How States are Clashing on Abortion

Briefing|How States are Clashing on Abortion

Does Colorado have to honor the laws of Utah? The Constitution says, generally, yes. But abortion has begun to test that principle. Wildly divergent laws — punishing abortion in red states, protecting providers in blue states — have pitted states against one another.

Texas fined a doctor in New York who prescribes abortion meds by mail and then sued a clerk who wouldn’t help enforce it. Yesterday, New York stepped in to defend the clerk. “Texas has no authority in New York, and no power to impose its cruel abortion ban here,” said the attorney general.

Today’s newsletter is about what happens when states battle one another about whose law is supreme.

States’ rights

The contest. When the Supreme Court revoked the nationwide right to abortion three years ago, many states adopted bans. To reach patients in those places, doctors elsewhere offer telemedicine prescriptions and ship abortion pills by mail. The states with bans see this as an effort to circumvent their laws, and many of them regard people who provide abortions to their residents as criminals. (Texas lawmakers have even passed a bill that lets a citizen file a lawsuit for at least $100,000 against anyone who manufactures, distributes, prescribes or mails abortion medication to Texas residents.)

Legal warfare. Some of the blue states from the above map passed laws saying they would not cooperate with these prosecutions. They won’t comply with out-of-state abortion investigations, won’t arrest doctors, won’t answer subpoenas. And New York, Washington, Colorado, Maine and Massachusetts recently enacted measures that let doctors mail abortion pills without putting their names on the packaging. California may go further, allowing the pills to be sent without the name of the patient, prescriber or pharmacist in the package. (A majority of medication abortion services across the country use California-based pharmacies.)

What next. At issue is the Constitution’s Full Faith and Credit Clause, which says that states should generally respect other states’ laws. For example: Kansas will extradite a woman accused of fraud in Nebraska. Montana will recognize a marriage license from Minnesota. But Texas says New York’s abortion shield law amounts to a “policy of hostility to the public acts/statutes of a sister state.” The states with shield laws say governments elsewhere can’t punish their citizens for following local laws. They point out that the Full Faith and Credit Clause makes an exception for this. Eventually, the Supreme Court will likely have to decide.