Abortion or the day Roe died

[aurelius]

I’ve lived in multiple states and have never heard of applying for residency. As I understand it, residency generally is a facts and circumstances determination.

You are correct. It is prescriptive. Meet these requirements (generally reside somewhere for X amount of time, usually 6 months) and you are a resident.

[omaniphil]

I don’t see why Texas could not pass laws making it illegal for residents to get abortions. Which would neatly bypass the territorial jurisdiction as it would not matter where the abortion occurred. Yes, enforcement can only happen in the State of Texas but the implication would have a chilling effect for traveling out of State for abortion.

Texas could pass that law, but there is 0% chance of it not being struck down by every court that it is adjudicated in.

[Allentown]

I don’t see why Texas could not pass laws making it illegal for residents to get abortions. Which would neatly bypass the territorial jurisdiction as it would not matter where the abortion occurred. Yes, enforcement can only happen in the State of Texas but the implication would have a chilling effect for traveling out of State for abortion.

Texas could pass that law, but there is 0% chance of it not being struck down by every court that it is adjudicated in.

You're saying that's settled law?

[dw]

I don’t see why Texas could not pass laws making it illegal for residents to get abortions. Which would neatly bypass the territorial jurisdiction as it would not matter where the abortion occurred. Yes, enforcement can only happen in the State of Texas but the implication would have a chilling effect for traveling out of State for abortion.

Texas could pass that law, but there is 0% chance of it not being struck down by every court that it is adjudicated in.

You're saying that's settled law?

My guess is it's so settled it's hard to find a case where the principle was ever challenged.

Can Florida issue me a speeding ticket for speeding in Hawaii? If not why not?

[aurelius]

My guess is it's so settled it's hard to find a case where the principle was ever challenged.

Can Florida issue me a speeding ticket for speeding in Hawaii? If not why not?

It sounds outlandish. Florida would have to prove it. A tall task. But why not? If you lose your license due to reckless driving/DUI in one State other States will also revoke your license.

Consider that there is a very well-funded pro-life network that already has operatives outside of every abortion clinic in the US that records every person that enters and exits the facilities. Up to now they primarily harassed the clinic workers (by dox-ing them and sending them hate mail). Add to that there are sympathetic people that will be rewarded (at least $10,000) for snitching on their neighbors (by bringing a lawsuit under the 'Bounty' law). It is not hard for me to imagine that a political minded DA in a religious Texas community would bring charges and try a young woman based on video of her entering/exiting a woman's health clinic in another State with testimony from a third party that 'knew' she was pregnant. It is also not hard for me to imagine a jury convicting the woman based on that evidence. This leaves out that hormone levels that show a woman is/was pregnant remain elevated in the system 3-4 weeks. Imagine DA's getting warrants for blood tests based on a third party's testimony that woman recently had an abortion. The Constitution is burning.

And this has been done before. Pre-civil war Southern States' property laws regarding slaves extended into Free Northern States. Bounty hunters routinely operated in Northern States that outlawed slavery capturing slaves (had to get to Canada to be safe). They had full policing powers. And if people in the North were caught aiding and abetting slaves they could and were trialed for crimes when circumstances allowed.

[aurelius]

Texas could pass that law, but there is 0% chance of it not being struck down by every court that it is adjudicated in.

Umm...you mean the similar law Texas already passed that lower Courts did put a hold on but SCOTUS reached down and put into effect (lifted the preliminary junction)?

The sky is already falling people. The rule of law is not being followed. We live under the whims of an extremist, far-right, theocratic SCOTUS majority.

[dw]

"Territorial sovereignty" is the directly applicable concept as far I could make out. It limits state criminal jurisdictions to acts that take place at least partially within its borders.

I'll concede it's hard to find a direct statement about this anywhere but I would wager there's a very strong common law tradition about this. I also think logically it doesn't work within a federalist system, especially when you consider double jeopardy problems.

I'm not aware of how the Texas law relates to this.

