Please help me understand something about Roe

[Ferrets are Cool]

It is now up to the States right? As of this moment, as I understand it, the STATE will make the decision on whether abortion is provided in that particular State. So, why would it be illegal for someone to go to a state where it IS legal to get an abortion? Gambling is illegal in my backward-ass state, but I can drive to Florida and buy lottery tickets. It is not illegal. Why would getting an abortion in a State where it IS legal, be illegal?

Thanks for your help in understanding this.

(I obviously understand that it SHOULD be legal and safe EVERYWHERE)

[TwilightZone]

1. They can travel to other states.

Even Kavanaugh agrees.

https://news.bloomberglaw.com/us-law-week/kavanaugh-says-states-may-not-bar-travel-to-obtain-an-abortion

[bucolic_frolic]

2. Because these people have a problem with Boundaries - they are borderline, all of them

They bake cakes that contain their religious beliefs - inside the cake! But no one has measured them in the cake.

They don't respect your boundaries on anything that disagrees with them. They feel entitled by their concept of a Deity.

They are loons!

[Mira]

25. You made me frolic

in your descriptions (of so many bucolics)

[TwilightZone]

7. They won't hold up. Even Kavanaugh says they're unconstitutional.

https://news.bloomberglaw.com/us-law-week/kavanaugh-says-states-may-not-bar-travel-to-obtain-an-abortion

[TwilightZone]

10. Because they knew this ruling was coming.

Everyone did.

[TwilightZone]

14. States have been testing the waters for years.

Texas and others knew that their full bans would be declared unconstitutional if Roe held, but they also knew that if they continued to chip away at the wall, they'd find a weakness that the SC could then exploit.

They also wanted to be the ones to end it for bragging rights.

[TwilightZone]

17. Won't matter if they can't get Kavanaugh on board.

He was quite clear on the subject. He could change his mind, of course, but if the rights on the SC really believe this is a state issue, they won't allow one state to police another. That would blow holes in the whole idea of state autonomy.

[TwilightZone]

20. Yeah, in a dark, morbid way, this could get interesting.

There's a big difference between making vague comments about precedent and settled law and making specific constitutional claims in a SC decision. One can insincerely fudge around the former (as many on the right have) because of how some of the justices very carefully and intentionally worded their statements, but the later is not only in writing, it's in an actual court opinion, and it's decidedly specific.

I agree that the states will no doubt try. I think they'll fail, mostly because state autonomy is such a huge deal with the right.

[Cheezoholic]

37. Could they use something like cannabis laws?

Like states that border states where its legal will arrest someone coming back into the state where its illegal? I understand that your in possession of an illegal substance once you cross the border. There are ways to detect if an abortion has been performed. Could they somehow make possession of an "abortion tainted uterus" or some crazy shit punishable? I know, sick, disgusting and outlandish perhaps but look at the sicko's we're dealing with. Just thought I'd toss it out there.

[TwilightZone]

45. I don't think so.

I do agree that they're likely to try about anything, but I think the court system would knock something like that down, even in its current state. I don't think criminalizing anything other than the procedure itself would work.

It's sad that we've reached a point where intentional exaggeration is not that far from actual reality.

[Midwestern Democrat]

57. Even Scalia distanced himself from Thomas by saying "Look, I'm an originalist, but I'm not a nut."

Thomas is pretty extreme even by right wing judicial standards.

[mopinko]

4. it's not illegal, and i'm dying to see the contortions

they'll go to to make that stick.
i dont understand why ppl dont see what comes next w this one in particular. what kind of methods will they need to enforce that shit. how much spying at they prepared to do?

[intrepidity]

5. Right?

It is a head-scratcher.

It's like, the state feels ownership of every fertilized egg, or something.

Very creepy.

[no_hypocrisy]

6. The current Court has refused to recognize abortion as a fundament right.

Thus, if the states want to ban it, criminalize it, they can.

[TwilightZone]

9. Not if women travel to other states.

Last edited Tue Jun 28, 2022, 02:55 PM - Edit history (1)

Kavanaugh: “May a state bar a resident of that state from traveling to another state to obtain an abortion?” he wrote in a concurring opinion. “In my view, the answer is no based on the constitutional right to interstate travel.”

https://news.bloomberglaw.com/us-law-week/kavanaugh-says-states-may-not-bar-travel-to-obtain-an-abortion

Edit: sorry, I included the wrong part of the statement initially. h/t to BusterMove

[TwilightZone]

51. My apologies.

I linked the wrong part of the statement. Having too many conversations at the same time.

[malthaussen]

42. Are you arguing that because Mr Justice Kavanaugh said something on Tuesday...

... I should believe he will say the same thing on Wednesday? The Right are very adamant about State's Rights and this and that in their public utterances, but in practice, they always seem to mean something other than what a reasonable person might construe from their statements. The most profound believer in "State's Rights" might still believe that some States are more equal than others, and if he has the power, act on those beliefs.

