Intrastate Preemption: A New Frontier in Burdening Choice

The use of intrastate preemption by states to undo local ordinances enacted to protect reproductive health and access to reproductive services has increased in recent years. State-local conflict is a long-standing aspect of the United States government system; however, these conflicts have become increasingly politicized. Explicit intrastate preemption of localities’ protective action is a new strategy states are using to make accessing reproductive care more difficult and adding burdens to the right to choose. This article explores the intrastate preemption trend, possible litigation under traditional preemption jurisprudence, and reproductive specific litigation strategies to combat this form of anti-choice legislation. While litigation against intrastate preemption may be more successful in the reproductive health space as compared to non-public health related local measures experiencing state preemption, this article concludes that advocacy against intrastate preemption legislation is the best strategy to allow localities to protect access.