INTRASTATE PREEMPTION: A NEW FRONTIER IN BURDENING CHOICE.

• Author: Bennington, Juliana

Abstract

The use of intrastate preemption by states to undo local ordinances enacted to protect reproductive health and access to reproductive services has increased in recent years. State-local conflict is a long-standing aspect of the United States government system; however, these conflicts have become increasingly politicized. Explicit intrastate preemption of localities' protective action is a new strategy states are using to make accessing reproductive care more difficult and adding burdens to the right to choose. This article explores the intrastate preemption trend, possible litigation under traditional preemption jurisprudence, and reproductive specific litigation strategies to combat this form of anti-choice legislation. While litigation against intrastate preemption may be more successful in the reproductive health space as compared to non-public health related local measures experiencing state preemption, this article concludes that advocacy against intrastate preemption legislation is the best strategy to allow localities to protect access.

INTRODUCTION

As you walk down the street in Englewood, New Jersey, you suddenly encounter yelling, proselytizing, and bright vests. You see women (1) in comfortable clothing being ushered into an unmarked door by people in neon vests. Men with signs, women with rosaries, children in strollers, and an overwhelming cacophony follow the women closely. And then the protestors stop at a yellow line painted on the sidewalk. They still yell and try to keep the people from entering a health care establishment, but they follow no further. (2)

The sidewalk looked very different last year when a city-created buffer zone, that yellow line, was enjoined. (3) The protestors would follow the women right to the door of the clinic, trying to shove fliers in their hands and yelling at the clinic door and windows. Clinic escorts and patients would have to navigate this chaos and avoid the protestors just to allow access to a constitutionally protected health care procedure: an abortion.

Reproductive health clinics are protected by the federal FACE Act, which criminalizes physically blocking and using intimidation to prevent access to reproductive health care as well as damaging reproductive health care facilities. (4) While the FACE Act can be used to prosecute those blocking access, typically it is local ordinances that make accessing reproductive health care a less jarring experience. The importance of local ordinances in ensuring orderly access cannot be overstated. These ordinances--including buffer and bubble zones, sound ordinances, and zoning requirements--are under attack. Local protective measures, like the Englewood ordinance, are under attack through litigation that focuses on asserting protesters' First Amendment rights. (5) Other attacks come from states trying to keep their localities from instituting protective ordinances. (6) These latter attacks often take the form of intrastate preemptions.

States traditionally used intrastate preemption to ensure uniformity within the state, but intrastate preemption has come to be a means of controlling localities that are acting against the political wishes of state legislators. (7) Federal preemption is created by the Supremacy Clause; (8) intrastate preemption is created by state constitutions or law. While related, they are distinct creatures. Similar to federal preemption, which requires one level of government to yield to the laws of a different level, intrastate preemption is an interaction between two levels of government, but the supremacy is not as clear as in federal preemption.

In a new trend, intrastate preemption is being used to limit progressivism. (9) States' use of explicit intrastate preemption is increasing. Red states are preempting their blue cities due to partisan differences. (10) There has been significant media interest in states' use of intrastate preemption to keep localities from becoming "Sanctuary Cities"--cities which give protections to undocumented immigrants. (11) There has been less media coverage of other uses of intrastate preemption. The many protections created by localities to ensure access to reproductive health services may fail if there is insufficient advocacy to oppose harmful intrastate preemption laws. The lack of advocacy is notable, and troubling, as preemption is rarely challengeable in courts. (12) Further, these attacks are not the only ones facing those tiying to guarantee access to reproductive health care. Targeted restrictions on abortion providers, or TRAP laws, have proliferated among the states sometimes resulting in clinic closures. (13) Advocates have fought against these laws in the courts repetitively including challenging nearly identical TRAP laws before the Supreme Court twice in recent years. (14) Fighting to keep clinics open (15) and opposing what are effectively bans on abortion (16) has stretched reproductive health advocates thin. As such, intrastate preemption has not been a priority. Further, some organizations call on reproductive health advocates to not pass supportive ordinances if they are likely to be preempted. (17) While there is merit to this argument, advocates must still fight preemption attempts.

This article explores the use of preemption in the reproductive health context and the unique aspects of local action in this arena that make intrastate preemption challenges viable. Part 1 outlines the use of intrastate preemption generally and reproductive health-specific preemption efforts. Part II analyzes the traditional means of challenging intrastate preemption: claiming there is no conflict, using home rule defenses, and alleging either improper state legislative process in passing the preemptive law or improper drafting of said law. Part III sets out the unique litigation arguments available to challenge reproductive health intrastate preemption laws. These include the use of historically local powers of zoning and public health protection in ordinances protective of reproductive care access and the need for individualization and tailoring in the creation of buffer zones. Other arguments unique to the reproductive rights field include freedom of expression protections for localities and undue burden claims. This article concludes that litigation to block preemption laws may be successful. It also highlights the need for advocacy efforts to prevent harmful intrastate preemption laws from coining into effect.

1. Intrastate Preemption

   States and localities, though dependent on each other, often find themselves in tension. When policy goals at the different levels of government diverge, the state may attempt to use its authority as the superior government to preempt its localities from acting counter to the state's will. (18) There is a particular history of intrastate preemption in the public health arena and a growing prevalence of intrastate preemption in the reproductive rights context.

   1. State-Local Relationships and Intrastate Preemption

      Recently, there has been a rise in intrastate preemption. (19) Many of these new preemptive laws by state legislative bodies come as a response to local, mostly progressive, policy innovation. (20) Intrastate preemption is the overt or implicit limiting of the powers of local governments through state legislative action or through the state constitution. Intrastate preemption is distinct from federal preemption, which flows from the Supremacy Clause of the United States Constitution. (21) The Federal Constitution does not address intrastate preemption, nor does it articulate any guidance on the relationship between state and local governments. (22) In fact, there is no reference to local governments in the Constitution. (23)

      States have plenary power under the Federal Constitution. (24) 25 Localities have no power. (25) The role and legal powers of localities have developed through litigation, legislation, and state constitutional amendments. Localities have functioned both as arms of the state as well as representative democracies working for their local polity. The debate over the power relationship between states and localities is long standing and contentious. To understand intrastate preemption, one must understand the relationship between states and localities from a theoretical, judicial, and functional perspective.

      The major role localities play in our lives has been both a source of fear and praise. Theorists have long debated the proper scope of local power. James Madison wrote of the need to be cautious about localities gaining too much power, which would result in fragmentation and the dissolution of the union. (26) Localities, he believed, were more at risk of being captured by ill ideas or "wicked project[s]" than the larger entities of the state and the nation. (27) He preferred to give more power to larger institutions that would better check fragmentation and offer more leaders that are capable. (28) Alexis de Tocqueville later countered this skepticism of small, local government, recognizing that localities are key to our nation. (29) He saw in our decentralized system a way of engaging the polity in local matters of personal relevance and using this political engagement to instill democratic values. (30) He did not view localities as a source of destruction but as a source of solidarity. Both Madison's and Tocqueville's views have echoed into the present.

      The Supreme Court has described a locality as "a subordinate unit of government created by the State to carry out delegated government functions" (31) and as "free to tailor local programs to local needs." (32) The Court has also found that states can, and do, create localities in different ways with different powers. (33) The Court has accepted such state created disuniformity. (34) The Court has also found it proper that "the States universally leave much policy and decision making to their governmental subdivisions."...