Indeed, doesn't it often come down to whose ox is being gored? Many on DU would be disgusted if a RW State defied a Federal law to do something the Left supports, but when the Federal government passes legislation to do something the Left doesn't like, then they are enthusiastic about "Sanctuary Cities" and States refusing to enforce Federal law. Because the principle is not really State v Federal rights, but whether or not one agrees with the law.

-- Mal

[TwilightZone]

50. He didn't "say" something.

The statement was included in the Roe decision. You should read the linked article. I did include the wrong part of the statement; since corrected.

"when the Federal government passes legislation"

No federal legislation exists that applies.

[purr-rat beauty]

12. Building up on this

Could a State that welcomes patients sue the States infringing on their rights?

IE: charging women for a crime for seeking or having an abortion in a state where it is legal?

As that action could deter women from seeking care in that state in the future

[appmanga]

38. I would say "No"...

...because one state's "police power" doesn't extend into another state. And to be clear, "police power" doesn't specifically mean powers of arrest or indictment (those these are part of those powers), but the power the individual states have to make laws and regulations and enforce them. If Mary gets an abortion in New York and then returns to her home in Bumfuckistan, Bumfuckistan runs into several constitutional issues, most prominently the Sixth Amendment, which is incorporated to the States. It says the accused can only be tried in the jurisdiction where the crime was committed. Sometimes there are extraordinary circumstances that compel a change of venue, but that would still be in the state where the crime happened. Mary's home state has no jurisdiction.

A state that tries this is essentially using the legal theory of the Dred Scott case; a case which was overturned and which conservatives love to quote when it comes to defending overturning precedents.

It's a scare tactic.

[Pacifist Patriot]

13. It wouldn't be and that is one of the administration's clear messages.

Biden and Harris have both made a point of stating quite clearly the administration and DOJ would protect a woman's ability to cross state lines to obtain the reproductive healthcare she needs.

That doesn't mean some states won't try mind you.

Even Justice Beer Brain made a comment in his opinion about this issue. If this Extreme Court had a case like this in front of them, it would be very interesting indeed. As horrific as their decisions have been, if they decided in favor of the state over a woman in this scenario it would result in absolute legal chaos up and down the line, left right and center. I'm not being hyperbolic, it would absolutely shred every last fiber of the US Constitution.

[RazzleCat]

16. Fugitive Slave Act

Not an attorney. But live in Missouri. My first thought was the above law enacted in about 1850. Yes it was repealed, but most important for a period of time it said one states laws were to be held above another and enforced by the Federal Government. So if a Missouri slave got to Illinois, Missouri could go get them back. So switch it to a proposed law in Missouri that you can't cross state lines with the intent to break the Missouri anti abortion laws, a Missouri woman crosses the river to Illinois for an abortion, Missouri would be allowed to prosecute her for a legal act in the state she was in when she had the abortion, and just like the Slave Act, Missouri could also go after anyone who abetted the slave/woman.

Again not an attorney, and more important very early in the morning for me, so try and follow my fuzzy logic. Yes the law was overturned, but just as our current court reached over some laws for others (citing from the 16th and 17th century), who can say they would not do the same again. Or as someone else said, they can't gamble in their state, but cross state lines and its all good. Imagine you go gamble in X state, but when you go home your arrested for breaking your states law while in another state where its not against the law, that is what they are proposing.

[Voltaire2]

21. See Dredd Scott.

There will be court cases over enforcement, initially the Texas style civil cases. This court is fucked and will do whatever it wants as it imposes theocratic rule.

[Dread Pirate Roberts]

26. It's more than just a passing resemblence

It's a return of this bizaare thinking. The only rights the constitution confers are those that were in place at the time the consititution was written. They follow this up with the idea tha the 14th amendment only protects rights that were accepted at the time of it's enactment. No place for evolution of thought or adjustment to sociatal progress. This court owes it's allegiance to Justice Tanney and his so-called "originalist" thought. Originalism means that the constitution means whatever I want it to have meant-unless we're going to have a seance and conjure up the spirits of the founding fathers. Maybe the Long Island Medium can help us with this. Other than that, here's a juxtoposition of the Dred Scott language with last week's Dobbs ruling: https://democraticunderground.com/100216858402

[Ferrets are Cool]

22. Thanks for all the answers.

Makes me curious as to all the posts warning of police checks at the State borders for pregnant women. It just isn't going to happen, IMO.

[JHB]

53. Oh, don't be so sure there won't be some stops using the same pretexts as...

..."driving while black" stops. Sure, no roadblocks, but (especially if combined with some sort of tip line) a way to intimidate women from exercising their right to go to another state. Or even just waste their time.

[quaint]

23. How many women can afford to travel out of state?

State laws will be challenged. Reality can't be.

