Should one state be able to reach into another and nullify that other state’s exercise of its plenary power to regulate on a matter touching the health, safety, welfare, and morals of its inhabitants—especially if that exercise is in favor of a vulnerable class of humans?

 

After almost a half-century of political strategy and effort, the pro-life movement celebrated the Supreme Court’s decision in Dobbs, which de-constitutionalized the private destruction of unborn human life and sent the difficult question of how to balance the liberty interests of pregnant women against the right to life of the most powerless humans back to the states for democratic deliberation.[1]

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But though Dobbs does not impose on any state a certain approach to abortion, many governors and legislatures zealously undertook to nullify Dobbs by empowering telehealth abortion-pill dealers within their states to export abortifacients to states that had banned abortion. These so-called “shield laws,” which are meant to immunize those abortion purveyors from the legal and professional repercussions of violating another state’s abortion code, represent a mortal threat to the federal system of the United States.[2] And they do so by denying the most basic right to bear human life and by betraying the founding proposition of our republic: that each human life is created equal.

 

On 30 September 2026, the states of Arkansas, Alabama, and Louisiana filed a motion for the Supreme Court to entertain a bill of complaint against the states of New York and California and the Commonwealth of Massachusetts concerning these abortion “shield laws.” This suit, Louisiana v. New York, is a direct application to the Supreme Court given that the matter would fall under the Court’s original jurisdiction, involving as it does a dispute between states.

 

The filings, submitted by the attorneys and solicitors general of the southern states named above, are well-done and make for bracing reading.[3] Besides the submissions to the Supreme Court, the Louisiana solicitor general informed the Fifth Circuit Court of Appeals of another suit, Louisiana v. Nouhavandi, filed the same day in the Western District of Louisiana, “against nearly three dozen individuals and entities responsible for remotely dispensing FDA-approved mifepristone in Louisiana, Arkansas, and Alabama.”  The reason for this notice to the Fifth Circuit is that these recent suits follow upon another already with that circuit court, Louisiana v. FDA, which seeks to reimpose the FDA in-person dispensing requirement for mifepristone.[4]

 

 

Tempering Higher-Law Passion through Republican Structure

 

After Dobbs, those committed to abortion wanted to “fight back.”[5] Let us assume that what motivates them is some sense of a higher law that takes the autonomy of women to be compromised when the right to life of their unborn children is acknowledged. We pro-lifers are, analogously, in the same position with regard to the cause of human rights and the moral pressure it generates in us when faced with profound injustices, convinced as we are that the natural law requires the protection of each innocent human life. But we, like everyone else, must channel the crusading fire sparked by conviction of moral right through republican processes and democratic deliberation. There is no pope whose authority we all acknowledge to specify the content of the higher law.

 

Consider the fortunes of “substantive due process,” the legal doctrine that has been used to vindicate unenumerated rights under the Fifth and Fourteenth Amendments’ due process clauses, the former barring the national government and the latter barring state governments from depriving any person “of life, liberty, or property, without due process of law.” Going beyond a guarantee of just procedure, substantive due process is a way of limiting governmental power to legislate, in the name of higher-law or natural-law rights inherent in the “liberty” of human persons.[6] But in the Lochner era of Supreme Court jurisprudence (1897 or so until 1937), this reasoning was used to defend a higher-law “right to contract,” which was wielded to strike down state and federal laws intended to humanize miserable conditions for workers during the age of laissez-faire capitalism leading up to the Great Depression.[7] Substantive due process was repristinated by Griswold in 1965 to serve a different moral and political sensibility. The upshot: higher-law reasoning can be imported into our legal framework to wildly different effect. To feel the pressure of natural justice is not the same as interpreting that pressure aright. One necessary way of tempering the anti-democratic fire of moral conviction is by having it work through the complicated constitutional machinery designed to blunt the effects of political passion.

 

Pro-abortionists and pro-choicers have the same recourse in our wisely constructed system of distributed power: to win the democratic argument state-by-state.

