On June 24, 2022, the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women's Health Organization, holding that the U.S. Constitution does not confer a right to an abortion, thereby overruling the Court's prior decisions in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.¹ In the wake of Dobbs, a number of states now regulate pre-viability abortions, either through laws that predated the overturning of Roe—so-called "trigger laws"—or through new laws enacted after Dobbs.²

Some stakeholders have suggested that federal agencies (such as the Department of Defense and the Department of Veterans Affairs) or third parties could use federal lands to increase abortion access in states with such abortion restrictions.³ Others, including White House Press Secretary Karine Jean-Pierre, have questioned whether such a use of federal property could lead to unintended consequences.⁴

This CRS report first describes four categories of state and federal jurisdiction over federal property: exclusive, concurrent, partial, and proprietorial jurisdiction. It then briefly discusses federal preemption of state laws and the Assimilative Crimes Act, 18 U.S.C. § 13. The report concludes by assessing states' ability to enforce laws restricting or prohibiting abortion on various types of federal property.

Legal Background

Interplay of State and Federal Jurisdiction

Whether a state may enforce its own laws on federal property—such as a law prohibiting abortions in all or certain circumstances—depends in part on whether the state has jurisdiction over that property. As an initial matter, ownership and jurisdiction are not synonymous; the fact that land or a building is controlled by the federal government and considered "federal property" does not necessarily mean that the state lacks jurisdiction over it. The federal government may acquire property within a state's geographical limits or may have retained property after a state's admission to the Union. That acquisition or retention, however, does not automatically create federal jurisdiction, nor does it necessarily withdraw the property from that state's jurisdiction.⁵

The United States is not required to obtain exclusive jurisdiction—jurisdiction that precludes state jurisdiction—over land it acquires.⁶ In certain circumstances, a state may voluntarily transfer or cede all or part of its jurisdiction to the United States, but the United States must formally accept such jurisdiction to complete that transfer.⁷ Federal and state jurisdiction can overlap, with each government able to enforce its respective laws; in these cases, the property is said to be under the concurrent jurisdiction of the federal and state governments.⁸

The status of state jurisdiction over a specific federal property depends on the particular circumstances of how the federal government obtained that property and any subsequent agreements with the state. The United States may obtain exclusive or concurrent jurisdiction over federal lands in a state in one of three ways:⁹

• 1. a state statute consenting to the purchase of land by the United States for the purposes enumerated in the Constitution's Enclave Clause;
• 2. a state cession statute; and
• 3. a reservation of federal jurisdiction upon the admission of a state into the Union.¹⁰

In 1964, the General Services Administration compiled a comprehensive inventory of the jurisdictional status of federal areas within the states as of June 30, 1962 (the "1962 Inventory"),¹¹ but to CRS's knowledge, no subsequent inventory of this type has been prepared. Thus, determining the precise jurisdictional status of specific federal property, especially if acquired after 1962, requires researching the circumstances of each individual acquisition and any subsequent transfers of jurisdiction to or from the federal government.

The 1962 Inventory divides lands into several categories of federal property interest in order of decreasing federal authority: Exclusive, Concurrent, Partial, Proprietorial, and Unknown. In the first category, which includes federal enclaves, state law generally does not apply.¹² Article I, Section 8, clause 17 of the U.S. Constitution—the Enclave Clause—authorizes Congress to "exercise exclusive Legislation . . . over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings."¹³ The Supreme Court has construed "exclusive Legislation" to be consistent with exclusive jurisdiction.¹⁴

In the remaining categories, state laws could potentially be enforced on federal property. Concurrent jurisdiction means that both state and federal laws may be executed. In partial jurisdiction areas, the state has reserved some subset of its jurisdictional powers, whether exclusive of federal jurisdiction or concurrent with it.¹⁵ For example, a state may reserve the right to tax private property located on federal lands. Proprietorial jurisdiction means that, although the federal government has obtained some right or title to the property, the area is for most purposes treated the same as other nonfederal land within the state.¹⁶ In each of these areas, depending on what rights a state has reserved, the state may be able to enforce its abortion laws with respect to conduct that takes place on the property. Table 1 summarizes the degree of control the federal and state governments exercise under each type of jurisdiction.