[omaniphil]

I don’t see why Texas could not pass laws making it illegal for residents to get abortions. Which would neatly bypass the territorial jurisdiction as it would not matter where the abortion occurred. Yes, enforcement can only happen in the State of Texas but the implication would have a chilling effect for traveling out of State for abortion.

Texas could pass that law, but there is 0% chance of it not being struck down by every court that it is adjudicated in.

You're saying that's settled law?

Sorry, I think I had a double negative in there, and now I'm confused as to what I wrote. To be more clear, I think every court, SCOTUS included, is absolutely going to strike down any attempt by a state to criminalize or otherwise regulate what happens outside of that state. There are 5th Amendment rights to travel that would be implicated by the law, and States just don't have any interest in what happens out of state. Such a law would fail to pass the rational basis test.

Umm...you mean the similar law Texas already passed that lower Courts did put a hold on but SCOTUS reached down and put into effect (lifted the preliminary junction)?

If you're talking about SB8, I don't believe there's anything in the law that regulates what happens out of state.

[aurelius]

If you're talking about SB8, I don't believe there's anything in the law that regulates what happens out of state.

There seems to be confusion. I am not Stating one state will regulate activity in another state. I am stating one state will regulate the behavior of its citizens. While Texas can only enforce their laws within their territory, I know of no restriction that says Texas cannot regulate the behavior of its citizens regardless of where they are. Which is problematic for those seeking an abortion in another State that live in Texas (hypothetically). Why can’t Texas pass a law that says it is illegal for any State of Texas resident to obtain an abortion anywhere?

Regarding the bounty law: it allows for anyone to sue anyone that has aided or supported someone getting an abortion with a minimum $10,000 judgement for the plaintiff. The argument for the law is the State of Texas does not take action, private citizens do. In practice, Yes it does. Because it requires the authority of the Texas civil court system and ultimately enforcement of the judgements by the State of Texas.

[aurelius]

"Territorial sovereignty" is the directly applicable concept as far I could make out. It limits state criminal jurisdictions to acts that take place at least partially within its borders.

I'll concede it's hard to find a direct statement about this anywhere but I would wager there's a very strong common law tradition about this. I also think logically it doesn't work within a federalist system, especially when you consider double jeopardy problems.

I'm not aware of how the Texas law relates to this.

kind of my point. There is nothing that Prohibits a State from regulating the behavior of its citizens to just the State’s territory. Previously, this would be impractical as how would a State know? Technology has solved that. As you imply, it would be a nightmare.

I don’t know how double jeopardy applies. That would only apply if one State prosecuted for a crime then another State prosecuted for the same crime (which does happen all the time). What is being discussed is one state criminalizing behavior for its citizens regardless of where the behavior took place. Then prosecuting when the citizen is in the State’s territory.

We will all know a lot more once SCOTUS rules on the Texas bounty law which tips its toe into this.

[omaniphil]

If you're talking about SB8, I don't believe there's anything in the law that regulates what happens out of state.

There seems to be confusion. I am not Stating one state will regulate activity in another state. I am stating one state will regulate the behavior of its citizens. While Texas can only enforce their laws within their territory, I know of no restriction that says Texas cannot regulate the behavior of its citizens regardless of where they are. Which is problematic for those seeking an abortion in another State that live in Texas (hypothetically). Why can’t Texas pass a law that says it is illegal for any State of Texas resident to obtain an abortion anywhere?

This is part of common law that came from England. A jurisdiction can only criminalize activity that has a locus in that jurisdiction. If any of the necessary elements of the crime occur outside the jurisdiction of the state, the state can't criminalize it.

An example of where this is mentioned, in an abortion related case, is Bigelow v Virginia:

Neither could Virginia prevent its residents from traveling to New York to obtain those services or, as the State conceded, Tr. of Oral Arg. 29, prosecute them for going there. See United States v. Guest, 383 U. S. 745, 383 U. S. 757-759 (1966); Shapiro v. Thompson, 394 U. S. 618, 394 U. S. 629-631 (1969); Doe v. Bolton, 410 U.S. at 410 U. S. 200. Virginia possessed no authority to regulate the services provided in New York -- the skills and credentials of the New York physicians and of the New York professionals who assisted them, the standards of the New York hospitals and clinics to which patients were referred, or the practices and charges of the New York referral services.

