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My friend and I got into a debate whether a woman could step into a foreign consulate, take an abortion pill, then leave without fear of prosecution if abortion is illegal in the State where she resides. (More of a hypothetical question considering a possible scenario if Roe v. Wade is overturned.)

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    Women on Waves has a similar idea - ships are under the laws of their home country, when in international waters (12 miles out).
    – MSalters
    May 3, 2022 at 8:46
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    Another possible "loophole" in evading State laws is conduct an illegal activity on a Federal Indian reservation where said activity is legal. Although I believe Congress still has the power to change reservation laws.
    – RobertF
    May 3, 2022 at 19:44
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    In this hypothetical where it is illegal for her to take the pill, it probably would also be illegal for someone to give it to her outside the embassy to bring it inside and take it, or for the embassy itself to have the pills shipped in to give to her?
    – Davislor
    May 4, 2022 at 2:58
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    @Davislor The Vienna Conventions on Consular Relations state that a package in the hands of the consulates designated courier "shall be inviolable" and that "The consular bag shall be neither opened nor detained." What constitutes a consular bag can be defined pretty broadly (it can be multiple packages). It can be transported by a carrier to an entry port and passed directly to the official courier, but the carrier may not act as the courier in the receiving country. The courier "shall enjoy personal inviolability and shall not be liable to any form of arrest or detention". May 4, 2022 at 10:21
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    A woman can be persecuted for committing abortion regardless of the law. You probably mean "prosecuted". May 4, 2022 at 21:32

3 Answers 3

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The idea that a diplomatic mission is "foreign soil" is an exaggeration of the legal situation. Certain individuals (diplomats) are immune from arrest, so if the woman is the ambassador, she can't be arrested, period. The limits on legal actions w.r.t. entering a mission are spelled out in the Vienna Convention on Diplomatic Relations 1961, Art 21-25. See Art 22: "1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission". Otherwise, criminal actions carried out within the premise of a diplomatic mission can be prosecuted under the laws of the receiving jurisdiction just as though the action had taken place outside of the mission – being inside a mission does not confer immunity from prosecution.

As a general rule, when you enter an foreign embassy you do not have to go through passport formalities upon entering and exiting, and your single-entry visa is not "used up" by visiting your home country embassy (or any other embassy). That is because an embassy is not foreign soil.

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    Note: for Consulates the Vienna Convention Consular Relations of 1963 apples. See What is the legal basis of diplomatic immunity? - Law Stack Exchange May 3, 2022 at 8:55
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    The existing "Gentlemen's agreements" became, for the most part, the core of the 1961/3 Conventions. May 3, 2022 at 9:28
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    @JosephP. The two Vienna conventions (one each for diplomatic and consular relations) confer varying degrees of immunity on all diplomatic and consular staff. The ambassador is by no means the only officer to enjoy "full" diplomatic immunity; this is extended to the diplomatic staff, including deputy ambassadors and other lower-level diplomats whose titles may not include the word "ambassador." Consular officials and "technical" staff enjoy "official acts" immunity, so they can be prosecuted for crimes committed in a personal capacity.
    – phoog
    May 3, 2022 at 10:47
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    @RobertF: No, this would only happen when the US accepts that person as an ambassador. It's unlikely that the US would accept such appointments of random US citizens.
    – MSalters
    May 3, 2022 at 11:59
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    The main difference between "foreign soil" and "inviolable" would be that if I commit what is a crime according to US law inside a diplomatic mission, first the ambassador could allow US police to make an arrest if they wish so, and second it would legally be a crime that happened in the USA, so I could lose protection as soon as they leave the embassy.
    – gnasher729
    May 3, 2022 at 16:03
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Are foreign consulates located in the United States considered foreign territory when it comes to abortion laws?

No, a consular premises is not considered foreign territory (for any law).


The main term used in the Diplomatic/Consular conventions is not immunity but inviolable (both for the person and premises).

For a Consulate (where the Vienna Convention Consular Relations (CCR), 1963 applies), that part of the consular premises which is used exclusively for the purpose of the work of the consular post is 'inviolable'. (Article 31)

So a visitor could be arrested in any room not covered in Article 5 (Consular functions), just as such rooms could, in theory, be searched through by the host country authorities.

