Roe Your Boat: Shipping Reproductive Care out to Sea as a Legal Workaround to State Abortion Restrictions in the Wake of Dobbs

Introduction

Dr. Rebecca Gomperts maneuvers through a throng of protestors at the harbor in Smir, Morocco, amidst chants of “go away” and “abortion is treachery” from the gathering crowd.¹As she addresses the cameras, Dr. Gomperts’s ship sails in the waters behind her: a 110-foot vessel housing a shipping container fitted as a medical clinic stocked with mifepristone and misoprostol—the abortion pills.² Off camera, Moroccan authorities intervene and block the ship from docking at port, preventing Dr. Gomperts’s crew from escorting local residents onto the ship and out twelve miles into international waters, where the abortion pills can safely—and legally—be administered.³It is 2012, and Morocco is the latest destination of Women on Waves’ “abortion ship” that travels to countries where abortion is illegal.⁴

Women on Waves is a Dutch non-governmental organization (“NGO”) founded by Dr. Gomperts in 1999 as both a mobile medical facility providing safe and legal abortions by pill, and a campaign to influence laws restricting the choice to terminate a pregnancy.⁵ Operating under Dutch law, with a clinical license to provide first trimester medical abortions,⁶the NGO charters a ship into international waters where the law of the flagship state applies.⁷ By docking at ports in countries with restrictive abortion laws, and sailing persons looking to terminate a pregnancy beyond territorial waters, Women on Waves legally administers abortion pills to those in need.⁸ Despite its campaigns often meeting governmental resistance,⁹ Women on Waves has garnered some success providing abortion services and influencing abortion legislation at its destinations.¹⁰

Women on Waves’ ship campaigns are a creative solution to the heightened rates of maternal mortality due to unsafe abortions in areas where abortion is illegal, and its mission is representative of the movement towards “expand[ing] the legal grounds on which women can access abortion services.”¹¹ While fifty countries have extended legal protections for abortion since 2000, the United States recently broke rank with the global trend towards abortion liberalization.¹²On June 24, 2022, the United States Supreme Court handed down a landmark determination in Dobbs v. Jackson Women’s Health Organization that no provision of the United States Constitution conferred a right to an abortion.¹³ In doing so, the Court left the fate of reproductive care to the discretion of state legislators,¹⁴ ushering in a tide of restrictive state laws.¹⁵ In an effort to combat diminishing access to reproductive services post-Dobbs, Dr. Meg Autry, a professor of obstetrics and gynecology at the University of California, San Francisco, independently commenced a project to bring an abortion ship to the States.¹⁶

Protecting Reproductive Rights of Women Endangered by State Statutes (“PRROWESS”) is Dr. Autry’s non-profit organization with a plan to operate a comprehensive floating reproductive care clinic in the federal waters of the Gulf of Mexico.¹⁷ In a similar fashion as Women on Waves, Dr. Autry intends to provide both medical and procedural abortions for patients living in the states along the Gulf Coast.¹⁸ PRROWESS is currently in the preliminary stages and estimates to be operational by summer of 2024.¹⁹ Given the social, political, and legal scrutiny of abortion in the United States, PRROWESS can expect to face a myriad of challenges once it is underway.²⁰

This Note will argue that establishing a floating abortion clinic in federal waters is a legally viable—yet vulnerable and largely interim—solution to the rollback of abortion rights in the United States. Through an analysis of the legal and political infrastructure paving the way to modern abortion jurisprudence and lessons learned from Women on Waves’ international campaign, this Note will illustrate that creative routes to access, operating within the gray areas of the law, are ultimately a stopgap measure underscoring the need for systemic change.

Part I of this Note defines the contours of the abortion language landscape, with a discussion of recent abortion jurisprudence and restrictive legislation in the States along the Gulf of Mexico. Part II underlines the necessity of abortion from a health and equity standpoint and discusses the novelty of the problem post-Dobbs. Part III argues that a floating abortion clinic can act as a necessary and viable resource for residents living in the “abortion deserts” of restrictive states. Part IV analyzes the vulnerabilities of floating clinics, focusing on the need for operational changes to the democratic process. By approaching abortion liberalization from a voting rights perspective, communities will be able to effectuate sustainable and equitable solutions.

I. Background

A. The Language of Abortion

The centrality of abortion as an American cultural and political issue has given the term a colloquial significance somewhat divested of medical accuracy.²¹ As a clinical term, abortion refers generally to the termination of a pregnancy, either induced (an intentional termination) or spontaneous (an involuntary termination, also referred to as a miscarriage).²² A voluntarily induced abortion takes place either by oral medication (“medical abortion” or “medication abortion”) or by a medical procedure performed by a licensed clinician (“procedural abortion” or “surgical abortion”).²³ Thus, not all abortions are elective (i.e., voluntarily induced), but the common reference to abortion typically intends to communicate a non-spontaneous termination.²⁴

The language of abortion laws draws from medical terminology requiring some explanation.²⁵ Many laws limiting abortion do so at specific gestational periods, the most restrictive being six weeks and the most liberal permitting the procedure up to twenty-eight weeks.²⁶ Doctors count gestational age as beginning the week of a person’s last menstrual cycle; thus, the menstrual cycle is week one; ovulation (when an egg is released from an ovary, allowing it to be fertilized) is week two; implantation (when the fertilized egg attaches to the uterus) is week three; and week four is typically the point at which a missed menstrual cycle would indicate potential pregnancy.²⁷ States with laws that limit the procedure to “viability” refer to the point at which a fetus could conceivably survive outside of the uterus (between twenty-four and twenty-eight weeks).²⁸ Comparatively, a categorical ban refers to a prohibition on abortion at any stage after fertilization.²⁹

Additionally, the language of abortion is often gendered, with specific references to women and motherhood.³⁰ However, discussing abortion necessarily includes any person with the capability to become pregnant, regardless of gender identity or expression.³¹ Given the relatively recent institutional shift to utilizing more inclusive language,³² judicial, statutory, and statistical language quoted in this Note may use gendered terminology not representative of the entire community of persons affected.³³

B. Abortion Jurisprudence in the United States

The right to an abortion was originally rooted in the concept of “personal privacy,” as interpreted by the United States Supreme Court in Roe v. Wade.³⁴ In Roe, the Court held that the Due Process Clause of the Fourteenth Amendment, with its guarantee of liberty, was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”³⁵ Balancing the individual’s right to privacy against the state’s interest in protecting the health and safety of the pregnant person and the growing fetus, the Court developed a trimester framework for regulating abortion based on fetal viability.³⁶ The state was not permitted to restrict a person’s decision to have an abortion within the first trimester; however, as the pregnancy advanced, the state was permitted more regulatory control so long as the regulations were “reasonably related to maternal health” and “appropriate medical judgment.”³⁷

The constitutional status of abortion remained largely unchanged in the two decades after Roe, until the Court reevaluated the trimester framework in Planned Parenthood v. Casey.³⁸ In Casey, the Court reaffirmed that abortion was embedded in the right to privacy implicit in the Fourteenth Amendment, but permitted more state regulation in the early stages of pregnancy so long as the regulations did not impose an “undue burden” or a “substantial obstacle” on the right to choose.³⁹ Permissible regulations included mandatory twenty-four hour waiting periods, informed consent and counseling, record keeping and reporting requirements, and parental consent for minors seeking an abortion with the option for judicial bypass.⁴⁰

On June 24, 2022, the Supreme Court did an about-face and overturned both Roe and Casey in a sweeping opinion that rebuked the two cases’ holdings as “egregiously wrong.”⁴¹ In Dobbs v. Jackson Women’s Health Organization, the Court held that the Constitution did not contain an explicit or implicit right to an abortion.⁴² Criticizing the Roe Court’s conclusion that abortion was a fundamental right rooted in personal privacy, the Dobbs Court looked to the history of abortion in the United States and determined that it was neither deeply rooted in tradition, nor “implicit in the concept of ordered liberty.”⁴³ In the absence of any constitutional provision pointing to the right to an abortion, the Court instructed that the permissibility of abortion should be left to the states to decide, and “return[ed] the issue of abortion to the people’s elected representatives.”⁴⁴

C. Post-Dobbs Abortion Restrictions in the Gulf Coast States

In the months since the Dobbs decision, the landscape of abortion laws has morphed into a mosaic of restrictions, categorical prohibitions, and some increased permissions.⁴⁵For the states along the Gulf Coast, the legislative shift has nearly eliminated legal abortion.⁴⁶

In Texas, the legislature was poised to criminalize abortion before the Dobbs decision, with pre-Roe “zombie laws” lying dormant,⁴⁷ and a 2021 “Trigger Ban” written to take effect when federal constitutional protections for abortions ended.⁴⁸ The trigger law, codified as Chapter 170A of the Texas Health & Safety Code, went into effect on August 25, 2022, and confers a first degree felony offense, punishable by up to life in prison, to physicians who “knowingly perform, induce or attempt an abortion” that results in the death of an unborn child.⁴⁹ The Code defines “[u]nborn child” as a “living member of the homo sapiens species from fertilization until birth[.]”⁵⁰ The law provides an exception only where there is a risk of death or serious bodily impairment to the pregnant person.⁵¹ Additionally, Texas Senate Bill 8 (“SB 8”), also known as the “vigilante law,” authorizes a private civil right of action against any person who provides, aids, or abets an abortion after detection of fetal cardiac activity (typically six weeks from the last menstrual cycle), with a $10,000 minimum in statutory damages for each violation.⁵²

