Diego Zambrano, Mariah Mastrodimos and Sergio Valente (Stanford Law School) have posted The Full Faith and Credit Clause and the Puzzle of Abortion Laws on SSRN.
The abstract reads:
Even before Dobbs overturned Roe v. Wade, states and legal observers were debating the constitutionality of another abortion-related law: Texas SB8. In mid-2021, Texas adopted a powerful new anti-abortion bill that barred anyone from performing abortions in the state of Texas starting at six weeks of pregnancy. But instead of empowering government officials to enforce its provisions, SB8 relied entirely on private lawsuits. The Texas abortion law triggered a discussion over the use of private enforcement actions to attack federal constitutional rights. Critics argued that Texas indirectly nullified the then-established constitutional right to abortion, that the Supreme Court surrendered traditional tools to review state legislation, and that SB8’s private enforcement regime was a procedural Frankenstein that violated due process norms. These discussions remain relevant even after the Supreme Court’s overturning of Roe because blue counties with elected prosecutors may refuse to enforce state criminal abortion laws, and states will continue to consider private enforcement schemes to regulate abortion, interstate travel, and other individual rights. Indeed, California recently adopted a gun control statute that is modeled on SB8’s private enforcement scheme.
Most importantly, for our purposes, some states like California have countered SB8 with legal provisions that seek to shield in-state residents from out-of-state claims and even prohibit the enforcement of SB8 awards. The question, then, is not only whether new private enforcement schemes can survive constitutional challenges but whether other states can respond by shielding their own residents.
In this essay we focus on the constitutionality of one legislative response to SB8 adopted by California—AB 1666, a law that seeks to shield in-state medical providers from SB8-style actions by prohibiting California courts from serving as a venue for SB8 claims and barring enforcement of Texas SB8 judgments. California’s main concern was that California doctors could face crippling liability under SB8 for prescribing abortion pills via telemedicine to patients in Texas. The Constitutional problem, however, is that AB1666’s provisions will face challenges under the Full Faith and Credit Clause of Article IV (the “FFC”). This raises a wealth of questions about conflict of laws, interstate relations, horizontal federalism, and the federal Constitution.
In a sense, the FFC is the unheralded workhorse of the original constitution, single-handedly maintaining a system of federalism in which states are obligated to recognize and enforce other states’ laws and judgments. Without it, states would be free to ignore each other’s’ laws, weakening any semblance of a national union and lending a hand to political polarization. Indeed, growing polarization will increase pressure on the FFC, as states seek ways to battle each other over topics like abortion, guns, and LGBTQ related laws.
Focusing specifically on the interaction of California’s AB1666, Texas SB8, and the FFC, we argue that California will probably be able to take advantage of exceptions to the FFC to defend its pro-choice laws. An analysis of recent doctrine demonstrates that California’s venue bar is likely constitutional. The judgment enforcement provision, however, will face trickier challenges and its constitutionality under the FFC is too close to call. The central question going forward is whether courts will interpret the FFC in a flexible and pragmatic manner—allowing for capacious exceptions—or will, by contrast, apply a tight leash on state legislative schemes.