The Penal Judgment Exception to Full Faith and Credit: How to Bind the Bounty Laws

Abstract: In the current moment of interstate friction over abortion, the penal judgment exception poses a barrier against interstate enforcement of bounty laws. A doctor who prescribes a medicated abortion to a Texas patient may be exposed to civil liability—even in faraway Washington State. A Washington court asked to enforce a Texas judgment against the doctor is subject to the Full Faith and Credit Clause. Article IV, Section 1 of the United States Constitution mandates that each state give full faith and credit to judgments rendered in sister states. Under Texas Senate Bill 8 (S.B. 8), any member of the public may obtain a civil judgment in state court against anyone who performs, aids, or abets an abortion. This Comment argues that, despite the exacting requirements of the Full Faith and Credit Clause, courts in other states are not obliged to enforce such judgments. Bounty laws like S.B. 8 impose civil liability that may be recovered by any member of the public, rather than a person with a private right. The law punishes an offense against the state. S.B. 8 is therefore a penal law that, under what is called the penal judgment exception, is not due full faith and credit under the Constitution. The penal judgment exception applies when the judgment does not satisfy a private right and punishes an offense against the state. It is narrow but has been established by the Supreme Court during past moments of interstate friction. This Comment surveys that history and illustrates how the exception preserves the evidentiary, res judicata, and comity goals of full faith and credit within the federal system. Bounty laws threaten the federal balance, but they can and should be bound by the penal judgment exception.