Congressional Statute Protecting the Right to Travel?

I doubt that Congress would pass a law categorically protecting abortion rights throughout the country—especially given the possibility of a Senate filibuster (and my sense is that there aren't enough votes to eliminate the filibuster for such laws). And there's a good chance that the Court would conclude that such a law exceeds Congress's enumerated powers.

But Congress does have the power "to regulate commerce … among the several states"; "commerce" has been read to include travel, and the power to regulate means the power to define the regulations for such commerce—which includes the power to free commerce of state regulations. So I think Congress would unquestionably have the power to enact this statute:

Whereas all Americans should have the freedom to travel among the several states within the United States, without undue interference from state or local governments,

and whereas this includes Americans' freedom to engage in conduct that is lawful in the place to which they travel, whether the conduct relates to food, beverages, other substances, weapons, games of chance or skill, medical procedures, or anything else:

(a) No person in the United States shall be criminally punished for traveling from one State to another State for the purposes of engaging in conduct that is not criminal in that other State.

(b) No person in the United States shall be criminally punished by one State for conduct that is not criminal in the State in which it was engaged.

(c) No person in the United States shall be criminally punished for aiding, encouraging, or making an agreement with another person related to conduct protected by (a) or (b).

(d) Nothing in this section shall authorize a person to bring from one State to another State any goods the possession of which is criminal in that other State.

(e) Nothing in this section shall authorize conduct that is in violation of federal law.

(f) For purposes of this statute, "State" shall include any federal District or Territory.

Any prospect of getting enough Republican votes to defeat a filibuster on this, perhaps because even some Senators who oppose abortion think that states shouldn't limit their residents' ability to travel, for whatever reasons those residents may have? Or is this sure to be defeated by Senators who would oppose any interference with states' rights to ban abortions for their residents?

Note that I just cobbled this together briefly; naturally, please feel free to point to any defects in the wording, but at this point I'm curious whether the overall thrust of this is potentially feasible.

Comments

[Cal Cetín]

First we have to dispose of the idea that "persons" are living human beings.

As acknowledged in Roe itself:

"The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment."

https://www.law.cornell.edu/supremecourt/text/410/113&amp

[Abdul Abulbul Amir]

IMHO, abortion is an issue best left to the states. Get it the hell out of national politics. The last thing in the world this country needs is changes in national abortion law every time party control changes. Ugh.

[Martinned]

The last thing in the world this country needs is changes in national abortion law every time party control changes.

Well, yes. That's kind of the point of having a constitution that safeguards people's rights...

[Brett Bellmore]

And of putting rights you want protected in it, instead of just suborning a few judges.

[shawn_dude]

If only the framer had considered the need to enumerate every single right and just placed it directly into the Constitution from the start, amiright? Since they didn't, they must have intended for non-enumerated items to not be rights and thus, to make them rights, they must first be added to the official list.

You'd think they'd have had lots of discussion about enumeration...

[Bubba Jones]

Something something expressly reserved to the States

[Brett Bellmore]

I wouldn't go so far as to say that there's no such thing as unemumerated civil rights. Rather, to establish that something is an unenumerated civil right, you need to produce evidence that it was regarded as a right at the time the 9th amendment was ratified.

The 9th amendment established that existing rights were not extinguished on account of failure to enumerate them. It didn't hand the courts a blank check to create new ones.

Unfortunately, the courts HAVE been extinguishing the unenumerated rights that were respected at the time of the founding. Most of them were, after all, economic rights.

[RoadLessTraveled]

"you need to produce evidence that it was regarded as a right at the time the 9th amendment was ratified." So you would be ok with applying that to computers, cars, cell phones, etc. Since they were not contemplated at the time of ratification of the Bill of Rights, they can be searched and seized without warrant or PC. Obviously, they were smart enough to take into account evolving and advancements.

[Toranth]

Expanding freedom of speech or freedom of the press to computers and cell phones doesn't take much of a stretch.
Similarly, they easily qualify as "effects" with no stretch, and "papers" with little.

On the other hand, a right to abortion cannot directly fall under any enumerated right, which is why there penumbras of emanations of suggestions and whatnot.

[RoadLessTraveled]

Freedom of the press has literally nothing at all to do with search and seizure. Cars do not in any capacity meet the definition of personal effects. None of what I mentioned could ever possibly be considered "papers." Numerous rights are not enumerated, including travel, re-entry upon foreign travel, right to marry, interracial marriage, right to refuse medical treatment, right to vote, right to choose your own profession, to education, the Americans with Disabilities Act, keep personal matters private (including HIPAA), presumption of innocence, judicial review, right to jury of your peers, right to fair trial, retain citizenship, etc. ad nauseam.

