Preliminary proposals for dealing with an urgent problem

On Friday, June 24, abortion became illegal in numerous states. In the coming months, more may enact bans. In California and numerous other states, abortion remains legal, and political and medical leaders are committed to ensuring safe access to abortion for all, including women travelling from other states. The same day the Court’s decision was issued, Governor Newsom signed AB 1666, which provides that California courts shall not enforce out-of-state statutes that authorize civil actions against people who assist in abortions. That act applies only to civil actions, however. It leaves unaddressed the urgent issue I flagged in an essay in the Daily Journal on May 18, 2022, shortly after the Dobbs draft opinion was leaked: What happens when Alabama indicts a California doctor for prescribing abortion medication? States committed to protecting legal access to abortion must prepare for out-of-state criminal indictments of doctors who treat women travelling from states that have banned abortion, followed by extradition requests sent to California by those states.

This issue is urgent and not easily resolved, because state law, federal law, and Supreme Court precedent all require that when a state indicts a person who resides in or is found in another state, that other state must arrest the person and transport him or her to the requesting state to face the charges there. There is no avenue under state or federal law to raise a challenge or substantive defense to the charges in the “asylum state.” These rules derive from the Extradition Clause of the Constitution, which was codified in 1791 by the first Congress in the federal Extradition Act. All 50 states have versions of the same rule in their own state codes.

Here’s our hypothetical, which is about to become very real in California and around the country. An Alabama woman travels to California to obtain a medical abortion through prescription of mifepristone by a California doctor. (Most abortions are medical, not surgical.) The patient and doctor follow the standard of care with medical abortions using mifepristone, which is to take the medication at home, where the patient will be most comfortable during the three to five days of symptoms. The patient fills her prescription in Los Angeles, then returns to her home in Alabama to take the mifepristone.

This is going to happen. As of this writing, numerous companies have pledged to pay for their employees in Alabama and other states that ban abortion (I will use the shorthand “felony states” for states that criminalize assisting in or procuring an abortion) to travel to “free states” to obtain abortions. A thousand fact patterns are about to occur in which a doctor in a free state assists a woman from a felony state in obtaining an abortion. In many of these fact patterns, the abortion itself will occur in the felony state, if the woman returns home to take the medication, or returns shortly after taking it. And news accounts report doctors and non-profits exploring telemedicine options for consultations with women in states banning abortion so that they can obtain mifepristone through the mail.

I’m a criminal defense lawyer in Los Angeles, so my first question is this: What would happen if Alabama indicted a California doctor for assisting an Alabama woman with an abortion? The answer is troubling. Under long-established statutory and decisional authority, California would be obligated, upon request by Alabama, to arrest the doctor and hold her in custody for extradition to Alabama to face felony charges. It would not matter that the doctor, her California lawyer, the California Attorney General, or the California Governor, all agree that the doctor was legally and ethically practicing medicine in California. If Alabama decides there’s a sufficient jurisdictional hook to indict, then under long-established law, California must arrest the doctor and deliver her to Alabama to face the charges. Neither California law nor federal law nor Supreme Court caselaw will allow for any substantive opposition to extradition to be asserted in California. No defense can be raised that the doctor’s actions were perfectly legal in California, or that the doctor has never set foot in Alabama.

This is a scary state of affairs for every doctor and politician in the free states who has pledged to provide abortions to women travelling from the felony states. The free states –starting with California, which has led the way in this pledge, and should have ample legislative support to take action – need to address this issue now, before Alabama DAs start sending extradition requests.

In my prior column, I explained the relevant statutes, caselaw, and Constitutional provision (the Extradition Clause), and noted the unsettling parallel with the seminal 1861 Extradition Clause case, Kentucky v. Dennison, 65 U.S. 66 (1861), which concerned a free-state citizen who helped an enslaved person escape – conduct that in half the states was perfectly legal and in keeping with fundamental principles of justice and equality – and that in the other half was a felony. The defendant, acting in Ohio (there is no evidence he ever crossed the river into Kentucky), assisted an enslaved person to cross the river from Kentucky to Ohio. In Ohio, that was a legal act consistent with fundamental principles of justice and equality. In Kentucky, it was a felony, and Kentucky demanded extradition.

The Governor of Ohio argued to the Supreme Court that he should not have to extradite his citizen to face felony charges in Kentucky for acting – as Ohio saw it – both legally and in keeping with the norms of “civilized nations.” Too bad, said the Supreme Court. The Constitution says that if a state indicts someone who is located in another state, that other state is obligated to arrest the person and ship him off to the indicting state to face the charges. Period, end of story. No discussion about the merits. The Supreme Court then reaffirmed this rule in 1987 in Puerto Rico v. Branstad, 483 U.S. 219. Indeed, the Branstad Court strengthened the rule by holding that federal courts can and should directly order state officials to carry out the requested extraditions.