In Louisiana, a similar process unfolded when a 2006 trigger law took effect immediately upon the reversal of federal abortion protections resulting in a series of court orders blocking but ultimately reinstating the ban.⁵³ The law prohibits any person from prescribing, administering, or procuring a medical or procedural abortion beginning at fertilization,⁵⁴ with up to ten years’ incarceration for those performed before fifteen weeks’ gestation and up to fifteen years’ incarceration for any procedure performed after fifteen weeks.⁵⁵

Similarly in Alabama, the Human Life Protection Act went into effect on June 24, 2022, and it enforces a total ban on abortions at any stage of pregnancy.⁵⁶ The law permits an exception only in cases of medical necessity to “prevent a serious health risk” to the pregnant person, and requires a certification by two physicians licensed in Alabama that the procedure is medically necessary.⁵⁷ Violations are punishable as a Class A felony (up to life in prison) for those who perform the abortion, and as a Class C felony (up to ten years in prison) for an attempt to perform an abortion.⁵⁸

Three days after the Dobbs decision, Mississippi’s own trigger law took effect and criminalized all abortions, except to save the life of the pregnant person or in cases of rape only where a formal charge has been filed with law enforcement.⁵⁹ The abortion provider is subject to up to ten years of imprisonment for performing or attempting to perform an abortion by any means.⁶⁰

Considered collectively, the swath of abortion bans along the Gulf Coast created a bloc of contiguous states with no legal access to abortion at any stage of pregnancy.⁶¹ Still, the broad language of the laws and their narrow exceptions have engendered complicated legal and ethical dilemmas for providers in the case of miscarriages, non-viable pregnancies, medical complications, and other emergency and non-elective pregnancy terminations.⁶²

D. The Boundaries of State Abortion Laws

While the states retain the ability to regulate abortion within their borders, land and waters owned by the federal government are governed by federal laws.⁶³ The strategic element of Dr. Autry’s plan is to have PRROWESS operate in the federal waters of the Gulf of Mexico,⁶⁴ outside of any state’s jurisdiction and within the more permissive realm of federal law.⁶⁵ Despite recent attempts on both sides of the political aisle to further regulate abortion at the federal level, Congress has neither codified abortion protections, nor enacted a national gestational limitation.⁶⁶ As it currently stands, the two limitations imposed at the federal level are a prohibition on using federal funds to cover abortion services,⁶⁷ and a criminal penalty for providing an abortion by intact dilation and evacuation—a specific procedure most often used in second- and third-trimester abortions.⁶⁸ Accordingly, there is a “gray area” within federal law such that providers have room to legally provide some abortion services in areas within federal jurisdiction.⁶⁹

II. Why Novel Solutions to State Abortion Restrictions Are Necessary

A. Safe and Legal Abortion Is a Fundamental Aspect of Health Care

In 2020, the World Health Organization (“WHO”) listed comprehensive abortion care—which includes information, counseling, treatment, and posttreatment care—as an essential health care service.⁷⁰ In its report, the WHO recognized abortion as a safe and necessary health intervention, and barriers to accessing “timely, affordable, geographically reachable, respectful and non-discriminatory abortion” are linked to heightened rates of maternal mortality.⁷¹ The United States clinically measures the relative safety of abortion, such that “the risk of death associated with childbirth is approximately fourteen times higher than that with abortion.”⁷²

A recent study determined that in the five months after the Dobbs decision, the time it takes to travel to the nearest clinic offering abortion services increased by nearly 20% overall.⁷³ For those living in the southernmost states, the average travel time to a clinic increased by eight hours—a 63% increase and the equivalent of a full workday.⁷⁴ With the closing of at least a quarter of existing abortion clinics across the country post-Dobbs,⁷⁵ the number of “abortion deserts”—cities from which a person must travel more than one hundred miles to reach the nearest facility offering abortion services—has surged.^{⁷⁶27 Cities in the US Are “Abortion Deserts,” Bixby Car. for Glob. Reprod. Health, https://perma.cc/QW8R-U79T (last visited Mar. 23, 2024); see Rader et al., supra note 73, at 2041.}

With increased travel time comes increased cost: getting to a facility that requires at least a day of travel necessitates “access to a car, money for gasoline, at least one night in a hotel, time off work and possibly childcare.”⁷⁷ There are additional out-of-pocket expenses for those whose insurance providers do not cover out-of-state medical care.⁷⁸ These upfront costs are burdensome or even prohibitive for low-income communities.⁷⁹ The states with the most restrictive abortion laws are also home to a large percentage of the country’s Black population—who are statistically more likely to experience poverty, and who account for a higher percentage of the total number of abortions performed per year.⁸⁰ Other economically and politically disadvantaged communities, such as “Latino and Indigenous people[,] . . . transmen and nonbinary people, immigrants, adolescents and people living with disabilities are all particularly likely to encounter compounding obstacles to abortion care and be harmed as a result.”⁸¹ Absent a statistical reduction in the need or desire for an abortion post-Dobbs,⁸² affordable and geographically reachable reproductive services are critical for the health and wellbeing of vulnerable and resource-scarce communities.⁸³

B. The Novelty of the Problem

While the debate over abortion is decades old, and the subject of much medical, moral, and political commentary, the Dobbs decision has enabled a new and uncertain legal landscape with the “status of abortion . . . chang[ing] hour-by-hour in some states.”⁸⁴ How patients and providers intend to navigate the minefield of new laws deserves critical legal analysis.⁸⁵ The unsettling of constitutional protections for abortion has ramifications beyond the realm of health care as the legal framework morphs from a constitutional issue into a question of federalism.⁸⁶ These untested applications of the law are “thorny questions about the relationship between the federal government and the states.”⁸⁷

Analysis

III. A Floating Abortion Clinic Is a Viable and Necessary Resource for Residents of Abortion Deserts

A. Operating in Federal Waters Is Legally Viable

While the idea of a floating clinic may appear absurd at first glance,⁸⁸ providing medical care on water is a feat grounded in history and experience.⁸⁹ As a practical matter, a person seeking an abortion in the southernmost states faces such an array of hurdles that reaching the coast to board a ship is within greater financial and geographic reach than an inland facility in a permissive state.⁹⁰ Most significantly, the limits of state jurisdiction over conduct within their respective borders provides an avenue for legal abortion in the waters just beyond their reach.⁹¹

1. Abortion in Federal Waters Is Beyond State Criminal Jurisdiction

The Submerged Lands Act of 1953 (“SLA”) defines the boundaries of state and federal jurisdiction over U.S. territorial waters, conferring no more than three marine leagues (nine nautical miles (“miles”)) from the coastline out into the Gulf for states bordering the Gulf of Mexico.⁹² Alabama, Mississippi, and Louisiana retain the three miles from their respective coastlines as state waters, while Texas’ waters extend gulfward out to nine miles.⁹³ The federal government retains control from the boundaries of state waters out to twelve miles (referred to as the nation’s “territorial sea”), and has sovereign rights over the adjacent 188 miles (the “exclusive economic zone”), beyond which are the “high seas” governed by international law.⁹⁴

While the SLA statutorily fixed these lines for purposes of title to natural resources, the result has also carved out significant portions of U.S. territorial water to fall under the exclusive jurisdiction of the federal government.⁹⁵ For PRROWESS, this means that, depending on which Gulf Coast state it ultimately decides to sail from, there is a boundary no more than nine miles from the coast where the restrictive laws of the Gulf States transition into the more permissive realm of federal law.⁹⁶ As previously discussed, the federal government has only enacted two limitations on abortion, neither of which criminalize or prohibit abortions outside of a specific late-term procedure.⁹⁷ Without a federal statute prohibiting abortions, there is no charge to be brought against abortion providers within federal waters—the crux of PRROWESS’ plan.⁹⁸

Additionally, operating on water poses fewer legal risks to providers than navigating land-based alternatives.⁹⁹ For instance, legal scholars have recently assessed the possibility of the federal government leasing lands within its jurisdiction to abortion providers in highly restrictive states.¹⁰⁰ The idea, first posed by Democratic lawmakers just days after the Dobbs opinion was published, is to utilize wildlife preserves, national parks, or even decommissioned military bases owned by the federal government to circumvent state restrictions.¹⁰¹ The legal consideration is the same: where the federal government retains jurisdiction, federal law governs.¹⁰²

The risk, however, stems from the potential for providers to still be prosecuted under federal law, even in the absence of a federal abortion restriction. ¹⁰³ The Assimilative Crimes Act (“ACA”) creates a parallel criminal punishment for acts performed on federal lands where there is no specific federal law prohibiting the activity, but where it would be considered “punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which [the federal land] is situated.”¹⁰⁴ Thus, a federal prosecutor could “borrow[]” the law of the encompassing state to charge providers who perform abortions in federal enclaves.¹⁰⁵ While this risk is largely dependent on prosecutorial discretion, the benevolence and political motivations of a particular administration are subject to change with each election cycle.¹⁰⁶

