Horizontal Federalism and Abortion after Dobbs

Flagging some interesting blog posts on the question.

Should the Supreme Court narrow or eliminate the federal constitutional right to abortion in Dobbs, this will not eliminate the legal and constitutional questions concerning the regulation of abortion, but the terrain will shift. Overruling Roe and Casey in the entirety would remove the constitutional obstacle to state regulation or prohibition of abortion within a state's borders. But questions about the extent to which states may regulate travel across state lines would remain.

California is indicating that it may seek to be a "sanctuary" jurisdiction for women in other states who seek an abortion, and we can imagine that a Texas or Mississippi might consider enacting laws barring their citizens from engaging in such conduct. Such developments could raise a range of "horizontal federalism" issues that implicate the Full Faith and Credit clause and the right to travel (which is protected by the Fourteenth Amendment's Privileges or Immunities clause).

Over at Prawfsblawg, Rick Hills have a few posts that explore these and related questions that are of potential interest to VC readers. Here are the posts:

• Will Federalism (and Conflicts of Law Doctrine) Deregulate Abortion?
• Will state officials actually enforce their new restrictions on abortion against women? Some Evidence from 2016
• Will (Should) Congress Use Its FF&C "Effects" Power to Regulate Post-Roe "Abortion Tourism"?

Rick also flags this 2006 NYT op-ed by William Baude, which explores similar issues.

Comments

[Illocust]

Okay, and? This is literally how all other laws are handled? Making it illegal to commit murder in the US won't effect the murder laws in France.

[Bored Lawyer]

His point is that new legal questions will arise. Barring traveling from a state that outlaws aboriton to a state that permits it, for the purpose of getting an abortion, is certainly a novel legal question that may have to be answered in the near future.

IMHO, such a law is unconstitutional. There is a federal right to interstate travel. And the whole point of state sovereignty is that one state can have different laws than the other. (There was a similar thing when some states outlawed gambling as immoral, while Nevada was operating casinos. I don't recall any states trying to outlaw travel from them to Nevada for the purpose of gambling.)
Not to mention that such a law would be very difficult to enforce. A woman can always say, I traveled from Alabama to California for a vacation, and then after I got there, decided to have an abortion.

[John F. Carr]

The law could treat that the same as "while on vacation in Nevada I decided to get a divorce". Your home state does not have to consider that a legal divorce. And the jury does not need to believe the woman's story.

Compare two sets of federal criminal laws. It is illegal to travel _interstate_ with intent to have sex with anybody under 16. If a 15 year old happens to fall into your lap while your are on vacation, that is a matter for the local authorities. But if you go to Thailand with innocent motives and the same thing happens, you have violated the law against _international_ sex tourism.

I would not be surprised if the law ended up saying any of (1) abortion is a matter of purely local law, (2) travel with intent to abort can be regulated by the home state, (3) any abortion can be regulated by the mother's home state.

[Bored Lawyer]

The difference, of course, is that divorce is a legal event, that a state has to recognize or not. Once abortion happens, there is nothing for the home state to "recognize."

I did not say it was impossible to prosecute such a case, only that it would be hard. The home state would have to prove beyond a reasonable doubt that that was the woman's intent.

And what if you have mixed motives? "Hey, I am going to LA for a week. Plan to see all the Hollywood stars' homes, and other famous sites. Oh yeah, I might get an abortion while I am there."

[Queen Amalthea]

"I'm going to go to LA for a week and pray on whether to get an abortion there or not. I'll do whatever God answers."

[Jmaie]

Inadvertently bumped the "flag" button on my phone, too bad there's no option to unflag...

[rsteinmetz]

How would the home state know there was an abortion?

[Da5id]

That is an interesting question, as I'd imagine a significant majority find out that they are pregnant using a home pregnancy test. In which case, the state would not know the woman was pregnant. Of course, the state could plant cameras outside abortion clinics in others states and use facial recognition and such. Not quite the same thing, but at one point word was that Massachusetts used to use some surveillance on stores near the border and noted Mass plates there. This was to try and collect sales/use tax on out of state purchases. Particularly on more expensive purchases, like sets of tires. I'd doubt states would try this for abortion, but who knows?

[David Nieporent]

I would guess the vast majority of such cases would be reported by disgruntled family members.

[Rossami]

Interesting approach. But in addition to Bored's concerns, how do you define "home state" for the purposes of this law? Can a woman move to California, get the abortion, then move back to Texas 3 days late?

There are standards of proof of residency for tax purposes but it's not obvious that those same standards would or even should be applied to this scenario.

[Bob from Ohio]

You include a definition of "home state" in the law you pass.

[y81]

All persons born or naturalized in the United States are citizens of the United States and of the state in which they reside. The concept of residence applies in many areas besides taxes.

