New York Courts Should Reject Texas’s Attempt to Enforce its Abortion Ban Beyond its Borders

Texas Attorney General Ken Paxton is calling on New York judges to declare New York’s reproductive health care shield law unconstitutional. They are unlikely to do so. State officials in New York have, so far, presented a united front against the efforts of anti-abortion officials to target New York residents. Moreover, the law is on their side.

Whether the Full Faith and Credit Clause obligates a state like New York to recognize the civil judgment of a state like Texas depends on whether the judgment in question, in spite of arising from civil action rather than from a criminal prosecution, is essentially penal in nature. As I argue in a new paper, civil judgments that arise from violations of state abortion bans should be understood as penal judgments because they seek to enjoin and punish the defendant’s conduct for the protection of the health and morals of the public at large, rather than merely providing a remedy for an identifiable individual seeking to vindicate private interests. This reasoning may give states with shield laws increased protection against overreach by states with abortion bans.

Most states that permit abortion have adopted shield laws to protect providers of reproductive health care. Similar to immigrant sanctuary laws, New York’s reproductive health care shield law prohibits state and local government employees from cooperating with investigation or enforcement efforts of out-of-state actors, including by barring them from using time or resources in furtherance of any proceeding seeking to impose civil or criminal liability or professional sanctions for activities the shield law protects. Several states, including New York, expressly apply these protections to activities the provider performs via telehealth while physically present within their state, even if the patient is out of state.

When anti-abortion plaintiffs seek to domesticate civil judgments issued by courts in states that ban or restrict abortion, the tribunal state clerk or judge must determine whether they are prohibited from recognizing the judgment under their home state’s shield law, required to recognize it under the Full Faith and Credit Clause, or permitted to refuse recognition in the absence of a command one way or another. If applicable, the Full Faith and Credit Clause and its implementing statute preempt a state shield law. If there is no applicable federal command, then a clerk or judge may have discretion to refuse recognition under existing doctrine even in the absence of an on-point shield statute.

If default judgments rendered by a ban state’s courts can be enforced extraterritorially using mechanical recognition rules, they will be a highly effective tool that eliminates the need for more complex legal maneuvers by opponents of abortion. This approach would stymie shield state officials’ efforts to fulfill their democratic mandate to protect reproductive health care providers.

Texas v. Bruck, filed in the New York Supreme Court for Ulster County in July, arises out of Texas v. Carpenter, a default judgment issued by the Texas District Court of Collins County in February against New York physician Maggie Carpenter. The Texas court’s order enjoined Carpenter from “prescribing abortion-inducing drugs to Texas residents” and ordered her to pay the state of Texas more than $100,000 in civil fines and fees as a penalty for violating Texas’s abortion ban. Paxton then sought to domesticate the Texas judgment in New York by filing a motion for summary judgment in lieu of complaint in the county where Carpenter’s medical practice is located. Citing the New York shield law, the county clerk twice refused Paxton’s filing. Paxton subsequently filed a petition in Ulster County, citing the Full Faith and Credit Clause and asking the court to order the clerk to file a summary judgment issued by the New York court against Carpenter.

Texas’s argument goes to the heart of how states relate to each other as coequal sovereigns within our federalist system. The Supreme Court has balanced the Constitution’s principle of state sovereignty against its full-faith-and-credit command by holding that state courts generally must recognize the civil judgments of sister states but, following the principle of anti-exterritoriality borrowed from international law, they are not required to recognize penal judgments. Allowing a state to enforce its law beyond its own borders would violate the principle that states are “coequal sovereigns within our federal system.” As Justice Robert Jackson explained in a 1945 law review article, under the penal judgment rule, when a party asks a tribunal state to enforce a judgment issued by a sister state, the tribunal state’s courts are permitted “to examine the cause of action merged in the judgment,” meaning the state law on which the sister state’s judgment was based, “and, if it was based on a penalty, to refuse enforcement.”

The Supreme Court’s most in-depth treatment of the penal judgment rule appears in Huntington v. Attrill, decided in 1892. The Court explained in dicta that “penal law” is not synonymous with criminal law; for the purpose of determining a tribunal state’s full-faith-and-credit obligations, penal laws may also include civil laws with a penal purpose. According to Huntington, “the test whether a law is penal in the strict and primary sense” depends on “whether the wrong sought to be redressed” is “a breach and violation of public rights and duties, which affect the whole community, considered as a community.”

