“They could put up tents, have trained personnel — and be there to help people who need it,” Elizabeth Warren told the Washington Post’s Caroline Kitchener last week, reiterating an earlier call to open abortion clinics inside national parks and on other federal lands. “It’s time to declare a medical emergency.” Alexandria Ocasio-Cortez and Cori Bush made the same case in the days following the overturning of Roe v. Wade. The idea might seem novel, but the strategy isn’t: Questions around land use have long been a means to negotiate abortion access in this country. It’s just usually Republicans doing the negotiating.
Prior to the Supreme Court’s reversal of Roe, hostile states routinely tried to use zoning ordinances to shutter clinics or prevent new ones from opening. In 2021, North Dakota introduced a proposal to ban clinics from operating within 30 miles of a school. Alabama tried a similar move in 2016. In both cases, the states didn’t much care about the logistics of implementation or court challenges; they cared about stopping legal abortion. David S. Cohen, a law professor at Drexel University’s Thomas R. Kline School of Law, thinks it’s time for pro-abortion-rights Democrats to be just as bold. “This is not the time to dismiss ideas out of hand; this is the time to think about new approaches,” he said of land-use skeptics (including, significantly, the White House).
To envision how it might work, think of a newsstand inside a federal courthouse, says Cohen. “That’s not run by the federal government,” he says. Similar arrangements are plentiful, like those with the corporations that lease swaths of federal land for fossil-fuel extraction, as Molly Taft notes at Gizmodo. “Drilling is an excellent example,” agrees Rachel Rebouché, the interim dean of Temple University School of Law and a co-author with Cohen on a draft paper exploring post-Roe abortion access, because it demonstrates how quickly Biden could act. “When the federal government decides it’s going to do something like that, it just does it.” The Hyde Amendment prohibits the federal government from funding an abortion facility, but Cohen says it doesn’t prevent the federal government from leasing space to one. The strategy — which exploits contested legal questions of jurisdiction and enforcement — borrows from the anti-abortion movement’s wildly successful approach to jurisprudence and the administrative state: Ask forgiveness, not permission.
In an effort to protect abortion seekers, Rebouché and Cohen argue, providers need to be situated not just on federal land but within “federal enclaves,” federal properties where states lack jurisdiction to prosecute. (When Bruce Springsteen was arrested for a DWI in New Jersey in 2020, for example, he was in the federally administered Gateway National Recreation Area’s Sandy Hook Unit, and his $540 fine was administered through a federal court.) On paper, National Park Service lands are ideal for this because their sovereignty is explicitly protected by the Constitution. Many courthouses, federal buildings, and military bases also fall under this category, but each location would have to be evaluated on its own.
Federal properties are plentiful in many of the states where abortion may soon be banned; in Utah, for example, 63 percent of the state is federally managed land. Basic facilities would suffice; more than half of U.S. abortions are medical rather than surgical and do not require a clinic. Mobile clinics, which are being pilot-tested, could even travel from one property to another and simply park in a federally managed lot. Making a list of qualifying federal properties and enclaves — something Warren suggested the Department of Justice might do — would be the first step, says Cohen. “You would have to figure out the perfect place, get some assurances from the Biden administration, make sure the local federal prosecutor is not interested in prosecuting, and then still be ready for hiccups,” he says. A location could be declared safe with what’s called a declaratory judgment action, an effort to seek a ruling on the legality of an action before it’s taken.
“I agree it’s untested. I agree there are logistical risks — there are risks to patients and providers,” Rebouché says of the proposal to use federal lands this way. Still, both researchers believe all options should stay on the table. “The risk of doing nothing is sometimes greater,” says Cohen. “We think that we’re in that situation now.”