And also keep in mind that the state is disclaiming any sort of punishment for what you did in NM. Disclaiming it all. You could have killed 100 people in NM and TX doesn’t care.
What it does care about is your intent to have such an abortion, formed entirely within the state of TX. That’s not extra territorial. Your crime was committed entirely within TX, no different than if you formed a conspiracy or an attempt.
Your argument of “but it was legal in NM!” is a good reason not to pass such a law but doesn’t provide any legal reason why the law is unconstitutional.
An argument that says that despite thousands of opportunities to do so, no state has ever attempted such a mockery of justice, therefore it is perfectly permissible may be fun in a mock court (that’s a form of debate in which law students pitch ideas about hypotheticals) but might not be convincing to skeptics.
The thing about your murder example, counselor, is that the underlying crime, the assault that ultimately resulted in death, the action being punished, happened in the state.
It’s a completely normal law that makes sense. I have a high school classmate who was brutally assaulted about 40 years ago. She survived but the attack left her a paraplegic. She has had numerous health problems related to her condition and I expect her attacker, who is still serving a long prison sentence, might tried for murder if she dies as a result of those health problems. That trial would take place in the jurisdiction where she was attacked, not wherever she happens to be living when she dies. It makes perfect sense. I bet most states have similar laws.
It also has nothing to do with what is under discussion. Show me a law that says a West Virginia man can travel to Pennsylvania, go to the home of his girlfriend who lives in Pennsylvania and kill her, then be tried for the crime in West Virginia simply because he is a WV resident, and I’ll listen. Not even if he developed the intention to kill her in WV. Intention is not conspiracy. It’s not an action. Intention can be an element of many crimes, but it can’t be the crime. I can’t be punished for intending to rob a bank if I don’t act at all on my intention.
Now let’s take a look your theory that WV could not only pass a law requiring residents to be 21 to drink beer, but they could enforce that law out of state and could therefore arrest an 18 year old for legally drinking beer in another state upon their return to WV.
Suppose our soon to be arrested underage drinker meets a drinking buddy, another 18 year old, while drinking out of state. Let’s say she decides to come home with him because she has never seen the great state of West Virginia. Could she, a non-resident, also be arrested for drinking beer in a state where it was legal?
I don’t think so. And I’m not sure states can discriminate against their residents by passing laws that apply to their residents but not to non-residents. I’m going to maintain that residency is not like citizenship, and the mere fact that you reside in a state does not give that state jurisdiction over your actions out of state.
@UltraVires in my opinion has the right of this legally. It should be clear–we are talking about a circumstance with little real precedent–largely because the motivation of such laws goes against well accepted “norms” of Federalism going back 240 years. Significantly–that States generally don’t attempt to regulate their citizens traveling to other States in any real fashion, even if it is to do something in that State which isn’t legal in their home State.
Where UltraVires nails it is his assertion that the States have a general police power–this means they can make basically anything they want a crime. There are two significant limits to it–the constitution of their State, and the constitution of the United States.
The very fact that there is no clear precedent for this specific scenario is actually strong evidence that UV is correct that the presumption should be the States can criminalize this activity. Also note he is saying quite specifically that the States can only criminalize the acts that occur within their borders, the State cannot prosecute you for getting an abortion in a different State, but it can prosecute you for taking actions that demonstrate formed intent, within the confines of your resident state.
It is a valid constitutional principle that if there is no compelling precedent blocking it, a State law criminalizing something is assumed to be valid. I do think such laws in this case violate the “spirit” of Federalism, and for that reason would make terrible policy–we are living in an era in which our legal system is being weaponized for political crusades in novel and unwise ways, that are likely to do lasting damage to our country. It is possible a Supreme Court hearing such a case could find some constitutional justification for deciding such laws don’t pass muster–and I would generally support that, but I don’t think there is anything right now that would say such laws are unconstitutional.
Since 14th amendment substantive due process seems to be something conservative justices have typically loathed, I might hang my hat on an interstate commerce argument, although I can’t come up with a parallel scenario. Whether preventing citizens to go to another state to engage in activity which is lawful in that other state might run afoul of the so-called “dormant commerce clause” (which I see @Northern_Piper has already mentioned).