I find the Supreme Court’s apparent lack of historical awareness in the Branstad opinion a bit disturbing. Shouldn’t it matter whether the requested extradition is in service of a legal regime that violates fundamental moral and constitutional principles, in the eyes of two-thirds of the country? Apparently, not to the Supreme Court. There’s not a word in either the 1861 or 1987 opinions about the constitutional or moral merits of requiring free states to actively participate in enforcing slavery. The only thing the Court took issue with in the Dennison case, a case that held that a free-state governor was constitutionally obligated to extradite his citizen to a slave state to face charges of assisting a enslaved person to escape into a free state, was that the Dennison Court didn’t go far enough – that it didn’t directly order the Ohio governor to carry out the extradition.

Think about that for a second: according to the Supreme Court in 1987, the Supreme Court in 1861 was wrong not to compel the federal courts and federal government to force free-state governors to extradite their citizens to slave states to face charges of assisting enslaved people to escape. As many readers have probably said to young lawyers over the years: “You read the case… and that’s your takeaway?”

In sum, American law, as it stands today, says to free-state doctors extradited to felony states for legally practicing medicine in their free state: “Too bad; good luck with your trial in Alabama.” I fear that the analogy with 1861 is all too apt. The Dobbs opinion divides the country, as of today, into two halves. In one of those, abortion is a core human right and a fundamental component of comprehensive health care. In the other, it’s a felony.

And as of today, the line between those two halves roughly tracks the line between free states and slave states in 1861. As in 1861, many individuals, companies and governments in the “free states” have made public commitments to assist people who are escaping the “felony states” to obtain abortions. As in 1861, the nation needs to reckon with how our constitutional system is going to handle indictments brought in felony states against doctors in free states. I hope I’m wrong and it doesn’t happen. But my job is to think about the worst-case scenarios, and for free-state doctors, this one looks plenty real to me.

For the foreseeable future, people are going to be travelling from felony states to free states to obtain abortions. Statistically, the vast majority of those abortions will be medical abortions with mifepristone or a similar drug, rather than surgical abortions. Inevitably, many people will fill their prescription in a free state, and then return home to the felony state to take the medication. Doctors have no way to force women to take the medication in the free state and remain there for three days or more; nor will many doctors want to simply refuse to treat patients from felony states. Sooner or later, a tailor-made fact pattern will present itself to a felony-state DA, and an indictment of free-state doctors for prescribing mifepristone to a felony-state resident will be issued, followed by an extradition request.

The Alabama statute seems almost designed for such indictments, because it specifically includes writing a prescription as one of the prohibited acts, and there’s nothing in the statute requiring that the prescription be written or filled in Alabama. Nor would an implicit requirement that the prescription be written in-state be found in the common law or the Constitution. Lots of crimes are committed in multiple jurisdictions. There won’t be a substantive defense in Alabama, and the federal courts are not going to swoop in and provide one either. Extradition will mean conviction and imprisonment.

Could that really happen? My answer, as someone who’s worked on dozens of criminal cases where the relevant charged acts were spread across multiple states, is: “Yes, absolutely it could.” An Alabama DA could indict a free-state doctor for assisting in an abortion, and conspiracy to do so, in cases where any relevant acts and communications occurred in Alabama. The paradigmatic case, as noted, will be one in which an Alabama woman communicates from Alabama with the free-state doctor to schedule the appointment, then visits the free-state doctor to obtain the prescription, then returns to Alabama to take the medication. Another likely fact pattern for indictment would be a scenario in which a free-state doctor participates in a telemedicine consultation with a patient in Alabama or another felony state. I don’t believe most free-state doctors would do so (it would likely be considered the unauthorized practice of medicine in Alabama), but if one did, I have little doubt an Alabama DA would indict.

Is your response something like this? “Come on, the communications and agreement were regarding a legal act in California, not an illegal act in Alabama. So there was no conspiracy to violate Alabama law!” Problem is, California may think so, but Alabama doesn’t, and under existing extradition law, the doctor will not be allowed to make that argument in California. Under existing extradition law, if Alabama indicts, California is obligated to arrest the doctor and ship her off to Alabama, and the only place our California doctor is allowed to make those arguments is in an Alabama courtroom. (AB 1666 offers no protection, because it only applies to civil suits.)

And if she loses her argument in Alabama trial court (after using her phone call from an Alabama jail to hire an Alabama lawyer), her next option is to appeal in the Alabama courts. She’ll sit in an Alabama prison for a couple years while she exhausts her direct appeal, and then she can try federal habeas. And what will she argue in her habeas petition? She cannot argue that Alabama can’t criminalize assisting in an abortion, because Dobbs just said there’s no right to abortion. So she’ll have to argue that there’s a due process violation in charging a California doctor for her actions in California that resulted in an abortion occurring in Alabama. Those arguments will almost certainly be rejected. As the Supreme Court held more than a century ago: “Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if [the defendant] had been present [in the state] at the effect.” Strassheim v. Daily, 221 U.S. 280, 284 (1911).

