Saint Mary's University of Minnesota From the SelectedWorks of Kaiya Amelia Lyons November 28, 2015 The Interstate Commerce of Abortion: A Constitutional Argument for the Federal Invalidation of Restrictive State Abortion Laws Kaiya Amelia Lyons Available at:https://works.bepress.com/kaiya_lyons/1/ The Interstate Commerce of Abortion: A Constitutional Argument for the Federal Invalidation of Restrictive State Abortion Laws Kaiya Lyons In a conversation at the University of Minnesota Law School in September of 2014, Justice Ruth Bader Ginsburg astutely noted that “[t]here will not be a time in the United States again when a woman of means does not have access to a safe abortion.” This post-Roe fact is comforting to the privileged few whose reproductive rights are neither in imminent nor remote jeopardy. However, as Justice Ginsburg sagely warned, “the women who don’t have that wherewithal . . . will suffer.”1 Although Roe v. Wade legalized abortion in the United States over forty years ago,2 state legislatures have been able to dangerously encroach upon the ability of women to exercise this right through the imposition of Targeted Regulations of Abortion Providers (TRAP), limits on the provision of medication abortion, bans on private insurance coverage of abortion, and increasingly narrow pre-viability bans.3 In the last four years, 1 U.S. Supreme Court Justice Ruth Bader Ginsburg, “A Conversation Between Justice Ruth Bader Ginsburg and Professor Robert A. Stein” (Sept. 16, 2014). 2 Roe v. Wade, 410 U.S. 113 (1973). 3 See Heather D. Boonstra & Elizabeth Nash, A Surge of State Abortion Restrictions Puts Providers-And the Women They Serve-in the Crosshairs, 17 GUTTMACHER POL'Y REV. 9 (2014) (describing how the 205 abortion restrictions enacted by 30 different state legislatures between 2011 and 2013 have “dramatically shifted the abortion policy landscape”); Angela Hooton & Aram Schvey, 50 States of Denial: States Deny Women Reproductive Rights, 40-JUL HUM. RTS. Lyons 1 hundreds of these antiabortion laws have been enacted at the state level.4 Thus, Justice Ginsburg’s bleak prognosis of the abortion rights landscape is becoming increasingly accurate due to the demonstrably disproportionate effects these severely restrictive laws have on the health and economic wellbeing of low-income women.5 This obstructive and hostile legal 15 (2014) (surveying the “reality of abortion access today,” including the types of state restrictions passed since 2010). 4 Tara Culp-Ressler, In the Past 3 Years, We've Enacted More Abortion Restrictions Than During the Entire Previous Decade, THINKPROGRESS (Jan. 2, 2014), http://thinkprogress.org/health/2014/01/02/3112081/abortion-restrictions-2011-2013/ 5 For a discussion of the detrimental health implications of restrictive abortion laws, see DOROTHY ROBERTS, KILLING THE BLACK BODY: RACE, REPRODUCTION AND THE MEANING OF LIBERTY (1997); Tara Culp-Ressler, Abortion Restrictions Could Put More Women at Risk for Domestic Violence, THINKPROGRESS (Sept. 30, 2014), http://thinkprogress.org/health/2014/09/30/3573649/banning-abortion-domestic-violence/; Tara Culp-Ressler, Women and Children Are Less Healhty in States With More Abortion Restrictions, THINKPROGRESS (Oct. 1, 2014), http://thinkprogress.org/health/2014/10/01/3574383/women- children-health-abortion-laws/. For a discussion of the economic ramifications of abortion restrictions on low-income women, see Tara Culp-Ressler, Polling Confirms That Voters See Aboriton Access As An Economic Issue for Women, THINKPROGRESS (Oct. 16, 2014), http://thinkprogress.org/health/2014/10/16/3580240/abortion-economic-issue-voters/; Georgi Kocharkov, Abortions and Inequality (University of Konstanz Department of Economics, Working Paper, 2012), available at http://georgikocharkov.com/wp/wp- content/uploads/2011/03/georgikocharkov_jmp.pdf; Jacoba Urist, Social and Economic Benefits Lyons 2 environment has given rise to a subversive efforts to transport low-income women and teens into more liberal or permissive states to receive abortion services, not unlike the underground networks that existed to serve women pre-Roe.6 This paper seeks to delineate several legal arguments in an effort to protect, and in many instances create, access to the right to an abortion for