This post largely emanates from a brain storm that I had over an editorial piece in today's New York Times regarding the potential complications that might arise when the Supreme Court finally gets around to releasing its legal decisions this term and strikes down the Constitutionality of Roe v. Wade. Assuming it does so, the country will become a patchwork of regional blocks alternately allowing and outlawing abortion access. Some states like Massachusetts will become destinations for women from states in which abortion is banned to obtain abortions, provided they have adequate financial resources to secure such services. Most states in the South, the Rockies, and Plain states will apparently place significant restrictions on abortion, with many either proposing outright bans or with trigger laws in place that will go into effect once Roe is no longer law. One particular legal proposal, cited in the Times, left me significantly intrigued, however, to such an extent that I had to devote some extended consideration to what it might suggest about the road forward from the elimination of Roe. In particular, the state of Missouri is apparently enacting a law that will enable private citizens of Missouri to sue medical practitioners in other states where abortion is legal for performing such procedures on other citizens of Missouri. This is roughly the same legal backdoor that the state of Texas utilized to enable its citizens to sue abortion providers for providing procedures to patients after a legally prescribed threshold. As such, it prevents recourse to the standard legal remedies for action by governmental jurisdictions. However, it extends this principle to incorporate services from providers in other states where the legal standards for performance of medical procedures are manifestly different.
What is legally implied here about patients from a state like Missouri that intends to severely restrict access to abortion? That is to say, how is Missouri arguing that we should view pregnant women from Missouri in relation to the state? The answer to this question seems rather clear to me. Their argument, like that of the state of Texas in the original case of Roe, is that the state is entitled to define when life begins and, hence, when human life is entitled to protection under the legal authority of the state. If life begins at conception, then the state is entitled to protect such life, and restrictions on procedures intended to terminate a pregnancy serve a compelling governmental interest in doing so. In these terms, a pregnant woman from Missouri, crossing state lines into Illinois to obtain an abortion is, in reality, not a single individual. She is one citizen of Missouri carrying a latent, future citizen of Missouri, and the state has an interest in compelling medical providers outside of Missouri not to conduct a medical procedure to ensure that, although two citizens of Missouri crossed the state line, only one will be returning. Effectively, even if Missouri's legal standards regarding abortion do not expressly utilize such terminology, the state is treating the termination of a pregnancy as a case of homicide or, minimally, manslaughter.
The problem with treating a procedure, performed by private practitioners in another state, as if it was manslaughter is that the other state is manifestly approaching the institution of abortion in radically different terms. If, for Illinois, a pregnant woman is viewed as an individual carrying a fetus that will develop, in accordance with a biological process of maturation, into a viable human being, and that, at least until such time as the fetus of capable of existing outside of the womb by itself, the woman carrying the fetus has a right to terminate the pregnancy, then the arguments advanced by states like Missouri regarding the compelling governmental interest in protecting human life from the point of conception are not operative here. To make a long story short, if each of the states proceeds from a different theory on when states have an interest in protecting unborn human life, then their legal conceptions on how and why to treat the termination of a pregnancy will be at variance. Missouri's legal authorities cannot compel the legal authorities of Illinois to charge a private medical practitioner in their state with the equivalent of manslaughter for terminating the pregnancy of a Missouri resident because the latter was simply taking advantage of a medical procedure available under specific legal terms to all pregnant women in Illinois.
Moreover, Constitutionally speaking, if Missouri simply asked Illinois to prohibit its medical practitioners from making abortion available to citizens of Missouri, then Illinois would be violating Article IV, Section 2 of the U.S. Constitution, mandating that citizens of any of the states should be entitled to all of the privileges and immunities of citizens of each of the states. As such, a ban on the performance of abortion procedures for citizens of Missouri practiced in Illinois would effect an unconstitutional deprivation of privileges that would otherwise be provided to citizens of Illinois simply by virtue of the fact that the procedure would be performed on a citizen of Missouri. If abortions are legal in Illinois for citizens of Illinois, then, Constitutionally, they have to be legal in Illinois for citizens of every other state who happen to be standing in Illinois. Illinois cannot Constitutionally stop citizens of Missouri from obtaining abortions in its territorial jurisdictions if it allows its own citizens to obtain such procedures, under its own set of legal and procedural guidelines.
The problems introduced by Article IV, Section 2 and the conflicting conceptions espoused by different states regarding the official start of human life reveal, in a sense, why Roe was, potentially, a good thing, even if it was bad jurisprudence. Roe forced a unified national conception on when human life could be considered a subject worthy of protection under a standard of compelling government interest. As such, it at least potentially simplified matters with regard to the legality of terminating a pregnancy across the country as a matter of fundamental right. Conversely, if we are now going to throw the fundamental right that Roe made operative out the window, then we will, at least potentially, have to deal with differences of interpretation on the legal significance of a medical procedure performed in different legal jurisdictions on citizens from jurisdictions that consider the procedure a criminal act. We are, additionally, reframing the conception of a citizen writ large in certain jurisdictions relative to the act of biological reproduction. If, for Missouri, a pregnant woman is a not merely a citizen but a collection of citizens, each of which has rights and responsibilities subject to regulation by the state, then it seems certain that the concept of citizenship for women in various conditions relative to biological reproduction will vary wildly across the country. A woman in Massachusetts may continuously be viewed as an individual with a particular but relatively broad set of rights, privileges, and responsibilities regarding the process of biological reproduction and maintenance personal health. In Mississippi, by contrast, a woman might have comparatively fewer rights to either terminate a pregnancy or to obtain active birth control to minimize the risk of becoming pregnant in the first place. In short, whether or not Roe was good jurisprudence relative to the US Constitution, it definitively expanded the rights of female citizens across the country, and its removal will definitively contract those rights for women across the country.