Figure 1 shows the acreage of federal property by state and type as listed in the 1962 Inventory. The fraction of federal lands over which the federal government has exclusive jurisdiction (represented by dark red) is so small that it is difficult to see in most states. Arizona and Wyoming have the largest total areas by acreage under exclusive jurisdiction, with approximately 735,000 and 2.1 million acres, respectively.

Figure 1. Jurisdictional Status of Federal Lands in 1962

Source: CRS, based on 1962 Inventory, supra note 11. Notes: Both Alaska (AK) and Arizona (AZ) have total areas of federal lands that would extend past the 50 million acre mark on the y-axis. In the interest of space and readability, the y-axis was artificially capped.

Table A-1, included as an appendix to this report, shows the total acres of land under exclusive federal jurisdiction by state as contained in the 1962 Inventory. Several states—Alaska, Hawaii, and Nevada in particular—have few or no federal enclaves.

The Assimilative Crimes Act

Even in areas where the state lacks jurisdiction to enforce state law restrictions, it is conceivable that federal law enforcement could nonetheless choose to enforce those restrictions as a matter of federal law. In areas under the federal government's exclusive or concurrent jurisdiction and in federal enclaves, the Assimilative Crimes Act adopts as federal law any state criminal laws governing acts "not made punishable by any enactment of Congress."¹⁷ Prosecutions under the Assimilative Crimes Act do not enforce state law; instead, they enforce federal law by using state law "to fill in gaps" where Congress has not "define[d] the missing offenses."¹⁸ Assimilation does not occur, however, when a state's criminal law has been "displaced by specific laws enacted by Congress,"¹⁹ or when Congress has "covered the field with uniform federal legislation."²⁰ This could potentially include situations where a state's law prohibiting a criminal act is preempted pursuant to the Constitution's Supremacy Clause by federal law or regulation authorizing that act.²¹

The Supremacy Clause and Federal Preemption

Aside from the issue of where states may enforce their laws, it also matters what laws may be enforced. Under the Constitution's Supremacy Clause, the "Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land."²² The Supreme Court has interpreted the Supremacy Clause to invalidate state laws that "interfere with, or are contrary to," federal law²³—a doctrine known as federal preemption. The Court has recognized two types of federal preemption of state laws:²⁴

• Express preemption, when a federal law contains explicit language overriding or superseding state law;²⁵ and
• Implied preemption, when a federal law does not explicitly override state law, but "the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress 'left no room' for supplemental state regulation."²⁶ Implied preemption takes two forms:
• Field preemption, where the field is one in which "the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject;"²⁷ and
• Conflict preemption, under which "state law is nullified to the extent that it actually conflicts with federal law,"²⁸ as when "compliance with both federal and state regulations is a physical impossibility"²⁹ or state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives" of federal law.³⁰

Both federal statutes and federal regulations may preempt state laws.³¹

Potential Enforcement of State Abortion Laws on Federal Property

Assuming the federal government were to provide abortion services either directly or through a third party on its property, state laws restricting or prohibiting abortion services could apply in some instances. This jurisdictional application could result in the arrest, prosecution, or civil liability of some categories of persons who perform, undergo, or provide assistance to those undergoing abortions. This section examines how state laws—or state laws assimilated as federal law—might apply to such individuals.

Criminal Prosecution or Civil Liability

Whether an individual might face criminal prosecution or civil liability for abortions performed in violation of state law appears to depend primarily on three factors: (1) the degree of jurisdiction exercised by the state over the federal property; (2) in the case of a providing clinician, whether the individual concerned is a federal employee acting within the scope of his or her employment; and (3) whether any federal laws preempt the state law.

This section examines each type of federal jurisdiction in turn. Table 2 summarizes this information, and Figure 2 illustrates how each of the factors noted above may affect whether state laws are enforceable on federal property.

