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Conflicts of Law and the Abortion War Between the States

On the subject of abortion, the so-called “United” States of America are becoming more disunited than ever. The U.S. Supreme Court’s precipitous decision in Dobbs v. Jackson Women’s Health Organization overturned the nationwide framework for abortion rights that had uneasily governed the country for fifty years. In the immediate aftermath of that decision, it is becoming increasingly clear that states governed by Republicans and those governed by Democrats are moving quickly and decisively in opposite directions. Since the U.S. Supreme Court issued its decision, at least nineteen states have increased restrictions on abortion access, while at least twenty states and the District of Columbia have adopted new legal regimes focused on protecting the right to an abortion.

These partisan and geographic divides create perhaps the biggest set of nationwide conflicts of law problems since the era of the Fugitive Slave Act before the Civil War. Indeed, practically every aspect of the new abortion legal landscape is now characterized by uncertainty, creating potential constitutional and federal preemption questions, state versus state conflicts of law issues, and new concerns based on various forms of private regulation related to abortion access.

This Article seeks to provide a comprehensive survey of the current state of the law with regard to how such conflicts of law questions might be resolved in the abortion context. Part I surveys the widely divergent state laws being debated or enacted in the country in the wake of Dobbs. Part II discusses potential constitutional challenges to the extraterritorial application of these abortion statutes. If statutes criminalize or impose civil liability on the actual pregnant person seeking the abortion, such statutes might be challenged under the Privileges and Immunities Clause of Article IV specifically, or as a violation of the constitutional right to travel more generally. Alternatively, if statutes seek to impose criminal or civil penalties on out-of-state healthcare providers or other actors, those statutes may be vulnerable to a challenge under the Commerce Clause of Article I, Section 8. Part III turns to potential federal preemption of state anti-abortion laws under the Food, Drug, and Cosmetics Act or the Emergency Medical Treatment and Active Labor Act. Part IV addresses the question of whether states can impose civil liability on out-of-state acts or actors—even beyond the right to travel and Commerce Clause concerns—focusing on the classic conflicts of law doctrines of jurisdiction, choice of law, and judgment recognition. Finally, Part V considers the activities of private actors as sources of regulatory authority that create conflicts questions. We discuss the degree to which a state may prevent employers from covering abortion-related expenses as part of their health insurance plans, the privacy concerns that arise when private actors collect data that might be used in criminal prosecutions or civil suits regarding abortions, and the possibility that private religious groups might invoke the First Amendment to claim exemptions from state anti-abortion laws.