Whats the legality of prosecuting someone for doing something that is illegal in their home state, but legal in another state

In My Humble Opinion
221

I’ve read most of this thread and have a thought. Now, what I’m thinking is legally quite simplistic and IANAL so I assume if there was anything to this it would have come up a looooong time ago.

Still… doesn’t it interfere with interstate commerce if a woman is effectively prevented from renting/ purchasing the services of a doctor in another state?

Constitutionally, can Texas make a similar law against having the intent to hire a plumber from a different state or buy tires in a different state?

Does the Dormant Commerce Clause make the preceding unconstitutional?

222

I will hazard some guesses:

  1. I’m not sure if State authorities have the right to inspect the US Mail or not. Even if so, it seems likely the vast majority of packages would get through.

  2. Assuming NY stonewalled their attempts at subpoenaing medical records, they probably can’t.

  3. I assume their argument would be that they can prosecute both the doctor and the pharmacy.

4-6 Yes, thank God.

223

In post-Roe world fetus abort mother.

224

It seems like we’re probably not going to be able to communicate meaningfully then, as I don’t really see how your response to me or what you quoted from me corresponds to how you characterized it, but that’s okay.

There’s a ton of relevant jurisprudence on the commerce clause from the late 1800s and early 1900s. Things where Congress essentially used the commerce clause to regulate things like margarine, eggs, transportation of lottery tickets across State lines, transportation of women (for prostitution) across State lines and etc, that all ultimately held that:

a) Congress’s commerce clause power is plenary
b) Where Congress can make a commerce clause assertion, its power always trumps any conflicting State laws completely, because Congress’s laws are supreme over laws of the States in the areas in which Congress is permitted to legislate

An interesting note, in a large number of those cases, the justice writing the majority opinion is careful to state that the states do have general police power and the Federal government does not–this is actually such a commonly understood principle that you can find it mentioned in dozens of Supreme Court cases across many topics. The justice of course then goes on to say that in the case where the Federal government is enforcing its commerce clause power, the general police power reserved solely to the States, cannot be a bar for Federal action, as the Congress’s authority to legislate in its areas is always supreme to the States.

There is almost no argument under current commerce clause jurisprudence that if Roe was overturned, both the hypothetical criminal law being discussed in this thread, and arguably even SB8 and other such laws, could be pre-empted by Federal law on Commerce Clause grounds. Problem is there is actually close to no abortion laws on the Federal books. There’s a few relating to funding of abortion services and then not much else, so for there to be any obvious conflict you would need a Congress willing to pass legislation in this area.

The other option is, as you say, a dormant commerce clause claim, which is a much more long shot proposition.

225

Conspiracy to commit murder is certainly a crime.

I don’t know if it’s a crime if you’re doing all the planning yourself - I haven’t been able to find anything stating it.

But if you’re planning it with your buddy, WV could charge you with conspiracy, while PA would charge you with the murder itself (and possibly also conspiracy).

Going to the abortion topic: I could definitely see where a state would attempt to charge a woman with conspiracy to commit murder, if she crosses a state line. At the least, she has made (I presume) an appointment with a clinic in another state, so the clinic would be a co-conspirator, though her home state would only be able to get hold of her (not the clinic staff). If a family member / friend drove her to the airport / bus station / all the way to the clinic, then a Well Meaning State Who Wants To Save The Babies would certainly go after the friend / family member.

226

Hypothetical?

However, it was not included in the final bill.

But before her amendment could be brought to a vote, state Rep. Brian Seitz, R-Branson, maneuvered to block her with a substitute amendment. His proposal, mirroring a bill he sponsored earlier this year, would make distributing abortion-inducing drugs that are used in violation of state or federal laws a class B felony, which can result in five to 15 years in prison.

Seitz’s amendment was adopted by a vote of 93 to 48. That prevented a vote on Coleman’s proposal, suggesting the majority of lawmakers may not have an appetite for Coleman’s amendment that critics had called “shocking.”

And his isn’t?

Let’s stop the nonsense of whether this is manifestly unconstitutional and find ways to squash this horror forever.

227

Wait, would that mean someone who mailed drugs from New York to Missouri could be charged with a felony in Missouri?

This Seitz is the same guy who wanted to outlaw the use of abortion-inducing drugs to treat ectopic pregnancy in order to “protect the baby”. How do morons like this get into positions of power?

