It doesn’t actually involve travelling to a foreign country - it involves selling travel services in NY knowing that the services are intended to facilitate patronizing prostitution. Which really would only apply to the sort of organized tours that used to exist ( don’t know if they still do ) and not a travel agency or airline that simply sold a plane ticket to Thailand. It’s not like Texas making it a crime to go to California for an abortion - it would be like Texas prohibiting travel agencies in Texas from selling “abortion vacation packages”, which Texas absolutely could do.
The Fugitive Slave Acts were federal Acts, not state, and were enacted to enforce rights under the federal Constitution. See:
It would depend on the drafting of the hypothetical law. If it’s tied entirely to actions within the state, and intent formed in the state, and does not actually require that the person got the abortion in the other state, then it seems on all fours.
See my rewording of the NY statute, which doesn’t require that anyone actually travel to another jurisdiction or obtain an abortion:
Right, a better analogy might be someone who can’t legally purchase a certain firearm in X state forming the intent to travel to Y state and purchase said firearm. In light of the charges dropped against Kyle Rittenhouse, I can see a liberal legislature trying something like this.
And again I ask: What if there is intent, travel to another state is made, but for some reason the abortion is not done?
They probably wouldn’t bother prosecuting.
However, people are prosecuted for conspiracy to commit murder even if their murder plot is foiled.
This one isn’t too complicated–if the crime is materialized intent through specific actions that can be proven beyond a reasonable doubt by a prosecutor, then if the act itself occurred is not material to whether the crime was committed in the resident state.
I think, in real hypothetical life, they are not gong to prosecute a woman who decides against getting an abortion, if that’s the reason it doesn’t happen.
Of course, thanks for the correction.
I meant it in a much broader sense… my understanding was that the federal act was intended to arbitrate a disagreement between the states regarding the type of questions asked in this thread. State courts had held that their law trumped any law in other states regarding the status of enslaved people that had been transported to their state.
Obviously it’s not a great analogy to the current laws for a number of reasons. I just think back to the various threads regarding “what would it take for the union to break apart” and it seems to me that setting up state laws that attempt to undermine the authority of other states in an issue as divisive as abortion is a step down that path.
Can that fact, that there is lack of prosecution if the act is not carried out, be used to show that that they are not actually punishing the intent alone?
Note that one reason I think such laws are unwise is under our current system of Federalism, there is a baseline respect States have to give to other States in some legal matters due to the Full Faith & Credit clause. It should be noted that things like search warrants and many matters related to performing criminal prosecutions are not actually covered by that clause, they instead are mostly just performed as a “courtesy” of one state to another, in a legal sense. If red states start weaponizing their criminal courts over highly charged political issues, you could see significant barriers created by blue states to muck up this cooperation.
I would also note a law that criminalizes actions pursuant to obtaining an abortion in another state, would be incredibly hard to win a conviction on, if such laws hit the books I suspect their primary motivation would be to create a “chilling effect.” There are also specific legal strategies clinics could utilize and blue states could utilize to make prosecutions even more difficult–or even to create some form of retaliatory framework that could be targeted against persons in the red states. A political environment where we weaponize our system of state criminal laws to try and regulate behavior across state lines will lead to a massive amount of problems in our system of Federalism. There are good reasons that in many matters involving issues between the States, the constitution gives the Federal government authority, and why many other matters States have simply not battled with other states historically.
For what it is worth a pretty good strategy a clinic in say Illinois could use to provide services to women in Missouri would be for the clinics to not admit any woman from out of State for abortion services. Instead they would only offer “pregnancy consultations” to out of State women. The women would be required to sign an affidavit saying they had not come there with an intention to procure an abortion, but to get a consultation on their pregnancy with a doctor. Now, it is possible after that consultation the woman, in concert with her private meeting with her doctor, might then get an abortion. Piercing the veil of this would be very difficult due to medical privacy laws and the fact Illinois would be unwilling to even entertain significant attempts by Missouri to investigate in its borders. The women would just have to be smart enough not to make any obvious statements to someone while in Missouri that their intention was to cross the border to get an abortion.
That is just off the top of my head–there are likely even smarter ways to go about it I’m not thinking of, the reality is these laws would be a mess to enforce. However just because they’d be a mess doesn’t mean they are necessarily unconstitutional.
Right, but that still applies to those who sell travel-related services “knowing that such services include or are intended to facilitate travel for the purpose of obtaining an abortion”. It doesn’t apply to the person traveling or the plane/train/bus company that simply sells her a ticket to California and has no additional information. I don’t know about you, but when I buy transportation services , I don’t tell Amtrak why I’m going to Albany or Delta why I’m flying to California.
No, he hasn’t. Running a business to provide access to services that are illegal in a state but legal in the place to which access is being provided is a completely different matter.
This discussion seems to have veered off into justifying a state’s alleged right to criminalize the intent of an action that would otherwise be legal. But freedom of movement between states is more than just “legal”. According to interpretations of the Privileges and Immunities clause of the Constitution (and its re-iteration in the 14th Amendment) the right of free movement between states has been long established as a fundamental right. The infringement of the fundamental rights of a law-abiding citizen because a state disapproves of the “intent” would therefore seem to be unconstitutional. The exercise of fundamental rights should never have to be justified to law enforcement.
Also, I might add, UltraVires seems to readily acknowledge that no state can prohibit a citizen from moving to another state for any purpose whatsoever or for no reason at all. Yet in the same breath UV and some others here seem to feel that a state can prohibit a citizen from merely visiting another state if they don’t approve of the purpose of such visit. IANAL, but I find that entirely inconsistent.
