Abortion and the Wayfair Case

How a use tax on mifepristone might scramble abortion debates.

Yesterday in my conflict of laws class I taught South Dakota v. Wayfair, the 2018 case which lets states force out-of-state sellers to collect and remit use taxes. This morning I wondered why it hasn't been invoked more in the debates over interstate restrictions on abortion.

Wayfair involved a South Dakota requirement that businesses pay sales taxes on the products they sell into the state. If they don't, their customers are supposed to pay a use tax at the same rate, which of course they rarely do. The Court held that South Dakota could, under the Fourteenth Amendment's Due Process Clause and the "dormant" Commerce Clause, require Wayfair to collect and remit the tax itself, even if Wayfair didn't have any physical presence in South Dakota. Instead, due process would be satisfied so long as Wayfair was subject to South Dakota's personal jurisdiction—which they were, purposefully availing themselves of the South Dakota market by shipping products there. And dormant commerce would be satisfied through a multiprong test, focusing in particular on whether Wayfair's activity had "a substantial nexus with the taxing State," and noting that it's "'long been settled' that the sale of goods or services 'has a sufficient nexus to the State in which the sale is consummated,' i.e., that 'a sale is attributable to its destination.'"

I mention all this because Wayfair might scramble current debates over abortion pills like mifepristone. Suppose an out-of-state entity—a pharmacy, an abortion-rights nonprofit, etc.—ships abortion pills to a user in a state where abortion is illegal. Right now the Supreme Court is considering a case asking whether this use of the mails is illegal under the Comstock Act (though it might well be resolved on standing grounds instead). And a state that made such shipments illegal might have trouble enforcing its laws across state lines; one state's "penal judgments" typically aren't enforced by another, as a longstanding exception to judgment recognition.

So what if the state follows the Al Capone strategy and uses tax law instead? Say that Alabama imposes a use tax on mifepristone, which it would ordinarily require the user to pay, but which it also requires the provider to report, collect, and remit. There'd be a sufficient nexus, insofar as a sale is attributable to its destination. The tax would apply equally to in-state and out-of-state mifepristone providers, eliminating any claim of discrimination against interstate commerce. And while the Court in Wayfair emphasized the amount of business being done, it didn't endorse a strict minimum of how many shipments are needed to satisfy the commerce clause; after all, why should an out-of-state provider be allowed to evade a tax which an in-state provider would be obligated to pay? (The other parts of the dormant commerce test, derived from the Complete Auto case, could likely be satisfied too; and there's no rule against taxing illegal activities—cf. how they got Capone.)

If a state did tax mifepristone, it could probably get that tax enforced. While the general doctrine is that foreign tax judgments are only enforceable by the sovereign imposing the tax, the Supreme Court changed course as to state tax judgments in 1935, holding that every other state owed these judgments full faith and credit. So if Alabama had someone purchase mifepristone from an out-of-state pharmacy, and if it didn't receive a payment on time, it could initiate tax proceedings against the pharmacy in its own courts, and then potentially pursue recovery in other states—all the while imposing penalties for nonpayment. The various shield laws that states have enacted, purporting to bar enforcement of out-of-state laws or judgments restricting abortion, wouldn't necessarily stand up against a judgment entitled to full faith and credit. (Or a state might use the Supreme Court's original jurisdiction against an out-of-state citizen; or, depending on the amounts involved, a county or city might be able to use diversity jurisdiction to enforce its tax judgment in federal court.)

The point of all this isn't necessarily to outline a strategy for restricting abortion, but to note some reasons why we should feel less confident about Wayfair! It's very strange that an out-of-state actor might be obliged to look up and follow other states' tax laws, reporting on transactions and so on, even if we think those states lack power to regulate the actor in general. It's just that the strangeness is easy to miss when the issue is competition between online and brick-and-mortar purveyors of office supplies, and a lot easier to see when the issue is having to report your shipments of abortion pills (names, addresses, etc). The natural regulator for interstate shipments is Congress, which may have already banned interstate shipment of abortion pills in the Comstock Act, but which generally allows office supplies to move across state lines. But because the Biden Administration has "interpreted" the Act in an extraordinarily narrow way, we have neither an effective federal entitlement to send pills through the mails nor an effective federal prohibition either. Yet so long as each state can require out-of-state actors to collect and remit taxes, each state can further entangle itself in the abortion debate too.