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April 2025 Blog Posts

The Current State of American War Powers

As a new President is inaugurated and a new Congress is seated, it is time America returns to the division of war-making power the framers envisioned.

Zac Spohn

Our constitutional framers divided federal power throughout three separate branches of government.[1]  There are many reasons the framers separated powers throughout the three branches. But the most important reason is clear: to avoid too much power becoming concentrated in one branch of government. The framers of our Constitution feared creating a form of government that could allow a tyrant like King George III to consolidate all governmental power. Thus, they created branches with not only their own major sets of power, but also gave the branches the ability to check each other’s powers. The framers gave the United States’s war-making powers to the two political branches: the Legislative and the Executive.[2]

The President’s war powers include their inherent power to protect the United States,[3] the power to negotiate treaties,[4] and their status as Commander-In-Chief.[5] The President also enjoys war powers stemming from various Congressional authorizations for the U.S. military force. Those authorizations include the 2001 Authorization for Use of Military Force (AUMF)[6] and the 2002 Iraq AUMF.[7] Congress’s war powers include the responsibility to declare war,[8] the duty to fund the armed forces,[9] and the power to make rules for the regulation of the armed forces.[10]

So how does this all really work? The framers desired Congress’s power to declare war to be the federal government’s primary “war-making” power.[11] And, they desired for the President to have very little input on whether the country would go to war.[12] Therefore, subject to few exceptions, the President was supposed to have limited war powers up and until Congress formally declared war. This was the framer’s intended equilibrium when it came to war-making powers.

We have strayed dramatically from this original framework. Today, much of the United States’s war-making power has been consolidated within the confines of the Executive Branch, a trend that began following the second World War.[13] After the Korean and Vietnam conflicts, Congress passed the War Powers Resolution (“WPR”). The WPR requires the President to notify Congress within 48 hours of engaging military forces in a foreign conflict.[14] And it requires the President to remove the military from a conflict within 60 days after he initially deploys the armed forces if not given an express authorization from Congress.[15] The WPR is likely unconstitutional for a full host of reasons,[16] but it was the first time Congress acknowledged they had ceded to much war-making power to the President.

As you can see, where a President claims to get their authority for a use of military force is ripe for manipulation. Perhaps nothing is more illustrative of this point than the 2001 AUMF. A 2018 Congressional Research Service Report found the 2001 AUMF had been cited 41 times as a justification for military action by Presidents Bush, Obama, and Trump.[17] Each of those Administrations used the 2001 AUMF to justify counterterrorism operations against groups the 2001 AUMF was not meant to cover.[18]

Complicating matters has been the recent reluctance of federal courts, and the Supreme Court, in particular, to exercise their power to resolve war powers disputes. Often citing justiciability or standing doctrines, courts have declined to intervene in war powers cases. It is a recent development of war powers jurisprudence that federal courts feel they do not have the workable standards to answer these sorts of questions. They had workable standards in 1800 when the Supreme Court determined the United States was at war with France, even though Congress had not yet formally declared war.[19] They had workable standards in 1862 when the Supreme Court determined a “state of war existed” when the southern states in rebellion blockaded naval ports.[20] In 1990, a federal district court felt “manageable” enough standards existed to reach the conclusion the U.S. would in fact be at war when hostilities commenced after President Bush deployed 230,000 troops to the Persian Gulf.[21]

To return our nation’s division of war powers to the framer’s intended equilibrium, Congress must reassert their power to dictate the terms upon which the President conducts war. A strong first step would be to repeal the 2001 AUMF. However, we are unlikely to return the framer’s intended equilibrium unless federal courts reassert their ability to exercise the judicial power to settle these disputes.

 

[1] Those three branches are obviously the Congress, the Executive, and the Judiciary. See, generally, U.S. Const. art. I, II, and III.

[2] See U.S. Const. art. I, § 8, cls. 11-13; see also U.S. Const. art. II, § 2.

[3] The Supreme Court affirmed this power in the Prize Cases, stating: “If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority.” 67 U.S. 635, 668-70 (1863).

[4] U.S. Const. art. II, § 2.

[5] Id.

[6] 115 Stat. 224.

