Nearly a year ago in Dobbs v. Jackson Women’s Health Organization, the Supreme Court eliminated the federal constitutional limits on government interference with access to pre-viability abortion. It is hardly novel to note that “return[ing] the issue of abortion” to the states has hurt pregnant people nationwide—for many of whom, particularly the most marginalized, abortion access was already nearly impossible.
Immediately after the Dobbs opinion leaked, all eyes were on the states. There has been much thoughtful commentary about not just the human toll of the decision, but also the complex legal issues that it raises. And those questions are many, including issues of state constitutional protections, choice of law, and whether there are meaningful constitutional limits on states’ ability to regulate extraterritorially. These assessments help us understand much of the first wave of state reactions to Dobbs, as well as some of the more extreme recent state actions on the issue.
This attention to states is necessary but incomplete. It is inadequate because the map of abortion access in the United States in last 50+ years hasn’t been a state map, it has always been a regional and municipal map. While state action has altered that picture somewhat, abortion access is still in significant part a regional issue (particularly in light of the current challenges to the accessibility of medication abortion, including by mail).
This shouldn’t be surprising; there is a deep history of local governments regulating access to abortion, directly and indirectly. Even before Roe v. Wade was decided, the New York Court of Appeals had struck down local abortion restrictions as preempted by state law. Among the many post-Roe laws the Supreme Court struck down post-Roe was Akron, Ohio’s multi-pronged abortion restriction. In the decades since, local abortion regulation has persisted. On the one hand, dozens of communities have recently outlawed abortion and declared themselves “Sanctuaries for the Unborn”—five in then-abortion-moderate Nebraska having done so by popular vote in November 2022 alone. On the other hand, abortion-rights-minded cities have ramped up the care provided by their clinics and hospitals, directed funding to support abortion logistics where state law prohibited funding abortions directly, and enacted anti-discrimination protections related to reproductive health decisions.
So, when we think about the complexities of the law of abortion after Dobbs, we can’t just think about states and territories. This is very much about thousands of municipalities, too.
In my forthcoming article Abortion Localism and Preemption in a Post-Roe Era, I take a first pass as what this local engagement means after Dobbs and lay out some of the possible state-local dynamics for abortion regulation now. I argue that scholars, advocates and lawmakers can’t afford to ignore the role that local governments have long played, and will increasingly play, in determining practical access to abortion. I won’t re-hash the whole piece here, but I offer a few highlights and a snapshot of how these dynamics are playing out so far.
Once we see that post-Dobbs abortion access is as much an intrastate as an interstate issue, I likely don’t need to tell the readers of this blog what comes next: preemption fights. Fights about local abortion policy that used to center the federal constitutional abortion rights will now be channeled into questions of local authority and state preemption.
For readers who may not spend all day thinking about preemption, a brief review. Preemption, the displacement of “lower” law by “higher” law on the same issue, comes in three main types:
· Express preemption: when, e.g., a state legislature says explicitly how much a given state law displaces related local law.
· Field preemption: when a court finds that even though the state didn’t say it was preempting local laws, it has so completely regulated the issue that it left no room for additional local regulation.
· Conflict preemption: when it is either impossible to comply with both state and local law, or the local law poses a significant obstacle to the state accomplishing the purpose of its law. (Localities can’t authorize what a state prohibits, but can sometimes prohibit what a state does not.)
The question then becomes what does preemption mean for abortion access? A lot, but I will offer three thoughts here.
First, the structure of most states’ preemption law will favor localities that want more restrictive abortion policies than their states over localities that would prefer fewer restrictions. Conflict preemption tends to be pro-regulatory, in that will allow (if anything) local laws that are more, but not less, restrictive than the overlapping state law. So, absent express or field preemption, localities wanting to make abortion law more restrictive than their state does may be able to directly regulate that outcome because their abortion-restrictive laws may survive a preemption challenge, at least up to the point they pose an obstacle to state law. Localities that would prefer a more liberal law can support abortion access, but only with more indirect policy tools such as spending to support access, regulating disruptive clinic protests, or declining to use local resources to enforce state anti-abortion laws.
