Here to learn

[Ritterskoop]

So last year's Dobbs decision returned the abortion question to the states, which they are handling in various ways.

I'm not here to take a position on whether abortion is moral or should be legal.

I get that different states have different views, and that some people may choose not to visit or live in a state because they disagree with that state's position. There is a sense in which this has been true for decades (folks might have chosen to live in one state rather than another because they couldn't get married in one place but could in another, for instance; or, you know weed is legal some places and not in some places).

My question is, once a state has chosen to make abortion illegal (or really, any action), how does that state then also justify prosecuting people for traveling to another state for that purpose? Doesn't that call into question the entire premise of states' rights?

How come no states are prosecuting people for driving to the next state to buy weed?

I get that abortion and weed are different, and that there are many activities that are legal in some places and not legal in others. What I don't get is why a state can tell you what you can and can't do in another state.

[mrkelley23]

You're probably not going to learn much from me, because I'm with you in thinking there's some major hypocrisy going on here among the states' rights crowd. The true believers (iow the non-hypocrites), those who have been virulently anti-abortion from the get-go, are already pushing for a nationwide ban on abortion.

The loophole for the politicians who want to exploit the issue for their own political power, is that they're not prosecuting, in most cases anyway, the one who got the abortion. They're prosecuting those who facilitated the abortion by driving to another state, or purchasing plane tickets, or whatever. That's why health care professionals in Texas and now Indiana for example, are afraid to even mention the fact that legal abortions are available in other states, for fear of being sued or even prosecuted for facilitating an abortion.

Here in Indiana, the most reliable polling shows that a majority of citizens believe that abortion should be legal at least up to about 20 weeks. But unlike Kansas and Kentucky and some other states, you won't see a ballot measure here supporting that, because the state leg acted decades ago to make those kind of initiatives next to impossible. And the legislature is so thoroughly gerrymandered that it would take a truly seismic shift in the electorate to change the law. I can't wait until the prosecutions start here. Because they will. It may take a few years, but they will.

[kroxquo]

So last year's Dobbs decision returned the abortion question to the states, which they are handling in various ways.

I'm not here to take a position on whether abortion is moral or should be legal.

I get that different states have different views, and that some people may choose not to visit or live in a state because they disagree with that state's position. There is a sense in which this has been true for decades (folks might have chosen to live in one state rather than another because they couldn't get married in one place but could in another, for instance; or, you know weed is legal some places and not in some places).

My question is, once a state has chosen to make abortion illegal (or really, any action), how does that state then also justify prosecuting people for traveling to another state for that purpose? Doesn't that call into question the entire premise of states' rights?

How come no states are prosecuting people for driving to the next state to buy weed?

I get that abortion and weed are different, and that there are many activities that are legal in some places and not legal in others. What I don't get is why a state can tell you what you can and can't do in another state.

I don't think that a ban on interstate travel to get an abortion will stand up to a constitutional challenge, even with the conservative bent of SCOTUS. Federal regulation of interstate commerce is one of the oldest precedents (Gibbons v. Ogden 1824) the court has and there is no way that the court could let a state law interfere with that power without causing major economic chaos.

[Bob78164]

So last year's Dobbs decision returned the abortion question to the states, which they are handling in various ways.

I'm not here to take a position on whether abortion is moral or should be legal.

I get that different states have different views, and that some people may choose not to visit or live in a state because they disagree with that state's position. There is a sense in which this has been true for decades (folks might have chosen to live in one state rather than another because they couldn't get married in one place but could in another, for instance; or, you know weed is legal some places and not in some places).

My question is, once a state has chosen to make abortion illegal (or really, any action), how does that state then also justify prosecuting people for traveling to another state for that purpose? Doesn't that call into question the entire premise of states' rights?

How come no states are prosecuting people for driving to the next state to buy weed?

I get that abortion and weed are different, and that there are many activities that are legal in some places and not legal in others. What I don't get is why a state can tell you what you can and can't do in another state.

The argument I expect Alabama (and other like-minded states) to advance is that Alabama has jurisdiction over its own citizens and it can prosecute people for helping its citizens evade Alabama law by traveling for another state for that purpose.

I wish I could say I were surprised by this argument. But I'm not. And I can prove it.

Here is something I got published on July 4, 2018:

Much news coverage of Donald Trump’s upcoming Supreme Court appointment focuses on the effect of that pick on abortion rights, and deservedly so. Over their lifetimes, more than one-third of American women will face that choice, and for the last 45 years, they’ve largely been able to do so free from overt government interference. There is little doubt that Trump’s pick will oppose abortion rights, and it’s unlikely that a majority of senators will stand in the way of that nomination. So Roe v. Wade is on its way out the door, likely to be expressly overruled before the next presidential election. To that extent, the news media probably has it right.

But the media goes wrong when it talks about who will be affected when and if the Court overrules Roe v. Wade. The prevailing belief is that this will be an issue only in red states, where state legislatures hostile to abortion rights stand ready to, and in some cases already have, outlaw abortion. The political rhetoric from anti-abortion politicians has focused on making abortion rights an issue for the states. Blue states will choose to protect abortion rights, keeping safe and legal abortions available for those living in a pro-choice state or who can afford to travel to one. That, at least, is the consensus.

The consensus is wrong, or at least is wildly overconfident. With Roe v. Wade out of the way, there is nothing to stop a Republican House and a Republican Senate from passing, and a Republican President from signing, a nationwide abortion ban. The Supreme Court has already approved (in a case called Gonzales v. Carhart) a federal law, the Partial-Birth Abortion Ban Act, preventing one type of abortion on a nationwide basis. With Roe v. Wade overruled, there is little reason to expect the Court would interfere with a Congressional attempt to ban all abortions throughout the country.

Those familiar with constitutional law will undoubtedly observe that in Carhart, the Court did not consider issues of federalism — whether abortion regulations are wholly beyond the enumerated powers of Congress. That is the line of attack that nearly brought down the Affordable Care Act, so perhaps a conservative majority would strike down a federal law on that basis. But the Court’s federalism jurisdiction is notoriously political and results-oriented in nature, even more so than many of its decisions. The Court generally deprives Congress of the power to act only when Congress makes decisions that are contrary to the Justices’ politics. This will not be such an occasion.

And even short of that, there is much Congress could do that is comfortably within its clear authority (assuming Roe v. Wade has been overruled). Congress could use its authority over interstate commerce to pass a law preventing interstate travel for the purpose of securing an abortion not available in the woman’s home state — a latter-day Mann Act. It could prevent doctors from providing abortions to women living in anti-abortion states. Congress could preclude international travel by pregnant women for the purpose of securing an abortion.

Politically far-fetched? Inspired by nightmares of The Handmaid’s Tale? Perhaps so. But two years ago, so was the thought of President Donald Trump. And if the Court does overrule Roe v. Wade as expected, and if Republicans retain their Congressional majorities after the 2018 elections, the reality is that there will be nothing protecting abortion rights anywhere in the country except Mitch McConnell’s sense of self-restraint.

--Bob