 

But pro-abortion states are not simply burning with the same kind of fire pro-lifers feel in their bones when they enact shield laws. They are taking steps to nullify a key feature of our republic: the federal system itself. This system does not establish, and does not recognize, a hierarchy of states by which one gets to impose its will upon another because its ethical judgments are supposedly superior. This horizontal federalism is essential to the structure of our republic, laid out as it is in Article IV of the Constitution.[8]

 

Shield laws are a mortal threat to the design of our republic. If many of these pro-abortion politicians correctly note the violations committed by the current presidential administration against the checks and balances of our republic, they are found to be profoundly hypocritical in seeking to destroy one of the central pillars of American order.[9]

 

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Interstate Comity versus Interstate Tyranny

 

Article IV’s horizontal federalism has been conceptualized under the term “interstate comity.” Comity is from the Latin adjective comīs, which means affable or friendly. What we are witnessing with telehealth shield laws is an assault on interstate order, but it is, more profoundly, an intensification of the breakdown in the civil friendship without which no society can long survive.

 

When the Framers of the Constitution met in Philadelphia in 1787, they knew a remedy had to be devised for the fatal decentralization of the American states under the Articles of Confederation. But the new constitutional union, despite its brilliant construction, could not ultimately contain the mutual suspicion and indeed hatred, rooted in sectional and cultural differences, epitomized in the slavery question, that would result in the Civil War. After that calamity, given the misuse of state sovereignty for the perpetuation of white supremacy by the secessionist states, the United States required re-founding, as Lincoln had argued, in light of the fundamental, pre-constitutional American proposition expressed in the Declaration of Independence: every human is created equal. The Civil War Amendments (the Thirteenth, Fourteenth, and Fifteenth) tipped the federalist balance more towards the national government. This re-balancing was exigent because of the unconscionable white-supremacist policies and practices of the slave states, which persisted in the Jim Crow era and which have not yet been fully remedied. It must be candidly acknowledged that there are still injustices along these lines in the states justly fighting shield laws. Indeed, the red states that once belonged to the Confederacy constitute the majority of states with strong abortion restrictions.[10] If we want to persuade those who do not agree with us about the need to care for powerless human life, we have to undergo a perpetual examination of conscience (the first condition of credibility) concerning the consistency of our own commitment to the equality of each human life.

 

The grotesque depredations committed by white-supremacist populations (voter suppression, lynching, race massacres, the whole horrendous American history of terror waged against blacks) required some real constraint on state police power, preeminently through the Fourteenth Amendment. (And that has opened the door to a reconsideration of the national government as a kind of avenger of unenumerated rights against the states.) But the postbellum re-balancing did not destroy the essence of American federalism: dual sovereignty shared between state and national governments, each state retaining a plenary power to enact laws and regulations concerning the health, safety, welfare, and morals of its inhabitants (the “police power”). The U.S. Constitution does not lodge the police power in the “federal” or national government, except indirectly, so that the power directly reposes in the states alone.[11] As the Tenth Amendment makes clear, the national government only has the limited powers that the Constitution designates it as having. In any case, Dobbs more or less removed the national government from the abortion equation.[12]

 

So we are left with the police powers of one state up against the police powers of another when it comes to abortion. State sovereignty can almost be summed up in the proposition: a state has complete police power within its own borders. But if that is so, logically, one state facing another cannot say, we will cause our moral determinations to trump the moral determinations the people within your state have enacted through your own republican government. With the telehealth shield laws, New York, California, Massachusetts, and others presume to project their pro-abortion policies into states that have committed to safeguarding unborn human life. As a usurpation of the processes of republican self-government of one state by another, such a project is, even before we get to the human rights actually at stake, an act of tyranny. It is the moral imperialism of the self-righteous crusader.

