When the Supreme Court issued its 6-3 decision in Dobbs v. Jackson Women’s Health, declaring that there is no longer a constitutional right to end a pregnancy, it ushered in a series of new and fiercely contested legal questions about who can be punished for doing so, and where, under newly restrictive state laws.
Can a state punish a resident for getting an out-of-state abortion? Can it punish the provider in another state who facilitated it? Or as Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan wrote in their dissent: “Can a State prohibit advertising out-of-state abortions or helping women get to out-of-state providers? Can a State interfere with the mailing of drugs used for medication abortions?”
Many anti-abortion activists and conservative legal scholars have long insisted that overturning the 1973 Roe v. Wade decision would lead to a simpler legal landscape — freeing the Supreme Court from the “abortion-umpiring business,” former Justice Antonin Scalia wrote in 1992, and allowing the matters to be decided “state by state.”
But while conservatives fantasized about the supposedly tidier legal landscape of a post-Roe America, other legal scholars warned overturning Roe could make the legal complexities of the last five decades seem quaint. [Continue reading…]