Interstate preemption: the right to travel, the right to life, and the right to die.

• Author: Brilmayer, Lea
• Position: Colloquy on Extraterritorial Regulation of Abortion

State laws differ, and they differ on issues of tremendous importance to the ways that we conduct our lives. Abortion and the right to die are two issues on which state law intersects with deeply held moral convictions, and on which state laws vary.(1) With so much hanging in the balance, it is not surprising that those who find themselves outvoted or outmaneuvered in local political processes sometimes seek a legal climate more compatible with their beliefs about human decency and dignity. The right to "vote with one's feet" -- to travel or move to another state and trade a law one finds repugnant for a better one -- is defined and circumscribed by the constitutional limitations peculiar to the conflict of laws.

The relevance of conflicts to the abortion issue is as follows. To the extent that our courts continue to read the U.S. Constitution as including a right to abortion, no conflicts analysis is needed because state law is uniform.(2) To the extent that the Court decides to relegate control over abortion to the states, however, conflicts issues resurface. The question then arises whether one state can apply its law to abortions that have connections with other states. In particular, a state that outlaws abortions might attempt to prohibit its residents from traveling to states where abortions are legal and terminating their pregnancies there. Criminalization would most likely not take the form of an outright prohibition on leaving the state, but would rather involve the penalization of conduct undertaken while in the other state. Other conflicts problems may arise out of abortion -- whether a state can prohibit advertising abortion services within its borders when the abortion itself would take place in a state where abortion is legal; whether a state can prohibit nonresidents from using its abortion clinics; and so forth -- but the residence problem seems most likely to pose frequent and substantial problems.(3) This article asks, then, whether states can regulate the reproductive activities of local residents when they are temporarily present in other states.

The right to die intersects with conflict of laws in similar ways. In 1990, the Supreme Court upheld a Missouri law that prevented the parents of Nancy Cruzan, who lay in a permanent vegetative state, from disconnecting her life support system.(4) Other states were apparently more willing to recognize a "right to die."(5) But in a case remarkably similar to Cruzan, Missouri subsequently took the position that a father could not remove his daughter from the hospital for purposes of taking her to Minnesota, a state that would afford greater discretion in allowing her to die.(6) The right-to-die issue is most closely analogous to the abortion issue in cases where the patient has already gone or been taken to another state, and the home state seeks to prevent family members or the guardian from helping to terminate her life by threatening to prosecute them when they return. Again, the question is whether people's home states can regulate their activities when they are temporarily present in a place where those activities are legal.

This article argues that, although the answer may depend upon the precise contours of state regulation, at least in the abortion and right to die cases states typically cannot regulate their citizens' conduct in this way. States do possess the power to regulate their citizens' conduct in other states in the usual case. I will argue, however, that abortion (and, analogously, the right to die) is not "the usual case." Most states that choose not to prohibit abortion to the extent constitutionally permissible are not merely expressing a simple lack of interest in the abortion issue. They are, instead, affirmatively granting to those within their borders the freedom to make the choice whether to have an abortion.

If that is the policy that most states' prochoice laws express, then a prolife state's attempt to prohibit abortions extraterritorially clashes directly with the territorial state's desire to ensure freedom of choice. Such regulation is constitutionally invalid because, in cases of direct conflict, territoriality (the place where the abortion is performed) trumps residence (the place where the woman resides). Similarly, states recognizing a right to die are probably granting an affirmative freedom to those who choose to end their lives; extraterritorial regulation by states who fail to recognize that freedom is thus prohibited.

But how can one be so sure that a failure to prohibit abortion or termination of life constitutes an affirmative grant of freedom -- a license, so to speak -- rather than a simple lack of interest in the subject? Indeed, is there even a discernable difference between a state's grant of an affirmative license to make up one's own mind and a state's simple failure to regulate? In order to clarify the difference, I rely on an analogy to federal preemption. Often, states seek to penalize something that the federal government has chosen not to prohibit. Sometimes such a penalty is permissible, but sometimes the state's efforts are preempted. It all depends on whether the federal failure to regulate represents a deliberate federal policy choice to allow a freedom, in which case the state law is preempted, or whether Congress simply failed to regulate out of indifference.

The preemption cases show how to determine whether federal and state law are truly inconsistent, and in this way they offer a guide for deciding whether two states' laws conflict. The abortion example, according to this analogy, supports a relatively easy argument for preemption of the residence state's restrictive law. Roe v. Wade(7) clearly preempted state efforts to regulate abortion because it recognized a right to choose; therefore, the residence state's efforts to bar abortion would be invalid in any state having a Roe-like prochoice law. The analogous right-to-die argument seems equally compelling.

The abortion issue, of course, may soon become moot: with Democrats in the White House, a federal freedom-of-choice statute may become law. Even if a federal statute is passed, however, it may leave some areas of regulation, such as waiting periods or parental notification provisions, to the states. Moreover, in other areas of state regulation of personal morality -- the right to die is only one example -- no unifying federal legislation looms on the horizon.

And with disuniformity, conflicts will arise, for states might try to regulate their citizens' activities abroad. Furthermore, state legislation need not provide specifically for extraterritoriality for constitutional choice-of-law problems to occur. All it would take would be for one energetic public prosecutor in an antiabortion state to identify and decide to prosecute a woman who had left the state to terminate her pregnancy,(8) or for one energetic prosecutor to charge with murder those who helped to carry out the patient's wish to die. With few clear constitutional precedents available to argue either way, the precise issue might seem at first to be an open one. I believe and argue here, however, that the structure of our federal system clearly compels the priority of the territorial state, and that this priority typically invalidates the residence state's claim to regulate. The argument proceeds in several stages. First, I briefly outline the general principle that a state may in most circumstances apply its law to its residents, even when they are acting outside the state. I argue next that, where there is a direct clash between the state of residence and the territorial state, the general principle yields, and territoriality trumps residence. Third, I claim that abortion involves just such a clash because many states wish deliberately to preserve for women the right to choose abortion. The residence and territorial states' policies thus collide. Prochoice laws, in other words, have "preemptive effect" on the residence state's antiabortion laws. I focus mainly on abortion because that is where state law has most fully developed.

Next, I introduce the analogy to federal-state preemption. In the same way that a U.S. constitutional decision to grant freedom of choice preempts state laws that prohibit abortion, most states' decisions to permit abortion would preempt sister states' attempts to regulate abortions extraterritorially. The following section looks at particular state laws allowing freedom of choice to assess which have preemptive power -- because they grant an affirmative right -- and which do not -- because they exhibit mere indifference. On examination, as a matter of state law, the laws of the typical prochoice state would appear to bar the extraterritorial application of prolife regulations. I close with some somewhat speculative remarks about the right to die.

1. THE RESIDENCE PRINCIPLE

   States are not constitutionally free to apply their laws whenever they choose; application of local law is limited by the Due Process, Commerce, and Full Faith and Credit Clauses.(9) No single connecting factor uniquely validates the forum's claim to apply its law; different contacts are relevant in different sorts of cases. Among the various contacts that have been used to justify application of a particular body of law are the place where a contract was signed, the place where an accident occurred, the place of employment, the location of defendant's unrelated business, and the residence of the regulated party.(10) This last connecting factor is of primary interest here.

   A variety of legal doctrines reflect the general constitutional sufficiency of the residence factor as a basis for assertion of state authority.(11) The defendant's residence, of course, is a constitutionally adequate contact for personal jurisdiction.(12) It is also one of the recognized bases for regulation in international law.(13) The United States drew upon this principle in its attempt...