Volume 109
Issue 5
April '21

The Geography of Abortion Rights

Written By: B. Jessie Hill

Abstract

Total or near-total abortion bans passed in recent years have garnered tremendous public attention. But another recent wave of more modest-looking abortion restrictions consists of laws regulating the geography of abortion provision through management of spaces, places, and borders. In the 1990s and early 2000s, numerous states adopted laws regulating the physical spaces where abortions can be performed. These laws include mandates that abortions be performed in particular kinds of places, such as ambulatory surgical centers, or that abortion-providing facilities have agreements in place with local hospitals. One consequence of such regulations has been to reduce the availability of abortion services within the geographical borders of a particular state and to require people to travel out of state in order to terminate a pregnancy. Other abortion controversies, too, have foregrounded the significance of state and even national borders, as in the cases of unaccompanied immigrant minors who sought abortions while in the custody of the U.S. government. Thus, an entire subset of abortion restrictions intentionally targets the geography of abortion provision, inevitably impacts the geographical distribution of abortion services, or both. Yet, the geographical dimension of abortion restrictions has gone mainly unappreciated in the legal literature. This Article thus aims to provide an overview of the geography of abortion regulation. It first considers the unique impact and attractiveness of spatial regulations, demonstrating that they rely on the apparent naturalness of geographical features to exploit or aggravate preexisting social inequality, making the resulting disproportionate burdens seem inevitable. Second, this Article considers the jurisprudential implications of this “spatial turn” in three specific areas: the right to travel, the private nondelegation doctrine, and the concept of viability in abortion doctrine. 

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