The post-Roe battleground for abortion pills will be your mailbox

This spring, Missouri considered, but did not pass, a measure that would have criminalized out-of-state travel for an abortion, creating an incentive for bounty hunters similar to Texas’ new anti-abortion law for abortion. ‘to apply. Exercising “extraterritoriality”, or trying to enforce the laws of one state within the jurisdiction of another state, would be a new frontier in restricting abortion, but in a post-territorial context.deer world, lawyers cannot rule it out. In New York, which has declared itself an abortion-safe state, lawmakers have introduced a bill to protect abortion providers from being extradited to anti-abortion states for prosecution, and the Connecticut has passed a law that protects against extradition as well as judgments rendered. down in other states.

Collisions between state legal codes when people cross their borders — or drugs do it, or the internet does it — is just one of the conflicts that could arise. Cross-border travel and interstate commerce are constitutionally protected, for example, and mail delivery is a federal project. Approving the safety and sale of pharmaceutical products nationwide is the responsibility of the FDA. GenBioPro, which makes mifepristone, is suing the state of Mississippi because its restrictions on the drug’s availability are stricter than those set by the FDA.

“The federal government controls the mail, and the federal government also controls whether a drug can be available and sold in the United States,” says Khiara M. Bridges, a law professor at UC Berkeley School of Law. “We therefore expect a conflict between the ability of a state to regulate the practice of medicine and the ability of the federal government to regulate the availability of any drug in the United States.”

Reproductive rights scholars watching this crash in slow motion predict that lawmakers in anti-abortion states won’t wait for the courts to rule on these disputes before taking action to reduce access to abortion. They expect these states to impose restrictions on the confidentiality of mail, the movement of goods between states, the prerogatives of other states to direct the conduct of health care – and continue to do so until A decision at some level of the judicial system tells offending states that they have overstepped their bounds.

That could mean it will be up to entities within health care — abortion clinics, telehealth providers, hospital systems, drugmakers — to try to file preemptive lawsuits to block new laws. It could also mean having to rely on criminal defense attorneys, who aren’t usually expected to be up to date on health law, to defend women. In the past, legal scholars point out, anti-abortion states have prosecuted abortion providers but refused to charge the people who obtain them. The case of Lizelle Herrera of Texas, who was arrested and charged with murder in April for what the local sheriff’s office called a “voluntary abortion,” suggests the exclusion may be coming to an end. “As providers become increasingly difficult to locate, what if states turn their attention to people who terminate their pregnancies?” asks Rachel Rebouché, the review article’s third author and associate dean for research at Temple University’s James E. Beasley School of Law.

Legal experts are considering years of legal turmoil and, under the cover of that tumult, the possibility that other rights that were now thought to be settled will be taken away. As with abortion, the social actions that are now established legalities – same-sex marriage, interracial marriage, access to fertility procedures and birth control – are not explicit in the Constitution. They stem from court decisions that have found that the Constitution confers the right to privacy and bodily autonomy. As the fate of deer seems likely to arise, such decisions may be reversed.

“If the court is willing to overturn a 50-year-old precedent, it may be willing to overturn other landmark cases that haven’t been around that long,” says Tanya Washington Hicks, a professor at Georgia State University College of Law. “What I see at the jurisprudential level is that it will create social chaos. People shape their lives around what they are allowed to do.

Update 05/16/2022 6:11 PM ET: This story has been updated to correct the spelling of Seema Mohapatra’s name.

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