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University of Memphis Law Review

Abstract

In 2021, Texas made headlines when it passed antiabortion law Senate Bill 8 (“SB 8”). Although Roe was still the law of the land, SB 8 banned most abortions as early as six weeks into pregnancy, long before many people know they are pregnant. The ensuing uproar primarily centered on the law’s unique ability to maneuver outside the reach of courts. Because SB 8 outsourced its enforcement authority exclusively to citizens, it effectively circumvented judicial review by eliminating valid targets for a pre-enforcement suit. Many were justifiably concerned that the law created a playbook for state legislatures to nullify other constitutional rights through similar procedural machinations. But SB 8’s distinct procedural structure raised a second alarm amongst reproductive justice activists and academics alike. The law utilized vague, sweeping language, and included minimal geographical limitations. In this vagueness lay the potential that private citizens could be deputized to extend state power far beyond Texas’ border. Unsurprisingly, other states quickly responded to this prospect. In the years since the Texas legislature passed SB 8, some states have embraced the use of private enforcement-based civil schemes as a means to regulate abortion beyond their borders. Other states have enacted “shield laws” to protect against such a sister state’s overreach. These extraterritorial civil abortion laws—both restrictive and protective—create a regulatory scheme that puts state laws on a collision course. This is because the Full Faith and Credit Clause (“FFC”) of the United States Constitution firmly requires states to recognize each other’s judgments, with few, if any, viable exceptions. The purpose of the FFC’s judgment recognition provision is to both promote comity between co-equal states and facilitate repose, rather than endless scores of litigation. But the impending abortion law conflict threatens the FFC’s ability to effectuate this very purpose. If two states enter conflicting judgments under SB 8-style schemes and the corresponding shield protections, the FFC’s judgment enforcement provision will be severely strained. It is unlikely that either state will be willing to bend to the other’s will, given the stark differences in state abortion policies. Normally, this is where the FFC would come in, to act as a neutral moderator. But the unique nature of these laws makes that solution insufficient. First, the very potential of requiring an abortionprotective state to recognize the judgment of an abortion-restrictive state has incentivized the former to create additional causes of actions to allow their citizens to seek redress—damaging the FFC’s call for repose. If courts require one state to recognize the judgment of the other in this context, it is quite likely they will refuse to do so—injuring the call for comity as well. Thus, to allow the FFC to function as intended, as a pseudo-treaty knitting together the states, the abortion law conflict must be dealt with at early stages of litigation, rather than after a judgment is entered. In this Article, I suggest the appropriate mechanism for addressing this conflict is the personal jurisdiction doctrine. First, this Article explores the scope and nature of the impending conflict, explaining why a traditional application of the FFC’s judgment provision is inadequate in this circumstance. This Article then argues that the guiding principles of the FFC will be acutely damaged if states are required to follow the ironclad law of FFC judgment enforcement in this particular circumstance. At the judgment stage of these abortion suits, there will no longer be an ability to maintain interstate comity. Suits to require enforcement will further divide the states, rather than unite them. The path to avoid recognition of judgments is counterlitigation, removing all hopes of repose and finality. Put plainly, an exante mechanism is needed. Next, this Article turns to personal jurisdiction to explore the role this doctrine can play in addressing the abortion law conflict. This Article then examines the extent to which historical and modern case law can guide us in determining the reach of extraterritorial abortion laws. Next, this Article argues that there are two relevant takeaways from the Roberts Court’s treatment of personal jurisdiction. First, the modern personal jurisdiction doctrine is animated significantly, if not primarily, by horizontal federalism concerns. The modern Court has demonstrated a growing desire to consider the relationship between sister states when analyzing whether a court’s exercise of personal jurisdiction is appropriate. Second, the current doctrine provides insufficient instruction for how to determine when a court has personal jurisdiction over nonresident defendants sued under abortion bounty laws. Although the Court has reestablished interstate federalism as a driving concern, it has not expressed much guidance as to how courts should analyze interstate relationships, something that will certainly prove pivotal in abortion lawsuits involving residents of multiple states. Finally, I discuss how personal jurisdiction can be used to avoid the impending abortion law conflict by acting as a limit on extraterritorial state regulation. In particular, this Article explores how the FFC itself provides principles that can help us better articulate what courts are looking at when they consider horizontal federalism during litigation over personal jurisdiction. If the FFC values of comity and repose are considered ex-ante and used to support a more restrained view of jurisdiction in cases arising under extraterritorial civil abortion laws, then the described judgment enforcement problems need never arise. In sum, this Article attempts to show how well-established procedural mechanisms can be used to prevent further Balkanization resulting from states’ attempts to regulate abortion beyond their borders.

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