How does the Constitution treat shield laws?
Legal questions abound about the limits and demands of two central parts of the Constitution when dealing with abortion prosecutions and civil lawsuits.
In the wake of Louisiana authorities issuing an arrest warrant for a New York abortion provider, questions abounded about whether New York Gov. Kathy Hochul would have to extradite the woman to the state to face prosecution.
At the end of January, a Louisiana grand jury indicted a New York-based doctor who prescribed medication abortion after a telemedicine consultation with a pregnant teenager. Authorities issued an arrest warrant for Dr. Margaret Carpenter, a telehealth provider. Hochul has said she will not extradite the doctor, which brings a constitutional crisis to the fore.
Dr. Carpenter is also involved with a civil lawsuit in Texas. The state’s Attorney General, Ken Paxton, filed a lawsuit in December seeking $100,000 in civil penalties from her for violating the state’s abortion ban. Again, it dealt with her prescribing abortion medications through telehealth.
At issue are shield laws or legislation designed to protect abortion providers from prosecution and civil lawsuits in states where the procedure is severely restricted or banned. These laws haven’t been deemed constitutional in federal courts, and some argue they conflict with two central parts of the Constitution–the Full Faith and Credit Clause and the Extradition Clause.
The Full Faith & Credit Clause deals more with the civil penalties imposed from different states on someone found financially responsible for damages. It requires states to recognize other states' public records, judicial proceedings, and acts.
The Extradition Clause, also known as the Interstate Rendition Clause, is a part of the United States Constitution that allows states to demand the return of people accused of crimes in other states.
For the next two weeks, I will be speaking to a series of experts about how these clauses intersect with abortion rights. Today, I will share my interview with Dr. Lea Brilmayer, a Yale professor who wrote Abortion, Full Faith and Credit, and the "Judicial Power" Under Article III, which was about whether the Constitution mandates that states enforce damage awards related to performing abortions.
“It's extremely complicated, and whatever you think you know, you don't know,” Brilmayer said. “That's my experience. Not very many people are experts on the conflict of laws. It's not a very popular topic. It's thought of as very technical and boring.”
Brilmayer’s article focuses on S.B. 8, the Texas law, which forbade abortions after a fetal heartbeat. The unique thing was its enforcement mechanism. It empowered private citizens to pursue damages with civil lawsuits. Brilmayer explained the central flaw that makes it unenforceable.
“Anybody who wants to sue can whether they have any connection with the abortion or not,” Brilmayer said. “They can just walk into court and file a case against somebody and say they had an abortion and try and get money from them, and that's just weird.
“That's not something it's done in American courts, and it's contrary to both Texas law and the law of other states and the federal law. And that's the main reason that it wouldn't be enforceable.”
In response, states like New York, Connecticut, and California passed laws that said their abortion providers would not be subject to the penalties. Furthermore, the pro-choice lawmakers stipulated that people who sued them would have to pay for the legal fees of the doctors. This antagonistic dynamic between pro-abortion rights and antiabortion states remains to be resolved.
Other legal writers have taken to social media to say that the prosecution of abortion doctors is a test of the Full Faith and Credit Clause. Though some elements are involved in the civil lawsuit against Carpenter, the Louisiana case deals more with the extradition clause, which is a criminal matter.
I wrote about my preliminary research on extradition and abortion last week. According to the extradition clause in the Constitution, someone who went to another state but was charged in a different one with treason, a felony, or another crime must be sent back to the place where they’re charged to face prosecution.
I did some research on extradition law. According to Google AI, the pertinent case is Puerto Rico v. Branstad, which the Supreme Court ruled in 1987. That case involved Ronald Calder, a native of Iowa working in Puerto Rico. He was charged with first-degree murder and attempted murder. After posting bail, he fled to his home state. Puerto Rico petitioned Iowa Gov. Terry Branstad to extradite Calder for court proceedings. Branstad refused.
The Supreme Court ruled against Branstad and effectively removed a governor's discretion to deny extradition requests, meaning the last time a state could have refused to extradite someone without a legitimate legal reason was before this ruling.
However, New York’s shield law stipulates that the governor doesn’t have to recognize any demand for extradition if the arrest warrant is based on reproductive care legal in New York state. Additionally, a police officer may not arrest any person for legally protected reproductive health activity or for performing, aiding, or procuring gender-affirming care lawful in New York. The exception is when federal authorities are involved. Additionally, witnesses may not be compelled to appear and testify in connection with an out-of-state proceeding relating to any legally protected reproductive health activity or gender-affirming care in New York.
The question remains, though: will federal authorities get involved in enforcing the Louisiana arrest warrant? This is the matter I intend to explore further with future newsletters.