Your "argument" is disingenuous and extremely short-sighted at best

[Toranth]

Since we're necroresponding -
I mentioned 1st and 4th amendments as two different concepts. It's a shame you didn't understand that very basic fact, and got so confused about it that you spent your entire post arguing about something I did not say or even suggest.

For example, I never said that there were no unenumerated rights. You have made that up out of whole cloth.
Furthermore, yes, a car is "effects" both in modern law and in founding era use (for carts/wagons, also ships). "Effects" is basically a catch-all for any and all mobile property belonging to someone.
Try reading some scholarly research on that topic: The Lost “Effects” of the Fourth Amendment: Giving Personal Property Due Protection

Finally, I will say again what you have failed to rebut: The right to an abortion is not enumerated, nor is it a direct consequence of any enumerated right. That's entire reason even its supporters refer to emanations and penumbras.

In short, your post fails to address my argument at all, misunderstands the basic language, is incorrect about historical and modern usage of the term "effects", and failed to present any counter argument to the original topic. It fails to even rise to the level of disingenuous. Please re-read the thread and try again at some time when you've developed a clear argument to present.

[Mark Leen]

Is the Mann act applicable to abortion tourism?

[Chris Baker]

Mann act is really just about registration and having a permit though.

[MollyGodiva]

Why make it all about "criminal". The states will just use the Texas bounty hunter model to get around it.

[Eugene Volokh]

I'm still thinking about the civil side -- it turns out that civil liability sometimes does get imposed for out-of-state conduct (e.g., if you live in Nebraska and someone defames you from New York, they may indeed be liable under Nebraska law), and I'm trying to figure out how to deal with all that.

[Jett's Pop]

So what? Why couldn't Congress address that liability under its authority to regulate interstate commerce? "No one can be sued in a state for defaming someone there from a place outside the state." I'm sure Congress wouldn't pass such a law, but is it without power to do so? And, if so, why couldn't it preclude liability of any kind for travelling in interstate commerce for an objective that is legal in the destination? If it has the power to preclude criminal liability, it would have the power to do the same for civil liability.

[Rev. O.T. Medal]

On the civil side, I do not see a problem with a law that would preclude a state from imposing civil liability on its citizens for travelling to foreign states to engage in conduct that is legal in those states. "Protection" for the right to travel that bars criminal prosecutions, but allows states to exercise the same level of control over their citizens through the mechanism of civil penalties, would not be much protection at all.

Civil liability for out of state conduct could apply in a situation where a CA resident mails abortion pills to someone in TX. Allowing a TX statute to impose civil liability on the CA resident in this scenario would be permissible and analogous to the "NY publication defames a Nebraskan" hypothetical EV discusses.

There is virtually no chance of a bipartisan group of Senators agreeing on a filibuster-proof right to travel bill any time in the foreseeable future. And the over-under point on when the Ds will have both a Senate majority and the willingness to abolish the filibuster is probably 14 years.

But the right to travel issue is likely to end up in front of the Supreme Court within the next three years. So, the real question is, what will the Supreme court do? The conservative majority is now holding that pregnant women have absolutely no constitutional right ever to obtain an abortion. Will that same majority subsequently recognize a right to travel broad and robust enough to bar states from imposing civil or criminal penalties on women who cross state lines to get abortions? Probably not. Still, the odds of the Supreme Court protecting the right to travel in an abortion case are higher than the odds of Congress passing a right to travel bill.

[Don Nico]

"now holding that pregnant women have absolutely no constitutional right ever to obtain an abortion"
I do not by the "absolutely no"
what is not supported is the right to abortion on demand for any reason.

[not guilty]

If a governmental regulation of abortion is presumptively valid and subject only to rational basis analysis, as Alito´s draft opinion says, that is tantamount to holding that pregnant women have absolutely no constitutional right ever to obtain an abortion. A state at all stages of pregnancy has some interest in preserving fetal life. The Alito draft excludes any countervailing interest.

[Commenter_XY]

The opinion says nothing of the sort. The opinion says abortion regulations are to be decided by the people themselves, acting through their state legislatures. I interpreted 'no constitutional right ever to obtain abortion' (your words, not what he actually wrote) as Justice Alito stating that abortion is not an enumerated right. And it is not.

Oh the horror, people deciding moral questions for themselves. We cannot have that, can we? Self-governance?!

