Extraterritorial Civil Liability After Mallory: A Potential New Weapon for Anti-Abortion States in the Interstate Abortion War

Dobbs v. Jackson Women’s Health Organization marked the culmination of a decades-long movement to overturn the constitutional right to abortion established in Roe v. Wade. The decision commenced an interstate abortion war, in which anti-abortion states are now seeking to enforce their anti-abortion statutes in pro-abortion states. One such statute is Senate Bill 8 (“S.B.8”), a Texas anti-abortion statute that utilizes civil liability to prosecute anyone for “aiding or abetting” abortion. The year after Dobbs, the Supreme Court issued their opinion in Mallory v. Norfolk Southern Railway Company, which upheld a Pennsylvania consent-by-registration statute and allows Pennsylvania courts to exercise general jurisdiction over registered out-of-state corporations. Under the Mallory standard, S.B.8 could force registered out-of-state corporations to defend themselves in Texas courts for “aiding or abetting” out-of-state abortions if they provide insurance coverage or paid time off to employees to have abortions in pro-abortion states. Texas could thereby impose an enormous legal risk on out-of-state corporations doing business in Texas for supporting their employees’ access to abortion. Given the Court’s deferential standard governing horizontal choice of law, it appears unlikely that either the Due Process Clause or the Full Faith and Credit Clause would prevent the extraterritorial application of S.B.8 through reasoning of Mallory. This Article discusses how the Employee Retirement Income Security Act of 1974 (ERISA) preemption may provide a federal statutory means of mitigating some of the most severe effects of the extraterritorial application of S.B.8 and instructs that pro-abortion states must pass new statutes requiring corporations to provide abortion coverage and shield laws creating their own protective causes of action and barring compliance with subpoenas related to S.B.8-style claims. This Article further recommends that pro-abortion states directly fund abortions within their borders to thwart anti-abortion extraterritoriality while advancing reproductive justice.