 

I am sorry to say that Massachusetts was the first to enact a telehealth shield law under Governor Charlie Baker. He began the process on the very day Dobbs was decided, 24 June 2022, stating: “I am deeply disappointed in today’s decision by the Supreme Court, which will have major consequences for women across the country who live in states with limited access to reproductive health care services.”[13]

 

In their supporting brief for having recourse to the original jurisdiction of the Supreme Court, the pro-life state plaintiffs note, “Although pro-abortion states have adopted telehealth shield laws, such laws have nothing to do with abortion within the borders of those states. Instead, the sole purpose of a telehealth shield law is to facilitate abortion by mail in pro-life states. For that reason, shield laws are not shields at all—they are swords disguised as shields and driven into pro-life states.”

 

One wonders whether Baker, Hochul, Newsom, and their legislatures were operating on any coherent constitutional theory? At least white supremacist John C. Calhoun could riff off the anti-federalist compact theory of the union. Do the shield-law officials have anything more than high moral dudgeon to stand on? Something like: “I am absolutely certain that women’s rights require that we export drugs fatal to human life into states that have outlawed them?” Is there any serious political analysis here at all?[14]

 

 

Conclusion: A Fire Bell in the Night

 

Pro-lifers spent decades involved in the political process to move the Supreme Court towards the decision it reached in Dobbs. Having lost that political fight, pro-abortion true believers seek to nullify the Court’s decision to send the abortion question back to the states for democratic deliberation by blowing up an essential element of our republican order: setting up pro-abortion states in papal primacy over pro-life states. Pro-lifers played by the rules, and now the abortion power wants to take their ball and go home, though they had won and won for decades under the same rules—just as the nullifiers of South Carolina did upon the election of Lincoln, accustomed as they were to controlling the national government.

 

What are pro-lifers to do? Louisiana v. New York is the correct next step in terms of our system of government. But if pro-lifers are forced to accept the destruction of interstate comity, accept the projection of a death-dealing abortion power into their states, then the system will certainly break down eventually. We should keep the Fugitive Slave Acts in mind. The original was passed in 1793, but the free states rightly and continually undercut its provisions. A more extreme form was included in the Compromise of 1850, because nothing so enraged the slave states as free-state noncompliance in returning slaves who had escaped to freedom. But this only ginned up the rage coursing through the body politic. Suborning free states to serve as agents of re-enslavement: the Union could not bear it. Can the union bear the export of death from one state to another against the latter’s moral determination?

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So here we are. Not only is the projection of the police power of one state into another impossible to sustain, the substantive moral issue at stake is analogous. The only possible ground, certainly extra-constitutional, to destroy the system of horizontal federalism would be higher law. For proponents of shield laws, the liberty of women requires the death of babies. What a grotesque, and typically phallocratic, perversion of the notion of liberty.

 

All sides need to respect constitutional order regardless of the higher-law fires burning within. There is no future for America unless we find our way back to the comity required of humans equal to one another.[15] We all need to recover our humanity—and recover everyone else’s.

 

________________

[1] This is where the question should be handled in our democratic republic, structured as it is as a federal system. There are pro-lifers who wish to invert the situation we had under Roe, Doe, and Casey, preempting state deliberation in service of the pro-life position. That is not how our federal republic should operate: under our system, each state alone possesses the police power—not the national government. A democratic republic makes each of us responsible for causing the truth to prevail not through compulsion first, but through persuasion.

     That said, if pro-lifers in enough of the several states win a majority of their fellow citizens over, then amending the Constitution to acknowledge the right to life of the unborn could be pursued. But, at this point, we are not in a position to handle this well. After Dobbs, so-called abortion “abolitionists,” with their predilection for punishing mothers who undergo abortion, have usurped the pro-life mantle, doing more to make the pro-life position seem extreme than pro-choicers could ever manage. In general, too many pro-lifers are given over to an obsessive need to follow through, “logically,” a certain moral theory even to results that are blatantly catastrophic morally (a la craniotomy and they-must-both-die pontifications, almost always pronounced by men trapped in an androgynous, though secretly androcentric, ethical universe). Moral realism is not the same as moral madness: it is the opposite. For this Catholic moralist, holding as I do to the Thomistic maxim that grace does not destroy nature, moral realism must in fact serve the supernatural demands of divine love. Without a prudential moral realism, a Lincolnian sensibility, pro-lifers will not be trusted with women’s lives—nor should they be. Political order requires both principle and pragmatism. If pro-lifers go out there in the public forum and say that there is no need for a life-of-the-mother exception because double-effect, “it’s not really an abortion,” etc., they thereby prove themselves lacking in the requisite moral and intellectual virtue of prudence. The difficult interface between the practice of medicine, care of the unborn child, and care of the mother requires immense prudence to navigate.