Operating in the Gulf of Mexico, by comparison, evades this particular risk: while waters within the special maritime jurisdiction of the federal government and located within state boundaries, such as lakes, rivers, or wetlands, could be subject to the ACA, the territorial sea beyond state waters is not encompassed by any state.¹⁰⁷ The legislative intent behind the ACA is to maintain consistency in the application of local laws and policies, and to fill in gaps where the federal government has not expressly addressed a particular issue.¹⁰⁸ When there is no state with which to effectuate consistency, a federal prosecutor has no state law to conform with.¹⁰⁹ The ACA primarily deals with federal enclaves—lands ceded to the federal government by the states and where concurrent jurisdiction is imposed based on the date and manner in which the land was acquired.¹¹⁰ By comparison, states’ rights to certain coastal portions of the Gulf of Mexico look back to ownership at the time the states entered the Union, all waters beyond which have always been within the federal government’s exclusive jurisdiction.¹¹¹

Thus, not only does PRROWESS have the foundations for providing legal abortions beyond the reach of state penal laws, operating on water ultimately poses fewer legal risks to providers than implementing the same strategy on land.¹¹²

2. The Federal Waters Strategy Has Historical Precedent

PRROWESS’ clinic would not be the first use of federal waters to circumvent state laws: gambling ships off the coast of California avoided bans on casino gambling in a similar fashion during the first half of the twentieth century.¹¹³ Until Congress stepped in, state officials were stymied from bringing criminal charges against the ships for violations of state gambling laws while operating outside state waters.¹¹⁴

Until 1948, federal law was silent on the issue of gambling, which allowed the states to regulate gaming, betting, and wagering within their borders.¹¹⁵ Nearly every state outlawed the practice, including California.¹¹⁶However, avid coastal gamblers and infamous prohibition liquor-smugglers realized that the state’s jurisdiction over California’s coastal waters extended only three miles out from shore.¹¹⁷Boats and barges outfitted as fully operational floating casinos began to test the waters in Santa Monica Bay (“the Bay”).¹¹⁸To the chagrin of state officials, the gambling ships largely avoided prosecution by mooring just beyond the three-mile limit and ferrying gamblers from shore by private water taxi.¹¹⁹

The most famous of the gambling ships—the S.S. Rex—operated twenty-four hours a day, openly advertised its services, and turned a considerable profit ¹²⁰while withstanding efforts by California’s Attorney General—and later Chief Justice of the United States Supreme Court—Earl Warren to bring criminal charges against them under California’s anti-gambling and public nuisance laws.¹²¹ The line in the water separating state from federal jurisdiction insulated the Rex’s operations from state penal laws until a case made its way to the Supreme Court of California, challenging whether the Bay was truly beyond state waters.¹²² In People v. Stralla, the Court concluded that the Bay was within California’s territorial jurisdiction because the State had claimed a right over all the islands, inlets, and bays adjacent to its coast at the time its constitution was ratified.¹²³Because the Bay fit within the geographic, historical, and legal definition of a bay, it was subject to the State’s jurisdiction.¹²⁴

As a result, the gambling ships moved their operations further out to sea until Congress subsequently enacted a national ban on such ships in 1948.¹²⁵ While prohibition-era gambling efforts may seem distinct from the abortion bans of 2023, their strategic success offers some permissive precedent to PRROWESS’s plan.¹²⁶ In the same way that Congress left the states to regulate gambling, abortion has been delegated to the states, and Congress has yet to enact legislation that would be nationally binding.¹²⁷ Further still, state officials were restrained from bringing criminal charges against the gambling ships’ operators while their activities took place in federal waters.¹²⁸ What ultimately brought the gambling ships to a halt in Stralla was not an extension of state law to the seas, but a finding that the particular swath of water had in fact been under California’s jurisdiction all along.¹²⁹ Since Stralla was decided, the SLA statutorily fixed the lines in the water, thus leaving less room for judicial interpretation going forward.¹³⁰

Considered together, the historical application of the federal waters strategy, along with the well-recognized distinction between state and federal jurisdiction within the Gulf of Mexico, signal that PRROWESS’s operations will be insulated from coastal states bringing criminal charges so long as they perform the abortions beyond state waters.¹³¹

B. State Resistance and Procedural Considerations

While PRROWESS has the legal foundation to perform abortions in the Gulf of Mexico and thus increase access to such services for residents without other options, the project will likely face procedural challenges that may limit its overall success.¹³² The political climates in the states with the heaviest restrictions and most substantial criminal punishments suggest that their governments will be unlikely to take a passive approach to PRROWESS once the ship sets sail.¹³³

Outspoken anti-abortion lawmakers have proposed legislation to prevent their citizens from traveling out of state to receive an abortion; efforts to constrict travel by water could naturally follow.¹³⁴ The constitutionality of interstate travel bans has been analyzed at length.¹³⁵ But, for PRROWESS’s purposes, the states’ desire to prevent residents from seeking out-of-state care emphasizes the lengths lawmakers are willing to go to prevent legal abortion.¹³⁶

Consider, as a comparison, California’s consistent efforts to prevent gambling ships from bypassing state laws just outside its door.¹³⁷ While the state could not impose anti-gambling laws on ships moored outside of their jurisdiction, the counties began to target the water taxis shuttling passengers from shore to ship.¹³⁸ In People v. Chase, Los Angeles County prevailed in a suit against water taxi operators, for violating a law prohibiting a person from “prevail[ing] upon [another]” to visit a gambling establishment.¹³⁹ Because the water taxis docked at shore to receive passengers, the act of “prevailing”—i.e., inviting the passengers on board—occurred within the county’s jurisdiction.¹⁴⁰

Similarly, while PRROWESS’s ship can stay moored outside of state waters, patients and providers will need a way to access the ship.¹⁴¹ Like the gambling ship operators discovered in Chase, counties and municipalities can regulate and restrict a vessel’s ability to dock at shore if it is not in compliance with local laws.¹⁴² However, one major port in Texas could provide a haven for PROWESS’ patients and crew: the Nueces County District Attorney has pledged to decline prosecuting patients or providers under state abortion bans.¹⁴³Corpus Christi, within Nueces County, is a significant seaport in the Gulf of Mexico, which could provide the starting point for PRROWESS’ journey.¹⁴⁴ Thus, prosecutorial discretion may ultimately determine how PRROWESS and its sailing crew are treated at port—a limited prospect but a permissive avenue nonetheless.¹⁴⁵

C. In-Clinic Care Remains a Vital Resource Despite Expansion of Remote Services

Evolutions in medical technology have made it safer and easier for pregnant persons to self-manage abortion by medication in the privacy of their own home, resulting in more than half of abortions occurring per year by pill.¹⁴⁶ Despite recently increased permissions at the federal level, states with abortion bans foreclose this option, and self-managed care is only effective up to a certain number of weeks.¹⁴⁷ Not only would PRROWESS have the legal capacity to provide abortions, its in-clinic services would be a necessary, rather than duplicative, resource as the only source of abortion care for residents of the Gulf States.¹⁴⁸

In 2021, the Food and Drug Administration (“FDA”) permanently lifted the requirement that abortion pills be prescribed in person, thus allowing remote telemedicine providers to counsel and prescribe abortion medication by phone or video conference and ship it directly to patients by mail.¹⁴⁹ However, each of the Gulf Coast states have specifically included medical abortion in their restrictive legislation, with criminal punishments for the sale and distribution of the pills by mail.¹⁵⁰ Groups such as Aid Access, a Canadian non-profit, have been able to administer abortion pills in restrictive states by partnering with international telehealth providers who prescribe and ship from international pharmacies; however, the risk of government interception, prosecution of the pregnant person, and time delays makes this route less reliable.¹⁵¹ Further, the FDA’s authority to approve abortion medication has recently been challenged in the federal courts, with the possibility that the agency will be required to suspend or withdraw its approval for both the pill and its access by mail.¹⁵² Such a result would render in-clinic procedural abortion the only available option, even for patients in permissive states.¹⁵³

As it stands, medical abortion is only approved and effective up to ten weeks, after which procedural abortion is the necessary medical intervention to terminate a pregnancy.¹⁵⁴ PRROWESS intends to offer procedural abortion up to sixteen weeks, which provides a wider window of opportunity for abortion seekers to secure care.¹⁵⁵ This timeframe is critical because calculating pregnancy in gestational weeks is a tool of practical necessity and medical estimation, rather than a reasonable understanding of when a person could suspect or have time to confirm a pregnancy.¹⁵⁶ Irregularity in menstrual cycle, late detection, and the procedural barriers to obtaining a timely medical appointment further constrict this timeframe.¹⁵⁷

Even further, procedural abortion, a swift and minimally invasive process, usually takes only five to ten minutes to complete.¹⁵⁸ Such a procedure could be completed with as much ease on a boat as on land, because although it is often referred to as “surgical” abortion, it is not in fact a surgical procedure.¹⁵⁹ The process requires no cutting or suturing, rather it uses gentle suctioning and aspiration with minimal medical equipment.¹⁶⁰ Additionally, emergency complications related to abortion are increasingly rare, and the procedure is “safer than most other outpatient procedures like wisdom tooth extraction.”¹⁶¹ PRROWESS also intends to offer its services at little to no cost, further bridging the economic divide that exists for residents of abortion deserts.¹⁶²

As such, PRROWESS has the foundation to provide a legal, reliable, and equitable point of access for abortion care.¹⁶³ However, considering the systemic issues facing abortion liberalization, a floating clinic alone is not enough to substantially mitigate the overwhelming national consequences of anti-abortion laws.¹⁶⁴