Second, we are thrusting one of the most polarized, contentious issues in American politics into the heat of the hyper-preemption trend—the fad of states not just displacing local law, but punishing localities and local officials who adopt them. And, it turns out, we are doing it in a way that reverses the current politics of hyper-preemption. So far, the states engaged in hyper-preemption have mostly been Republican-led, and the punitive preemption has been largely directed at “bluer” cities. These aggressive preemptors overlap significantly with the states that have been pursuing very restrictive abortion policies. Since ordinary preemption favors local las that are more restrictive than those of their states, ordinary preemption law will favor laws that support these states’ own policy aims. Thus, even express preemption may be unnecessary, and if such a state resorts to express preemption, it is fairly straightforward. For example, Texas can say—and has—that its abortion laws allow localities to ban abortion entirely.
By contrast, there has until now been relatively little punitive preemption coming out of Democratic-led states, which also tend to have more liberal abortion policies. For them, though, ordinary preemption law will favor localities with the opposite policy preference from the state- less access to abortion. If blue states want to make sure that more conservative cities can’t further restrict access to abortion, they’ll be tempted to resort to express preemption. They might choose to preempt the whole field, as Maine is now considering. The project is harder, though, if the states want to tailor preemption to allow some local policies, but only those that comport with the state’s abortion-rights stance. Many local actions that practically exclude abortion providers can be difficult to detect and police, and it is hard to write an express preemption provision that addresses them effectively.
Any law, rule, regulation, ordinance, or order, … that is determined to have the effect of limiting the [state] constitutional right to freedom of reproductive choice and that does not conform with the provisions and the express or implied purposes of this act, shall be deemed invalid and shall have no force or effect.
What does take to “limit” the exercise of the constitutional right? Where there is wiggle room, there is often room for local action. Hence the difficulty in creating preemption language to protects private rights against the great variety of local policy tools. Accordingly, when a pro-choice state finds resistance from an anti-abortion locality, it may go looking for a more punitive “stick” to deter local policy innovation in abortion suppression. This both spreads hyper-preemption to more states, and reverses the politics of hyper-preemption in a way that is unlikely to benefit local autonomy writ broadly.
We are seeing this happen in real time. Partly in response to recent local abortion bans, pro-choice New Mexico recently adopted a law that prohibits local governments from discriminating on the basis of reproductive health care decisions and bars them from “directly or indirectly, deny[ing], restrict[ing] or interfere[ing] with a person's ability to access or provide reproductive health care.” The final law can be publicly or privately enforced and allows private plaintiffs to seek punitive damages. This is the restrained version of the law; it was amended in the legislative process to remove reference to the state seeking punitive damages from localities, and to bar enforcement against individual officials. As local abortion bans continue to proliferate in New Mexico even after the new law, one wonders if the state will continue to show such relative restraint.
Third and finally, we should be thinking about local policy variation on abortion access more, and differently, than we are. States don’t have to engage in express preemption. They can remain silent about the relationship between state and local law on abortion, as most currently do. I go into some detail in the paper about what it might look like if states created a local option for abortion regulation, much the way that many do for, say, local decisions about alcohol or cannabis. I do this not because I think it is terribly likely that any state is going to say “yes, just leave abortions to the localities,” even in recently or relatively abortion-moderate states in which state government is closely divided. Instead, I think we need to think carefully about the upsides and downsides of local governments differentially regulating abortion access because that’s the world we already live in. And when policymakers are re-shaping state abortion law to meet this moment, they should know what they’re signing on to if they don’t explicitly consider how local law will fit into the abortion regulatory scheme.
Local action on abortion access is a longstanding tradition because it is an issue local constituents care deeply about. The stronger devolution of abortion regulation afforded by Dobbs is already supercharging that—and with it, the state-local conflict controversial local action brings. We are seeing the second wave of post-Dobbs regulation unfolding all around us, and a major theme is (and must be) local action.