{"id":591,"date":"2026-06-14T12:38:11","date_gmt":"2026-06-14T12:38:11","guid":{"rendered":"https:\/\/commercialrelocationpros.com\/?p=591"},"modified":"2026-06-14T12:38:11","modified_gmt":"2026-06-14T12:38:11","slug":"so-much-for-leaving-abortion-up-to-the-states","status":"publish","type":"post","link":"https:\/\/commercialrelocationpros.com\/?p=591","title":{"rendered":"So Much for Leaving Abortion Up to the States"},"content":{"rendered":"
\n

The 2022 Dobbs <\/i>decision,<\/span> which overturned Roe v. Wade<\/i>, supposedly gave states the authority to decide for themselves whether to permit abortion. What should have been apparent then, and is obvious now, is that anti-abortion activists and their allies on the high court were never going to be satisfied with that.<\/p>\n

Read more The \u2018But He\u2019s a Veteran\u2019 Defense is Condescending and Dangerous<\/a><\/p>\n

Since October, the state of Louisiana has been seeking to block the distribution of mifepristone, a drug used to induce abortion, through the mail\u2014not just in Louisiana, but anywhere in the United States. The state\u2019s lawsuit against the FDA asserts that the Comstock Act\u2014an anti-obscenity law championed by the 19th-century book burner Anthony Comstock\u2014bans the mailing of abortion medication, and that the federal government wrongly repealed the in-person requirement for prescribing it.<\/p>\n

\u201cLouisiana is complaining about reported harms in Louisiana, but they would be imposing a nationwide requirement that patients pick up the pill in person from their health-care provider, even in states that protect abortion access, even in states that explicitly, in their laws, allow for telemedicine provision of mifepristone,\u201d Andrew Beck, an attorney with the ACLU, told me. \u201cLouisiana is really trying to impose its own policy choices on the entire country.\u201d<\/p>\n

Medication abortion accounts for about two-thirds of all abortions in the United States, which have actually increased since Dobbs v. Jackson Women\u2019s Health Organization <\/i>made it possible to send mifepristone through the mail. Providers were first able to mail the drug during the pandemic, a temporary measure that was made permanent by the FDA in 2023. Even in Louisiana, which has a strict anti-abortion law with few exceptions, the number of abortions has risen, according to the state\u2019s lawsuit. This was in part because Louisianans were able to access abortion drugs through providers based in states where the procedure is legal. Indeed\u2014abortion medication has made it possible for women who live far from any clinic to end unwanted pregnancies. Many of those pro-abortion-rights states had passed \u201cshield laws\u201d that protected providers in their jurisdictions from being sued or prosecuted by authorities in anti-abortion states.<\/p>\n

Although Louisiana v. FDA<\/i> is ostensibly about a federal regulatory decision and the safety of an abortion drug, it is really about access to abortion. Louisiana even began its that \u201cthe fight for life is far from over.\u201d The FDA has asked the court to hold off on a ruling for now, as the Trump administration has said it is conducting its own review of the drug (all medical evidence indicates that mifepristone is safe). In the meantime, two drug companies are asking the courts to allow the continued distribution of mifepristone. The Supreme Court responded to this question on May 14, overturning a lower order that halted distribution and sending the case back for review. The late Justice Antonin Scalia once predicted that overturning Roe<\/i> would get the Court out of the \u201cabortion-umpiring business.\u201d That prediction has not aged well.<\/p>\n

In their dissents to the May 14 ruling, Justices Clarence Thomas and Samuel Alito showed their hands. Thomas asserted that the Comstock Act banned sending abortion drugs through the mail, and that drug companies seeking to overturn the ruling were \u201cnot entitled to a stay of an adverse court order based on lost profits from their criminal enterprise. They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes.\u201d Alito, the author of the Dobbs<\/i> opinion, attempted to maintain the facade that Dobbs<\/i> allowed pro-abortion-rights states to make it \u201ceasier to obtain an abortion than it was before, and that is their prerogative.\u201d Yet he insisted that allowing providers in states where abortion is legal to mail the drugs to women where it is not was \u201ca scheme to undermine our decision\u201d in Dobbs<\/i>. So much for the supposed abortion federalism the Court had put in place.<\/p>\n

Whatever happens next, the legal battle reveals that the paradise of abortion federalism is a fraud. Either anti-abortion states will get to impose their policies on pro-abortion-rights states, or they will have to live with their residents being able to access abortion care from providers elsewhere.<\/p>\n

\u201cThose who oppose abortion are not satisfied with the Supreme Court\u2019s ruling that it should be up to the states to decide abortion policy,\u201d Nancy Northup, the president of the Center for Reproductive Rights, told me. \u201cThey want a national ban. They\u2019ve always wanted a national ban. And this case, Louisiana v. FDA<\/i>, is a type of effort to get at least a national ban on medication abortion.\u201d<\/p>\n