This does not apply to an Embassy (where the Vienna Convention Diplomatic Relations (CDR), 1961 applies). The whole premises of an Embassy is 'inviolable' (Article 22). It is also not considered a foreign territory.

Both conventions contain no special provisions about visitors to a Consulate or an Embassy premises. It is therefore up to the host country to decide how to deal with any violations of their law commited inside such premises.

See also: What is the legal basis of diplomatic immunity? - Law Stack Exchange

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You don’t specify what jurisdiction this is in or what this hypothetical law would say. Generally, those countries that restrict drugs such as misoprostol make it illegal for someone to distribute or receive it without a prescription, not merely to swallow it. If a woman could obtain the pill in the first place without being caught, finding a safe place to take it is probably not the problem.

It is plausible that an embassy might get away with importing the pills (through its diplomatic pouch that the police are not allowed to search, to the premises they are not allowed to enter), and giving it out through its own staff, who have diplomatic immunity—if they were discreet about it. It would be very hard to prove a case in court without the host country revealing that it violated a treaty itself. If the woman who uses it has diplomatic immunity, she cannot be prosecuted either, only sent home, even if the hosts did find out and actually care what foreigners do inside their embassy.

since you ask about consulates: the privileges of consulates are weaker than those of embassies. Under section II, article 35 of the Geneva Convention on Consular Relations, “if the competent authorities of the receiving State have serious reason to believe that the bag contains something other than [official correspondence and documents or articles intended exclusively for official use], they may request that the bag be opened in their presence by an authorized representative of the sending State,” and if the request is refused, the bag must be returned undelivered. This could be used to prevent the delivery of drugs and medical equipment to a consulate. Also, the police may search a consulate, except for rooms used “exclusively for the purpose of the work of the consular post.” (Section I, Article 31, part 2) Finally, consular officials do not have as total a diplomatic immunity as ambassadors or heads of state, and may be arrested for “grave crimes.” (Section II, article 41). (Thanks to Mark Johnson for the reference.) They also have a much narrower exemption from civil liability, which some jurisdictions use as a means to shut down abortion providers. To answer the question you asked literally, consulates are not considered the territory of the “sending nation.”

There are reasons, however, that embassies don’t sell heroin over the counter. If the host country thinks that a diplomatic mission is abusing its privileges to make trouble, they can respond in several ways, from having their own ambassador talk to the consul’s boss and ask them to stop, to expelling the ambassador and asking the country to send someone else, to shutting down the consulate entirely. The police might also investigate people who go in for no apparent reason.

In the real world, though, it never reaches that point in countries that ban abortion, because diplomats mind their own business.

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    The selling of heroin would be considered a grave crime and a consulate offical can be arrested or detained for such crimes (Article 41, Vienna Convention Consular Relations (CCR), 1963). Any room inside a Consulate, where heroin was sold, could be raided by the host country since that room is not being used exclusively for the purpose of the work of the consular post (Article 31 CCR). The rules for a Consulate and Embassy (and their staff) are different. It's like appling the car traffic rules to a ship - they are different and should not be mixed. May 4, 2022 at 17:14
  • @MarkJohnson For now, I’ll remove consulate but leave embassy, Thank you for the link. Are there other errors I should correct?
    – Davislor
    May 4, 2022 at 21:12
  • @MarkJohnson if the sending country claims that a room is being used only for consular business and the receiving country believes that heroin is being sold there, a factual dispute exists. The receiving country can't just search the room based on the disputed claim; if they could, inviolability would be meaningless.
    – phoog
    May 4, 2022 at 21:27
  • @phoog Possible ways out of the conundrum: A. an informant tells them heroin is being sold there, B. if the consulate were to happen to catch on fire, the consent of the sending nation to enter the premises could be “assumed,” or C: the receiving state could declare the consular official persona non grata and tell the other country to send someone else who’ll cut that out, or even shut down the consulate and send everyone home, without giving a reason.
    – Davislor
    May 4, 2022 at 21:31
  • @phoog In the case of heroin, D: search/test people leaving the consulate. E: or if junkies are all shooting up inside the premises, someone will OD. Although that was a silly reductio for the original example, and I can’t think of any country that would stop women on the street and make them take a blood test for misoprostol.
    – Davislor
    May 4, 2022 at 21:39

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