     Another measure of pro-life ripeness to make the case nationally: if pro-lifers recognize that the right to life outweighs any liberty interest, does that mean we should not take seriously those liberty interests of women that are in fact implicated in pregnancy? Indeed, if we do not, we would rightly be seen as ethically unserious and rightly suspected of misogyny in our defense of unborn babies.

     The fact is, much of the work ahead of us requires far more than legislation. Perhaps above all, pro-lifers need to flood the field of obstetrics, which is corrupted by eugenic ideology, as well as by misogynistic practice—going all the way back to its origin as antagonistic to the deep and irreplaceable womanly wisdom of midwifery. If OB-GYNs cannot be relied upon to adhere to wisdom, science, and facts over ideology, then there will always be a hard limit to what pro-life legislation can actually accomplish. For instance, if the eugenics-driven scaremongering that is triggered in cases of preterm premature rupture of membranes (PPROM), with doctors haranguing women to abort without any thought to treating both mother and child as patients entailing professional care (as mothers desire), then life will continue to be destroyed and mothers (and fathers) will continue to be traumatized. Legislation cannot fix this. We cannot micromanage experts. If a field of expertise has become corrupted, the only solution is to revive it from within with ethical and truly competent new professionals.

[2] See Carolyn McDonnell’s excellent Sebastian’s Point on this: https://www.societyofstsebastian.org/shield-laws-mcdonnell.

[3] https://www.courtlistener.com/docket/73207799/407/state-of-louisiana-v-fda/. Besides the bill of complaint to the Supreme Court, there is also a “Brief in Support of Motion for Leave to File Bill of Complaint,” making clear the exigency of the interstate question at stake.

[4] We will recall that the Supreme Court in May 2026 suspended the Fifth Circuit’s temporary reinstatement of the in-person dispensing requirement as that circuit court considers the case. The prevalence of abortion drug usage only increases: about two out of three abortions in the U.S. are now medication or chemical abortions, https://www.guttmacher.org/fact-sheet/induced-abortion-united-states.

[5] New York Governor Kathy Hochul stated in a press release announcing her state’s original 2023 telemedicine shield law: “We are witnessing a shameful regression of women’s rights in this country as abortion access is restricted in states across the nation. In New York, we remain committed to ensuring abortion remains safe, accessible, and legal. This legislation will help more women access medication abortion and reproductive care by ensuring our health care providers can deliver telehealth services to out-of-state patients without fear of legal or professional repercussions. With this bill, New York is continuing to fight back against restrictive abortion laws and help more people access the care they need.” https://www.governor.ny.gov/news/eve-dobbs-decision-anniversary-governor-hochul-signs-legislation-strengthening-access

[6] Of course pro-lifers are sensitive to the prior member of the list of goods: life. Be that as it may, pro-lifers are wary of substantive due process because Roe and Casey belong to the latter line of substantive due process cases stemming from Griswold v. Connecticut and its assertion of a right to privacy. But it should be noted that there is no reason for a pro-lifer, for pro-life reasons, to reject such a right. As Dobbs notes, there is a decisive fact separating Roe (and Casey) from the others in this line: the presence of another human life. If pro-lifers continue to denigrate the right to privacy (which is certainly a natural-law right implicated, say, in Vatican II’s Declaration on Religious Freedom Dignitatis humanae), they will fail to earn the trust of fellow Americans.

