Out of Bounds?: Abortion, Choice of Law, and a Modest Role for Congress

Abstract

This invited contribution to a symposium on the multiple intersections of family law and constitutional law grapples with the emerging problems of jurisdictional competition and choice of law in interstate abortion situations in the wake of Dobbs v. Jackson Women’s Health Organization—as abortion-hostile states seek to impose restrictions beyond their borders and welcoming states seek to become havens for abortion patients, regardless of their domicile. Grounded in a conflict-of-laws perspective, the essay lays out the interstate abortion chaos invited by Dobbs and the threat to our federal system that it presents, given Congress’s failure to codify a national right to abortion in the Women’s Health Protection Act or other proposals. The essay then examines the promise, shortcomings, and uncertainties of relevant provisions of the U.S. Constitution as potential solutions to the problems. With no magic constitutional bullet available, new tools are needed to address this looming “war between the states.” The essay proceeds to propose one, borrowing a model from family law’s existing toolkit, specifically, the Parental Kidnapping Prevention Act (PKPA).

Enacted under Congress’s power to implement the Full Faith and Credit Clause, the PKPA’s intervention is modest, and it walks the fine line that that clause requires—recognizing each state’s sovereignty while commanding respect for other states’ prerogatives, aspiring to achieve national unity and harmony. Accordingly, the PKPA does not address the merits of an underlying child custody controversy or impose substantive custody-law requirements on the states. Instead, it allocates authority over child custody matters among the states and then ensures respect elsewhere for such authority lawfully exercised.

The recent enactment of the Respect for Marriage Act bodes well for this approach in a Congress that must bridge sharp divisions in order to legislate at all. It too allocates authority and ensures respect elsewhere, without codifying a right to celebrate same-sex and interracial marriages throughout the country.

Of course, how to allocate authority over abortion presents vexing challenges. What concessions would be worth making to have the certain knowledge that abortion-friendly states really are safe havens? Even if Congress cannot codify reproductive rights, can a majority of the House and at least 60 members of the Senate fulfill their responsibility under the Full Faith and Credit Clause so that the “laboratory of the states” can survive as a single nation?

Keywords: abortion, choice of law, Constitution, legislation, full faith and credit