[John F. Carr]

It's a question of fact, and overlaps with tax residency and voting. You can be a legal resident of only one state at a time. Leaving a state without plans to return should count as a change of residence. When you went to California for three days did you buy a house or rent an apartment, change your driver's license and voter registration, and enroll your non-aborted children in school?

Separate from residence, states will tax you for being physically in a state, like driving every day from Tax-Free New Hampshire to your job in Taxachusetts. But they can only tax your in-state activities if you are a non-resident, while your home state can tax you everywhere.

[Currentsitguy]

Just as a historic note, I believe at one time there was a similar law in place in Ireland that forbid a woman from traveling to the UK for the purposes of obtaining an abortion, so theoretically you could be prosecuted for driving from Dublin to Belfast if you left pregnant and came back not anymore.

[Iota]

There would have been no advantage in driving from Dublin to Belfast. Abortion was illegal across the whole island of Ireland until very recently. And it was decriminalised in the Republic of Ireland before Northern Ireland.

So for a brief period of time the reverse would have been true: it would have have made sense to drive from Belfast to Dublin to obtain an abortion.

[Iota]

"there was a similar law in place in Ireland that forbid a woman from traveling to the UK for the purposes of obtaining an abortion"

This is not quite right.

There was no statute on the books in the Republic of Ireland that prevented a woman from travelling abroad to obtain an abortion. And I don't believe that there was any criminal law, with extraterritorial effect, that would have allowed for her to be prosecuted upon her return.

Until abortion was legalised in the Republic in 2018, thousands of pregnant women travelled to Britain every year, for that purpose.

In "Attorney General v X" (1992) the Irish government sought to obtain an injunction to prevent a pregnant teenage girl from travelling to England. The Attorney General could not cite any legislation entitling him to an injunction. So he sought to rely upon the broadly worded prohibition of abortion that was then contained in the constitution.

However, the point about the right to travel was never settled, because the Supreme Court refused the injunction on other grounds (it ruled that she was entitled to an abortion, because the pregnancy put her life at risk).

It is possible that any such injunction, even if it was authorised by the constitution, would have been contrary to EU law, which guarantees freedom of movement, and trumps the constitution in the event of conflict.

Following the "X" case the matter was put beyond doubt by a constitutional amendment, which expressly stated that the constitutional prohibition of abortion did not affect freedom to travel abroad.

[MatthewSlyfield]

Yeah, but what if California passed a law making it illegal for California residents to travel to Wisconsin to commit murder?

[Krayt]

Ireland passed laws against traveling to other countries to get abortions.

[Iota]

Not so. See my comments above.

[John F. Carr]

I think Rick Hills covers almost anything I want to say. I want to add that laws that are on the books, often violated, and rarely enforced are tools for abuse. We see that especially with traffic laws. Get on the cops' naughty list and you had better not let your tires touch the white edge line or go 56 in a 55 when everybody else is going 70. In my town you can't call the cops saying there's a black guy on my street, but you can call in a "suspicious" car or especially a "speeder" and they know what to do.

[Rev. Arthur L. Kirkland]

" In my town you can't call the cops saying there's a black guy on my street, but you can call in a "suspicious" car or especially a "speeder" and they know what to do. "

Why do you still live in such a disgusting town? Are you destitute? Are you a Republican?

[Kleppe]

Probably because he doesn't want the Chechnya-like levels of violence and bloodshed that Democrat-run hellholes always result in.

[Rev. Arthur L. Kirkland]

Lethally reckless, belligerently ignorant bigotry or violent, bloody hellholes.

Where is the hope for America?

[jb]

https://en.wikipedia.org/wiki/List_of_U.S._states_and_territories_by_violent_crime_rate

Looks like 7 of the 10 states/territories with the highest crime rates are pretty consistently Republican, whereas 8 of the 10 with the lowest crime rates are Democratic.

Such a pity when the way the world actually works comes into conflict with your ideological make-believe.

[Rev. Arthur L. Kirkland]

If you really want to see conservatives get riled, mention the list of states and territories by educational attainment.

No wonder they are willing to turn to superstition and illusory good old days for respite from the modern, reality-based world and all of this damned progress.

[great Unknown]

That list is somewhat outdated: check the numbers for Illinois, e.g., which is already up to 800 homicides this year.

And the sampling is too coarse: I would guess that in "Republican" states with high crime, it is concentrated in large "Democrat" cities.

[Toranth]

10 out of 10 of the 2020 cities with the most murders are run by Democrats. 8 of 10 cities with the top property crimes from 2019 were run by Democrats - using 2020 wouldn't be fair, considering the billions in damaged done in cities by race rioters.

