Antiabortion lawmakers want to block patients from crossing state lines

[demmiblue]

Some advocacy groups and their allies are crafting legislative language that could be adopted in Republican-led state capitals.

Several national antiabortion groups and their allies in Republican-led state legislatures are advancing plans to stop people in states where abortion is banned from seeking the procedure elsewhere, according to people involved in the discussions.

The idea has gained momentum in some corners of the antiabortion movement in the days since the Supreme Court struck down its 49-year-old precedent protecting abortion rights nationwide, triggering abortion bans across much of the Southeast and Midwest.

The Thomas More Society, a conservative legal organization, is drafting model legislation for state lawmakers that would allow private citizens to sue anyone who helps a resident of a state that has banned abortion from terminating a pregnancy outside of that state. The draft language will borrow from the novel legal strategy behind a Texas abortion ban enacted last year in which private citizens were empowered to enforce the law through civil litigation.

The subject was much discussed at two national antiabortion conferences last weekend, with several lawmakers interested in introducing these kinds of bills in their own states.

https://www.washingtonpost.com/politics/2022/06/29/abortion-state-lines/

[LogicFirst]

1. Husbands beware and be warned!

Taken from Her Lawyer publication

“The best course of action for a wife whose husband gets another woman pregnant is to file for divorce and separate all their finances. If the wife can avoid directing her funds to child support, she should consider taking that route.Jun 21, 2021”

Will divorces increase?

[irisblue]

21. So a non married woman, who.is pregnant goes right to a lawyer & court?

[Solly Mack]

2. K&R

[Irish_Dem]

3. Deputizing foot soldiers to do their dirty work. And they all carry guns.

[brush]

4. They may find precedent in the fugitive slave laws...

of the 19th century. That'll save them some time.

This effort to control women's lives is near-medieval it's so over the top. Guess they're going to have state border checkpoints now on highways and every car with women in it will be stopped with a demand for papers.

[WhiskeyGrinder]

5. This is going to happen much more quickly than people expect it to.

[Runningdawg]

8. THIS 100%

[uponit7771]

10. +1,

[TwilightZone]

18. They'll try and then they will fail.

Kavanaugh already weighed in on the topic in the Roe decision and said that it would violate the right to interstate travel.

https://www.bloomberg.com/news/articles/2022-06-24/kavanaugh-says-states-may-not-bar-travel-to-obtain-an-abortion

The Constitution is quite clear on the subject. They'll get nowhere with this.

[irisblue]

22. Kavanaugh is not a reliable source of constitutional actions

[TwilightZone]

27. Read the 14th Amendment

And get back to us.

The Constitution is quite clear on the matter. If you don't believe Kavanaugh, read the 14th Amendment yourself.

[lark]

44. Repugs lie - he is a repug so we know he doesn't tell the truth.

He also said he didn't assault women and that Roe v Wade was settled law - in others words - he's a total liar & hypocrite. He is, like Alito, Thomas, Handmaid, Gorsuch and Roberts, a Christofascist first and foremost. Roberts just pretends better than the other christofascists but totally supports every one of their goals and votes their way almost always.

[NickB79]

24. They're using the Texas bounty law as a model though

That's different than what Kavanaugh touched on.

It wouldn't be a direct ban on travel that would violate interstate travel. It would be a civil matter, just like the Texas bounty law. People outside the government, suing other people who travel for abortion.

It's dangerous as hell.

[TwilightZone]

26. No, it really isn't.

The underlying assertion is the same. They cannot interfere with interstate travel.

Again, the Constitution is quite clear. In fact, there are few issues that are clearer.

[keithbvadu2]

6. 1+

[roamer65]

7. Certain license plates are going to become taboo in the Free states.

[WhiskeyGrinder]

9. Like...have we not learned that Republicans just throw shit together and then let it move through

the courts? And that sometimes that shit sticks? This requires some major action, not an assumption that a system will "hold."

[Hekate]

12. Told ya

[Deep State Witch]

13. Mann Act

The Mann Act, which R Kelly and Ghislane Maxwell were prosecuted under, states that one cannot transport a minor across state lines for "immoral activity." Someone in a red state could argue that this would include a minor crossing state lines to get an abortion.

https://www.law.cornell.edu/wex/mann_act

[Yo_Mama_Been_Loggin]

14. Move to Iran or Saudi Arabia if that's the kind of shit you RWNJs want

[TomSlick]

15. A few months ago, I would have told you this would be unconstitutional.

Now, I don't know.

