May 18, 2022
What happens when Alabama indicts a California doctor for prescribing abortion medication?See more on What happens when Alabama indicts a California doctor for prescribing abortion medication?
The talk-show refrain of “just let the states have different rules” is not how the justice system works. If a California doctor prescribes abortion medication to a patient who returns home and takes the medication in Alabama, then Alabama could indict the doctor, and under the ordinary operation of both federal and state law, California would arrest the doctor and send her in cuffs to Alabama to face felony charges. If we don’t want that to happen, we’ll need some changes to our laws.
If the leaked draft opinion in Dobbs v. Jackson Women’s Health Organization becomes law, overruling Roe v. Wade and allowing states to criminalize abortion, there will be immediate and life-altering legal consequences for millions of Americans. These will be felt here in California, and the criminal defense bar needs to start thinking now about the following question: What happens when Alabama indicts a California doctor for prescribing abortion medication, and demands extradition?
That’s a question about the Extradition Clause of the Constitution (Article IV, section 2), and the federal Extradition Act of 1793, and it’s one the nation has mostly avoided having to face since the Civil War. If Dobbs becomes law, we’ll be facing it soon, here in California.
Since the draft Dobbs’ opinion was leaked, politicians and commentators have repeated the refrain that “women can still go to other states.” But in addition to the obvious financial and practical barriers to doing so, there’s a looming constitutional crisis presented by dividing the country up into 26 states where abortion is a legal medical procedure, and 24 states where it’s a felony. That’s the same constitutional crisis the nation faced when we divided the country up into “free states” and “slave states.”
Let’s take a simple fact pattern that may start happening this summer. An Alabama resident chooses to terminate her pregnancy. She books a flight to California, where she has family, and visits a doctor in Los Angeles. The doctor examines her and writes a prescription for mifepristone, a safe and legal medication that is the standard of care for medical abortions.
The usual practice for a medical abortion using mifepristone is to take the medication at home. So the Alabama resident fills her prescription, gets back on the plane, and returns to Alabama, where she takes the medication and terminates her pregnancy. On these facts, Alabama could – and I predict will – indict the California doctor for committing the Alabama felony of assisting in an abortion, under Alabama Code section 26-23H. Alabama will issue an arrest warrant, transmit the warrant and indictment to California state authorities, and request extradition.
The Extradition Clause of the Constitution provides that if a person located in one state is charged with a crime in another state, the “executive authority” of the state where the person is located must “deliver up” the person to the charging state. In 1793, Congress passed the Extradition Act to implement the Extradition Clause. It’s found at Title 18 section 3182 of the United States Code. And as a matter of state law, every state also now has on its statute books some version of the same law. In California, for example, it’s Penal Code sections 1547 to 1558.
Under both California law and federal law, the putative out-of-state defendant is not permitted to challenge the charges here in California, even on the basis (the statute says this expressly) that he or she has never been physically present in the other state. PC 1549.1, 1553.2.
The Alabama felony specifically includes prescribing medication to terminate a pregnancy (section 26-23H-3(1)). In our fact pattern, the crime was completed in Alabama, when the patient took the mifepristone, and so the doctor who prescribed it would be subject to indictment in Alabama, as a matter of Alabama law.
I predict that Alabama is going to indict and pursue the extradition of doctors in other states who prescribe mifepristone to Alabama patients who travel for consultations, then take the medication back home in Alabama. I predict we’ll hear politicians justify these indictments with the following analogy: If you decide to kill your grandmother in Alabama, and you consult a hit man in Beverly Hills, who gives you the deadly drug cocktail that you then put in Grandma’s coffee back in Birmingham, the California hit man is subject to criminal prosecution in Alabama the same as you are. The Lieutenant Governor of Alabama, after all, ran and won on an “abortion is murder” platform.
I’m one of the people you call in Los Angeles when you suddenly find yourself in a cell, so if the doctor in our fact pattern gets arrested, it’ll be me or someone like me who will have to go to court and argue at the extradition hearing. What will our arguments be? My colleagues in the criminal defense bar need to be having this conversation now, in California and the other 24 other states where abortion will remain legal after Dobbs. Because in the other half of the country, if abortion is homicide, and a pre-viability fetus is as fully a legal person as a 90 year-old grandmother, then there is no legal daylight between the doctor and the hit man.
The glib talk-show refrain of “just let the states have different rules” is not how the justice system works. It never has been, and it never will be. Under the ordinary operation of both federal and state law, our California doctor would be held on the Alabama warrant until an Alabama sheriff comes to pick her up, at which point she’d be flown in cuffs back to Alabama to face felony charges. And a California court would not hear argument on any issue except identity. PC 1553.2.
What position will our elected officials take? Presumably neither Governor Newsom nor Attorney General Bonta nor District Attorney Gascon are in favor of shipping California doctors off to Alabama to face decades in prison (10 to 99 years) for practicing medicine legally and ethically in California.