According to the FBI's urban vs rural, cities greater than 100,000 population account for three-quarters of violent crime and two-thirds of property crimes.

So, yeah, even in "Republican" states (as if everyone voted the same), Democrat run cities are the source of most of the state's crime.

[WPHDM]

CORRELATION AND PATTERN SPOTTING FOR SIMPLETONS

What it the causal relationship here, if any?

And how would you establish it in a scientifically rigorous fashion, with controls for other relevant variables ?

[Sarcastr0]

One side talks murders, the other violent crime.

It's almost as though you're curating a story based on the statistic you choose to follow!

This partisan blame game on crime is just lying with statistics.

[Absaroka]

Wiki has a <a href="https://en.wikipedia.org/wiki/List_of_United_States_cities_by_crime_rate"<list of cities by violent crime rate. You can click on the column headings to sort by the total violent crime rate or by any of the particular categories, like murder. When you click among the various categories to see the top ten cities for the various kinds of violent crime, do you see anything that refutes Toranth's thesis?

(FWIW, I don't see it as a D/R thing per se. I think that DA's/judges who set very low bail for violent crimes, etc, likely contribute to the problem. There would be some people alive in Waukesha if one particular violent career criminal hadn't been released shortly after his last vehicular assault. I see similar fact patterns all the time..."The suspect in last night's double homicide is 27 year old Fred Smith, with 19 prior felony convictions and out on bail from a previous shooting a month ago...". And I suspect our DA is an R.

It should be mathematically impossible to accumulate 19 felony convictions between ages 18 and 27.)

[Absaroka]

Let's try that link again.

[Sarcastr0]

My thesis is not that Toranth is wrong or that jb is wrong - both are right, but both are choosing their metric to support their conclusion.

I don't think you can point to a permissive criminal justice system. Looking both at history and around the world, I am unconvinced harsher sentences lowers crime, unless it's a lagging policy of like 20 years.

In reality it's going to be a crapload of factors all working together. The only real conclusion I can draw is anyone blaming it on what party a city elects had partisan-colored glasses.

I would note which party has a worse problem with crime rate as a partisan thing:
https://jabberwocking.com/fox-news-baits-the-crime-bear/

[Toranth]

I chose to cover murder, violent crime, and property crime (all three were mentioned, if you actually read my post, despite your claims) because it was a more detailed rebuttal to jb's claim.

Kleppe was being hyperbolic (I hope - if that was meant literally, well, the post was just idiotic) and jb responding with a supposedly factual claim that was actually deceptive and false. I posted to show that jb's claim was false, rather than actually claiming that Democrat politicians were deliberately causing crime in the areas they control.

And why did you link a nobody's blog post that shows nothing?

[Absaroka]

"I am unconvinced harsher sentences lowers crime"

Well, if you give a stiff sentence to someone after their Nth violent crime, they will have to commit their future crimes in prison.

I'm fine with the idea anyone can make a mistake - I've lost track of how many bios I have read of some 18 year old caught in a stolen car and told to choose between jail or the marines, and ends up winning the Medal of Honor and leading an exemplary life going forward. But when Fred is accumulating multiple felonies per year for several years ... he's not learning from his mistakes.

[Queen Amalthea]

"we can imagine that a Texas or Mississippi might consider enacting laws barring their citizens from engaging in such conduct. "

Is that currently a thing? Are there examples of extant laws where someone from state A where X is illegal can be punished for traveling to state B to engage in (completely there) X?

[MatthewSlyfield]

IIRC: Several states had laws pre-Roe banning traveling to another state to have an abortion.
'
For something more current:
https://www.justice.gov/criminal-ceos/extraterritorial-sexual-exploitation-children

[Queen Amalthea]

Is there a state example (like the IIRC one) someone could link to?

[MatthewSlyfield]

I wouldn't know where to find a reference on pre-Roe state abortion laws and I can't think of any other examples at the state level.

[Queen Amalthea]

Thanks anyways.

[John F. Carr]

While I haven't studied every state's law, at least some of them claim jurisdiction if any part of the crime took place there. I don't know how conflicts of laws work. Usually the act would be a crime in both states.

I'm imagining myself standing at the edge of Blueton as somebody just over the border in Redville threatens me. Under Blueton law I must retreat before using deadly force, but Redville says otherwise. I shoot. I score. Murder under Blueton law, self-defense under Redville law. Where do they bury the survivors?

[Toranth]

Where do they bury the survivors?

Under the legal bills, of course.

[Currentsitguy]

I suppose the closest analog I can think of would be back in the days when different states had different drinking ages.