[TwilightZone]

17. It still is.

Kavanaugh already weighed in on the topic in the Roe decision and said that it would violate the right to interstate travel.

https://www.bloomberg.com/news/articles/2022-06-24/kavanaugh-says-states-may-not-bar-travel-to-obtain-an-abortion

[TomSlick]

19. Kavanaugh also said that Roe was established precedent.

Everyone except Collins and Manchin knew he was lying but still. If he lied then....

[TwilightZone]

28. Apples and oranges

The 14th Amendment is quite clear on the subject.

[TomSlick]

30. The right to travel is not specifically referenced in the 14th amendment other than the right

to change residence from one state to another and the guarantee that the resident of one state traveling in another has the same rights as a resident of the second state. A resident of Arkansas who travels to New York cannot be denied rights, by the State of New York, provided to New York residents. There is a question about whether Arkansas would have extra-territorial jurisdiction for actions in New York but that is a very complex legal question - hardly quite clear.

The right to travel based on the 14th Amendment is strictly a creation of the courts. The current right-wing members of the Court take the position that if a right is not specifically mentioned in the Constitution it does not exist. As Scalia reasoned, abortion is not referenced in the Constitution, so there cannot be a right to an abortion. Similarly, Thomas argues that privacy, contraception, same-sex marriage, etc., are not referenced in the Constitution, so there is no constitutional right.

I have little confidence the current SCOTUS would strike down a state statute that forbade state residents traveling to another state to obtain an abortion. If SCOTUS abandons the right to travel, the only option would be for a pregnant woman to travel to another state with the intent to change residence, i.e. to permanently remain.

Everything I was taught about substantive due process and equal protection is now up for grabs.

[Ms. Toad]

31. As is the commerce clause. n/t

[TomSlick]

33. I fear you are relying on what was once the law.

I see nothing in the Commerce Clause that the current majority in SCOTUS would feel obliged to rule guarantees a right to travel from one state to another for the purpose of obtaining an abortion.

Stare decisis is dead. If it a right is not specifically guaranteed in the Constitution, it exists only if five members of the current majority say it exists.

SCOTUS is no longer a judicial body as that idea has been understood since the nation's founding. It is a rank political entity bent on enforcing governance by the minority.

[Ms. Toad]

34. Nope.

The commerce clause grants, to the federal government, the exclusive right to control the channels and instrumentalities of commerce.

States are only permitted to regulate interstate commerce within gaps in the federal law - and when permitted to regulate commerce, must do so without state-based discrimination.

Travel between the states (interstate) for the purpose of purchasing abortion services (commerce) is classic interstate commerce. States may generally only regulate interstate commerce in a non-discriminatory manner. Attempting to prohibit residents of the home state from traveling to engage in interstate commerce discriminates against residents of that state, and falls squarely within what is generally known as the dormant commerce clause. Not only that, the interplay between two constitutional provisions - when what is being restricted (travel) is protected by another - heightens the level of scrutiny.

While the current justices might want to permit such laws, they cannot do so without also permitting state restrictions on travel for the purpose of engaging in other interstate commerce (e.g. traveling to a gun show). If states can't prohibit their residents from traveling to a gun show, they can't prohibit their residents from traveling to obtain an abortion.

The power of the commerce clause has been diminished dramatically as to things which do not have a direct impact on commerce (e.g. restrictions on carrying guns near schools), but not as to it pertains to regulating direct engagement in commerce.

[TomSlick]

37. Such was the law I was taught.

Just like I was taught there was a right of privacy to be found in the penumbra of various provisions of the Constitution. Just like I was taught that right of privacy guaranteed a right to contraception, or for consenting adults to engage in sexual relations irrespective of their sex, and abortion.

I hope you are correct. However, I am not confident.

[pstokely]

42. couldn't the current court just decide you can't travel to another state

for an abortion but you can for a gun show?

[Ms. Toad]

43. It isn't quite that simple.

Unlike privacy rights, which aren't explicit in the constitution, both travel and commerce are. It is harder to ignore express provisions of the constitution.

There are reasonably well established tests for evaluating state laws restricting interstate commerce, so they would have to find distinctions within the existing framework. So far, they haven't just abandoned existing framework. Under the existing framework, there isn't any meaningful factor (relevant to evaluating a states laws) to distinguish between two restrictions on traveling to spend money in another state.