     That said, the analytically unserious “mystery of life” passage from Casey, with its expansion of the right to privacy into an expansive right to autonomy, was mercifully and correctly rejected in Dobbs. Certainly, as the Ninth Amendment states, and as ratification arguments concerning inclusion of a Bill of Rights made clear, the Framers did not think of the Constitution as the source of the rights enjoyed by the people. As the Declaration had already expressed, this system of government is the servant of natural rights—not their master. Nevertheless, the Constitution is meant to render practicable a life together for people whose thumos for natural rights does not obviate the insuperable epistemic difficulty of coming to agreement concerning the balance of such rights—or even of their identification.

     So, it seems to me that Dobbs reasonably reaffirms criteria for the use of substantive due process under the Fourteenth Amendment: “That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty’” (Washington v. Glucksberg 1997). Dobbs well lays out the facts bearing on a “right to abortion” in American history. As far as ordered liberty: how can employment of the law to shield the private taking of human life belong to any humane order?

[7] These were the deplorable conditions Pope Leo XIII addressed in the founding document of modern Catholic social doctrine, Rerum novarum. You have natural law being used to defend worker rights in that encyclical (with the pope pointing out that the right of contract is not absolute, that natural justice measures it), and the exact opposite result from the Supreme Court in the same era.

[8] Article IV’s delineation of interstate obligations includes the Full Faith and Credit Clause, the Privileges and Immunities Clause, and the Extradition Clause. We might consider the shameful Fugitive Slave Clause (and subsequent Fugitive Slave Act of 1793 and its intensification in the version included in the Compromise of 1850) in this respect. Surely free states were right not to want to cooperate with slavery’s grotesque violation of equal dignity—though the difficulty was its enshrinement in the Constitution. What of the projection of a pro-abortion state’s death-dealing against the most powerless human life into a state that seeks to protect that life?

[9] Given these most weighty concerns about republican order, I am also not sympathetic to efforts, starting with Mitchell County in Texas, to criminalize “abortion trafficking.” And prosecuting citizens of pro-life states for being involved with an abortion obtained in a pro-abortion state is a non-starter given the constitutional right to interstate travel. In any case, extraterritorial jurisdiction is not a feature of horizontal federalism.

[10] https://states.guttmacher.org/policies/. If we are to minimize the dangers of moral self-righteousness, we will all need to be mindful, pro-lifers and pro-choicers alike, of the general situation beyond the crucial issue at stake. There are no good guys versus bad guys at this point, as perhaps when slavery was the bleeding issue. Yes, pro-lifers are defending the most basic of human rights in fighting abortion, but many have combined this with a noxious recrudescent misogyny and xenophobia and racism (deport them all, repeal the 19th amendment, etc.) The proportion is flipped for the blue states: a care, not always clear-sighted but present, for the dignity and protection of women and strangers and minorities combined with defense of a private right to execute the most powerless humans. The constitutional system must hold, and that means we have to find our way back to civil friendship. This begins by acknowledging how terrible each of our sides can be, how full of errors hidden to ourselves each of us is, and pledging to discover together what is required by our founding proposition that each human is created equal.

[11] There are significant qualifications to this arrangement arising from the most expansive of the enumerated national-legislative powers: the commerce clause and the taxing and spending power. The second backdoor to a national preemption of state exercise of its police power is the constitutionalization of certain human and civil rights by the Supreme Court, “incorporating” over the last century most of the provisions of the first eight amendments of the Bill of Rights into the Fourteenth Amendment under the doctrine of substantive due process. Unenumerated rights thus incorporated have been discussed above. This tendency to have the national government vindicate natural rights against the states is not unreasonable, instigated as it was by the grotesque injustices generated by white supremacy. But the big picture needs to be remembered: the federal system of sovereignty shared by national and state governments was designed so that they might check each other in the interests of natural rights (the Declaration: “to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”) If either state or national government gains an undue share of power in the system, tyranny will result.

