Recently we have seen a few states pass some pretty stiff laws that close in on a woman’s right to do as she will with her own body. Notwithstanding the Constitutionality of these laws, consider this possibility.
Suppose Oklahoma passes one of these highly restrictive laws. A woman in Stillwater has a nasty breakup with her boyfriend and decides she no longer wants to carry his child. There is nowhere in the state that this procedure can be done, so she travels to Denver, where it is still legal and safe.
Denver has a women’s shelter, which allows her time to find a job and get a place to live. Meanwhile, back in Oklahoma, the ex-boyfriend has gathered compelling evidence that his ex-girlfriend has gone out of state to have this procedure done, which he presents to the district attorney’s office.
The woman has violated Oklahoma state law by leaving the state to end her pregnancy, and the state has filed an indictment on her, based on the evidence that was provided to them.
She apparently has no intention of returning to Oklahoma. But she has violated Oklahoma law. Would Colorado be legally required to honor an extradition request in this situation?
Genuine question: is it generally contrary to state law to leave the state in order to do something which would be unlawful if done within the state? Or would the hypothetical abortion law specifically have to make it a crime to leave the state in order to obtain an abortion?
IANAL, but I believe that extradition agreements (if one exists betwixt Colorado and Oklahoma) compel Colorado to return a fugitive to Oklahoma if the fugitive has broken Oklahoma law, regardless of what Colorado may think of the law or fugitive and no built-in exceptions to the treaty apply. But I could see many Colorado officials refusing to abide by the extradition treaty anyway, daring Oklahoma “what are you going to do about it?”
Extradition agreements are automatic; the Constitution requires states to honor extradition requests from other states.
As you note, there was a technical loophole; for a long time, while a state was constitutionally required to honor extradition requests, there was no means to enforce this. The federal government would not intervene and Oklahoma law enforcement had no authority in Colorado. So if Colorado law enforcement refused to take somebody into custody, Oklahoma couldn’t do anything about it. But this changed in 1987, when the Supreme Court said that the federal government had the power to compel states to enforce extradition requests from other states.
The only exception is if the person has been arrested for breaking a Colorado law. In that case, Colorado may delay extraditing the person to Oklahoma until they have completed their legal business in Colorado. Which can take a long time; if the person is sentenced to a prison term in Colorado, Oklahoma may have to wait until the sentence is completed.
That case involved abortion, but it also involved people putting ads in newspapers, so there was a First Amendment angle which wouldn’t necessarily apply to a hypothetical state law that made it a crime for a woman to leave the state in order to have an abortion. However, there is a fundamental issue of jurisdiction and sovereignty here–Oklahoma simply doesn’t have jurisdiction over what women do in Colorado, not even women who are or were residents of Oklahoma–and even if Roe v. Wade were struck down it would be astonishing if the Supreme Court upheld laws allowing one state to impose its criminal law on the territory of another state, or purporting to prevent anyone from traveling to another state to do something which is legal in that state. Again, that has nothing to do with abortion per se, or with the legal reasoning behind Roe and other abortion cases.
As I understand it, Georgia and/or Alabama did pass laws which specifically make it illegal to bypass their laws by going out of state to obtain the procedure, but I suspect the clauses depend on the woman returning to the state afterwards. I was just wondering whether the law could be applied in a case where the woman does not return.
I would also point to Nielsen v. Oregon (1909), where the Supreme Court held that held that a state cannot prosecute someone for conduct that was legal in the state that it occurred. (“It is enough to decide, as we do, that for an act done within the territorial limits of the State of Washington under authority and license from that State one cannot be prosecuted and punished by the State of Oregon.”). The opinion is framed as one state trying to override the sovereignty of the other state (which made the act legal).
Obviously, our hypothetical is one step beyond Nielsen and Bigelow. And (I believe) a state would generally have jurisdiction to prosecute someone for conspiring (in that state) to commit a crime that occurs in another state. I don’t know what happens if it isn’t a crime in the other state. I would be inclined to agree that a law prohibiting someone from crossing state lines to engage in conduct that is legal in the state that it occurred would be struck down, either as a “freedom of travel” issue or a state sovereignty issue.
Skimming the Georgia bill (assuming it’s this one), I don’t see any such language or provision.
But the factual answer to your question (setting aside all the problems with the premise) is: absolutely. If a person is charged with a crime in State A and they are found in State B, then (upon State A’s request) State B must deliver them to State A. One assumes it specifically contemplates a situation where the fugitive does not intend to return to State A.
A good example would be brothels in Nevada. Has anyone ever been extradited from Nevada for partaking in paid for carnal pleasures, or been prosecuted for hiring a prostitute once they got back home?
That wouldn’t be the case here, though. IIUC, the crime here is the act of traveling to another state for the purpose of having an abortion, not the abortion itself. The crime takes place entirely in the state requesting extradition.
I think the real resolution is a ruling that since US citizens have the full freedom to travel between states, laws like this are unconstitutional.
Is it not a crime in most states to attempt to seek out a prostitute? If a person leaves home for the purpose of visiting a Nevada brothel, then he/she was still in the home state when the search began. Unless I am mistaken, and it isn’t against the law to try to find a prostitute.
I don’t know what it means to “try to find a prostitute.” It’s generally illegal to solicit a prostitute, but the operative actions there take place in the presence of the prostitute. It’s likely a crime to attempt to engage in prostitution, but again the operative acts will take place in the brothel. (In addition, inchoate offenses like “attempt” or “conspiracy” necessarily relate to other criminal offenses. If the other offense is “hiring a prostitute in this state” you haven’t “attempted” it by going to Nevada.).
What is being imagined, I think, is a state version of 18 USC 2423, which makes it a crime to travel to a foreign country to engage in sexual acts with minors that would be illegal if committed in the United States (regardless of their legality in that foreign country). I’m just not aware of a state trying to enact such a law (although sex and drugs would be the most likely topics if they exist).
It would be an interesting angle if the hypothetical woman traveled to another state (let’s say Nebraska and assume it has no relevant laws) before going on to Colorado for an abortion.
If Oklahoma then charged her, she could argue that she hadn’t left that state to get an abortion. She had left Oklahoma to go to Nebraska, where she did nothing that violated the law. She then left Nebraska to go to Colorado, an act which was legal in both states. She could point out that Oklahoma was attempting to charge her for a crime that occurred outside of Oklahoma. If this was upheld, what would prevent Oklahoma from enacting a law that prohibited women all over the country from getting abortions?
I think the problem with this hypothetical is that it mixes up factual questions with legal questions. We’re assuming that Oklahoma (for whatever reason) enacts a law that provides something like: “Any resident of this state who travels to another state for the motivating purpose of obtaining an abortion that would be illegal if it occurred in this state shall be punished” in some manner. (Language adopted from 18 USC 2423).
Oklahoma charges your hypothetical woman and she says “that’s not why I traveled out of the state.” And she loses. Which means that the factual claim did not prevail. If the factual claim were accepted, then the state can’t prove an element of the offense. I’m not sure that tells us anything more broadly.
