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Vanderbilt Law Review

First Page

323

Abstract

In June 2022, the Supreme Court handed down its decision in Dobbs v. Jackson Women’s Health Organization. The decision confirmed what the public already knew. An anonymously leaked draft version of what ultimately became Justice Samuel Alito’s majority opinion had braced the country for Dobbs’s keyholding. Overturning decades of precedent, the Court found that there is no right to abortion in the United States Constitution. Shortly thereafter, states began implementing restrictions and near-total bans on abortion. These laws had an immediate effect on the safety of pregnant people. In Tennessee, a state where abortion is now outlawed, one woman had to brave a six-hour ambulance drive, with rising blood pressure and signs of kidney failure, to North Carolina to abort a nonviable fetus. The abortion landscape post Dobbs is riddled with inequitable access to reproductive healthcare-—healthcare which is vital to patients’ health and survival. But even in states where abortion is legal, a gap remains: without meaningful access to abortion service providers, a right to abortion is in name only.

Those seeking an abortion face two critical problems: validating their right to an abortion and finding meaningful access to effectuate that right. Addressing the former problem, several states have successfully passed state constitutional amendments protecting abortion since Dobbs. A checkerboard, state-centric approach to abortion protection, however, only amplifies accessibility issues for those in abortion-restricted states or in remote areas without access to abortion providers. Addressing the latter problem, some administrative action has attempted to curb the abortion access issue. The Biden Administration has authorized the use of telemedicine to conduct abortion consultations and prescriptions for abortion pills. While this administrative action does work for patients of today, the impact is only temporary. Administrative solutions are conducted at the behest of political power. Any antiabortion president could direct the agency to reverse course. A permanent solution that addresses both problems is needed.

This Note suggests that federal legislation codifying telemedicine abortion procedures into statutory law solves both the problem of legitimizing a right to abortion and finding meaningful access to the procedure. Telemedicine is one of the easiest ways to reach patients in parts of the country, like Guam, with limited access to in-person abortion providers. By grounding the right to abortion in federal, statutory law, Congress sets a mandatory “floor” for abortion rights that states may not overly restrict. This solution, by nature of being a legislative, rather than a judicial, proposal, will ensure consistent access to abortion. Ultimately, federal codification is the most practical way to protect a vital aspect of reproductive healthcare in the United States.

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