[12] There is still the question of the regulation of mifepristone by the FDA. The elimination of the in-person dispensing requirement under the Biden administration is a matter of ideology trumping the safety of women and girls. The overriding good is abortion, in this view, rather than facing up to the coercive conditions often surrounding abortion. Even when it comes to the medical aspects involved: who thinks pregnancy care could be reduced to telehealth visits? An abortion is not a trivial matter, and mothers deserve that a sufficient intensity of care be directed towards them and that conditions of informed consent be met.

[13] https://www.wgbh.org/news/politics/2022-06-24/baker-signs-executive-order-to-shield-mass-abortion-providers-from-lawsuits. And now my former state has gone even beyond Roe, beyond California and New York, to remove all restrictions on abortion, even after viability, even up to birth.

[14] Take this gem from the League of Women Voters (!) in a piece on substantive due process, “The Lochner Court: Substantive Due Process and Its Effect on the Supreme Court Today,” https://www.lwv.org/blog/lochner-court-substantive-due-process-and-its-effect-supreme-court-today: “This split between a Supreme Court against reproductive freedom and an electorate favoring it presents a serious challenge to the separation of powers. Like the current Court, the Lochner Court repeatedly struck down reforms enacted by the elected branches of government, restricting the rights of millions of American workers.”

     Where to start. “Separation of powers” bears on the coordinate branches of government. But even more amazing: the author seems to think that the supposed right to abortion was enacted by the elected branches of government, rather than having been invented wholecloth by the Supreme Court itself. Dobbs strikes down no laws enacted by the elected branches of government. Of course, civic illiteracy, an existential danger to a self-governing republic, is general.

[15] A robust defense of the states as laboratories of democracy is essential to the American republic—though we have, by trial of war, excluded white-supremacist policies as a proper object of such experiment. Pro-abortion activists will claim that women are being treated analogously to the way blacks have been treated (MAGA’s strong proclivity towards racism and its overlap with the secessionist states does not help here) and yet the analogy in fact maps differently: abortion true believers deny the full humanity of the unborn child, against basic science and the basic operations of philosophical intelligence. They are re-enacting the ideological moves of such white-supremacist theorists as John C. Calhoun and Henry Hammond in making the full humanity of a human simply disappear. Here I note, because of its relevance, the same ideological move, except in exactly the same key, is being pursued by Deputy Chief of Staff Stephen Miller, et al., and in the misogynist and phallocentric rantings of too many online MAGA mouthpieces to count. Where are the consistent advocates for basic human rights? Where are they?

     The old pro-life Democratic vision, which took inspiration from Catholic social doctrine, is the only way forward for the pro-life movement. We have to reclaim our role as standard-bearers of universal human rights, which is progressivism in its truth. For one thing, this would require recognizing the legitimate claims of feminism, which are manifold. We must not be shy about being pro-life feminists again, no matter what retrograde tendencies have been indulged for the sake of a party alliance that has corrupted the American soul.

     If you hear the anguish, it is of an old movement hand who is watching in disbelief as I see the betrayal of our humanist ideals in favor of misogyny, religious zealotry, and Christian nationalism. The great lie. It is killing our movement, and so will shield the continued killing of babies. If we want to get serious about saving babies again, we need to be converted towards a social vision that cherishes women and that accounts for the great burden they bear for the human race. A social vision serious enough to provide a decent level of welfare to help mothers not be terrified about the prospect of supporting a new life. A social vision in dead earnest about combating violence against women. We need to show in our everyday life and actions that we will make the sacrifices necessary not only to see mothers through to birth but also see families through the long, and increasingly difficult (financially, socially), journey of raising a child—to help with housing, childcare, the provision of the goods necessary for each young soul to expand into becoming creative agents of human good.

     This means red states need to recover their souls. Anti-abortion laws as part of an agenda of anti-liberalism would simply mean a damnable political project of phallocracy and white supremacy. One fire must burn in us: to vindicate the equal dignity of every human without exception.

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