Legal Questions about Abortion after Dobbs

Assume for now that Dobbs takes off the table the question of whether the 14th Amendment protects a right to abortion. What are the major legal questions about abortion likely to arise in the federal courts going forward? I've been trying to come up with a list of the major categories.

1.  Other federal constitutional claims to abortion. Perhaps somebody will press the 13th Amendment argument (see Koppelman; but see Lash) though it is hard to imagine it going any where. There are also free exercise arguments, which I suspect will also fail, though not quite for the same reasons that Josh Blackman has given.

2. The life/health of the mother. Does the 14th Amendment provide any limit on abortion laws that imperil the life or health of the pregnant woman? Dobbs adopts a rational basis standard, and even Justice Rehnquist's dissent in Roe, for instance, conceded that the 14th Amendment "does place a limit, albeit a broad one" on abortion laws, specifically opining that "If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective."Additionally, some commentators such as Shirif Girgis have argued that history and tradition might require some kind of life-of-the mother exception. But I don't think we can regard either argument as certain, nor is it certain how they would extend to severe health risks or other scenarios.

3. State constitutional claims. Kansas is the most salient example here, but there are a lot of state constitutional lawsuits already filed, and I think it's hard to predict how they will all go. These could also give rise to proposals for constitutional amendment, and related disputes about the validity of those amendments, etc.

4. Federal preemption/mail for non-surgical abortions. One set of questions is about the FDA approval of mifepristone and the extent to which it preempts state law, another is about the ability of states to search the mail and other interstate delivery services that might be shipping mifepristone or other medications. (We could include as a footnote the interpretation of the federal statute that forbids the mailing of "Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and")

5. Federal power to enact further abortion legislation. Could Congress use its commerce power, or less plausibly (under current doctrine) its 14.5 power to enact nationwide restrictions or nationwide liberties with respect to abortion? Justice Thomas of course questioned this power in Gonzales v. Carhart, but it has never been settled. As a matter of political legitimacy, it would be nice if we could settle the answer to this question ex ante and symmetrically, adopting the same test without knowing whether it will be a nationwide liberty signed into law by President Biden in 2022, or a nationwide ban signed into law by President Pence in 2025. Unfortunately, we likely won't.

Additionally, it occurs to me that if the commerce power is held to be more limited, Congress might still be able to use its tax power to enact quite punitive taxes on abortion procedures. It is harder to use the tax power to create a liberty, though Congress might get creative. So federal power might not be symmetric in this respect in any event.

6. Travel/territoriality. Can a state prevent its residents from going to another state to obtain an abortion? If it does or must allow them to go, can it still punish them upon their return? Can states punish anyone, or their citizens more specifically, for acts they take outside of state boundaries? If no, how do we decide where certain inchoate or virtual acts take place? (For instance, placing a call or going on a website in order to take steps to obtain an abortion . . . .)  Justice Kavanaugh opined on the first of these questions in his concurring opinion in Dobbs, but even if we assume that his views are both dispositive and set in stone, it is not totally clear how they would play out across the full range of questions in this area.

7. Due Process / retroactivity. Can a state punish abortions obtained in violation of state statute, before the effective date of Dobbs? What is the effective date of Dobbs (the date of the decision? the date the mandate issues? the date of some dispositive action taken on remand?)? Can a state punish abortions going forward under a "trigger law" or a non-trigger law that was enacted before Roe and then unenforced for the past 50 years? Even if these laws are permissible as a matter of federal law, do state common law or state constitutional law doctrines limit them? What about abortions undertaken while a state trial court's preliminary injunction is pending, if that injunction is then reversed as improper? (Compare Mitchell with Morley on this.) Could some of these actions trigger state law "mistake of law" defenses in criminal prosecutions? Again, Justice Kavanaugh opined on the first of these questions, but that leaves many other questions in this string unaddressed.

8. The right to fund. If there is no right to obtain an abortion, does it follow a fortiori that there is no right to spend money to help others obtain an abortion? What about spending money in an illegal-abortion state to facilitate obtaining an abortion in another state? What about spending money to facilitate the exercise of the right to travel to obtain an abortion in another state (see #6)? It seems to me that the most relevant precedents here are from campaign finance law (see Eugene on the right to spend money on rights) which will surely make all concerned uncomfortable.

Are there more?

Comments

[Mr. Bumble]

Keeping lawyers busy for years to come.

[SRG]

It is by no means inconceivable that some zealous prosecutor tries to charge a doctor for performing abortions prior to Dobbs under a previously unenforced statute on the grounds that he can get a jury to convict and it will help his re-election campaign. I am willing to bet that there will be a few attempts, and the Fifth Circuit will tie itself into knots on the Federal appeals.

[Michael P]

How much are you willing to bet?

