I agree that this hypothetical law won’t past muster if SCOTUS reaffirms Roe.
I’m not sure the freedom of interstate movement is an issue here. Texas isn’t saying its citizens can’t leave the State at all, they just can’t do so in order to obtain an abortion.
To me the fundamental principle is that States can’t prosecute people for conduct occurring outside their borders. The “intent” angle doesn’t apply, because in a post-Roe world, Texas may have the authority to prosecute people for intending to perform an abortion in Texas, because abortion is a crime in Texas, and if something is a crime, then it is possible to conspire to commit that crime, or to form the intent to do so.
But getting an abortion in New Mexico is not illegal, and since Texas doesn’t have the authority to make getting an abortion in New Mexico a crime, it also can’t prosecute people for “conspiring” or “intending” to get an abortion in New Mexico.
Why not? That is the heart of the debate. Why is that beyond the police power of the state?
I believe Stranger is right when he said:
You can’t be prosecuted for ‘intent’ to commit an action that is not a crime within the jurisdiction that said intent occurs; that would be a legal paradox, not withstanding the difficulty in establishing such intent to the standard of criminal conviction without evidence of conspiracy, which again is not a thing if the supposed ‘crime’ being conspired is not actually a violation within the jurisdiction it is being alleged to occur within. Nor can states prohibit travel between them even to prevent a presumptive crime. In fact, there is no possible way such laws can be considered as legitimate under the Constitutional framework regardless of how many people vote for them. Only the federal government can regulate interactions between states and the actions of individuals across state borders.
IANAL and can’t provide a specific cite for that, but (a) holding otherwise would create an absurd situation and (b) if it were Constitutional, someone else would have done it by now.
Can you point to any other instance in which people can be charged with “conspiracy” to do something that isn’t itself illegal?
The New York statute does exactly that: prohibits a travel agency from facilitating travel for the purpose of prostitution, even if prostitution is legal in the destination. On what basis would you say it is unconstitutional?
There’s also the Foreign Corrupt Practices Act, which makes it an offence for American businesses to bribe foreign officials in their home country, even if such bribery is customary and not illegal.
Because States can’t prosecute people for conduct occurring outside their borders. I feel like I’m repeating myself here. My position is that that New York law is in fact blatantly unconstitutional. If someone can provide a cite that someone has been prosecuted under that law, defended themselves on the ground that the law was unconstitutional, and lost, I will change my position.
Your mention of the FCPA, a Federal law, suggests that you are missing the point. Of course governments in general can criminalize conduct taking place outside their borders. But in the American federal system, that authority is reserved for the Federal government and denied to the States.
The conduct took place within their borders – the conspiracy to have an abortion.
But New York is not prosecuting the travel agency for something committed outside their borders. They are prosecuting a travel agency for selling travel tickets, in New York, to someone in New York, knowing that by doing so they are facilitating prostitution in the destination. There is nothing in that statute that says acts of prostitution actually have to occur. It’s the actions and the intent, all in New York, that are prohibited by the statute.
Texas can’t criminalize “conspiring” to have an abortion in New Mexico, because having an abortion in New Mexico is not a crime.
Where is that restriction?
I contend that New York is not, in fact, prosecuting anyone for violating this law, and that the courts wouldn’t allow them to do so if they tried. Do you have a cite proving otherwise?
I’ve already conceded that I can’t answer that question. Hopefully some constitutional lawyer type can. But my position seems completely logical to me, and AFAIK is not contradicted by any existing case law.
I think the answer is, “no one really knows”. This seems to be a novel approach, just like Texas’s recent abortion law was pretty novel, and has not been stayed by this SCOTUS.
My opinion (and this is outside of GD bounds, I guess) is that, if Roe were overturned and a state criminalized conspiring to get an abortion (whether in state, where it’s illegal, or in some other state, where it wasn’t) that the current SCOTUS would say that it falls within the state’s powers to do so.
There is a “conspiracy” to travel to another state-Legal.
There is a “conspiracy” to have an abortion in another state-Legal.
The conspiracy would be to have an abortion. It doesn’t matter what state it happens in.
If one conspires to commit murder and travels to another state to do it, it’s still conspiracy in the original state.
Round and round we go!
And it will be prosecuted in the state the crime is committed in.
Correct. The conspiracy to commit murder, which conspiracy happened in Georgia, can be prosecuted in Georgia, even if the murder itself happened in Florida.
I’ve found one semi-relevant precedent, City of Detroit v. Osborne, 135 U.S. 492 (1890). I can’t get the link to the actual decision to open, but apparently SCOTUS here rejected the notion that someone should be able to do things that are legal in their home State, even if they are illegal in the State where they happen to be at the time. So sort of the inverse of what we’re talking about here.