by Soleil Ball Van Zee *

The Supreme Court’s deci­sion in Dobbs v. Jack­son Women’s Health Orga­ni­za­tion left the deci­sion about whether to crim­i­nal­ize or pro­tect access to abor­tion care sole­ly in the hands of the states.1 In response to this man­date, states are imple­ment­ing diverg­ing leg­is­la­tion reg­u­lat­ing abor­tion that extends beyond their own state lines. With­out deci­sive fed­er­al action, indi­vid­ual states, either by pros­e­cut­ing indi­vid­u­als for facil­i­tat­ing abor­tion across state lines or by refus­ing to extra­dite indi­vid­u­als who have bro­ken the law in anoth­er state by seek­ing an abor­tion, are at risk of throw­ing the care­ful bal­ance of fed­er­al­ism into disarray.

How­ev­er, by hold­ing that the right to abor­tion is not found any­where in the Con­sti­tu­tion,2 the Dobbs Court pre­vent­ed Con­gress from pro­tect­ing the right through its leg­isla­tive pow­ers under the Four­teenth Amend­ment, either by iden­ti­fy­ing an indi­vid­ual right to abor­tion or by link­ing the right to anoth­er already rec­og­nized under the Amend­ment.3 There­fore, to cre­ate leg­is­la­tion that enshrines the right to abor­tion and sur­vives scruti­ny from the Dobbs Court, Con­gress should look instead to its past reg­u­la­tion of inter­state com­merce. A statute that specif­i­cal­ly tar­gets the inter­state eco­nom­ic impact of abor­tion access and relat­ed care may be able to with­stand the Court’s scruti­ny under the Com­merce Clause.

Ulti­mate­ly, any ben­e­fit of fed­er­al leg­isla­tive pro­pos­als to pro­tect abor­tion access must be weighed against the pos­si­bil­i­ty of leg­isla­tive pro­pos­als to ban abor­tion using pre­cise­ly the same jus­ti­fi­ca­tions. Ongo­ing polit­i­cal grid­lock and the lack of a super­ma­jor­i­ty for any polit­i­cal par­ty has made the pas­sage of fed­er­al leg­is­la­tion that legal­izes or bans abor­tions unlike­ly. More­over, even if fed­er­al abor­tion leg­is­la­tion becomes legal­ly fea­si­ble, the polit­i­cal real­i­ties of imple­men­ta­tion and back­lash in this area may still dis­cour­age any move­ment on fed­er­al legislation.


Pri­or to the Court’s 1973 recog­ni­tion of a con­sti­tu­tion­al right to abor­tion in Roe v. Wade,4 states had the abil­i­ty to deter­mine the metes and bounds of abor­tion on a state-by-state basis. Nine states did not repeal their leg­isla­tive abor­tion bans fol­low­ing the Roe deci­sion.5 There­fore, from 1973 to June 2022, these laws were not enforced, as they were uncon­sti­tu­tion­al dur­ing that time peri­od. After Dobbs, these laws can the­o­ret­i­cal­ly be enforced again, although the enforce­abil­i­ty of pre-Roe abor­tion bans is cur­rent­ly being lit­i­gat­ed.6 For exam­ple, the Wis­con­sin Attor­ney Gen­er­al filed a law­suit seek­ing a declara­to­ry judg­ment against the leg­is­la­ture find­ing that the 1948 law ban­ning abor­tion is unen­force­able.7

Many states have instead cho­sen to pass new leg­is­la­tion restrict­ing or ban­ning abor­tion fol­low­ing Dobbs. After the Dobbs deci­sion was leaked, a total of 13 states passed laws that would ban abor­tion once Dobbs was issued or short­ly after.8 These statutes were designed to ban or severe­ly lim­it abor­tion access across the enact­ing state after Dobbs became law. Some of these laws had bans that imme­di­ate­ly went into effect,9 and oth­ers includ­ed a 30-day delay after a judi­cial deci­sion return­ing the reg­u­la­tion of abor­tion to the states before the state law would become effec­tive.10 How­ev­er, the effi­ca­cy of trig­ger laws remains uncer­tain as state court judges have issued stays on trig­ger laws in Michi­gan11 and Min­neso­ta.12

