Conflict of constitutions? No thanks: a response to professors Brilmayer and Kreimer.

• Author: Neuman, Gerald L.
• Position: Colloquy on Extraterritorial Regulation of Abortion - Response to article by Lea Brilmayer in this issue, p. 873, and to article by Seth F. Kreimer in this issue, p. 907

The role of the third participant is to disagree. While I have no desire whatever to encourage interstate regulation of abortion, the territorialist solutions that my colleagues have chosen in order to isolate state abortion regulation pose other dangers.

Both Professor Brilmayer and Professor Kreimer argue not only that a state may make abortion legal within its borders, but also that the federal Constitution requires all other states to treat as lawful any abortion performed in such a prochoice state. Kreimer's right-to-travel analysis appears to endorse the use of state borders as a means for evading relational duties. Brilmayer's analysis, grounded more in the prerogatives of territorial states than in the rights of mobile individuals, gives the state where an act occurs power to make preemptive grants of autonomy that override relational duties imposed by other states. In my view, these analyses overemphasize location and underemphasize relationship as a basis for legal obligation.

This colloquy was organized around the unpleasant hypothesis that the Supreme Court would overrule Roe v. Wade (1) and that Congress would not fill the resulting void with federal legislation. The abortion debate would then move to the states, where local majorities could enact their own resolutions. If the local majorities were large enough, they could even write their local resolutions into their state constitutions. (2) The contrasting state constitutions that could result might then replicate the comparativists' current juxtaposition between the U.S. Constitution and the constitutions of Germany and Ireland. In some states, prohibition of abortion would be constitutionally required, while other states would give constitutional recognition to a woman's right to choose.

Federal preemption principles and federal rights doctrines do not ordinarily distinguish between state statutes and state constitutional provisions as objects of federal displacement. That Brilmayer and Kreimer offer no separate analysis of such a variation on their hypotheticals is therefore understandable. But I hope to show that this variation underlines some of the troubling aspects of territorialism, and particularly of Brilmayer's proposals concerning preemptive grants of autonomy.

Consider first the following, concededly strained, hypothetical: The Utah constitution recognizes a "right to life" for all fetuses conceived within the state by resident parents and requires the state to use all available means to protect them from abortion. The California constitution recognizes a woman's right to reproductive autonomy, including termination of pregnancy, and encourages (but does not require) public officials to facilitate that right. While attending an academic convention in California, the Dean of a Utah state university meets one of his professors, who tells him that she has just traveled to California to have an abortion. Rather than dissuade the professor or report the imminent abortion to other Utah authorities, the Dean accompanies the professor to the clinic and helps her to pass through a crowd of antiabortion demonstrators who are picketing there. Upon return to Utah, is the Dean subject to discipline, or is Utah required to recognize the abortion, the assistance, and the complicit silence as lawful because of California's superior authority over all persons within its territory?

1. Preliminary Observations

   Federal constitutional arguments in a post-Roe world would be affected by the particular reasons that the Supreme Court gave for overruling Roe. If the Court concluded that states had a compelling interest in potential life from the moment of conception, (3) then this interest could outweigh other constitutional rights like the right to travel. If the Court recognized fetuses as "persons" for some or all purposes, then a post-Roe analysis would vary accordingly. On the other hand, if the reversal rested solely on positivist arguments from original intent" or history that circumscribed a right to abortion as outside the scope of the Fourteenth Amendment, (4) but said no more, then the federalism implications of abortion regulation would require closer examination.

   Without Roe v. Wade, a positivist would likely find nothing in the Constitution to preclude a state from recognizing a fetus present within its borders as the object of legal duties. To speak of the fetus' domicile, and make the common domicile a basis for regulation of the woman's relationship with the fetus, might then make sense. Similarly, without Roe, a state would have greater discretion to confer legal rights on the biological father in his relationship with the woman and the fetus. The Court's condemnation of a spousal veto in Planned Parenthood v. Danforth (5) Might not survive once the Court had withdrawn recognition from the woman's right to choose to terminate her pregnancy.

   I will not stress the criminalization of abortion, which Kreimer emphasizes, but rather civil regulation. I will look to situations where, for example, the biological father of the fetus might sue in the state of common domicile to enjoin the woman from leaving the state for the purpose of having an abortion or to enjoin the imminent abortion once she has left the state. (6) The biological father might be suing to enforce his own state-conferred rights, or on behalf of the fetus, which shares the common domicile. Questions of legality in the civil sense are more common in conflicts between state constitutions. Kreimer's arguments draw on a tradition of distinctive concern with extraterritorial criminal laws in the interstate context. If the Federal Constitution places stricter limits on state criminal jurisdiction than on civil regulation, this may result from the history of criminal procedure at common law rather than from generally valid principles about the regulatory structure of federalism. (7)

   Brilmayer's phrasing of the alternatives as a choice between prescriptive jurisdiction based on residence and prescriptive jurisdiction based on territory seems ill-suited to describe the subject of this colloquy. Jurisdiction based on residence also encompasses questions like whether a New York resident who becomes pregnant while attending law school in Palo Alto is subject to New York or California law. As Kreimer emphasizes, however, the socially important phenomenon is interstate travel for the purpose of abortion. We are talking about what the Germans call abortion tourism, (8) a brief departure from the state for the sole purpose of enjoying a less restrictive legal regime.

   If we must make ascriptions of territorial situs, then we may best regard the reproductive autonomy of a New York resident attending school in California as, for the moment, situated in California. In contrast, when a woman spends her entire life in Pennsylvania except for one day spent in New Jersey for the sake of terminating a pregnancy, to regard her reproductive autonomy as situated in New Jersey may make less sense. The activities that cause us to place so high a value on reproductive autonomy, and the burdens that will result if reproductive autonomy is denied, including the resulting relationship with an unwanted child, are overwhelmingly situated in Pennsylvania. Nonetheless, let me concede arguendo that the territorial situs of a right to terminate pregnancy should always be identified with the state where the procedure is performed.

   As Brilmayer emphasizes, we are living in the modem world, where federal constitutional law does not aspire to identify a unique state with the right to govern each transaction, and frequently different rules would apply in the courts of different states if the litigation were to occur there. (9) Congress could choose to adopt national conflicts rules, and it could indeed resolve the issue of interstate regulation of abortion by enforcing Brilmayer's proposal and compelling other states to respect "preemptive" laws of a situs state. The Supremacy Clause makes valid federal statutes prevail over state constitutions. (10) I do not believe, however, that the Constitution itself imposes Brilmayer's territorialist preemption rule.

   A due process complaint based on uncertainty rings particularly hollow in the case of individuals who travel interstate for the...