Lawmakers in anti-abortion states<\/span> have sought to ban or criminalize the sharing of information about abortion, such as through a Texas proposal that would outlaw providing \u201cinformation on the method for obtaining an abortion-inducing drug.\u201d Anti-abortion states have tried to sue Planned Parenthood for providing accurate information about the safety of abortion drugs; Florida accused the organization of violating its racketeering law. Early efforts at restricting pregnant women\u2019s travel have been stymied in the courts, but Texas\u2019s bounty law, which allows a private individual to sue anyone who helps someone else get an abortion, is still in effect.<\/p>\n

There\u2019s no need to travel, however, if you can get what you need through the mail. Since 2023, the anti-abortion movement\u2019s biggest priority has been trying to block the distribution of abortion medication nationally, either by reversing the FDA\u2019s approval of mailing mifepristone or by getting the Supreme Court to rule that Comstock retains the authority to \u201cenforce evangelical Protestant doctrine regarding sexuality,\u201d as the historian Amy Werbel described the law in Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock<\/i>.<\/p>\n

Although the Comstock Act remains on the books, its prohibition on the distribution of \u201cany article or thing designed or intended for the prevention of conception or procuring of abortion\u201d has never \u2014and wasn\u2019t even before Roe<\/i>\u2014according to a brief by former Justice Department officials. And its provisions on obscene material have been narrowed by court decisions in the century since its passage. Ironically, Werbel writes, Comstock\u2019s crusades elevated his profile and influence, but also provoked a backlash that led to greater acceptance of birth control and open discussion of sexuality.<\/p>\n

The safety of mifepristone is not seriously in question. A from the American College of Obstetricians and Gynecologists notes thatserious complications from medication abortion are extremely rare, occurring in less than 0.32 percent of cases; death has occurred in 0.00048 percent. A person is more likely to die from taking Viagra or getting a colonoscopy, the brief adds, and far more likely to die from pregnancy-related complications.<\/p>\n

Read more An Underrated Sitcom That\u2019s a Fire Hose of Funny<\/a><\/p>\n

If Louisiana succeeded in halting the mailing of mifepristone, people could still access an alternative drug, such as misoprostol, but anti-abortion advocates aren\u2019t simply trying to make one particular drug harder to get, and they surely wouldn\u2019t stop with this case. Access to abortion through telehealth is an \u201cexistential threat\u201d to the anti-abortion movement, Rachel Rebouch\u00e9, a law professor at the University of Texas at Austin who has helped pro-abortion-rights states draft shield laws, told me. \u201cThe average number of abortions has gone up, and people in banned states are getting pills. It\u2019s a threat because you can try to police it, but doing so would be very expensive, very intrusive, and it\u2019s probably going to create a massive backlash.\u201d Louisianans probably don\u2019t want cops ransacking their mail any more than New Yorkers do.<\/p>\n

Before Dobbs<\/i> was even issued, abortion-rights advocates knew that red states would try to impose civil liabilities on out-of-state medical professionals. This is because Republicans announced their intentions publicly: In March 2022, two months before the Dobbs<\/i> opinion was leaked, Missouri Republicans were considering a proposal to impose civil liabilities on anyone who helped a woman get an abortion out of state. Texas\u2019s bounty law, which also applies to out-of-state abortions, was passed in 2021.<\/p>\n

Given that anti-abortion advocates see themselves as fighting for life (although not the lives of women dying in anti-abortion states\u2014those don\u2019t seem to count), they were never likely to let state borders confine their efforts. So abortion-rights advocates began pushing for the shield laws; in March 2022, Rebouch\u00e9 and two fellow law professors, David S. Cohen and Greer Donley, made the case for them in The New York Times<\/i>. Shield laws have been passed in 22 states and Washington, D.C.<\/p>\n

\u201cWe started to think, Let\u2019s map out all the ways interstate conflict is gonna manifest<\/i>\u2014all the things that we think that states are gonna do to try to extend their abortion bans across their borders to patients, to providers, and the like,\u201d Rebouch\u00e9 told me. \u201cIt can\u2019t be that the end goal is just to ban abortion in a state. The end goal has to be to ban abortion everywhere.\u201d<\/p>\n

The point is that Alito\u2019s timeline is wrong. Shield laws were not a response to Dobbs<\/i> itself; they were a response to Republicans\u2019 threats to extend their bans on abortion beyond their own borders once Roe<\/i> was overturned.<\/p>\n

\u201cMany of the same anti-abortion politicians who were telling the Court, Hey, we should leave this to each individual state to decide its own policies<\/i>\u2014they immediately set about trying to impose their own restrictions on abortion care that was taking place legally elsewhere,\u201d Beck said.<\/p>\n

Shield laws are not directly at issue in Louisiana\u2019s case. But Alito\u2019s reference to those laws as part of a \u201cscheme\u201d to undermine Dobbs<\/i> is a tell that he believes that New York should be compelled to help enforce Louisiana\u2019s ban on abortion. Although the justices who overturned Roe<\/i> blamed it for fomenting partisan rancor and division, the Dobbs<\/i> ruling was always going to be worse in that regard, precisely because abortion cannot truly be banned as long as you can cross state lines to get one.<\/p>\n

