Diego A. Zambrano, Mariah E. Mastrodimos, Sergio F.Z. Valente
In 2021, Texas adopted a powerful antiabortion statute—known as S.B.8—that bars anyone from performing abortions in the state of Texas after approximately six weeks of pregnancy. But instead of empowering government officials to enforce its provisions, S.B.8 relies entirely on private lawsuits. In response, California enacted A.B. 1666, which prohibits its courts from serving as a venue for S.B.8 claims or enforcing S.B.8 judgments. California’s statutory response, however, faces tricky challenges under the Full Faith and Credit Clause (FFC) of the U.S. Constitution. And, more generally, the clash between S.B.8 and A.B. 1666 raises larger questions about conflict of laws, constitutional rights, and horizontal federalism.
Grappling with A.B. 1666’s constitutionality directly, this Essay argues that the statute probably complies with the Full Faith and Credit Clause. California has a strong argument for the constitutionality of A.B. 1666’s venue provision under the public policy exception to the FFC. And California has a weaker, but still colorable, argument in support of the statute’s judgment enforcement bar under the FFC’s penal judgment exception. The central question going forward is whether courts will interpret the Full Faith and Credit Clause in a flexible manner—allowing for capacious exceptions—or apply a tight leash to state legislative schemes. Indeed, state clashes like this one continue to matter even after Dobbs overturned Roe v. Wade because states will attempt to use private civil claims to go beyond criminal law on topics like abortion, guns, and LGBTQ rights.