[7] 116 Stat. 1498.

[8] U.S. Const. art. I, § 8.

[9] Id.

[10] Id.; see also, Uniform Code of Military Justice. 10 U.S.C. 47.

[11] See The Federalist No. 41 (James Madison) (“Is the power of declaring war necessary? No man will answer this question in the negative.”).

[12] See The Federalist No. 69 (Alexander Hamilton) (“The President is to be the Commander in Chief of the [armed forces] of the United States. In this respect his authority would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the armed forces, as the first general and admiral of the nation: while that of the British King extends to the declaring of war, and to the raising and regulation of the armed forces; all which by the Constitution… would appertain to Congress.”).

[13] The genesis of this consolidation was Congress’s acquiescence when President Truman ordered American troops into battle on the Korean Peninsula in 1950. H.L. Pohlman, Constitutional Debate in Action: Governmental Powers 163-64 (Rowman & Littlefield 2d ed. 2005) (1995) (noting the Korean conflict lasted three years and cost the lives of approximately 36,000 American troops). Under the guise of this action merely being “a police action”—President Turman never sought a declaration of war from Congress or other authorization for the use of military force. See Louis Fisher, The Korean War: On What Legal Basis did Truman Act?, 89 AM. J. Int’l L. 21, 35 (1995).

[14] 50 U.S.C. § 1543 (the President is required to submit written notification to Congress detailing the need for military action and the status of that action).

[15] 50 U.S.C. § 1544. Notice, this section of the statute gives the President power to conduct a full-scale military operation for sixty days without explicit Congressional authorization. Although, Congress may vote to withdraw military forces at any time.

[16] The law may infringe on the President’s unencumbered power to defend the United States as Commander-in-Chief as recognized by the Prize Cases. The WPR also effectively allows the President to declare war on his own so long as he withdraws his forces within 60 days, which is direct conflict with Article I. It also provides for a legislative veto (§ 1544(c) permits Congress to order the President to withdraw forces) of a delegated power which is in conflict with Supreme Court precedent. See INS v. Chadha, 462 U.S. 919, 923-929 (1983).

[17] See Matthew Weed, Cong. Research Serv., Presidential References to the 2001 AUMF in Publicly Available Executive Actions and Reports to Congress (Feb. 16, 2018), https://lee.house.gov/imo/media/doc/Presidential%20Reference%20to%202001%20AUMF%20in%20Notifications %20and%20Executive%20Actions%20Memorandum%20Update%20(2-16-2018)%20Final.pdf.

[18] See Stephen Vladeck et al., After the AUMF, 5 Harvard National Security Journal 115, 116 (2014). See also Andrew Desiderio et al., ‘A very dangerous precedent’: Democrats take aim at Biden’s Somalia airstrikes, Politico (July 27, 2021) (examining the Biden administration’s airstrikes in Somalia using the 2001 AUMF as justification). See also Shareen Khalel et al., Was it legal?: What US and international law say about Trump’s strike on Soliemani, Middle East Eye (Jan. 3, 2020) (examining the legality of the Trump Administration’s assassination of the Iranian Revolutionary Guard General Qasem Solemani using the 2001 AUMF as justification).

[19] Bas v. Tingy, 4 U.S. 37, 41 (1800).

[20] The Prize Cases, 67 U.S. 635, 670 (1862).

[21] See Dellums v. Bush, 752 F.Supp.2d 1141, 1146 (D.D.C. 1990) (taking judicial notice that the President’s military actions could be of “such magnitude and significance as to present to serious claim that a war would not ensue if the [armed forces] became engaged in combat”).

April 18, 2025 by
April 2025 Blog Posts

Turning the Tide: Harnessing Wave Energy to Fight Climate Change

Thomas (T.J.) Reinhardt

Renewable wave energy is an underused energy market widely available across the world’s coasts. These same coasts are also at the highest risk of rising oceans due to fossil fuel-induced climate change. Although wave energy is a relatively recent development compared to other renewable energy sources, projects worldwide are set to determine its long-term sustainability. This piece seeks to explain wave energy technology, note regulatory hurdles for investors in these developments, describe an existing project in the United States, and strategize how future development of wave energy projects may be promoted to address the increasing threat of climate change.

