Sound familiar? You’re about to hear more about it, and you may want to brush up on it. The story you will hear from partisans–including the legacy media–will be all about abortion. Seems there is always another legal issue with abortion causing political controversy. But the underlying issue the Supreme Court will have to decide is (1) a bedrock principle of our Republic, and (2) one that has not ever been fully reconciled by the courts! Strap on your headgear and let’s get smart about it.
Article IV, Section 1 of the Constitution of the United States:
“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.”
A pretty short, simple statement. This was a principle of international law which the Founders borrowed for the Constitution, applying it to relations between the sovereign states. The concept is simple: accept the legal judgments of the other entity as you own, as long as that entity has jurisdiction. What? Okay, here is a concrete example: if your state claims you are a married couple, then another state must recognize your marriage when you’re there, too. Or driver’s licenses. Or a legal case resulting in a fine, or finding of guilt/liability, or paternity and child custody, and so forth and so on. It’s a simple concept that allows life to continue without undue additional aggravation. Imagine if you had to stop at each state line and pass a driving test!
The point was to keep borders (between countries or states) from becoming something people could hide behind (avoiding a judgment or re-litigating a case they lost) while making the continuation of life across those same lines easier for law-abiding citizens. It is not universal: states don’t have to recognize another state’s doctor’s license, for example. Marijuana is legal in Colorado, illegal in Nebraska. A Cornhusker can’t be arrested in Colorado for smoking a joint, but if they bring that joint back to Nebraska: get out the cuffs (figuratively).
The Dobbs decision (which overturned Roe v Wade) removed the fundamental right to abortion and left the issue to the States, providing fertile ground for interstate conflict. Some Red states banned abortion in toto. Abortion proponents insist that sending abortion-inducing drugs from Blue states into Red states is not only legal, it is morally required. Some Blue states have enacted shield laws to protect doctors, insurance companies, pharmacies and individuals from being criminally tried or civilly fined by Red states for providing abortion services. Some Red states have enacted ever-more laws permitting (practically) anybody to sue someone who enables abortion in a Red State. The main antagonists in this continuing drama are New York and Texas.
Texas contends New York residents and businesses are directly enabling Texans to violate Texas law in Texas. New York claims Texas is infringing on the rights of New Yorkers and attempting to enforce Texas law in New York. Because it is ostensibly about abortion, partisans have occupied their predictable trench lines. Under New York law, any woman can get an abortion at any time. Texas prohibits almost all abortion with very narrow exceptions. A New Yorker cannot go to Texas and claim they may have an abortion, but a Texan can go to New York and get one. The issue is about people in New York sending abortion-inducing drugs into Texas, where such drugs are illegal.
Because this is an interstate issue, it will eventually end up at the Supreme Court. I’m asking my friends to look at the larger issue here, because that is where the Supreme Court will look : to the Full Faith and Credit clause. If the court were to find for Texas, the status quo ante would pertain; nothing changes except New York would either have to respond to Texas’ legal claims against New Yorkers, or those New Yorkers would have to stop sending the pills.
But what if New York prevails? If you defend the “right to choose” you might see this as cause for celebration, but think about it for a moment. This finding directly undermines the Full Faith and Credit clause. If it’s legal for New Yorkers to send drugs into Texas, where those drugs are illegal, is it legal for Texas to send bump stocks, high-capacity magazines, or 3D printed firearms into California, where those things are illegal? Can Indiana decide not to recognize same-sex marriage licenses from Oregon? How about Alabama sending anti-trans books to Connecticut? Or Florida allowing its auto dealers to sell gas-guzzling SUVs directly to Californians?
Because the issue in play is abortion, each side is absolute in their thinking. But the issue before the court is NOT abortion: it is how states get along together, which is bound by the Full Faith and Credit clause. Tweaking that could jeopardize the entire notion of federalism in unforeseen ways. Remember: no one in this case is arguing about what New Yorkers do in New York, or what Texans do in Texas; this is about what New Yorkers do (send) to Texas. Pro-choice advocates claim a moral imperative to ignore Texas sovereign laws; pro-life advocates in Texas claim the right to reach into New York to exact justice.
I don’t envy the Supreme Court in this case. It’s exactly the kind of case with great possibilities for unintended consequences, which is why I expect them to find a way to defuse the issue without rendering the kind of judgment susceptible to such outcomes. If I had to bet on the outcome of a real decision (not a deflection, which is what I really expect), I believe the court will side with Texas. For all the rule-of-law folks out there who have been decrying every move by the Trump administration, this will be where the rubber meets the road. Does New York arrest the doctor prescribing abortion-inducing pills for women in Texas? Do they enforce the fines levied on the New York businesses doing the same? Or do they resist the court’s judgment?
Stay tuned. The case isn’t even on the Supreme Court docket yet, but unless one side or the other yields, it will be, probably next year. When it does, remember: abortion is just the topic, the case is about Full Faith and Credit.
Your second paragraph is historically incorrect. You state: “The concept is simple: accept the legal judgments of the other entity as you own, as long as that entity has jurisdiction. What? Okay, here is a concrete example: if your state claims you are a married couple, then another state must recognize your marriage when you’re there, too.” During the Jim Crow period, marriage between whites and blacks was illegal in the South. The Lovings, an interracial couple, had married in the District of Columbia, returned to Virginia to live, where they were arrested for violating Virginia laws against interracial marriage, i.e., living illegally according to Virginia as a couple. Their DC marriage was not/not recognized. All the Southern miscegenation laws were overturned by the Supreme Court in 1967 in Loving v. Virginia, which found the miscegenation laws unconstitutional. The case was decided on the basis of the Fourteenth Amendment, not on the Full Faith and Credit portion of the constitution. As for the rest of your argument, I will leave that to the lawyers.
Perhaps you missed this part: “It is not universal: states don’t have to recognize another state’s doctor’s license, for example.” I avoided the anti-miscegenation laws to avoid turning EVERYTHING into race, but it’s fair to bring it up as another exception. There are hundreds of exceptions, allowing the states the power to differ to some extent, thus proving the general rule of accepting how other states have ruled. This is how the concept works internationally, and between the states in America.
And to further that point, why did SCOTUS not rule against anti-miscegenation under the Full Faith & Credit clause? Because the bigoted laws would have held up! Instead, the Court reached out (as you note) to the 14th Amendment, further clarifying a “fundamental right to marriage” in the Constitution, thus obviating any state laws to the contrary. This does point out an approach New York could propose: that abortion is health care, and health care is a fundamental right of all under the Constitution. That would be a reach, especially in the Roberts Court.