State Abortion Clashes Portend Potential High Court Intervention

Three years after it left abortion rights to the states, a series of legal clashes threatens to force the US Supreme Court to decide where one state’s authority begins and another’s ends.

Conflicts among anti-abortion states, like Texas, and those dedicated to preserving reproductive rights, like New York, are fueling litigation that tests the scope of the US Constitution’s full faith and credit clause, which requires states to enforce other states’ civil judgments.

The justices could well have to make the final call, constitutional scholars say.

The most likely vehicle is a suit bubbling up from New York, where Texas Attorney General Ken Paxton (R) is trying to enforce a judgment against a doctor who sent abortion-inducing pills into his state.

Texas has been one of the most aggressive anti-abortion states, adopting a near-total ban with only narrow exceptions. Its current focus on pills isn’t surprising.

Medication abortion remains the most popular method for ending an early pregnancy, despite lawsuits challenging the US Food and Drug Administration’s approval of mifepristone and the Trump administration’s apparent desire to withdraw it.

The medication provided by doctors located in states that allow abortion is currently a “lifeline” for people in states that criminalized the procedure, said Marc Hearron, senior counsel at the Center for Reproductive Rights.

But its widespread availability has left states like Texas “powerless to enforce their own laws,” said Gabby McIntyre, legal counsel for Alliance Defending Freedom.

As states dig in their heels, conflicts “are only going to intensify,” she said.

Texas in Front

Paxton filed the first suit in the US against an out-of-state doctor who provided abortion pills and won a default judgment in Texas state court. He then petitioned a New York court to enforce it—a move widely viewed as an attack on state shield laws that protect individuals who provide abortion care that’s legal in their state.

Twenty-two states and the District of Columbia have such shield laws, and eight specify that a patient’s location doesn’t matter.

New York Attorney General Letitia James (D) intervened in the case to defend her state’s shield law and argue that the Texas judgment can’t be enforced there.

States on either side of the issue have “diametrically opposed perceptions of what law matters,” said Rachel Rebouché of the University of Texas at Austin Law School.

But interstate disputes aren’t new or unique to abortion, said Paul Schiff Berman, a professor at the George Washington University School of Law. Under the full faith and credit clause, New York must enforce the Texas judgment if the issuing court had jurisdiction, he said.

Decades of Supreme Court precedent has defined the contours of this clause, Berman said. The justices recently called it “exacting,” saying courts can’t refuse to enforce another state’s judgment because of conflicting public policies or disagreement with the outcome.

Shield laws thus can’t protect providers against the laws of another state if those providers purposefully reached out to a person there, including through telemedicine, Berman said.

Paxton, however, hasn’t clearly said how the full faith and credit clause applies here, and the Supreme Court has recognized an exception for punitive judgments, Rebouché said. The Texas abortion judgment includes a “civil penalty” for practicing medicine in the state without a license, even though the doctor never entered it.

The full faith and credit clause hasn’t been tested in the abortion context, and it’s not a “slam dunk” for either side, Rebouché said.

Wrongful Death

Former Texas solicitor general Jonathan Mitchell is using a different tactic to test shield laws: wrongful death suits.

Now in private practice, he filed two cases in July—one against a California clinician, and a second that includes a claim against an Austrian pill supplier.

In the first, the putative father alleged his partner’s mother and estranged husband ordered the pills and pressured her into taking them; the plaintiff woman in the second said her partner tricked her into ingesting the medication by dissolving it in tea.

Texas added “unborn children at every stage of gestation” to its list of persons whose death is compensable under the state’s wrongful death statute in 2003. That reshaped the claim, which traditionally didn’t cover fetuses, said Maya Manian, a professor at American University Washington College of Law.

Myriad issues could derail the suits.

Texas courts may not have personal jurisdiction over the defendants, and a California shield law could provide a defense for the clinician in that case.

California explicitly protects in-state caregivers who provide care that’s legal there regardless of the patient’s location, said Diana Kasden, legal and policy director at UCLA Law’s Center on Reproductive Health, Law, and Policy, which tracks such laws.

‘Bounty'-Style Legislation

Texas Gov. Greg Abbott (R) also recently signed into law legislation allowing virtually anyone in Texas to sue out-of-state entities for mailing or sending abortion-inducing medication into the state in order to end a pregnancy. Plaintiffs could win at least $100,000, but must donate 90% of it to charity if they weren’t related to the fetus.

The provision mimics a 2021 “bounty“-style law that allowed any Texas citizen to sue a provider who performed an abortion after a “heartbeat” was detected, Manian said.

The anti-trafficking statute differs in that it prohibits a defendant from using another state’s shield law as a defense. This move sets up further conflicts, as it’s unclear if the full faith and credit clause would enable a successful plaintiff to enforce the judgment in another state.

The law is scheduled to take effect in December.

Similar bills based on model legislation developed by Students for Life Action that impose liability on out-of-state providers are expected to make their way through other state legislatures in upcoming sessions, said Kristi Hamrick, Students for Life’s vice president of media & policy.

It “remains to be seen” whether suits involving abortion pills will be filed outside Texas, but more litigation is likely, Hearron said.