The only way to answer the core question is to consider if there’s any relevant precedent.
Off the top of my head, the few laws that apply criminality to crossing a state border with intent to commit a forbidden act are federal. But maybe someone with specific examples of a previous state law with this mechanic might mention it?
Because this feels like a state taking on an exclusively federal jurisdiction behavior, and in a sane world that would be improper and shut down by the first competent court to address it.
You keep saying this, but haven’t demonstrated it. I agree that it is unlikely to hold up in court for say, TX, to punish a woman for having an abortion in NM. That is extra territorial.
But TX can punish the woman for forming an intent to destroy her unborn child (not my words, but proposed TX law) by buying gasoline, loading up her car, etc. and making the plan, all in TX, to drive to NM for the purpose of having such abortion.
How is this not correct? TX is only punishing someone for acts done within Texas; nothing extra territorial.
Yeah, I’d sure like to see a citation or two of this having been done in any state for any crime.
In many years of having sat through criminal trials, I can’t recall a single instance of a criminal case being tried solely based on intent formed in one state for a crime committed in another – and that’s even before considering that the “crime” in the other state, such as in the instance of abortion, is not illegal.
Buying gasoline, loading up a car, etc., as you put it, is far from an automatic assumption of "intent to destroy her unborn child.” She could buy gasoline, load up her car, etc. all for the purpose of taking a trip to another state to sight see, visit a friend or other purpose. At what point can you prove she had the sole intent to obtain an abortion by doing these things? Good luck with that.
I haven’t ‘demonstrated’ that you can’t be convicted for conspiracy to commit what is by definition a non-criminal act because it is a legal (and logical) absurdity. You might as well claim that I haven’t demonstrated that the Earth is not not round in contravention to the claim that it is flat. A state cannot claim that an action outside of its jurisdiction is illegal based upon its own law and then prosecute for conspiracy to violate that invalid law.
A state cannot prevent a non-convicted person from traveling to another state (in general; I’m sure you can contrive some situation in which it could invoke public health or another measure to invoke authority), cannot claim that someone is formulating ‘intent’ to commit an action that is not a crime in the jurisdiction in which the act occurs, and cannot pass laws regarding the legality of actions in other states. There is actually a significant body of law about this regarding liquor laws and other ‘blue laws’ with challenges to whether someone from one state can travel to another state to purchase liquor or prohibited items in that state (even if their intent is to transport the the purchases back across state lines in violation of the laws of the home state), and I am not aware of any challenge that has held up regarding the legal exchange in another state.
All well and good, but it is totally irrelevant to the topic at hand. All of these anti-abortion bills allow civil suits to be filed against anybody breathing (usually with hefty bounties attached). There is no criminal law being applied. It’s all civil.
Isn’t the definition of “intent” the mental state in which one deliberately plans on committing a crime? (Yes, there are “Strict liability crimes” but those do not require intent and the offender must be convicted of the crime.)
There can be no “intent” in which one deliberately plans to commit a legal act. At the state level: federal crime laws are irrelevant smokescreens. So, for that matter, are state crime laws, since the intent of the law was to use civil suits to – deliberately – circumvent the normal process in which such laws would be unenforceable.
Understood it is civil litigation, but I think that even if allowed to stand, the Texas law has a lot to overcome in terms of evidence in a civil case with respect to at what point a woman formed her “intent” to have an abortion. Or at what point someone helping her had the “intent” to help her.
Did the cab driver know she was going to the airport to fly to another state to get an abortion? Prove it.
Did the family member lending her money to make the trip know it was to go to another state to get an abortion? Prove it.
Intent is hard to prove, by both criminal and civil standards.
Check the language of the bills. IIRC, “intent” is a separate issue. I think the bills allow civil suits against anybody who aids or abets, regardless of whether or not they knew the crazed criminal was going out of state for an abortion.
That’s why a jury would be instructed that every element must be proven beyond a reasonable doubt. Buying gasoline is not enough. Loading up the car is not enough. You have to prove that she did so with the intent to get an abortion in NM. If the jury doesn’t believe that, then it’s not guilty. Just like every other criminal trial out there.
Nobody said “conspiracy.” The intent to do something can be punished. It doesn’t matter that it is legal in your destination. The crime occurs in the home state by forming an intent to do something that the home state deems unlawful.
I will do that. But be that as it may, don’t you think intent will come into it at some point? As @Czarcasm points out, how can you hold someone liable when they didn’t even know the individual was going to have an abortion?
