Columbia Journal of Gender and Law

Abortion, Full Faith and Credit, and the "Judicial Power" Under Article III

Lea Brilmayer — Wed, 28 Aug 2024 00:00:00 +0000

Interstate judgments enforcement is governed by the Full Faith and Credit Clause of Article IV of the Constitution, together with its implementing statute, 28 U.S.C. 1738. Although a highly technical area of the law, interstate judgments enforcement has important social repercussions for some very modern problems of great cultural significance. One of the currently significant applications is the interstate enforcement of judgments rendered in civil suits based on state anti-abortion laws. For example, Texas statute S.B. 8 gives anyone who wishes to sue a civil cause of action against persons who facilitate abortions. Even complete strangers to the abortion can decide to become a plaintiff in such an action and can sue for money “damages” despite having suffered no injury.

Non-experts seem to have the impression that the Full Faith and Credit Clause presents an ironclad requirement that judgments of sister states must always be enforced. If that
were the case, states that recognize reproductive freedom would be obliged to enforce judgments entered into in states like Texas, despite their strong public policy against such actions. This Article shows why this impression is mistaken.

First, the full faith and credit principle has for centuries been subject to exceptions,
several of which are potentially relevant in the reproductive freedom context. These
include lack of subject matter jurisdiction, the public policy exception, and the penal
law exception. In addition, a uniform law adopted in forty-eight states (the Uniform
Enforcement of Foreign Judgments Act) permits the state enforcing the judgment to apply
its own judgments law to an interstate enforcement proceeding. The enforcing state will therefore apply to foreign state judgments any exceptions to judgments enforcement law
that it has as a general matter for its own domestic judgments.

Second, and more importantly, the Clause and statute both contain an important qualification: they apply only to “judicial” actions. This exception prevents a state from requiring sister-state enforcement of decisions that do not meet the usual tests for a judicial “case or controversy” (as defined in Article III of the Constitution). Article III and Article IV both use the word “judicial” to specify the standard necessary for the exercise of federal power. These two neighboring constitutional provisions are supported by a common historical origin (they were drafted at the same time and by some of the same people at the constitutional drafting convention) and fulfill comparable functions. If the two constitutional provisions are treated the same, judgments under statutes like Texas S.B. 8 would not be given mandatory force in other states because such cases would not meet the standing requirement imposed by Article III.

Criministrative Law

Yael Cohen-Rimer — Wed, 28 Aug 2024 00:00:00 +0000

Textual analyses of child welfare laws, joined by extensive textual and legal analyses of case law, reveal how the “dance” between the administrative and the criminal in child protective services (CPS) is rooted in the individualized perception of poverty. This individualization, which forms the bedrock of the capitalist American welfare state, promotes the fragmentation of the family unit. Building on individualized perception and reifying it, child welfare laws and practices are neither purely administrative nor criminal, but “criministrative.” As such, they serve as a legal shield for the State in its attempts
to ensure child welfare; the State refuses to provide protections available in traditional criminal contexts to families involved in CPS investigations, while simultaneously enjoying administrative courts’ less restrictive evidentiary rules. This Article follows the thread of individualized surveillance embedded in the law, starting with the conflation of “abuse” and “neglect.” This Article proposes three solution pathways, building from practical
to theoretical: divorcing neglect from abuse, adopting a Poverty Aware Paradigm, and developing a theoretical framework for an institutionalized “benevolent gaze.”

This Article joins growing discussions in critical legal scholarship concerning the carceral nature of the welfare state and the relationship between care and punishment in
the United States. This Article adds a further dimension to these discussions by asserting that child welfare law is more aptly described as criministrative law, and by exposing the rootedness of the individualized perception of poverty in the organizing concepts of the child welfare system. Finally, this Article calls for a reconstruction of the legal treatment of children who are at risk of harms caused by poverty. If left unchecked, criministrative law will continue to inflict harm upon parents, thus harming the very children that CPS is meant to protect.

"We're Not Giving This Child Back To Lesbians"

Grace McGowan — Wed, 28 Aug 2024 00:00:00 +0000

"We're Not Giving This Child Back To Lesbians": An Examination of LGBTQ+ Parents' Loss of Children to the Family Regulation System