States inter­est­ed in ban­ning abor­tion are not sole­ly inter­est­ed in restrict­ing abor­tion access with­in their own bound­aries. Leg­is­la­tors have attempt­ed to tar­get those who seek to aid peo­ple in obtain­ing abor­tion care, which can reach across state lines and impact out-of-state providers and patients. In Mon­tana, Planned Par­ent­hood stopped pro­vid­ing med­ica­tion abor­tions to patients who came from oth­er states out of “fear [providers will] be tar­get­ed by out-of-state pros­e­cu­tors for offer­ing ser­vices to res­i­dents from states with bans.”13 Many of these laws fol­low the unique legal frame­work of Texas Sen­ate Bill 8 (“SB 8”), passed in Texas in 2021, that dep­u­tizes pri­vate cit­i­zens to sue any­one who “aids or abets” the pro­vi­sion of an abor­tion after six weeks of preg­nan­cy.14 Under the law, pri­vate plain­tiffs are incen­tivized to bring civ­il actions with an award of $10,000 or more for suc­cess­ful suits.15

Ida­ho has recent­ly passed a sim­i­lar law that bans abor­tions six weeks into preg­nan­cy.16 This bill fol­lows SB 8’s struc­ture by allow­ing rel­a­tives of the abort­ed fetus to sue abor­tion providers for per­form­ing abor­tions after six weeks of preg­nan­cy.17 It does not how­ev­er, crim­i­nal­ize the patients who obtained the abor­tions.18 Rather, licensed health-care pro­fes­sion­als who per­form abor­tions are crim­i­nal­ly liable for a felony and eli­gi­ble for sen­tences up to five-years impris­on­ment.19 In August 2022, the Depart­ment of Jus­tice (“DOJ”) filed a law­suit to enjoin enforce­ment of crim­i­nal penal­ties on med­ical providers that pro­vide abor­tion care in emer­gency sit­u­a­tions.20 The DOJ’s suit alleged that the law con­tra­dicts the prin­ci­ples of the Emer­gency Med­ical Treat­ment and Labor Act (EMTALA), which requires med­ical-care facil­i­ties that receive fed­er­al fund­ing through Medicare to pro­vide “sta­bi­liz­ing treat­ment” to patients.21

One of the most restric­tive abor­tion laws in the nation, House Bill 4327, was signed into law by Oklahoma’s gov­er­nor on May 26, 2022.22 This bill bans abor­tion begin­ning at fer­til­iza­tion, with excep­tions for preg­nan­cy that was the result of rape, sex­u­al assault, or incest that has been report­ed to law enforce­ment, or to save the life of the preg­nant woman.23 The law also does not apply to the “use, pre­scrip­tion, admin­is­tra­tion, procur­ing, or sell­ing” of morn­ing-after pills such as Plan B or any oth­er type of con­tra­cep­tion.24 Like SB 8, it per­mits pri­vate indi­vid­u­als to sue abor­tion providers and any­one who “per­forms or induces” or “aids or abets the per­for­mance” of an abor­tion.25 The bill also per­mits indi­vid­u­als to be sued if they “intend[] to engage” in per­form­ing an abor­tion, even with­out actu­al­ly doing so.26

These state laws demon­strate how states have sought to enforce abor­tion restric­tions beyond their own state lines. Since the Court has man­dat­ed that states dic­tate what abor­tion pro­ce­dures to per­mit or restrict, state leg­is­la­tures may con­tin­ue to become even more cre­ative in their attempts to com­plete­ly restrict abor­tion access, even extrater­ri­to­ri­al­ly. Texas has already done so through SB 8, which allows civ­il lia­bil­i­ty to be imposed for “pay­ing for or reim­burs­ing the costs of an abor­tion through insur­ance or oth­er­wise.”27 Under this sec­tion, non-prof­its who pay for the cost of an indi­vid­ual to trav­el out­side of Texas to receive an abor­tion could be liable.

On the oth­er side of the abor­tion leg­is­la­tion con­flict, 21 states and the Dis­trict of Colum­bia have either pro­tect­ed the right to abor­tion or expand­ed access to abor­tion since the Dobbs deci­sion.28 For exam­ple, Wash­ing­ton state passed a law pro­hibit­ing adverse action against those who seek an abor­tion or those who help them, seem­ing­ly direct­ly respond­ing to Texas’s SB 8 frame­work.29

States are not only respond­ing to Dobbs by pro­tect­ing the right to an abor­tion but are also prepar­ing for the col­lat­er­al con­se­quences of the Court’s deci­sion. States like Mary­land have passed laws that appro­pri­ate mon­ey to train med­ical pro­fes­sion­als, such as nurse prac­ti­tion­ers; nurse mid­wives; and physi­cian assis­tants, to per­form abor­tions.30 In Ore­gon, the leg­is­la­ture appro­pri­at­ed $15 mil­lion to help the state expand its abor­tion work­force.31 Con­necti­cut also recent­ly passed a law that would expand the num­ber of med­ical pro­fes­sion­als who can pro­vide abor­tions and would shield res­i­dent abor­tion providers from lia­bil­i­ty under oth­er states’ abor­tion laws.32

