Getting an abortion inside a tent in Yosemite may sound crazy. But with the collapse of Roe v. Wade, we’re entering into unprecedented territory—and the idea of setting up emergency clinics on land where the federal government has legal authority could be a real, if short-term, solution. And given the profits that polluters already wring from our federal lands, it’s an idea worth considering.
In recent days, left-wing leaders like Rep. Alexandria Ocasio-Cortez and Rep. Cori Bush have called on the Biden administration to figure out ways to use federal land to open up abortion access in red states. Sen Elizabeth Warren elaborated on this idea on Monday, calling for the federal government to set up Planned Parenthood outposts in national parks.
“They could put up tents, have trained personnel—and be there to help people who need it,” Warren told a Washington Post reporter. “It’s time to declare a medical emergency.”
These politicians aren’t dreaming up this idea out of whole cloth—lawyers say it could be an idea worth exploring. “The federal government could assert its jurisdiction over federal land within antiabortion states to blunt the effects of state bans, opening up the possibility of abortion clinics legally operating within states that ban abortion,” three legal scholars from the University of Pittsburgh wrote in a draft copy of a legal article scheduled to be published in the Columbia Law Review this year.
“My personal view right now is that everything that is conceivable doesn’t need to be put into practice, but thought through really carefully,” Shoshanna Ehrlich, a feminist legal scholar who teaches at UMass Boston, told Earther. “This is a desperate time. Women and other pregnant persons are going to suffer tremendously.”
While “federal lands” may conjure up vast expanses of untouched Western wilderness, technically, they’re any land owned by the federal government, which comprises just under 30% of the entire amount of land in the U.S. There’s federally-owned land in every state in the country, ranging from big chunks of forest, deserts, and fields in soon-to-be-abortion-unfriendly places like Idaho and Alaska, to national parks, trails, historic sites, and monuments. Many of them are quite close to or in towns and cities, making them easily accessible to large swaths of the population. Proponents say that there could be a wide variety of options for using these federal lands to provide abortion services that would fall under the purview of the federal government, rather than the abortion-unfriendly states they may be in.
And fortunately, early-term abortions—which comprise the overwhelming majority of abortions in the U.S.—are very simple medical procedures that don’t require a huge, permanent medical facility. There are already mobile abortion clinics provided by organizations like Just the Pill, which is planning on deploying a fleet of bulletproof trucks to distribute medication and perform early surgical procedures. Facilities like these could be easily dispatched to federal lands like historic sites, trailheads, and other high-trafficked locations.
During the pandemic, many providers honed their services, including developing ultrasound-less diagnosis, that make simple procedures easy and safe. Several states allow nurses to supervise these procedures rather than requiring doctors to be present; this could go a long way in federal lands located in rural states experiencing doctor shortages. Even setting up a station in a park welcome center to distribute abortion medication would go a long way to increase access.
There are some serious hurdles to be considered. A big one is the Hyde Amendment, a policy that for decades has prevented any federal funds from going toward abortion services. Organizations directly funded by the federal government that give healthcare services on federal land, like the Veterans Health Administration or the few medical clinics located on national parkland, can’t provide abortions; any existing federal government health facilities on federal land may have their hands tied by this policy.
Democrats have long proposed killing the Hyde Amendment, and Biden campaigned on doing away with it, but have had no luck thus far. Under the Hyde Amendment, private providers of abortions like Planned Parenthood are still able to get federal grants for the myriad other health services they provide, but are not allowed to use any federal funds on abortions themselves. Giving Planned Parenthood and other private healthcare providers leases to operate on federal lands may be a way around this federal funding obstacle.
Then there’s the legal implications of providing a service that is no longer legal in a state on federal land that is situated within this state. A little-known provision known as the Assimilative Crimes Act is a framework for incorporating the law of the state in which a federal property is located onto actions done on those federal lands. This, said Leah Litman, a law professor at the University of Michigan law school, creates problems beyond the Biden administration—especially since the five-year statute of limitations for this Act lasts beyond when Biden may be staying in office.
“The concern is that in states that prohibit abortion, that could expose providers to criminal liability is there’s a change in administration,” said Litman. “Abortion clinics on federal land are technically violating the Assimilative Crimes Act, but a Biden administration wouldn’t prosecute them. A subsequent Republican administration might.”
Other scholars point out that there’s a complicated rats-nest of possible outcomes and arguments that could protect providers from being prosecuted under this Act—especially given how little the Assimilative Crimes Act has been addressed in legal scholarship. The University of Pittsburgh scholars lay out a range of scenarios in their draft arguing for abortion care on federal land under the Assimilative Crimes Act, writing it “would raise unexplored interjurisdictional legal issues that have previously been unaddressed in the long history of abortion conflict.”
Finally, there’s the looming threat from states like Missouri, which is considering a bill that would criminalize out-of-state providers who help residents get an abortion. Experts say that the scope and feasibility of laws like these are totally unknown given the new expanse of complications opened up by the loss of Roe. It’s almost certain that there’s going to be a lot of lawsuits between states over the rights of individuals seeking abortions elsewhere. If the federal government chooses to wade in and use federal lands, providers and government employees could find themselves caught in some of these complicated legal crosshairs.
“A lot of this raises questions, like, what is the nature of the federalist system? Who is in charge of whom?” Erlich said. “Federal law certainly trumps state law, but it’s a very complicated relationship. I think we’re going to see more and more of states trying to extend their reach into abortion sanctuary states, but no one really knows, no one is saying there’s not a risk right now until court rulings—but no one really knows. So what are people in those states going to do?”
In true Biden fashion, the administration has been using these valid, if theoretical, legal concerns to completely dismiss what is a far-out but potentially workable idea. A White House spokesperson said this week that the administration would not be considering the use of federal lands to provide services, saying it could “put women and providers at risk.” Vice President Kamala Harris, meanwhile, dodged the federal lands question during an interview with CNN, encouraging people to instead—what else—vote in the midterms.
The management and profit being made off of federal natural resources show now that there is a model for private entities doing business on public lands. The Bureau of Land Management (BLM) manages thousands of permits for private ranchers to graze livestock on federally-owned land. The Forest Service and BLM together also allow logging companies to buy trees from federal forests.
And perhaps the biggest beneficiary of public resources is fossil fuel companies, which generate billions of dollars of profit each year with relatively skimpy royalty fees going to taxpayers, from federal onshore and offshore oil, gas, and coal leases. These federal leases, a study earlier this year found, are responsible for nearly 25% of U.S. emissions. This week, the Biden administration released more than 140,000 acres of federal land for lease to oil and gas companies—the first onshore lease sale of its administration, following the slow unraveling of the president’s campaign promise to no longer have drilling on federal lands.
So the administration will renege on a campaign promise to keep polluters from profiting from public lands, but won’t even explore the possibility of using those same lands to provide healthcare in desperate times. If the administration truly cared about public health, they would begin to think outside the box on both climate and abortion. With an ultra-conservative Supreme Court created by polluting interests attacking basic personal rights and the government’s ability to regulate pollution, it’s well past time to get creative with solutions.
“Where [abortions on federal land] fits on the scale of feasibility, I think it’s complicated, but I think a lot is complicated,” Erlich said. “I know some of the [Biden administration] folks have said this is dangerous, this is crazy—I don’t appreciate that, in a way. I think that may be where the analysis ends up, but it behooves them to do the analysis, to pull in the experts, to really look at it. Some people are saying, throw everything out there and see what sticks. That doesn’t sound like a thoughtful approach, but that is where we are. Just put everything out there—and by sticking, meaning figuring out, what is the hierarchy of risks?”