Back in the day when I was 18 I remember driving from PA to OH where the age was 18, not 21 to have a beer with friends. On the way back I was stopped for a minor traffic infraction (I didn't stop long enough at a stop sign) and ended up being cited for underage, even though I had nothing in my posession and I wasn't DUI. I think it ran me $52 and a stern lecture from the Magistrate.

[John F. Carr]

I have heard that New Hampshire police invented a doctrine of "internal possession" making it illegal for an underage person to be in the state after consuming alcohol. I do not know if that stood up on appeal.

[JohannesDinkle]

Don't get lost in the weeds. A trip from Biloxi to Las Vegas costs about $200 round-trip. Suppose a Mississippi woman goes to Planned Parenthood and gets some advice on how to go to Vegas for an abortion. She goes for a three day visit - hardly a smoking gun because the trips are cheap because so many are doing the same for other sins - and returns, no longer pregnant.
How are the police in Mississippi to know what happened? They can't force Planned Parenthood to divulge the woman's reason for her visit, nor can they force the Las Vegas abortion provider to give out a list of women who visited their facility either.What happens in Vegas stays in Vegas.

[Queen Amalthea]

That a repressive law can be fairly easily dodged shouldn't be a reason to ignore it.

[JohannesDinkle]

So this joins about ten thousand other stupid unenforceable laws. In line after De Blasio's most recent.

[Noscitur a sociis]

They can't force Planned Parenthood to divulge the woman's reason for her visit, nor can they force the Las Vegas abortion provider to give out a list of women who visited their facility either.

Why not?

[John F. Carr]

Congress could require reporting. Absent a federal law, it's hard.

Say a Texas prosecutor gets word that a woman went to California to get an abortion. He makes a deal with her. Testify against the doctors and people who took her to California and she won't go to prison. With her testimony he gets arrest warrants for a bunch of people who have never been to Texas. Having a felony warrant out for you has consequences. You can't have a gun, for example, the same as if you were convicted of a felony. In some states you can't renew your driver's license. Not sure about professional licenses. California is legally obliged to detain you and extradite on request if police ever run a warrant check. In the normal course of events you would have to be brought to Texas before you could present a defense. If California refuses to extradite on the grounds that extraterritorial application of the Texas law is stupid then the case is likely to go to the Supreme Court.

[wreckinball]

The fact that you give any credence to something called sanctuary makes me skeptical. What's your position on gun rights sanctuary, vaccine mandate sanctuary etc.? I mean I'm kinda of for it but I think many faux libertarians, i.e. libertarians ONLY for open borders, legal drugs and sex workers rights, would be selective on their application of the sanctuary term.

I would be for sanctuary from any federal over reach, that is duties not described in the constitution. But that would be any and all.

[Queen Amalthea]

What are you going on about? I've said nothing about 'sanctuary' provisions here.

[Bob from Ohio]

A ban on inducements to abortion tourism is a proper topic of federal legislation.

[Rev. Arthur L. Kirkland]

Clingers may consider some of these legal points differently when their betters begin to criminalize bigoted conduct in America.

To the culture war victors will go . . . just about everything, over time.

See you down the road apiece, clingers.

[Alpheus W Drinkwater]

What a surprise, you now support government censorship because you disagree with the speech being suppressed.

[Bob from Ohio]

financial inducements, like california is saying it will do

[Sarcastr0]

Money is speech tho.

[F.D. Wolf]

we can imagine that a Texas or Mississippi might consider enacting laws barring their citizens from engaging in such conduct.

And when you imagine that, are the legislators in bare feet, wearing overalls and chewing tobacco? Climb down from the ivory tower and get a closer look at reality some time.

Nobody cares to pass such laws. For one, criminal abortion laws target the abortionist, not the mother. Are the states really going to go after some California abortionist? Send some Texas prosecutor to California where some progressive local judge is going to ignore the Extradition Clause to the wild cheers of the media and Democrat politicians? What a headache. And how would this law operate in the real world? Not every millennial is going to boast on Instagram that she's headed to California to get an abortion (though many will, I suspect.) I just can't see ever proving a case, especially when the jurisdiction where the relevant activity occurred will go out of its way to be uncooperative. I think you'd pretty much have to send undercover operatives to poke around. I doubt the state would want to spend its resources to do it.

As for the constitutionality, I don't think such a law would be any more permissible than a law forbidding state citizens to leave the state to gamble in a casino or drink alcohol in a state where these things were legal.

[Martinned]

For one, criminal abortion laws target the abortionist, not the mother.

Why is that anyway?

[Illocust]

The goal is to stop women from murdering their children. It's the same reason we have safe harbor laws for infants, when in any other situation abandonment would be prosecuted.

[Queen Amalthea]

I would think prohibiting them from that murder directly would be a way to do that.

