Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Welcome
Go
Free Newsletter Sign Up

California May Test Constitution by Ignoring Abortion Orders

April 6, 2022, 9:00 AM

California lawmakers are getting set to pick a fight with Texas or any other state that lets private citizens sue those who help women get abortions—just in case any future litigation crosses state lines.

Debates are happening in statehouses around the country as politicians try to get new laws on the books before the U.S. Supreme Court rules in a Mississippi case that could overturn Roe v. Wade, the 1973 decision that established a constitutional right to end a pregnancy before viability.

The latest of those votes came Tuesday, when Oklahoma lawmakers gave final legislative approval to a bill that would make performing an abortion a felony punishable by up to 10 years in prison.

Californians are preparing for the possibility of groups that pay for bus fare or give out-of-state abortion-seekers a place to stay being affected by laws in Texas and Idaho that permit anyone to sue those suspected of “aiding and abetting” an abortion.

Members of the Assembly Health Committee on Tuesday voted 8 to 1 to approve a bill (A.B. 1666) seeking to shut down the possibility of litigation in California—based on lawsuits from other states—against those who help women get legal abortions. The measure now heads to the Assembly Appropriations Committee and if approved, then on to the full Assembly for consideration.

“With abortion left up to the states, it’s up to a state like California to stand up for the right to choose,” said Assemblymember Rebecca Bauer-Kahan (D), the bill’s author.

“California has no obligation to enforce civil penalties that violate the abortion rights protected in our own constitution,” Bauer-Kahan told the committee.

Abortion Costs Have Increased as U.S. States Add Restrictions

If the California proposal becomes law, it could invite a challenge over the U.S. Constitution’s “full faith and credit” clause, which requires states to respect each others’ laws, records, and judicial proceedings.

“There have been other cases that have drawn this thin line between recognition and enforcement. So that gives wiggle room to California,” said Susan Frelich Appleton, a law professor at Washington University in St. Louis.

If California lawmakers declare that out-of-state abortion penalties stop at the state line, they’ll be on a losing path, predicted Susan S. Arnall, Right to Life League director of outreach.

“We contend California must respect any final monetary judgments issued by a competent judicial authority in Texas and must apply that judgment against people who may flee to California to evade the Texas judgment,” she said.

Legal Hair-Splitting


Backers of California’s potential pre-emptive strike can point to instances when federal judges said it’s OK to ignore another state’s law.

One example: The U.S. Court of Appeals for the Fifth Circuit held in 2011 that a New York adoption order didn’t have to be enforced by Louisiana, which refused to issue a birth certificate listing two unmarried adoptive fathers.

The registrar’s decision was a matter of state-controlled enforcement, separate from recognition of New York adoption law, the appeals court held.

Flip side: In a case involving California and Nevada, the U.S. Supreme Court held that the “full faith and credit” clause precludes states from adopting a “policy of hostility” toward the public acts of another state.

“As a matter of decided U.S. Constitutional law, California simply does not have the legal authority to ignore or reject the judgments of another state’s courts including, but not limited to, those involving abortion,” Dean Broyles, the National Center for Law & Policy president and chief counsel, said in a letter to the California Assembly Judiciary Committee.

DOMA Echo?

A generation ago, when states disagreed with each other’s treatment of same-sex marriages, Congress responded with the Defense of Marriage Act (Public Law 104–199).

Among other things, that law explicitly waived the “full faith and credit” clause for the narrow purpose of same-sex unions, said Cornell Clayton, Washington State University political science professor.

“In general, the Supreme Court has let states ignore the law of other states but has required states to honor the civil judgments of other states,” said Clayton, who’s also director of the Thomas Foley Institute of Public Policy and Public Service.

To contact the reporter on this story: Joyce E. Cutler in San Francisco at jcutler@bloomberglaw.com

To contact the editors responsible for this story: Katherine Rizzo at krizzo@bgov.com; Seth Stern at sstern@bloomberglaw.com; Tina May at tmay@bloomberglaw.com