[Ferrets are Cool]

54. This ruling was as much Class Warfare as anything. Only it was Class Warfare against one sex.

[in2herbs]

24. Maybe this will help: Roe didn't force anyone to do anything. The Roe decision

now has the govt making that decision for us.

[BradBo]

27. All the red states will make it illegal to go out of state...

…. for an abortion.
Those laws will make their way to the SCOTUS after the states get sued.
Those laws will be upheld.
There will be a massive woman and brain drain migration out of the red states.
It’s going to take years, but it will slowly happen.

[JustABozoOnThisBus]

28. It may be true that you can drive to Florida, if ...

... if you can get time off from work
if you have a reliable car
if you have gas money
If you can afford motels and food
if you can get away from abusers
if you have someone to leave the kids with
if you have someone to tend to your parents

many of us can pick up and drive to Florida. But there are many who find it difficult.

[DownriverDem]

29. Portable Clinics

from Planned Parenthood are setting them up just over the red state borders. Where there's a will, there's a way.

[PurgedVoter]

30. Does a state own a woman's womb?

This edges on the Mann Act. https://en.wikipedia.org/wiki/Mann_Act
From my reading, it appears that the federal government may decide if states can prosecute for what happens in other states.

[malthaussen]

40. Yep, it falls under interstate commerce and communications.

If a criminal crosses state borders to commit a crime, then it becomes a Federal matter (and a job for the FBI).

-- Mal

[TwilightZone]

46. Not if it's not a crime in the state where it is "committed".

I think you're missing an obvious point. If someone travels to Minnesota and has an abortion, it's not a crime.

Kavanaugh also says it wouldn't hold up Constitutionally.

"“May a state bar a resident of that state from traveling to another state to obtain an abortion?” he wrote in a concurring opinion. “In my view, the answer is no based on the constitutional right to interstate travel.”"

https://news.bloomberglaw.com/us-law-week/kavanaugh-says-states-may-not-bar-travel-to-obtain-an-abortion

[malthaussen]

55. You and I differ on whether Mr Kavanaugh is to be trusted.

As to your other point, as of now no state is trying to make it a crime to travel to another to have an abortion. We apparently also differ as to whether we think they will try this or not.

-- Mal

[TwilightZone]

59. Of course they'll try.

I never said they wouldn't. They will not, however, succeed.

It's not about trusting Kavanaugh. It's about understanding the right to interstate travel.

[DemocratSinceBirth]

32. What if a person moves to get an abortion and never comes back?

Will the state try to extradite the woman? If the governor of the state she moves to refuses to extradite her will the state she left try to apprehend her anyway?

[malthaussen]

33. Welcome to Constitutional and jurisdictional chaos.

First of all, throw logic out the window. This should be obvious by now, but it's amazing how many people actually expect laws and judges to make sense.

Next, think in terms of extradition. That applies not just from country to country, you know, but also from State to State in the US where a fugitive is accused of a crime that is not Federal (most aren't). If I kill somebody in the UK, they can demand that the US extradite me to stand trial there for the crime (and the US can tell them to shove it, but probably won't unless I'm somebody important). Same thing here, if I kill somebody in Florida and flee to Pennsylvania, Florida can demand I be arrested and extradited to stand trial in Florida (I haven't broken any law in Pennsylvania).

Now throw in a dash of the Fugitive Slave Laws. Yep, that actually applies. If you're a slave in Virginia and your "master" takes you into Massachusetts, you're still a slave, bucko, even though slavery is illegal in Massachusetts. And if you successfully escape from your "owner" and flee to a State where slavery is illegal, under the Fugitive Slave Act (a Federal law), that State would be obliged to hunt you down (or render assistance to slave hunters to hunt you down) and return you to bondage. Which is why slaves had to flee all the way to Canada to be safe -- the true "Home of the Free" before the US ended slavery (with a Federal law, be it noted).

Currently, there is no "Fugitive Pregnant Woman" law on the books, and unless the GOP gets complete control of the government, there probably won't be. But you see, then extradition becomes a matter of interstate commerce (or communication), and guess who is the final arbitrator of that? If you said "the Supreme Court," you win a cookie.

Now, Mississippi can't arrest and execute a doctor who performs an abortion in a State where it is legal, so the only one they can take their ire out on is the woman getting the abortion. Right now, of course, various governors and what-not are assuring us they won't press criminal charges against women who get abortions. You may believe as much of that as you please. But they can make a law forbidding someone to go to a free State and get an abortion, because the Legislature can make any laws it damned well pleases. If someone violates that law, and sues that her rights are violated by that law... well, then it goes up through the courts until it reaches the USSC, which will do what, do you think?

Hope this clears it up.

-- Mal

[DemocratSinceBirth]

36. What if the person leaves the state and never comes back?

And the state she left tries to extradite her and the governor refuses the request? Will the state of Arkansas send Jethro and Billy Bob to California to apprehend her ala Eichman in Argentina?