[Ed Grinberg]

As someone said in another thread, perfectly encapsulating the "liberal" attitude: But what if the people decide incorrectly?!

[Seamus]

Then we dissolve the people and elect another.

[shawn_dude]

Which was the whole point of the big election lie of 2020 that Trump actually won. The people decided; the folks in power didn't like the decision; there was a sincere attempt to overthrow the "people."

[Josh R]

The opinion says abortion regulations are to be decided by the people themselves

That implies women have absolutely no constitutional right ever to obtain an abortion because a constitutional right is not subject to a vote by the people or their elected representatives.

[Brett Bellmore]

Typically they are, though; By amending the constitution in question.

[shawn_dude]

Going by your scenario, it isn't a civil right until it is enumerated. Therefore, currently, the Alito opinion says it is not a civil right today and thus women have no constitutional right to ever obtain an abortion.

[not guilty]

Commenter XY, do you dispute that Alito's draft opinion states that a regulation of abortion is presumptively valid? That rational basis analysis is to be applied?

Do you dispute that a state interest in fetal life is present in every abortion regulation?

[Kristian H.]

Does this apply to 2A rights? Particularly, passing through NYC or NJ?

What about Michigan et al and quarantine restrictions? Can people break quarantine to go to Key West?

[Eugene Volokh]

It wouldn't apply to traveling through a state with products that are contraband within that state. But it would apply to going from Massachusetts to New Hampshire to go target-shooting, if you don't bring back to Massachusetts any guns that are illegal in Massachusetts.

I doubt the law would apply to quarantine as such, though it does mean that a mask-requiring state couldn't criminalize being in another state unmasked, if that other state doesn't require masks.

[Kristian H.]

WRT to NYC, there are very narrow carve outs, and NJ wrt to concealed carry, and what is considered concealed carry. The guns aren't contraband, but rather the method of movement is proscribed. In some cases, I think, it would be illegal to stop for dinner on the way to PA for target shooting.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Don't you have to follow the laws of your state when buying guns in a different state? I live in California; I tried to buy a gun in Texas, and was told No because my ID says I live in California.

Might make it hard to shoot in New Hampshire with a gun that is illegal in Massachusetts. 30 round magazines, legal in New Hampshire but not Massachusetts (I think) would not be affected unless they require FFL permission to buy in Massachusetts (I think).

[MatthewSlyfield]

What kind of gun did you try to buy in Texas? Also, would that gun have been legal in California and would the sale of it to you have been legal in California?

https://giffords.org/lawcenter/gun-laws/policy-areas/background-checks/interstate-online-gun-sales/

Under federal law, anyone who does not have a federal gun dealer license, or other Federal Firearms License (FFL), is generally prohibited from acquiring a handgun directly from a seller or transferor who resides in a different state.

Federal law places somewhat looser restrictions on the sale or transfer of long guns like rifles and shotguns across state lines. Under federal law, individuals can lawfully obtain a long gun from a seller or transferor in another state, provided that:

Both parties meet in person to conduct the sale or transfer.

The sale or transfer is conducted by, or through, a licensed dealer, pursuant to a background check and other requirements.

The sale, delivery, and receipt of the long gun fully comply with state law in both parties’ states of residence.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Don't remember now; I was looking in general, because there are a lot guns that I'd like to own, but can't in California. Logic says it must have been illegal in California, unless you already owned it prior to moving to California, or it was being sold by a cop (several have been busted for buying handguns which are legal for cops to buy, even for their private use, but not anyone else, unless the cops turn around and sell them too often.

[Longtobefree]

Welcome to Florida - - - - - - - - - - - -

[Absaroka]

Generally speaking, you can't buy handguns other than in your state of residence (more accurately, you can buy one, but the seller must deliver it to an FFL in your state of residence who then transfers it to you).

Generally speaking, you can buy long guns from an out of state FFL, providing the sale comports with the law of both states.

ATF FAQ.

(n.b. that residency for the purpose of buying guns has some quirks for military people and people who split time between states)

[EscherEnigma]

Sounds like an area that has room for compromise on, giving conservatives a reason to sign-on.

[Bob from Ohio]

"giving conservatives a reason to sign-on"

Allowing 50 years of work to ban abortions be circumvented? No chance.

[Krychek_2]

I can't believe how after hearing conservatives talk about states rights and small government and the right to avoid regulation by going somewhere else, how readily they are willing to jettison everything they've said and argued. Do conservatives have any principles left at this point?

