Is there any constitutional or legal reason there couldn’t be another federal law like the Fugitive Slave Act, but requiring blue states to cooperate in catching and returning people to red states because they are pregnant? Not really looking for opinions about whether they should pass such a law, or whether they could get the votes to do it. Just looking to understand factually if it’d be possible in our current legal framework.
There was authority in the US Constitution for the federal fugitive slave laws:
Don’t know of anything that clear for abortions.
In a sane world, no. Not only is ‘being pregnant’ not a criminal act, it is protected by doctor/client privilege and HIPAA laws.
In a world that seems increasingly evolving toward a Margaret Atwood novel as edited by Philip K. Dick…who knows? Texas has notably tried to outlaw in sideways fashion women going out of state to obtain an abortion by criminalizing any assistance to them, and while there is no way such a law could be practically enforceable it is a bellwether for the kind of pull anti-abortion leaders think they will have with courts.
Stranger
That’s interesting. I didn’t realize there was a clause in the Constitution and also didn’t realize there were multiple Fugitive Slave Acts. It’s the 1850 one I was thinking about. Now confused as to why there were so many Fugitive Slave Acts, though the reading seems to indicate it’s because there was so much resistance, especially because they relied on enforcement in locales where the laws were hated.
I guess the criminal act would be seeking abortion, and the test would be reasonable suspicion a person was trying to do that.
As for enforceability, while the prospective patient has doctor/client privilege and HIPAA, the fixed establishments that provide medical services don’t. They could be targeted practically. An analogy might be employers who tried to hire fugitive slaves. They wind up being funnel points, where people could be interrupted in seeking medical care. Perhaps the Texas model of promoting vigilantism would be the mechanism.
Medication abortion now accounts for 54% of abortions:
It looks to me that a viable alternative to traveling out of state for those in no abortion states for many is a telemedicine appointment and the mailing of pills.
Doctor-client privilege is a creation of state law.
I see a weakness in the argument.
We had a long thread (not this one, which I just found, but this one) in which we thrashed out the legality of a state criminalizing people for going to another state to do something legal there. No consensus was reached, because there seems to be no precedent and the powers of a state government could not be agreed upon. Legislators in several states have introduced bills criminalizing this for the purposes of an abortion but none reached passage.
The argument for a federal law would differ. A federal law not only could but must apply to all states. Laws already exist that criminals cannot escape punishment for federal crimes by moving across state boundaries and courts have approved them.
But pregnancy is not a criminal act, as already noted, and any government that could criminalize it would exist only in an alternate reality, so anything there is possible.
Making abortion a federal crime, illegal everywhere, could provide justification for stopping someone, although the legal rationale would have to be criminal conspiracy if the women were apprehended before the abortion. Even in such a case, the charge would be a federal crime, tried in a federal court, and the state wouldn’t come into it.
There’s always a “but” in all legal matters. In the Slaughterhouse Cases of 1873, the Supreme Court ruled that the “distinction between citizenship of the United States and citizenship of a state is clearly recognized and established” thereby gutting the 14th Amendment. As far as I know, the statement has never been definitely overruled since although all courts have pretended that such an atrocity never existed. That implies that a state’s rights obsessed Court could reach back to it as precedent for a return policy.
I think we’re back into alternate reality, but IANAL.
Could there be created a federal law, applying to all states, that said people leaving a state to get an abortion that would have been illegal in that state could be pursued, extradited, and so forth? In other words, this new federal law wouldn’t establish the illegality of abortion anyplace, but would permit all states to reach across state lines to pursue people going from state to state to get different abortion access?
As an analogy, I think I understand that if criminal activity crosses a state line, the FBI can get involved. Whatever law provides for this involvement isn’t defining the activity as criminal – the state(s) are doing that – it’s using the crossing of state lines to trigger some new consequence.
The other thread cited federal law that has criminalized going to a foreign country for underage sex that is legal there and that some states have criminalized travel agencies which arranged such tours. That may be precedential. Or may not.
Don’t look to a law journal for an answer. You don’t get published by agreeing with the last guy.
It’s not that crossing state lines gives the FBI jurisdiction - it’s that certain crimes become Federal crimes when a state line is crossed. Kidnapping becomes a Federal crime when the victim is taken across state lines - and the victim is presumed to have been taken across state lines if not released within 24 hours. But if I assault you on the border of Pennsylvania and New Jersey and we go back and forth over the border, so that I have assaulted you in both states, the FBI doesn’t have jurisdiction. PA and NJ do.
