The Post-Roe Battleground for Abortion Pills Will Be Your Mailbox

Historically, a state’s legal code has been assumed to stop at its borders. And for the most part, states have not prosecuted residents who leave to do something that is legal at their destination but illegal at home. “Before it became legalized in most places, people would travel to Las Vegas or Atlantic City to gamble, without fear that their home state would come back and charge them with a crime,” says David S. Cohen, another author of the article and an associate professor at Drexel University’s Thomas R. Kline School of Law. “Anti-gambling moralists existed, but they weren’t chomping at the bit to make sure that people didn’t go to Las Vegas. But anti-abortion extremists are chomping at the bit to stop as many abortions as possible, and this uncertain body of case law is going to provide an opportunity for them to test the waters.”

This spring, Missouri considered, but did not pass, a measure that would have criminalized out-of-state travel for an abortion, creating a bounty-hunter incentive similar to Texas’ new anti-abortion law to enforce it. Exercising “extraterritoriality,” or trying to enforce one state’s laws inside the jurisdiction of another state, would be a new frontier in abortion restriction, but in a post-Roe world, legal scholars can’t rule it out. In New York, which has declared itself a safe-harbor state for abortion, legislators have introduced a bill to protect abortion providers from being extradited to anti-abortion states for prosecution, and Connecticut has passed a law that protects against extradition and also judgments handed down in other states.

Collisions between the legal codes of states as people cross their borders—or medications do, or the internet does—is just one conflict that might arise. Cross-border travel and interstate commerce are constitutionally protected, for instance, and delivering the mail is a federal project. Approving the safety and sale of pharmaceuticals nationwide is the responsibility of the FDA. GenBioPro, which manufactures mifepristone, is suing the state of Mississippi because its restrictions on the drug’s availability are stricter than what the FDA has set.

“The federal government has control over the mail, and the federal government also has control over whether a medication can be available and sold in the US,” says Khiara M. Bridges, a professor of law at the UC Berkeley School of Law. “So we expect a conflict between a state’s ability to regulate the practice of medicine and the federal government’s ability to regulate the availability of any medication in the US.”

The reproductive-law scholars watching this slow-motion crash predict that legislators in anti-abortion states won’t wait for courts to rule on these conflicts before acting to roll back abortion access. They expect those states to go ahead with imposing restrictions on the privacy of the mail, the movement of goods between states, the prerogatives of other states to direct the conduct of health care—and to keep doing so until a decision at some level of the court system tells the infringing states that they have overreached.