[Alpheus W Drinkwater]

Is that a trick question?

[Toranth]

I'm pretty sure opposing killing children is a principle.

[Chris Baker]

This would be interesting (in a legal sense). Many are arguing and seeing contraceptive as a next step, interesting thought would be if you went out of state to have something implanted or inserted -- then you are smuggling it (essentially) back into your home state while it sits with you.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

What if you lived in a state where it was legal and had it inserted there, then moved to a state where it was illegal? As opposed to just tourism.

[JCCC1]

"Many" as in who? Just Catholics, really. The vast majority of Americans are okay with early (<6wk) abortion and thus the vast majority of Americans are okay with contraception and also don't have a category question about Plan B.

There are few minor medical issues that probably warrant contraception still requiring a prescription, but the Catholic push for outlawing contraception is quite bluntly an enforcement of a religious precept that fails rational basis scrutiny.

[John F. Carr]

Some people below the age of 21 were caught drunk, or at least tipsy, in New Hampshire. They probably drank the alcohol in Massachusetts. New Hampshire authorities charged them with illegal possession of alcohol by a minor based on the alcohol that was inside their bodies. I did not see any followup reports about whether the charges stuck.

[Brett Bellmore]

I think the problem here is the whole "constitutionally protected article treated as contraband" thing. The states still aren't being forced to take the 2nd amendment seriously; McDonald should have been followed up by a whole line of cases, instead of the Court abdicating the topic for another decade or more.

[Stephen Lathrop]

Why not add that no state will criminalize any substance which the Post Office is legally authorized to deliver?

[jorgyusa]

I'd go for that then my friends in California could buy ammo by mail

[Stephen Lathrop]

The Post Office mails ammo?

[Don Nico]

That ship saled a long time ago in SF County with respect to vaping materials

[EscherEnigma]

Off the top of my head, some states criminalize transporting a minor to another state for the purpose of sex (presumably because the minor is under the age of consent in your state, but over the age of consent in the other).

You'd probably want to avoid any implications for such laws if you're trying to ruffle as few feathers as possible.

I'd look up the states and terminology used, but "how to bang your underage girlfriend legally" isn't really something I want in my search history.

[Dick King]

"I'd look up the states and terminology used, but "how to bang your underage girlfriend legally" isn't really something I want in my search history."

Use DuckDuckGo, and/or incognito windows in your favorite browser. Since search queries are end-to-end encrypted, your ISP won't be able to expose you.

-dk

[John F. Carr]

I assume all the major search engines are subject to federal government espionage warrants, but using Duck Duck Go and private browsing mode will reduce information leakage.

[OldCurmudgeon]

>isn't really something I want in my search history.

Life in the 'land of the free.'

[shawn_dude]

He's free to do it. Freedom doesn't mean freedom from consequences.

[Toranth]

Peasants in 16th century France were 'free' to insult the king, too. Ditto the Nazis, the USSR, or The Un, or Xi.

On the other hand, sane people do not refer to that as 'free'.

[Bob from Ohio]

"Any prospect of getting enough Republican votes to defeat a filibuster on this"

Not a chance.

Any prospect of getting enough Democratic votes to defeat a filibuster on the opposite, banning "abortion tourism"?

[F.D. Wolf]

Even absent such a federal statute, could a state even constitutionally pursue such a prosecution (the practicality of such a prosecution aside)? Could a state ban someone from travelling to another state to drink, gamble, or smoke marijuana in another state? Has there ever been such a statute?

For example, casino gambling is illegal in Texas. But there are several companies that advertise bus trips across the border to and from Lake Charles, LA to the casinos there. No one much really objects to these, but abortion bus trips would likely raise some ire. In 1970, New York became the second state (after Hawaii) to legalize elective abortion for essentially any reason and became something of a destination for it. I am unaware of any real attempts from other states to prevent this.

[John F. Carr]

I wonder if you might find case law related to the prohibition against lending money for the purpose of gambling.

[shawn_dude]

Also have a look at Nevada's early years as a divorce haven for women who wanted to divorce their rich husbands without getting their permission first. It was prevalent enough that Hollywood made a number of (B&W) movies about it. There is also legalized prostitution in addition to gambling there, though the divorce aspect seems like it would be more legally interesting since the state of being divorced travels with you once you leave Nevada and both parties don't have to be Nevada residents.

