So some states are planning to enact laws that make it a crime to leave the state for an abortion. I don’t see how they can enforce that: short of parking cops at the border and then being on the lookout for women of childbearing age. And even then, any woman who knows her rights will simply clam up when Johnny Law starts asking questions.
Also, they’re somehow going to try to ban the receipt of abortion pills through the mail. Again, how are they going to enforce that? The USPS isn’t going to have the time, money, or wherewithal to inspect every package that looks like it might come from a pharmacy, then destroy (or whatever) such packages headed to Missouri but go ahead and process the ones headed to Illinois.
They won’t be able to enforce it in 100% of cases or probably even 1% of cases, but just like any other hard-to-enforce law it will be a tool they can use against people who are already under the microscope.
For instance, if a woman goes to the hospital because she is bleeding severely, and because she wants the most accurate medical help possible she admits that she took mifepristone that she ordered online, the doctor may well be required to report that to child protective services because the woman admitted (in the eyes of a law defining personhood as beginning at fertilization) to abusing a child.
I would need to see the proposed laws that you say states have introduced regarding leaving the state to have a comment on that part.
But on this part, the regulation of drug prescribing and dispensing through the mail or internet is a standard part of both state and federal law. This is most commonly seen in the context of controlled substances – the Ryan Haight Act of 2008 was all about regulating internet prescribing and pharmacies; there are all sorts of issue raised by the rise of telehealth providers.
Enforcement (as with controlled substances) would presumably be against the prescribing physicians and dispensing pharmacies. Law enforcement isn’t going to search every package on the off hand chance that it contains a particular medication; it’s going to investigate the pharmacy itself (and take appropriate action).
The widely cited example of such legislation in Missouri (which is still under consideration in the legislature and not yet signed into law) would copy the Texas template by allowing private citizens to sue anyone who assists a Missouri resident in obtaining an abortion out of state. This would apply to anyone even tangentially involved – e.g. the secretary who booked the appointment, the marketer who runs an ad for the clinic, etc.
As with the Texas legislation, the goal is to make anyone involved in facilitating an abortion have to weigh the potential for ruinous litigation (which, even if they win, would bankrupt most people) against assisting the woman.
I should point out that it’s already entirely possible for a woman to be charged for using abortion pills that she received via the mail. It’s not some post-Roe hypothetical. It’s already happening and it’s been happening for a while.
All told, in the United States, a woman who attempts to induce her own abortion may potentially be running afoul of any one of 40 different laws – including those against child abuse, or drug possession, or practicing medicine without a license – according to the Self-Induced Abortion (SIA) Legal Team, a project associated with Berkeley Law. And this is not settled law. Several times, after a woman has been jailed and prosecuted, a court has ruled that the law under which she was charged didn’t apply to women who attempt their own abortions.
Last year, Georgia prosecutors attempted to charge Kenlissa Jones with attempted murder after authorities claimed that Jones used abortion drugs to self-induce a miscarriage. Arkansas prosecutors charged a 37-year-old named Anne Bynum for allegedly using the same pills. The best-known of these cases even unfolded in Vice-President-elect Mike Pence’s backyard: Purvi Patel, an Indiana woman, apparently used abortion drugs she had obtained over the internet to try to end her pregnancy in its second trimester. Patel was sentenced to 20 years in prison until an appeals court reduced her sentence.
I dislike when news articles fail to link to the text of a law when discussing it. But according to the article, this does not appear to be a bill that “make[s] it a crime to leave the state for an abortion.”
According to the article, that was in an earlier draft, but was stripped out:
One provision that did not make it onto the bill was an amendment that criminalized the act of helping someone receive an abortion, even if the abortion itself is performed outside of Missouri.
There was a recent long thread on exactly that topic, and my impression is that we don’t know if it would work or whether it would be constitutional, and it’s almost the first of its kind, but not quite.
That’s still not really what the OP describes. That would appear to create liability (but not for the person leaving the state to obtain an abortion) for engaging in conduct in State A for a crime that is completed in State B.
I don’t know if it would be constitutional (as I recall from that other thread we were promised a comprehensive body of law regarding alcohol regulation that would provide instruction, but I don’t recall if it was ever provided). Ordinarily, if the crime is a crime in both State A and B, it’s obvious that such a law would be fine. But I’m not even sure that “leaving the state” is conduct in State A. And I don’t really know how it works if the act is not a crime in State B (I think that State A could not prosecute for conduct that took place entirely in State B, without some nexus to State A).
The crime that might work in state A would be conspiracy to get an abortion, which would be illegal in state A regardless of the status of abortion in state B
No one knows if it would be constitutional
My opinion: this court would find it to be constitutional
Here’s a hypothetical scenario where a woman might be prosecuted for leaving the state:
A woman is beaten black and blue by her husband. As she’s panicking about what to do with her life, she realizes it’s been six weeks since her period. She takes a pregnancy test. Fuck. She wanted to have a baby, but not any more, not with him. She Googles to find where the nearest abortion clinic is. That far away? Goddamn, that’s going to be a three-day trip with the mandatory waiting period. She doesn’t have her own bank account yet, so she takes her emergency stash of cash and asks a trusted friend to make her a hotel reservation.
Her enraged husband watches as his wife’s phone, still on the family plan, speeds down the highway and eventually pulls into the Planned Parenthood clinic 400 miles away. He sees red. She’s killing his kid? No way will he stand for that.
He’s waiting in the driveway when she gets back. The neighbors have been hearing them yelling for a few weeks, but tonight the sounds are different; she’s not just enraged, she’s terrified. They call the police, he’s taken away in cuffs. She’s relieved for the first time in weeks. When he’s being interrogated, he says “she killed our kid.” The detective asks for details. Hot damn, this just went from a boring old domestic violence case to a murder case. That’s the kind of case that gets you promoted.
Subpoenas are issued for the woman’s text messages, search history, and geolocation data. Combined, that information conclusively proves where she went, when she went, and why, and that she conspired with someone else in the state to make preparations for it. The woman and her friend are indicted for conspiracy to commit murder, as the state’s newly-enacted law defines personhood as beginning at the moment of fertilization. There’s nothing much the public defender can do; he assures the women that fifteen years is actually a really good deal for this charge.
Her husband gets a $150 fine for disorderly conduct and returns to his job as a deputy sheriff. It’d be wrong to punish a good Christian man who did what any father would do.
I’ve read that in at least one state’s law the crime is conspiring (in the state) to leave the state to obtain an abortion. Why not just have a lie ready. “I left state X to visit my friend in state Y. While visiting, I discovered I was pregnant, so I had the pregnancy terminated.”
I agree with, at least, points 1 through 3. 2 is the real question.
I think it’s pretty clear that State A can prosecute for conspiracy to commit a crime in State B, where the thing is a crime in both states.
I don’t think there’s really a lot of relevant examples here. I was actually hopeful about the alcohol laws, because states do have different laws and I can imagine a state trying to regulate its citizens going to other states on that subject.