I find this a confusing statement–as I read the thread that was the entire premise of it–whether the State could criminalize taking actions within its borders, that would be part of an overall activity intended to go into another state and do something legal in that state, but illegal in the resident state.
It should be noted that under our constitution States don’t need “special” justification to make something criminal, they just need some rational basis, which is incredibly broad.
“Otherwise be legal” also is kind of demonstrating the very point UV is making–everything that is currently a criminal offense in any state would “otherwise be legal” if not for the state criminal statute making it illegal. There is not a special protection for things that are “otherwise legal” from state criminal laws. There is a special protection for specific things that can be found in State constitutions, the Federal constitution, and various court precedents, but not a broad protection that just because something is legal right now it can’t be illegal.
I would agree that movement between the States is an established right, I would simply say that extending that premise to the scenario being discussed here is “speculative”, and sans court ruling the State law still has the imprimatur of legitimacy.
There have already been cases and specific scenarios pointed out where the government more broadly has been able to criminalize crossing State lines for certain purposes, and extra jurisdictional behavior for other purposes. It is relatively uncommon at the State level, but there is even some precedent for that. The big thing we are missing is a clear precedent of State A criminalizing some actions in its State that further an act in State B that is legal in State B but illegal in State A. There is precedent for the Federal government criminalizing moving across state lines for a purpose that is not necessarily illegal in either State A or B but that is illegal Federally, and there is precedent for the Federal government doing similar for persons leaving the jurisdiction of the United States entirely, and there is precedent of State laws mimicking that international exodus scenario as well (although I think they are probably not commonly enforced since the Feds often handle such cases.)
While this hypothetical is as far as we can tell a novel situation, there is not any significant precedential weight that would lead me to suspect the Supreme Court would strike down such a law on free movement between the States grounds.
We’ve repeatedly noted in this thread that the federal government has more control over its citizens than states do. A state can criminalize a conspiracy to commit a federal crime. This is irrelevant to the question of what states can do for their own laws and own residents. A poor place to start.
This is harder to argue with as a generality, but the sticking point is already bolded. There is a specific reason why this particular law is problematic. States have never been given the ability to control residents in other states. No one has yet put up an example, and the generality, as @wolfpup wrote, is that state residents are subject to state laws within another state. Each state’s laws are paramount within their boundaries. Not thinking so is what makes this discussion so novel.
Rather than repeating discredited, irrelevant arguments, could someone here please give some legal history that is pertinent to the question of how states may apply their laws - not federal laws - to acts committed elsewhere? The issue must certainly have come up.
It seems obvious to me that Stranger is correct, and that this law is blatantly unconstitutional. I feel the same way about the NY prostitution law cited above; has this law ever actually been tested in court and found Constitutional?
Stranger says there is lots of case law around this issue, mostly relating to alcohol and pornography, which has held that States can’t prevent their residents from traveling to other States and doing things which are legal in those States. I believe him, though it seems like posting some specific cites might go far towards bringing this argument to a close. It seems hard for me to imagine that this is the very first time in US history some State has attempted to regulate what its citizens can do while out of that State.
Curious: under this law, if someone from Oklahoma is passing through Texas in order to obtain an abortion in New Mexico, are they committing a crime?
One thing I wonder about is if, back when legalized gambling was less accepted, there were ever any state (not federal) laws purporting to regulate or criminalize going to another state to gamble in, or purchasing a lottery ticket in another state (there’s a Supreme Court decision relating to something like that from over a century ago, but it had to do with the federal governments power to regulate u ser the commerce clause, not a state law). Because if there’s going to be a historical parallel, I strongly suspect it would be in something like that, as gambling and lotteries have long been legal in some states, but not in others.
I’ll try to pull together some sources today if I have time, but in my research on this the most salient cases I’ve found have involved child pornography related computer crimes, some of those are regularly prosecuted with search warrants going back and forth across state lines and local prosecutors and police in cross-state jurisdictions. Eugene Volokh has written on some of these back in 2009/2010 in a document he put together about computer crimes, I’ll note that he thinks a good part of this stuff hasn’t been properly litigated to even say what is constitutional and what isn’t.
The specific scenario we have here of something where only one state thinks it’s a crime, as far as I can tell is quite novel. It isn’t novel for a state to criminalize something that is legal in other states, but this appears to be maybe the first time it’s been suggested to try and criminalize a state resident leaving the state to do something legal in another state that is illegal in the resident state. And obviously I don’t think any such law is actually on the books, but I do think a far right legislator in Missouri has at least thrown around the idea to the media, so it isn’t entirely hypothetical unfortunately.
Of course. But “would otherwise be legal” is just my characterization of the current drift of the arguments here. My whole point is precisely that it’s much more than that – the law is not merely attempting to criminalize that which would otherwise be legal, it’s attempting to criminalize a fundamental constitutional right. It’s taking a well-established fundamental right, and making it conditional on having government-approved intentions.
Exactly. And my argument is that freedom of movement between states, for any reason, ** is ** subject to this special protection.
Other than allegedly having “the imprimatur of legitimacy” – I would prefer to characterize it as having the imprimatur of oppressive nutcase extremism – we can agree that this exact scenario (AFAIK) has never been tested. I’m just opining on how I think a rational court would rule, based on constitutional rights.
That seems of limited saliency. There may be issues involved with coordinating between jurisdictions with different child pornography laws, but none of the jurisdictions involved are taking the position that child pornography is OK and that nobody should be punished for owning it.