[John F. Carr]

Some state criminal codes, and maybe all of them, say a crime is punishable under local law if any of the conduct is in-state. Nothing specific to abortion. Imagine shooting a gun across state lines. I wonder if a law like the one proposed here will have any surprising consequences in non-abortion trials when the conduct in each state is legal on its own. I recall suggesting an implausible but not impossible hypothetical about self-defense across state lines with different self-defense laws in a past self-defense thread.

[Currentsitguy]

I'd be curious how that played out in a hypothetical bar that straddled the state line between a stand your ground and a duty to retreat state.

[shawn_dude]

I think the fight over taxes would be far, far more interesting.

[Armchair Lawyer]

Actually my thoughts here revolved around the various state travel restrictions at the height of the epidemic.

How would those be affected by such a proposal. I think many of the travel restrictions would fall afoul of your proposed law.

[IPLawyer]

Would this even be needed, since the right to interstate travel is one of the few rights of a U.S. citizen protected by the privileges and immunities clause of the 14th under the Slaughterhouse Cases? Justice Thomas has certainly signaled he's interested in reexamining the privileges and immunities doctrines.

[Brett Bellmore]

That's what I thought. Such a law would be redundant under current jurisprudence.

[shawn_dude]

If it was interpreted into the 14th Amendment, it isn't enumerated, is it? Isn't enumeration the conservative standard for whether something is a right?

[Alpheus W Drinkwater]

Does the right to interstate travel necessarily mean travel for any purpose? It wouldn't be the action of traveling being prosecuted, but rather getting the abortion.

[Brett Bellmore]

Well, for what it's worth, in Dred Scott, Taney claimed that, if you were a citizen, you had the right to travel to any state, and once there do anything a citizen of that state would be legally entitled to do.

But, of course, this was prior to the 14th amendment. Once it was unambiguous that blacks were citizens, the rights of citizens were substantially contracted, and have never regained their full scope.

[apedad]

Not following this line; Once it was unambiguous that blacks were citizens, the rights of citizens were substantially contracted. . . .

Can you illuminate?

[Brett Bellmore]

Sure. If you look at what Taney said the rights of citizens were, it was pretty extensive.

"the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

Can you honestly say you, today, enjoy all those rights?

I don't mean that the 14th amendment itself contracted the rights of citizens. Rather, confronted with blacks enjoying the full rights of citizens, a push, regrettably successful, was made to reduce the extent of those rights.

[DWB]

Excellent point!

[EscherEnigma]

States like Texas are already targeting people that help women get abortions, so the constitutionality of such prohibitions will be tested, have no doubt.

So the question is, after literal decades of waiting for the right moment to finally kill Roe v. Wade, do you think Alito and the other conservative justices are going to say "woah now, we didn't mean to swing that far right, lets not be so hasty now"?

Or, to put it another way... when someone has already flipped a table, are you really going to put it past them to throw their napkin on the floor too?

[Longtobefree]

How about requiring all states to recognize the licenses of other states?
You know, marriage licenses, drivers licenses, carry licenses - - - - - -

[Brian Kennedy]

Might want to address criminal contempt specifically, even if it's only belt and suspenders confirmation that it's not affected by the statute.

[Brett Bellmore]

Shouldn't this be redundant, as already covered by the P&I clause? Isn't the right to travel for any purpose legal where you are traveling to one of the P&I the 14th amendment guarantees?

[Brian Kennedy]

I conspire with persons A and B in state 1. The conspiracy will result in A taking action X in state 2 that is criminal in state 2 but not in state 1. Can I be charged with conspiracy by state 2 under the statute? (For that matter, not being a criminal lawyer, I don't really know what the result is under current law.) There might be a negative implication from subsection (c) that I could be charged, but that's maybe assuming a non-obvious answer to what the prior subsections mean (if doing X is not criminal in state 1, there is at least one sense under which conspiracy to do X is not a crime in state 1 either. I don't think that's the right sense here, but I'm not sure.)

[Josh R]

And there's a good chance that the Court would conclude that such a law [forbidding states from outlawing abortion] exceeds Congress's enumerated powers.

If the federal partial-birth abortion ban is constitutional, why wouldn't this law be? As Justice Scalia said in his Raich concurrence:

the commerce power permits Congress [...] to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants

The partial-birth abortion ban restricts commerce while the law forbidding states from banning abortion facilitates commerce.

[F.D. Wolf]

If the items listed in the hypothetical statute are already constitutional rights, then the statute is superfluous and does nothing.

If they are not constitutional rights, I would think the statute would be unconstitutional. I believe City of Boerne v. Flores (1997) stands for the proposition that Congress cannot purport to expand constitutional requirements and then impose those requirements upon the states.

