Law professor discusses complication of abortion precedent
Many of the disputes now disprove expectation that Supreme Court wouldn't deal with abortion anymore
(David Cohen, law professor at Drexel University)
When the Supreme Court overturned Roe v. Wade, many legal experts thought it meant the institution would stop umpiring conflicts over abortion regulations. That hasn’t been the case, as questions surrounding jurisdictional disputes and federalism have abounded since the 2022 Dobbs decision.
David Cohen, a law professor at Drexel University, has published articles about the topic as mentioned above. While many conflicts have played out in lower courts, Cohen thinks it’s inevitable that it will come before the nine justices.
“ When there's a national standard that says every state and the federal government have to respect the right to abortion, then you don't have any conflicts between the jurisdictions,” Cohen said.
“But once you allow different states and the federal government to have different policies with respect to abortion, you're going to have these conflicts.”
We’ve seen that in Alabama, Texas, and Idaho. Attorney generals have told residents they can’t drive on their roads with the intent to get an abortion in nearby states. Other conflicts involve mandates for abortion in medically necessary situations versus state laws that ban the procedure.
Finally, most abortions are done through medication. Currently, the question in the legal arena is whether the Food and Drug Administration’s approval of Mifepristone overrides state bans on abortion.
“And so these are going to get into really complicated issues that are going to work their way back to the Supreme Court,” Cohen said.
The justices must look at precedents about interstate travel, federalism, and the Supremacy Clause, which prohibits states from interfering with federal administration.
“How they actually will resolve it will depend on who's on the court at the time, what political pressure is going on in the world, and all the things that influence Supreme Court decisions,” Cohen said.
Cohen said that it may have dawned on people that restricting abortions or threatening prosecutions has proven unpopular, even in deeply Republican states.
However, Cohen thinks abortion rights activists must push to get rid of in-clinic dispensing requirements, which mandate that abortion-seekers must be physically present in a facility to obtain abortion medication. If everything can be done through mail, then travel barriers are not insurmountable. All a person would need is access to the internet so they could get abortion prescriptions through the mail.
“We are at the very early stages of seeing what the world looks like without roe,” Cohen said. “And so to the extent that we have any information over the past 17 months, that's just the first chapter of the story. So we don't know what the future is going to hold and what the states are going to do.”