Even that is going to be difficult to enforce. First of all, one has to have some degree of intent to be liable for civil penalties, i.e. you can’t be convicted of jaywalking for crossing a lane that is not clearly marked as a street. An Uber driver, for instance, can’t be held liable for driving a woman to the airport for the purpose of obtaining an abortion in another state when they aren’t aware of that intent, and even if the driver was made aware of the intention it isn’t as if he or she is doing so in conspiracy to ‘violate’ this non-law; they are just performing a normal exchange of services for pay (transportation) as they would with any other customer and have no specific interest or effect in the eventual outcome. If this rationale were actually accepted by any court the precedent it would establish would potentially have a cascade of absurdist culpability that would essentially make anyone who came into contact with the woman in question liable. It’s basically Monty Python’s Legal Circus where John Cleese screams incoherently at you while random shit explodes.
There is also the question of who is actually harmed; in civil law, one can commit a violation that is either intentional or negligent; that is, either with a deliberately harmful outcome in mind, or in gross obtuseness to the likelihood of harm. The harm may be hypothetical in the case of something like reckless driving or public intoxication, but there has to be some credible thesis of how that act or condition could result in a real harm. In the case of these abortion statutes, the fetus has no legal standing and so cannot claim injuries, and it is generally accepted that the parental rights of the father or other potential adoptive parents only begin at birth, so the only party that can actually claim real harms would be the mother. The state does have an interest in preventing self-harm and if it could establish that abortion procedures are inherently harmful or carry an unacceptable potential of grave risk then it could claim to be acting in the best interest of the mother by preventing an abortion but the medical evidence does not not support that interpretation.
The argument over abortion is an almost strictly a moralistic one, and because the only party with a real vested interest is the mother carrying the fetus (regardless of what “pro-life” advocates say, they do not have any actual harms to demonstrate in the matter) the law really shouldn’t enter into it. Until the fetus can be regarded as a viable person, it has no standing, nor should anyone else be able to claim standing in its place.
You are the one putting forth the astounding position that a state has no power to punish intent so long as that intent is legal in a destination state. That burden is on you not me because a state generally has power to punish anything unless it violates constitutional commands.
That’s incorrect in its entirety, so far as I understand. It would be a simple matter for you to prove me wrong if you could simply cite me to any case from anywhere that this ever happened.
A state has plenary power. Point me to somewhere in constitutional materials or otherwise where it cannot punish this. The burden is on you. The government can pass any law in a democratic society only subject to constitutional limits. So show me where those limits are.
Uh, no. It is your assertion that the state can impose punishment for intent to commit an act that is not a crime and that occurs outside of its jurisdiction. It is your burden to present some legal thesis that threads that camel through the eye of a needle.
People, we’re thinking old school here, in thinking of women traveling to other states, when the real issue is decidedly new school: abortion pills and the recent FDA decision to allow them to be dispensed by mail (after telemedicine consultations, in many cases). It’s spawned a series of bills in anti-abortion states, as I read in a CNN article just yesterday:
Several states have outlawed telemedicine abortions and sending the pills by mail.
But some, like Texas, have gone further by contemplating how they’ll prosecute providers who seek to send in abortion pills from out of state. Texas last year expanded upon its existing prohibitions on mailing medication abortion pills by classifying the offense as the type of crime that would warrant extradition.
Not so fast, say “safe haven” states. New York State alone has three pending bills that would variously prohibit courts and county clerks from 1) issuing subpoenas in re: any out-of-state-proceeding related to abortions legally performed in New York (text here) 2) prohibiting the arrest and prosecution of abortion providers in the state (here) and 3) prohibiting "the extradition of abortion providers unless the demanding state alleges that such person was present in the demanding state at the time of the offense and fled therefrom. (here)
And that’s just New York. California has legislation pending that would prohibit civil suits authorized by laws in another state against those who seek, perform, or aide in an abortion that is legal in California. Connecticut’s pending legislation would prohibit
state agencies from assisting investigations or prosecutions launched by out-of-state authorities and restrict the disclosure of reproductive health records sought by out-of-state subpoenas, among other provisions. (Same CNN article as above..)
Even if these cases are resolved by SCOTUS in favor of states like Texas, you can bet “safe haven” states would make civil suits inordinately expensive in both time and money and would cooperate in every possible option to drag out the extradition process.