I. The Basics of Wave Energy

Marine hydrokinetic energy, which includes wave energy, is a technology that uses waves or wind currents on the ocean’s surface to capture energy. Wave energy has many benefits. This energy form is a relatively reliable resource, as it would generally be available twenty-four hours per day, three-hundred-sixty-five days per year.[1] It can be accurately forecasted several days in advance.[2] Wave energy is also generally more affordable when compared to other energy forms.[3] What’s more, harnessing wave energy does not release any greenhouse gasses (GHG) or require nearly as much land as other renewable energy forms, using smaller amounts of area in otherwise unused water space.[4]

There are generally four methods of converting waves into energy: terminator devices, attenuators, point absorbers, and overtopping devices. Terminator devices are most often used in near-shore energy collection.[5] These devices feature a submerged opening that allows water to flow in, trapping air inside an enclosed chamber with the water. When the water level rises with the passing wave, that trapped air is pushed upwards, which pushes a turbine as the wave goes by.[6]

Attenuators, similarly, use the rising water levels from the ocean’s waves to power a turbine.[7] These devices are typically fixed to the ocean floor and float on the surface in “long floating pontoons.”[8]

Point absorbers, much smaller than terminators and attenuators, use a buoy within the device that rises and falls as waves roll in, which powers hydraulic converters inside the machine.[9] These devices are the wave energy converters used in the Florida Atlantic University (FAU) wave energy project, one of the first wave energy projects in the U.S. (discussed later).[10]

Finally, overtopping devices, arguably the most complex of the four, use ocean waves to push water into an elevated reservoir. When the reservoir releases the water back into the ocean, it flows over a turbine mechanism, which causes the turbine to generate electricity.[11]

II. Wave Energy Projects & Their Many Regulators

“12 miles off the coast of Fort Lauderdale lies one of the few marine hydrokinetic energy projects in the United States.”[12] This is FAU’s wave energy development, Florida’s first renewable wave energy farm. As outlined below, projects like this one must navigate many hurdles with regulatory compliance, funding, environmental assessments, and other challenges.

Florida has a three-mile territorial sea boundary, so a project like FAU’s, twelve miles from shore, would be in federal waters. This means that, under the Outer Continental Shelf Land Act, various federal agencies must step into the picture.[13] The main federal agencies creating laws impacting wave energy projects, like FAU’s, are the Federal Energy Regulatory Commission (FERC) and the Bureau of Oceanic Energy Management (BOEM).

FERC oversees inland hydropower in the United States and, since 2002, also oversees offshore hydropower.[14] Under the Outer Continental Shelf Land Act, any entity desiring to begin a hydrokinetic energy project must first obtain licensing from FERC.[15] In this sense, FERC’s near-exclusive jurisdiction generally extends to all marine hydrokinetic energy projects. Often BOEM is allowed to co-regulate the project with FERC.[16] In most cases, however, BOEM’s ability to regulate will be limited to solely state shore territory.[17]

While FERC and BOEM are the main regulators in wave energy projects, there are more. For example, FAU’s wave energy project, and likely others, also required an analysis under the National Environmental Policy Act (NEPA) that illustrated the impacts of the proposed development on stakeholders.[18] In FAU’s NEPA analysis, it first needed to comply with the National Historic Preservation Act.[19] Typically, this is a low bar, as offshore historic sites are quite rare.[20] Developments must also comply with the Endangered Species Act, assessing threats to certain species in conjunction with the Fish and Wildlife Services and the National Marine Fisheries Service.[21] Similarly, projects must ensure they are not disturbing important fish habitats in compliance with the Magnuson-Stevens Fishery Conservation and Management Act.[22]

It is important to note this is a non-exhaustive list of, mainly, federal laws and regulations. Proposed marine hydrokinetic energy projects in state waters will likely be required to comply with state laws as well. For example, FAU’s project also needed to address the Coastal Zone and Marine Act, a regulation only required in Florida.[23] In short, the successful development of wave energy projects requires a massive amount of upfront work and a solid understanding of federal and state law to maintain compliance.