I have to disagree, of course, since that’s been my position all along.
Hypotheticals are always difficult to discuss, most especially when there are no guiding case laws or court decisions. Yet the history of the Texas abortion law gives broad hints to legislative intent and thereby what the drafters - a group of conservative law experts - thought would be the answer.
The law was written, as I’ve said, to reduce the extent of possible court interference to the tiniest mote. They knew that a straightforward legislative ban would be unlikely to survive, even a Supreme Court looking for an excuse to do so. They moved the action to civil courts and an activist vigilante so that they could, without consequence, harass a practice they disliked out of existence even though they could not legally ban it.
It’s difficult to conceive of greater circumstantial evidence than this. State law could not be given this power, even in a state where both the legislature and governor would be eager to sign such a bill into reality. Years of study went into devising a runaround. No one needs a devious endrun of statutory law if a statute would do.
The bill itself does not mention the hypothetical before us. The actions taken by the abettors who are liable to civil suit presumably all take place within the borders of Texas, in order to facilitate a type of abortion that is prohibited. This is the within state crime that has been stipulated.
Yet if the drafters did not think a crime taking place entirely inside a state could be halted through legislation, only an incredible leap of imagination could posit that launching a wholly new subbranch of law never attempted in history would be legitimately within a state legislature’s powers.
In short, if they thought they could have gotten away with it, they would have tried. Since they didn’t even try, but dodged the entire possibility of trying a much milder version, the drafters themselves didn’t believe for a second they could do so. If they didn’t, neither should we.
cite, please? for the statement “nor can it criminalize otherwise innocuous actions that ‘contribute’ to a non-criminal act that occurs outside of its jurisdiction.”
Ultra_Vires,Martin_Hyde, and I have all cited the police power of the state: the power to define certain events in that state as being criminal.
UV has asked for cites from other posters saying why the police power could not be used to define certain events in the state, coupled with an intent formed in that state, as a crime in that state.
No one so far has taken him up on that request and provided him with cites why the police power could not be used that way.
It’s true that as far as is known, it’s never been used that way. But that’s not the same as saying that the police power cannot be used that way. States are doing things nowadays that were never thought of back in 1789, like the welfare state. Just because it’s not been done is not the same as saying it’s unconstitutional.
So why can’t the police power be used to criminalise certain events that take place in the state, coupled with an intent formed in that state?
Let’s try a different approach. Texas passes a law that criminalized traveling to another state to get an abortion. Roe is gone. Abortion is illegal in Texas, but legal in New Mexico.
A woman packs up her car, tells her friends she’s going to NM to get an abortion, drives there and gets the abortion and returns. Texas arrests her for violating the law.
The woman appeals all the way to the Supreme Court. Which way do you think this court will rule?
To me, it seems obvious that this court would uphold the Texas law.
@RitterSport I think there is a decent chance Texas, would win in the Supreme Court. However, due to how novel the situation is and all of the Federalism implications, it would not necessarily shock me, if even our current 6 conservative justice majority Supreme Court found an interpretation that would block it. It would be a novel area of law.
There are plenty of precedents for States simply not caring about their citizens crossing state lines to do things that are illegal in their home state (lots of casinos have historically made their money this way), and not much precedent for States attempting to stop it.
I do think the first paragraph here is why there has been some acrimony here between UV and other posters. In many situations it is reasonable to say “okay, you’re saying a thing is this way, what evidence do you have” and then to conclude if there is no evidence, that the person’s argument is weak or invalid.
In our constitutional system we aren’t dealing with the rules of internet discussions–and there is very genuinely a broad principle that barring a specific reason otherwise State laws as passed by State legislatures are valid–this is all State laws. In the case of a criminal law, it is well established that States have a general police power to criminalize things and to use law enforcement and their own State criminal courts to enforce those laws and punish violations of those laws. It’s really a situation where the onus is actually on someone saying it is unconstitutional to provide proof, the default assumption is that it is constitutional.
On the second point–I would not want to assume too much, if it were me, about the legal activists who crafted things like Texas SB8 as proof of anything one way or another. They obviously crafted SB8 because they thought that was the most effective path forward for their political goal, but that isn’t in and of itself any constitutional evidence that the hypothetical criminal statutes being discussed in this thread wouldn’t be legally valid.
