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Roberta Lea Brilmayer: Abortion, Full Faith and Credit, and the 'Judicial Power' Under Article III
Michael Ramsey

Roberta Lea Brilmayer (Yale Law School) has posted Abortion, Full Faith and Credit, and the 'Judicial Power' Under Article III: Does Article IV of the U.S. Constitution Require Sister-state Enforcement of Anti-abortion Damages Awards? (52 pages) on SSRN.  Here is the abstract:

Article IV’s Full Faith and Credit Clause is likely to become the next battle ground in the war over abortion. Texas and other anti-abortion states have created civil damages actions for assisting in obtaining an abortion and are expected to apply their laws extra-territorially. Sometimes referred to as “vigilante” statutes, state laws modeled on the Texas legislation provide civil damages awards to any person who can prove the defendant’s involvement in an abortion, regardless of the plaintiff’s lack of connection to it. The choice of law issues in the extraterritorial applications of anti-abortion laws are by now familiar. What has not been considered is whether sister states would be required to enforce the judgments that result.

The issue is urgent. Since Dobbs was decided, pro-choice states have been studying different strategies for protecting persons subject to judgments obtained in states with these anti-abortion laws. Connecticut has adopted a “claw back” statute that would allow persons ordered to pay damages under these anti-abortion laws to sue in Connecticut to recover the judgment paid, with attorney’s fees. This strategy is unprecedented, but likely to be copied by other pro-choice states. There is no case law on its constitutionality, and no mention of the issue in the secondary literature.

There are several familiar exceptions to the obligation to give full faith and credit to sister-states laws that would justify this result. The most important basis for refusing the enforcement of sister-state judgments is found in the wording of Article IV, itself. The Full Faith and Credit Clause applies only to sister-state judgments that result from “judicial proceedings”. “Judicial” is a well-known term of art, due to its interpretation in Article III, which speaks of “judicial power”.

The drafting history of Articles III and IV strongly supports the conclusion that the word “judicial” should be interpreted identically in those two articles. Thus, in order to qualify for federally guaranteed interstate enforcement under Article IV a dispute must satisfy the Article III “case or controversy” requirement. But the disputes brought under the Texas civil damages law do not qualify as “judicial” under Article III. The reason is their lack of any injury in fact to the plaintiff, a “standing” requirement solidly grounded in the Supreme Court’s decisions interpreting Article III.

The Full Faith and Credit Clause is therefore not offended by Connecticut’s unwillingness to enforce its “vigilante” awards. Only an a-historical and a-textual analysis of Full Faith and Credit would require the enforcement of such judgments.