[not guilty]

Prosecution for performing an abortion under a state statute that had been invalidated pursuant to Roe v. Wade for an abortion that took place prior to Roe being overruled would in all likelihood violate the fair warning component of federal due process guaranties, but I wonder whether SCOTUS would care.

"I am willing to bet that there will be a few attempts, and the Fifth Circuit will tie itself into knots on the Federal appeals."

Direct appeal from any such state prosecution would be in the state court system. Review by certiorari after completion of the state appellate process is by no means certain. Review by writ of habeas corpus would be frustrated by 28 U.S.C. 2254(d)(1), in that the U. S. Supreme Court has not ruled on whether such a conviction would contravene federal law.

There may be no federal remedy available as to such a prosecution.

[SRG]

Review by certiorari after completion of the state appellate process is by no means certain. Review by writ of habeas corpus would be frustrated by 28 U.S.C. 2254(d)(1), in that the U. S. Supreme Court has not ruled on whether such a conviction would contravene federal law.

There may be no federal remedy available as to such a prosecution

Yes, I assumed that this would be after any state remedies had been exhausted. I can certainly conceive of the 5th Circuit reaching that conclusion. I think it would be a monstrous conclusion to reach, but as long as Edith Jones is around, it is always a possibility.

I think we can assume that Alito and Thomas would deny cert if you could find one conservative justice to consider it (Roberts, presumably).

[OtisAH]

I am an American citizen and I reside in an American state. That does make me a citizen of that state, but I am an American citizen first and foremost. We all are. If it’s constitutional for my state to ban me from having a legal medical procedure in another state, or punish me for it on return, then there isn’t really much left of this country to fight for.

[bevis the lumberjack]

Not just legal medical procedures. Going to another state to do any legal activity should not be prosecutable in your home state. And right now the practice is that they don’t do so.

Otherwise anybody coming home from Las Vegas would be liable for prosecution for gambling. And in some cases soliciting prostitution as well.

[Noscitur a sociis]

Kind of begging the question though. It's true that states generally haven't tried to enact laws that would criminalize that sort of mount of state activity, but is that because they can't do it, or because they haven't wanted to?

[bevis the lumberjack]

I don’t see how a state claims jurisdiction over an act, criminal or not, that takes place in another state. If I rob a bank in Oklahoma, Texas can’t prosecute me for it.

[HumanoidAnderoid.]

Sure, but here are two difficulties:
1. Alito already explained in Dobbs that abortion is different than other questions of constitutional rights because it involves two people trapped in zero sum game. That leaves a lot of wiggle room for pro-life regimes: you could make a law saying that taking a fetus to another state for it to be killed is a crime, or that soliciting funds for that purpose is a crime, etc. As long as the operational assumption of the law is, as in Dobbs, that there are two people involved in the abortion process, it is very easy to conclude that the constitutional right to travel has an abortion exception..

2. And while the foregoing is constitutionally iffy, states could criminalize in-state activities facilitating travel for abortions: Transporation, fundraising, referalls, abortion rights organizations providing information on clinics on the state border, etc.

In the end, the basic problem here is that a legal regime under which half the states and a large and impassioned minority view abortion as murder and the other half don't is not, and cannot ever be stable. To think that this kind of equilibrium is stable is to accept that pro-lifers don't really mean what they say when they call legal abortion mass murder, or that pro-choicers are willing to accept severe restrictions on personal autonomy or what seems to them glaring injustices (say, hospitals refusing to conduct emergency abortions as long as fetal heartbeat exists...) as long as they occur in other states.

There are many possible lines of evolution here:

- Conservative states and courts create some measure of extra-territorial enforcement, creating a massive backlash in liberal states.

- Liberal states and the federal government create an abortion rights regime where anyone who wants to can go get abortion at will, via travel or via the pill, creating massive backlash in conservative states.

--One of the two sides suffering a massive defeat that basically wipes it off the national map (say, a 12 year old rape victim dies giving birth, creating an Ireland-like wave of hatred towards restrictionists; or some kind of scientific discovery reveals fetuses have some kind self-awareness from earliest points of pregnancy, creating an ethical revolution against the practice). The winning side then writes abortion rights/ rights of the unborn into law, and possibly even constitution.

- Congress starts writing national laws about the question, with the laws reversed whenever a new trifecta is in town. The optimistic take is that in this scenario, after this happens once or twice, both sides will have some incentive to write legislation providing a "floor" of abortion rights (say, 12 weeks, and exceptions for life, severe health conditions, fetal deformities, and, for minors, incest and rape). The pessimistic take is chaos, and/or court deciding to resolve the issue by either reinstating Roe or by adopting fetal personhood.

Whatever happens, the vitriol about Roe is going to be as nothing as to the vitriol post-Roe..

[shawn_dude]

If I'm recalling my Nevada history correctly, there was some attempts to not recognize Nevada divorces back in the 40s and 50s when, in most states, wives needed their husband's permission to divorce them.

