72 Am. U. L. Rev. 949 (2023).
Abortion is the latest flashpoint in the culture wars. Post-Dobbs, red and blue states are hard at work codifying different approaches within their boundaries. However, pills, women, transactions, medical services, and information will cross those boundaries. Both sides already fight about who gets to regulate such boundary-crossing activity with each accusing the other of trespassing on the regulatory space of their disagreeing neighbors.
This is dangerous terrain. A house divided against itself needs tools to mediate and constructively tackle conflict. Without such tools, divisions will deepen and provide an endless stream of incidents to further divide the country. The choice of how to harness interjurisdictional conflict will shape the next phase of the culture wars.
Thinking about interstate differences when it comes to abortion is not new. But the brunt of that scholarship has focused on constitutional defenses. In contrast, this Article focuses not on whether state laws pass constitutional muster, but how courts will mediate between newly valid but clashing state laws when constitutional defenses are unavailable or in doubt.
The Article makes three contributions. First, it documents the many different types of interjurisdictional conflicts already on the horizon (horizontal, vertical, tribal, foreign, etc.). Sometimes lumped together, each type raises different issues and invokes different areas of conflict law. Second, the Article explains why conflict of laws doctrine in its various guises has little to say about the pressing issues raised by public law post-Dobbs interjurisdictional conflict. Existing conflict of laws doctrine is focused on private law disputes, designed with different concerns in mind, and built for another era; one that has passed. Third, the Article explains how conflict of laws could be adapted to the current era. What pathways does it offer to judges and legislators concerned with navigating through the treacherous post-Dobbs terrain? This Article provides a map. It offers four different paths: confrontation, deflection, obfuscation, and facilitation. Each path has its own rewards, costs, and limitations. Which path to choose depends on one’s normative commitments and general theory of democracy.
Professor of Law, The University of Oklahoma College of Law.