This supreme court is certainly stretching standard jurisprudence, but it isn't just making stuff up.

[TomSlick]

45. Can you provide an Article and Section in the Constitution

that expressly guarantees a right to interstate travel for any purpose?

Not a court case but a citation to the Constitution. If there is not an express guarantee in the Constitution, prior cases are insufficient.

[Ms. Toad]

46. The word travel is not expressly in the constitution -

but access to the rights of a state in which one is not a citizen but termporarily in the state (first sentence of Article IV) and limitations on the ability of a state to impose distinct restrictions on people who are new citizens (equal protection) both relate to movement from one state to another. The third prong (an express right to move between the states) - is inherently implied in the two express provisions), but was recognized in 1868. It is far broader, longer standing, and would disrupt a heck of a lot more than just women's rights if overturned.

The first prong is particularly relevant here, since the Federalist papers described privileges and immunities as: "Those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own State . . . ." So an attempt to prevent travel to access those "greater privileges" would be hard to support based on the commentaries of those they claim to idolize.

But remember, this is not just a restriction on travel (a personal right), but interstate commerce (and the authority to burden not individuals - but commerce). That is the stronger argument, because any state restriction on travel to obtain abortions directly involves interstate commerce - and inherently discriminates against residents of the state, and infringes on the exclusive right of Congress to to regulate commerce with foreign nations, and among the several states, and with the Indian tribes," made less exclusive via the non-textual "dormant commerce clause." Textualists would be reluctant to expand the implicit dormant commerce clause (i.e. the state's rights to burden commerce at all - since - based on the text - that right expressly belongs to the Federal government) precisely for the reason you are asking about - it is non-textual.

[TomSlick]

50. We agree there is no express reference to a "right to travel" in the Constitution.

There is a good argument, based on the rationale in Dobbs, that a right to travel between states was assumed at the time the Constitution was drafted and, therefore, should be assumed now. The problem is that also under Dobbs, if a right is not expressly referenced in the Constitution it is suspect.

We agree that a citizen of one state is entitled to the rights of citizens of any other state to which they travel. If an Arkansas resident travels to New York, the State of New York cannot forbid the Arkansas resident from obtaining an abortion. However, that does not prohibit Arkansas from making that interstate abortion criminal. Again, there may be an extra-territorial jurisdiction issue but that decision is difficult to predict.

I do not recall a discussion of a "right to travel" in the Federalist Papers which is not to say there is not such a discussion. Either way, it doesn't much matter. SCOTUS references the Federalist Papers when they support their preferred position but not otherwise.

The dormant Commerce Clause is not what it once was. I think a good argument can be made that interstate travel for medical treatment is interstate commerce. SCOTUS could easily find that to be the case - if that is what a majority was disposed to do.

Your legal analysis is completely valid. A year ago, I would have said that you have accurately predicted how SCOTUS will rule when asked (and they will be asked). My problem is that I have no remaining confidence that SCOTUS will apply valid legal reasoning. SCOTUS is no longer a court as we have always understood that term. SCOTUS is now nothing more than a super-legislature pursuing the political aims of the majority.

I am hopeful that when SCOTUS rules, it will agree with your analysis. If I was to bet, I would bet that you are correct - but I wouldn't bet much.

[Ms. Toad]

51. I think the argument is stronger than you suggest.

I don't think that there is any serious argument that traveling to another state for the purpose of spending money to receive an abortion is not interstate commerce.

The relevant diminishment of the dormant commerce clause would seem to be incidental versus deliberately protectionist state laws (did the state intend its acts to be protectionist, for example, and let slide state statutes which were unintentionally discriminatory. I don't think there is any serious argument that laws barring travel for the purpose of obtaining an abortion - is intended as protectionist - it is intended to protect the state's interest in "life in the womb," by preventing individuals from traveling elsewhere where such protections don't exist.

The other changes I'm aware of relate mostly to money (minimizing the burden analysis, the costs imposed by extraterritorial legislation, and tax provisions).

Since this seems a pure commerce clause - and I can't imagine them allowing a ban in interstate commerce becuase of the implications of things they don't want banned bacause of their own competing interests (like travel for the purchase of guns).

And - I'm pretty sure we've got Roberts (South Dakota v Wayfair), Kavanaugh (Dobbs concurrence), and possibly even Alito (Tennessee Wine and Spirits Retailer Assn.), on the right side on this one. Not all three decisions are on point for this issue - but Alito and Roberts seem generally supportive of the dormant commerce clause, and Kavanaugh expressly suggested travel restrictions would be invalid under the dormant commerce clause)

I can see easily them whacking back the commerce clause more - revisiting, perhaps, the civil rights act - or any attempt to enshrine Roe as a Federal statute.