228

The most obvious way to stop it is through Federal legislation. Anything else trusts to the good graces of essentially TWO of: Brett Kavanaugh, John Roberts, Amy Coney Barrett, as those are the only three of the right-wing majority who seem even willing to think about abortion matters in a non-partisan way. [Note my wording, of those three essentially none of them is remotely friendly to abortion, Roberts is probably the friendliest and he wrote a law review article as far back as the 1980s saying Roe was manifestly bad law that needed overturned.]

229

I read through the whole thread in multiple sittings but I lost the plot while considering whether to respond to individual commenters.

The Supreme Court has long held that states cannot enforce laws outside their jurisdiction. See, e.g., Huntington v. Atrill, 146 US 657, which said:

Laws have no force of themselves beyond the jurisdiction of the State which enacts them, and can have extra-territorial effect only by the comity of other States. The general rules of international comity upon this subject were well summed up, before the American Revolution, by Chief Justice De Grey, as reported by Sir William Blackstone: "Crimes are in their nature local, and the jurisdiction of crimes is local. And so as to the rights of real property, the subject being fixed and immovable. But personal injuries are of a transitory nature, and sequuntur forum rei. " Rafael v. Verelst, 2 W. Bl. 1055, 1058.

Crimes and offences against the laws of any State can only be defined, prosecuted and pardoned by the sovereign authority of that State; and the authorities, legislative, executive or judicial, of other States take no action with regard to them, except by way of extradition to surrender offenders to the State whose laws they have violated, and whose peace they have broken.

There was an earlier thread on this same topic once a few years ago. In it, I noted a Supreme Court case about a publisher who was charged with violating a Virginia law that said, “If any person, by publication, lecture, advertisement, or by the sale or circulation of any publication, or in any other manner, encourage or prompt the procuring of abortion or miscarriage, he shall be guilty of a misdemeanor.” A publisher in Virginia was running ads for a service in New York that was advertising to refer Virginia women to NY abortion providers. The publisher’s conviction under the law was overturned by the court on first amendment grounds.

In dicta, the court noted:

Moreover, the placement services advertised in appellant’s newspaper were legally provided in New York at that time.[8] The Virginia Legislature could not have regulated the advertiser’s activity in New York, and obviously could not have proscribed the activity in that State.[9] Huntington v. Attrill, 146 U. S. 657, 669 (1892). Neither could Virginia prevent its residents from traveling to New York to obtain those services or, as the State conceded, Tr. of Oral Arg. 29, prosecute them for going there. See United States v. Guest, 383 U. S. 745, 757-759 (1966); Shapiro v. Thompson, 394 U. S. 618, 629-631 (1969); Doe v. Bolton, 410 U. S., at 200. Virginia possessed no authority to regulate the services provided in New York—the skills and credentials of the New York physicians and of the New York professionals who assisted them, the standards of the New York hospitals and clinics to which patients were referred, or the practices and charges of the New York referral services.

A State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State. It may seek to disseminate information so as to enable its citizens to make better informed decisions when they leave. But it may not, under the guise of exercising internal police powers, bar a citizen of another State from disseminating information about an activity that is legal in that State.

But the question has moved to the thornier issue of whether a state could prohibit conspiracy within a state to procure an abortion that is legal in another state. I have no doubt the Supreme Court of 1975 would have said that interfered with a person’s fundamental right to travel to another state and to benefit while in that state from the privileges and immunities granted to that states’ citizens. Today’s court? Fat chance. We no longer have a Constitution based on application of legal principles. We suffer under a Constitution twisted by the whims of five anti-democratic partisan hacks and one Republican appointee who agrees with them often enough that we can say he is part of the problem.

230

Thank you so much for taking the time to make this post. I found it very informative.

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Thank you. This is the kind of foundational information that I was asking for.

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Yes, that was definitely the post this thread needed, if not the one it deserved. Thanks!

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Thanks! May you get rest and cheer.

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It prohibits the travel agency, but it doesn’t prohibit the person.

Has anyone ever been charged for procuring the services of a travel agency in order to visit an out of state prostitute?

If I am a NY resident, and I tell everyone that I’m going to go to Vegas and engage the services of some prostitutes while I’m there, is there anything that NY can charge me with?

You are hanging on this NY prohibition on what services a travel agency can provide with a white knuckled grip, but I don’t think it gets you where you want to go.

235

And T&C’s cite pretty much establishes that the NY law is clearly unconstitutional (at least wrt domestic travel), since the facts are so similar.

