Senate Democrats are urging President Biden to deploy a rarely-discussed section of the Constitution to “preempt” the law in states that ban abortion in the event the Supreme Court strikes down the Roe v. Wade precedent. 

The plan stems from the idea, advanced by some legal scholars, that the federal government could circumvent state abortion bans by allowing the practice to be carried out on federal lands, like national parks or military bases, situated in states where abortion could become illegal.

According to the Constitution’s “enclave clause,” such territories are subject to federal law, and state laws don’t apply. A Drexel University professor, David Cohen, an assistant professor at the University of Pittsburgh, Greer Donley, and the interim dean of Temple Law School, Rachel Rebouché, advance this argument in the draft of a forthcoming paper titled “The New Abortion Battleground,” which will be published by the Columbia Law Review in 2023.

“Because state law does not always apply on federal land, abortions provided on leased federal land within antiabortion states might not be subject to state abortion bans at all,” the paper says. Their argument is rooted in the power of Congress, enumerated in Article I, Section 8, Clause 17 of the Constitution, to hold authority over lands “ceded” to it by the states.  

The Constitution says that in these districts — which are sometimes called “federal enclaves” — Congress has the power “to exercise exclusive legislation in all cases whatsoever.” 

A University of Colorado professor, Charles F. Wilkinson, reckons that this means the federal government is granted jurisdiction over areas including “most post offices and federal office buildings, all military bases, some national parks, and other miscellaneous holdings.” 

In addition, the Constitution grants federal authority over “all places purchased by the consent of the legislature of the state…for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.”

This has raised the legal question of whether the federal government could turn these areas into safe-zones for abortion providers. One obstacle might be the Hyde Amendment of 1977, which prohibits the federal government from directing funds toward abortion services. 

Mr. Cohen, Ms. Donley, and Ms. Rebouché say this still “leaves space for the federal government to lease space on federal land to some private entity to perform abortions there.”

“Those providers would have a reasonable — though certainly controversial — argument that state criminal and civil abortion bans do not apply on federal land, and they are therefore free to lawfully provide abortions there, even if the state within which the federal land is situated has otherwise banned abortion,” the professors say.

There is some historical precedent for presidents using federal enclaves to assert control over abortion.  President Nixon did so in 1971 when he revoked an administrative order by the Armed Forces hospitals that allowed abortions in service hospitals.  Because many of the hospitals are situated on federal lands, abortions could be restricted on all of them even in states where it was otherwise legal.

According to Mr. Cohen, Ms. Donley, and Ms. Rebouché, the President could attempt to use the same legal doctrine to achieve the opposite result. “Providers who want to avoid state abortion bans post-Roe should appeal to the federal government for permission to operate on federal land, such as by attempting to lease space from the federal agencies or programs,” their paper says.

Ms. Rebouché tells the Sun that she anticipates that states would object fiercely to such attempts to use federal enclaves to subvert their laws. They would, she reckons, likely attempt to invoke the Assimilative Crimes Act of 1948, which allows for federal courts to punish state offenses if there is no federal statute in place punishing a specific behavior.  

Mr. Cohen tells the Sun that this remedy is unlikely to allow states to prosecute abortion providers. “Under the relevant law,” he says, “states cannot enforce their law in federal enclaves. It’s up to the U.S. Attorney to decide whether to enforce state laws there.”

However, even if they can avoid prosecution, Ms. Rebouché says that providers and patients could also face risks once they leave federal lands.

“State medical boards have a lot of discretion and providers’ licenses might come under threat,” she told the Sun.  “States could try to pass other laws — imposing civil liability, for instance — on providers or even patients once they are off federal land.”

The National Director of Priests for Life, Reverend Frank Pavone, finds the prospect unfeasible.  “The idea that the federal government would permit abortions at a post office or a national park is rather absurd,” he tells the Sun. “There are likely innumerable federal regulations and statutes that would have to be amended by the legislature to permit this.

Ms. Rebouché says that if Mr. Biden were to attempt such a move, “There are risks and there is a lot of uncertainty.” According to the New York Times, the Biden administration is weighing whether to take executive action, though it is unclear how far it might be willing to go.

“There’s some executive orders I could employ,” Mr. Biden said in an interview with talk show host Jimmy Kimmel last week. “We’re looking at that right now.”

Senator Rubio has pledged to introduce legislation that would block Mr. Biden from declaring a public-health emergency to protect abortion after Roe is overturned.

“The real emergency in this country is that thousands of unborn Americans are killed every day,” Mr. Rubio said. “It is a cruel and grotesque abuse of presidential power to protect that practice.”

“What does it say about Biden’s fellow partisans that at a time of rabid and rapid inflation, along with concerns for food shortages including basic necessities like baby food and tampons, some Democrats want to retask federal property to end life?” says Students for Life spokeswoman Kristi Hamrick in comments to the Sun. 

Senate Democrats, for their part, have urged Mr. Biden to “use federal property and resources to increase access to abortion” in states where it could soon be illegal or restricted.

The proposal, included in a letter written to Mr. Biden by 25 Democratic senators, was part of a list of executive actions they urged him to take up “immediately” to protect abortion in states where it will likely be banned if the Supreme Court overturns Roe.

The senators encouraged the Department of Justice and other agencies to “analyze the types of reproductive health services that could be provided on federal property, especially in states where such services are limited by state law or regulation.”

In addition to leasing federal lands to abortion providers, Senate Democrats have also urged the President to take other actions.

These include using federal agencies to increase the availability of medication abortion, help individuals travel to states where abortion is legal, and enforce federal requirements allowing Medicaid recipients to freely seek family planning services.

“These proposals are only starting points,” the letter concludes. “The entirety of the federal government must be engaged in the Administration’s efforts and must act as swiftly as possible.”

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This dispatch has been updated from the bulldog edition.