Perhaps the last time the country\u2019s federalist system faced this sort of challenge was during the antebellum conflict over slavery. Contemporary shield laws pose similar legal questions to the \u201cliberty laws\u201d of the 19th century, which varied state by state. In 1820, Pennsylvania passed the first, making it a felony to kidnap someone for the purpose of enslaving them, whether they were born free or not. (Many slave catchers did not bother to make that distinction, as the story of Solomon Northup, a free Black man who was kidnapped and enslaved, shows.) The centrality of slavery to both the economy and the Constitution, however, led Chief Justice Roger Taney to strike down these laws as unconstitutional in 1842. The justices concluded in Prigg v. Pennsylvania<\/i>, a case involving the kidnapping of a free Black woman named Margaret Morgan, that the Constitution\u2019s Fugitive Slave Clause gave \u201cthe citizens of the slaveholding States the complete right and title of ownership in their slaves as property in every State in the Union.\u201d<\/p>\n

Like Dobbs<\/i>, however, Prigg<\/i> left some loopholes through which free states could maneuver. After Prigg<\/i>, some free states passed laws compelling noncooperation by state authorities with slave catchers. Incensed, and contrary to their reputation for being committed to states\u2019 rights, supporters of slavery in Congress passed a new Fugitive Slave Act in 1850. In the 1859 case Ableman v. Booth<\/i>, involving an abolitionist named Sherman Booth, who aided in breaking a former slave named Joshua Glover out of prison, the Taney Court held that any state laws interfering with the Fugitive Slave Act were unconstitutional. This imposition of pro-slavery federal power on antislavery states helped set the stage for the Civil War.<\/p>\n

Abortion is not slavery, and abortion is unlikely to provoke another secession crisis, but anti-abortion advocates\u2019 extraterritorial strategy has been tried before. They will keep trying to impose their will on pro-abortion-rights states, and where that does not succeed, they will demand that a sympathetic Supreme Court compel those states to submit. If that fails, they will seek to use the power of the federal government to ban or strictly limit abortion nationwide.<\/p>\n

In his famous \u201cHouse Divided\u201d speech in 1858, Abraham Lincoln predicted that \u201cwe shall lie down, pleasantly dreaming that the people of Missouri are on the verge of making their State free, and we shall awake to the reality instead, that the Supreme Court has made Illinois a slave State.\u201d If Lincoln\u2019s warning holds true today, then America won\u2019t be divided between states where abortion is legal and illegal forever. Either we will become all one thing or all the other.<\/p>\n

Read more American Democracy, 250 Years Later<\/a><\/p>\n<\/section>\n","protected":false},"excerpt":{"rendered":"

Louisiana\u2019s case against the FDA is not just about one drug.<\/p>\n","protected":false},"author":1,"featured_media":590,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[],"class_list":["post-591","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-ideas"],"yoast_head":"\nSo Much for Leaving Abortion Up to the States - Commercial Relocation Pros<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/commercialrelocationpros.com\/?p=591\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"So Much for Leaving Abortion Up to the States - Commercial Relocation Pros\" \/>\n<meta property=\"og:description\" content=\"Louisiana\u2019s case against the FDA is not just about one drug.\" \/>\n<meta property=\"og:url\" content=\"https:\/\/commercialrelocationpros.com\/?p=591\" \/>\n<meta property=\"og:site_name\" content=\"Commercial Relocation Pros\" \/>\n<meta property=\"article:published_time\" content=\"2026-06-14T12:38:11+00:00\" \/>\n<meta name=\"author\" content=\"admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"11 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/commercialrelocationpros.com\\\/?p=591#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/commercialrelocationpros.com\\\/?p=591\"},\"author\":{\"name\":\"admin\",\"@id\":\"https:\\\/\\\/commercialrelocationpros.com\\\/#\\\/schema\\\/person\\\/3a3374a445f1b5d4852b1d7c15b9fe3a\"},\"headline\":\"So Much for Leaving Abortion Up to the States\",\"datePublished\":\"2026-06-14T12:38:11+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/commercialrelocationpros.com\\\/?p=591\"},\"wordCount\":2124,\"commentCount\":0,\"image\":{\"@id\":\"https:\\\/\\\/commercialrelocationpros.com\\\/?p=591#primaryimage\"},\"thumbnailUrl\":\"https:\\\/\\\/commercialrelocationpros.com\\\/wp-content\\\/uploads\\\/2026\\\/06\\\/a137ffcb1df0d883f3f450215060579d.avif\",\"articleSection\":[\"Ideas\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/commercialrelocationpros.com\\\/?p=591#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/commercialrelocationpros.com\\\/?p=591\",\"url\":\"https:\\\/\\\/commercialrelocationpros.com\\\/?p=591\",\"name\":\"So Much for Leaving Abortion Up to the States - 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