low-income women. Introduced into both houses of Congress on January 21, 2015, the Women’s Health Protection Act is the most recent bill in a long history of federal legislative attempts to codify the Supreme Court’s pro-choice decisions, invalidate state antiabortion regulations, and prevent the subsequent enactment of similarly restrictive laws.7 If Congress were to enact such legislation, the access to abortion Roe and its progeny guaranteed would be insulated should the Court hear a challenge to a state restrictions.8 This paper will argue that the resulting interstate market for reproductive resources of Reliable Contraception, THE ATLANTIC (July 2, 2014), http://www.theatlantic.com/health/archive/2014/07/social-and-economic-benefits-of-reliable- contraception/373856/; Laia Font-Ribera et al, Socioeconomic Inequalities in Unintended Pregnancy and Abortion Decision, 85 J. URBAN HEALTH: BULLETIN N.Y. ACAD. MED. 125 (2007). 6 Janessa L. Bernstein, The Underground Railroad to Reproductive Freedom: Restrictive Abortion Laws and the Resulting Backlash, 73 BROOK. L. REV. 1463 (2008). 7 Women's Health Protection Act of 2015, S. 217, 114th Cong. (1st Sess. 2015) (hereinafter “Women’s Health Protection Act”); Women's Health Protection Act of 2015, H.R. 448, 114th Cong. (1st Sess. 2015). 8 See Anthony Dutra, Note, Men Come and Go, But Roe Abides: Why Roe v. Wade Will Not Be Overruled, 90 B.U. L. REV. 1261, 1297 (2010). Lyons 3 could provide a constitutional foundation for a federal invalidation of these exceptionally harsh antiabortion laws. Part I of this paper describes the immense deluge of antiabortion regulations since 2010 and details the disproportionately negative affect those laws have on low-income women. Part II examines the long history of abortion Tourism and underground networks of reproductive resources that have existed to provide necessary healthcare to low-income and rural women. Part III chronicles legislative attempts at the federal level to protect the right to abortion against restrictive state regulations, including the several variations of the Freedom of Choice Act and the Women’s Health Protection Act. Considering the divided appeals court decisions on the issue of the legitimacy of state antiabortion regulation,9 Part IV considers the constitutionality of 9 Compare Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 914 (9th Cir. 2014) (holding that the lower court abused its discretion in denying a preliminary injunction against an Arizona statute requiring that medication abortions be administered in compliance with the Food and Drug Administration’s outdated and comparatively unsafe on-label regimen for administering medication abortions), and Planned Parenthood of Wisc., Inc. v. Van Hollen, 738 F.3d 786, 791– 99 (7th Cir. 2013) (affirming the lower court’s preliminary injunction against enforcement of a Wisconsin statute because the law would have “wreaked havoc with the provision of abortions” in the state), with Planned Parenthood of Greater Tex. Surgical Health Services v. Abbott (Abbott II), 748 F.3d 583, 593–94, 597 (5th Cir. 2014) (reversing the lower court’s decision and holding that Texas law HB2 was constitutional because it had a rational basis in protecting patients’ health and did not constitute an undue burden), Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 515 (6th Cir. 2012) (finding no evidence that an Ohio law that criminalized the distribution of mifepristone imposed an undue burden on a woman’s ability to Lyons 4 the a federal protection of abortion rights under Section 5 of the Fourteenth Amendment and the Commerce Clause in light of the current underground efforts to provide women safe abortion services outside of their home states. I. State Restriction of Abortion Services The Supreme Court has consistently held that the right of a woman to choose to have an abortion before viability and without undue burden should be preserved.10 However, the ability of a woman to exercise that right today is as intimately connected to her economic privilege and geographic location as it was in the days preceding the Court’s landmark ruling in Roe v. Wade.11 In Roe, the Court struck down a Texas antiabortion law as unconstitutional, holding for the first make the decision to have an abortion