Abstract
In a post-Dobbs world, the legal status of abortion care is in the hands of the states. Healthcare providers and people seeking abortion care must either take legal risks or betray their morals and oath to care for their patients to follow the law in certain restrictive states. What remains in flux is the status of abortion rights on federal lands. There is currently no federal law that criminalizes abortion, but many states prohibit it. Within some states that have restricted abortion, there lie federal enclaves—certain specified land that the United States government owns, where federal law controls. At first blush, these areas present a possible avenue to circumvent restrictive abortion laws. However, a little-known federal law, the Assimilative Crimes Act (hereinafter referred to as the “A.C.A.”), derails this possibility because it allows for state criminal laws to be applied on federal land. Currently, the A.C.A. forecloses access to abortions on federal land. The A.C.A. allows prosecutors to assimilate state law on federal land to prosecute actions that are not punishable under federal law. Since there is no federal protection or punishment for abortion care, the A.C.A. could make a state law that criminalizes abortion applicable on federal land. So, state law still restricts abortion care on federal enclaves that exist within conservative states. This Comment argues that the A.C.A. unconstitutionally delegates legislative power to the states in violation of the nondelegation doctrine. Mirroring the conservative-led pushback against the administrative state, recently, the United States Supreme Court has increasingly suggested a stricter application of the nondelegation doctrine. If the Court strikes down the A.C.A. because it is an unconstitutional delegation, federal lands would become a haven from the risk of criminal prosecution for abortion care within restrictive states. Although it is typically conservatives that support this Federalist principle, the nondelegation doctrine also mandates an outcome in line with more traditionally liberal values: the expansion of abortion access on federal lands. Part II of the Comment describes the history of the nondelegation doctrine and how the Court applies the intelligible principle standard to determine if there has been a constitutional violation. Part II also discusses the history of the A.C.A., focusing on the case law that upheld the statute against a constitutional challenge. Part III analyzes the Court’s trend away from deference to the administrative state, contending that this trend will lead to a stricter evaluation of Congress’s use of intelligible principles when delegating legislative power.18 This Comment further argues that, under a narrower intelligible principle standard, the power the A.C.A delegates to the states is clearly unconstitutional. If the A.C.A.’s delegation of power is unconstitutional, abortion care in federal enclaves becomes a viable option. Part IV suggests policies that would improve the landscape of abortion care.