Oth­er states have proac­tive­ly passed statutes to pro­tect in-state providers from the reach of out-of-state reg­u­la­tions. For exam­ple, the Mass­a­chu­setts House recent­ly approved provider pro­tec­tion leg­is­la­tion which would make it more dif­fi­cult to col­lect a fine imposed by anoth­er state and to file a sub­poe­na from out­side Mass­a­chu­setts, as well as shield provider licens­es and insur­ance rates from the impact of out-of-state judg­ments.33 Under the law, if passed, Mass­a­chu­setts courts would be barred from order­ing any­one in the state to tes­ti­fy or pro­duce doc­u­ments for law­suits involv­ing abor­tion care, and judges would not be able to issue a sum­mons in a case con­cern­ing these health-care ser­vices unless the alleged offense would vio­late Mass­a­chu­setts law. Out-of-state res­i­dents who sue a Mass­a­chu­setts provider would have to per­suade an out-of-state judge that they have juris­dic­tion over an abor­tion per­formed in Mass­a­chu­setts. And if the out-of-state res­i­dent wins, they would then have to come to Mass­a­chu­setts to make that same argu­ment in a Mass­a­chu­setts state court. Sim­i­lar efforts are under­way in Cal­i­for­nia,34 Con­necti­cut,35 and Michi­gan.36 These laws have been enact­ed despite states being required under 18 U.S.C. § 3182 to extra­dite any­one who has com­mit­ted “trea­son, felony, or oth­er crime” to the state in which the fugi­tive com­mit­ted the crime. For years, the Extra­di­tion Clause was seen as nec­es­sary to “pre­serve har­mo­ny between States, and order and law with­in their respec­tive bor­ders . . . .”37

As states look to new and cre­ative respons­es to the gap­ing hole in abor­tion pol­i­cy cre­at­ed by Dobbs, each state will become increas­ing­ly inter­est­ed in pre­sent­ing leg­isla­tive solu­tions that extend out­side of their tra­di­tion­al ter­ri­to­r­i­al bound­aries. These efforts will inevitably infringe on the fed­er­al government’s tra­di­tion­al area of reg­u­la­tion: inter­state com­merce. Whether state leg­is­la­tion extends or restricts abor­tion access, these laws will affect the move­ment of peo­ple and resources across state lines. As more state leg­is­la­tion clash­es with oth­er state laws and inter­feres with the ter­ri­to­ry of fed­er­al reg­u­la­to­ry pow­er, the need for a cohe­sive fed­er­al frame­work regard­ing abor­tion will be essential.

State con­flicts are like­ly to emerge in two pri­ma­ry are­nas.38 The first will occur with the increased demand for abor­tion pro­ce­dures per­formed across state lines, tak­ing the form of inter­state tele­health and mail abor­tion pills.39 The sec­ond, and most con­cern­ing, will man­i­fest when an indi­vid­ual phys­i­cal­ly trav­els between two states, where one per­mits abor­tion and the oth­er does not.40

How­ev­er, state law tra­di­tion­al­ly only extends as far as its bor­ders. These ter­ri­to­r­i­al lim­its raise ques­tions about a state’s abil­i­ty to penal­ize out-of-state con­duct. Bigelow v. Vir­ginia is one of only a few cas­es that even tan­gen­tial­ly address if states can penal­ize out-of-state con­duct.41 In Bigelow, the Supreme Court found that a Vir­ginia statute pro­hibit­ing pub­li­ca­tions from encour­ag­ing indi­vid­u­als to obtain an abor­tion in anoth­er state infringed on the publisher’s First Amend­ment rights.42 In doing so, the Court expound­ed upon extrater­ri­to­r­i­al appli­ca­tion of state law, stat­ing that: “A State does not acquire pow­er or super­vi­sion over the inter­nal affairs of anoth­er State mere­ly because the wel­fare and health of its own cit­i­zens may be affect­ed when they trav­el to that State.”43 How­ev­er, Bigelow’s prece­dent is out­dat­ed, and schol­ars ques­tion its prece­den­tial effects post-Dobbs.44 Due to the more promi­nent polit­i­cal con­cerns, states will like­ly not be dis­suad­ed by Bigelow. Instead, many states seek­ing to expand abor­tion restric­tions would like­ly rel­ish the oppor­tu­ni­ty to approach the cur­rent Supreme Court about extrater­ri­to­r­i­al abor­tion restric­tions. Addi­tion­al­ly, ques­tions of where a crime occurred will be espe­cial­ly dif­fi­cult to answer in the era of elec­tron­ic health­care admin­is­tra­tion, which may allow for a loos­en­ing of once firm extrater­ri­to­r­i­al limits.

