterritorial criminal and civil enforcement of abortion bans or to allow their citizens to file retaliatory suits against those who file out-of-state suits against them. (8)
All of this legal activity will create a complex set of conflicts of law questions. To begin, there are potential "vertical" conflicts between state and federal law. Courts will be forced to probe the extent to which the U.S. Constitution restricts state extraterritorial enforcement of these various civil and criminal schemes, under either the rubric of the equal treatment guarantee of the Privileges and Immunities Clause of Article IV, (9) the right to travel more broadly, (10) or the so-called "Dormant" Commerce Clause of Article I, section 8. (11) In addition, federal preemption may prevent states from limiting or prohibiting the use of the abortion drug mifepristone for its Food and Drug Administration ("FDA")-approved purpose, and provisions of the federal Emergency Medical Treatment and Active Labor Act ("EMTALA") might require hospitals even in anti-abortion states to provide emergency abortion care to patients experiencing pregnancy-related complications and other emergency medical conditions, potentially in conflict with their own state law. (12)
Turning to "horizontal" conflicts of law questions, (13) statutes that allow civil suits against out-of-state entities inevitably raise questions of legal jurisdiction, as courts in anti-abortion states seek to assert legal authority over activity taking place entirely beyond their territorial borders. Next, choice of law problems may arise from the differences between the legal regimes of the state asserting jurisdiction over such suits and the state where the relevant activity occurred. And, assuming judgments are actually issued against out-of-state actors, further questions emerge: Will those judgments be enforced in other states? And are statutes authorizing retaliatory suits permissible under the U.S. Constitution's Full Faith and Credit Clause? (14)
Finally, as legal pluralists have long observed, (15) non-state actors--in addition to formal legal entities--make decisions that regulate behavior. (16) In the abortion context, for example, employers' choices regarding whether to provide health care coverage for abortion and related expenses matter a great deal. Can an employer that chooses to provide coverage for such costs do so despite state civil or criminal laws to the contrary? In addition, given that private companies now routinely collect online search, location, and health data, how will conflicts among state abortion laws impact data privacy for people seeking abortions? And will private religious organizations be able to claim exemption from either anti-abortion or pro-access state laws by invoking the First Amendment? (17)
The answers to most of these questions are not at all clear under current law. And this uncertainty has serious consequences. Already, both medical providers and abortion funds across the country have felt compelled to curtail their operations even when care is provided only in states where abortion is legal. For example, Planned Parenthood of Montana ("PPMT") announced that it would no longer provide medication abortion to residents of various states that had banned abortion. (18) PPMT made this change to shield providers and staff from potential civil or criminal liability in an out-of-state patient's home state. In an email to staff, PPMT President and CEO Martha Fuller wrote, "The risks around cross-state provision of services are currently less than clear, with potential for both civil and criminal action for providing abortions in states with bans." (19) The issue for PPMT is that medication abortions are usually administered using two different drugs; one, mifepristone, is generally taken at a clinic, and the other, misoprostol, is taken at home twenty-four hours later. (20) Thus, if a patient from a state such as South Dakota, where abortions are illegal in almost all circumstances, (21) received a medication abortion from PPMT in Montana, South Dakota might treat the abortion as having occurred in South Dakota rather than Montana and therefore pursue legal action against PPMT under its abortion ban. In theory, South Dakota's existing abortion ban law applies within its borders only, but characterizing or localizing abortion expansively could allow the state to widen the scope of abortions impacted by their law. PPMT'S response demonstrates how care can be paralyzed by confusion about what law governs abortion-related conduct. The same is true for services that assist patients in obtaining abortions.
Abortion funds--private charitable organizations that provide monetary and logistical support to individuals who need help obtaining abortions--face similar challenges. These funds are more important than ever because when residents of anti-abortion states are forced to travel to obtain abortions, they will need more financial and logistical help than if they obtained an abortion locally. They will need to pay for travel, care, and often lodging because many states require multiple visits across multiple days before a person can obtain an abortion. Anti-abortion states, however, are likely to create liability for conduct that "aids and abets" abortion, even if that abortion occurs elsewhere. In Texas, for example, leaders of various Texas abortion funds have been sued under Senate Bill 8 ("SB 8") for "aiding and abetting" abortion. (22) In response, some abortion funds operating in anti-abortion states have begun to curtail their operations. (23)
This Article seeks to provide a comprehensive survey of how the various conflicts of law questions summarized above might be addressed in the abortion context. (24) Part I surveys the widely divergent state laws being debated or enacted in the country in the wake of Dobbs. Part II discusses potential constitutional challenges to the extraterritorial application of anti-abortion statutes. If statutes criminalize or impose civil liability on the actual person seeking the abortion, those statutes might be challenged under the Privileges and Immunities Clause of Article IV specifically, or as a violation of the constitutional right to travel more generally. (25) Alternatively, if statutes seek to impose criminal or civil penalties on out-of-state abortion providers or other actors, those statutes may be vulnerable to a challenge under the Commerce Clause. (26) Part III turns to potential federal preemption of state anti-abortion laws under the Food, Drug, and Cosmetics Act and EMTALA. (27) Part...
