Extradition after Dobbs – divorcing hysteria from credible fear

The Daily Journal published a column on May 18 by Caleb Mason entitled "What happens when Alabama indicts a California doctor for prescribing abortion medication?" Mason posits a scenario in which Alabama indicts a California doctor for violating its post-Dobbs anti-abortion laws by prescribing abortion pills, in California, to a pregnant patient visiting from Alabama, who ingests them after she returns to Alabama. Mason claims that California could be compelled, under the U.S. Constitution, to extradite that doctor to Alabama for prosecution. For those of us who want to protect access to abortion in at least those states that don't outlaw it, this is absolutely terrifying.

A little too terrifying, as it turns out.

While it is certainly plausible that Alabama would indict that doctor, it is not plausible that the U.S. Constitution would compel California to extradite the doctor to Alabama. (Disclaimer: this does not mean that pro-choice Californians have nothing to fear about Dobbs (they do), or that Dobbs won't impact California abortion providers (it will), or that California does not need to worry about protecting its abortion care providers (it does). There is no shortage of valid concerns about protecting access to abortion - and the professionals who practice it - in California after the likely Dobbs decision. But Constitutionally compelled extradition of that doctor is not one of them.)

The reason that the U.S. Constitution could not compel California to extradite the doctor to Alabama is that the doctor was not physically in Alabama when the alleged crime was committed. Mason asserts the opposite: that the doctor's physical absence from Alabama at the time of the alleged crime is irrelevant to the analysis. He states that the U.S. Constitution, as well as Federal and State extradition laws, require California to extradite a person charged by another state with committing a crime, even if the person was not in that state when the crime was committed (e.g., the doctor in his hypothetical). Fortunately, Mason is mistaken about the law. To be more precise, he ignores a critical distinction between State law on the one hand, and the U.S. Constitution and Federal law on the other. It is this distinction that disproves Mason's assertion.

The parts of the U.S. Constitution and Federal law relevant to this issue are the Extradition Clause (U.S. Const. Art. IV, § 2, cl. 2) and the Federal Extradition Act that implements it (18 USC § 3182) (collectively the "Constitutional extradition requirement"). By their own terms, the U.S. Constitution's Extradition Clause and the Federal Extradition Act apply only to a "fugitive" or someone who has "fled" from a state:

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

U.S. Const. Art. IV, § 2, cl. 2 (emphasis added).

Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District, or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District, or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.

18 USC § 3182 (emphasis added).

Accordingly, courts have consistently and repeatedly held that the person whose extradition is sought must be a "fugitive" for the Constitutional extradition requirement to apply. E.g., Hyatt v. New York ex rel. Corkran, 188 U.S. 691, 719 (1903); Alabama v. Engler, 85 F.3d 1205, 1208 (6th Cir. 1996); Moncrief v. Anderson, 342 F.2d 902, 904 (D.C. Cir. 1964). And they have likewise held that extradition under the U.S. Constitution is improper if "the person is not a fugitive." Engler, 85 F.3d at 1208, citing California v. Super. Ct., 482 U.S. 400, 407 (1987); Bruce v. Rayner, 124 F. 481, 486 (4th Cir. 1903) ("He cannot be remanded unless he be a fugitive from justice.").

So, unless Mason's doctor is a "fugitive" (in the context of the Constitutional extradition requirement), the U.S. Constitution could not compel California to extradite him/her.

But what is a "fugitive"? There is no shortage of cases defining "fugitive" in the context of the Constitutional extradition requirement, and they seem to all agree: a fugitive is someone who was physically present in the demanding state when the crime was allegedly committed. E.g., Fowler v. Ross, 196 F.2d 25, 30 (D.C. Cir. 1952) ("He is a fugitive from justice if he was in the demanding state when the crime was charged to have been committed"); Moncrief, 342 F.2d at 904 ("Fugitivity means presence in the demanding state when the crime was allegedly committed."); Hyatt, 188 U.S. at 719 ("as the relator showed without contradiction and upon conceded facts that he was not within the state of Tennessee at the times stated in the indictments found in the Tennessee court, nor at any time when the acts were, if ever, committed, he was not a fugitive from justice within the meaning of the Federal statute upon that subject"); Roberts v. Reilly, 116 U.S. 80, 97 (1885); Bruce, 124 F. at 485 ("to make one a fugitive from justice, it must appear, first, that he was within the state when the crime charged is alleged to have been committed"); Ex parte Thurber, 37 Cal. App. 571, 572 (1918) ("a person who, having within the state committed that which by its law constitutes a crime").