Tra­di­tion­al­ly, the fed­er­al government’s most impor­tant role was to estab­lish nation-wide pol­i­cy when con­flicts between state approach­es would threat­en to unrav­el the fab­ric of fed­er­al­ism.45 The Court, in over­rul­ing Roe and Casey, undid the nation­al uni­for­mi­ty cre­at­ed by a con­sti­tu­tion­al right to abor­tion and placed it into the hands of indi­vid­ual states, hun­gry to impose their increas­ing­ly polar­ized views as broad­ly as they can. Fed­er­al leg­is­la­tion at this point would pre­vent the vari­ety of dif­fi­cult ques­tions that will arise as states con­tin­ue to cre­ative­ly pass leg­is­la­tion that seeks to impose the strong­ly-held beliefs of its leg­is­la­tors upon peo­ple who reside in oth­er states.


Congress’s reg­u­la­to­ry pow­er is lim­it­ed to areas that sig­nif­i­cant­ly impact the abil­i­ty of the fed­er­al gov­ern­ment to act as a cohe­sive whole. Over the past 80 years, the sources of the fed­er­al government’s reg­u­la­to­ry author­i­ty in the Con­sti­tu­tion have shift­ed. The Court con­tin­ued this trend in Dobbs by severe­ly lim­it­ing anoth­er chan­nel of Con­gres­sion­al reg­u­la­to­ry author­i­ty under the Four­teenth Amend­ment. As a result, fed­er­al leg­is­la­tion regard­ing abor­tion will most like­ly find con­sti­tu­tion­al author­i­ty strong enough to with­stand a chal­lenge only if it is con­nect­ed to the inter­state eco­nom­ic impacts of abor­tion and repro­duc­tive-health reg­u­la­tion and is there­fore jus­ti­fi­able under the Com­merce Clause.

Pri­or to the Supreme Court’s deci­sion in Dobbs,46 the right to an abor­tion and – more broad­ly – the right to pri­va­cy were found in the Four­teenth Amend­ment. The Supreme Court in Roe v. Wade explained:

This right of pri­va­cy, . . . found­ed in the Four­teenth Amendment’s con­cept of per­son­al lib­er­ty and restric­tions upon state action, . . . is broad enough to encom­pass a woman’s deci­sion whether or not to ter­mi­nate her preg­nan­cy. The detri­ment that the State would impose upon the preg­nant woman by deny­ing this choice alto­geth­er is appar­ent.47

Sub­se­quent cas­es held that the right to pri­va­cy enshrined in the Four­teenth Amend­ment extend­ed beyond repro­duc­tive auton­o­my to liv­ing arrange­ments,48 sex­u­al activ­i­ty,49 and deci­sions to ter­mi­nate med­ical treat­ment that could pro­long life.50 Jus­tice Thomas’s con­cur­rence in Dobbs raised the pos­si­bil­i­ty that the broad­er under­stand­ing of a right to pri­va­cy expressed in prece­dent besides Roe may also be vul­ner­a­ble due to the Justice’s pre­vi­ous­ly expressed belief that “‘sub­stan­tive due process’ is an oxy­moron that ‘lack[s] any basis in the Con­sti­tu­tion.’”51

Sec­tion Five of the Four­teenth Amend­ment grants Con­gress the pow­er to enforce the rights of “life, lib­er­ty, or prop­er­ty,” “due process,” and “equal pro­tec­tion” through “appro­pri­ate leg­is­la­tion.”52 The broad hold­ing of Dobbs is that a right to abor­tion exists nowhere in the Con­sti­tu­tion, and thus Sec­tion Five of the Four­teenth Amend­ment is not the appro­pri­ate jus­ti­fi­ca­tion for Con­gress to use its leg­isla­tive author­i­ty. Giv­en the Supreme Court’s cur­rent artic­u­la­tion of rights encap­su­lat­ed by the Four­teenth Amend­ment, any attempt by Con­gress to jus­ti­fy fed­er­al abor­tion leg­is­la­tion under the Four­teenth Amend­ment would be futile.53