While the penal judgment exception has significant breadth, it does not allow states to ignore sister-state judgments simply because honoring them would conflict with the tribunal state’s public policy choices. The Supreme Court has emphasized that there is “no roving ‘public policy exception’ to the full faith and credit due judgments.” Fauntleroy v. Lum, in 1908, which emerged from turn-of-the-last-century interstate culture wars over gambling, is instructive. The Court reversed a Mississippi Supreme Court judgment denying recovery to a private plaintiff seeking to domesticate a Missouri judgment ordering the defendant to pay him a private gambling debt, over the defendant’s objection that the transaction took place in Mississippi and was illegal under Mississippi’s gambling ban. Mississippi’s (unsuccessful) resistance was based on the idea that enforcing Missouri’s judgment on a breach of contract action was against Mississippi’s public policy of prohibiting gambling, not that Missouri’s judgment was penal.

Rather than relying on “public policy,” the Supreme Court’s description of the penal judgment rule draws a line between the distinctively public, punitive purposes of some civil actions and the private remedial purpose of others. In Huntington, the Supreme Court assumed that a state statute imposing civil liability could be among the “quasi criminal” laws that “cannot be enforced in a foreign state or country,” if maintenance of a lawsuit under such a law amounts to “administer[ing] a punishment imposed upon an offender against the state.” Ultimately, the Court found that, because the New York law in question afforded “a civil remedy, at the private suit of the creditor only, and measured by the amount of his debt, it is remedial as to him.” The joint-and-several-liability statute that was the basis for the New York judgment was intended to provide a remedy for “a wrong to the individual,” rather than providing justice for “a wrong to the public.” Thus, the Court held that the Full Faith and Credit Clause required Maryland’s courts to recognize and enforce the New York judgment.

As other legal scholars have noted, state supreme courts have occasionally relied on the penal judgment rule to decline to enforce sister-state statutes or civil causes of action. But states are typically quite generous in recognizing sister-state judgments as a matter of choice based on comity, so these occurrences are rare. As a result, shield-state judges are left with few directly on-point precedents that draw the line between non-penal judgments that trigger federal obligations and penal judgments that do not.

In my paper, I argue that litigants and judges should look to precedents from other areas of law, including the parens patriae doctrine and federal common law developed to resolve interstate public nuisance cases, to interpret the meaning of the Supreme Court’s designation of certain civil actions as punishments for breaches of “public rights and duties” in the penal judgment rule context. Precedents involving horizontal federalism — concerning relationships between state governments — that are contemporaneous with the Court’s analysis of the penal judgment rule and more recent cases reinforcing that reasoning illustrate that a state court judgment based on a civil claim punishes on behalf of the public when it penalizes the defendant for harm (to health, safety, wellbeing, or morals) that is widespread and not exclusively traceable to identifiable individuals and when it seeks to prevent such harm in the future.

When a ban state court’s civil judgment punishes an individual in the name of protecting public morality and the health and lives of future pregnant patients and their embryos or fetuses, a shield state’s courts may fairly determine that it is a penal judgment and therefore exempt, in this situation, from full-faith-and-credit obligations. Therefore, Texas v. Carpenter, which enjoins future conduct and awards civil penalties to be paid to the state based on an abortion ban and a licensing-law violation, is not subject to mandatory enforcement.

An award of damages to an individual injured by a defendant’s negligence or professional malpractice would be entitled to full faith and credit if the judgment is based on application of a professional standard of care, but may not be if the standard of care applied by the ban state’s court is derived exclusively from the state’s law penalizing abortion to protect the health and morals of the populace at large. Similarly, a wrongful death judgment awarded to an aggrieved relative suing on behalf of an embryo or fetus may fairly be deemed penal, rather than remedial, if the tribunal court determines it was based solely on the state’s criminalization of, rather than the defendant’s noncompliance with, a generally applicable professional standard of care.

Of course, even if shield states are successful in declining to recognize and enforce ban states’ judgments, ban states may still place significant burdens on out-of-state health care providers by virtue of remedies granted within their borders. Nonetheless, further delineating the scope of the penal judgment rule could lessen the chilling effect of ban states’ threats of cross-border enforcement and clarify the nature of coequal sovereignty among sister states.

Lindsay Wiley is a law professor at the University of California Los Angeles and faculty director of its health law and policy program.

Suggested Citation: Lindsay Wiley, New York Courts Should Reject Texas’s Attempt to Enforce its Abortion Ban Beyond its Borders, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Sep. 29, 2025), https://statecourtreport.org/our-work/analysis-opinion/new-york-courts-should-reject-texass-attempt-enforce-its-abortion-ban