Dobbs and the Civil Dimension of Extraterritorial Abortion Regulation

Abstract

A large body of scholarship has debated the constitutionality of criminalizing travel to seek abortions – an issue with new salience in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade. Increasingly, however, anti-abortion activists are turning to civil remedies as a supplement or alternative to criminal prosecution in cases involving out-of-state abortions, an issue that has received far less scholarly attention. In contrast to criminal jurisdiction, where the outer bounds of states’ authority to punish out-of-state conduct is highly uncertain, the extraterritorial application of state law in civil litigation is a common, routine effect of choice-of-law analysis that is unlikely to raise constitutional difficulties. As a result, it is reasonable to expect that courts in anti-abortion states may give broad geographical effect to abortion-restrictive law and policies in at least some civil litigation. The resulting decisions are likely to create substantial friction between states, as abortion-permissive states try to protect their own citizens from liability even as the Full Faith and Credit Clause demands recognition of foreign-state judgments that courts may be reluctant to give. To be sure, state policies have clashed (or threatened to) in civil litigation before, and this Article explores the outcomes of such conflicts in the areas of divorce liberalization, cannabis legalization, and the enforceability of noncompete clauses. At the same time, abortion is likely to give rise to broader and more intractable strife between states than any other issue courts have confronted in the recent past. Although individual judges can reduce occasions for interstate friction by applying restrained, conduct-focused conflicts principles, the states’ fundamental disunity on the underlying issue of abortion may prove to be a problem that our choice-of-law system is simply not well equipped to resolve.

Keywords: abortion, conflict of laws, dormant Commerce Clause, extraterritoriality, reproductive rights