Could federal lands be a loophole for abortion access? Legal experts say it's complicated

WASHINGTON — With the fall of Roe v. Wade, conservative states are moving quickly to approve a jumble of restrictive abortion laws. States like Mississippi and Texas have moved to all-out ban the procedure, while other states like Ohio and South Carolina have reinstated older laws that severely restrict access.

Seeking to skirt around increasingly restrictive laws, progressive Democrats and activists have called on the Biden administration to apply a legally risky solution to Roe's demise — the effects of which, they argue, pose a much greater threat.

In a June 7 letter to President Joe Biden, before Roe was overturned, Massachusetts Sen. Elizabeth Warren and 24 other Democratic senators suggested placing abortion services on federal lands. Warren also suggested to the Washington Post that the Biden administration could establish Planned Parenthood stations on the outskirts of national parks.

"They could put up tents, have trained personnel — and be there to help people who need it," Warren told the Post.

Rep. Alexandria Ocasio-Cortez, D-N.Y., and Rep. Cori Bush, D-Mo., echoed Warren's proposal days after Roe was overturned.

Federal lands, or federal enclaves, refer to buildings or land within a state that are under the federal government's control. In many cases, federal enclaves are subject to federal jurisdiction exclusively, meaning that state governments can't prosecute crimes on that land. Some federal courthouses, military bases, federal buildings and national forests and parks are federal enclaves, according to the legal strategy firm Littler.

In theory, clinics within federal enclaves could provide a loophole for abortion access in states with restrictive abortion laws in place. But in practice, legal experts say placing and operating abortion services on federal lands is complicated.

"It's really hard to clearly say, as a lawyer, what is and isn't protected," said Leila Abolfazli, director of federal reproductive rights at the National Women's Law Center.

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The case for abortion services on federal land

Rachel Rebouché, a law professor at Temple University and leading reproductive health scholar, penned a paper for the forthcoming 2023 Columbia Law Review alongside two other legal experts, which, in part, argues in favor of placing abortion services on federal lands.

The general argument is this: On some federal enclaves, the federal government is afforded exclusive jurisdiction. In theory, then, the federal government could lease space on that land to private entities to lawfully perform abortion services, even if the enclaves are within states that have banned the procedure.

"The federal government does not have an abortion ban," Rebouché told USA TODAY. "There's no national right to – or national prohibition of – abortion ... (Federal lands) might be spaces in which care that's otherwise not available could be provided."

Key to the argument, according to the paper's draft, is a little-known federal law called the Assimilative Crimes Act. The Assimilative Crimes Act says that a person who commits an act on federal land for which there is no crime "punishable by any enactment of Congress" could face federal criminal charges if the act would be considered a crime in the state, territory, possession or district in which the federal land is situated, according to the draft.

However, federal prosecutors would bring and try those cases in federal court. Under an administration that supports abortion rights, federal prosecutors could enforce the rules with discretion. An administration that doesn't support abortion rights, though, could also enforce the rules at its discretion.

Abortion rights activists have questioned whether U.S. territories and tribal lands might agree to perform abortion services for some Americans, but those proposals are not tied to calls to place clinics on federal lands.

"They have a completely different jurisdiction, so it's a different set of questions," Rebouché said.

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Federal land proposal has risks

That's not to say the proposal is without pitfalls.

"There's a lot of worry about the logistics of protecting people who go on and off federal land, the legality of when and how federal law applies or it doesn't apply," Rebouché said. "It's a novel proposal, but it's also one where there's a lot of risk."

The proposal's first roadblock is finding federal land that actually fits the parameters necessary to protect people seeking abortions.

Whether a place fits the bill would depend on when the land became an enclave and when the state gave up concurrent jurisdiction over it — and there's no definitive list of such land, Rebouché said.

Bureau of Land Management spokesperson Brian Hires told USA TODAY he is "not aware of any such resource government wide or with BLM."

Then, there's the issue of funding. The Hyde Amendment prohibits the use of federal funds for abortion services, except in cases of rape or incest, or if the patient's life is at risk, limiting the extent to which the federal government could be involved in the creation and operation of the facilities.

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But Abolfazli said that the Hyde Amendment is about paying for the abortion care itself, meaning it isn't necessarily a restrictive factor.

"I don't find it a barrier," she said. "I understand that anti-abortion lawmakers are going to suggest that it's a barrier, but that's only in their interest."

More concerning, Abolfazli said, is making sure that providers and patients won't face repercussions for giving or receiving abortion services on federal lands.

"The Supreme Court has wreaked chaos in our legal and public health systems, and harm reduction needs to be pursued right now, but we need to make sure also that people – the patients, the families, the providers – are not facing risk with that harm reduction," Abolfazli said.

Cary Franklin, director of the University of California Los Angeles' reproductive health, law and policy center, told USA TODAY that whether providers and patients could be protected from state prosecution after traveling to and from federal land to receive abortion services is unknown.

"A lot of these people, if they're not going to live on the federal land, they'll live in the state, and as soon as they exit the federal land, the state arrests them," Franklin said. "It's not clear that the state can't do that. "

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Biden administration not convinced

Without the ability to provide legislative recourse, the Biden administration struggled to immediately offer substantive solutions for people seeking abortion services after Roe's reversal, causing frustration among abortion rights activists who say the White House is not doing enough.

On July 8, Biden signed an executive order outlining the steps his administration will take to safeguard access to the procedure, which includes ensuring access to medication abortion, emergency medical care and contraception.

“This is a moment – the moment – the moment to restore the rights that have been taken away from us and the moment to protect our nation from an extremist agenda,” Biden said before signing the executive order.

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So far, the White House has pushed back on providing abortion services on federal lands.

White House press secretary Karine Jean-Pierre said in June that the proposal could have “dangerous ramifications" for patients and providers who aren't federal employees. Vice President Kamala Harris told CNN that the administration is not discussing the proposal.

On July 8, Jean-Pierre appeared to somewhat backtrack by telling reporters asking about the proposal that "everything is on the table," though still noting the legal bind that patients and providers could face after leaving federal land.

But in the uncharted territory of a post-Roe America, it's unclear whether any federal action to expand abortion access comes without risk.

"I'm not sure that it's possible in these scenarios to be risk-free," Rebouché said.

Placing abortion services on federal lands is just one of many proposals by abortion rights advocates and legal experts, who are scrambling to find answers to the many questions raised by Roe's reversal.

"It's just a Pandora's box of new legal issues," Franklin said. "There are so many underdeveloped areas of the law that we're now going to have to figure out."

This article originally appeared on USA TODAY: Federal lands could provide abortion access loophole, experts say