Abortion Battle Becomes Jurisdictional
With Roe in the rearview mirror, the change in abortion related legal battles reflects the differences in laws across the United States. This patchwork of laws is particularly relevant in first trimester abortions, which are more likely to occur at home through drugs that can be obtained via mail.
Federal and state laws contradict one another regarding the legality of sending and receiving abortion inducing drugs.
Contradictory Federal Laws
Drug-induced abortions generally occur using two pills, mifepristone and misoprostol. Existing federal law regarding access to these drugs is covered by two contradictory sources: the FDA, and the pre-Roe Comstock Act.
In 2021, the FDA updated its Risk Evaluation and Mitigation Strategies (REMS), removing a requirement that women obtain the drugs following an in-person consultation with a physician, and expanding distribution channels to include pharmacies in addition to certified clinicians.
The decision to allow distribution of abortion drugs by mail is a contested issue in Food and Drug Administration v. Alliance For Hippocratic Medicine, a case pending before the Supreme Court. With a decision expected this summer, the Court is determining whether the FDA overstepped its authority by acting in an “arbitrary and capricious” manner when updating the REMS for mifepristone and misoprostol.
This question is important because, if the FDA’s actions are upheld, states banning abortion may be required to make exceptions for medication abortions. Attorney General Merrick Garland has stated his support for the legal theory of preemption, which argues that where state and federal laws conflict, federal law prevails.
However, as noted by Justices Alito and Thomas in oral argument, the FDA’s actions in updating REMS on abortion directly conflicted with federal law.
Two 1873 federal statutes, 18 U.S. Code § 1461, and 18 U.S. Code § 1462, (known as the Comstock Act), allow states to enforce existing bans on the use of chemical abortions by barring the mailing of any “article or thing designed, adapted, or intended for producing abortion,” and prohibiting the importation or transportation of “any drug, medicine, article, or thing designed, adapted, or intended for producing abortion.”
The enforceability of these acts is contested. University of Drexel law professor David S. Cohen has argued that 18 U.S. Code § 1461-2 are not applicable to mailing abortion pills because circuit courts have determined the above statutes only apply to unlawful items. Thus, since the FDA has approved mifepristone and misoprostol for transportation by mail, these federal laws are unenforceable.
But Cohen’s reading of the law represents only one interpretation. Constitutional scholar Ed Whelan says Cohen’s reading of prior circuit court opinions is too broad. Instead, Whelan says courts held that 18 U.S. Code § 1461-2 does not prevent the “proper medical use” of drugs just because the drugs could be used for illegal purposes. In a hypothetical prosecution, this means the prosecutor would only need to show that a defendant who mailed the drugs intended to do so for the purpose of abortion, an illegal act in many states. Such intent could be shown by the mailing of mifepristone and misoprostol together or separately.
Thus, although under Biden’s administration, the Department of Justice’s Office of Legal Counsel states the Comstock Act does not apply to the act of mailing abortion drugs, an administration less friendly to abortion could reverse this interpretation of law and move to prosecute.
This highlights the problems associated with attempts in one nation to uphold opposite legal definitions. In states with pro-abortion policies, enforcement of the Comstock Act would result in federal law invalidating state law. However, in states where abortion is banned or restricted, the federal government – through the FDA – seeks to render pro-life laws null and void.
Differences in State Laws Breed Confusion
The federal government could seek neutrality in the abortion debate by allowing the free mailing of abortion pills to pro-choice states, while placing greater restrictions on such mailings to pro-life states. However, even if such a politically unlikely compromise were to come true, this does not fully resolve the jurisdictional issues at play because contradictions between state laws would still exist.
Immediately after the Dobbs ruling, pro-choice states began passing “shield laws” designed to shield those who seek, provide, or assist with abortion from legal liability for violations of pro-life state laws. By January 2023, New York, Illinois, California, Connecticut, Massachusetts, Delaware, and New Jersey had passed some type of shield law.
Although there are numerous types of shield laws, legislation prohibiting nonfugitive extradition is particularly relevant to violations of state laws that ban the use of abortion drugs Multiple pro-choice states passed these laws in the wake of the Dobbs ruling. Since the mailing of abortion pills is not illegal in the abortionists’ home states, the idea is that they could mail the drugs into states where abortion is illegal and be shielded from prosecution by the pro-choice state’s law barring extradition.¹
And, these shield laws apply to numerous state law violations normally recognized between states, including bans on telehealth, adverse licensing consequences, medical malpractice, and the refusal of pro-choice states to cooperate in investigations related to violations of pro-life abortion laws.
However, because shield laws are not consistently drafted across states, an abortionist’s legal exposure may vary depending on his or her physical location. This is obvious in situations where the defendant travels to the state that is seeking to prosecute, but there will also be legal risks associated with travel or relocation from a state with a strong shield law to one that supports the right to life.
Conclusion
Following the Dobbs ruling, the legal landscape surrounding abortion remains contentious, with many unanswered questions regarding how to resolve jurisdictional disputes at the federal and state levels. Although some of these issues will be decided by the Supreme Court’s ruling in Food and Drug Administration v. Alliance For Hippocratic Medicine, the landscape will remain uncertain for the foreseeable future.
¹ While pro-choice states may shield nonfugitives from extradition, individuals who commit an abortion-related crime in a pro-life state and then flee to a pro-choice state cannot be shielded from extradition. Pro-choice states shielding fugitives in such a manner would be in violation of the United States Constitution, under Article IV, § 2.
Today’s article is by guest author Leslie Corbly, who earned her J.D. from University of Oklahoma College of Law and focuses on free speech issues and campus rights advocacy.
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