State Telemedicine Abortion Restrictions and the Dormant Commerce Clause
Telemedicine abortions allow women to meet virtually with abortion providers and receive abortion medication through the mail, all without ever leaving their homes. This development could be instrumental in facilitating access to abortion care for women living in abortion-restrictive states after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. However, many abortion-restrictive states have moved to restrict remote abortion care and impose legal liability on out-of-state telemedicine abortion providers.
This Comment outlines a novel argument that these state restrictions on telemedicine abortions violate the Dormant Commerce Clause, which prohibits state regulation that discriminates against or unduly burdens interstate commerce.
Although the Court’s decision in National Pork Producers Council v. Ross significantly narrowed the scope of the Dormant Commerce Clause, the fractured opinions highlighted important areas of the doctrine that remain unsettled. This Comment argues that this ambiguity presents an opportunity for courts to adopt an expansive model of the Dormant Commerce Clause’s undue burden standard, consistent with Chief Justice John Roberts’s opinion. Under this model, telemedicine abortion restrictions impose a substantial burden on the interstate market for abortion care that clearly outweighs their benefits. Although a Dormant Commerce Clause approach will not guarantee unfettered access to telemedicine abortions nationwide, it represents one of many tools that abortion rights advocates can leverage to protect reproductive rights in a post-Dobbs world.