IV. Floating Clinics Are an Interim Solution in the Fight for Abortion Liberalization

A. Lessons from Women on Waves

As PRROWESS’ international predecessor, Women on Waves offers guidance and cautious optimism for the future of Dr. Autry’s project.¹⁶⁵ For its maiden voyage to Ireland, Women on Waves received hundreds of calls from patients hoping to receive care on the ship, signaling the willingness of abortion seekers to engage with solutions outside of the traditional health care setting, and to make the unprecedented journey out to sea.¹⁶⁶ However, the resistance its campaign met by anti-abortion activists at the destinations, and governments at home and abroad, offers a window into the response PRROWESS can anticipate receiving in the United States and the vulnerability of its mission.¹⁶⁷

The crux of Women on Waves’ success has been the media attention its campaigns have received and the resulting effect on public opinion, rather than the number of abortions the NGO performed.¹⁶⁸ For instance, Women on Waves’ 2004 campaign in Portugal met such an extraordinary reaction from the Portuguese government that it influenced an upcoming national election, with abortion as the deciding issue for voters.¹⁶⁹ When the ship sailed towards Portuguese national waters, the Minister of Defense ordered war ships “equipped with three canons and two torpedo launchers” to prevent the ship from crossing the international boundary line.¹⁷⁰ Despite the government blocking the ship from treating any patients, the event received twenty hours of televised local media coverage, seven hundred news articles in local papers, widespread international attention, and eventually a ruling in Women on Waves’ favor from the European Court of Human Rights.¹⁷¹ After efforts at docking the ship proved futile, Dr. Gomperts went on Portuguese national television and explained the safety, efficacy, and method of obtaining an abortion by medication.¹⁷² With the country’s election drawing near, this heightened media coverage placed abortion front and center at the polls and led to the election of a Socialist Party Prime Minister, followed by a referendum legalizing elective abortion up to ten weeks.¹⁷³ While no patients ever boarded the ship, its overarching goals prevailed: educating the population and influencing local policy.¹⁷⁴

Similar governmental interference impeded Women on Waves’ ability to administer abortion pills during trips to Morocco, Ireland, and Guatemala; in each case, the ship made the long journey only to be unable to enter the harbor (as was the case in Morocco and Guatemala) or made it to shore but was unable to supply the medication (as in Ireland).¹⁷⁵Consequently, over the course of Women on Waves’ years of campaigns, only a small number of patients were ever treated on board the ship itself.¹⁷⁶ In fact, Women on Waves has since halted its ship campaigns and transitioned its efforts into supplying abortion pills by mail under the name “Women on Web.”¹⁷⁷

In the United States, media attention is not enough to elicit substantial changes in abortion legislation—the need for legal abortion is evergreen.¹⁷⁸ After months of consistent reporting on both the leak of the draft Dobbs decision in early spring,¹⁷⁹ and the backlash to the published opinion in late June, abortion was front-page news in the United States at a critical time for voters and politicians alike, as evidenced by the results of the 2022 midterm elections.¹⁸⁰ While isolated policies favoring abortion protections prevailed in many states, party affiliation proved stronger than individual issues in determining congressional and gubernatorial races in states where abortion was already restricted.¹⁸¹ Outspoken anti-abortion governors in Texas, Mississippi, Alabama, and Louisiana prevailed in state elections, and though democratic candidates fared far better than anticipated in the race for congressional seats, the overall makeup of both the House of Representatives and Senate remained largely unchanged.¹⁸²

That is not to say the Dobbs decision did not impact voters, but the significant changes Women on Waves witnessed in Portugal are less likely to translate to PRROWESS’s model in the United States.¹⁸³ Other aspects of the American democratic process make Women on Waves’ methods of “deliberately confrontational”¹⁸⁴ activism less effective in the grand legislative scheme: that is, the lack of political power in the communities directly impacted by restrictive abortion laws.¹⁸⁵ In the last several decades, states have placed a number of restrictions on voters that “make [election] participation disproportionately difficult for Americans of color—including strict voter ID laws, lines faced on Election Day, and other facets of [the] election system.”¹⁸⁶ This was largely due to the Supreme Court’s decision in Shelby County v. Holder, which found the preclearance provision of the Voting Rights Act of 1965 (“VRA”) unconstitutional.¹⁸⁷ Prior to Shelby, states with a history of discriminatory voting practices were required to obtain preclearance from the federal government before they could introduce new voting measures.¹⁸⁸ Now, states “no longer have federal oversight before changing their voting practices.”¹⁸⁹ This has allowed many states to implement unchecked measures to consolidate polling places, purge voter registration rolls, and map congressional districts in a way that favors a particular political party.¹⁹⁰

In 2022, the Cost of Voting Index (“CVI”) ranked the states on a scale of easiest to hardest places to vote, according to “the overall investment a resident must make, in time and resources.”¹⁹¹ The results exhibited an overlap of states in which abortion is now illegal and where it is the most difficult to vote.¹⁹² The states that PRROWESS hopes to target—Texas, Louisiana, Alabama, and Mississippi—are ranked within the bottom ten states included in the CVI.¹⁹³

Consequently, voter disenfranchisement and abortion are inextricably linked in the United States, and PRROWESS is not likely to see the same kind of success Women on Waves instituted in terms of policy change.¹⁹⁴ However, despite institutional limitations on PRROWESS’ power to bring about systemic change to abortion access, it has the ability to provide the services it set out to offer and to withstand legal scrutiny once it sets sail.¹⁹⁵

B. Beyond PRROWESS: Long-Term Solutions Require Attention to Voting Rights Issues

In Dr. Gomperts’ own words, the abortion ship was always “a symbolic gesture,” meant to call attention to the hypocrisy of restrictive legislation rather than replace the need for comprehensive abortion care at its destinations.¹⁹⁶ As Women on Waves demonstrates, creative solutions are capable of helping pregnant persons obtain abortions in small numbers, but the larger problem remains.¹⁹⁷ Writing for the majority in Dobbs, Justice Alito concluded “the authority to regulate abortion must be returned to the people and their elected representatives.”¹⁹⁸ The long term solution thus resides in the ability of the people to be able to freely and democratically place into power those who are truly representative of their interests.¹⁹⁹

Though the Dobbs Court opined that “[w]omen are not without electoral or political power,”²⁰⁰ this power has been systematically diluted by partisan redistricting, stringent voter identification requirements, shortened polling hours, and the myriad other restrictive measures states have been permitted to place on voting in recent years.²⁰¹ These measures largely burden Black voters and other people of color, who are also disproportionately experiencing the effects of state abortion restrictions.²⁰² Despite the Supreme Court’s recent affirmance of what voting protections remain after Shelby,²⁰³ southern states continue to find new ways “to use the court system to weaken democracy” by other indirect means.²⁰⁴

Restoring community voting power is of paramount importance to abortion liberalization, and is ultimately where Congress must concentrate its efforts.²⁰⁵ While considerable attention has been given to Congress’ authority to enact abortion legislation,²⁰⁶ the political divide stalled prior attempts to legislate abortion federally and will likely continue to do so for some time.²⁰⁷ Further, such legislation would still be vulnerable under judicial review if the Supreme Court were to take the issue up again in the near future.²⁰⁸ While countering voter suppression and instituting more equitable voting laws is no small feat, fortifying democracy is critical for abortion rights and more representative decision-making on all fronts.²⁰⁹ In the end, abortion liberalization is encompassed in a much larger framework of systemic inequalities that must be reconciled for long-term solutions to materialize.²¹⁰

Conclusion

Abortion has been at the heart of moral, political, and legal discourse for decades, but the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization brought this issue back to the forefront, and with it a new and uncertain landscape for patients, providers, and legislators alike. Despite this profound uncertainty, the fact remains that abortion has always been, and will continue to be, an essential health care service embedded in the history and tradition of the nation.²¹¹ Increased and inconsistent restrictions only lead to less safe means of ending pregnancy and compound existing health and economic inequalities. To meet this challenge, PRROWESS has the legal foundation to be a point of access for residents of abortion deserts in the southernmost states. Whether PRROWESS treats only a handful of patients, like Women on Waves, or encourages other providers to pioneer creative routes to access, it is possible to reduce these inequities one ship at a time. The people should not have to take to the seas to receive necessary and equitable health care, but in the meantime, PRROWESS provides an avenue to do just that.

