July 10, 2022
July 11, 2022
Members of Congress
United States of America
Re: Abortion Facilities on Federal Land
Dear Honored Senators and Members of Congress,
On Friday, June 24, 2022, the Supreme Court of the United States handed down their decision in Dobbs v. Jackson Women’s Health, which reversed Roe v. Wade. The Court determined that there is not a right to an abortion under the Constitution of the United States. Thus, the decision on how and when to restrict or allow abortions is left to the American people through their elected representatives. Rather than respecting the rule of law as detailed in both our Constitution and in state law, many abortion radicals immediately began looking for ways to circumvent them and, by extension, the rights of pro-life citizens to protect life in law. The stated plans to force abortion into states where voters and their representatives have recognized the humanity of preborn children and passed laws to protect them represent both a coercive abuse of power and a proposed misuse of federal property. We the undersigned join together calling on members of Congress to prevent taxpayer funded properties from being perversely turned into abortion vendors.
Those committed to a radical agenda of abortion through all nine months, for any reason at all, and with taxpayer support will have to win support for that extremism in the ballot box rather than by creating a perverse kind of eminent domain. We live in unprecedented times in which the Biden Administration and its allies have as a top goal ending the lives of many citizens, and we call on Congress to prevent the misuse of taxpayer funded properties for that cruel and inhumane end.
This is not only a moral matter; it is likely without legal authority or even illegal in many instances.
Those seeking this route have cited the so-called “Enclave Clause” found in Article 1, Section 8, Clause 17 of the United States Constitution as authority for the federal government to provide services in states where those services are illegal. The text gives Congress the power:
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority 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.
This clause has been utilized to create Washington D.C., the federal capital that sits outside the jurisdiction of any state. This clause has also been construed to cover all structures necessary to carry on the business of the national government, such as post offices, locks, and dams. However, the language of the Clause requires that such land be ceded by the state and accepted by Congress or purchased with consent of the state legislature. Such lands in federal hands are subject to limitations.
When the Constitution’s Enclave Clause was adopted, abortion was illegal under pain of criminal punishment throughout the country. See Dobbs v. Jackson Women’s Health Org., 597 U.S. ____ (2022), slip. op. at 25 (describing the “unbroken tradition of prohibiting abortion on pain of criminal punishment [that] persisted from the earliest days of the common law until 1973”). Abortion clinics were not considered “needful Buildings” when the Enclave Clause was adopted. Utilizing federal land that was acquired from states for abortion thus violates original intent.
When land is ceded to the federal government, “the terms of the cession . . . determine the extent of the federal jurisdiction.” James v. Dravo Contracting Co., 302 U.S. 134, 142, 58 S. Ct. 208, 213, 82 L. Ed. 155 (1937). Federal jurisdiction over ceded land is therefore limited, as explained by the purpose of acquisition. When the state consents to sell land to the federal government, the Enclave Clause “contains no express stipulation that the consent of the state must be without reservations.” James v. Dravo Contracting Co., 302 U.S. 134, 148, 58 S. Ct. 208, 216, 82 L. Ed. 155 (1937). “It is now settled that the jurisdiction acquired from a state by the United States whether by consent to the purchase or by cession may be qualified in accordance with agreements reached by the respective governments.” James Stewart & Co. v. Sadrakula, 309 U.S. 94, 99, 60 S. Ct. 431, 433, 84 L. Ed. 596 (1940). When a state cedes jurisdiction to the United States, the state may impose conditions which are not inconsistent with the carrying out of the purpose of the acquisition. Ft. Leavenworth R. Co. v. Lowe, 114 U.S. 525, 528, 5 S. Ct. 995, 996, 29 L. Ed. 264 (1885).
“[I]t is not unusual for the United States to own within a state lands which are set apart and used for public purposes. Such ownership and use without more do not withdraw the lands from the jurisdiction of the state. The lands ‘remain part of her territory and within the operation of her laws, save that the latter cannot affect the title of the United States or embarrass it in using the lands or interfere with its right of disposal.’” James v. Dravo Contracting Co., 302 U.S. 134, 141–42, 58 S. Ct. 208, 212–13, 82 L. Ed. 155 (1937).
States certainly can enforce state law that it cedes to the federal government. In fact, Georgia conveyed land to the federal government for national parks but specifically reserved criminal jurisdiction to the state of Georgia, and the Supreme Court acknowledged that jurisdiction for crimes remained with the state. Bowen v. Johnston, 306 U.S. 19, 29, 59 S. Ct. 442, 447, 83 L. Ed. 455 (1939). When land is conveyed from a state to the federal government, state law remains applicable on that land until abrogated by the federal government. See Chicago, R.I. & P. Ry. Co. v. McGlinn, 114 U.S. 542, 546, 5 S. Ct. 1005, 1006, 29 L. Ed. 270 (1885); see Bowen v. Johnston, 306 U.S. 19, 23, 59 S. Ct. 442, 444, 83 L. Ed. 455 (1939). “This assures that no area however small will be left without a developed legal system for private rights.”James Stewart & Co. v. Sadrakula, 309 U.S. 94, 100, 60 S. Ct. 431, 434, 84 L. Ed. 596 (1940). In fact, in some instances a portion of state law will apply in federal land within the state, while another portion of the state law does not apply. This was the case in Collins v. Yosemite Park & Curry Co., where liquor sales tax was imposed in Yosemite while licensing requirements were unenforceable because, when conveying the land for a national park, the state failed to reserve the power to regulate licenses. 304 U.S. 518, 529, 58 S. Ct. 1009, 1014, 82 L. Ed. 1502 (1938).