Not clear where you’re drawing this premise from. The sense in which Texas was doing an end-run around existing precedent was that Casey already sets out limits for abortion bans, which Texas wants to violate, and so Texas crafted a law that is unlikely to be considered by the Supreme Court in light of Casey. Texas did not enact a straight-up ban because Texas figured the Supreme Court might feel obliged to say “this is literally what we said you can’t do.” We agree this far.
But I don’t see why you read this to mean that Texas believes it cannot prohibit conduct that occurs in Texas. The fact that they accomplished their objective without risking immediate judicial review doesn’t mean there were no other ways to accomplish the objective. Perhaps they just figured that putting Uber drivers in jail was a different kind of bad PR, compared to doing it this way, in coordination with other states and activists.
More broadly, an example of this type of law has already been provided: law against trafficking minors. If you form the intent to engage in sex with a minor or a prostitute in a foreign jurisdiction, you’re guilty of a crime in many states. They just nailed Ghislaine Maxwell with related charges. Those were federal, but that’s just because the feds usually want to handle such cases and why would a state really want to take that enterprise on. There is a New York law that punishes providing travel services (a legal action otherwise) to a person for the purpose of sex trafficking. That fits the description, including specifically noting that even if the sex acts are not a crime where they happen, the trafficking is a crime in New York:
S 230.25 Promoting prostitution in the third degree.
A person is guilty of promoting prostitution in the third degree when
he or she knowingly:
1. Advances or profits from prostitution by managing, supervising,
controlling or owning, either alone or in association with others, a
house of prostitution or a prostitution business or enterprise involving
prostitution activity by two or more persons in prostitution, or a
business that sells travel-related services knowing that such services
include or are intended to facilitate travel for the purpose of
patronizing a person for prostitution, including to a foreign
jurisdiction and regardless of the legality of prostitution in said
foreign jurisdiction; or
There you go - @Jimmy_Chitwood has provided a state law which criminalisés conduct in the state because of the intent to do something outside the state, even if it is legal outside the state:
Is that law unconstitutional, then, or is it valid under the state’s police power?
Note that involves travel to a foreign country, which doesn’t answer the issues about right to travel in the US, or dormant commerce clause, or other possible restrictions on the law under discussion here, but it provides a cite for a state law that criminalizes conduct in the state, based on intention to do something outside the state.
I think the law has been pretty well covered (although there are obviously many unanswered questions).
But does it strike anybody else as ominous that the last time we had states attempting to co-opt other states’ laws to this level was probably the Fugitive Slave Acts in the early 19th century?
One of the bedrock principles of federalism is that states have the authority to define legal behavior in their state, barring a violation of the federal constitution, and this type of legislation will only exacerbate the dangerously high level of state-v-state acrimony we currently see.
It also very clearly shows anyone who still doubts that reversing Roe and leaving abortion up to the states is not at all the intent of the anti-abortion movement.
It wouldn’t shock me either - at least in part because there doesn’t seem to be a uniform definition of “resident” and when residency begins and ends and it’s possible for a person to be a resident for some purposes, but not others. I have to maintain a place of abode in the state for 12 months prior to the start of classes to be considered a resident for tuition purposes at a public university ( unless I am under 24, in which case I will not be a resident if my out-of-state parents claim me on their tax return) I am a resident of my state for income tax purposes if I maintain a home here for substantially all of the tax year and spend more than 184 days of the tax year here. It is entirely possible for me to be required to file a resident tax return and not be eligible for resident tuition rates.
I would be shocked if the Supreme Court upheld a law passed by my state that made it a crime if I openly carried a firearm anywhere in the country after having spent more than 184 days here - and it seems to me that if Texas can prosecute someone for flying to California and obtaining an abortion while there, then my state can do the same for someone flying to Texas and openly carrying a firearm while there.
States define crimes all the time. They can make previously “innocuous acts” into crimes, if they think that is appropriate. There is no bar on states creating new offences.
By what constitutional principle are you asserting that a state cannot criminalise certain conduct (actus reus) coupled with a particular mental intention (mens rea)?
