The Geography of Abortion Rights

The Geography of Abortion Rights

B. JESSIE HILL*

Total or near-total abortion bans passed in recent years have

garnered tremendous public attention. But another recent wave of

more modest-looking abortion restrictions consists of laws regulat-

ing the geography of abortion provision through management of

spaces, places, and borders. In the 1990s and early 2000s, numer-

ous states adopted laws regulating the physical spaces where abor-

tions can be performed. These laws include mandates that

abortions be performed in particular kinds of places, such as ambu-

latory surgical centers, or that abortion-providing facilities have

agreements in place with local hospitals. One consequence of such

regulations has been to reduce the availability of abortion services

within the geographical borders of a particular state and to require

people to travel out of state in order to terminate a pregnancy.

Other abortion controversies, too, have foregrounded the signifi-

cance of state and even national borders, as in the cases of unac-

companied immigrant minors who sought abortions while in the

custody of the U.S. government. Thus, an entire subset of abortion

restrictions intentionally targets the geography of abortion provi-

sion, inevitably impacts the geographical distribution of abortion

services, or both. Yet, the geographical dimension of abortion

restrictions has gone mainly unappreciated in the legal literature.

This Article thus aims to provide an overview of the geography of

abortion regulation. It first considers the unique impact and attrac-

tiveness of spatial regulations, demonstrating that they rely on the

apparent naturalness of geographical features to exploit or aggra-

vate preexisting social inequality, making the resulting dispropor-

tionate burdens seem inevitable. Second, this Article considers the

jurisprudential implications of this “spatial turn” in three specific

areas: the right to travel, the private nondelegation doctrine, and

the concept of viability in abortion doctrine.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1083

* Associate Dean for Research and Faculty Development and Judge Ben C. Green Professor of

Law, Case Western Reserve University School of Law. © 2021, B. Jessie Hill. An early version of

this paper was presented at the Health Law Professors Conference in Cleveland, Ohio in 2018. I

would like to thank Glenn Cohen, Jonathan Entin, Mae Kuykendall, Rachel Rebouche

´, Marc

Spindelman, and Mary Ziegler for their insightful comments and suggestions. Becca Kendis

provided excellent research assistance.

1081

I. SPATIAL REGULATION AND THE MEANING OF REPRODUCTIVE LIBERTY. . . 1087

II. BORDER CONTROL: ZONING OUT ABORTION AND CREATING

REPRODUCTIVE REFUGEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091

A. THE RELATIONSHIP BETWEEN SPATIAL ABORTION RESTRICTIONS AND

STATE AND NATIONAL BORDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091

B. IMPLICATIONS OF ABORTION RESTRICTIONS AFFECTING STATE AND

NATIONAL BORDERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095

III. REGULATION OF THE SPACES WHERE ABORTIONS TAKE PLACE:

ENFORCING THE PHYSICAL AND DOCTRINAL ISOLATION OF ABORTION . . . 1098

A. THE LAW AND POLICY OF ABORTION-FACILITY REGULATION . . . . . . . 1098

B. IMPLICATIONS OF FACILITY REGULATIONS . . . . . . . . . . . . . . . . . . . . . 1105

IV. SPATIAL REGULATION OF PREGNANT BODIES . . . . . . . . . . . . . . . . . . . . . . . 1112

A. LAWS MAPPING WOMEN’S BODIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113

1. Abortion Method Bans . . . . . . . . . . . . . . . . . . . . . . . . . . 1113

2. Ultrasound Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1117

B. IMPLICATIONS OF LAWS MAPPING WOMEN’S BODIES. . . . . . . . . . . . . . 1120

V. RECONSIDERING THE CONSTITUTIONAL LANDSCAPE . . . . . . . . . . . . . . . . . . 1123

A. WHY SPATIAL REGULATION? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123

B. CONSTITUTIONAL CONTEXTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126

1. The Right (Not) to Travel and States’ Duties to Afford

Access. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126

2. Private Nondelegation Claims . . . . . . . . . . . . . . . . . . . . . 1132

3. Scientific Boundaries. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1138

1082 THE GEORGETOWN LAW JOURNAL [Vol. 109:1081

INTRODUCTION

Enormous public attention has focused on the total or near-total abortion bans

passed by numerous states in recent years.

1

But another recent wave of more

modest-looking abortion restrictions consists of laws regulating the geography of

abortion provision through the management of spaces, places, and borders. In the

1990s and early 2000s, numerous states adopted laws regulating the physical

spaces where abortions can be performed, such as mandates that abortions be per-

formed in ambulatory surgical centers.

2

These laws contrast with laws regulating

the abortion process itself, such as waiting periods and parental consent require-

ments for minors. Yet, despite their recent importance, the legal literature on

abortion rights has failed to delve deeply into the significance of spatial regula-

tions as compared with other types of abortion restrictions.

