I suspect too the demographic shift rules against it. In America parties can win by the anomaly of the electoral college, by gerrymandering, by nasty and misleading campaign ads. However, the demographic trend is obvious. The larger, more urban states are trending toward less restrictive social outlook and they are the ones expanding at the expense of the more rural states - about all I can say in this forum.
So if Roe v Wade is nullified, then yes it does become a patchwork of state laws with strong views on both sides, like slavery, like prohibition, etc.
The question then would be - can the federal government, under control of an anti-abortion party, do anything to change that? For example, could a federal law stating a fetus is a person from moment of conception be passed? Is it within the realm of federal powers? It would seriously overturn centuries of common law. Given the current demographic, I doubt it would be a constitutional amendment, so it would have to be just a law. Would it withstand a court challenge? Could the feds pass a law restricting abortifacient drugs and withstand a court challenge? Banning abortion?
I know this has been a year and a half ago, but it looks like I failed to respond.
Yes, you have the right to travel and the power of states to enact extraterritorial laws would seem to be no different than the feds doing the same thing.
But, I’m not even talking about that. I am talking about the states regulating citizen activity internally. And the cite I have for that is every law ever enacted.
So let’s say that MS is completely anti-gambling, and as we know NV is all for it. MS doesn’t care if you gamble in NV, but let’s just assume it did.
What could possibly be impermissible with a MS law that says if you leave the state of MS and go to another state with the intention of gambling, then you are guilty of a crime? It would be a stupid law. But what is unconstitutional about that? The state is not punishing you for gambling in NV; it is punishing you for an act that you did in MS which was leaving the state for the purpose of gambling. There is no constitutional right to gamble.
It would be pretty hard to enforce because anyone could claim that they went to Vegas to watch the shows and eat at the buffets, but then they saw those shiny, shiny slot machines and just had to play them. An abortion law would be easier to enforce.
You have a right to travel between states, but you do not have the right to travel for any purpose whatsoever.
And it is a law school hypothetical really as no state has EVER passed a law which punishes a woman for getting an abortion, only a doctor for performing it.
Scalia has addressed this type of argument in many opinions. Like how should we rule if a state punishes overtime parking with life imprisonment. We don’t reach that question today because such a thing is simply absurd. We would address that when and if we lived in an alternate universe where some state would want to do such a ridiculous thing, because that isn’t remotely close to our world. We have a democratic process to rely upon that we can be pretty confident that no states are going to pass any such absurd law.
Should that happen, women in Alabama could face jail for having – or even trying to have – an abortion. And other states would surely follow Alabama’s lead – some already have similar laws on the books or being considered. It is a dark day for women in Alabama and sends a chilling message to others across the US.
So has Georgia:
On Tuesday, Georgia Republican Gov. Brian Kemp signed a “fetal heartbeat” bill that seeks to outlaw abortion after about six weeks. The measure, HB 481, is the most extreme abortion ban in the country—not just because it would impose severe limitations on women’s reproductive rights, but also because it would subject women who get illegal abortions to life imprisonment and the death penalty…
But the most startling effect of HB 481 may be its criminalization of women who seek out unlawful abortions or terminate their own pregnancies. An earlier Georgia law imposing criminal penalties for illegal abortions does not apply to women who self-terminate; the new measure, by contrast, conspicuously lacks such a limitation. It can, and would, be used to prosecute women. Misoprostol, a drug that treats stomach ulcers but also induces abortions, is extremely easy to obtain on the internet, and American women routinely use it to self-terminate. It is highly effective in the first 10 weeks of pregnancy. Anti-abortion advocates generally insist that they do not want to punish women who undergo abortions. But HB 481 does exactly that. Once it takes effect, a woman who self-terminates will have, as a matter of law, killed a human—thereby committing murder. The penalty for that crime in Georgia is life imprisonment or capital punishment.
I wonder why this strategy is not used for gun control in many states?
Can’t outlaw it directly then nickel and dime it to death with each measure being just this side of legal.
Apparently the courts never consider the cumulative effect of laws. Just the one in front of them on any given issue.
So take a page from pro-life movement and chip away at gun laws. Sure some will be won and some lost but if you do it ceaselessly evidence suggests the restrictions will hold in the long run.
A 5-year Firearm Safety Certificate, obtained by paying a $25 fee, submission of applicant data to the state, and passing a written test proctored by a DOJ Certified Instructor, is required for the sale, delivery, loan, or transfer of any firearm.[5][6] Handguns sold by dealers must be “California legal” by being listed on the state’s Roster of Handguns Certified for Sale.[7] This roster, which requires handgun manufacturers to pay a fee and submit specific models for safety testing, has become progressively more stringent over time and is currently the subject of a federal civil rights lawsuit on the basis that it is a de facto ban on new handgun models.[8] Private sales of firearms must be done through a licensed dealer. All firearm sales are recorded by the state, and have a ten-day waiting period. …Semi-automatic firearms that the state has classified as assault weapons; .50 BMG caliber rifles; and large-capacity magazines (magazines that can hold more than ten rounds of ammunition) may not be sold in California. The ban on large-capacity magazines was ruled unconstitutional March 29, 2019[11] but the ruling is on hold while the case is under appeal.[12] Possession of automatic firearms, and of short-barreled shotguns and rifles, is prohibited …
The courts seem to never consider the cumulative effects of many laws. Perhaps the lowers courts can’t but the Supreme Court certainly can and decide that if you have a right, abortion or guns or free speech or whatever, they can and should consider all of the restrictions that bear on that right.