Unfortunately (or, I hope fortunately) it won't take long to see which way the wind is blowing on this.

[TomSlick]

52. For good or ill, we shall soon see.

A bill is promised (threatened) at the first possible moment in the Arkansas General Assembly. I expect it to be the product of the Thomas More Society and create a private cause of action for any person against women who travel from Arkansas, and anyone who assists them, for the purpose of obtaining an abortion.

[The Bopper]

49. It says what they say it says

The 2nd amendment specifically says “in a well regulated militia “ the right to keep and bare arms” shall not be infringed. They see what they want to see and tell you it doesn’t say what it says. I might add no where in the 2nd amendment does it say you have the right to shoot anyone. So they do “assume” what it means.

[TwilightZone]

16. Won't withstand a legal challenge.

Kavanaugh already weighed in on the topic in the Roe decision and said that it would violate the right to interstate travel.

https://www.bloomberg.com/news/articles/2022-06-24/kavanaugh-says-states-may-not-bar-travel-to-obtain-an-abortion

[Lancero]

32. You gotta be living in the Twilight Zone if you thing Kavanaugh can be trusted.

Not the first time he, or other judges on the court mind you, backtracked on what they previously called settled law. Nor is it the only recent decision they've made that runs counter to an amendment.

[Xolodno]

20. If will fail.

State's like California will not give up the name of the individual. And how do you prove you went there for an abortion? People don't have to go to the doctors anymore to find out if there pregnant, there are in home tests.

But there just trying to stop the people with capability to go to another state. They will still hurt those that do not.

[gratuitous]

25. Why not just incarcerate all those of child-bearing age?

Quicker, probably more efficient, and the logical end toward criminalizing the suspicion of pregnancy.

Nah, never happen. After all, didn't Justice Boof say something about that? And has he ever lied before?

[roamer65]

29. Two can play at this game.

For instance, Michigan could break CPL reciprocity with these handmaid states and arrest anyone concealed carrying from these states here in MI on felony concealment.

We can get creative as well, fuckers.

[dalton99a]

35. +1. California should require Texas politicians to obtain visas if they want to vacation there

Evil fuckers

[Mz Pip]

36. Serious question here

How will the state know if a woman is leaving the state to get an abortion? Are women going to have to provide negative pregnancy tests to cross state lines?

I just don't see how this would even be managed. Most abortions are done early on before the woman is even showing.

This would be a completely unenforceable law.

[LeftInTX]

38. I don't think this will actually happen. They will go after the funds via civil penalties.

The state already boycotts certain groups by refusing contracts and investments with them etc...For instance: The state could boycott Dick's Sporting Goods by eliminating them from pension portfolios.

[AZLD4Candidate]

41. It is unenforceable, but it sounds good to mouth breathers and knuckle draggers.

[tinrobot]

39. Will Alito use Dred Scott as the precedent for this?

It's not out of the question

[AZLD4Candidate]

40. Abortion Stazi. Welcome to the United States of Police.

[Aristus]

47. Interstate passports up next.

One of the many things I used to be proud of in this country, as opposed to in totalitarian dictatorships, is that every American was free to come and go anywhere in the United States they felt like traveling. No passports necessary, no visas, no papers, no trenchcoated government flunkies demanding "Papers, please..."

I felt this deeply and sincerely long before it was given an explicit shout-out in "The Hunt For Red October" (State-to-state, no papers).

Now it looks like that's another one of the freedoms we took for granted for too long, like the peaceful transition of power. It's going to go away as anti-choice states move to restrict travel for anyone they deem is 'seeking abortion services'.

There will be goose-steppers on parade in the streets before we know it...

[Sogo]

48. If I were of reproductive age (past it now), and if I lived in an abortion restrictive state with

a non-restrictive state nearby (say a resident of St. Louis, MO, across the river from Illinois), I'd immediately switch doctors to one in that nearby state. That way, my doctor from the other state would not have reporting requirements in my restrictive state, and no one but me and my doctor would have to know anything about my reproductive health. And if I had to travel to see my doctor in the other state, travel there would in no way be out of the ordinary.

I realize I'm describing a very specific situation, but it's one possibility that would be out there....