The Abortifacient Fight Starts Its Interstate Journey

Those familiar with ante-bellum American history also know that much of the fight over slavery was expressed in terms of state’s rights. We have never really resolved questions of what matters are subject to national regulation and where state decisions should prevail. This most recently came into play with the U.S. Supreme Court’s decision on abortion in Dobbs v. Jackson Women’s Health Organization 597 U.S. 215 (2022) which held that states are the proper place to decide what limits should prevail over termination of pregnancies.

Shortly after the Dobbs case was issued, Texas revised its abortion statute to make impose civil and criminal penalties to “knowingly induce an abortion.”  Section 170A.002. If a physician induces an abortion that results in terminating a pregnancy which is not protected by Texas law, the physician commits a first degree felony and is liable for a civil penalty of $100,000 per occurrence plus attorneys fees and costs. Sections 170A.004 & .005.

The rise of telemedicine has made this a challenging subject. Following the enactment of the Texas law, a physician in New York was contacted by a person in Dallas, TX seeking a prescribed abortifacient. The prescription was written and the pregnancy was terminated. Texas attorney general Kenneth Paxton filed a civil proceeding in Texas and secured a default judgment against the New York physician when she did not defend the Texas lawsuit. Paxton then filed a pleading in Ulster County NY seeking to enforce the judgment in New York under Article IV. Section 1 of the United States Constitution. That is the “Full Faith and Credit Law” declaring that

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

In 2023 New York state adopted as its law Section 837-w. It authorizes state and local officials to refuse entry of foreign (i.e., out of state) judgments or orders that “aim to impose civil or criminal liability or professional sanctions on a person or entity for any legally protected health activity.” New York is one of eight states with such laws.

Attorney General Paxton had asked New York to render the physician to Texas for prosecution. When New York refused, he came back with the civil judgment for $113,000 and filed for it to be recorded as a public judicial proceeding of Texas in the New York judgment docket. Yesterday, the clerk in Ulster County NY where the prescribing physician resides refused to record the judgment on the judicial docket premising his decision on New York’s executive law Section 837-w. We should also note that the patient who terminated the pregnancy was a minor at the time she requested the abortifacient.

My research is scant but it seems that the U.S. Supreme Court has not opined on whether Congress can limit full faith and credit. Congress has expressly confirmed that child custody and support orders are to be freely recorded and enforced in the Parent Kidnapping Prevention Act of 1990 and a similar law related to child support adopted in 1994. 28 U.S.C. 1738 A & B.  Congress tried to do the same with its Defense of Marriage Act in 1996 which would have held that states could refuse recognition of same sex marriages. That law was struck down by the Supreme Court in U.S. v. Windsor, 570 U.S. 744 (2013) in a 5-4 decision which is itself a strange brew of constitutional interpretation. The walkaway is that states shouldn’t get to decide what marriages they approve of based on the sexual orientation of the spouses.

This Texas judgment against the New York physician seems to have all the same hallmarks. Registration of the Texas judgment does not prevent the New York physician from challenging it on subject matter or in personal jurisdiction. The issue here is one of public policy and its connection to full, faith and credit. The leading cases in this arena descend from the gaming industry, Queen Anne, in 1710 said you couldn’t sue on gaming debts as a matter of public policy.  9-Anne-ch14.pdf.  The other curious distinction seems to be that judgments from foreign states are enforceable but their laws may not be. So here we have a $113,000 foreign judgment based on a foreign statute in conflict with New York’s tolerance for abortion.

Then we have yet another party to add to the mix. Someone, somewhere compounded the abortifacient and made it available to the minor child in Texas. In 2019, the FDA approved a generic version of mifepristone, and later began allowing the drug to be prescribed through telehealth, dispensed at retail pharmacies and sent through the mail. In 2022 a group of physicians sued to reverse the FDA approval. The Supreme Court ruled that they lacked standing to make such a challenge. FDA v. Alliance for Hippocratic Medicine 602 U.S. — (2024).

This is a hot issue in Texas where the legislature may be out ahead of public opinion.

Most Texas voters say abortion should be allowed in some form, poll shows | The Texas Tribune (May 2022). Texas views on abortion, the economy, and guns from the February 2024 UT/Texas Politics Project Poll | The Texas Politics Project (Feb 2024) But courts have to interpret the laws as enacted and in a way that is consistent with the Constitution.

The arguments in the current case seem clear, yet complicated. The New York resident physician will contend that she responded to a child’s request for an FDA approved medication. She wrote a prescription and her Texas patient filled it.  Texas will argue that the physician may not have physically been present in Texas, but she prescribed a medication to a minor child in Texas knowing that the laws of Texas forbid her to do so. The abortion debate continues as states draw walls around their citizens and give notice to the world that they do not want physicians treating patients in derogation of local regulations. The “wall” analogy is not quite accurate because Taxes citizens are free to travel to other states and to secure medical treatment permitted by those states. And then there is the Alabama approach where that state’s Supreme Court has ruled that children are legally protected from the moment of conception, even where that is via in vitro fertilization (IVF). One thing is clear. The battle over reproductive rights is going to be around for a while.