[malthaussen]

39. Your guess is as good as mine.

I bet they'd love to, but again the Fugitive Slave Laws apply. Free-ish States generally didn't give a lot of help to slave catchers, before or after the law was on the books. As a general rule, the farther they were from the border, the more likely they were to tell Jethro and Billy Bob to put it where the sun don't shine, and the Federal government usually wasn't interested in enforcing the law.

In more civilized times, if a nation or State refuses extradition, then the other side accepts the ruling (but might keep trying, as we have with that fellow Assange, for years and years). The actions of Israel to hunt down Nazis has always been illegal so far as international law is concerned, but the Israelis don't care, and there is no mechanism to enforce them. Of course, we just send drones to kill anyone we don't like who happens to reside in another country, because what are they gonna do about it?

So, if a State does send out the Pregnant Woman Catchers, and violently violates the sovereignty of other States in order to enforce their barbaric laws, it will be a matter for the Federal government to deal with. And good luck with that.

States have not, heretofore, violated one another's sovereignty like that, but anything is possible in these times when the old norms no longer apply.

-- Mal

[TwilightZone]

48. The assertion is flawed.

The assertion is that if a crime is committed in another state, the person could be extradited to the original state.

Here's the problem with that assertion - having an abortion in a state in which it is legal is not a crime. Extradition is irrelevant because no crime occurred. Unless there's a ban put in place at the federal level, the point is moot.

Kavanaugh: “May a state bar a resident of that state from traveling to another state to obtain an abortion?” he wrote in a concurring opinion. “In my view, the answer is no based on the constitutional right to interstate travel.”

https://news.bloomberglaw.com/us-law-week/kavanaugh-says-states-may-not-bar-travel-to-obtain-an-abortion

[Ferrets are Cool]

44. thanks

[TwilightZone]

47. Having an abortion in a state in which it is legal is not a crime.

That kind of undermines your entire theory. It is not the same as killing someone in the UK, because killing someone in the UK is still a crime. Having an abortion in a state in which it is legal is not.

Unless a law in passed at the Federal level, extradition is irrelevant because a crime never occurred.

[appmanga]

34. Good question.

This is mostly bluster from members of the American Taliban. The "Police Power" of one state does not extend to another, so, in practical terms, it's an empty threat. In American Taliban terms, it's an opportunity to scare people who can't afford lawyers and time away from work, or don't want to risk having their private business made public.

[plimsoll]

35. Because they don't really believe it should be up to the states.

It should be up the them. It's kind of like the weird inversion of reality we got for the civil war. South Carolina actually stated in their secession documents that they were succeeding because the Federal government was not enforcing the Fugitive Slave Act vigorously enough in the States that had opposed it. The right (political kind) has always believed that "rights (the human kind)" only belong to the right (rich white male kind) sort of people.

[Renaissance Man]

41. Commerce Clause

I can see the commerce clause in the Constitution having a big problem with restricting people's travel across state lines (that is directly associated with Interstate Commerce). Only Congress has the authority to regulate interstate commerce.

[Iggo]

43. You're right. People fly into Vegas every day.

[Hekate]

49. Their precedent will look an awful lot like the Fugitive Slave Laws. Texas already has a bounty law.

[Ms. Toad]

56. Your analogy is appropriate -

and why I have said that any attempt to restrict travel for the purpose of engaging in interstate commerce (whether gambling or obtaining an abortion) is unconstitutional.

It is precisely because it will be hard to declare one unconstitutional, without the other, that I dont' believe travel restrictions will hold. That isn't to say that they won't try, and that it won't take years to sort out. Just that ultimately, state laws discriminating for/against residents of the state as to interstate commerce are unconstitutional under the dormant commerce clause.

[Midwestern Democrat]

58. States have no jurisdiction over offenses that happen in other states

In the most extreme example, if a man from Nebraska commits a murder in Iowa, Nebraska has no jurisdiction to try him for murder - he has to be extradited to Iowa to stand trial.

[intelpug]

60. state laws

I am also not a lawyer however I do know that when I travel away from my home state my states laws do not travel with me just because I am a resident of that state.
Can anybody give me an example of a case where someone has indulged/participated in a legal activity in one state then went home and faced prosecution for that activity in their home state? Really, if this were possible, I could just see someone say thirty years ago sweating like hell thinking " o my god' o my god" I hope my hometown police force never find's out I am out here in Nevada gambling and visiting the mustang ranch , why I could land in Jail when I get home since both activities are strictly illegal back there. No, they cannot make a carve out exception to control citizens once they are outside their jurisdiction like that. I've even read about how in the republic of Ireland when abortion was illegal women would take a ship to England to have it done there and I don't believe they faced any legal trouble once they returned to Ireland.