[Illocust]

It didn't work. Women continued to murder their newborns despite it being illegal. Thus the safe harbor laws.

[Queen Amalthea]

Yikes, so much for the idea that women yearn to be mothers...

[Illocust]

You might want to stop huffing the mother's day propaganda. In average dads abandon their kids, moms kill them.

[F.D. Wolf]

Because the woman is the second victim of an abortion.

[Queen Amalthea]

Because women's agency doesn't count, duh.

[Alpheus W Drinkwater]

Yeah, this is where the "abortion is murder" rubber meets the road. The answers to this question suddenly become pretty weak.

[Illocust]

Not really, safe harbor laws are a near exact analogy for this situation. Abortion is not the only situation where the law prioritizes saving the lives of the innocent over punishing people.

[Queen Amalthea]

But charging women for getting abortions would surely deter many of them for doing so. It's how we deal with most crimes (including the murder of born children).

[Illocust]

Read above real life scenario again. Sometimes reality does not conform to our preconceived notions of how people will behave. There is already legal precedent for prioritizing saving lives over punishment. No matter how much you ignore it, that precedent won't go away.

[Queen Amalthea]

"And when you imagine that, are the legislators in bare feet, wearing overalls and chewing tobacco?"

My so easily triggered!

One doesn't have to think ill of folks in those states to imagine that they might want to address (as they see it) people in their state engaging in murder tourism.

[Rev. Arthur L. Kirkland]

"And when you imagine that, are the legislators in bare feet, wearing overalls and chewing tobacco? "

No need to imagine legislators from the clingerverse -- just watch the average (or decidedly below-average) backwater Republican campaign ad.

This site's link limitation prevents links to additional examples of conservative campaign ads that resemble Deliverance trailers, but they are easy to find. Aim your Google-compatible device at "Kristi Noem shoots pheasant," for example.

[Noscitur a sociis]

Isn't Fiore from Las Vegas?

[Martinned]

For people who might be interested in precedent from outside the US, this has been the subject of endless arguing in Ireland until that country legalised abortion in 2018. Because of the Common Travel Area Irish citizens can ordinarily travel back and forth between Ireland and the UK as they please (even after Brexit). As a result, it used to be quite common for Irish women to get abortions in England.

https://en.wikipedia.org/wiki/Abortion_in_the_Republic_of_Ireland#History_of_abortion_in_Ireland

[Martinned]

The most obviously interesting precedent is the X case (Attorney General v. X, 1992), where the AG sought an injunction to prevent a pregnant girl from travelling to England. https://en.wikipedia.org/wiki/Attorney_General_v._X

This was ultimately resolved through a constitutional amendment.

[Moderation4ever]

Abortion restrictions have largely been targeted at poor women. The fact is that most middle class and certainly most wealthy women will have safe abortion access. Any prohibition on travel for abortion would be a direct attack on the rights of middle class and wealthy women. I don't see that happening.

[Brett Bellmore]

Wow, that's totally inverted: Abortion itself has largely been targeted at poor women, particularly minority poor women; Sanger was a eugenicist, after all.

[Queen Amalthea]

"Targeted?"
I didn't know PP was going into poor neighborhoods, kidnapping poor women and forcing them to get abortions. I'm against that.

[Moderation4ever]

Woman of wealth have always had access to abortion. Roe vs Wade leveled the field. No one is targeted here, that is a simple fabrication.

If the anti-abortion crowd believed that it would be simple enough to better support poor woman. As it is the are demonized for getting pregnant and then told they cannot end the pregnancy. And legislators can do that to poor woman, but not to middle class and wealthy women.

[Bob from Ohio]

"No one is targeted here"

PP clinics are located in inner cities with high minority populations. Not an accident.

[Queen Amalthea]

So museums are targeted to poor people too? Huh.

[David Nieporent]

Well, that's not true, so I guess it's not an accident. (I mean, it's obviously true that there are clinics in urban areas — places with both high minority and non-minority populations. The implication that abortion clinics are primarily located in "inner cities" is not true.)

Also, middle class women are more likely to have doctors who can perform them, as opposed to having to go to a clinic.

[Absaroka]

A law of the form "Texas residents can't go to California for an abortion" seems a lot like the current "California residents can't purchase a handgun in Texas (even if they never bring it to CA)".

My preference is that neither of those be valid, but for people who believe only one of those - either one - is valid, how do you distinguish them?

[Queen Amalthea]

Do you have a cite for that law? That's what I was looking for supra.

[Absaroka]

ATF FAQ (which cites the USC/CFR).

