The post-Roe battleground for abortion pills will be your mailbox
Historically, a state’s legal code was assumed to stop at its borders. And for the most part, states haven’t prosecuted residents who leave to do something that’s legal at their destination but illegal at home. “Before it was legalized in most places, people would go to Las Vegas or Atlantic City to gamble, not worrying that their home state would come back and charge them with a crime,” says David S. Cohen , another author of the paper and an associate professor at Drexel University’s Thomas R. Kline School of Law. “The anti-gambling moralists existed, but they weren’t chomping at the bit to make sure people weren’t going to Las Vegas. But anti-abortion extremists are chomping at the bit to stop as many abortions as possible, and this uncertain case law will provide them with an opportunity to test the waters.
This spring, Missouri considered, but faileda measure that would have criminalized out-of-state travel for an abortion, creating a bounty-hunting incentive similar to Texas’ new anti-abortion law to apply it. 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 a safe haven state for abortion, lawmakers have introduced a bill to protect abortion providers from extradition to anti-abortion states for prosecution, and Connecticut has pass a law which protects against extradition as well as against judgments rendered 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. GenBioProwhich manufactures mifepristone, is sue mississippi state 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 signals to offending states that they have overstepped their bounds.