Are foreign consulates located in the United States considered foreign territory when it comes to abortion laws?

Question

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.)

Answer 1

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.

Answer 2

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).

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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

Answer 3

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.