Having dispensed with the notion that a state like Missouri can compel authorities in a state like Illinois to either restrict abortion access for non-state residents or to charge abortion providers with a crime for performing a procedure that is fully legal in the jurisdiction in which they practice medicine, we have the civil liability backdoor that Missouri seems inclined to put in place. If the implementation of a standard of civil liability against abortion providers acting in violation of state statutes might be understood to work effectively in the context of Texas, where private citizens can sue abortion providers for violating a Texas law regulating abortion access, then it remains less clear how private citizens in one state can apply a similar remedy for abortions performed in another state. Certain questions immediately come to the fore. How would a private citizen from a state with severely restricted abortion access claim standing before their state judiciary to allege grievances against a medical practitioner from another state? The argument here would seem to be that the state legislature has created standing for private citizens to sue in state court by virtue of the harm done by out-of-state medical practitioners to the larger population of the state, from which a single private citizen is entitled to cite any particular incidents in which a violation has occurred to obtain relief on the entire state's behalf. Any state legislature that possesses authority to regulate jurisdictional questions for its state judiciary is certainly entitled to definitively say when individuals possess standing before the courts. It is similarly free to articulate the nature of the harm done by the performance of a medical procedure that terminates the life of one of its citizens, or one of its impending, future citizens. Moreover, the fact that abortion is legal in the state in which the procedure has taken place may not have bearing in the determination of liability. If, at the end of the day, the life of citizen or an impending citizen was terminated against the wishes of the state, then the state may impose citations on the parties responsible for the procedure, whether those parties happen to be standing within its legal jurisdiction or not.
The clearest analogy that I can think of, in this regard, might have been civil litigation by certain states targeting out-of-state gun manufacturers on the grounds that their sales of firearms to state residents resulted in demonstrable harm to the general population. There are a lot of problems with this analogy, particularly to the extent that Second Amendment jurisprudence and federal statutory law have significantly contracted the ability of states to sue gun manufacturers as a result of violent acts perpetrated with firearms. Conversely, the larger problem that I have in making such an analogy is that a firearm, either legally or illegally obtained, must be transported across state lines and into the particular aggrieved jurisdiction for the cited grievance to be operative. That is to say, the harm done to the state's general population is done when individuals use firearms within the state, presumably in a manner transgressing the legal utilization of firearms by individuals within the state. An out-of-state party is being sued because its products, its goods, have been brought into the state's jurisdiction and have caused harm to its citizens. A good can cross state lines and cause harm, leading, potentially, to liability on the part of its manufacturer. The same is certainly true, more recently, for opioid pharmaceuticals, although the lawsuits filed in this respect by various governmental jurisdictions were largely pursuant to matters of federal law and argued within the federal judiciary. State courts can and do hear claims regarding the use of goods brought in from out-of-state in which the use of such goods violated state statutes, sometimes with respect to false or misleading claims regarding the use of such goods. It is, likewise, conceivable that a state court might hear a claim regarding a service performed within the state's territorial jurisdiction by parties residing out-of-state. In all such circumstances, the harm done to citizens of the state involves the transgression of state statutes (or, more minimally, widely held common law standards enforceable within state judiciaries) occurring within the territorial jurisdiction of the state. Either harm was caused by goods produced by an out-of-state manufacturer that have been brought in or by services that have been rendered in-state by an out-of-state party.
It could be that I am chasing a red herring here, but neither of these circumstances resembles the performance of an abortion by an out-of-state practitioner at an out-of-state facility. In effect, for purposes of abortion procedures, a state like Missouri would have to argue that its female residents continuously reside within its jurisdiction regardless of whether they cross state lines. The female body would become a piece of the sovereign soil of the state, wherever an individual female resident of the state happens to be standing. This is a strange and ugly idea to enforce as a principle in civil liability or any other component of the law. Moreover, should practitioners found liable under such statutes appeal their findings at the federal level, citing jurisdictional issues in the enforcement of such state level statutes and, conceivably, matters of Constitutional necessity (e.g. the enforcement of non-discriminatory practices relative to out-of-state patients pursuant to Article IV, Section 2), I cannot see how such a statute would hold up. Conversely, states like Connecticut have openly talked about enacting statutes facilitating counter-suits by medical practitioners who might fall prey to civil liability from citizens of anti-abortion states by means of the sorts of laws that Missouri is contemplating. Either outcome might constitute a viable remedy to the marking of the female body as property of the state, but my larger conclusion here is that the overthrow of Roe, as the federal judicial usurpation of state authority over institutions in human reproduction, should not open the door to a new interstate struggle to undermine the democratic will of particular state jurisdictions at the behest of others. I am fine with the idea that Missouri will not allow abortions to take place within its territorial jurisdictions, even in cases of rape or incest. I do not, however, want Missouri to tamper with the availability of abortion access in Massachusetts or any other state to which pregnant female residents of Missouri happen to flee when they cannot receive the reproductive care of their choice at home.
