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Wash. U. L.Q


The question of a state's authority to legislate abortion extraterritorially may appear largely academic because of the United States Supreme Court's holding in Roe v. Wade, in which the Court prohibited states from restricting abortions in the first trimester of pregnancy.' At first glance, the Supreme Court's recent decision in Planned Parenthood v. Casey' appears to remove further the issue of extraterritorial abortion legislation from the states because the decision purportedly reaffirmed Roe.3 The Casey decision, however, does not preclude returning the abortion issue to the states. An extremely tenuous coalition of justices reaffirmed Roe, while a united group of dissenters argued that the Supreme Court should defer resolution of the abortion issue to state legislatures. 4 Furthermore, Casey's "undue burden" standard allows states significant latitude in restricting abortion, and the decision does not address extraterritoriality.' In the wake of the Casey decision, courts throughout the nation will have to confront the question of the legality of state-restrictive abortion laws.6 The post-Casey abortion landscape will largely resemble the pre-Roe landscape: a patchwork of states either legalizing or significantly restricting abortion, with women traveling interstate to obtain abortions.7

This Note examines the power of states to enact extraterritorial criminal abortion laws. Previous attempts to address this issue have failed to recognize any limits on a state's authority to legislate restrictive abortion laws. This Note proposes a framework for addressing the legality of extraterritorial state legislation and for imposing restrictions on state extraterritorial legislative authority. Section I examines the timeliness of issues relating to extraterritorial criminal abortion legislation. Section II discusses possible sources for a state's authority to legislate beyond its borders, focusing on the Model Penal Code's discussion of extraterritoriality and the traditional international law bases for criminal jurisdiction. Section III addresses the applicability of international law principles to the separate states of the United States. Section IV applies the judicially recognized restrictions on a state's power to legislate extraterritorially to the specific issue of extraterritorial criminal abortion legislation.