and that the right to choose abortion did not necessarily “encompass[] the right to choose a particular abortion method”), Greenville Women’s Clinic v. Bryant, 222 F.3d 157 (4th Cir. 2000) (finding that a South Carolina TRAP law was constitutional because it served a valid state interest, did not “strike at the abortion right itself,” and did not impose and undue burden on the ability to make the decision to have an abortion), and Women’s Health Center of W. Cnty., Inc. v. Webster, 871 F.2d 1377 (8th Cir. 1989) (affirming the district court’s finding that a Missouri abortion regulation was constitutional because it did not significantly limit a patient’s choices or interfere with the doctor-patient relationship). 10 Ian Millhiser & Tara Culp-Ressler, The Greatest Trick the Supreme Court Ever Pulled Was Convincing the World that Roe v. Wade Still Exists, THINKPROGRESS (Feb. 28, 2014), http://thinkprogress.org/default/2013/11/08/2919111/ (quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (“[T]he essential holding of Roe v. Wade should be retained and once again reaffirmed.”)). 11 Millhiser & Culp-Ressler, supra note 10. Lyons 5 time that the constitutional right to personal privacy protected a woman’s right to terminate her pregnancy.12 Still, weighing the relevant private and state interests in abortion, the Court preserved the power of state legislatures to regulate the procedure after the fetus is “capab[le] of meaningful life outside the mother’s womb.”13 Therefore, while the Court acknowledged a fundamental right to abortion, it declined to grant women an absolute right to “abortion on demand.”14 Instead, the Court held that a state may, in some instances, restrict that right if the regulation is narrowly tailored to a compelling state interest, such as the safety of the pregnant woman or the preservation of the “potentiality of human life.”15 Nearly twenty years later, this state regulatory power was further defined in Planned Parenthood of Southeastern Pennsylvania v. Casey, in which the Court developed a more lenient standard for assessing the constitutionality of state abortion restrictions in light of the principles expressed in Roe.16 Prior to Casey, abortion had been considered a fundamental right subject to 12 Roe v. Wade, 410 U.S. at 153 (“This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, 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.”). 13 Roe v. Wade, 410 U.S. at 154–57, 162–65. 14 Doe v. Bolton, 410 U.S. 179, 189 (1973) (holding certain procedural restrictions on abortion providers unconstitutional). See Dutra, supra note 8, at 1267 (2010) (“The Court decided a companion case, Doe v. Bolton, at the same time as Roe v. Wade. These two decisions “are to be read together” (quoting Doe v. Bolton, 410 U.S. at 165)). 15 Dutra, supra note 8, at 1266–67. 16 Casey, 505 U.S. 833. Lyons 6 strict scrutiny.17 However, a plurality of the Court eschewed both strict scrutiny and rational- bases standards of review in favor of a new “undue burden” analysis.18 Under the level of constitutional review set forth in Casey, a state’s abortion law may be stuck down only if it “imposes a substantial obstacle to obtaining an abortion for a large number of women.”19 In 2007, the Supreme Court provided some guidance to lower courts in applying the test to state abortion legislation in Gonzales v. Carhart.20 Observing the balance struck by Casey, the Court held that “a state may ‘regulat[e] the medical profession in order to promote respect for life,’ so long as the state does not act irrationally or ‘impose an undue burden’ on a woman's right to abortion.”21 Furthermore, the Gonzales court held that, in reviewing abortion legislation, a court “must determine whether the [regulation] furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child.”22 As a result of the great deference assigned to state legislatures by Roe and its progeny, pro-life activists and elected officials in a majority of states have been able to enact a startling 17 Dutra, supra note 8, at 1269. 18 Casey, 505 U.S. at 874 (5-4 decision) (O’Connor, Kennedy, Souter, JJ., plurality opinion). In his dissent, Chief Justice Rehnquist condemned Casey’s new method of analysis, asserting that the plurality’s threshold “undue burden” test had transformed the Court’s holding in Roe into “little more than a hollow façade.” Casey, 505 U.S. at 944 (Rehnquist, C.J., dissenting). 