So what changes to existing law need to be made, and what would be the consequences of making those changes? The California legislature could amend Penal Code section 1549, for example, to provide that no one shall be extradited from California to face charges in another state for assisting in performing an abortion, so long as the person’s actions were legal in California. If California wants to support its doctors in providing safe and legal medical abortions to patients in California who come here from other states, California will have to commit itself not to extradite those doctors to Alabama or any other state that criminalizes abortion.
That would be a significant constitutional showdown in itself. But it won’t stop there. If Alabama’s elected leaders decide to start indicting doctors, they are not just going to forget about those indictments because California won’t extradite. They’re going to escalate. Alabama might request assistance from the other 24 abortion-banning states, asking those states to arrest the doctor if she passes through. So if our doctor has a layover in Omaha, there might be state troopers boarding the plane to pull her off for extradition. Alabama might also sue in federal court seeking an order compelling California to extradite. Or it might lobby Congress for a new federal statute requiring that states extradite doctors charged with assisting in abortions – or authorizing states to deputize agents to enforce the Extradition Act nationwide in non-extraditing states.
Such a law would be challenged in court, where the same majority that gave us the Dobbs opinion would review it. Might they rule it constitutional, on the grounds that by granting safe harbor to these “fugitive doctors,” the abortion-permitting states were failing to give sufficient faith and credit to the laws of the abortion-banning states? Yes, they might.
This has all happened before. What I’ve just described is the process that led to the Fugitive Slave Act and the Civil War. The first major Supreme Court case interpreting the Extradition Act was Kentucky v. Dennison, in which a man in Ohio (a free state) was charged by Kentucky (a slave state) with aiding and abetting the escape of an enslaved person from Kentucky into Ohio. Kentucky demanded extradition. The Governor of Ohio, William Dennison, argued that he should not have to “deliver up” his citizen to Kentucky, because Ohio was a free state, because helping a slave escape was not a crime in Ohio, and because slavery itself was an affront to “civilized nations.”
Dennison lost. The Supreme Court rejected all those arguments. It doesn’t matter that Ohio is a free state, and that the man didn’t commit a crime under Ohio law, said the Court. The only thing that matters is that Ohio ratified the Constitution, including the Extradition Clause, and Congress enacted the Extradition Act. So hand him over, Governor.
The Court then shrugged its shoulders and added that it couldn’t think of an effective enforcement mechanism. The Union, after all, was already falling apart when the decision was issued, on March 14, 1861. Seven states had already seceded, and 29 days later, Confederate troops attacked Fort Sumter and started the Civil War.
But the Supreme Court revisited the Extradition Act in two cases decided in June 1987. They’re worth re-reading now in light of Dobbs, because the Court’s view of federal power has changed a lot since 1861. The reticence about enforcement is gone. In Puerto Rico v. Branstad, 483 U.S. 219, the Court affirmed the Dennison rule that “the commands of the Extradition Clause are mandatory, and afford no discretion to the executive officers or courts of the asylum State,” and decisively rejected the Dennison Court’s hesitancy about enforcement. The federal courts, said the Branstad Court, can and should enforce “the duty to deliver fugitives” against state officials. 483 U.S. at 227-28.
And in California v. Superior Court (Smolin), 482 U.S. 400 (1987), the Supreme Court rejected California’s argument that it could refuse extradition on a Louisiana kidnapping indictment of a California father whom the California courts had ruled was the lawful custodial parent! California called him the lawful custodial parent; Louisiana called him a kidnapper. Something had to give. Extradite, said the Supreme Court, dismissing California with a shrug: we don’t care about California law, and we don’t care whether the Louisiana charge is “meritless” or “a possible abuse of the criminal process.” Louisiana indicted, and that’s the end of it. Put Dad in cuffs and send him to Louisiana, and he can hash it out there. 482 U.S. at 412.
If Dobbs becomes law, California officials such as Governor Gavin Newsom, Attorney General Rob Bonta, or District Attorney George Gascon, should begin laying the groundwork for a challenge to Branstad and Smolin. We need to find room in the Extradition Clause for states to refuse to extradite doctors for treating their patients.
For 70 years before the Civil War, we tried the “just leave it to the states” approach. It didn’t work. There was no way for free states to give full faith and credit to slavery, and slave states weren’t going to give full faith and credit to freedom. Dennison made the absurdity of such a system apparent. But now the Dobbs opinion tells us to leave the question of abortion to the states. That’s not going to work either. Officials from states banning abortion will try to charge and extradite “free state” doctors for assisting women to get abortions, just as surely as slave state officials tried to charge and extradite free state residents for assisting enslaved people to escape.
If I get a call from a California doctor facing extradition to Alabama, I’ll do what I do every day of the week: I’ll go down to the courthouse and fight like hell for my client. But the constitutional collision I’ve described here is way above my pay grade, so people way above my pay grade need to start thinking seriously about it.