To translate into english, and speaking only about federal, not state laws, a non-FFL person can:
1)buy a long gun or pistol from a non-FFL resident of their state
2)buy a long gun from an FFL in other states
3)NOT buy any gun from a non-FFL resident of another state
4)NOT buy a handgun from an FFL in another state

To be accurate, I should be saying 'transfer' rather than buy. For one thing it doesn't matter if it is a purchase or gift, and you can contact a non-FFL in another state, give them $100 to buy the gun, but the gun has to go to an FFL in your state to transfer it to you. It's the transfer that is regulated, not the money changing hands.

And there is an exception for inheritance; if Aunt Agatha's will leaves you a gun, you can just drive it home without involving an FFL (again, this is federal law, some states - WA for one - require you to take it to an FFL to transfer it back to yourself).

More than you wanted to know 🙂

[Noscitur a sociis]

Federal law (18 U.S.C. § 922) prohibits the sale of handguns to people who don't reside in the state where the sale takes place.

Not particularly illuminating in this issue, in my opinion, since it's a federal and not a state law (although I suppose it's approximately as dumb as the hypothetical abortion travel ban).

[Bob from Ohio]

GOP trifecta in the future means a federal law.

[Absaroka]

I think there are states that restrict out of state purchases. Delaware, for says:

"It shall be lawful for a person residing in this State, including a corporation or other business entity maintaining a place of business in this State, to purchase or otherwise obtain a rifle or shotgun in a state contiguous to this State ..."

I didn't look further; I'm assuming that the fact they are explicitly saying it's legal to purchase in contiguous states means that there is a general prohibition on out of state purchase elsewhere.

Just from a quick google there are other states with similar provisions - Wisconsin, Oregon, Texas, ...

I should note that these laws might be vestigial; there was a period when the federal law restricted sales to contiguous states, and perhaps these were designed to conform to that. Someone more competent than I would have to suss that out.

Also FWIW, there was a case where a D.C. couple tried to buy a gun in TX when, IIRC, DC didn't have any FFLs. The district court struck down the federal interstate prohibition, but it was overturned on appeal. Mance v. Sessions.

[bratschewurst]

the right to travel (which is protected by the Fourteenth Amendment's Privileges or Immunities clause).

How can the right to have an abortion…er, travel… be protected by the Constitution when it’s nowhere mentioned in the Constitution?

[Sigivald]

10th Amendment, I imagine?

(That and, well, the Drafters were quite explicit even before that that they did not mention every right the Constitution protected.

Americans and Britons together both had the ancient right to travel as they saw fit within their respective countries, since the end of serfdom in Britain (and non-serf Brits could travel as they wished anywhere in the King's domain, as I understand it).

The Common Law rights are all there, just not spelled out.)

[J Norton 2]

I don't think Justice Thomas would agree with you. He believes that there are no constitutional rights not included in the Constitution.

[Stepped Reckoner]

It isn't necessary to wait and see how Dobbs is decided to consider some real-life questions on this interesting "horizontal federalism" topic. Take "balance billing." If someone gets treated in a hospital that is a member of an insurance group, and the hospital bills an amount to the carrier and the carrier says it will only pay a maximum amount that it sets for such procedures, the hospital will often (even if it's against the rules they agreed to when joining the insurance group) bill the balance to the patient and hound him or her for payment. California has passed a bill banning "balance billing." (The Biden Administration is considering a similar rule nationwide, but it's still theoretical.) I'm not certain whether California's anti-balance billing law says it applies only to in-state hospitals, but let's assume it's silent on the subject or says it protects California citizens from any and all balance billing by anybody in the world. If a California citizen is injured and treated in Delaware, and the Delaware hospital tries balance billing the California citizen in a way that the California law forbids, does horizontal federalism allow the California citizen to avoid liability to the balance-billing Delaware hospital based on the California law?

This question could of course apply to any billed out-of-home-state medical procedure, including an abortion.

[ReaderY]

If the hospital’s lawyer are not completely comatose, even merely semi-comatose, there will be a provision in the admittance papers the patient or representative signs saying that the agreement will be exclusively governed by and costrued according to Delaware law, and that will end the matter.

Happens all the time. That’s why banks for example tend to congregate in states that permit agreements extremely favorable to the bank, like South Dalota, and yes, Delaware.

[ReaderY]

I think the situation would be analogous to prostitution, or, for that manmer, adultery. Congress has not been perceived as having the authority to directly regulate these things. But it can regulate them in a variety of contexts. Federal territory, WOTUS, Indian territory, the military, etc. The Supreme Court upheld a federal prosecution for crossing state lines for purposes of committing adultery a century ago. There’s no legitimate reason why they shouldn’t uphold a federal ban on crossing state lines for purposes of obtaining an abortion, following neutral, narrow Commerce Clause authority established well before Wickard expanded Commerce Clause jurisdiction.