III. Streamlining the Process for Greater Impact

Despite wave energy’s great potential and positive impacts, governmental and private sector encouragement has been slightly lacking. The best way to help promote wave energy projects in the U.S. would be to simplify the permitting process.[24] As one can see above, there are many protections put in place in the U.S. to ensure the sustainable development of these projects. These protections are understandable, given the desire to protect vulnerable environments and species. However, jumping through so many of these “hoops” makes getting these developments up and running extremely difficult and expensive. It is true that other energy projects, wind farms for example, similarly have rigorous compliance standards. However, because of their established nature and more widespread implementation, these projects typically have more active investors, making development and deployment less difficult.

FERC already has memoranda of understanding (MOUs) with multiple states to “coordinate the regulatory actions which significantly helps to clarify and speed up [a] proposed wave energy project.”[25] Coastal states, like Florida, need to take this step just as California, Oregon, Maine, and Washington have in order to promote wave energy investment on their coastlines.[26]

Additionally, increasing publicity for wave energy developments would help encourage support, funding, and awareness for them. Higher visibility would show the benefits of these projects to lawmakers, investors, and the public. Hopefully, this would promote beneficial policy changes, which would, in turn, support new wave energy farms.

IV. Conclusion: Slow, but Exciting, Beginnings

While wave energy seems to be catching on slower than other renewable energy projects, its abundance and eco-friendly attributes make it an exciting field for more research and development.

 

[1] Andrew Thornquest, The New Wave of Florida Energy: The Regulatory Path to Harnessing Marine Hydrokinetic Power, 34 Pub. Land & Res. L. Rev. 191, 193-194 (2013).

[2] Id.

[3] Id.

[4] Id. at 198.

[5] Id. at 195.

[6] Id. at 195.

[7] Thornquest, supra note 1 at 195–196.

[8] Id. at 195.

[9] Id.

[10] Id. at 193.

[11] Id. at 197.

[12] Id. at 200.

[13] See 43 U.S.C. § 1331.

[14] Thornquest, supra note 1 at 202.

[15] Id.

[16] Id. at 202.

[17] Id. at 203.

[18] Id. at 207.

[19] Id. at 208 (citing 54 U.S.C. § 306108).

[20] One example of an offshore historic site would be a protected shipwreck.

[21] Thornquest, supra note 1 at 208 (citing 16 U.S.C. § 1536).

[22] Id. at 209  (citing 16 U.S.C. §1801-1891).

[23] Id. (citing 16 U.S.C. §1451).

[24] Id. at 214.

[25] Id. at 203-204.

[26] Id. at 203.

April 14, 2025 by
Uncategorized

Why National Security Laws Must Be Reformed to Protect the Rights of Marginalized Immigrant Communities in the United States

Monali Bhakta

I. Introduction

When people hear the phrase “9/11,” the first memory that pops into their mind is where they were on the morning when the Twin Towers fell. I recall watching clips of the catastrophe unfold on my TV screen as pedestrians were desperately running for survival as dark clouds of smoke transcended from the crashing buildings. My naïve, childlike brain assumed this was just a movie scene; it was not possible that this atrocity happened in real life. But it did happen, and little did I know that our reality as Americans would be forever changed in the years to come.

II. Overview of the USA PATRIOT Act

“Give me your tired, your poor, your huddled masses yearning to breathe free,” are the famous words etched on the Statue of Liberty in New York.[1] It serves as a symbol of hope for immigrants leaving their native homeland to courageously resettle in the United States. This changed after September 11th, 2001. Many immigrants who aspired to pursue their “American Dream” were soon faced with uncertainty instead of hope due to harsh national security laws implemented in a post-9/11 era. Specifically, these were Arab, Middle Eastern, Muslim, and South-Asian immigrant communities (known collectively by the acronym of “AMEMSA”).[2]

An example of one of these national security laws was the USA PATRIOT Act, short for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism,” passed by Congress and signed into law by President George W. Bush on October 26th, 2001.[3] The Act prevented and penalized terrorist activities in the United States and in the world by increasing law enforcement’s investigative capabilities to protect public safety.[4] However, the implementation of this law demonstrates how this was a reactive, emotionally-charged response, rather than one taken based on conflict resolution and cultural awareness. Instead of thoughtfully passing legislation to heal our nation from this devastating tragedy, Congress did not have public hearings or thoughtful discussions about the individual provisions of the PATRIOT Act before swiftly passing it.[5] While this Act was enforced to protect the American people during a scary time, this law was not meant to protect everyone, as shown by the devastating consequences that it had on AMEMSA communities.

