One of the lightning-rod issues likely to energize legislative debate this session involves a highly complex and arcane question of federal constitutional law: can Texas prosecute someone for receiving, performing, or “aiding and abetting” medical treatment that is illegal in Texas but legal in the jurisdiction where the treatment occurs? This issue has already arisen in SB 8-related litigation, as we have previously reported, and we also expect to see it in efforts to bar treating minors for gender dysphoria, modification, or reassignment (and perhaps other things as well).
A complete answer to this question would require a legal treatise far beyond our capacity to write or this website to bear. But for purposes of beginning a conversation, we think it useful and constructive to identify the contours of the issue and the potential constitutional pitfalls of trying to expand Texas’ criminal jurisdiction across borders to reach conduct that is legal in other states (“extraterritoriality”).
The basis of a general presumption that a state criminal statute may not be enforced beyond the state’s borders lies in the Sixth Amendment of the U.S. Constitution, the so-called “Vicinage” amendment. This provision states that “[I]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law . . . .” As many courts have pointed out, however, criminal activity may occur in multiple states. A 1911 U.S. Supreme Court decision promulgated the “effects doctrine,” which holds that “[a]cts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, [can] justify a State in punishing the cause of the harm.” Strassheim v. Daily, 221 U.S. 289, 285 (1911). The effects doctrine was incorporated into the Modern Penal Code published by the American Law Institute in 1962 and has become a mainstream feature of determining whether a state may prosecute another state’s citizens for crimes, the “effects” of which are felt in that state.
That being said, there are constitutional limits to the application of the effects doctrine, specifically the Due Process Clause of the Fourteenth Amendment. We are generally familiar with a due process analysis to determine whether a state court has personal jurisdiction over an out-of-state party, but the analysis is not quite the same in the criminal context. Whereas personal jurisdiction is a matter of “minimum contacts” with the forum state and whether exercising jurisdiction “comports with fundamental notions of fair play and substantial justice,” the standard in a criminal proceeding involves the “fundamental fairness” of the extraterritorial application of a state penal statute in light of the Sixth and Fourteenth Amendments. See United States v. Cores, 356 U.S. 875, 877 (1958) (“The provision for trial in the vicinity of the crime is a safeguard against the unfairness and hardship involved when an accused is prosecuted in a remote place.”); United States v. Cobrales, 524 U.S. 1, 6 (1998) (“Proper venue in criminal proceedings was a matter of concern to the Nation’s founders.”)
Thus, for example, it does not violate the Sixth Amendment that a crime committed in multiple states may be prosecuted in each state. United States v. Rodriguez-Moreno, 526 U.S. 275, 281 (1999) (“[W]here a crime consists of distinct parts which have different localities, the whole may be tried where any part can be proved to have been done.”). The due process “fundamental fairness” analysis scrutinizes the nexus between the defendant, the defendant’s acts, and the forum state. As the Fourth Circuit has ruled, “Fair warning does not require that the defendants understand that they could be subject to prosecution in the United States so long as they would reasonably understand that their conduct was criminal and would subject them to prosecution somewhere.” United States v. Brehm, 691 F.3d. 547, 554 (4th Cir. 2012). The D.C. Circuit echoed this reasoning, stating that “[W]hat appears to be the animating principle governing the due process limitations of extraterritorial jurisdiction is the idea that ‘no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed. . . . The ‘ultimate question’ is whether ‘application of the statute to the defendant [would] be arbitrary or fundamentally unfair.’” United States v. Ali, 718 F.3d. 929, 944 (D.C. Cir. 2013); see also Bouie v. City of Columbia, 378 U.S. 347, 351 (1964) (holding that the South Carolina Supreme Court deprived the accused of their right to fair warning of a criminal prohibition, thus violating the Due Process Clause).
These cases, however, involve conduct that has been universally criminalized by federal and state statutes, such as fraud and smuggling illicit drugs. By contrast, the Legislature may consider proposals to criminalize conduct that is legal in other states, such as receiving certain medical treatments. Under these circumstances, it is not at all clear how the federal constitutional analysis would play out. If, for example, a statute sought to hold a medical practitioner in another state criminally liable for treating gender dysphoria, one question would be whether that practitioner might “reasonably understand” that his or her conduct was criminal and may be prosecuted “somewhere.” But even if that practitioner knew that some states proscribed that conduct but his or her state did not, would it be “arbitrary and fundamentally unfair” for a Texas statute to criminalize the practice of medicine in another jurisdiction? Stated another way, is it “arbitrary and fundamentally unfair” to put a practitioner in the position of treating patients based not on their medical condition, but on their state of residence?
Another possible question is how the “effects doctrine” might operate in a case like this. For example, consider the following scenario. A Texas resident who desires or requires a medical treatment criminally proscribed in Texas performs an internet search for practitioners in other states where the treatment is legal. The search results in a number of hits. The resident inquires about treatment either through the site or by email or telephone. If the practitioner replies to the inquiry, and the resident ends up traveling out of state for treatment from that practitioner, has the practitioner committed a crime in Texas by virtue of having a website that can be viewed by Texas residents? Put another way, does the practitioner expose itself to criminal liability in Texas because even communicating the availability of such treatment might be viewed by a Texas resident regardless of whether a Texas resident actually follows up and receives treatment? Some proposals the Legislature may consider this session would raise this very question. While this type of remote communications with a victim or accomplice in the forum state have been held to constitute an element of a crime committed in the forum state, those cases again involve conduct recognized as criminal in both jurisdictions, not just in one of them.
Whether other constitutional protections, such as First Amendment speech and association rights, may be implicated is a discussion for another day, as is whether statutes seeking to criminalize or otherwise regulate the conduct of health care providers that is lawful elsewhere makes good public policy as a general matter. The only certainties seem to be that the Legislature will consider bills that involve these issues, and that, if any such proposals are enacted into law, the courts will get to hear all about it.