Likewise, it’s well established that states cannot prohibit conduct taking place entirely in another state that is legal in that state, because that would interfere with the constitutional right to travel. States’ power over people ends when they cross the borders. This might allow some leeway in certain cases. After all, states can prohibit firing a gun within the state that kills someone across the border.

But Las Vegas was built on the legal principle that states, unlike the federal government, cannot prohibit conduct that takes entirely outside their borders. Legally, what takes place in Vegas stays in Vegas. If the federal government enacts a prohibition. and Vegas or another jurisdiction wants to create a haven for easy abortion for visitors as they did decades ago for alcohol, gambling and and prostitution, and more recently for marijuana, I think they would be on as firm a legal ground for abortion as they were for these other things.

Moreover, the Supreme Court narrowed the Mann Act to require proof of travel for the specific purpose of adultery etc., so people who take a general vacation and incidentally fool around while there were safe from federal prosecution. While today federal interstate commerce jurisdiction is broader, even if the Supreme Court sticks to that we mighr find a market for abortion hotels and vacation packages that incidentally involved abortion, similar to the window dressing that was once placed over vacation packages ostensibly not for the purpose of gambling and prostitution when people actually worried about the possibility of federal prosecution for crossing state lines for these things. (The Mann act was amended late in the 20th century to exclude conduct legal in the destination state, and was not enforced in Nevada for some time before that.)

[ReaderY]

Sorry, if a state enacts a prihibition, they would be on firm legal ground.

[Alpheus W Drinkwater]

It would? I'm confused, I understood you to say that "...states cannot prohibit conduct taking place entirely in another state that is legal in that state." Wouldn't that cover this type of law?

[ReaderY]

Vegas would be on firm legal ground. If it ofered vacation packages.

[rsteinmetz]

Congress is unlikely to pass a law prohibiting travel to get and abortion. Even if the balance of power shifts it's unlikely there would be a consensus on that issue, especially since so many states are likely to have legal abortions.

[Bob from Ohio]

"Congress is unlikely to pass a law prohibiting travel to get and abortion."

Filibuster might be a problem but rest assured, next GOP trifecta will in fact pass it. Stunts like California's make that more likely.

[Alpheus W Drinkwater]

They won't pass it if they decide, rightly or wrongly, that it will hurt them at the ballot box.

[ReaderY]

The seminal case upholding the Mann Act was Caminetti v. United States, 242 U.S. 470 (1917). Two men had transported their mistresses from Los Angeles to Las Vegas, and their wives turned them in.

“The power of Congress under the commerce Clause, including as it does authority to regulate the interstate transportation of passengers and to keep the channels of this interstate commerce free from immoral and injurious uses, enables it to prohibit the interstate transportation of women and girls for the immoral purposes of which the defendants were convicted in these cases.”

[David Nieporent]

Of course the most famous case involving the Mann Act was the prosecution of boxer Jack Johnson, and that was widely understood to be because the woman was white and he was not.

[Rev. Arthur L. Kirkland]

Another rousing meeting of Libertarians For Statist Womb Management (joint meeting with Libertarians For Big-Government Micromanagement Of Ladyparts Clinics) . . . convened, naturally, at a White, male, "often libertarian," "libertarianish," movement conservative blog.

When does the meeting of Libertarians For Government Control Of Facebook And Twitter begin?

Thank you.

[TwelveInchPianist]

"Such developments could raise a range of "horizontal federalism" issues that implicate the Full Faith and Credit clause and the right to travel (which is protected by the Fourteenth Amendment's Privileges or Immunities clause)."

IIUC the right to interstate travel is protected by the Privileges and Immunities clause in Article IV. Presumably that would prevent a state from preventing its citizens from getting abortions in other states as well -- I see no reason to think it doesn't work both ways.

[Bob from Ohio]

Ban 3rd party inducements and ban a doctor from performing the abortion.

The citizen can travel but there won't be anyone who can legally perform it.

[David Nieporent]

Huh? Mississippi might be able to criminalize a Mississippi resident going to California for the purposes of obtaining an abortion, but it sure as heck can't ban a California doctor from performing an abortion on a Mississippi resident.

[John F. Carr]

If the law settles down as basing legality of abortion on the woman's state of residence, I think Mississippi has a shot. The hypothetical law says a woman who is a resident of Mississippi may not have an abortion or travel with the purpose of getting an abortion. Any person who assists in commission of a crime is guilty of a crime.
The intent requirement to be an accessory to a crime is usually higher, though. If the doctor honestly believes the woman is a California resident and is not deliberately avoiding learning the truth, that should be a defense. I think that the presumption that every man knows the law is outdated, but it's not hard to imagine that the courts would require medical businesses to know the abortion laws of other states the same way online retailers need to know the sales tax laws of other states.

