Abortion Localism and Preemption in a Post-Roe Era

Authors

Kaitlin Ainsworth Caruso, University of Maine School of Law

First Page

585

Abstract

In Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court eliminated federal constitutional protections for abortion. Practically, a person’s access to abortion has long depended on where they live and where they can travel; that disparity is far worse now. In light of Dobbs, some states decisively changed their laws, often decimating abortion access. In other states, however, the law remains unclear; advocates are furiously lobbying and litigating to redefine their states’ standards. Amid this upheaval, one element of the new abortion landscape is underappreciated: how localities impact abortion access.

For decades, local governments have influenced access to abortion in many ways. Because state–local preemption doctrine favors local laws that are stricter than state laws, though, anti-abortion localities have a freer hand to do so. Lately, some states have become more aggressive, even punitive, in preempting local law. That trend is about to collide with the fight over abortion.

This Article is the first to bring together the history and trends in local abortion policy with intrastate preemption doctrine to fully canvass the post-Roe local abortion terrain. It highlights the fact that abortion localism is already with us (and unlikely to disappear) and assesses the benefits and drawbacks of that reality. As states construct the new laws of abortion, this Article offers options and incentives for states, municipalities, and advocates in shaping local abortion policy for the future. Now more than ever, abortion rights will change as women cross borders—the only question is how much they will change at the city line.

Recommended Citation

Kaitlin A. Caruso, Abortion Localism and Preemption in a Post-Roe Era, 27 Lewis & Clark L. Rev. 585 (2023).
Available at: https://lawcommons.lclark.edu/lclr/vol27/iss2/6