1
Vessel , at 0:33–1:25 (Sovereignty Productions 2014), https://perma.cc/UE7N-LUY7.
2
See Emily Bazelon, The Dawn of the Post-Clinic Abortion, N.Y. Times (Aug. 28, 2014), https://perma.cc/SW59-PK3N.
3
See Julia Ellis-Kahana, Women on Waves Arrives in Morocco, Ms. Mag. (Oct. 4, 2012), https://perma.cc/37PP-MFHZ; Souhail Karam, Morocco Denies Entry to Dutch “Abortion Ship,” Reuters (Oct. 4, 2012, 10:40 AM), https://perma.cc/AW3H-EXG9.
4
Dutch Abortion Ship ‘Blocked’ from Morocco Port of Smir, BBC (Oct. 4, 2012), https://perma.cc/RBZ3-SUPQ.
5
Who Are We?, Women on Waves , https://perma.cc/2F35-PEAM (last visited Mar. 23, 2024).
6
Legal Position of Women on Waves tIII 2018, Women on Waves , https://perma.cc/MMP9-SLC6 (last visited Mar. 23, 2024) [hereinafter Legal Position of WOW].
7
See Rebecca Gomperts, Women on Waves: Where next for the Abortion Boat?, 10 Reprod. Health Matters 180, 180 (2002).
8
Legal Position of WOW, supra note 6.
9
See, e.g., Guatemala Expels Abortion Boat Crew, BBC (Feb. 25, 2017), https://perma.cc/W5LA-BU7J (reporting that Women on Waves’ ship was detained in Guatemala and then expelled by the Guatemalan Department of Immigration); Diana Whitten & Anita Schillhorn van Veen, Women on Waves Abortion Provider Sparks Controversy, HuffPost , https://perma.cc/XAR3-CVWC (last updated Dec. 6, 2017) (recounting that the Portuguese Minister of Defense employed military warships to prevent Women on Waves from docking at port).
10
See Bazelon, supra note 2 (reporting that Portugal, a country where Women on Waves picked up significant media attention, has since legalized abortion).
11
Women and Foreign Policy Program Staff, Abortion Law: Global Comparisons, Council on Foreign Rels., https://perma.cc/W3KP-H2JE (last updated Mar. 7, 2024, 2:30 PM EST).
12
Gilda Sedgh et al., Undoing of Roe v. Wade Leaves US as Global Outlier on Abortion, Guttmacher Inst. (Aug. 16, 2022), https://perma.cc/S75P-MVUK.
13
142 S. Ct. 2228, 2242 (2022).
14
Id.at 2243.
15
See Tracking Abortion Bans Across the Country, N.Y. Times , https://perma.cc/UVC5-3G76 (last updated Jan. 8, 2024, 9:30 PM ET) [hereinafter Tracking Abortion Bans].
16
Rachel Treisman, A Floating Abortion Clinic Is in the Planning Stage, and People Are Already on Board, NPR, https://perma.cc/5KVH-9F9N (last updated July 20, 2022, 11:21 AM ET).
17
Id.
18
Christina Cauterucci, If You Can’t Get an Abortion on Land, Can You Get One on a Boat?, Slate (July 14, 2022, 5:45 AM), https://perma.cc/BK2N-CWQM.
19
Poppy Noor, Mobile Abortions Take off ‘on Wheels, at Sea’ to Fill Gaps Left by Shuttered Clinics, The Guardian (Oct. 19, 2022, 6:00 AM EDT), https://perma.cc/NP2E-57W7.
20
See Kelsey Butler, Abortion at Sea? Advocates in US Get Creative to Protect Access, Bloomberg (July 15, 2022, 7:30 AM EDT), https://perma.cc/VL9S-2VAK.
21
See Cara C. Heuser et al., Society for Maternal-Fetal Medicine Special Statement: A Critical Examination of Abortion Terminology as It Relates to Access and Quality of Care, 228 Am. J. Obstetrics & Gynecology B2 (2023).
22
A. Agarwal et al., Language Guide: Abortion, EngednerHealth 1 (2020), https://perma.cc/975N-LDSW.
23
FAQs: Abortion Care, Am. Coll. of Obstetrics & Gynecology, https://perma.cc/UR7G-D489 (last updated Aug. 2022).
24
See ACOG Guide to Language and Abortion, Am. Coll. of Obstetrics & Gynecology , https://perma.cc/YUR7-Y4XX (last updated Mar. 2022).
25
See, e.g., Bethany Irvine, Why “Heartbeat Bill” Is a Misleading Name for Texas’ Near-Total Abortion Ban, Tex. Trip. (Sept. 2, 2021, 4:00 PM CT), https://perma.cc/9LM5-RL2D (describing the disconnect between references to “fetal heartbeat” in Texas’ Senate Bill 8 as medically communicating electrical or cardiac activity, or the pulsing of blood vessels that eventually develop into the heart, while the bill’s author describes it as “the universal sign of life”); see also, e.g., Katie Woodruff & Sarah C. M. Roberts, “My Good Friends on the Other Side of the Aisle Aren’t Bothered by Those Facts”: U.S. State Legislators’ Use of Evidence in Making Policy on Abortion, 101 Contraception 249, 249 (2020) (finding that while abortion policy often makes use of medical terminology, “evidence [does] not drive state legislators’ policymaking on abortion”).
26
See Tracking Abortion Bans, supra note 15.
27
Mark A. Curon, Fetal Development, Perinatology.com , https://perma.cc/PK35-K2RY (last updated Jan. 2, 2023). But see Michelle Rodrigues, The Absurd Pregnancy Math Behind the ‘Six-Week’ Abortion Ban, Sci. Am. (Sept. 4, 2021), https://perma.cc/8ZP3-GP9R (explaining that the gestational calculation is a medical tool of estimation and convenience, given the inability to pinpoint conception with exactness).
28
State Bans on Abortion Throughout Pregnancy, Guttmacher Inst., https://perma.cc/5GKN-HBZA (last updated Aug. 29, 2023).
29
See id.
30
Kyle Bukowski, The Gendered Language of Abortion, Planned Parenthood of the Pac. Sw. (Jan. 28, 2021, 10:46 PM), https://perma.cc/7RWP-PETN.
31
See Heidi Moseson et al., The Imperative for Transgender and Gender Nonbinary Inclusion: Beyond Women’s Health, 135 Obstetrics & Gynecology 1059, 1059–60 (2020).
32
See, e.g., Inclusive Language: Statement of Policy, Am. Coll. of Obstetrics & Gynecology , https://perma.cc/V8D2-ZPNH (last updated Feb. 2022) (describing organization’s policy for integrating gender-affirming language into its resources, as one of the largest professional organizations for reproductive care specialists).
33
See How to Talk About Abortion: A Style Guide for Allies, 1 Planned Parenthood of Mich. 3 (2021), https://perma.cc/X6MP-ND6Q.
34
410 U.S. 113, 152–53 (1973).
35
U.S. Const. amend. XIV, § 1 (providing that “[n]o State shall . . . deprive any person of life, liberty or property, without due process of law”); Roe, 410 U.S. at 153.
36
Roe, 410 U.S. at 153.
37
Id. at 164–65.
38
See Planned Parenthood v. Casey, 505 U.S. 833, 872 (1992).
39
Id.at 874, 877.
40
Id. at 884–85, 899–900.
41
Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2265 (2022).
42
Id. at 2242.
43
Id.
44
Id. at 2243.
45
See Tracking Abortion Bans, supra note 15.
46
Tracking Abortion Bans, supra note 15.
47
See Howard M. Wasserman, Zombie Laws, 25 Lewis & Clark L. Rev. 1047, 1050–51 (2022) (defining “zombie laws” as laws that were never repealed even after becoming unconstitutional); History of Abortion Laws, Tex. State L. Library. , https://perma.cc/CPY5-L8XF (last updated Feb. 27, 2024, 4:25 PM) (describing the “1925 Laws” which criminalized abortion at the time Texas’s penal code was adopted, later found unconstitutional after Roe but remained in the statutes despite not being enforceable).
48
See Abortion in Texas, ACLU Tex. ¶¶ 3–4, https://perma.cc/4KXW-6BCM (last updated Aug. 29, 2022).
49
Tex. Health & Safety Code Ann. §§ 170A.002, 004 (West 2022); see also Eleanor Klibanoff, New Texas Law Increasing Penalties for Abortion Providers Goes into Effect Aug. 25, Tex. Trib. ¶¶ 1, 4, https://perma.cc/ZH8M-D597 (last updated July 27, 2022).
50
Tex. Health & Safety Code § 170A.001.
51
Id. § 170A.002.
52
Id. § 171.208(a)(2), (b)(2).
53
La. Stat. Ann § 40:1061(A)(1) (2022); see also Sam Karlin, Louisiana’s Abortion Ban, Explained: Here’s a Timeline of the Rollercoaster of Abortion Access, The Advoc., https://perma.cc/E46C-SWM3 (last updated July 29, 2022).
54
La. Stat. Ann. Vessel § 40:1061(C).
55
Id. §§ 14:87.7(C), 14:87.8(B).
56
See Ala. Code § 26-23H-4(a) (2022).
57
Id. § 26-23H-4(b).
58
Id. §§ 26-23H-6, 13A-5-6(a)(1), (3).
59
Miss. Code Ann. § 41-41-45(2)–(3) (2022).
60
Id. § 41-41-45(1), (4).
61
See Tracking Abortion Bans, supra note 15.
62
Isaac Chotiner, What Ethical Health Care Looks Like When Abortion Is Criminalized, New Yorker (July 8, 2022), https://perma.cc/4ECV-UKGM; Devon Minnick et al., Disorder in the Post-Roe World? . . . “It Is So Ordered” by the Dobbs Court, Am. health L. Ass’n (Sept. 1, 2022), https://perma.cc/NHG5-3TRA.
63
See U.S. Const. art. IV, § 3, cl. 2 (stating that lands and properties belonging to the United States are subject to laws promulgated by Congress, which preempt state and local laws).
64
See FAQ, PRROWESS, https://perma.cc/93RU-HT33 (last visited Mar. 23, 2024).
65
See Cong. Rsch. Serv. et al., LSB10787: Congressional Authority to Regulate Abortion 3 (2022), https://perma.cc/3F9W-WCPD.
66
