University of Nebraska - Lincoln DigitalCommons@University of Nebraska - Lincoln College of Law, Faculty Publications Law, College of 1993 WHAT HAPPENS IF ROE IS OVERRULED? EXTRATERRITORIAL REGULATION OF ABORTION BY THE STATES C. Steven Bradford University of Nebraska-Lincoln, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/lawfacpub Part of the Legal Studies Commons Bradford, C. Steven, "WHAT HAPPENS IF ROE IS OVERRULED? EXTRATERRITORIAL REGULATION OF ABORTION BY THE STATES" (1993). College of Law, Faculty Publications. 85. https://digitalcommons.unl.edu/lawfacpub/85 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in College of Law, Faculty Publications by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Bradford in Arizona Law Review 35 (1993). Copyright 1993, University of Arizona. Used by permission. WHAT HAPPENS IF ROE IS OVERRULED? EXTRATERRITORIAL REGULATION OF ABORTION BY THE STATES* C. Steven Bradford** TABLE OF CONTENTS I. INTRODUCTION ..................................................................................... 88 II. THE IRISH ABORTION DECISION ....................................................... 92 III. STATE EXTRATERRITORIAL APPLICATION OF CRIMINAL LAW ................. 95 A. Criminal Jurisdiction Generally............................................... 95 B. Abortion .............................................................................. 99 C. Child Custody Cases ................................................................. 100 D. Child Support Cases .................................................................. 103 E. Cases Involving Kidnapping,Followed by an Assault in Another State ........................................................................... 105 F. Other Criminal Cases................................................................. 107 IV. FULL FAITH AND CREDrr/DUE PROCESS ............................................. 109 A. Application to the Woman Seeking the Abortion .......................... 109 1. Allstate Insurance Co. v. Hague .......................................... 110 2. The Application of Hague to an Extraterritorial Abortion Statute .............................................................. 114 3. OtherDue Process/FullFaith and Credit Cases .................... 118 B. Application to the Doctor Performing the Abortion ...................... 121 V. SUPREME COURT ANALYSIS OF THE EXTRATERRITORIAL APPLICATION OF STATE CRIMINAL LAW ................................................ 127 VI. THE SIXTH AMENDMENT ................................................................... 136 A. Does the Sixth Amendment Vicinage Requirement Apply to the States? ................................................................................ 137 B. Sixth Amendment Limitations on ExtraterritorialAbortion Prosecutions......................................................... .................... 144 VII. THE COMMERCE CLAUSE ................................................................. 148 A. Introduction.................................... 148 B. Stricter Scrutiny: Discrimination,Inconsistent Regulation and Economic Protectionism............................................................ 159 C. BalancingBurdens and Benefits .................................................. 151 D. The New Territorialism............................................................ 153 * © 1992 by C. Steven Bradford ** Associate Professor of Law, University of Nebraska College of Law. B.S. 1978, Utah State University; M.P.P. 1982, Harvard University; J.D. 1982, Harvard Law School. My thanks to Lea Brilmayer and Seth Kreimer for sharing their drafts on this issue, and to Gerald Neuman for his comments on an earlier draft. I also wish to thank Sharon Bartter, University of Nebraska College of Law Class of 1993, for her research assistance on this article. ARIZONA LAW REVIEW [VOL. 35 VIII. THE CONSTITUTIONAL RIGHT TO TRAVEL ........................................ 158 IX. PRINCIPLES OF FEDERALISM .............................................................. 165 X. THE CONSTITUTIONALITY OF LESSER RESTRICTIONS IF ROE IS NOT OVERRULED ....................................................................................... 167 XI. CONCLUSION ................................................................................... 