Extraterritoriality of Restrictive State Abortion Laws: States Can Abort Plans to Abort at Home But Not Abroad

The question of a state\u27s authority to legislate abortion extraterritorially may appear largely academic because of the United States Supreme Court\u27s holding in Roe v. Wade, in which the Court prohibited states from restricting abortions in the first trimester of pregnancy.\u27 At first glance, the Supreme Court\u27s recent decision in Planned Parenthood v. Casey\u27 appears to remove further the issue of extraterritorial abortion legislation from the states because the decision purportedly reaffirmed Roe.3 The Casey decision, however, does not preclude returning the abortion issue to the states. An extremely tenuous coalition of justices reaffirmed Roe, while a united group of dissenters argued that the Supreme Court should defer resolution of the abortion issue to state legislatures. 4 Furthermore, Casey\u27s undue burden standard allows states significant latitude in restricting abortion, and the decision does not address extraterritoriality.\u27 In the wake of the Casey decision, courts throughout the nation will have to confront the question of the legality of state-restrictive abortion laws.6 The post-Casey abortion landscape will largely resemble the pre-Roe landscape: a patchwork of states either legalizing or significantly restricting abortion, with women traveling interstate to obtain abortions.7 This Note examines the power of states to enact extraterritorial criminal abortion laws. Previous attempts to address this issue have failed to recognize any limits on a state\u27s authority to legislate restrictive abortion laws. This Note proposes a framework for addressing the legality of extraterritorial state legislation and for imposing restrictions on state extraterritorial legislative authority. Section I examines the timeliness of issues relating to extraterritorial criminal abortion legislation. Section II discusses possible sources for a state\u27s authority to legislate beyond its borders, focusing on the Model Penal Code\u27s discussion of extraterritoriality and the traditional international law bases for criminal jurisdiction. Section III addresses the applicability of international law principles to the separate states of the United States. Section IV applies the judicially recognized restrictions on a state\u27s power to legislate extraterritorially to the specific issue of extraterritorial criminal abortion legislation