Compare Protecting Pain-Capable Unborn Children from Late-Term Abortions Act, S. 4840, 117th Cong. (2d Sess. 2022) (describing the bill introduced by Republican Senator Lindsey Graham to prohibit abortion after fifteen weeks), with Ensuring Women’s Right to Reproductive Freedom Act, H.R. 8297, 117th Cong. (2022) (outlining the bill introduced by Democrat Senator Lizzie Fletcher to prevent state law from interfering with access to abortion services).
67
Consolidated Appropriations Act, 2022, Pub. L. No. 117-103, §§ 202–04, 136 Stat. 49, 131 (2022); accord ACLU, Access Denied: Origins of the Hyde Amendment and Other Restrictions on Public Funding for Abortion, ACLU (Dec. 1, 1994), https://perma.cc/JZQ8-CT9A (explaining the origins of the Hyde Amendment, which first prohibited the use of Medicaid to fund abortion in 1976 and has been reenacted each fiscal year since).
68
18 U.S.C. § 1531 (criminalizing the performance of “partial-birth” abortions); Gonzales v. Carhart, 550 U.S. 124, 147, 173 (2007) (upholding the Partial-Birth Abortion Ban as constitutional and interpreting the law to only criminalize the method—intact dilation and evacuation—not the trimester in which it is performed).
69
Cf. Emily S. Miller, The Strongest Defense You’ve Never Heard of: The Constitution’s Federal Enclave Doctrine and Its Effects on Litigants, States, and Congress, 29 Hofstra Lab. & Emp. L.J. 73, 73–74 (2011) (discussing the enforceability of federal law over state law for employment defense matters in federal enclaves) [hereinafter Miller, Federal Enclave Doctrine].
70
Abortion, WHO (Nov. 25, 2021), https://perma.cc/QF3Q-PC3N [hereinafter WHO, Abortion].
71
Id.
72
Elizabeth G. Raymond & David A. Grimes, The Comparative Safety of Legal Induced Abortion and Childbirth in the United States, 119 Obstetrics & Gynecology 215, 216 (2012).
73
See Benjamin Rader et al., Estimated Travel Time and Spatial Access to Abortion Facilities in the US Before and After the Dobbs v. Jackson Women’s Health Decision, 328 JAMA 2041, 2046 (2022).
74
Id.
75
Alan Chang et al., Abortion Deserts: America’s New Geography of Access to Care – Mapped, The Guardian (June 24, 2022, 2:01 PM EDT), https://perma.cc/Q29U-4GWE.
76
27 Cities in the US Are “Abortion Deserts,” Bixby Car. for Glob. Reprod. Health, https://perma.cc/QW8R-U79T (last visited Mar. 23, 2024); see Rader et al., supra note 73, at 2041.
77
Taylor Johnson & Kelsey Butler, Abortion Desert in US South Is Hurting Black Women the Most, Bloomberg (Aug. 23, 2022, 7:00 AM EDT), https://perma.cc/5NH8-TXK7.
78
Roe v. Wade and the Inevitable Explosion of Health Tourism, Bold Bus. (May 20, 2022), https://perma.cc/3D9J-LJ2G.
79
See Liza Fuentes, Inequity in U.S. Abortion Rights and Access: The End of Roe Is Deepening Existing Divides, Guttmacher Inst. (Jan. 17, 2023), https://perma.cc/RWV8-9NR2; see also Katrina Kimport, Abortion After Dobbs: Defendants, Denials, and Delays, 8 Sci. AdvancesVessel, Sept. 7, 2022, at 1.
80
Johnson & Butler, supra note 77.
81
Fuentes, supra note 79.
82
See Rachel K. Jones et al., Long-Term Decline in US Abortions Reverses, Showing Rising Need for Abortion as Supreme Court Is Poised to Overturn Roe v. Wade, Guttmacher Inst., https://perma.cc/8MVH-NERU (last updated Dec. 1, 2022) (reporting an 8% increase in abortions from 2017 to 2020).
83
See Fuentes, supra note 79.
84
Erin Sutton et al., The 2023 Legislative Sessions: The next Abortion Battleground, Health Affs. (Jan. 17, 2023), https://perma.cc/5NQ5-YKJU; see, e.g., Karlin, supra note 53 (explaining the uncertainty of the status of Louisiana’s abortion ban in the weeks after the Dobbs opinion was published).
85
See Sutton et al., supra note 84.
86
See David S. Cohen et al., The New Abortion Battleground, 123 Colum. L. Rev. 1, 4 (2023) (predicting that the Dobbs decision “will create a complicated world of novel interjurisdictional legal conflicts”); accord Jeff Greenfield, Why Abortion May Not Stay a ‘State’s Rights’ Issue for Very Long, Politico (May 4, 2022, 3:03 PM EDT), https://perma.cc/75E2-C9XH (discussing the political response to abortion and how fluctuations in party control at the federal level may determine the future of abortion laws).
87
Cohen et al., supra note 86, at 87.
88
See, e.g., The Onion (@TheOnion), Twitter (July 13, 2022, 10:45 AM), https://perma.cc/94YZ-5HVX (satirizing the idea of a floating clinic being more accessible to low-income abortion seekers than an inland facility).
89
See, e.g., Jamie Ducharme, TBT: When Tufts’ Floating Hospital Sailed the Boston Harbor, Bos. Mag. (Jan. 19, 2017, 8:00 AM), https://perma.cc/H3LQ-LJNS (reporting the history of Boston’s Floating Hospital for Children that provided pediatric care on water); Choe Sang-Hun, On These Small Islands, Medical Care Arrives One Ship at a Time, N.Y. Times (Jan. 19, 2023), https://perma.cc/48CC-VPBM (describing the traveling hospital ships that provide free medical services on water to residents of remote islands in South Korea); André B. Sobocinski, Navy Hospital Ships Have History of Answering Nation’s Call, U.S. Depot Def. (Mar. 27, 2020), https://perma.cc/RCC6-A7R8 (detailing the history of naval hospital ships treating patients during humanitarian crises and the COVID-19 pandemic).
90
See FAQ, supra note 64 (assessing the willingness of patients to seek care at a floating clinic as well as travel arrangements available for verified patients). See generally Rader et al., supra note 73 (reporting overwhelming increases in travel time to abortion clinics from southern states, including more than six hours to the nearest clinic for residents of Texas and Louisiana).
91
See 43 U.S.C. § 1312.
92
Id. § 1301(b); see Alabama v. Texas, 347 U.S. 272, 273–74 (1954) (upholding the SLA as constitutional).
93
See Gulf of Mexico Data Atlas, Nat’l Ctr. for Env’t Rsch., https://perma.cc/W9AT-BHEU (last visited Mar. 23, 2024).
94
U.S. Comm’n on Ocean Pol’y, An Ocean Blueprint for the 21st Century: Final Report 72–73 (2004), https://perma.cc/3NEP-JDNA.
95
Id. at 70–72.
96
See 43 U.S.C. § 1301(b).
97
See supra pp. 14–15 (outlining the two limitations Congress has enacted regarding abortion: limits on federal appropriations and a prohibition on intact dilation and evacuation).
98
Treisman, supra note 16; cf. Protecting Pain-Capable Unborn Children from Late-Term Abortions Act, S. 4840, 117th Cong. (2d Sess. 2022) (describing the bill introduced to enact a national fifteen-week gestational limitation on abortion, which has not received bicameral support).
99
Cf. Cohen et al., supra note 86, at 80–83 (assessing the risks inherent in providing abortion in federal enclaves situated within state boundaries).
100
Cohen et al., supra note 86, at 80–83.
101
Cohen et al., supra note 86, at 80; Molly Taft, Give Us Abortions in National Parks, Gizmodo (June 30, 2022), https://perma.cc/A5UB-TS6Y (quoting Senator Elizabeth Warren’s call to establish “Planned Parenthood outposts” on federal lands—namely, national parks).
102
See U.S. Const. art. IV, § 3, cl. 2; U.S. Const. art. I, § 8, cl. 17.
103
Cohen et al., supra note 86, at 82.
104
18 U.S.C. § 13; accord Cohen et al., supra note 86, at 81.
105
United States v. Smith, 925 F.3d 410, 415 (9th Cir. 2019); accord Cohen et al., supra note 86, at 82.
106
See Madison Pauly, Why Progressive Prosecutors Won’t Save Us in a Post-Roe World, Mother Jones (July 12, 2022), https://perma.cc/T5VA-ZDGL.
107
See Gulf of Mexico Data Atlas, supra note 93.
108
Lewis v. United States, 523 U.S. 155, 160 (1998); see United States v. Sharpnack, 355 U.S. 286, 288 (1958).
109
Cf. Sharpnack, 355 U.S. at 295 (stating that the purpose of the ACA is to “apply the principle of conformity to state criminal laws”).
110
Miller, Federal Enclave Doctrine, supra note 69, at 74.
111
See Parker Drilling Mgmt. Servs. v. Newton, 139 S. Ct. 1881, 1887 (2019); OCS Lands Act History, Bureau Ocean Energy Mgmt., https://perma.cc/54QL-4JHC (last visited Mar. 23, 2024).
112
Cf. Cohen et al., supra note 86, at 80 (assessing the risks of providing abortions in landlocked federal enclaves).
113
See Robert D. Faiss & Anthony N. Cabot, Gaming on the High Seas, 8 N.Y. L. Sch. J. Int’l & Compare. L. 105, 110 (1986); John S. Caragozian, The Demise of Gambling Ships in Santa Monica Bay,Cal. Sup. Ct. Hist. Soc’y Rev., 2021, at 1, 14–15.
114
See Faiss & Cabot, supra note 113, at 110.
115
Faiss & Cabot, supra note 113, at 110.
116
See Faiss & Cabot, supra note 113, at 110; Caragozian, supra note 113, at 14.
117