170 I. INTRODUCTION Since 1973, states have effectively been prohibited from regulating most abortions. As every lawyer, law student, and almost every other American adult knows, the United States Supreme Court held in Roe v. Wade' that a woman has a constitutional right to have an abortion. It is also common knowl- edge that in recent years the Supreme Court has been slowly restricting, or refusing to extend, that right.2 The future of Roe v. Wade is uncertain, particularly after the Supreme Court's most recent abortion decision, Planned Parenthood v. Casey.3 The actual restrictions on abortion upheld in Casey4 are less important than the positions of the various justices. Four justices in Casey voted to overrule Roe and eliminate entirely the constitutional right to obtain an abortion.5 Three jus- 1. 410 U.S. 113 (1973). 2. In Planned Parenthood v. Danforth, 428 U.S. 52 (1976), the Supreme Court upheld state requirements that women give written consent to abortions and that hospitals and clinics maintain records of the abortions they perform. In Maher v. Roe, 432 U.S. 464 (1977), the Court held that neither the federal government nor the states were required to provide Medicaid funding for non-therapeutic abortions. In Harris v. McRae, 448 U.S. 297 (1980), the Court upheld the exclusion of Medicaid funding for abortions even when those abortions are medically necessary to protect the woman's health. In Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476 (1983), the Court upheld state requirements that a second physician be present during abortions performed after viability, that a pathology report be prepared for all abortions, and that minors obtain parental or court consent before obtaining an abortion. In Webster v. Reproductive Health Servs., 492 U.S. 490 (1989), the Court upheld the parts of a state law that prohibited public employees from performing abortions and prohibited public facilities from being used for abortions. In Hodgson v. Minnesota, 497 U.S. 417 (1990), the Court upheld a 48-hour waiting period for abortions for minors and a state requirement that, subject to a judicial bypass, both parents of minors seeking abortions be notified prior to the abortion. In Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990), the Court upheld a state statute requiring a doctor to notify one of the parents before performing an abortion on a minor, subject to judicial bypass procedures. And, in Rust v. Sullivan, 111 S. Ct. 1759 (1991), the Court upheld federal regulations prohibiting projects receiving funds pursuant to Title X of the Public Health Service Act from engaging in abortion counseling or referral, or activities advocating abortion as a method of family planning. 3. 112 S. Ct. 2791 (1992). 4. The Court upheld a requirement that the physician inform the woman of the nature of the procedure, the health risks of the abortion and of childbirth, the probable gestational age of the unborn child, and the availability of certain printed materials published by the state. Id. at 2822-23 (O'Connor, Kennedy, & Souter, JJ.). The Court also upheld a 24-hour waiting period for the abortion, subject to an exception for medical emergencies, iaI at 2825-26 (O'Connor, Kennedy, & Souter, JJ.), a requirement of parental consent for abortions on minors, subject to a judicial bypass, id. at 2832 (O'Connor, Kennedy, & Souter, JJ.), and certain recordkeeping and reporting requirements, jat at 2832-33 (O'Connor, Kennedy, & Souter, JJ.). The only part of the Pennsylvania abortion law held unconstitutional was a requirement that married women notify their husbands prior to having the abortion. Id. at 2826-31 (O'Connor, Kennedy, & Souter, JJ.). 5. Id. at 2855 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part); idl at 2873-74 (Scalia, J., concurring in the judgment in part and dissenting in part). Prior to this time, only Justice Scalia had clearly and consistently expressed his desire to overrule Roe. 1993] REGULATION OF ABORTION tices reaffirmed the constitutional interest underlying the right to abortion, but modified the standard for reviewing restrictions on abortion. 6 Their plurality opinion indicated that a state still may not constitutionally prohibit abortion altogether,7 but adopted an "undue burden" standard to evaluate restrictions on the abortion of a nonviable fetus.8 Only two justices completely endorsed Roe.9 It may be only a matter of time before a majority of the Court votes to overrule Roe, or Roe may never be overruled. As Chief Justice Rehnquist rec- ognized, the Casey decision "leaves the Court no less divided than before- hand." 0 Justice Blackmun also recognized that the battle is far from over. "In one sense," he wrote, "the Court's approach is worlds apart from that of the Chief Justice and Justice Scalia. And yet, in another sense, the distance between the two approaches is short-the distance is but a single vote. "' "I am 83 years old," he warned. "I cannot remain on this Court forever, and when I do step down, the confirmation process