Can a law in your home state protect you from prosecution or a civil suit in another state? Recently, several states such as California, New Mexico, Massachusetts, New York, and Vermont passed laws designed to shield healthcare entities that provide abortion services from criminal and civil liability in states that restrict such services. These laws have left many healthcare providers with a mistaken impression of the level of protection offered. Providers with practices that cross state lines should be aware of the limitations of any protections offered by their home state.
A common misconception is that these laws prevent providers in one state from being prosecuted or sued in another state. The principle of “extraterritoriality” means that a state’s laws generally apply only within its own jurisdiction. Consequently, a healthcare provider in a state like California or New Mexico can still be sued or criminally prosecuted in another state for providing prohibited services in that state.
So, what protections do these new laws provide? Most of them prohibit their state courts from enforcing out-of-state criminal or civil judgments and orders related to abortion services. Because a court in one state has no authority in another state, a plaintiff or prosecutorial agency must ask a court in the state where the defendant is located to enforce an out-of-state court order. For example, a plaintiff who wins a civil suit in Arizona against a defendant located in California may have to ask a California court to force the defendant to pay the judgment. In theory, these new laws would prevent the enforcement of out-of-state arrest warrants, subpoenas, or judgments.
Yet, even these protections may be illusionary. The U.S. Constitution’s “Full Faith and Credit Clause” generally requires judges to enforce valid judgments and decrees that are issued by courts in other states. There is an exception for judgments and orders that violate the public policy of the enforcing state. Many of the laws passed explicitly state that abortion access is the public policy of those states. However, the Supreme Court has held that the exception should be applied narrowly. Thus, out-of-state judgments and orders against healthcare providers may still be enforceable regardless of any protections.
Additionally, healthcare providers could be subject to discipline from third-party states. For example, assume a California provider is also licensed and provides telehealth services to clients in Texas, Utah, and Wisconsin. California law may protect the provider from regulatory discipline in that state for providing prohibited abortion services in Texas. However, Utah and Wisconsin could still choose to discipline the provider in those states based on the Texas violation.
The regulatory field for healthcare entities is becoming increasingly complex. More than ever, businesses and providers engaging in services across state lines should engage counsel to ensure they properly protect themselves.
Fields marked with an * are required