[Josh R]

I think you are right to the extent that Congress relied on its 14th Amendment, Section 5 power. But, Eugene is arguing Congress is relying on the Commerce Clause power which Boerne did not preclude.

[F.D. Wolf]

I don't know that the Commerce Clause would provide Congress that authority either. I am thinking particularly of Murphy v. NCAA (2019), where the Court struck down a federal statute that prohibited states from legalizing sports gambling as a violation of the Tenth Amendment and anti-commandeering principles.

That being said, I believe that the prosecutions prohibited in the hypothetical statute would be unconstitutional, so such a statute would be unnecessary to prevent them.

But if such state prosecutions were to be found constitutional, I don't think Congress would have the authority to prevent them.

[Josh R]

I'm not following how the hypothetical statute commandeers a state and thus don't follow how Murphy is relevant.

[Josh R]

On second thought having read Murphy more carefully, you make a good point. Perhaps however the law could be worded to apply equally to private and state actors and thus fall within the bounds of Reno v. Condon.

[RoadLessTraveled]

Under your theory, the ADA, among many other civil rights statutes, is unconstitutional. Congress expressly relied upon the 14th Amendment to pass and enforce it. Disability is not mentioned in the Constitution.

[Noscitur a sociis]

Unless you're trying to work a significant revolution in federal criminal law, I think subsections (a) and (c) also need to specify that they're limitations on state prosecutions only.

[Currentsitguy]

I'm curious if this has ever been tried before. Has anyone, for example ever been prosecuted for going to Colorado to get high, or Nevada to visit a brothel?

[MatthewSlyfield]

Probably not, but considering age of consent varies from state to state you might want to look a prosecutions under state laws baring transporting a minor out of state for the purposes of having sex with said minor.

[OldCurmudgeon]

Not quite the same thing, but MN sued a number of casinos for offering internet gambling services. IIRC, the case settled, with those casinos agreeing to never take bets from MN citizens (regardless of where in the world those citizens were when those bets were made or collected).

[not guilty]

Codification of a federal right to have an abortion is unlikely to happen, but I doubt that it is beyond the enumerated powers of Congress. 18 U.S.C. 1531 prohibits so-called partial birth abortions in or affecting interstate or foreign commerce. If it chose to do so, Congress could prohibit interference with the performance of an abortion in or affecting interstate or foreign commerce.

[John F. Carr]

A federal "female circumcision" ban was struck down by a District Court a few years ago. I see there is a new version of the law, because our ancestors forgot to limit the amount of time the legislature is in session.

[OldCurmudgeon]

IDK. I doubt a state would criminalize the act of "traveling" per se. They'll say something like "babies > 12 weeks after conception are our Citizens, and it's illegal to attempt to or conspire to kill one of our Citizens." The act in furtherance of the attempt or conspiracy could be a lot of things, such as booking an appointment.

To me, the relevant analogy is the old "Easy Divorce" states. IIRC, those kinda worked out such that one of the parties had to spend a certain number of days in the jurisdiction.

[Currentsitguy]

Yes, the old "check into a resort in Reno" thing.

[Krychek_2]

Except that there was the Williams case, in which the State of North Carolina said, "We don't recognize your Nevada divorce so we're prosecuting you for bigamy based on your second marriage." The Court said that North Carolina had to recognize the Nevada divorce, which the state then circumvented by determining that the Nevada court lacked jurisdiction to grant the divorce since the parties were citizens of North Carolina.

[shawn_dude]

I don't know this case, but from my Nevada history recollection, the reason the women had to live in Nevada was to meet its residency requirement prior to divorce. So, at the time of the divorce, the two parties were citizens of different states.

[RoadLessTraveled]

Some Texas legislators already announced they are looking into banning travel to get abortions. I read something about forcing women to take pregnancy tests before travel. So its a real possibility.

Found it: https://www.texastribune.org/2022/05/09/texas-republicans-roe-wade-abortion-adoptions/ "At least some of the more conservative members of the House said they also want to ensure strict enforcement of the abortion ban and to prevent pregnant Texans from seeking legal abortions in other states."

[SteveF]

Interesting proposal, but probably would need some added text to clarify limitations.

One thing is certain: unless the Constitution gives states the right to arrest their citizens for trying to leave the state, states trying to limit travel to keep women from having abortions are not going to be successful. If arrest by a state is allowed for any reason, then New York could arrest high income individuals so they could not move to low tax states.

