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.