One controversial provision was Section 412(a), which gave law enforcement the power to enforce mandatory detention for immigrants suspected of any kind of terrorism. It gave broad power to the Attorney General to take any immigrant into custody and detain them for at least 6 months if the federal government believed they violated immigration laws due to terrorism.[6] The Act also increased federal law enforcement’s authority to monitor both citizens and noncitizens by tapping international and domestic phones, which clearly violated individual privacy rights.[7] The government had overwhelming discretion to violate people’s due process rights, based on fear that they would be disloyal to the United States.[8]

III. The Collateral Damage of the USA PATRIOT Act

One way the U.S. government carried out harmful national security practices was by conducting mass dragnets. Mass dragnets were police operations where police officers would search a specific area to catch a terrorism suspect, largely based on racial profiling.[9] After 9/11, AMEMSA communities endured cruel treatment due to this systemic discrimination. Attorney General John Ashcroft admitted that minor immigration charges would be enforced to detain noncitizens if their investigations were ongoing. The targeted roundups of people from Muslim-majority countries—many of whom were from Pakistan and Egypt—did not reveal any direct connections to the terrorist attacks. In one roundup, about 100 people were charged with minor criminal offenses, and 500 others were detained for immigration violations, such as overstaying their temporary nonimmigrant visas.[10] In practice, the government’s national security interests appeared insincere and inefficient because it detained people with low-level offenses based on the arbitrary assumption that they are connected to terrorism. Not only is this irrational, but it undermines our system of justice.

The public opinion within AMEMSA communities is that the federal government’s national security laws perpetuated racial discrimination against people associated with the Islamic religion.[11] Race and religion were social constructs used to weaponize to fight the “war on terrorism,” where discrimination against marginalized immigrants was normalized within law enforcement. According to the American Arab Anti-Discrimination Committee (ADC), just 6 months after the 9/11 attacks, there were 600 cases of violence and 100 cases of workplace discrimination targeting Arab Americans. Meanwhile, there were 60 incidents of violence against students at schools and universities. Approximately 100 cases of discrimination against Arab Americans happened at U.S. airports, where more than 60 people were removed from airplanes based only on their physical appearance.[12]  When the government acted complicit in this dehumanization, it was enough to shatter the human spirit within a vulnerable population, threatening people’s safety and security in this country.

Post-9/11 national security laws also had a detrimental impact on the South Asian community.[13] South Asians faced rigorous security screenings and were denied boarding on planes because security personnel presumed that their nationality would present a safety risk to other passengers. Specifically, South Asian Muslims were forced to experience humiliating and intrusive pre-boarding searches and intensive questioning before they were allowed to board their flights. People were forced to prove their innocence because of the prejudice associated with “flying while brown.” Despite not being a danger to the public, the civil rights of these passengers were violated.[14] Furthermore, this aggressive treatment happened so frequently, it coerced South Asian communities into silence instead of speaking out against this injustice.

IV. A Productive and Empathetic Path Forward

The U.S. government needs to strike a balance between enforcing national security laws and safeguarding the human rights of immigrants in the United States. While I wholeheartedly agree that our government must protect the lives of American civilians, that should not come at the expense of implementing discriminatory laws that target innocent, well-meaning immigrant communities. As a South Asian woman from a community negatively impacted by these national security measures, I empathize with the hostility and exhaustion immigrants feel when they are marginalized by their own government as they work towards a better life in the United States.

Even though I believe the United States should do everything in its power to protect the American people, the most productive way to achieve this goal is by implementing humanitarian and multicultural values within our national security laws. That will allow us to maintain our honor as a global leader in the world without sacrificing human rights as a tradeoff. Additionally, the U.S. government should empower underserved immigrant communities by listening to our lived experiences and developing culturally informed national security policy that adheres to the true meaning of the Statue of Liberty. And I look forward to contributing to this change in my legal career.