The Com­merce Clause there­fore pro­vides the next best author­i­ty for Con­gress to leg­is­late regard­ing the right to an abor­tion. Abor­tion, repro­duc­tive health­care, and trav­el­ing to abor­tion-care facil­i­ties have direct and indi­rect eco­nom­ic impacts on indi­vid­ual state economies, as well as the nation­al econ­o­my as a whole.54 Unit­ed States v. Lopez lays out the mod­ern test for deter­min­ing whether fed­er­al leg­is­la­tion falls with­in Congress’s pow­er to “reg­u­late Com­merce . . . among the sev­er­al states.”55 Lopez sorts inter­state activ­i­ty that can be reg­u­lat­ed by Con­gress in three cat­e­gories: (1) the chan­nels of inter­state com­merce; (2) the instru­men­tal­i­ties, or peo­ple and things, in inter­state com­merce; and (3) any activ­i­ties that have a sub­stan­tial rela­tion to inter­state com­merce.56

The last cat­e­go­ry of the Lopez frame­work pro­vides the most flex­i­ble open­ing through which Con­gress can reg­u­late. As a result, the Court devised an addi­tion­al four-fac­tor bal­anc­ing test to deter­mine if an activ­i­ty “sub­stan­tial­ly affect[s]” inter­state com­merce.57 The Court asks: (1) whether the activ­i­ty reg­u­lat­ed has any rela­tion to “eco­nom­ic enter­prise” or “activ­i­ty,” (2) whether the statute “con­tains no juris­dic­tion­al ele­ment which would ensure, through case-by-case inquiry, that the [activ­i­ty] in ques­tion affects inter­state com­merce,” (3) whether there are “leg­isla­tive find­ings, and indeed even con­gres­sion­al com­mit­tee find­ings, regard­ing effect on inter­state com­merce,” and (4) whether the reg­u­la­tion has a “con­crete tie to inter­state com­merce.”58

While indi­vid­u­als aid­ing or abet­ting those receiv­ing abor­tion care, or indi­vid­u­als seek­ing abor­tions them­selves, would fall into the sec­ond cat­e­go­ry of the Lopez frame­work, the most like­ly cat­e­go­ry that would jus­ti­fy expan­sive fed­er­al leg­is­la­tion is the third, and broad­est, cat­e­go­ry. This out­come is bol­stered by stud­ies that have exam­ined the finan­cial impacts of the increased trav­el required for abor­tion care and pre­dict­ed that states like Cal­i­for­nia, which served 7,000 patients from oth­er states pre-Dobbs, will now serve up to 20,000 patients post-Dobbs.59 Dur­ing oral argu­ment before the Court, coun­sel for Jack­son Women’s Health Orga­ni­za­tion Julie Rikel­man made the argu­ment that rais­ing unwant­ed chil­dren would eco­nom­i­cal­ly hin­der the “abil­i­ty of women to par­tic­i­pate ful­ly in soci­ety.”60 Although the Court dis­missed the broad­er eco­nom­ic argu­ments, the more quan­tifi­able, micro­eco­nom­ic impacts of the Dobbs deci­sion itself may allow fed­er­al leg­is­la­tion to sur­vive a Com­merce Clause analysis.

When fash­ion­ing a statute to reg­u­late abor­tion under the third Lopez cat­e­go­ry, Con­gress could sat­is­fy both the sec­ond and third ele­ments of the bal­anc­ing test through com­mit­tee find­ings, reports, data about eco­nom­ic impacts of abor­tion restric­tions on inter­state com­merce, and an express juris­dic­tion­al state­ment. The statute at issue in Lopez, which reg­u­lat­ed firearm pos­ses­sion, was lat­er amend­ed by Con­gress to lim­it the law’s reach to firearms that have moved in or that would oth­er­wise affect inter­state or for­eign com­merce.61 Although the Supreme Court has not con­sid­ered the amend­ed statute, the Fourth Cir­cuit has held that an express juris­dic­tion­al state­ment lim­it­ing appli­ca­tion of the statute to things or indi­vid­u­als that have engaged in inter­state activ­i­ty is con­sti­tu­tion­al, fol­low­ing Lopez’s Com­merce Clause analy­sis.62