[David Nieporent]

If the law settles down as basing legality of abortion on the woman's state of residence, I think Mississippi has a shot.

It doesn't. Mississippi law does not have extraterritorial force over non-citizens. See, e.g., Bigelow v. Virginia, 421 US 809 (1975).

[Bob from Ohio]

I'm talking about a federal statute.

[QuantumBoxCat]

This post is like talking about "back-alley" abortions in 2021; it's outdated.

A pregnant woman with an internet connection can head to a site like plancpills.org and obtain information about Mifepristone and Misoprostol, including how to obtain the pills (perhaps with a telemedicine visit following by the pills being mailed to them). If these options are prohibited in the state, then she could consult the "Creative Ways To Access Pills" section of the website.

If abortion is prohibited in the state, and a woman is able to self-abort via pills purchased on the internet, then the law will need punish the woman directly (as opposed to just the physician). The legal issues that arise within this criminal law setting (not to mention the headlines) will, if nothing else, be interesting to observe.

[Bob from Ohio]

This is why we need a federal statute. Ban or limit the interstate shipment of such bills.

You can't ship beer if the receiving state does not permit it, you can fashion a law for pills.

[Sarcastr0]

Your beer example took a Constitutional Amendment.

[Absaroka]

Drugs like sudafed, on the other hand...

[Jimmy the Dane]

Anyone feel that reality is becoming more like the Stephen King book "The Stand" day by day? The guy who runs CA looks sort of like the bad guy in the original TV movie and might now be a den of inequity where murderin' babies is just fine. Anyway....

[Sarcastr0]

Read less liberal-hating apocalyptic media and you won't have that issue.

[Jimmy the Dane]

Yeah guess I need to watch more Don Lemon literally singing the praises of Biden when gas prices drop a few pennies....

[SgtDad]

The State of Washington legalized abortion in 1970 (Referendum 20). One provision of the statute is a residency requirement; 90 days, if memory serves. So it violates WA law for a "non-resident" to obtain an abortion in WA. I seriously doubt WA courts would uphold this provision, but the constitutional implications are interesting.

[Lee Moore]

Having skimmed Rick Hills' jottings, I'm not sure he was being sufficiently imaginative about the sorts of things pro-life States might do. This may of course be because he knows some law, and I don't. But here goes :

1. Texas could write its tort laws to make it possible for a Texan woman who goes to California for an abortion to sue the Californian clinic, in Texas, for bamboozling her and confusing her into having an abortion, because now she is ten years older and she wishes she hadn't had an abortion. Now we assume that the Californian clinic will have got her to sign any number of consent forms and waivers, under California law. But unikely that they will have done things sufficient to protect them from a Texas lawsuit. So, so long as the woman can get her case into court in Texas, is not the Californian clinic at risk ?

Particularly as the clinic cannot guarantee that the woman won't change her mind later - or pretend to do so when she espies a $500,000 payout.

How does the interstate thing work for medical malpractice ? Live in Georgia, have an op in North Carolina - can the NC doc / hospital reliably ensure that any medical malpractice case is heard in NC ?

2. Texas might try introducing a "presumption" in child custody cases that a woman who has had an abortion out of State is a risk to her children (ie she didn't care about that clumpa cells) or a risk of moving out of State to thwart joint custody. ie some such that puts her at a disadvantage.

Although this targets the woman herself, it doesn't require any criminal case - it's just an element in the weighing of future child custody cases.

Given the ingenuity of the SB8 drafters, I imagine pro-life lawyers might be able to come up with something.

[Eric VonSalzen]

Just trying to bring some reality into a (very interesting) hypothetical discussion.
I grew up in Connecticut pre-Griswold. As a teen-ager, I learned that, although birth control devices ("rubbers") couldn't be sold legally, if you asked the drug store clerk politely (and perhaps hadn't shaved for several days), you could buy them.
My father was a doctor, a psychiatrist. Pre Roe, Conn. banned abortion except to protect the "health" of the mother. So here was the deal. If you were the parents of a pregnant girl and were wealthy enough, you hired three doctors to testify that carrying the child to term would threaten your daughter's "health". And if there was no real medical problem, and you wanted to claim that "mental" issues required the abortion, then there had to be a psychiatrist on the 3-MD panel.
My father refused to play that game. He recommended that pregnant girls go to a home for unwed mothers (there were lots of them pre-Roe), have the child, give him/her up for adoption, and go back to life sadder but wiser.
In those days, there were a lot of childless married couples who were happy to adopt the children of unmarried mothers. Now, we kill the children in the womb, and adoptive parents have to go to China or wherever to find a child . I suppose that's progress.