 

 

[1] Walt Hunter, The Story Behind the Poem on the Statue of Liberty, The Atlantic (Jan. 16, 2018), https://www.theatlantic.com/entertainment/archive/2018/01/the-story-behind-the-poem-on-the-statue-of-liberty/550553/.

[2] AMEMSA Fact Sheet (Nov. 2011), https://aapip.org/wp-content/uploads/2014/09/amemsa20fact20sheet.pdf.

[3] USA PATRIOT Act, Financial Crimes Enforcement Network, U.S. Treasury, https://www.fincen.gov/resources/statutes-regulations/usa-patriot-act.

[4] Id.

[5] Kevin R. Johnson & Bernard Trujillo, Immigration Reform, National Security After September 11, and the Future of North American Integration, 91 Minn. L. Rev. 1369 (2007).

[6] Drew Fennell, The Usa Patriot Act: Can We Be Both Safe and Free?, Del. Law., Summer 2003, at 10.

[7] Id.

[8] Id.

[9] Susan M. Akram & Kevin R. Johnson, Race, Civil Rights, and Immigration Law After September 11, 2001: The Targeting of Arabs and Muslims, 58 N.Y.U. Ann. Surv. Am. L. 295 (2002).

[10] Id.

[11] Ty S. Wahab Twibell, The Road to Internment: Special Registration and Other Human Rights Violations of Arabs and Muslims in the United States, 29 Vt. L. Rev. 407 (2005).

[12] Id.

[13] Charu A. Chandrasekhar, Flying While Brown: Federal Civil Rights Remedies to Post-9/11 Airline Racial Profiling of South Asians, 10 Asian L.J. 215 (2003).

[14] Id.

April 11, 2025 by
April 2025 Blog Posts

Is Surrogacy Law Impacted by the Overturning of Roe v. Wade?

Kira Hackett

What is Surrogacy? Some couples are unable to have families on their own and need to go another route. Options for those couples include things such as adoption or surrogacy.  Surrogates are women who carry and deliver a child for a couple who want to become parents.[1] Surrogates are impregnated through In Vitro Fertilization (IVF), so they typically are not genetically related to the child.[2] They are impregnated using fertilized eggs that are typically related to the Intended Parents, although sometimes they will be impregnated using eggs or sperm from a donor.[3] The Intended Parents and the Surrogate are meticulously paired to make sure they will be a good fit and have the same values.[4] This helps ensure a smooth process where there are no surprises, and no one finds themselves in a situation that they are uncomfortable with.

Often, this journey is very happy and very exciting. One party is a woman who is helping a family grow and the other parties are going to benefit and be given the amazing gift of a new child in their family. The happiness that comes from Surrogacies is so heartwarming. What could possibly go wrong?

On June 24, 2022, the Supreme Court of the United States overturned a landmark case: Roe v. Wade.[5] This case protected the right to abortion, and its overturning means that the right to abortion has been left up to the states and their elected representatives.[6] This has big implications for the kind of care that women are potentially able to access if the Surrogate lives in one of those twenty states.

Why does this matter for Surrogates? One would think that the sole purpose of having a Surrogate is to bring a baby into the world, and therefore, there would be no need for access to abortions. However, just like a typical pregnancy, there may be times when termination is the necessary option. This is an option that both the Surrogate and the Intended Parents don’t want to use, but there are provisions for it within the contracts in case the worst happens.

There are many reasons why termination may be the necessary option for a Surrogate and the Intended Parents. Perhaps the pregnancy is now endangering the life of the Surrogate, the child’s life is in danger, or something else happened to the fetus.[8] Maybe the Surrogate is pregnant with triplets, and the Intended Parents have agreed to use selective reduction[9] as part of their contract to give each of the children their best chance at survival.[10] These kinds of situations are discussed during the contract negotiation, which happens before implantation of the fertilized eggs, because both the Intended Parents and the Surrogate need to be on the same page about what they are comfortable with, and their plan for any adverse issues that might arise during the Surrogacy journey.[11] These discussions are crucial as part of the matching and contract negotiation processes in order to ensure that the parties do not run into any issues during the actual pregnancy. The Intended Parents should be able to support the Surrogate in her needs during pregnancy and the Surrogate should be in agreement with what the Intended Parents want out of their journey. This is why no medical procedures happen before the contract has been signed by everyone, and the Surrogate has to talk with a lawyer before signing the contract.

