It’s the one I linked in post #8.
The problem with all legal hypotheticals is that the law is whatever five Justices of the Supreme Court says it is. Nothing new: this has been true since John Marshall’s Court.
No, a state cannot make it illegal to bring some substance into the state with two specified exceptions. The first is alcohol, specifically authorized in the repeal amendment. The second is that states are authorized to inspect crops for disease.
HIPAA is a federal law. What one Congress can create, another Congress can undo.
For federal to get involved when crossing state line, doesn’t it have to be a crime against a federal law? Kidnapping is a federal law so when it occurs and crosses state line, then FBI gets involved. Legal age for marriage may be 15 in one state but 17 in another. It’s not illegal to get married so FBI won’t get involved if a couple crosses state line because they want to get married younger.
No HIPPA is a federal law, and even if state law applies, I’d think the law in the state where the doctor did whatever would be the controlling law. The doctor in a blue state with no law requiring revelation of the information could not reveal it.
WA’s governor says the state will not cooperate with other atates’ abortion investigations.
Doctor-client privilege long preceded HIPAA. It comes from the common law but has been incorporated into all state law.
My personal guideline:
There is no hiPPopotamus in HIPAA.
That’s true, but my point was that a state could not pass a law requiring an out-of-state doctor, etc. to report on abortion related activities because such information is also protected by HIPPA. They might be able to require an in-state doctor, etc. to report if abortion is classified by a crime in that state. But I don’t think they could require a doctor to do so as it would violate self-incrimination.
But that’s the point as others argue - Congress has the power to enact laws regarding crossing state lines. It can be argued that a state law regarding the same issue - forbidding crossing state lines for assorted purposes - is effectively trying to regulate interstate commerce and therefore infringes on what as I understand is solely federal jurisdiction.
In fact, recently the underage prostitution law was changed or reinterpreted (in the USA) that they did not have to prove intent when the person departed the USA. Merely committing the act would show intent at some time in the trip.
However, like interstate commerce, the USA has jurisdiction over travel across borders so has the right to enact this law. Do states have any rights to regulate border crossing activity?
I guess the point would be - if congress can regulate interstate commerce to prohibit crossing state lines to get an abortion, why would they do so? They could simply ban abortions. I struggle to think of a scenario where one would be acceptable and politically doable but the other not.
The SCOTUS decision did not say it was only the states’ jurisdiction, AIUI it simply said the alleged federal constitutional guarantee delivered 50 years ago was in their “considered” opinion, nonexistent. Plenty of commentators have said that the more committed in the GOP would like a federal law banning abortions, so presumably they have the power, the constitutional right. Others have said the Dems would like a federal law guaranteeing the right.
Here’s an article Stephen Carter, professor of law at Yale, on whether states could criminalise corporate employers for paying for employees to go to another state to obtain an abortion:
Both statements are likely true. But short of overwhelming majorities (60-40 or better) in the senate, neither side is likely to get such a law. Then there is a serious question of what constitutional clause actually authorizes such a law. I think it will likely remain a state by state thing.
Here’s a good overview article in the Post today:
““We haven’t seen this kind of battle about … the reach of the jurisdiction of one state over another in a very long time,” said Wendy Parmet, director of Northeastern University’s Center for Health Policy and Law. “Nothing of this magnitude have we seen since the Civil War.””
Even if so, Congress could make such a federal law. Or they could just make a law that says that they’re making it illegal to cross state lines for an abortion, without making it a federal crime. Federal law doesn’t violate federal law.
Another approach: one state criminalizes activity in another state, sues other state when “criminal activity” occurs.
“Controversies between states” are heard directly at the Supreme Court of the United States, per Article III of the Constitution.
Of course if they had the votes to do that, they probably have the votes to make abortion illegal nation wide and make the issue moot.
I understand it would be difficult to get the required votes to pass such a law. I’m thinking that the fact both sides think they could pass a law, given sufficient votes, suggests most politicians in both parties (and many lobbyists and commentators) think it is not beyond federal jurisdiction.
A state cannot criminalize activity in another state unless it results in a crime in their state. Utah cannot prosecute crimes committed in Idaho. Some act has to be committed in the state. They could forbid and prosecute someone for conspiring in Utah to commit murder in Idaho.
As for prosecuting for “aiding” travel to get an abortion - as the article says, does the state really want to get into a fight with large corporations whose commitment to progressive causes comes with deep pockets? Also, if Starbucks or Amazon head office in WA or CA will pick up the tab and handle all the paperwork, does Starbucks Texas subsidiary have any legal liability? All the overt acts (pay for travel) were done outside the state.
Are they saying they can’t try? What would stop them?
I’m not sure anything will stop them from trying - but I’m fairly certain that not even this SC will let it happen. Because if Texas can decide that a doctor in NY has violated Texas law by performing an abortion in NY, or Ohio can decide that a Pennsylvania doctor has violated Ohio law by providing a prescription for pills to an Ohio resident while she is physically located in PA, that will mean a whole lot of things that no one wants. If Texas can criminalize conduct that occurred solely in NY. It will mean that each state is not sovereign over its own territory , which was part of the basis for the Federal system to begin with. If states want to somehow prohibit their residents from going to other states to have an abortion * , they will have to figure out a way to define when someone is no longer a resident of a state, which hasn’t been important up until now. And NY and Pennsylvania may act similarly and try to impose laws on other states. At some point that will lead to secession at least - people are not going to stand for the idea that politicians in Texas can regulate my behavior in New York even though no one in NY has any part in electing them and vice-versa. And secession may lead to a civil war.
But it might be worse than a civil war - if states start regulating behavior outside their borders, the SC will lose whatever shred of legitimacy is left. The majority will no longer to be able to claim that they are just returning the decision regarding abortion to the states - and even people who agree with overturning Roe are unlikely to be happy with a group of unelected judges imposing their will on the entire country without any underlying principles at all. And that might end in a revolution.
* or to gamble or to smoke pot or do anything else that might be illegal in one state but not another.
Possibly, or such a law might possibly be a compromise between those who want it completely outlawed at the federal level and those who want to leave it up to the states.
Though “what’s politically feasible” is getting a bit far afield of FQ territory.