States as Shields

By LINDSAY F. WILEY. Full Text.

State laws that aim to shield providers of reproductive health and gender-affirming care from the punitive actions of out-of-state officials raise thorny questions. Can the federal courts, Congress, or the Trump Administration require New York officials to enforce a Texas ban on abortion or gender-affirming care against a New York doctor who prescribed medication to a patient in Texas via telehealth? If so, how might New Yorkers’ access to health care be affected? If not, will interstate commerce and travel preserve some degree of access for Texans?

Disputes over reproductive health and gender-affirming care are putting new pressure on doctrines that define the scope, limits, and purposes of the sovereignty of each state in relation to the federal government, to its sister states, and to the populace it is responsible for protecting. Judges called on to resolve these disputes will need to engage in careful line drawing with respect to doctrines that empower states to protect public rights, obligate states to give full faith and credit to certain acts and judgments of other states, and limit federal power to regulate
states as states.

This Article contributes to discourse on horizontal federalism, state powers and duties, and the public-private divide by developing principled and complementary interpretations of full faith and credit requirements for states and anticommandeering and anticoercion limits on federal power that share a foundation in the doctrine of parens patriae. It argues that judges, advocates, and legal scholars should understand parens patriae as a broad doctrine recognizing the coequal sovereignty of states, in relation to each other, as protectors of distinctively public, collectively held rights within their borders, rather than being confined to its best-known application as a doctrine giving states Article III standing to sue in federal courts. This Article proposes the following definition of parens patriae as it has been used by the Supreme Court in relation to constitutional federalism, divided into numbered elements for the purposes of explaining and substantiating this Article’s claims: A (1) state government, (2) acting through any of its three branches, performs a constitutionally significant role as parens patriae when it (3) asserts or defends its interest as a sovereign government co-equal to its sister states (4) in protecting its populace at large from harms that are widespread and not exclusively traceable to identifiable individuals who have capacity to vindicate their own interests (5) against private parties or sister states, but not against the federal government to protect the state’s populace from the operation of federal law. When read in this broader context, the Court’s parens patriae precedents offer an untapped source of guidance for understanding the role states play in shielding their residents from harm, including, but not exclusively, with respect to reproductive health and gender-affirming care.