236

I have no idea if the NY law is constitutional or not , but the case T&C referred to was Bigelow v Virginia, where

An advertisement carried in appellant’s newspaper led to his conviction for a violation of a Virginia statute that made it a misdemeanor, by the sale or circulation of any publication, to encourage or prompt the procuring of an abortion

The decision was based on First Amendment grounds.

We conclude that Virginia could not apply Va. Code Ann. § 18.1-63 (1960), as it read in 1971, to appellant’s publication of the advertisement in question without unconstitutionally infringing upon his First Amendment rights. The judgment of the Supreme Court of Virginia is therefore reversed.

There was some discussion about Virginia being unable to prevent its residents from going to NY to obtain those services or prosecute them for going there - but the decision also contains this :

As applied to Bigelow’s case, the statute was directed at the publishing of informative material relating to services offered in another State and was not directed at advertising by a referral agency or a practitioner whose activity Virginia had authority or power to regulate.

Which suggests that if the statute had been directed at advertising by a referral service located in Virginia that referred people to practitioners in another state , that application may not have been found to be unconstitutional.

Interestingly, the statute was changed between Bigelow’s conviction and the SC decision so as to apply only to advertising regarding abortions which are to take place in Virginia.

237

Who cares?

By this light, CA has a gold mine awaiting them. You have to have strict smog stuff to own a car in CA. So a Texan drives to CA- he intends to do so right? Once he drives over the CA border, his car violates the smog laws, to CA can confiscate his car, right? Or contrariwise, if a Californian buys a non-smogged car in another states- just to drive it in that state, CA can go seize that car, right? He intended to do so.

Such things are beyond silly and are immoral. and need to have the feds clamp down. With the 101st Airborne if necessary. Gov Abbott cost us all hundreds of millions in higher food prices by some bigoted closure of the Mexican border. Biden should have ordered the Border patrol to stop it.

No, states only can enforce laws in and on what happens in their state. Else-wise you are trampling on the right of the Feds. It Texas wants ti make it illegal to get an abortion in Oklahoma, then they have to make it a Federal law.

Not to mention, taking away a woman’s right of choice is immoral.

238

Yep, that’s pretty much the crux of it. I don’t believe anyone in the thread has suggested Missouri can punish you for getting an abortion in Illinois, or even for crossing the state line into Illinois to get an abortion. But taking actions that constitute a statutorily defined conspiracy, when such actions as prosecuted take place inside Missouri itself, is a much more difficult question and one without any incredibly clear precedent.

It’s all kind of been rehashed at this point, but the biggest reasons there is not much precedent comes down to:

  1. Longstanding understanding that how Federalism etc works, the States generally haven’t been interested in trying to criminalize things that “really” happen in other State, even if it might involve some technically actionable behaviors happening within their own State

  2. Most crimes that as a “matter of course” involve complicated crossings of State borders, there’s already significant Federal legislation on, which essentially pre-empts many of these cases from existing in the State courts and for there being much precedent built up in the appellate courts at the Federal level as to how these cases have to work jurisdictionally. There’s a few laws that several of us found that might be quasi-analogues to the hypothetical Missouri law, but no real perfect analogues.

239

Unfortunately, not–this is a completely incorrect reading of @Tired_and_Cranky’s post. Their cite involves a law that was struct down on first amendment grounds, and that was found additionally to be trying to prosecute actions occurring outside the State’s borders. A hypothetical Missouri or Texas law modeled after SB8, but with a criminal component, would be worded quite carefully to only involve actions happening inside the boundaries of those States. They also would not involve any realistic 1A claims, they would obviously raise privacy claims as to the right to procure an abortion under Roe, but we’re also hypothesizing this is a post-Roe world.

I would tend to agree the 1975 court which was vastly more liberal than the one we have now, would have crafted an argument against such laws, but that court also would have obviously not struck down Roe either, so the law would have been unconstitutional for its core attack on abortion rights to begin with, and the cross state jurisdictional issues would not even necessarily need addressing.

240

I don’t get how that is an incorrect reading of the post, bearing in mind that the discussion of this issue was dicta and not the actual reason why the conviction was overturned. The appellant in Bigelow had purchased advertisements in newspapers published and distributed in Virginia, and was being prosecuted for that, not for referring women to providers in New York. So they were prosecuting him for things he had done in Virginia, not just for impure thoughts he had had in Virginia. It seems like the jurisdictional fig leaf in that case was actually much more credible than the “driving in a certain direction with evil intent is now a crime” approach of these new laws.