Saying law-1 is reasonable and law-2 is reasonable…and law-38 is reasonable but taken together your rights are shot is just silly.
If the SCOTUS wants to end abortion then do it. Allowing endless nibbling at the edges so they don’t have to face what they have wrought is craven.
Disagree. You have left wing commentators in those articles proposing novel legal theories that may, if viewed in an obscure way, allow women to be prosecuted for having abortions. Those laws should definitely be cleaned up, but nothing in there is definite that women can be prosecuted and it almost certainly is not the intent of the legislatures, or pro-life people generally, to punish women for doing so.
Yes, they do. You’ve got a few asshole prosecutors using a loophole in a poorly drafted law. I hope the judges dismiss the cases. I will pledge to support cleaning up those laws. But my point that no legislature in the country intends to pass laws to prosecute women. A couple there passed poorly drafted laws that allowed some women to be prosecuted. That is an injustice that I would fight as hard against as I would Roe v. Wade.
But overall, there is not a state in the country that has a realistic chance of passing a meaningful law to clearly imprison women for having abortions.
No, there is no constitutional right to gamble. But it seems like in a year and a half, you haven’t come up with a cite for the idea that State A could prohibit me from going to State B to do something that is legal in State B but illegal in State A. Just because the Feds can enact extraterritorial laws doesn’t mean the states can regulate activity that occurs in another state. And you’re not talking about regulating activity in state A - you’re talking about regulating a mental process, forming the intent to travel to get an abortion. You’re talking about criminalizing a thought in State A which is not followed by an illegal activity in State A. If there aren’t any applicable court decisions, the theory in your head isn’t any better than the theory in anyone else’s.
Even the law in Loving v. Virginia involved an activity in Virginia - the law strictly speaking didn’t criminalize leaving Virginia to get married, or even simply returning to Virginia afterward. Violating that law also required cohabiting as married couple after returning to Virginia*.
*Section 20-58 of the Virginia Code:Leaving State to evade law —If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in §20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.
** I’m sure the police and the courts weren’t very particular about that last part being proven, but it’s there for a reason - and my guess is that the reason is Virginia at the very least lacked confidence that the law could survive a challenge without that clause.
“Mental process” can be regulated. See conspiracy, solicitation, etc. There is no cite because no state has gone that far. But this is regulating conduct that occurred entirely in State A. I think it is up to you to provide cites as to why State A cannot regulate that conduct.
Of course the in-state conduct in Loving was struck down, because the prohibition had a racial motive: always a big no no in the last 70 years of Supreme Court decisions.
The lawmakers could have certainly written the law more rigorously. I am willing to bet there were people warning about outcomes like this when the law was written. But they wrote it this way anyway and if you are unlucky enough to live in these places you (general “you”) may well be caught up in the mess.
It will then take you years and a lot of money to protect yourself from this but hey…maybe…possibly…no one can be sure…they will fix those laws and tighten them up.
Do you, this time really “you,” have any faith that these lawmakers will be getting on firming up those laws any time soon?
Conspiracy and solicitation both require acts - communicating with the other people involved is an act , and you can’t conspire with or solicit yourself. Forming an intent in your own mind isn’t conduct.
Not my point - my point is that if leaving Virginia to get married and then returning can be prohibited then this section of the law
is extraneous. Unless you’re trying to say that Virginia was fine with an interracial marriage as long as there was no cohabitation.
People have already cited Supreme Court precedent on this question in this very thread. From Bigelow v. Virginia (which is cited in State Farm v. Campbell, quoted from above):
(Emphasis added.)
Such a law would be “beyond the powers” of the State of Mississippi. (Or, in Latin–which we all know lawyers still like to use–it would be ultra vires.)
Of course Virginia cannot prosecute someone from travelling to exercise a constitutional right. You see the date of that decision? 1975. It applies Roe v. Wade. Of course you cannot prohibit an exercise of a constitutional right. This thread supposes an overturning of Roe v. Wade.
That is not what the text says. It makes no mention of the reason being that it concerns a constitutional right. It specifically says that Virginia does not have the right to regulate services in New York. It specifically says that someone being a Virginian citizen does not empower them to control their actions while in the state of New York.
The only mention of constitutionality in the full text is about free speech, not about abortion. The constitutionality of the actual practice of abortion in New York (or elsewhere) is never mentioned in the entire ruling.
He’s not answering the question because, as I’ve already pointed out, this is not the forum for that question, which is not a factual one. If you wish to discuss questions of that sort, do so in the Great Debates forum. This is an official Warning for failure to follow moderator instructions.
When Dr. Henry Morgentaler was prosecuted in Quebec for performing abortions, he was acquitted by a jury. The appeal court overturned the jury finding and substituted a guilty verdict. At the time, the law allowed this. When some people questioned it, the (Catholic) federal minister of “Justice” offered a bet it was a very rare circumstance and it would never happen again in his lifetime. Funny thing - it happened again a year later - same doctor, same charge, same court. Until the Supreme Court of Canada ruled that this was not allowed. The prosecutions stopped when the government changed.
So never assume that because the law allows something stupid, that common sense will prevail and prosecutors will not try to leverage a bad law to their advantage.