A State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State. It may seek to disseminate information so as to enable its citizens to make better informed decisions when they leave. But it may not, under the guise of exercising internal police powers, bar a citizen of another State from disseminating information about an activity that is legal in that State

[JonA]

If you're talking about SB8, I don't believe there's anything in the law that regulates what happens out of state.

There seems to be confusion. I am not Stating one state will regulate activity in another state. I am stating one state will regulate the behavior of its citizens. While Texas can only enforce their laws within their territory, I know of no restriction that says Texas cannot regulate the behavior of its citizens regardless of where they are. Which is problematic for those seeking an abortion in another State that live in Texas (hypothetically). Why can’t Texas pass a law that says it is illegal for any State of Texas resident to obtain an abortion anywhere?

This is part of common law that came from England. A jurisdiction can only criminalize activity that has a locus in that jurisdiction. If any of the necessary elements of the crime occur outside the jurisdiction of the state, the state can't criminalize it.

An example of where this is mentioned, in an abortion related case, is Bigelow v Virginia:

Neither could Virginia prevent its residents from traveling to New York to obtain those services or, as the State conceded, Tr. of Oral Arg. 29, prosecute them for going there. See United States v. Guest, 383 U. S. 745, 383 U. S. 757-759 (1966); Shapiro v. Thompson, 394 U. S. 618, 394 U. S. 629-631 (1969); Doe v. Bolton, 410 U.S. at 410 U. S. 200. Virginia possessed no authority to regulate the services provided in New York -- the skills and credentials of the New York physicians and of the New York professionals who assisted them, the standards of the New York hospitals and clinics to which patients were referred, or the practices and charges of the New York referral services.

A State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State. It may seek to disseminate information so as to enable its citizens to make better informed decisions when they leave. But it may not, under the guise of exercising internal police powers, bar a citizen of another State from disseminating information about an activity that is legal in that State

If I'm not mistaken, the specific legal term for this is "What Happens in Vegas, Stays in Vegas"

[aurelius]

If you're talking about SB8, I don't believe there's anything in the law that regulates what happens out of state.

There seems to be confusion. I am not Stating one state will regulate activity in another state. I am stating one state will regulate the behavior of its citizens. While Texas can only enforce their laws within their territory, I know of no restriction that says Texas cannot regulate the behavior of its citizens regardless of where they are. Which is problematic for those seeking an abortion in another State that live in Texas (hypothetically). Why can’t Texas pass a law that says it is illegal for any State of Texas resident to obtain an abortion anywhere?

This is part of common law that came from England. A jurisdiction can only criminalize activity that has a locus in that jurisdiction. If any of the necessary elements of the crime occur outside the jurisdiction of the state, the state can't criminalize it.

An example of where this is mentioned, in an abortion related case, is Bigelow v Virginia:

Neither could Virginia prevent its residents from traveling to New York to obtain those services or, as the State conceded, Tr. of Oral Arg. 29, prosecute them for going there. See United States v. Guest, 383 U. S. 745, 383 U. S. 757-759 (1966); Shapiro v. Thompson, 394 U. S. 618, 394 U. S. 629-631 (1969); Doe v. Bolton, 410 U.S. at 410 U. S. 200. Virginia possessed no authority to regulate the services provided in New York -- the skills and credentials of the New York physicians and of the New York professionals who assisted them, the standards of the New York hospitals and clinics to which patients were referred, or the practices and charges of the New York referral services.

A State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State. It may seek to disseminate information so as to enable its citizens to make better informed decisions when they leave. But it may not, under the guise of exercising internal police powers, bar a citizen of another State from disseminating information about an activity that is legal in that State

the ruling specially hinges on barring travel to another State. Then says a State cannot regulate activity in another State. Agreed. I have not made an argument for that.