From a practical standpoint, who would tell the state of a woman's motivation for travel? From a legal standpoint, I am reasonably confident there would be 6 votes on the SC to strike any such state law: the three liberals plus Gorsuch, Kavanaugh, and Roberts (and I would not be surprised if the ruling were unanimous).

I think there are probably enough Republican Senators to end any filibuster of the proposed law as well.

[Noscitur a sociis]

Presumably the hypothetical law would be primarily enforced by punishing people after the travel was complete. And if a woman travels to another state, immediately has an abortion that would be illegal in the state residence, and then immediately comes back, I don't think a prosecutor is going to be very worried about being able to prove that she had the requisite intent when she left.

[questioner7]

"No person in the United States shall be criminally punished" -- why only criminally? Shall not be punished at all, especially not through vigilante lawsuits authorized by states.

[Peter Gerdes]

I think the text needs some qualifications.

Regarding b, I worry about conduct that occurs in one state but that's directed at another state, eg, conspiracy to rob someone in a state.

Also, c would seem to create a general get out of jail free card for conduct where coordination is illegal but the underlying act is not. For instance, can CEO B make an agreement with CEO A that they are both going to leave the state to attend board meetings and vote to increase the price of gasoline? C would seem to serve as a protection to that kind of behavior if not federally illegal.

[Noscitur a sociis]

Regarding b, I worry about conduct that occurs in one state but that's directed at another state, eg, conspiracy to rob someone in a state.

As long as the substantive robbery is illegal in the destination state, shouldn't be a problem. In the vanishingly unlikely event the other state doesn't criminalize robbery, why shouldn't you get to plan to do it on your vacation.

[Noscitur a sociis]

Regarding b, I worry about conduct that occurs in one state but that's directed at another state, eg, conspiracy to rob someone in a state.

As long as the substantive robbery is illegal in the destination state, shouldn't be a problem. In the vanishingly unlikely event the other state doesn't criminalize robbery, why shouldn't you get to plan to do it on your vacation?

[jorgyusa]

Every time you drive into California in your private vehicle, you give up your right to illegal search and seizure by state officials at the state border. They are trying to keep bugs out. If they can get away with that, I assume a state could set up an inspection station to keep it abortion free. Although I doubt any would try. I think it is another law written to address no problem. We don't need more of those.

[santamonica811]

Wait, what??? Are you saying that we all have some right to have illegal searches and seizures at state borders (other than people crossing state lines, and those few people give up this right)? Sounds like gibberish to me. ["Hey, Cop! You have declined to strip-search me. I demand that you do so, immediately!!!"]

[XD]

Hey Eugene, why didn't you ever come up with draft bills to stop Covid tyranny and post them on your little blog? Why is it just baby murder that gets you so excited you feel the need to protect it at all costs, even via ridiculously-transparent kludges like this one?

[Martinned]

Presumably because he was hoping to avoid having a comments section full of crazies like you.

[Rev. Arthur L. Kirkland]

" Why is it just baby murder "

Responsible people neither advance nor accept superstition-based nonsense in reasoned debate among competent adults.

If you are younger than 12 or so, still not recovered from childhood indoctrination inflicted by substandard parents, please disregard this criticism. And grow up.

[Doug Huffman]

The church is culpable in abortion post Vatican II ecumenism, ‘no one goes to hell.’. Promoted by a succession of anti-popes. The Holy See is SEDEVACANT. The Oval Office is SEDEVACANT

Novus Ordo Watch .org

[Martinned]

Always funny when American Catholics are transparent about their desire to be more Catholic than the pope. I mean, I get it. Religion in America has always been a competitive market where different forms of Christianity compete to make money by telling people what they want to hear. But still, it rather seems to miss the point of Catholicism.

[Toranth]

Wow, that's some Grade A religious bigotry right there.

Even for you, that's rather gross.

[John F. Carr]

"No person in the United States shall be criminally punished by one State for conduct that is not criminal in the State in which it was engaged."

If elected Director of Procreation for Oceania I promise to obtain an injunction against every woman reasonably believed to be pregnant forbidding her to get an abortion. Surely contempt of court is criminal in all states.

In practice that won't work thanks to easy pregnancy tests. I could buy or subpoena some medical records and health app data, but I would be like the cop running a speed trap. For every one I make an example of a hundred more drive past me, and ten thousand more take another road.

