The Clash of Constitutional Rights and Liberties and Legal Pluralism in Abortion

• In Event: Women's Lives and Constitutional Rights

Abstract

Pluralism in abortion state and federal laws causes abortion seekers to engage in forum shopping, resulting in prosecutorial and civil repercussions. Scholar Dellapenna (2008) notes in his article, “Abortion Across State Lines,” that interstate movement to facilitate abortion has increased as the Supreme Court has loosened federal constitutional standards for state abortion laws. This raises the important question of whether changes in the federal law have increased criminal prosecutions and civil litigation at the state level. Moreover, does prosecuting someone for an abortion that occurred in another state violate their civil liberties or constitutional rights? The evolution of abortion jurisprudence in the Supreme Court may be connected to the timing, severity and volume of prosecutions related to abortion at the state level. Utilizing case study methods and content analysis of federal and state abortion laws combined with data on state-level criminal prosecutions, this project seeks to understand how conflict of laws and forum shopping affect civil rights and liberties for women. Specifically, this project has three goals: 1) to identify the reach of states that are deeply opposed to abortion; 2) to examine the strategies enacted by anti-abortion states to constrain women from seeking an abortion in another state; and 3) to uncover the implications of both the freedom of movement in our nation as well as the balance of power between states and between state and federal governments on the abortion debate. Goals clash when considering the protection of the constitutional right to the freedom of movement, the balancing of state rights among the states, and the intersection of federal and state power in this context. Notwithstanding its legal pluralism, federal abortion law should seek to uphold balance of power and federalism principles, while promoting social and judicial equity for women seeking access to abortions.

Authors

• Susanna Southworth, Pacific Lutheran University

• Leslie Pickering Francis, University of Utah

• John G. Francis, University of Utah