I just took a quick look at some recent applications of the principle, and found one right on point: the defendant was charged in New Jersey based on acts he committed in other states which were accepted arguendo as legal in those states. He squarely made the argument that it violated due process for New Jersey to charge him with a crime under New Jersey law based on things he did elsewhere that were legal where he did them. The Third Circuit (my old circuit) rejected the argument out of hand: “In this case, both the purpose and the effect of the commercial bribery was to cause the IBF, which has its principal place of business in New Jersey, to alter its rankings of boxers. Thus, the conduct in question had effects within New Jersey: it tended to harm a business headquartered in the state and to produce attendant consequences there. These effects are sufficient to permit the state to regulate the conduct without violating due process.” United States v. Lee, 359 F.3d 194, 206 (3d Cir. 2004). There are lots of similar cases. This one stood out, and I’m quoting it here, because of its author: Third Circuit Judge Samuel Alito.

Free-state elected leaders need to be thinking about extradition, right now. Many free-state politicians have publicly asserted, as has Governor Gavin Newsom, that their states will remain bastions of free access to abortion services for everyone around the country. That aspiration is impossible if free-state doctors face extradition to felony states, as, under current law, they do. Political leaders in the free states do not wish to extradite their doctors to the felony states to face years if not decades in prison on charges as to which they will have no defense in the felony state. I hope Governor Newsom and his colleagues in other states are already thinking about this. If not, here are some ideas.

Amend State Extradition Statutes.

The necessary immediate first step is for free-state legislatures to amend their extradition laws (all of which currently mandate extradition upon request), and add an exception for provision of abortion-related services in the state. Indeed, the exception could be more generally stated as applying to any conduct undertaken within the state that is legal under state law. This must be done quickly, because state law is the first place state officials will look upon receiving the inevitable extradition request from Alabama or Texas or Mississippi.

Prepare for Federal-Court Arguments.

Such an amendment would set up a collision in federal court, because these new state laws would conflict with the federal Extradition Act and the Supreme Court’s extradition cases, and the felony states could file suits directly against state officials seeking injunctive relief. That’s literally the Court’s guidance in Branstad. So the second step would be for the free states to prepare to defend their new exceptions in federal court. There are potential arguments.

For example, they could argue that the meaning of the Extradition Clause and Extradition Act were necessarily modified by the Reconstruction Amendments (if not by the Civil War itself!) to allow for exceptions for conduct that is committed in and legal in the asylum state, and that Branstad, and its 1987 companion case Smolin, 482 U.S. 400, did not and could not have addressed that issue on their facts. One variant of this argument would be that mandatory extradition would deny Equal Protection to women from felony states because, by threatening free-state doctors with extradition if they treat patients traveling from felony states, it would prevent women from felony states from obtaining legal abortions even in the free states. This argument would have to be carefully presented as a pure Equal Protection argument (that is, as RBG would have argued Roe ab initio), because there would no longer be a substantive right to abortion to be appealed to. But it could be made. So could a Dormant Commerce Clause argument.

The bar is packed with people smarter than me; states should turn to them for help. They should retain experienced outside counsel for assistance, and also solicit ideas and amicus briefs from historians and constitutional scholars. Law schools should schedule symposiums on the topic – e.g., “How can the Extradition Clause be reconciled with post-Dobbs interstate travel for abortions?” – to ensure that state policy-makers and litigators are armed with a full suite of arguments.

Lobby for Amendment of the Federal Extradition Act.

The third step would be for the free states to begin lobbying Congress now for a federal amendment to the Extradition Act, which would be necessary when federal courts start holding that they are bound by Branstad to order extradition upon request for any charge, with no exceptions or defenses based on the laws of the asylum state. Such legislation would be constitutional (per Dennison, the Extradition Clause is not self-executing) but it could be filibustered in the Senate, of course. Are the prospects for finding sufficient support in the Senate better than back in front of the Supreme Court that just gave us Dobbs, and that twice reaffirmed Dennison? Maybe. It’s worth a try, anyway.

One would think that Senators Susan Collins (R - Maine) and Lisa Murkowski (R - Alaska) – both of whom assured the nation that Justices Neil Gorsuch and Brett Kavanaugh wouldn’t actually vote to overturn Roe – would support it. Could a targeted pitch be made at eight additional Republican senators? This is a states’ rights issue, after all. Would Mississippi, whose laws allow for the marriage of 15-year-old girls to adult men, be keen to allow California to demand extradition of a Mississippi resident who abetted or conspired to arrange such a marriage while in California – where conspiring to engage in sexual contact with a minor is a crime? (If you are about to research California law to see whether there would be a defense, you have missed the point of this essay.)

The above are lawyerly actions that could, just maybe, head off a constitutional crisis. But they will take time, and amendment of the federal Extradition Act appears unlikely given the current state of the Senate. More likely, free-state politicians will simply declare that they won’t extradite doctors and nurses for assisting in abortions for women traveling from felony states – period. I can understand the moral and political reasons why elected leaders might take that position. In that case, the lawyers will have to deal with the fallout. That will be new terrain. New to us living lawyers, anyway – not new to the nation. “Leave it up to the states” didn’t work for slavery, and it won’t work for abortion, either. The fallout from today’s decision is going to linger for a long time, and sicken us in ways we never anticipated.