Immediately following the Supreme Court’s overturning of Roe v. Wade, Senator Elizabeth Warren called on the Biden administration to act boldly. One of her requests was for the administration to use federal lands in antiabortion states to provide abortion care.
The idea may seem strange. After all, the Supreme Court has just relegated decisions over abortion’s legality to the states, stripping the procedure of federal constitutional protection. But the federal lands argument rests on a constitutional provision not at play in the abortion case: the Enclave Clause. Under that clause, the federal government has exclusive jurisdiction over federal land. Warren’s proposal rests on this provision, which gives the federal government control over property in its exclusive jurisdiction. As such, without a federal law banning abortion in these “exclusive enclaves,” abortion is legal there, even within states that ban the procedure.
In these enclaves, the federal law known as the Assimilative Crimes Act (ACA) applies and incorporates some state laws on federal land, but this statute only applies in cases where there is no federal policy that would supersede the state law, such as for drunk driving or assault. On abortion, the federal government has spoken, as evidenced by various federal statutes and, most important, regulations governing abortion pills. The federal government first approved medication abortion in 2000 and has since closely regulated this two-drug regimen that ends a pregnancy before 10 weeks.
The FDA’s regulation, based on findings of medication abortion’s safety and efficacy, arguably established federal policy on the matter. This could render state abortion bans, at least as they encompass medication abortion, inapplicable on federal land. A series of union cases in federal courts support this reading of the law. State laws banned union shop agreements, but the federal courts ruled that those laws could not apply on federal land because federal law expressly permits such agreements.
Even if state abortion law applied on federal land under the ACA, federal prosecutors, not state prosecutors, bring charges under the law. Thus, federal prosecutors who are part of the Biden Justice Department could use their enforcement discretion and decline to prosecute abortion crimes on federal land.
What about the Hyde Amendment, which prohibits the federal government from expending its own resources on abortion provisions? If the federal government leases space to or provides permits for abortion clinics to operate on federal land, the flow of money would be from the abortion provider to the federal government. The Hyde Amendment says nothing about such a scenario.
Of course, implementing a strategy to move abortion services to federal lands means confronting and mitigating real and serious risks. For instance, state laws in antiabortion states could target abortion providers with disciplinary, civil, or even criminal measures once they cross back into the state’s jurisdiction. The same could be true for patients and those who assist them after they leave the federal land and return home. And depending on who is elected to be the next president, the providers that the Biden administration protected from ACA-based prosecution could be vulnerable. To avoid the very real threat that a subsequent administration will be hostile to abortion rights, Biden must commit to pardoning abortion providers and those who seek the procedure before he leaves office.
The legal concerns cannot be minimized. But a targeted approach could mitigate some of them.
First, much depends on which state is chosen. Legal risks will be much greater for patients in states that allow the prosecution of pregnant people under state feticide or child abuse laws, and some states like Louisiana recently considered a law that would allow an abortion seeker to be prosecuted. Those laws could apply once that patient is back on state territory. The state should also be one with a United States Attorney committed to protecting abortion access and who will not interpret the ACA to allow the prosecution of either abortion seekers or providers.
Second, the federal land chosen within an abortion-banning state must be an exclusive enclave. While there is no readily obtainable list of which lands are exclusive federal enclaves, case law has determined the enclave status of particular pieces of land. Federal lands, then, where the question of exclusive enclave status is settled should be prioritized. Note: This does not include Native or tribal lands. We strongly believe that any proposal concerning Native lands must come from the tribes themselves.
Third, past Supreme Court cases protect the rights of people to travel to federal land to conduct business there. The Slaughterhouse Cases of 1872 and Crandall v. Nevada in 1867, for example, held that states cannot interfere with people traveling for such a purpose. These cases have remained untouched for a century and a half. Tapping their legal arguments now may give legal cover to those who travel to the federal land — the abortion provider, the patient, and anyone who accompanies the patient.
Even with these measures, risks to providers, patients, and those who accompany them will remain, and a test case or a pre-enforcement challenge could help elucidate the obstacles ahead. Antiabortion states will certainly challenge abortions on federal lands. In a post-Dobbs, post-Roe country, however, options are becoming increasingly scarce. The time to take calculated risks is now.
David S. Cohen is a professor of law at Drexel University’s Kline School of Law. Greer Donley is an assistant professor of law at the University of Pittsburgh Law School. Rachel Rebouché is the interim dean of Temple University’s Beasley School of Law.