Imagine if, in 1950, Mississippi had passed a law that authorized every Mississippian to sue anyone in the United States who interfered in any way with the state’s then policy of segregation. Imagine further those thousands of state residents successfully obtained Mississippi state court judgments against people and businesses across the nation to enforce those judgments pursuant to the Full Faith and Credit Clause in Article Four of the U.S. Constitution.

Of course, the hypothetical is ridiculous, because Mississippi would never have considered applying its laws outside its borders; nor would the courts of other states have given such Mississippi judgments the time of day. Based on principles of states’ rights, segregation stayed within state boundaries, until the U.S. Supreme Court’s 1954 decision in Brown v. Board of Education outlawed segregation. State abortion laws must be so treated as well, whether “pro-abortion rights” or “anti-abortion” if the Court overturns Roe.

States’ rights was the historic rallying cry of segregationists. While having a “fighting words” connotation for some, the term is neutral, has its basis in U.S. history and is reflected in the 10th Amendment to the Constitution.

Indeed, states’ rights is an implied basis of the Supreme Court’s possible reversal of Roe v. Wade. It is also why women’s right to choose should be secure wherever state law protects it. However, irony of ironies, the very states that have asserted their sovereign jurisdiction to restrict or prevent abortion within their borders seem to want to enforce their local laws across the country. They want their states’ rights to be national duties.

The purpose of this writing is not to challenge the reasoning of Justice Samuel Alito’s draft opinion reversing Roe or a possible Supreme Court decision based upon the draft. Numerous such critiques already exist. Nor is this a moral judgment.

What concerns us are those state laws that not only restrict abortion but are also designed to enable their enforcement or otherwise might seek to interfere with conduct across state lines. We believe such laws are unconstitutionally intrusive and unenforceable, as if segregationists of old purported to use the judicial system to impose their views outside the states where they were the law.


The current state laws that restrict abortion and similar legislation under consideration provide elaborate enforcement procedures. For example, Texas law (Senate Bill 8) authorizes all its citizens (and arguably anyone in the country) to serve as surrogate prosecutors to sue in Texas courts anyone who violates or facilitates violations of its abortion statute.

This has been interpreted to include health care providers outside of Texas whose services are utilized by Texas women who obtain abortions. The effect of this would be to make Texas courts (and the local courts of any other state that enacts a similar law) into national anti-abortion tribunals. It is also probable that proponents of such state anti-abortion laws, armed with judgments from their home states, will seek to enforce those judgments all around the country. They will claim that the Full Faith and Credit Clause compels other states to comply.

Thus, state laws will transform into national jurisdiction and judicial power in pursuit of the policy goal of anti-abortion. At a minimum, such efforts will be epochally harassing; at worst, they could fundamentally undermine the rights guaranteed in pro-abortion rights states.

The scope of the Full Faith and Credit Clause has received relatively limited attention. Before the Supreme Court found that same-sex marriage was a constitutional right, many of the same states that already have or will soon enact restrictive abortion laws designed to be expansively enforceable threatened not to accord Full Faith and Credit to same-sex marriages performed in states that had legalized them. These objectors grounded their positions in states’ rights.

Yet, however locally popular it may be to assert states’ rights defensively in one case (against same-sex marriage) and aggressively in another (in favor of expansive enforcement of abortion laws), states do have definitive boundaries identifiable on maps. And those boundaries do limit the personal jurisdiction of their own state’s courts.

In order to achieve the stated goal of Justice Alito’s draft — that the states should decide the issue of abortion — and to maintain the integrity of the federal system, interstate enforcement of state anti-abortion laws should not be permitted, since that there is no personal jurisdiction over out-of-state parties.

Unlike so-called long arm statutes that enable suits against outside actors who engage in conduct inside a state, the anti-abortion statutes purport to permit suits against those whose conduct is over the state borders. There is no jurisdiction to do this, and there is likewise no basis to extend Full Faith and Credit to any judgment so premised.