Imagine that, in 1950, Mississippi passed a law that authorized every Mississippian in the United States to prosecute anyone who in any way interfered with the state’s then-separation policy. Next imagine how those thousands of state residents successfully obtained Mississippi state court decisions against people and businesses across the country for enforcing those decisions in accordance with the full confidence and credit clauses in Article Four of the U.S. Constitution.
Of course, the fiction is ridiculous, as Mississippi would never have considered enforcing its laws outside its borders; Nor would courts in other states have given such Mississippi decisions the time of day. Based on the principles of states’ rights, segregation remained within state boundaries until a 1954 decision of the US Supreme Court in Brown v. Board of Education outlawed secession. State abortion laws should be treated the same way, whether with “pro-abortion rights” or “anti-abortion rights” if the court reverses the row.
The Rights of the States was a historic rally of separatists. Despite the connotation of a “fighting word” to some, the term is neutral, has a basis in American history and is reflected in the 10th Amendment to the Constitution.
In fact, states’ authority is an implied basis for a possible reversal of the Supreme Court’s Roe v. Wade. That is why the right of women to choose must be protected wherever the state laws protect it. However, ironically, states that have asserted their sovereign jurisdiction to prohibit or prevent abortion within their borders tend to enact their local laws nationwide. They want the rights of their states to be national duties.
This writing is not intended to overturn Justice Samuel Alito’s opinion of the draft or to challenge the logic of a possible Supreme Court ruling based on the draft. Many such criticisms already exist. Nor is it a moral judgment.
We are concerned by state laws that not only prohibit abortion but are also designed to enable their enforcement or may otherwise seek to interfere with conduct across state lines. We believe such laws are unconstitutionally intrusive and unenforceable, just as the old separatists used the judicial system to enforce their ideas outside the states where they were the law.
Current state laws that prohibit abortion and similar laws provide detailed enforcement procedures. For example, Texas law (Senate Bill 8) authorizes all of its citizens (and arguably anyone in the country) to serve as surrogate prosecutors to prosecute in Texas courts, which violates its abortion statute. infringes or violates.
This has been interpreted to include health care providers outside Texas whose services are used by Texas women who have had abortions. The effect would have to make Texas courts (and any other state’s local courts that enforce a similar law) into national anti-abortion tribunals. It is also possible that supporters of such state anti-abortion laws, armed with decisions from their home states, will try to implement those decisions nationwide. They would claim that the Full Faith and Credit clause compels other states to comply.
Thus, in pursuit of an anti-abortion policy goal, state laws will turn into national jurisdiction and judicial power. At the very least, such attempts would be ephemerally troubling; At the very least, they could fundamentally undermine the rights guaranteed in pro-abortion states.
Relatively limited attention has been paid to the scope of full faith and credit clauses. Before the Supreme Court found that same-sex marriage was a constitutional right, many of the same states, which already have or will soon have restrictive abortion laws, are designed to be widely enforced. They have been threatened with not giving full faith and credit to same-sex marriage. The states that had legalized them. These objections grounded their position in the rights of the states.
Nevertheless, although locally popular it can be used to assert states’ rights defensively (against same-sex marriage) in one case and aggressively (in favor of wider enforcement of abortion laws) in another. States have definite boundaries that can be identified on maps. And those limits limit the individual jurisdiction of their own state’s courts.
To achieve the stated goal of Justice Alito’s draft—that states should decide the issue of abortion—and to preserve the integrity of the federal system, interstate enforcement of state anti-abortion laws should not be allowed, Because it is not so. Individual jurisdiction over out-of-state parties.
Unlike so-called long-arm statutes, which enable prosecution of outside actors who engage in conduct within a state, anti-abortion statutes allow prosecution of those whose conduct is outside the state’s borders. . has no jurisdiction to do so, and likewise there is no basis for giving full confidence and credit to any such decision.