The pri­ma­ry chal­lenge for any fed­er­al leg­is­la­tion will be con­vinc­ing the Supreme Court that the preser­va­tion of the right to an abor­tion is eco­nom­ic in nature. The link between the reg­u­lat­ed activ­i­ty and inter­state com­merce seems a bit more self-explana­to­ry, espe­cial­ly after Dobbs, as indi­vid­u­als are mov­ing inter­state to receive abor­tion care more than ever before. Con­se­quent­ly, the need for fed­er­al leg­is­la­tion pre­serv­ing a nation­al right to abor­tion is essen­tial to main­tain the prin­ci­ples of fed­er­al­ism among the states and to address the impact of dis­parate state abor­tion leg­is­la­tion on inter­state com­merce. Ulti­mate­ly, the chal­lenges fac­ing this kind of fed­er­al abor­tion leg­is­la­tion are more polit­i­cal than legal. To suc­ceed, par­tic­u­lar­ly in front of the Dobbs Court, a nar­row­ly word­ed statute would need to cite ample quan­ti­ta­tive evi­dence about the eco­nom­ic impacts of dis­joint­ed state abor­tion rules to pass con­sti­tu­tion­al scrutiny.

* Soleil Ball Van Zee is a J.D. Can­di­date (2023) at New York Uni­ver­si­ty School of Law. This piece was inspired by dif­fer­ent steps indi­vid­ual state leg­is­la­tures made after the draft deci­sion in Dobbs v. Jack­son Women’s Health Orga­ni­za­tion was leaked to the press in May 2022. This Con­tri­bu­tion does not nec­es­sar­i­ly reflect the views of the author.

1. See gen­er­al­ly 142 S. Ct. 2228, 2283–84 (2022).

2. See id. at 2266 (over­turn­ing Roe v. Wade, 410 U.S. 113 (1973), which “found that the Con­sti­tu­tion implic­it­ly con­ferred a right to obtain an abor­tion,” in part because that decision’s rea­son­ing lacked “ground­ing in the con­sti­tu­tion­al text”).

3. Ronald D. Rotun­da, The Pow­ers of Con­gress Under Sec­tion 5 of the Four­teenth Amend­ment After City of Boerne v. Flo­res, 32 Ind. L. Rev. 163, 169–70 (1998).

4. Roe v. Wade, 410 U.S. 113, 153 (1973), over­ruled by Dobbs v. Jack­son Women’s Health Org., 142 S. Ct. 2228 (2022), and abro­gat­ed by Planned Par­ent­hood of Se. Pa. v. Casey, 505 U.S. 833 (1992), (hold­ing that “[t]his right of pri­va­cy, whether it be found­ed in the Four­teenth Amendment’s con­cept of per­son­al lib­er­ty and restric­tions upon state action, . . . or . . . in the Ninth Amendment’s reser­va­tion of rights to the peo­ple, is broad enough to encom­pass a woman’s deci­sion whether or not to ter­mi­nate her pregnancy”).

5. Ala. Code § 26–23H‑4 (2022); Ariz. Rev. Stat. §§ 13–3603, 13–3605 (2022) (for­mer­ly §§ 13–211, 13–213 (1956)); Ark. Code Ann. § 5–61-102 (2022); Mich. Comp. Laws §§ 750.14, 750.323 (2022); Miss. Code Ann. § 97–3‑3 (2022); S.B. 1555, 58th Leg., 2nd Reg. Sess. (Okla. 2022), (Okla­homa amend­ed its 2021 pre-Roe ban through a 2022 trig­ger law); McCor­vey v. Hill, 385 F.3d 846, 849 (5th Cir. 2004) (hold­ing that the Texas pre-Roe statutes that crim­i­nal­ized abor­tion “have, at least, been repealed by impli­ca­tion”); W. Va. Code § 61–2‑8 (2022), inval­i­dat­ed by Doe v. Charleston Area Med. Ctr., Inc., 529 F.2d 638, 644 (4th Cir. 1975); Wis. Stat. § 940.04 (2022).

6. These debates are pri­mar­i­ly occur­ring in states with divid­ed leg­is­la­tures. See, e.g., Com­plaint, Kaul v. Kapen­ga, No. 2022-CV-001594 (Wis. Cir. Ct. June 28, 2022); Com­plaint for Declara­to­ry Relief, Isaac­son v. State of Ari­zona, No. CV2022-013091 (Ariz. Super. Ct. Oct. 3, 2022).

