Health Inequities Will Be Exacerbated, Experts Say


Publish Date:
July 13, 2022
MedPage Today
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Bernadette Meyler, associate dean for research and intellectual life at Stanford Law School in California, highlighted the specific challenges of navigating the range of abortion laws in different states.

One route for states penalizing women for having abortions is through civil liability, in which a private person brings suit against another person who received an abortion or another person who performed the abortion or was involved in the process. The Texas law, Senate Bill 8, is one such example.

The concern is that if a physician in California was to perform an abortion for a person traveling from another state that penalizes abortion, such as Texas, there could be a lawsuit and legal questions around whether the courts could “exercise jurisdiction” over that doctor, Meyler said, even though California specifically passed a law stating that individuals performing abortions or involved in abortions are exempt from “judgments or the application of judgments” rendered in other states.

She anticipates lawsuits around the degree to which California can exempt itself from the “full faith and credit clause” of the Constitution, which calls for states to respect the judgments made in courts from other states.

For states that have taken a different route — imposing criminal penalties on women who seek abortions out-of-state or those providing abortions to women from out-of-state — there are also questions whether laws can apply “extra-territorially,” or outside the individual state in which they passed.

“So, if … someone is performing an abortion in California, and that’s been criminalized in Texas, there would be serious questions about whether they could be tried in Texas,” Meyler noted, given that the Sixth Amendment holds that criminal defendants have the right to a trial “in the vicinity of the crime.”

As for medication abortion, Meyler pointed out that the FDA has said that this medication can be shipped across state lines for the purpose of completing an abortion, which may preempt state regulation. “That’s going to be another … ongoing legal battle,” she said.

No such cases have been filed since the Dobbs decision, but one ongoing case in Mississippi, GenBioPro v. Dobbs, is exploring the question of preemption and will likely intersect with efforts by the Supreme Court to “cut back on the administrative state,” Meyler said.

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