Stephen Gardbaum on a Post-Roe World

Stephen A. Gardbaum (UCLA Law) has posted State and Comparative Constitutional Law Perspectives on a Possible Post-Roe World (St. Louis University Law Journal, Vol. 51, No. 3) on SSRN.  Here is the abstract: 

This essay comments on 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. By providing what I hope are some helpful and interesting details from state and comparative constitutional law, the essay underscores and supplements what Fallon says about two of the four common fallacies concerning the constitutional consequences of overruling Roe that he identifies in his lecture. These are that it would: (1) wipe the legal slate clean for new state statutes regulating abortion and (2) end federal court involvement in the abortion wars.

In explaining why overruling Roe would not automatically wipe the legal slate clean for new state statutes regulating abortion, Fallon points to the many pre-Roe statutes still on the books that would again become operative unless repealed. He also mentions the possibility that state constitutions may recognize abortion rights that the federal Constitution would cease to protect. In Part I of my essay, I elaborate on this latter possibility by providing details about existing state constitutional treatment of abortion, both protective and restrictive, that (unless amended) would take the issue away from state legislatures.

Contrary to the view that overruling Roe would end federal court involvement in the abortion wars because no significant constitutional issues would remain, Fallon argues that a host of complex issues about state power would arise in the likely event that some pro-life states seek to prevent their citizens from obtaining abortions in pro-choice ones. In Part II of my essay, I underscore his argument by providing examples from comparative constitutional law in which two federal high courts have already been presented with such issues and found them difficult to resolve. I also explain why constitutional issues of this sort have not been, and are unlikely to be, raised in certain other federal systems.