7. See Kaul, No. 2022-CV-001594 at 8.

8. Ark. Code Ann. §§ 5–61-301–304; Ida­ho Code § 18–601 (2022); Ky. Rev. Stat. Ann. § 311.772 (2022); 2022 La. Sess. Law Serv. Act 545 (S.B. 342) (West); Miss. Code Ann. § 41–41-45 (2022); Mo. Rev. Stat. § 188.010 (2022); N.D. Cent. Code § 14–02.3–01(1) (2022); S.B. 1555, 58th Leg., 2nd Reg. Sess. (Okla. 2022); S.D. Cod­i­fied Laws § 34–23A-56 (2022); Tenn. Code Ann. § 39–15-213 (2022); Tex. Health & Safe­ty Code §§ 170A.001–7 (2022); Utah Code Ann. § 76–7a-201 (West 2022); H.B. 92, 66th Leg., Reg. Sess. (Wyo. 2022).

9. See, e.g., Miss. Code Ann. § 41–41-45 (2022).

10. See, e.g., Ida­ho Code § 18–601 (2022); Tex. Health & Safe­ty Code §§ 170A.001–7 (2022).

11. Opin­ion and Order, Planned Par­ent­hood of Mich. et. al. v. Att’y Gen. of Michi­gan, No. 22–00044-MM (Mich. Ct. Cl. Sept. 7, 2022).

12. See Kaul, No. 2022-CV-001594.

13. Kelsey But­ler, Planned Par­ent­hood of Mon­tana Will Stop Giv­ing Abor­tion Pill to Some Out-of-State Women After Roe Rul­ing, For­tune (Jul. 1, 2022, 11:06 AM),

14. Tex. Health & Safe­ty Code §§ 171.204–12 (2022).

15. Id. at § 171.018.

16. Ida­ho Code §§ 18–8804, 18–8807 (2022).

17. Id.

18. See id.

19. Id. at § 18–622(2).

20. Mem­o­ran­dum Deci­sion and Order, Unit­ed States v. Ida­ho, No. 1:22-cv-00329-BLW (Ida­ho Dist. Ct. Aug. 24, 2022) (grant­i­ng pre­lim­i­nary injunction).

21. 42 U.S.C. §§ 1395dd(e)(1)(A)(i)-(iii).

22. H.B. 4327, 58th Leg., 2nd Reg. Sess. (Okla. 2021).

23. Id. at § 2.

24. Id. at § 1.1.

25. Id. at § 5.

26. Id.

27. Tex. Health & Safe­ty Code § 171.208 (2022).

28. After Roe Fell: Abor­tion Laws by State, Ctr. for Reprod. Rts. (Nov. 16, 2022),

29. Rachel La Corte, Wash­ing­ton State Pro­hibits Texas-Style Abor­tion Law­suits, Asso­ci­at­ed Press (Mar. 17, 2022), (dis­cussing Wash. Rev. Code § 9.02.120).

30. E.g., 2021 Md. Laws §§ 13–4401–07.

31. H.B. 5202, 81st Leg., Reg. Sess. (Or. 2022); News Release, Office of the House Speak­er of the Ore­gon Leg­is­la­ture, Ore­gon Repro­duc­tive Health Equi­ty Fund will counter attacks on abor­tion access (Mar. 15, 2022), (describ­ing HB 5202’s $15 mil­lion appro­pri­a­tion as intend­ed to “mit­i­gate harm from a loom­ing Supreme Court deci­sion that could com­plete­ly under­mine the nation­wide right to abor­tion under Roe v. Wade”).

32. H.B. 5261, 2022 Leg., Reg. Sess. (Conn. 2022).

33. H.B. 4701, 192nd Gen. Ct. (Mass. 2022).

34. Assemb. B. 1666, 2021–2022 Reg. Sess. (Cal. 2022) (declar­ing that any law of anoth­er state that autho­rizes a per­son to bring a civ­il action against a per­son or enti­ty that receives, per­forms, aids or abets an abor­tion is con­trary to the pub­lic pol­i­cy of California).

35. H.B. 5414, 2022 Leg., Reg. Sess. (Conn. 2022) (pro­hibit­ing judges, jus­tices of the peace, or notaries from issu­ing a sub­poe­na “accord­ing to the law or usages of any oth­er state . . . when such sub­poe­na relates to repro­duc­tive health care ser­vices that are per­mit­ted under the laws of this state”).

36. Mich. Exec. Order No. 2022–4 (Jul. 13, 2022),–4‑unavailability-of-interstate-extradition (stat­ing that the Office of the Gov­er­nor will decline to “assist with or effec­tu­ate the extra­di­tion of per­sons to or from Michi­gan when the charged crim­i­nal con­duct . . . [is relat­ed to] repro­duc­tive health-care ser­vices, includ­ing abortion”).