If the federal government uses ceded land outside the scope of the conveyance, the state can re-claim jurisdiction of the land. In Palmer v. Barrett, the state ceded to the federal government land for the purposes of a naval yard and naval hospital, as long as the land was used for purposes consistent with the cession. 162 U.S. 399, 16 S. Ct. 837, 837, 40 L. Ed. 1015 (1896). Thereafter, the navy granted the city portions of the land for a market, and the Supreme Court determined that the portion of land leased to the city for a market should not be considered federal property because the state had restricted the land for naval purposes. Additionally, where “the government leases the property to a private person to carry on a non-governmental function, such property is subject to the legislative authority and control of the state equally with the property of private individuals.” People v. Vendome Serv., 171 Misc. 191, 195, 12 N.Y.S.2d 183, 187 (N.Y. Magis. Ct. 1939), aff’d, 173 Misc. 825, 19 N.Y.S.2d 195 (N.Y. Sp. Sess. 1940), aff’d, 284 N.Y. 742, 31 N.E.2d 508 (1940).
If the federal government utilizes federal property obtained under the Enclave Clause to facilitate abortions—whether to operate abortion clinics, provide physical space for physicians to prescribe the chemical abortion drug, or otherwise—it is likely violating the applicable state’s right to protect the health and welfare of women and the unborn. The leadership of each state should closely assess the underlying conveyance instrument and seriously consider challenging the federal government’s abortion-related activities on the property.
In light of this legal framework, please join the undersigned pro-life and pro-family leaders in opposing the misuse of federal properties from those who want to see the lives of more Americans ended by abortion.
Sincerely,
Kristan Hawkins
President
Students for Life Action/SFLA
Joined by Pro-Life and Pro-Family Leaders in Alphabetical Order:
Brett Attebery
President & CEO
Heroic Media
Bethany and Ryan Bomberger
Founders
The Radiance Foundation
Fr. Shenan Boquet
President
Human Life International
Brian Burch
President
CatholicVote
Larry Cirignano
DC Representative
Children First Foundation
Cynthia Collins
Founder
SpeakHope.net
Advisor to OperationOutcry.org
Cheryl Conrad
Co-Founder
Survivors of the Abortion Holocaust
Anne Schlafly Cori
Chairman
Eagle Forum
Marjorie Dannenfelser
President
SBA Pro-Life America
James C. Dobson, Ph.D.
Founder & President
Dr. James Dobson Family Institute
Connie Eller
Missouri Blacks for Life
Steven Ertelt
Editor
LifeNews.com
Catherine Glenn Foster, M.A., J.D.
President & CEO
Americans United for Life
Karen Garnett
President
National Prayer Luncheon
Fr. Terry Gensemer
Director
CEC For Life
Brian Gibson
Executive Director
Pro-Life Action Ministries
Mark Harrington
Founder & President
Created Equal
Donna Harrison M.D.
Chief Executive Officer
American Association of Pro-Life Obstetricians and Gynecologists
Abby Johnson
Founder & President
And Then There Were None
Joe Langfeld
Executive Director
Human Life Alliance
Autumn Leva
Senior Vice President
Family Policy Alliance
Rev. Pat Mahoney
Stanton Public Policy Center
Jeanne F. Mancini
President
March for Life Action
Monica Migliorino Miller, Ph.D.
Director
Citizens for a Pro-Life Society
Lauren Muzyka
President & CEO
Sidewalk Advocate
Penny Y. Nance
President & CEO
Concerned Women for America Legislative Action Committee
Brendan H. O’Connell
President
Life Matters TV and Media, Inc
Allan E Parker
President
The Justice Foundation
Pastor Joseph Parker
The American Family Association
Anne Reed
Senior Policy Advisor
Operation Rescue
Lila Rose
Founder & President
Live Action
Alan Sears
Founder
Alliance Defending Freedom
Rev. Paul T. Stallsworth
President
Taskforce of United Methodists on Abortion and Sexuality/Lifewatch
Brandi Swindell
Stanton Public Policy Center
Paul Teller
Executive Director
Advancing American Freedom
Vice President Mike Pence, Founder
Deborah Tilden
Co-Founder
S.M.A.R.T. Women’s Healthcare
Science Matters in Abortion Related Trauma