[MikeNY]

The proposal rushes past a question that so far as I know (without research) is unclear: may a state criminalize conduct by one of its citizens wherever it happens? At the federal level we have a few crimes related to citizenship, not territoriality. Aiding the enemy- it has been at times criminal for an American to purchase and smoke a Cuban cigar anywhere in the world. In addition to being a US citizen, we are citizens of states. Do they have like power? Can NY criminalize my unauthorized alteration of my NY drivers license even if I alter it outside NY? It can tax my income wherever derived because I am its citizen. I've been wondering.

[Bubba Jones]

Are we citizens of States or just residents?

[MikeNY]

Section 1 of the 14th Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

[vaadu]

What about all those news reports months back that Rittenhouse was guilty because he 'crossed state lines'?

[tkamenick]

I think Congress has zero authority to tell states what they can and can't criminalize (courts telling states what they can and can't criminalize consistent with constitutional provisions would be different).

[Martinned]

You mean other than the (sole) power to regulate commerce between the states?

[Brett Bellmore]

"(a) No person in the United States shall be criminally punished for traveling from one State to another State for the purposes of engaging in conduct that is not criminal in that other State."

Got no complaints about this, indeed, I'd have thought this was already established law.

"(b) No person in the United States shall be criminally punished by one State for conduct that is not criminal in the State in which it was engaged."

Suggest replacing "one State" with "any State". Or, better, just drop the phrase, "by one state", to make it clear that neither can the federal government punish people for conduct that is legal in the state where it occurs.

"(c) No person in the United States shall be criminally punished for aiding, encouraging, or making an agreement with another person related to conduct protected by (a) or (b)."

Sounds good.

"(d) Nothing in this section shall authorize a person to bring from one State to another State any goods the possession of which is criminal in that other State."

You've just repealed 18 U.S. Code § 926A - Interstate transportation of firearms. Did you mean to?

"(e) Nothing in this section shall authorize conduct that is in violation of federal law."

Maybe it should?

"(f) For purposes of this statute, "State" shall include any federal District or Territory."

Fine.

[EscherEnigma]

" Or, better, just drop the phrase, "by one state", to make it clear that neither can the federal government punish people for conduct that is legal in the state where it occurs."

Today there are certain crimes that can only be committed at the federal level, because the states just don't care. One example is sharing classified information in violation of your federal security clearance.

Less dramatically, even things like mail fraud are just federal crimes, not state crimes. If the fed can't criminalize anything that isn't already a state crime, you just legalized stealing people's mail.

Unless it was your intention to nullify such things, I think it needs work.

[Brett Bellmore]

I'm pretty sure that stealing, period, is a crime in most states. So, why wouldn't stealing mail be a crime?

I'll grant there are a few crimes related to delegated powers that could be valid at the federal level even outside federal enclaves. But, for the most part, if you're not working for the federal government, nor spending time in DC or a military base, you really aren't supposed to be subject to federal criminal laws.

[Martinned]

Of course, if we take a step back it's clear that the US could do with some stronger case law on the dormant commerce clause. That would negate the need for any such statute. Dormant commerce clause and subsidies for corporations are the two areas where the US is much less libertarian than the famously marxist Europeans.

[jdgalt1]

I would expect that Eugene's proposed law is already effectively in force, as it is implied by the Commerce Clause forbidding any state from regulating interstate commerce.

I would also expect that Eugene's law, even if passed, would not apply to abortion because a woman traveling across state lines to have an abortion is traveling "for immoral purposes" under the Mann Act.

[Martinned]

I would also expect that Eugene's law, even if passed, would not apply to abortion because a woman traveling across state lines to have an abortion is traveling "for immoral purposes" under the Mann Act.

Even if that were true, what does that have to do with the correct interpretation of the Volokh Act?

[jdgalt1]

It would mean that (e) includes abortion tourism.

[Greg J]

You might get away with that

And then the following Republican government would pass a law making it illegal to cross State lines in order to get an abortion.

What is it about the desperate desire to kill babies that makes otherwise rational people completely lose their minds?

[shawn_dude]

"desperate desire to kill babies"
Interesting definition of "rational" you got there. Looks like it might be on the fritz.

[Greg J]

Ah, so you're saying there are no rational people who support abortion?

[EscherEnigma]

Hence why it would need to include something that at least ten Republicans want, and so are willing to cross the line for.

I imagine something related to guns and travel, possibly concealed carry permits†, would have a chance.
________
†then again, with the current trend towards no-permit concealed carry that's going on in some states, the time for that being red-bait may be quickly shrinking.

[Greg J]

No honest Republican is going to cut any deals before the NY gun case comes down

It appears the majority opinion for that case is being written by Thomas

Two months from now, the Democrats may have nothing to bargain with