That argument that states can nullify federal laws? We now have counties arguing that state regulations don’t apply to them.. Two counties in Michigan say that a court injunction against enforcing a trigger law applies only to the state, not to them, and that they can charge abortion-performing doctors with felonies if they so choose.
Seems like we could go from here to municipalities saying they’re ignoring state or county laws that they feel don’t apply to them. Maybe I can ignore ordinances from municipal level on up that I don’t agree should apply to me. Once we’ve set the precedent that one level of government can ignore the next one up if it wants to, things are going to get interesting. What if rural counties in Illinois decide they don’t like some law those urban elites in the state capital enacted? Yes, you have to find an argument as to why you can disregard said law, but lawyers can be very creative in crafting such justifications.
I am not saying, mind you, that I think these positions are valid. I don’t think they are. I am saying that states claiming the right to overrule the feds may be unwittingly uncorking a genie that is going to make their own lives very interesting.
State governments have the backing of the Constitution. Municipal governments do not. They exist entirely at the pleasure of the state with no legal rights of their own.
At least that’s what I got out of that news story when DeSantis ended that Disney government thing.
Oh, not disagreeing with you. I just think that the idea has been planted in the heads of people who perhaps didn’t pay that close attention in civics class that “I don’t agree with that law, so it doesn’t apply to me.” And this will take us in unexpected directions.
The issue isn’t so much that “states can nullify laws, therefore I can!”
What’s at issue here is an aggressive application of prosecutorial discretion. It’s well-established the the cops and district attorneys have a wide discretion about which cases they investigate, charge people with, and proceed to trial. In these cases, the cities or counties are simply stating, “That law is our lowest priority, but you’re free to waste your own resources on it!”
That’s true as far as the US Constitution is concerned, but local governments usually have some kind of backing in state constitutions intead of being totally at the pleasure of the state legislature. That being said I think the MI counties don’t have a leg to stand on in this particular case.
Varies from state to state and unlike states vs. federal IIRC most state constitutions do not have a clause forbidding changing the scope of local autonomy, and supremacy of state laws is absolute i.e. if the state says “thing X is illegal in this state” the cities don’t get to claim that’s “just if it happens in intercity commerce”.
More than a third of the district attorneys representing the 25 most populous counties in states that have banned or are set to ban abortion have publicly vowed not to prosecute abortion cases, according to a CNN review, potentially limiting the impact of the new restrictions.
Their declarations could set up legal clashes between more liberal prosecutors in urban centers and red-state attorneys general and legislators, some of whom are already planning to wrest control of abortion cases from local authorities.
…
Many of the district attorneys signed a joint statement released Friday in which they committed to “refrain from prosecuting those who seek, provide, or support abortions.”
“They don’t all agree on the issue of abortion, but what they agree on is that this is not a smart or efficient or wise use of limited prosecutorial resources,” said Miriam Krinsky, the executive director of Fair and Just Prosecution, a criminal justice reform group that organized the statement. “They are going to become the last line of defense.”
The article points out that this does not mean abortion providers will resume or continue offering such services in those states.
Yep - next guy could change his mind (sexist language intended, although there are of course anti-choice women), and go after old cases depending on the statue of limitations (and since a lot of the newer laws at least consider it murder, there generally might not be one).
Refusals to prosecute or even jury nullification likely won’t save abortion in the sort of medical facilities staffed with nurses/doctors that we have today. The people involved in running those facilities have licenses and careers and are not likely to want exposure to the risk, even if no jury will convict them and no local prosecutor will bring charges, they are just exposed to too much license and civil risk most likely.
If it’s obvious the court system isn’t going to materially punish people involved, you will likely see “alternative” providers crop up over time, people willing to operate under the radar and outside the formal bounds of the law. That is what we had in the past, but it’s going to look a lot different than a Planned Parenthood clinic and will not offer the same quality of medical care.
Of course, over half of US abortions at the moment are performed via medication, not surgery.
Could a pill-dispensing operation, perhaps one offering remote access to a doctor in another state to reduce legal exposure, operate legally in one of these blue “sanctuary cities” in a red state?
I don’t have a cite, but I heard something on NPR Tuesday that at least one state will not allow pills to be prescribed to a person who got the prescription through an online/tele consultation.
I doubt it would matter because I find it unlikely a local pharmacy would fill that prescription. The final arbiter of what pills you get is not the doctor, it’s the pharmacist.
