Article

The Piggyback Effect: Abortion, Interstate Commerce, and National Pork

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Abstract

The increasing emergence of abortion-related interstate travel bans — spatial regulations that prohibit the physical travel of a pregnant woman from one state to another to obtain an abortion procedure or treatment — pits the exclusive police powers of state governments against the novel Dormant Commerce Clause of the United States Constitution. The Dormant Commerce Clause prohibits states from passing legislation that discriminates against or imposes undue burdens on interstate commerce, regardless of existing federal regulation. Against the backdrop of National Pork Producers Council v. Ross (2023) ("National Pork"), in which the Court conceived of interstate transportation as an insoluble national enterprise, inconsistency in the application of the Dormant Commerce Clause is inevitable as more states work to outright ban or severely restrict abortion access. "The Piggyback Effect" analyzes how National Pork informs the constitutional standards litigators must apply should an abortion travel case reach the Supreme Court under the Dormant Commerce Clause, first from the perspective of states attempting to restrict interstate travel to obtain an abortion and then from that of fictive challengers to such state statutes. By analyzing dissenting and concurring opinions, lower court judgments, interviews, and legal scholarship, this article argues that National Pork affirms the unconstitutional burden imposed on interstate commerce by excluding pregnant women from abortion-related marketplaces. 

Keywords: Abortion, Interstate Commerce, National Pork