What can Surrogates and Intended Parents do to ensure that they will not be impacted by the overturning of Roe v. Wade? Along with discussing what they would do in circumstances that may require or strongly indicate that termination is necessary, the Intended Parents and Surrogate need to formulate a plan if the Surrogate lives in a state where abortion access is banned.[12] If this is the case, the Surrogate and the Intended Parents need to have discussed the possibility of the need to travel to another state to secure what could be life-saving care.[13] This can be a pricey endeavor because there may be flight or rental car costs, potential medical costs, hotel, and meals. The parties can also have the embryos tested prior to implantation to try to ensure that there will be no genetic conditions that might lead to abortion access being necessary.[14]

What could happen if these implications are not kept in mind? Many states have penalties such as fines or even jail time for women who try to seek abortion care.[15] This could leave the agencies or even the Intended Parents open to liability for “aiding and abetting” the Surrogate in her accessing medical care.[16] This is a very scary prospect, considering that many women who are seeking care are in desperate need for the care and may not have any other option. It is safe to assume that none of the women who sign up for being a Surrogate plan for needing abortion care when they are carrying another person’s child.

The overturning of Roe v. Wade has changed a lot both in the country and in the area of Surrogacy law. Because of these changes, matches will need to be made very carefully, women will have to think even harder about their decision to become a Surrogate, and agencies will need to be very careful in their advising of Surrogates or Intended Parents depending on where the Surrogate may be living. Overall, there are extra steps to take and more things to think about when becoming a Surrogate in this post-Dobbs wo

[1] Yale Medicine, Surrogacy, https://www.yalemedicine.org/conditions/gestational-surrogacy (last visited Feb. 26, 2025).

[2] Id.

[3] Id.

[4] Id.; Southern Surrogacy, LLC, Top Ten things to think about with Surrogacy, now that Roe v. Wade is overturned, https://www.southernsurrogacy.com/top-ten-things-to-think-about-with-surrogacy-now-that-roe-vs-wade-is-overturned/ (last visited Feb. 26, 2025).

[5] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 231 (2022).

[6] Roe v. Wade, 410 U.S. 113, 164-5 (1973); Dobbs, 597 U.S. at 232.

[7] Emma Batha, Where do US states stand or abortion bans as new Trump era dawns?, Context (Nov. 8, 2023, 5:34 PM, updated Jan. 20, 2025), https://www.context.news/money-power-people/roe-v-wade-which-us-states-are-banning-abortion (the number of states banning or limiting abortion is accurate as of the review of this post in March 2025).

[8] David Dodge, The Surrogacy Industry Braces for a Post-Roe World, N.Y. Times (Aug. 24, 2022), https://www.nytimes.com/2022/08/23/well/family/surrogacy-pregnancy-roe-abortion.html.

[9] Multifetal Pregnancy Reduction, ACOG, https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2017/09/multifetal-pregnancy-reduction (last visited Mar. 30, 2025).

[10] Simple Surrogacy, Why Is Surrogacy Affected By Roe v. Wade?, (July 2, 2022), https://simplesurrogacy.com/news/why-is-surrogacy-affected-by-roe-v-wade/.

[11] Dodge, supra note 8.

[12] Southern Surrogacy, supra note 4.

[13] Id.

[14] Id.

[15] Batha, supra note 7.

[16] Dodge, supra note 9.

April 7, 2025 by
Introduction

JLPP Blog

This is the official blog for the St. Thomas Journal of Law and Public Policy (“JLPP”). We are a student-run journal that promotes modern legal though through an analysis of contemporary public policy. JLPP seeks to provide students with an opportunity to develop their critical research and writing skills and make meaningful contributions to the legal profession and American society – this blog is one way we do so.

 

Each post will be written JLPP member and pertain to a current public policy issue. Submissions will be posted each Monday and Friday throughout the academic year.

 

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April 4, 2025 by