What I am discussing is the enforcement of criminal code on a State’s citizens when they are within that State for actions taken outside of the State.

As to the common law appeal: the rule of law simply does not matter to this radical SCOTUS. I believe they will ignore, misrepresent, or fabricate whole cloth the common law for their own purposes.

[omaniphil]

What I am discussing is the enforcement of criminal code on a State’s citizens when they are within that State for actions taken outside of the State.

I know that this is what you are arguing for, but I'm telling you there's absolutely no way that any state will be able to enforce a criminal code on a citizen of that state for an action that takes place in another state that allows that action. Do I believe a state will try to do that? Sure, I think its possible, but it would be struck down immediately upon being challenged. I just have seen nothing, even from SCOTUS, that would indicate that such a bedrock fundamental of common law would be ignored or set aside.

As to the common law appeal: the rule of law simply does not matter to this radical SCOTUS. I believe they will ignore, misrepresent, or fabricate whole cloth the common law for their own purposes.

Maybe. I just haven't seen anything that would indicate this to be accurate prediction.

[dw]

If you're talking about SB8, I don't believe there's anything in the law that regulates what happens out of state.

There seems to be confusion. I am not Stating one state will regulate activity in another state. I am stating one state will regulate the behavior of its citizens. While Texas can only enforce their laws within their territory, I know of no restriction that says Texas cannot regulate the behavior of its citizens regardless of where they are. Which is problematic for those seeking an abortion in another State that live in Texas (hypothetically). Why can’t Texas pass a law that says it is illegal for any State of Texas resident to obtain an abortion anywhere?

This is part of common law that came from England. A jurisdiction can only criminalize activity that has a locus in that jurisdiction. If any of the necessary elements of the crime occur outside the jurisdiction of the state, the state can't criminalize it.

An example of where this is mentioned, in an abortion related case, is Bigelow v Virginia:

Neither could Virginia prevent its residents from traveling to New York to obtain those services or, as the State conceded, Tr. of Oral Arg. 29, prosecute them for going there. See United States v. Guest, 383 U. S. 745, 383 U. S. 757-759 (1966); Shapiro v. Thompson, 394 U. S. 618, 394 U. S. 629-631 (1969); Doe v. Bolton, 410 U.S. at 410 U. S. 200. Virginia possessed no authority to regulate the services provided in New York -- the skills and credentials of the New York physicians and of the New York professionals who assisted them, the standards of the New York hospitals and clinics to which patients were referred, or the practices and charges of the New York referral services.

A State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State. It may seek to disseminate information so as to enable its citizens to make better informed decisions when they leave. But it may not, under the guise of exercising internal police powers, bar a citizen of another State from disseminating information about an activity that is legal in that State

the ruling specially hinges on barring travel to another State. Then says a State cannot regulate activity in another State. Agreed. I have not made an argument for that.

What I am discussing is the enforcement of criminal code on a State’s citizens when they are within that State for actions taken outside of the State.

As to the common law appeal: the rule of law simply does not matter to this radical SCOTUS. I believe they will ignore, misrepresent, or fabricate whole cloth the common law for their own purposes.

You probably should have just opened with this.

[mikeylikey]

I don’t see why Texas could not pass laws making it illegal for residents to get abortions. Which would neatly bypass the territorial jurisdiction as it would not matter where the abortion occurred. Yes, enforcement can only happen in the State of Texas but the implication would have a chilling effect for traveling out of State for abortion.

Texas could pass that law, but there is 0% chance of it not being struck down by every court that it is adjudicated in.