As Mason's doctor was not physically present in the demanding state (Alabama) when the crime was allegedly committed (or at any other time, for that matter), s/he is not a "fugitive" under the Constitutional extradition requirement, and cannot be extradited thereunder. Fowler, 196 F.2d at 30 ("if he was not there then, he is not a fugitive and should be released") (emphasis added). The fact that, while in California, Mason's doctor intentionally took actions that amounted to an Alabama crime and produced a detrimental effect within Alabama, does not bring him within the ambit of the Constitutional extradition requirement. Ex parte Graham, 216 F. 813, 817 (S.D. Cal. 1914) ("To constitute one a fugitive from the justice of a state, it is essential that he should in that state have incurred guilt. It is not enough that outside of the state he committed criminal acts intended to produce, and which did produce, detrimental effects within it.") (emphasis added).

So it is clear that California could refuse to extradite Mason's doctor without violating the U.S. Constitution or Federal Law.

But what about California's state-level extradition law? Unlike the Constitutional extradition requirement, which applies only to persons who were physically present in the demanding state when the alleged crime was committed, California's extradition law permits extradition if the person was merely constructively present in the demanding state. Ex parte Morgan, 86 Cal. App. 2d 217, 223 (1948) (California's extradition law covers "those who commit an act in one state intentionally resulting in a crime in another state."); South Dakota v. Brown, 20 Cal. 3d 765, 771 (1978) ("It is well established that states may agree among themselves to deliver up persons whose rendition is not required by the Extradition Clause, and to extradite persons within that provision on terms less exacting than those established by federal implementing legislation.") citing Innes v. Tobin, 240 U.S. 127, 134-135 (1916).

So, California certainly could extradite Mason's doctor pursuant to its own state-level law. But could it be compelled by its own courts to do so? Probably not.

If a person is accused by a demanding state of committing a crime while not physically present in the demanding state, the applicable statute states that the Governor "may" extradite that person. Cal. Penal Code § 1549.1 ("The Governor of this state may also surrender...any person in this state charged in the other state...with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand.") (emphasis added). Courts have understood this to mean that the Governor retains ultimate discretion as to whether to extradite a person under circumstances outside the scope of the Constitutional extradition requirement. See Brown, 20 Cal. 3d at 777; Hart v. People, 229 Cal. App. 2d 455, 460 (1964).

Most importantly, the California Supreme Court held that California's extradition law cannot be judicially enforced; in other words, California courts lack authority to compel the Governor to extradite a person under California's extradition law. Brown, 20 Cal. 3d at 773-79. As a practical matter, this makes it unlikely that Mason's doctor would be extradited, even under California's extradition law, as long as Gavin Newsom (or a similarly inclined person) is Governor. And if the Legislature does not want doctors to have to rely on "the Governor's discretion" to avoid extradition to foreign states for the crime of lawfully practicing their profession in California, it could easily amend California's extradition law to statutorily protect them. (Of course, anti-abortion states could retaliate by amending their own state-level extradition laws to essentially allow people within their borders to commit California crimes without fear of extradition. It is beyond the scope of this article to evaluate the likelihood and scope of this and other unintended consequences, or to weigh the costs and benefits of changing California extradition law in light thereof.)

In conclusion, Mason's concern about a "looming constitutional crisis" if California refuses to extradite doctors for performing abortion services in California is unfounded. There is no need for "California officials ... [to] begin laying the groundwork for a challenge to [U.S. Supreme Court cases] Branstad and Smolin." And there is no "need to find room in the Extradition Clause for states to refuse to extradite doctors for treating their patients." These are unrealistic proposals to address a nonexistent problem.

California's problem with extradition after Dobbs, to the extent it arises, could be remedied through normal means of state-level lawmaking. As long as California does not seek to avoid extraditing "fugitives" (e.g., doctors who perform illegal abortions while physically in Alabama and subsequently flee to California), its legislative remedies will not violate the U.S. Constitution or Federal Law.

-- Ariel Leichter-Maroko

Family law specialist at Leichter Leichter-Maroko LLP.