3

1. In 2019, nine states passed laws banning abortions at a point in pregnancy that is well before viability. See

K.K. Rebecca Lai, Abortion Bans: 9 States Have Passed Bills to Limit the Procedure This Year, N.Y. TIMES

(May 29, 2019), https://www.nytimes.com/interactive/2019/us/abortion-laws-states.html. Alabama enacted a total

ban on abortion; Georgia, Kentucky, Louisiana, Mississippi, and Ohio banned abortion when a fetal heartbeat can

be detected (as early as six weeks of pregnancy); Missouri passed a law banning abortion at eight weeks

gestation; and Arkansas and Utah banned abortion at eighteen weeks. See id.; Elizabeth Nash, Lizamarie

Mohammed, Olivia Cappello & Sophia Naide, State Policy Trends 2019: A Wave of Abortion Bans, but Some

States Are Fighting Back, GUTTMACHER INST. (Dec. 10, 2019), guttmacher.org/article/2019/12/state-policy-

trends-2019-wave-abortion-bans-some-states-are-fighting-back [https://perma.cc/BC6M-YXWP]. North Dakota

and Iowa had previously passed first-trimester abortion bans. Elizabeth Nash, A Surge in Bans on Abortion as

Early as Six Weeks, Before Most People Know They Are Pregnant, GUTTMACHER INST. (May 30, 2019), https://

www.guttmacher.org/article/2019/03/surge-bans-abortion-early-six-weeks-most-people-know-they-are-pregnant

[https://perma.cc/VL56-8LRL]. None of these bans is currently in effect.

2. Such laws existed previously, but many were adopted in the 1990s and 2000s. See, e.g., Rachel

Benson Gold & Elizabeth Nash, TRAP Laws Gain Political Traction While Abortion Clinics—and the

Women They Serve—Pay the Price, 16 GUTTMACHER POL’Y REV. 7, 8 (2013), https://www.guttmacher.

org/sites/default/files/article_files/gpr160207.pdf [https://perma.cc/4PET-NLC4]; Mary Ziegler, Liberty

and the Politics of Balance: The Undue-Burden Test After Casey/Hellerstedt, 52 HARV. C.R.-C.L. L.

REV. 421, 451–52 (2017).

3. A handful of articles from the 1990s and early 2000s consider the constitutional issues surrounding

hypothetical extraterritorial abortion restrictions. See, e.g., Susan Frelich Appleton, Gender, Abortion,

and Travel After Roe’s End, 51 ST. LOUIS U. L.J. 655 (2007); Richard H. Fallon, Jr., If Roe Were

Overruled: Abortion and the Constitution in a Post-Roe World, 51 ST. LOUIS U. L.J. 611 (2007); Seth F.

Kreimer, “But Whoever Treasures Freedom . . .”: The Right to Travel and Extraterritorial Abortions, 91

MICH. L. REV. 907 (1993); Seth F. Kreimer, The Law of Choice and Choice of Law: Abortion, the Right

to Travel, and Extraterritorial Regulation in American Federalism, 67 N.Y.U. L. REV. 451 (1992)

[hereinafter Kreimer, The Law of Choice]. This somewhat narrow issue is addressed below in

Section V.B. More recently, Professor Glenn Cohen has discussed abortion, among other medical

procedures, in his work on circumvention tourism with a primary focus on international rather than

domestic travel. See, e.g., I. GLENN COHEN, PATIENTS WITH PASSPORTS: MEDICAL TOURISM, LAW, AND

ETHICS 318–21, 347–56 (2015); I. Glenn Cohen, Circumvention Tourism, 97 CORNELL L. REV. 1309,

1363–73 (2012). Lisa Pruitt and Marta Vanegas have written incisively about the role of

“urbanormativity” and spatial privilege in shaping the judicial understanding of the burdens imposed on

women—particularly rural women—by abortion restrictions. See Lisa R. Pruitt & Marta R. Vanegas,

Urbanormativity, Spatial Privilege, and Judicial Blind Spots in Abortion Law, 30 BERKELEY J. GENDER

L. & JUST. 76 (2015). “Urbanormativity,” according to Pruitt and Vanegas, is the tendency to presume

urban life as the normal or baseline way of life, and its prevalence among judges results in a failure of

case law to recognize the impact that abortion restrictions may have on rural women, such as restrictions

that increase the travel required to access abortion services by requiring medically unnecessary in-

person visits to a provider. Id. at 80, 139–42. See generally Lisa R. Pruitt, Gender, Geography & Rural

2021] THE GEOGRAPHY OF ABORTION RIGHTS 1083