Could federal land be a loophole for abortion access?  Legal experts say it's complicated

WASHINGTON—With the fall of Roe v. Wade, conservative states are moving quickly to pass a jumble of restrictive abortion laws. States like Mississippi and Texas have moved to ban the procedure altogether, while other states like Ohio and South Carolina have reinstated older laws that severely restrict access.

Seeking to circumvent increasingly restrictive laws, Democrats and progressive activists have called on the Biden administration to apply a legally risky solution to Roe’s disappearance, the effects of which, they argue, pose a far greater threat.

in a June 7th letter to President Joe Biden, before Roe was revoked, Massachusetts Sen. Elizabeth Warren and 24 other Democratic senators suggested placing abortion services on federal land. warren too suggested to the Washington Post that the Biden administration could set up Planned Parenthood stations outside national parks.

“They could put up tents, have trained staff and be there to help people who need it,” Warren told the Post.

Representative Alexandria Ocasio-Cortez, DN.Y.Y Representative Cori Bush, D-Mo.he echoed Warren’s proposal days after Roe was overturned.

federal lands, or federal enclaves, refer to buildings or land within a state that are under the control of the federal government. In many cases, federal enclaves are subject to federal jurisdiction only, which means that state governments cannot prosecute crimes in that territory. Some federal courthouses, military bases, federal buildings, and national forests and parks are federal enclaves, according to legal strategy firm Littler.

In theory, clinics within federal enclaves could provide a loophole for abortion access in states with restrictive abortion laws. But in practice, legal experts say placing and operating abortion services on federal land is complicated.

“It’s really hard to say clearly, as a lawyer, what is and isn’t protected,” said Leila Abolfazli, director of federal reproductive rights at the National Women’s Law Center.

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The case of abortion services on federal lands

Rachel Rebouché, a professor of law at Temple University and a leading scholar in reproductive health, wrote an article for the upcoming 2023 Columbia Law Review along with two other legal experts, which, in part, argues in favor of locating abortion services on federal land.

The general argument is this: in some federal enclaves, the federal government has exclusive jurisdiction. So, in theory, the federal government could lease space on that land to private entities to legally perform abortion services, even if the enclaves are within states that have banned the procedure.

“The federal government does not have an abortion ban,” Rebouché told USA TODAY. “There is no national right to abortion, or a national ban on it… (Federal lands) there could be spaces where care could be provided that would otherwise not be available.”

The key to the argument, according to the draft document, is a little-known federal law called the Assimilative Crimes Act. The Assimilative Crimes Act says that a person who commits an act on federal land for which there is no crime “punishable by any act of Congress” could face federal criminal charges if the act would be considered a crime in the state, territory, possession or district in which the federal land is located, depending on the project.

However, federal prosecutors would bring and try those cases in federal court. Under an administration that supports abortion rights, federal prosecutors could enforce the rules with discretion. However, an administration that does not support abortion rights could also enforce the rules at its discretion.

Abortion rights activists have questioned whether US territories and tribal lands could agree to perform abortion services for some Americans, but those proposals are not linked to calls to locate clinics on federal land.

“They have a completely different jurisdiction, so it’s a different set of questions,” Rebouché said.

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Federal Land Proposal Has Risks

That does not mean that the proposal is free of pitfalls.

“There is a lot of concern about the logistics of protecting people coming in and out of federal lands, the legality of when and how federal law is or is not enforced,” Rebouché said. “It is a novel proposal, but it is also one in which there is a lot of risk.”

The proposal’s first hurdle is finding federal land that actually fits the parameters needed to protect people seeking abortions.

Whether a place fits the bill would depend on when the land became an enclave and when the state relinquished concurrent jurisdiction over it, and there is no definitive list of that land, Rebouché said.

Bureau of Land Management spokesman Brian Hires told USA TODAY that he is “not aware of any such resource across the government or with BLM.”

Then there is the issue of financing. the Hyde Amendment prohibits the use of federal funds for abortion services, except in cases of rape or incest, or if the life of the patient is at risk, which limits the participation of the federal government in the creation and operation of the facilities.

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But Abolfazli said the Hyde Amendment is about paying for abortion care itself, which means it’s not necessarily a limiting factor.

“I don’t find it a barrier,” he said. “I understand that anti-abortion legislators suggest that it is a barrier, but that is only in their interest.”

Of more concern, Abolfazli said, is making sure providers and patients don’t face repercussions for providing or receiving abortion services on federal land.

“The Supreme Court has wreaked havoc on our public health and legal systems, and harm reduction must be pursued at this time, but we must also ensure that people — patients, families, providers — are not put at risk.” with that”. harm reduction,” Abolfazli said.

Cary Franklin, director of the Center for Reproductive Health, Law and Policy at the University of California, Los Angeles, told USA TODAY that it is unknown whether providers and patients could be protected from state prosecution after traveling to and from federal land. to receive abortion services.

“A lot of these people, if they’re not going to live on federal land, they’re going to live in the state, and as soon as they get off federal land, the state arrests them,” Franklin said. “It’s not clear that the state can’t do that.”

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The Biden administration is not convinced

Without the ability to provide a legislative recourse, the Biden administration struggled to immediately offer substantive solutions for people seeking abortion services after the Roe reversal, leading to frustration among abortion rights activists who say the White House is not doing enough.

On July 8, Biden signed an executive order outlining the steps your administration will take to safeguard access to the procedure, including ensuring access to medical abortion, emergency medical care, and contraception.

“This is a moment, the moment, the moment to restore the rights that have been taken from us and the moment to protect our nation from an extremist agenda,” Biden said before signing the executive order.

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Until now, the White House has refused to provide abortion services on federal land.

White House Press Secretary Karine Jean-Pierre. said in June that the proposal could have “dangerous ramifications” for patients and providers who are not federal employees. Vice President Kamala Harris told CNN that the administration is not arguing the proposal.

On July 8, Jean-Pierre seemed to back off a bit telling reporters asking about the proposal that “everything is on the table,” while still pointing to the legal tie patients and providers could face after leaving federal lands.

But in the uncharted territory of a post-Roe America, it’s unclear whether any federal action to expand access to abortion comes without risk.

“I’m not sure it’s possible to be risk-free in these scenarios,” Rebouché said.

Placing abortion services on federal land is just one of many proposals by abortion rights advocates and legal experts, who are scrambling to find answers to the many questions raised by the repeal of Roe.

“It’s just a Pandora’s box of new legal problems,” Franklin said. “There are so many underdeveloped areas of the law that we are now going to have to resolve.”

This article originally appeared on USA TODAY: Federal land could provide loophole in access to abortion, experts say

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