Tuesday, January 23, 2007
This essay responds to Professor Richard Fallon's 2006 Childress Lecture at St. Louis University School of Law, If Roe Were Overruled: Abortion and the Constitution in a Post-Roe World. Professor Fallon's paper exposes as fallacies four popular beliefs about the legal landscape after Roe's end, including the belief that states restricting abortion will and can reach conduct only within their territorial boundaries. As he persuasively explains, criminal authority probably extends beyond state lines, and the outer limits of a state's criminal legislative jurisdiction pose a host of contested issues, including the tension between national and state citizenship.
This response makes, and then develops, three principal points. First, it both explains and demonstrates why Professor Fallon's focus on fetuses and the place of conception misses the fact that, over the years and still today, abortion restrictions aim to police gender roles, not to protect fetuses. Second, it shows what this purpose of regulating gender means - under modern choice-of-law analyses and constitutional doctrine - for Professor Fallon's hypothesized criminal prohibitions on extraterritorial abortions. Third, it considers recent developments that suggest less controversial but equally effective alternatives for deterring out-of-state abortion activity: civil remedies, principally tort liability, but also injunctive relief.
This essay concludes by challenging Professor Fallon's self-proclaimed nonnormative position about whether the Supreme Court should overrule Roe. Instead, I express my opposition to overruling Roe, situating this opposition in a long line of important choice-of-law cases and commentary about rules that subordinated women and constrained their agency.