16 attorneys general led by Tennessee’s AG Jonathan Skrmetti have penned a stern letter aimed at Maine’s Democratic leadership, denouncing a progressive bill that they say could ignite a nationwide “culture war.”
The bill in question, LD 227, seeks to enshrine the right to abortions, transgender surgeries, and hormonal treatments in Maine, drawing fierce criticism from these attorneys general, stating it infringes upon the Constitution.
The attorneys general, all Republicans, sent their letter to Maine Governor Janet Mills, Attorney General Aaron Frey, and the state legislature’s leadership on Monday.
They argue that the bill is an unprecedented and “novel effort at state-sanctioned culture war litigation tourism,” which could have serious constitutional implications.
LD 227 offers legal protection to those traveling to Maine to access medical procedures that may be banned or heavily restricted in their home states.
However, the Republican attorneys general contend that the bill does not just provide a legal shield for healthcare providers and patients against out-of-state laws but also paves the way for Maine to impose its regulatory will on other states.
They claim that LD 227 would allow for Maine to create a private right of action for damages against law enforcement and officials in other states who are simply upholding their own laws.
The letter emphasizes that the Constitution’s Full Faith and Credit Clause and the federalist structure of the U.S. prevent one state from interfering with the legislative processes or law enforcement of another. They express concern that LD 227 could set a dangerous precedent, potentially leading to states imposing liabilities on individuals or officials in other states for a wide range of policy disagreements.
Read the full letter below:
We, the undersigned Attorneys General, write to express serious concern regarding LD 227, a bill pending in the Maine Legislature. While it is extremely unusual for States to interject themselves into another State’s lawmaking, LD 227s unique constitutional transgressions merit our comment.
LD 227 seeks to contravene the lawful policy choices of our States’ citizens by imposing on the rest of the country Maine’s views on hotly debated issues such as gender transition surgeries for children.
The law’s far-reaching provisions are unprecedented. LD 227 not only purports to shield from liability those offering or aiding the provision of unlawful services to citizens located in our States a provision Planned Parenthood asserts would “safeguard” Maine providers and patients from “out-of-state laws that ban or restrict care that is legal in Maine.”!
The law also creates a private right of action for damages against law enforcement, prosecutors, and other officials in our States who are enforcing our own valid state laws, even laws whose constitutionality has been confirmed by federal appellate courts. On top of that, LD227 purports to block valid orders and judgments from our state courts enforcing laws upheld by federal appellate courts.
As currently drafted, LD 227 violates the United States Constitution and flouts the federalist structure that allows each of our States to engage in self-government responsive to the will of our citizens.
The Constitution’s Full Faith and Credit Clause, and federal statutes implementing it, mean no state cause of action should ever accrue from a different State lawfully enforcing its own permissible laws or executing valid judgments. E.g., Baker by Thomas, 522 U.S. at 240 (1998).
LD 227’s private right of action likewise runs headlong into well-settled legal principles like comity, jurisdiction, and the rule against States’ discriminatory and extraterritorial regulation of commerce. The federal Constitution, in short, precludes Maine’s novel effort at state-sanctioned culture war litigation tourism.
From a practical perspective, LD 227s ill-considered attempt to influence and intimidate officials in other States could also trigger a rapid tit-for-tat escalation that tears apart our Republic.
One could easily envision a First Amendment Protection Act that creates state law liability for people, even people out of state, who seek to suppress purported hate speech, or a Second Amendment Protection Act that creates liability for those who seek to regulate firearms, or laws that impose harsh penalties on people who express support for one side or another in the war between Israel and Hamas.
If one State does not like another State’s regulatory regime with respect to cars, or food, or alcohol distribution, or whatever else, it could create a tenuous jurisdictional hook to allow the same sort of extraterritorial bullying attempted by LD 227. State officials would be dragged into legal battles in far-flung jurisdictions, thwarting their ability to focus on protecting their own citizens consistent with their own duly-enacted laws.
In America, we have the right to disagree. Maine has every right to decide what Maine’s laws are and how those laws should be enforced. But that same right applies to every State. One State cannot control another.
The totalitarian impulse to stifle dissent and oppress dissenters has no place in our shared America. We will not allow laws like LD 227 to deter us from protecting the integrity of our States’ democratic processes. If Maine pursues LD 227’s constitutionally defective approach, we will vigorously avail ourselves of every recourse our Constitution provides.
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