On the Rachel Maddow Show (video in link…I have not found a transcript) last night she detailed the absurd and draconian requirements South Dakota puts in the way of women seeking an abortion.
Among those is a new law that becomes active in June (or July…I forget) that, in addition to all the other stuff, mandates that a woman seeking an abortion visit a Pregnancy Help Center to receive information on alternatives to abortion.
Thing is no such centers have been licensed by the state to provide this service under the new law.
So, my question is, if a woman wants to get an abortion in South Dakota is she breaking the law by not going to one of these centers because they do not exist? Presume she would comply with the law if she could but obviously, as things stand, she literally can’t.
If no such centers exist or try to get licensed can the state manage a de facto ban on abortions and just shrug their shoulders by saying, “We didn’t ban abortions, not our fault if no private business wants to be licensed to provide this particular service.”? Presumably the (single) abortion provider in South Dakota will not be able to perform an abortion without proof the necessary steps were taken.
The states can make and pass laws that end up putting people in situations like that. For example, they could say you can’t have a red fence unless you get a permit and then not issue any permits or even have an agency that issues them. The effect is the same as banning red fences, and since it’s basically within the states’ powers to this - no problem. Stupid, but whatever.
Abortion is different, states are forbidden from placing undue burdens on the rights of women to get an abortion under Casey. This law may run afoul of that, although I haven’t examined it closely enough to really say.
These so-called “pregnancy crisis centers” are actually “harass women facing a horrible dilemma” centers.
You’d think if this law and the people behind it were really sincere in their supposed desire to help women, then plenty of these centers would be registering.
The fact that none apparently have makes it look like they want to make it impossible for a woman to follow all of the required procedures, thus making it impossible for a woman to terminate a pregnancy legally.
This is a misleading oversimplification of what you described in the OP. They are not requiring you to do something that is impossible. Nor would they arrest you for failing to do that impossible thing.
Rather, they have set up an impossible task as a prerequisite for getting an abortion. But if someone gets an abortion without meeting that impossible requirement, that is what they could arrest someone for doing.
It is a very fine distinction, but I hope it answers your question.
Which is, of course, unconstitutional, at least with respect to abortion access.
As to the more general question - I think that there would be successful legal challenges to any law which made it impossible to avoid violation, particularly any that circumvent or “short circuit” existing federal law.
A rather obvious analogy would be a law which required that handgun purchasers attend a training course from state-licensed training facility. Then the state fails to license any such facilities. I think it’s pretty clear that this law would be a violation of the second amendment, at least under current SCOTUS jurisprudence.
I think this disctinction may be important. The OP’s question seems to be of a different sort than if a state were to suddenly pass a law requiring people in the state to have an “Oxygen Consumer License” in order to breathe the air of the state, and then refuse to issue licenses to the hordes of people crowding police stations and courthouses struggling to hold their breath until they can get their licenses, or passing out from lack of oxygen while holding their breath trying to make it over the state line.
The difference here, I think, is not the state refusing to grant a license but rather these centers (which already exist I think) simply choosing not to get this license thus effectively banning abortion.
I may be wrong, but I don’t think it matters, at least with respect to how the Supreme Court is likely to rule. As I remember it what matters is the actual existence of an undue burden, not whether it was theoretically possible for the burden to not exist. If no centers get the license, and abortion is effectively banned, then it is a violation of current abortion jurisprudence.
One could make my analogy more exact by positing that the gun training centers already existed but choose not to get licensed by the state for “approved handgun safety training”. Then it is an exact duplicate of the OP situation, and is also a pretty clear violation of current 2nd amendment law, at least IMO.
However, if it were constitutional to prohibit the item/act then this method would be a legal way to enact a ban. You can’t point to the lack of training facilities/licenses/tax stamps as justification for breaking the law.
I wonder what would happen if say Planned Parenthood itself attempted to establish a pregnancy crisis center (seperate from it’s clinic) and applied for a licence from the state.
And would the pregnant women herself actually be subject prosecution under this new law or only the abortion provider? AFAIK usually these kind of laws are crafted so that the woman herself isn’t subject to criminal liability, only the provider.
Isn’t this precisely how marijuana was made effectively illegal the first time around? They (I don’t recall if it was Feds or State) enacted a law to require a tax stamp to sell marijuana just like the tax stamps on cigarettes, and then didn’t issue any stamps. It was still illegal to sell marijuana without the tax stamp.
Thinking on it I assume (do not know) that the abortion provider is the one on the hook. Presumably the abortion provider needs to have proof that all legally required steps were taken prior to performing the abortion. If this step is legally required but the woman (obviously) cannot provide proof it was completed then the abortion provider would be breaking the law if they went ahead and performed the abortion.
The question in the title of the OP is a bit more vague - it seems obvious on it’s face that a state could not write a law that it was impossible not to violate, but I’m not sure what line of attack would be used to strike down such a law.
An analogous case is being litigated right now in Chicago. Chicago lost at the SCOTUS their handgun ban and as a result will issue permits if meet certain criteria, including live fire training. Then they ban all live fire ranges so you can’t get training. See here.
Because it may not be possible to comply with a law doesn’t mean you can break the law without consequence.
If a state passes a law saying everyone must fly around like superman instead of walking they still get to arrest anyone caught walking even though those people have no other option. Those arrested have the right to challenge the law in the courts and the potential the court finds the law absurd is pretty high. It would likely be struck down but those ‘victimized’ by it still suffer the hardships such a law endures until then.
Many of the anti-abortion laws would not stand up to the Roe v Wade decision. The problem is in order to force states to comply with that decision a pro-choice group would have to challenge these laws. With the current Supreme Court those on the pro-choice side have no intention of bringing a challenge to them, it would more likely result in Roe v Wade being struck down then the law they are challenging.
As things are going women will lose the right to choose.
Yeah, I’d agree that setting an impossible prerequisite to be allowed to do something is different than actually prescriptively requiring you to actually do something impossible. The latter would be something like passing a law that said that in the interests of public physical fitness, everybody was to report to a government operated track and demonstrate ability to run a 4 minute mile. The former, as observed, is simply a way of effectively making something illegal when they can’t get support for prohibiting it outright. The marijuana tax stamps (Feds, BTW) were what I immediately thought of, too. It’s a nasty tactic, but that doesn’t stop it from being used.
There is the legal maxim of Lex non cogit ad impossibilia - “the law does not compel the impossible”. But I agree with the others that it would not apply to impossible conditions; if the law sets an impossible condition for the legality of an action, it is effectively banning that action.
They don’t bother. They just come across the border into Minnesota.
Of course, this means those with enough money to travel here. So effectively, poor women can’t get abortions, but rich women have no significant problems.
AFAIK usually these kind of laws are crafted so that the woman herself isn’t subject to criminal liability, only the provider.