Should states have power outside their own borders?
When speaking of military tactics, defense experts often make reference to “power projection capabilities,” which refers to the state’s ability to use its power and, if possible, impose its will outside its territorial borders.
Power projection is not something Americans usually speak about with regard to the 50 states of the union, however. We tend to believe that the states take care of what happens inside their borders, and the federal government takes care of interstate relations, such as regulating interstate commerce.
While there’s always been some power projection by states — in legal terms, extraterritoriality — in the past few years we’ve seen an unprecedented rise in those attempts as states’ power has surged significantly under the current Supreme Court. Whether you think that’s a bad thing or a good thing depends on whose ox is being gored in the process. Even so, it’s important to step back and ask whether this overall trend makes the union stronger or weaker.
When state laws clash, states have traditionally refrained from telling other states what to do. For example, in California, it is illegal to produce or to sell paté de foie gras, made from the livers of ducks and geese, because California believes it cannot be produced humanely. That is California’s right.
Does California prevent California citizens from ordering foie gras from an out-of-state purveyor and having it shipped to them in California? No. Does California track whether its citizens are traveling to eat at out-of-state restaurants that sell foie gras? No. If a California resident goes across the border to Nevada and eats foie gras in a restaurant in that state, is the citizen charged with a crime upon return? No. Does California sue out-of-state purveyors of foie gras for breaking California law? No. Has California asked the U.S. Department of Commerce to make interstate trade in foie gras illegal so that no Californian may have foie gras shipped to them? Also no.
California has sensibly concluded that its power should be limited to the production and sale of foie gras in the state, and thus makes no extraterritorial claims. What happens in other states, even if it somehow involves a Californian, is off limits.
In addition, states often provide each other’s citizens with reciprocity, even if the two states’ laws differ somewhat on an issue, in order to avoid squabbles about arrests of each other’s citizens. For example, if you hold a permit to carry a gun in Texas, you can carry a gun in Louisiana, and vice versa. Other states refuse reciprocity, but in either case the principle of state law governing behavior only within its own territory is upheld.
Today, however, these traditional understandings of the limits on extraterritoriality are being challenged in a very bold fashion by red states on the issue of abortion. (Here I am not so much interested in what the content of abortion law should look like — I’ve written about that before — but rather the issue of state power projection.)
I live in Texas, and Texas is not shy at all about pushing the envelope of state power in its attempt to reach well beyond its borders to stop abortion. Texas has a “heartbeat” abortion ban — six weeks, with no exceptions for circumstances such as rape or incest, only for life-threatening conditions. The law has already prevented multiple women from obtaining medically urgent abortions within the state, and federal courts in Texas have repudiated the federal government’s insistence that Texas doctors perform abortions in emergencies. When your doctors are asking themselves, “Is she close enough to death for me to legally perform this abortion?” you’ve got a serious problem with your legislation as written.
But some of what Texas is doing has real extraterritorial implications. Some Texas counties have bans on helping a pregnant Texas woman leave the state for an abortion. Under these bans, passed in at least four counties, those who provide such assistance can be sued by private citizens. In addition, until stopped by a federal judge, Texas had also demanded that organizations providing funds for Texas women seeking out-of-state abortions hand over their records and cease operation.
Texas has also set its sights on bigger extraterritorial goals. It is already illegal under Texas abortion law for telehealth and mail-order prescription companies to send abortion pills to women in Texas, even if these companies are located in states where these pills are legal. Other states, in turn, have had to pass shield laws protecting these entities from being sued by Texas.
One doctor in New York, who sees Texas patients via telehealth, explains that under the shield law, “It’s as though they are virtually traveling to me in New York, and they are my New York patient during the time that I communicate with them, and then when I mailed them the pills. ... My medical care is covered by my New York state license, and the Texas regulations do not affect me, because I’m not practicing in Texas, and I don’t have a Texas license.”
To support this view, the Justice Department issued a formal opinion that it is legal to mail abortion drugs to any state in the union because there is no way to tell if the drugs would be used legally or illegally. Even so, threatened with legal action by Texas and other states, large pharmacies like Walgreens and CVS have stated they will not sell abortion drugs in Texas.
Texas then upped the ante for the whole nation and asserted that one of the two abortion drugs, mifepristone, was not rightly approved by the FDA for the purposes of catalyzing abortion — and even if it was, the federal Comstock Act of 1873 prohibits interstate commerce in any items related to abortion. (The other drug, misoprostol, was approved by the FDA for stomach ulcers and is only utilized for abortion as an off-label use, and therefore Texas could not act against interstate commerce in it.) This was a bold extraterritorial move, because if Texas’s assertions were to be upheld in court, mifepristone could not be sold anywhere in the United States, regardless of state law.
On the same day in March last year, federal judges in Texas and Washington state offered contradictory rulings on mifepristone, with Texas concluding FDA approval must be obtained, and Washington state concluding it must not. The 5th Circuit Court of Appeals then ruled that FDA restrictions from 2000 on mifepristone’s uses must stand while the matter of the FDA broadening access to the drug in 2016 and 2020 is adjudicated by the Supreme Court, which has taken up the case, and will presumably rule by June this year on the case. In the meantime, the Supreme Court put on hold the 5th Circuit ruling, which means access to mifepristone in the US remains the same as in 2020 until their June ruling. The Supreme Court starts hearing arguments on this case tomorrow.
It’s quite an aggressive extraterritorial strategy that Texas and other states have been pursuing. A successful invocation of the Comstock Act might be a back door to a nationwide ban on abortion, because the medications and instruments used in abortion are all procured through interstate commerce. Although this is unlikely, some have called on Congress to repeal the act before it can be used to do just that.
We’re in a whole new era of extraterritorial power grabs by states, the likes of which we haven’t seen since the mid-1800s. As Mary Ziegler, one of the nation’s foremost authorities on U.S. abortion law has put it, “How do we resolve these conflicts of law when both states claim the power to resolve the question? And how do we resolve the constitutional questions at stake when you are talking about regulating people’s speech, regulating people’s travel, and just basic questions of fundamental fairness, when no one knows ahead of time whose law is even going to control the situation?”
These are fair questions. The Supreme Court thought it was bolstering democracy by returning the question of abortion to the states. I have sympathy for that view. But it has also foreseeably brought upon us a new era of extraterritorial jostling for power by some states over all other states. And that, unfortunately, may serve to undermine our union, not strengthen it.
Valerie M. Hudson is a university distinguished professor at the Bush School of Government and Public Service at Texas A&M University and a Deseret News contributor. Her views are her own.
