Extradition in Post-Roe America

The United States is on the brink of a crisis brought on by the Supreme Court overturning Roe v. Wade in Dobbs v. Jackson Women’s Health. Eliminating the constitutional right to abortion will create a massive discordance in the criminal laws between states not seen since before the Civil War. This discordance in criminal laws will create tension between states that criminalize abortion and those that protect it as a state constitutional right. States such as Connecticut are already passing shield laws for abortion access and gender affirming care, while states such as Louisiana are proposing to classify abortion as a homicide. One state’s human right is another’s murder charge. This tension in the differences of abortion access between states will inevitably lead to fights over the extradition of individuals who assist pregnant people in obtaining abortion across state lines. There has been sparse modern scholarship on the extradition clause due to the relative harmony of state criminal laws and as a result, there is little understanding of how it might operate with substantial discordance among state criminal laws in the digital age. This Article seeks to examine the application and history of the extradition clause in the context of abortion access in a post-Roe United States and how it will inevitably lead towards growing conflict among states and potentially precipitate a constitutional crisis. As states propose more safe harbor measures to protect abortion access, it is important to ensure that the understanding of these measures is grounded in perspectives that illustrate how tenuously these “safe harbor” limits on extradition will be in practice. With this perspective, in instances of someone being sought for extradition related for abortion or gender affirming care, the article will propose that states should seek to prohibit: state funds being used in extradition, mandatory extradition proceedings with juries as factfinders to determine eligibility for extradition, mandatory release pending extradition, stripping of immunity from state actors, and a right to counsel for those being sought for extradition. States should be willing to defend the human rights of their citizens even when it may bring a loss of comity among states.