See Caragozian, supra note 113, at 14; Daniel Miller, Column One: The Secret History of L.A.’s Glitzy Gambling Boat Kingpin—And the Raid That Sank Him, L.A. Times (May 26, 2021, 5:00 AM PT), https://perma.cc/G55A-UM32 [hereinafter Miller, Gambling Boat History].
118
Miller, Gambling Boat History, supra note 117.
119
See Faiss & Cabot, supra note 113, at 110.
120
Caragozian, supra note 113, at 14–15.
121
Caragozian, supra note 113, at 15, 17; Miller, Gambling Boat History, supra note 117.
122
See People v. Stralla, 14 Cal. 2d 617, 619 (1939).
123
Id. at 619–20, 633.
124
Id. at 632–33.
125
18 U.S.C.S. § 1082; see Faiss & Cabot, supra note 113, at 112.
126
Cf. Caragozian, supra note 113, at 15 (“Stralla had been indicted for the crime of maintaining a gambling establishment, but had avoided conviction on the ground that the Rex was beyond California’s jurisdiction.”).
127
See Faiss & Cabot, supra note 113, at 110; supra pp. 14–15 (discussing the few limitations Congress has passed regarding abortion).
128
Faiss & Cabot, supra note 113, at 111–12.
129
Stralla, 14 Cal. 2d at 632–33.
130
See 43 U.S.C.S. § 1301(b).
131
See id.; cf. Caragozian, supra note 113, at 15 (“Stralla had been indicted for the crime of maintaining a gambling establishment, but had avoided conviction on the ground that the Rex was beyond California’s jurisdiction.”).
132
See Thor Benson, Interstate Travel Post-Roe Isn’t as Secure as You May Think, Wired (July 25, 2022, 7:00 AM), https://perma.cc/F2R9-427S.
133
See, e.g., Rose Mackenzie, No One Should Face the Death Penalty for Accessing Health Care, ACLU (Mar. 14, 2023), https://perma.cc/Y3FN-NG9V (reporting that several states are attempting to criminalize abortion for the pregnant person as well as the provider, with severe consequences in states that allow the death penalty); Shawna Mizelle & Chris Boyette, Alabama Attorney General Says People Who Take Abortion Pills Could Be Prosecuted, CNN (Jan. 12, 2023, 2:24 PM EST), https://perma.cc/PVA5-6JXK (reporting that Alabama Attorney General wants to bring criminal charges against pregnant persons who utilize abortion pills under other unrelated criminal statutes).
134
See John Kruzel, Battle Lines Emerge over out-of-State Abortion, The Hill (July 14, 2022, 5:15 AM ET), https://perma.cc/H44F-4SJH.
135
See, e.g., Cohen et al., supra note 86, at 22–26 (summarizing attempts by states to restrict travel for abortion); Richard H. Fallon Jr., If Roe Were Overruled: Abortion and the Constitution in a Post-Roe World, 51 St. Louis U. L.J. 611, 636–40 (2007) (considering the constitutional limitations on states’ ability to enact travel restrictions).
136
See Kruzel, supra note 134; Mackenzie, supra note 133.
137
Miller, Gambling Boat History, supra note 117.
138
See Faiss & Cabot, supra note 113, at 110–11.
139
117 Cal. App. Supp. 775, 777 (1931).
140
Id. at 781.
141
See Butler, supra note 20.
142
117 Cal. App. Supp. at 781.
143
Michael Atwell et al., Joint Statement from Elected Prosecutors 1, 5 (2023), https://perma.cc/3VRX-VEM2. See generally Bret Jaspers, These Texas DAs Refused to Prosecute Abortion. Republican Lawmakers Want Them Stopped, NPR (Mar. 3, 2023, 5:06 AM ET), https://perma.cc/8YBJ-JKMU (reporting that District Attorney Gonzales of Nueces County tells his office to “do the right thing” when it comes to pursuing abortion-related cases).
144
See Port Corpus Christi, About Us: The Energy Port of America,Port of Corpus Christi, https://perma.cc/3BND-Z33Z (last visited Mar. 23, 2024).
145
See Pauly, supra note 106 (“The risk of future prosecution isn’t zero just because a prosecutor today decides not to investigate and issue charges . . . [i]t would depend on the priorities of whomever is taking over these offices.”).
146
Abigail R.A. Aiken et al., Safety and Effectiveness of Self-Managed Medication Abortion Provided Using Online Telemedicine in the United States: A Population Based Study, 10 The Lancet 1, 2 (2022); Rachel K. Jones et al., Abortion Incidence and Service Availability in the United States, 2020, 54 Persps. on Sexual & Reproductive. Health 128, 136 (2022).
147
See Rachel Rebouché et al., The FDA’s Telehealth Safety Net for Abortion Only Stretches So Far, The Hill (Dec. 18, 2021, 11:01 AM ET), https://perma.cc/2Y9A-8V7U.
148
See Marielle Kirstein et al., 100 Days Post-Roe: At Least 66 Clinics Across 15 US States Have Stopped Offering Abortion Care, Guttmacher Inst. (Oct. 6, 2022), https://perma.cc/6DH9-UP4Z.
149
Rebecca B. Reingold et al., Legal Risks and Ethical Dilemmas for Clinicians in the Aftermath of Dobbs, 328 JAMA 1695, 1695 (2022); Information About Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation, FDA, https://perma.cc/JCP6-L35V (last updated Mar. 23, 2023) [hereinafter FDA on Mifepristone].
150
See, e.g., La. Stat. Ann. § 40:962.2(C) (2022); Miss. Code Ann. § 41-41-107(1) (West 2023); Tex. Health & Safety Code Ann. § 170A.004 (West 2022).
151
See, e.g., Melissa Madera et al., Experiences Seeking, Sourcing, and Using Abortion Pills at Home in the United States Through Online Telemedicine Service, Qualitative Rsch. Health, Dec. 2022, at 1, 4 (interviewing users of Aid Access’ services about their experiences with delays in international shipping due to U.S. Customs procedures); Mizelle & Boyette, supra note 133 (reporting Alabama Attorney General intends to bring criminal charges against pregnant person who utilize abortion pills under chemical-endangerment law).
152
See Danco Lab’ys, LLC v. All. for Hippocratic Med., 143 S. Ct. 1075, 1075 (2023) (granting order to stay District Court’s ruling FDA improperly approved mifepristone pending review in 5th U.S. Circuit Court of Appeals); All. for Hippocratic Med. v. United States FDA, No. 2:22-cv-223-Z, 2023 U.S. Dist. LEXIS 61474, at *32 (N.D. Tex. Apr. 7, 2023) (granting preliminary injunction to suspend FDA approval of mifepristone, which was subsequently stayed by Supreme Court and remanded for review to 5th U.S. Circuit Court of Appeals).
153
See Pam Belluck & Allison McCann, Lawyers Spar Before Judge over Rescinding of Federal Approval of Abortion Pill, N.Y. Times (Mar. 15, 2023), https://perma.cc/3DEG-QLTX.
154
FDA on Mifepristone, supra note 149.
155
See FAQ, supra note 64.
156
See Rodrigues, supra note 27.
157
See Rodrigues, supra note 27.
158
Ana Gotter, Everything You Need to Know About Surgical Abortion, Healthline, https://perma.cc/4K3P-C6VD (last updated June 30, 2022).
159
See ACOG Guide to Language and Abortion, supra note 24; see, e.g., Regina Mahone, Notes on Language: Why We Stopped Using ‘Surgical Abortion’ at Rewire News Group, Rewire News Grp. (Apr. 16, 2020, 9:52 AM), https://perma.cc/LR5A-79BS (explaining that news group has followed lead of health professionals in replacing term “surgical” with “procedural” in reference to abortion to reflect absence of any surgical techniques or equipment used to carry out the procedure).
160
Mahone, supra note 159.
161
Lisa Rapaport, Few U.S. Women Have Serious Complications After Abortions, Reuters (July 11, 2018, 5:38 PM), https://perma.cc/E4H3-SGZS; see FAQ, supra note 64 (stating that PRROWESS has transportation plans in place for medical emergencies should one arise).
162
FAQ, supra note 64; see Johnson & Butler, supra note 77.
163
See Treisman, supra note 16 (asserting that PRROWESS estimates it will be able to serve around 1,800 patients per month); cf. Kirstein et al., supra note 148 (reporting that no clinics offer abortion in the states PRROWESS intends to target).
164
See, e.g., Katy Backes Kozhimannil et al., Abortion Access as a Racial Justice Issue, 387 New Eng. J. Med. 1537, 1537 (2022) (“Restrictions on reproductive bodily autonomy . . . have long been leveraged to oppress and control persons and communities that are devalued by racist, classist, or ableist societies.”); Fuentes, supra note 79 (“29% of the total US population of women of reproductive age are living in states where abortion is either unavailable or severely restricted.”); Biftu Mengesha, The Supreme Court’s Abortion Ruling Upholds White Supremacy, Sci. Am. (Nov. 1, 2022), https://perma.cc/DAX6-9SNY (addressing the systemic consequences of abortion bans for communities of color).
165
See generally Claude Berube, Dobbs v. the Ocean,Ctr. for Int’l Mar. Sec. (Nov. 16, 2022), https://perma.cc/8GHG-LE3T (considering the technological requirements for using the “maritime environment” to avoid state laws).
166
See Gomperts, supra note 7, at 180.
167
See, e.g., Vessel, supra note 1, at 19:55–21:18 (showing footage of Women on Waves arriving in Poland and meeting groups of protestors chanting “welcome Nazis”).