But kidnapping across a state line is not inherently federal. It’s because Congress passed the Lindbergh law, making it a federal offence to kidnap across a state line.
Congress could presumably enact the « wrasslin’ across a state line law » and make that a criminal offence.
Why not criminalise crossing a state line for the purpose of having an abortion?
It is a generally recognized principle that barring martial law people have the right to travel freely from state to state and that neither the federal government nor state governments can put restrictions on that right; hence, why you can drive in any US state with a driver’s license and car registration from your state of residence, even if those states are not part of the Driver’s License Compact. (Commercial travel is somewhat different and can be regulated on the basis of public health and safety, but as long as you aren’t infectious or carrying prohibited produce no state will stop you at the border and turn you around.) The Federal government effectively enforcing the laws of one state upon people in another would…well, not without precedent, but you have to go back to the Fugitive Slave Acts (as the o.p. has noted) to find an example.
The ability of the federal government to regulate the behavior and travel of citizens going abroad is another issue that doesn’t have any impact upon regulation between the states.
Stranger
Sure, they could - I was just trying to point out that the FBI doesn’t automatically have jurisdiction when criminal activity crosses state line and that this is incorrect
Whatever law provides for this involvement isn’t defining the activity as criminal
I believer the point is that when state lines are crossed, it becomes federal - the feds have jurisdiction over interstate commerce. Sometimes the definition of this is badly stretched; growing your own pot is illegal federally because it could later be trafficked across state lines.
Obviously a state can make it illegal to bring something into a state (i.e. please don’t bring in diseased crops). However, can they legally stop someone from taking something out of state to another US state? Or out of country? IMHO - that should be federal jurisdiction.
Plus, technically, if a woman is going out of state for an “illegal” abortion, how do you prove it? It’s not an illegal act until the abortion happens.
Another point to consider is jury nullification. If as touted, 65% to 80% of the population consider abortion acceptable, where will you find 12 random people who agree the person committed a crime? Abortion laws unraveled here in Canada when Dr. Henry Morgentaler was charged 3 times with performing abortions (which he did openly in violation of the law) and three times, a jury in French-Canadian Catholic Quebec was unanimous that he was not guilty.
All predicated, however, on the courts applying a rational view of the laws of the land. In theory, anything could happen depending on how you argue conflicting rights and jurisdictions. In practicality, it’s ultimately up to the Supreme Court to decide what the limits and appropriateness of any such law would be. Yes, that Supreme Court.
No, as @doreen commented, the mere fact of crossing a state line doesn’t make something federal. It takes a positive statute, enacted by Congress, to criminalise something related to crossing a state line.
There was an extensive thread on this topic a while ago. It depends on how a state we’re to craft the law. If a state passed a law that made it illegal to leave the state with intent to get an abortion, that does not require proof of an abortion in another state. Think of the example of laws that make it illegal to go to a foreign country for the purpose of underage prostitution.
The thread generated much sound and heat, but did not come to a consensus whether such a state law would be constitutional. Can’t find it at the moment.
The question is whether the federal government could pass such a law. Arguing that there is no such law misses the point: We all know that such a law doesn’t exist yet. But could it? I don’t see why not, as it’s very clearly interstate commerce, regulating which is one of the granted powers of the federal government.
However, I’m sure the Federal government would use the Interstate Commerce Clause to say that to cross state lines with the intent to transact business (such as get an abortion) makes it a Federal issue.
ETA: Damn you Chronos (shakes fist) you ninja you!
Note that Connecticut recently began passage of a law to protect providers from being fined under another state’s antiabortion laws.
The measure, H.B. 5414, bars state courts from enforcing another state’s penalties against someone who performed or facilitated an abortion that’s legal in Connecticut. It allows people sued under vigilante abortion bans, like Texas’ S.B. 8, to countersue in Connecticut court, collecting both damages and attorneys’ fees if they prevail. And it broadly prohibits state authorities from complying with another state’s request to investigate, penalize, or extradite individuals for providing or facilitating reproductive health services.
Then the question is which law prevails in the absence of any Federal law.