I think (or, at least I hope) you are correct but only in the narrow sense that the courts will not let Texas prosecute a person who has an abortion in NM, *for the act of the abortion.*

But even if the abortion happens in NM, it's conceivable that TX could try to criminalize the prerequisite steps that happen *in Texas*. For example, to get from TX to NM you have to travel through at least some part of TX, and cross its border twice. It is conceivable that TX could pass a law restricting travelling within and across its borders for the purposes of abortions, even when the underlying abortion is done out of state. Or you criminalize operating a vehicle on a Texas highway with intent to secure an abortion, or to transport a person within the state for the purposes of getting them an abortion. Also they could ban financial institutions which do business in the state from facilitating payments for abortions. And they could make it a crime to withdraw cash from said institutions for the purposes of evading that regulation. Lots of ways to skin that cat, at least some of which are not obviously doomed to fail in the courts.

[dw]

I don’t see why Texas could not pass laws making it illegal for residents to get abortions. Which would neatly bypass the territorial jurisdiction as it would not matter where the abortion occurred. Yes, enforcement can only happen in the State of Texas but the implication would have a chilling effect for traveling out of State for abortion.

Texas could pass that law, but there is 0% chance of it not being struck down by every court that it is adjudicated in.

I think (or, at least I hope) you are correct but only in the narrow sense that the courts will not let Texas prosecute a person who has an abortion in NM, *for the act of the abortion.*

But even if the abortion happens in NM, it's conceivable that TX could try to criminalize the prerequisite steps that happen *in Texas*. For example, to get from TX to NM you have to travel through at least some part of TX, and cross its border twice. It is conceivable that TX could pass a law restricting travelling within and across its borders for the purposes of abortions, even when the underlying abortion is done out of state. Or you criminalize operating a vehicle on a Texas highway with intent to secure an abortion, or to transport a person within the state for the purposes of getting them an abortion. Also they could ban financial institutions which do business in the state from facilitating payments for abortions. And they could make it a crime to withdraw cash from said institutions for the purposes of evading that regulation. Lots of ways to skin that cat, at least some of which are not obviously doomed to fail in the courts.

I think criminalizing state border crossings violates federal jurisdiction under the commerce clause.

[Culican]

When Nevada was the only state with legal gambling and is still (I think) the only state with legal prostitution (in some areas), did any other state (even the most religiously inclined states) ever try to pass a law prohibiting gambling or procuring the services of a prostitute in Nevada?

[cgeorg]

I don’t see why Texas could not pass laws making it illegal for residents to get abortions. Which would neatly bypass the territorial jurisdiction as it would not matter where the abortion occurred. Yes, enforcement can only happen in the State of Texas but the implication would have a chilling effect for traveling out of State for abortion.

Texas could pass that law, but there is 0% chance of it not being struck down by every court that it is adjudicated in.

I think (or, at least I hope) you are correct but only in the narrow sense that the courts will not let Texas prosecute a person who has an abortion in NM, *for the act of the abortion.*

But even if the abortion happens in NM, it's conceivable that TX could try to criminalize the prerequisite steps that happen *in Texas*. For example, to get from TX to NM you have to travel through at least some part of TX, and cross its border twice. It is conceivable that TX could pass a law restricting travelling within and across its borders for the purposes of abortions, even when the underlying abortion is done out of state. Or you criminalize operating a vehicle on a Texas highway with intent to secure an abortion, or to transport a person within the state for the purposes of getting them an abortion. Also they could ban financial institutions which do business in the state from facilitating payments for abortions. And they could make it a crime to withdraw cash from said institutions for the purposes of evading that regulation. Lots of ways to skin that cat, at least some of which are not obviously doomed to fail in the courts.

Was going to say most of this, but yeah, this.

The texas law already applies to helping someone get an abortion. That would seem to apply to giving someone information on out of state abortions, or driving someone out of state for an abortion, or processing a payment for an abortion, etc etc. They don't even need to pass a new law.

The War on Drugs is about to refocus on medical abortion pills, because that demand for that shit is going to absolutely skyrocket.

pssst i got what u need baby. weed, molly, roes?

[omaniphil]

I think criminalizing state border crossings violates federal jurisdiction under the commerce clause.

There's some debate about that. Some have suggested Ninth Amendment (it was not necessary to spell out that right since it was long held), some have suggested Equal Protection clause of 14th Amendment, some have suggested the P and I clause of Article IV