Exclusive Jurisdiction

In federal property under exclusive federal jurisdiction, state criminal and civil laws generally would not apply, other than state criminal laws incorporated into federal law under the Assimilative Crimes Act.³² It is unclear the extent to which a state law criminalizing abortion might be assimilated into federal law. Although federal law currently criminalizes only partial-birth abortions,³³ federal laws regulating how agencies may provide abortion services, including appropriations restrictions, could arguably constitute an implicit preemption of state criminal laws, at least to the extent that federal law allows some abortions.³⁴ If state abortion laws were assimilated into federal law, the Attorney General and U.S. Attorneys would likely have discretion not to prosecute violations of those laws.³⁵ In a June 24, 2022, statement, Attorney General Merrick Garland opined that federal employees performing abortions in the scope of their employment would not violate the Assimilative Crimes Act.³⁶ The Department of Justice's Office of Legal Counsel agreed and expanded on that opinion in an August 12, 2022, memorandum opinion.³⁷

It is possible, however, that individuals who obtain or assist others in obtaining an abortion on federal property under exclusive federal jurisdiction could be prosecuted or sued for associated conduct that takes place outside the federal property. For example, the Texas Heartbeat Act (S.B. 8) authorizes civil proceedings and a private right of action against someone who knowingly engages in conduct within the state that aids or abets the performance or inducement of a prohibited abortion.³⁸ To the extent that such conduct takes place outside federal property under exclusive federal jurisdiction, that conduct may still be subject to state law.

Concurrent Jurisdiction

In federal property subject to concurrent federal and state jurisdiction, states would likely be able to enforce their criminal and civil laws regulating abortions, with several possible exceptions. First, federal employees acting within the scope of their employment are generally immune from state criminal and civil liability, unless such immunity has been waived.³⁹ Accordingly, federally employed clinicians providing abortion services or other federal employees assisting in those services likely would not be subject to state abortion restrictions.⁴⁰ Nonfederal clinicians, patients, and individuals who provide assistance to patients may be subject to state prosecution or civil liability for abortions performed on federal property under concurrent jurisdiction, as well as for conduct outside the federal property, as discussed above. It is possible, however, that the Supremacy Clause could shield patients who undergo abortions authorized by federal law from state liability.⁴¹

Because the federal government also has jurisdiction over facilities subject to concurrent jurisdiction, the Assimilative Crimes Act could potentially authorize federal prosecution for violations of assimilated state law, as described above.

Partial Jurisdiction

For federal property under partial jurisdiction, potential liability would depend on the nature of the jurisdiction retained by the state. For example, a state may retain criminal, but not civil, jurisdiction over a federal property. In such a case, the factors discussed above for federal property under concurrent jurisdiction would apply to the state's criminal laws, while the factors relevant to exclusive federal jurisdiction would likely apply to the state's civil laws. Determining the extent of a state's jurisdiction would require a case-by-case analysis of the rights retained by the state.

Proprietorial Jurisdiction

For federal property under proprietorial jurisdiction, states likely would be able to enforce their criminal and civil laws regulating abortions, subject to the same limitations discussed with respect to concurrent jurisdiction, such as federal employee immunity and state law preemption.⁴²

Arrest

The above sections addressed whether a state could prosecute or sue individuals for violations of its criminal and civil laws on federal property. A related but distinct question is whether a state has the authority to conduct arrests on federal property. As a matter of law, whether a state has arrest authority on a federal property generally corresponds with the applicability of its criminal laws, depending on the nature of federal and state jurisdiction at the facility.⁴³ In some cases, however, state law enforcement officers may be able to arrest an individual on federal property when exercising a warrant, even when the facility is under exclusive federal jurisdiction, if the state has reserved the right to do so.⁴⁴

Figure 2. Potential Enforcement of State Law Depending on jurisdictional status, whether an actor is a federal employee and whether federal preemption applies

Source: CRS. Notes: "Federal employee" means a federal employee acting within the scope of federal employment. "Potential federal enforcement" refers to potential incorporation of state law into federal law through the Assimilative Crimes Act, 18 U.S.C. § 13(a).

Conclusion

Abortions performed on federal property might be subject to state laws regulating abortions. The applicability of state laws to such abortions would depend on multiple factors, including the nature of the state's jurisdiction over the specific federal property and whether the abortion was performed by a federal employee. Ultimately, whether a state could prosecute or pursue civil actions for abortions performed on federal property would require a fact-specific, case-by-case analysis.

Appendix.