Thursday, May 26, 2022

The New Interjurisdictional Abortion Wars in the Post-Roe Era

Maya Manian, Interjurisdictional Abortion Wars in the Post-Roe Era, JOTWELL, reviewing, David S. Cohen, Greer Donley, and Rachel Rebouche, The New Abortion Battleground, 122 Col. L. Rev. __ (forthcoming 2022), available at SSRN.

The Supreme Court appears poised to overrule fifty years of precedent holding that pre-viability prohibitions on abortion are unconstitutional. In a leaked draft opinion of Dobbs v. Jackson Women’s Health Organization, Justice Alito proclaims that Roe v. Wade and Planned Parenthood v. Casey must be overruled and abortion left to the states to regulate. During oral argument in Dobbs, Justice Kavanaugh suggested that overturning Roe would return the Court to a position of “neutrality” on abortion. Justice Kavanaugh’s assertion falls in line with claims by anti-abortion jurists that reversing Roe would simplify abortion law by returning the issue to the states and getting the federal courts out of the hot-button issue of abortion.

In their draft article The New Abortion Battleground, forthcoming in the Columbia Law Review, David Cohen, Greer Donley, and Rachel Rebouche thoroughly disprove the notion that abortion law will become simpler if and when the Court overturns Roe. Given increasingly pitched polarization between red and blue states, the authors show how the abortion wars will continue in the federal courts—but will shift from constitutional battles over fundamental rights to liberty and equality to fights over principles of federalism and interstate comity raised by interjurisdictional conflicts between states and between the federal government and the states. The article is a must read for scholars and legal advocates preparing for the aftermath of the Supreme Court’s decision in Dobbs.

The article describes interstate conflicts over abortion that will inevitably emerge given that some states will seek to restrict their citizens’ out-of-state travel for abortion care while other states will seek to protect the provision of abortion care to out-of-state patients within their borders. Potential conflicts could also arise between an actively abortion-supportive federal government and anti-abortion states. The article’s primary contribution is to map out the complex legal questions that will ensue from Roe’s reversal on both the horizontal and vertical axes of interjurisdictional conflict. 

https://lawprofessors.typepad.com/gender_law/2022/05/the-new-interjurisdictional-abortion-wars-in-the-post-roe-era.html

Abortion, Courts, Reproductive Rights | Permalink

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