168
See Paul Ames, Marking 10 Years of Shipboard Abortions, The World, https://perma.cc/8UL6-FMSS (last updated May 30, 2010, 9:05 AM EDT); Bazelon, supra note 2.
169
Susan Davies & Rebecca Gomperts, On Deck for Abortion Rights: Women on Waves Sails to Portugal, 34 Thresholds 26, 28 (2007); Axel Bugge, Portugal PM Sends Abortion Debate to Parliament, Reuters (Feb. 10, 2007, 7:20 PM), https://perma.cc/F4JV-8EGG.
170
Davies & Gomperts, supra note 169, at 26.
171
Women on Waves and Others v. Portugal, no. 31276/05, ¶¶ 20, 23, 27, 30, ECHR (2009) (finding that the Portuguese government’s response to Women on Waves violated Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms); Davies & Gomperts, supra note 169, at 28.
172
Vessel, supra note 1, at 39:15–41:12.
173
Davies & Gomperts, supra note 169, at 28.
174
Davies & Gomperts, supra note 169, at 28.
175
E.g., Kathleen A. Cavanaugh, Current Development: Abortion Ship off the Coast of Ireland: Success or Stunt?, 8 New Eng. Int’l & Compare. L. Ann. 453, 453–54 (2002) (confirming that no patients were seen during the ship’s maiden voyage due to push-back from the Dutch government); Abortion Ship Guatemala, February 2017, Women on Waves, https://perma.cc/8AX8-4HR8 (last visited Mar. 23, 2024) (explaining the series of actions taken by the Guatemalan government to expel the ship from territorial waters); supra p. 1 (describing the efforts to block the ship in Morocco).
176
Ames, supra note 168.
177
Bazelon, supra note 2; Who We Are, Women on Web, https://perma.cc/Q3KP-YSGN (last visited Mar. 23, 2024).
178
See generally Raphael Thomadsen et al., The Impact of a Supreme Court Decision on the Preferences of Americans Regarding Abortion Policy (Jan. 6, 2023) (working paper), https://perma.cc/KWQ2-QKT2 (reporting the results of a conjoint survey finding that substantial media attention pre- and post-Dobbs marginally altered voter response); Emily M. Johnston, Research Shows Access to Legal Abortion Improves Women’s Lives, Urb. Wire (May 27, 2022), https://perma.cc/L9FT-KZPN (“[E]vidence shows continuing an unwanted pregnancy will lead to more pregnancy-related deaths, adverse mental and physical health outcomes for women, and adverse social and economic outcomes for women and their families.”).
179
See Josh Gerstein & Alexander Ward, Supreme Court Has Voted to Overturn Abortion Rights, Draft Opinion Shows, Politico, https://perma.cc/9LK5-4NRG (last updated May 3, 2022, 2:14 PM EDT) (reporting the first announcement that a draft of the Dobbs opinion had been leaked to the media).
180
Thomadsen et al., supra note 178, at 1; Corina Knoll & Mitch Smith, ‘My Main, Core Issue’: Abortion Was the Driving Force for Many Voters, N.Y. Times (Nov. 10, 2022), https://perma.cc/G9KE-46K5.
181
See Thomadsen et al., supra note 178, at 25; Danielle Kurtzleben, What We Know (and Don’t Know) About How Abortion Affected the Midterms, NPR (Nov. 25, 2022, 5:01 AM ET), https://perma.cc/Q7Q3-HNM2.
182
How 2022 Midterm Elections Shaped the 118th Congress, Bloomberg Gov’t, https://perma.cc/3D5F-SG26 (last updated Dec. 7, 2022); Kurtzleben, supra note 181.
183
Compare Henrique Almeida, Portugal to Legalize Abortion, Conservatives Shaken, Reuters (Feb. 12, 2007, 12:49 AM), https://perma.cc/5W5R-8R7H, with Amber Philips, Why Democrats Probably Won’t Get Rid of the Filibuster for Abortion, Wash. Post, https://perma.cc/UHN7-CEVS (last updated May 5, 2022, 4:27 PM EDT) (showing that in Portugal, compared to the United States, having a parliamentary majority allowed the Prime Minister to push through a referendum in favor of legalizing abortion, while congressional attempts at creating national abortion legislation have stalled due to the congressional filibuster and the enduring lack of bipartisan support on key issues).
184
Julie Ferry, The Abortion Ship’s Doctor, The Guardian (Nov. 14, 2007, 4:34 EST), https://perma.cc/TKZ2-TRXR.
185
Leah Litman et al., The Link Between Voting Rights and the Abortion Ruling, Wash. Post (June 28, 2022, 12:13 PM EDT), https://perma.cc/LJ2W-XEBW.
186
The Impact of Voter Suppression on Communities of Color, Brennan Ctr. for Just. (Jan. 10, 2022), https://perma.cc/X9B7-F755.
187
570 U.S. 529, 557 (2013).
188
Shelby County v. Holder: An Explainer, Rock the Vote, https://perma.cc/2388-L6XY (last visited Mar. 23, 2024).
189
Id.
190
Joel Park, Voting Under Siege: Eight Years of Shelby County v. Holder, The Leadership Conf. on Civ. & Hum. Rts. (June 25, 2021), https://perma.cc/C6NC-23E4; Voting Laws Roundup: December 2022, Brennat Ctr. for Just., https://perma.cc/M9Q5-3KQG (last updated Feb. 1, 2023); see, e.g., Rucho v. Common Cause, 139 S. Ct. 2484, 2506–07 (2019) (holding that a claim of partisan gerrymandering is a non-justiciable question).
191
Nick Corasaniti & Allison McCann, The ‘Cost’ of Voting in America: A Look at Where It’s Easiest and Hardest, N.Y. Times, https://perma.cc/4T2Q-4MUK (last updated Sept. 21, 2022); accord Scot Schraufnagel et al., Cost of Voting in the American States: 2022, 21 Election L.J. 220, 222 (2022), https://perma.cc/7SEW-QG6L.
192
Compare Tracking Abortion Bans, supra note 15, with Corasaniti & McCann, supra note 191 (showing together that Texas, Mississippi, and Alabama have banned abortion since Dobbs, while each is ranked within the ten states where it is most difficult to vote).
193
See generally Corasaniti & McCann, supra note 191.
194
See Litman et al., supra note 185.
195
See supra Part III (assessing the legal viability of a floating clinic in the Gulf of Mexico).
196
Ferry, supra note 184.
197
See Ames, supra note 168; see also Ferry, supra note 184 (quoting Dr. Gomperts, “[the abortion ship] is a symbolic gesture. We know we won’t solve the problem”).
198
Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2242, 2279 (2022).
199
See Josia Klein, After Dobbs, Voting Rights Are Essential to Reproductive Rights and Justice, Nat’l P’ship for Women & Fams. (Nov. 22, 2022), https://perma.cc/68DR-9RXW; Litman et al., supra note 185.
200
142 S. Ct. at 2277.
201
Park, supra note 190; e.g., Shelby County v. Holder, 570 U.S. 529, 539, 556 (2013) (eliminating the preclearance requirement for new voting measures in states with a history of discriminatory voting practices); see, e.g., Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2330 (2021) (upholding two Arizona voting restrictions as nondiscriminatory and reassessing how claims of discriminatory voting measures are evaluated under the VRA).
202
Johnson & Butler, supra note 77; Klein, supra note 199.
203
Allen v. Milligan, 143 S. Ct. 2607 (2023).
204
Paul M. Smith, Supreme Court’s Impact on Voting Rights Is a Threat to Democracy, Campaign Legal Ctr. (Sept. 27, 2023), https://perma.cc/RQ5C-JMDN; accord Madeline Greenberg, After Unprecedented Defiance, Alabama Finally Has a Fair Congressional Map for 2024,Democracy Docket (Oct. 5, 2023), https://perma.cc/39RR-4TZ7.
205
Cf. Fallon Jr., supra note 135, at 621–25 (considering that Congress could source the authority to regulate abortion, but that it would still be vulnerable under judicial review with a “conservative” Supreme Court).
206
See, e.g., Cong. Rsch. Serv. et al., supra note 65, at 2–5 (assessing several constitutional sources of authority to regulate abortion); Fallon Jr., supra note 135, at 621–25 (considering that Congress could source the authority to regulate abortion from the Commerce Clause of the Constitution); Thomas J. Molony, Inconvenient Federalism: The Pandemic, Abortion Rights, and the Commerce Clause, 20 Geo. J.L. & Pub. Pol’y 487, 487 (2022) (concluding that passing permissive federal abortion regulation would “stretch the Commerce Clause beyond its breaking point”).
207
See Andy Sullivan, Explainer: What Is the Filibuster and Could Democrats Suspend It for Abortion Rights?, Reuters (June 30, 2022, 11:22 AM EDT), https://perma.cc/8VG9-AM86.
208
Fallon Jr., supra note 135, at 624–25.
209
Litman et al., supra note 185.
210
See Klein, supra note 199; Litman et al., supra note 185.
211
See Brief for Amici Curiae American Historical Association and Organization of American Historians in Support of Respondents at 2, Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (No. 19-1392), 2021 WL 4341742; WHO, Abortion, supra note 70.

Arianna Fisher

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Abortion, criminal law, Roe, Supreme Court, Womens Rights