19 Casey, 505 U.S. at 874. 20 Gonzales v. Carhart, 550 U.S. 124 (2007) (addressing the constitutionality of the Partial Birth Ban of 2003 on its face). 21 Gonzales v. Carhart, 550 U.S. at 158. 22 Gonzales v. Carhart, 550 U.S. at 146. Lyons 7 array of increasingly restrictive antiabortion laws in the last two decades.23 While many states either reformed or entirely repealed their antiabortion laws in the wake of the Court’s decision in Roe,24 the lenient standard of review set forth in Casey sparked a new wave of abortion legislation, aimed at imposing tougher restrictions on the procedure than ever before.25 In many ways, the capacity for a woman to exercise the fundamental right to choose to terminate her pregnancy today, resembles the ability for women to access abortion in the years preceding those decisions.26 As neighboring states often have divergent abortion policies, many of which continue to push the limits of the Casey undue burden standard, a woman’s right to abortion bears a direct correlation to her zip code, and consequently her privilege.27 Thus, due to the 23 Culp-Ressler, In the Past 3 Years, supra note 4 (Back in 2000, Guttmacher defined 13 states as “hostile” to abortion rights . . . and about 31 percent of U.S. women of reproductive age lived in those places. By 2013, the number of hostile states swelled to 27 states — and now, over half of women in need of reproductive health care live in a place where they will likely struggle to terminate a pregnancy.”) 24 Ada Kozicz, Note, Repealing Physician-Only Laws: Undoing the Burden of Gestational Age Limits, 42 HOFSTRA L. REV. 1263, 1271 (2014). 25 Kozicz, supra note 24, at 1271–74. 26 Kozicz, supra note 24, at 1265. 27 Hooton & Schvey, supra note 3, at 17 (“The sad reality is that for women in the United States today, the ability to exercise their fundamental right to reproductive decision making and to obtain abortion care very much depends on zip code.”). See also Eric Eckholm, Access to Abortions Falling as States Pass Restrictions, N.Y. TIMES (Jan. 4, 2014), http://www.nytimes.com/2014/01/04/us/women-losing-access-to-abortion-as-opponents-gain- Lyons 8 Court’s preservation of significant state power to regulate abortion, conservative lawmakers have been able to chip away at the ability for women to access the procedure. This has become increasingly true in the last few years: a “seismic shift in anti-abortion legislative zealotry” has occurred, leaving 56% of all women of reproductive age living in states “hostile” to abortion.28 Under the guise of protecting women from the “harms inherent in abortion,” major conservative gains in the 2010 elections resulted in hundreds of anti-abortion measures flooding a majority of state legislatures.29 While state-based antiabortion legislation is ground-in-state-legislatures.html (quoting Jennifer Dalven, director of the reproductive freedom project at the American Civil Liberties Union, “Increasingly, access to abortion depends on where you live . . . That’s what it was like pre-Roe”). 28 Hooton & Schvey, supra note 3, at 16; Boonstra & Nash, supra note 3, at 12–13. 29 Eckholm, Access to Abortions Falling, supra note 26. As a result of the 2010 midterm elections, the Tea Party and GOP controlled twenty-six state legislatures. Janet Reitman, The Stealth War on Abortion, ROLLING STONE (Jan. 15, 2014), http://www.rollingstone.com/politics/news/the-stealth-war-on-abortion- 20140115#ixzz2r9Rwp7PA. For a discussion of the 2010 midterm election’s affects on the antiabortion movement, see Hooton & Schvey, supra note 3, at 15–16; John A. Robertson, Abortion and Technology: Sonograms, Fetal Pain, Viability, and Early Prenatal Diagnosis, 14 U. PA. J. CONST. L. 327, 330 (2011) (asserting that, because many newly elected governors and legislators were “solidly anti-abortion,” the midterm elections of 2010 reinvigorated the right-to- life movement); Erik Eckholm, Across Country, Lawmakers Push Abortion Curbs, N.Y. TIMES, Jan. 22, 2011, at A14 (suggesting that Republican victories in the November 2010 midterm elections energized conservative state lawmakers to push for legislation limiting abortion). Lyons 9