37. Ken­tucky v. Den­ni­son, 65 U.S. 66, 103 (1861). But see Inter­state Ren­di­tion: Exec­u­tive Prac­tices and the Effects of Dis­cre­tion, 66 Yale L.J. 97, 106 (1956) (argu­ing that gov­er­nors often refuse to extra­dite indi­vid­u­als across state lines despite the fugi­tive hav­ing been charged with a crime through the use of non-con­sti­tu­tion­al rea­son­ing and discretion).

38. See David S. Cohen, Greer Don­ley & Rachel Rebouché, The New Abor­tion Bat­tle­ground, 122 Colum. L. Rev. (forth­com­ing 2022).

39. Id. at 38–39.

40. Id.

41. 421 U.S. 809 (1975).

42. Id. at 824–25 (hold­ing that a State may not “bar a cit­i­zen of anoth­er State from dis­sem­i­nat­ing infor­ma­tion about an activ­i­ty that is legal in that State”).

43. Id. at 824.

44. See, e.g., Cohen et al., supra note 38, at 20–21.

45. See, e.g., Gon­za­les v. Raich, 545 U.S. 1, 16–17 (2005) (describ­ing Congress’s purview under the Com­merce Clause); Cham­pi­on v. Ames, 188 U.S. 321, 350–51 (1903) (describ­ing Congress’s role as it relates to the Com­merce Clause); Nat’l Ass’n of Home Builders v. Bab­bitt, 130 F.3d 1041, 1054 (D.C. Cir. 1997) (out­lin­ing the prin­ci­ples under­ly­ing the Com­merce Clause).

46. Dobbs v. Jack­son Women’s Health Org., 142 S. Ct. 2228, 2266 (2022).

47. Roe v. Wade, 410 U.S. 113, 153 (1973), over­ruled by Dobbs, 142 S. Ct. 2228, and abro­gat­ed by Planned Par­ent­hood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

48. See Moore v. City of E. Cleve­land, Ohio, 431 U.S. 494, 499 (1977) (explain­ing that the pro­tec­tion of fam­i­ly life from gov­ern­men­tal intru­sion is locat­ed in the Four­teenth Amendment).

49. See Lawrence v. Texas, 539 U.S. 558, 578 (2003).

50. See Cruzan by Cruzan v. Dir., Mis­souri Dept. of Health, 497 U.S. 261, 262 (1990).

51. Dobbs, 142 S. Ct. at 2300 (Thomas, J., con­cur­ring) (cit­ing John­son v. Unit­ed States, 576 U.S. 591, 607–08 (2015) (Thomas, J., concurring)).

52. U.S. Con­st. amend. XIV, § 5.

53. Con­gress is also unable to expand its leg­isla­tive author­i­ty under the Four­teenth Amend­ment “by alter­ing the Four­teenth Amendment’s mean­ing, [as] no longer would the Con­sti­tu­tion be ‘supe­ri­or para­mount law, unchange­able by ordi­nary means.’ It would be ‘on a lev­el with ordi­nary leg­isla­tive acts, and, like oth­er acts, . . . alter­able when the leg­is­la­ture shall please to alter it.’” City of Boerne v. Flo­res, 521 U.S. 507, 529 (1997) (cit­ing Mar­bury v. Madi­son, 5 U.S. 137, 177 (1803)).

54. See gen­er­al­ly Anna Bern­stein & Kel­ly M. Jones, The Eco­nom­ic Effects of Abor­tion Access: A Review of the Evi­dence (2019),

55. 514 U.S. 549, 551 (1995) (quot­ing U.S. Con­st. art. I, § 8, cl. 3).

56. Id. at 558–59.

57. Id. at 559.

58. Id. at 561, 562, 567.

59. Eliz­a­beth Nash & Jonathan Bear­ak, Impact of Texas’ Abor­tion Ban, Guttmach­er Insti­tute (Aug. 4, 2021),

60. See Shee­lah Kol­hatkar, The Dev­as­tat­ing Eco­nom­ic Impacts of an Abor­tion Ban, New York­er (May 11, 2022),

61. See 18 U.S.C. § 249(2)(B) (refer­ring to the juris­dic­tion­al reach of the Hate Crimes Act).

62. See Unit­ed States v. Hill, 927 F.3d 188, 206–07 (4th Cir. 2019).