I used to live in Florida. Back in West Virginia now. But even under the FL law, 1 (a) fits nicely with the “partly” part. If a Florida resident left Florida to a different state to commit an act that was legal in the other state, but illegal in FL, they would have jurisdiction. Whether it’s getting an illegal abortion or gambling in Vegas, the mens rea of the crime would take place in Florida.
As far as the ex post facto, I’m not talking about punishing women who have abortions now or in the past. I’m assuming, for the purposes of this thread, that in 2022, there are a couple more conservatives on the Court and they strike down Roe v. Wade, say there is no constitutional right to abortion. States: have at it.
In 2023, Florida (or whatever state) passes a law saying that any of its residents who leave the state and procure an abortion in another state shall be guilty of a felony punishable by… With the extra-territorial precedent established by the federal government, I’m at a loss to see why a state couldn’t do it, if they could prove all of the elements.
I think there are three separate points you should consider:
I’m not sure the analogy to federal extra-territorial laws is apt, because you assume that if Congress can pass extra-territorial laws, so can the States. Is that really the case? Can one state make it a crime to commit an offence in another state? I would have thought that was one of the attributes of sovereignty that the states surrendered to the federal government upon ratifying the Constitution. Do you have a cite that states have extra-territorial criminal jurisdiction?
I. The specific case you mention, bear in mind that the courts have recognised a strong constitutional right of freedom of movement within the United States - see the wiki article for a good summary. I would think there would be a good argument that criminalizing leaving the state to do something that is legal in another state would offend this right.
There’s also the commerce clause. Congress has jurisdiction over inter-state commerce. SCOTUS has held that one aspect of this power is the “dormant commerce clause” - that the states cannot restrict inter-state commerce. In your example, getting a abortion in New York was perfectly legal. A person who travelled from another state to obtain that service was presumably engaging in Inter-state commerce. therefore, it appears that the dormant commerce clause analysis would bar Michigan from criminalizing that travel.
We would have a freedom to travel issue here under the 1st AM. Additionally, the previous post’s CLJ would have to be repealed or the 2 FL statutes conflict.
While “Fleeing” a state to avoid prosecution is a federal crime, entering a state when no crime has been committed in another can not be criminalized under Due Process I would imagine.
Speaking of MI’s CLJ I found this online;
THE DETRIMENTAL EFFECTS TEST
In 1911, Justice Oliver Wendell Holmes wrote the opinion for the Supreme Court in Strassheim v Daily, a case that arose in Michigan and is still cited today as authority for the proposition that a state may exercise criminal jurisdiction over acts committed outside the territorial boundaries of a state. In Strassheim, the Supreme Court stated:
…[a]cts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect, if the state should succeed in getting him within its power…
In 1993, the Michigan Supreme Court had occasion to apply the Strassheim rule. In People v Blume, 443 Mich 476; 505 NW2d 843 (1993) the Court concluded that jurisdiction could not be exercised over a Florida co-conspirator who had sold cocaine to a Michigan resident where there was insufficient proof that the Florida resident had intended that the cocaine be distributed in Michigan. The Blume court interpreted Strassheim as requiring both "specific intent to act and the intent that the harm occur in Michigan."8Proof that the defendant knew the person to whom he sold the cocaine in Florida was from Michigan and would eventually return there was not considered sufficient to show that the defendant intended the cocaine to be sold in Michigan.