Additionally, there are situations where some states allow people to marry minors, first cousins, and pre-Obergefell--same-sex partnerships or marriages, while other states make that illegal.

In these cases, the home state might refuse to recognize the validity of the act but I haven't heard of any of them trying to prosecute the participants. Abortion is different, though, as it's been elevated to a "special sin" category similar to same-sex marriage. And anti-choice laws have more to do with enforcing religious values and consequences on women than any real secular or legislative interest. Given that, I fully expect states to try and restrict women leaving their home state to get an abortion. Texas' bounty law certainly moves in the that direction. Civil suits against people who assist with abortion-related travel are likely to happen.

[Noscitur a sociis]

Anti miscegenation statutes certainly criminalized interracial marriage performed in other states. For instance, the one in Loving provided

"Leaving State to evade law. -- If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage."

[shawn_dude]

Thank you for this. I think this is highly relevant given the logic used to overturn Roe, especially.

[Toranth]

I don't think that would count, since it requires returning to Virginia and acting as "man and wife" in the state.

As far as I can tell, someone leaving the state, getting married to a different race person, and then getting divorced, all before returning to Virginia, would not qualify.

[gormadoc]

"wives needed their husband's permission to divorce them"
Not quite. Wives could divorce their husbands through the same means husbands could divorce their wives; permission was not required for those methods. In fact, the legal issue you are referring to is that most states required fault on behalf of one party and that many couples were attempting to bypass that restriction by divorcing in other jurisdictions. Their home states considered the practice fraud but the SC decided in favor of the couple when the issue reached them.

[WPHDM]

You can go don your "any person" hat and sue Oscar Stilley, who has begged the world to sue him under S.B.8 for making a small donation to a Texas abortion fund. Stilley, a much more pleasant fellow than Felipe N. Gomez (likewise of statutory interpleader "get-them-bounty-hunters" fame), appears to have different agenda though: Advocating for the grievance/procedural/appellate rights of inmates, a topic he is an expert on based on his experience as an institutionalized "writ writer" following his career as an attorney.

[ReaderY]

18 USC 1461 specifically prohibits sending an abortificient through the mails.

How can state laws be preempted on the permissive side when Federal law prohibits?

[Brett Bellmore]

Perhaps Arizona can explain that to you. The Court seemed to think that sort of thing made sense for immigration law.

[Brett Bellmore]

1) Pretty doubtful, all the arguments I've seen of this natures have been desperation moves.

2) Every single law I know of permits abortion for the life of the mother, or grave health threats. Could be interesting to see where the courts draw the line, but I suspect states that don't allow 'mental health' exemptions are probably on solid grounds, barring edge cases, such as somebody who's dependent on a psychiatric drug that causes severe birth defects.

3) State constitutions are relatively easy to amend, so I suspect any hold up in this area will be temporary: If the political will exists to ban elective abortion, the will exists to amend the state constitution to stop courts from thwarting such bans.

You will, of course, see state amendments to enshrine abortion rights, but only in states where they're not under threat, and should that change, so will the state constitution.

4) I wonder about the application of the 21st amendment here. The amendment isn't specific to alcohol, it says "intoxicating liquors". Construing abortion drugs to be intoxicating liquors would be less of a stretch than some crazy stuff the courts have done.

5) The general theme of the ruling was that this wasn't a federal matter. I expect the Court to hold to that.

6) The right to travel is pretty well established. Any state trying to ban travel to obtain an abortion is, except maybe in the case of minors, going to get slapped down.

7) The Court is not going to tell people they can't rely on court rulings. That's a strong institutional interest.

8) "If there is no right to obtain an abortion, does it follow a fortiori that there is no right to spend money to help others obtain an abortion?" I think that's a pretty clear "Yes". "What about spending money to facilitate the exercise of the right to travel to obtain an abortion in another state?" Again, right to travel, they're not overturning that.

[not guilty]

Construing abortion drugs to be intoxicating liquors doesn't pass the giggle test.

[Brett Bellmore]

Neither does a lot of other current precedent. Bees are fish, remember?

[SRG]

Bees are fish, remember?

That explains the bee/libel case - the man who bought the bees didn't supply them with large enough aquaria.

[Krayt]

"The commerce clause should be liberally interpreted so any Rube Goldbergian chain of loose connections justifies federal control of just about everything?"

Democrats: Yes!

Could Congress use its commerce power...to enact nationwide restrictions or nationwide liberties with respect to abortion?

Democrats: No!

[ReaderY]

I don’t think anybody denies that even under a fairly narrow interpretation of the Commerce Clause, Congress could prohibit interstate travel for purpose of abortion, transporting abortifacients across state lines, etc. Under the current standard, it could prohibit abortifacients entirely, just as it can prohibit other drugs it doesn’t want introduced into interstate commerce.

[Mr. Bumble]

...will we ever know who leaked Dobbs? Does anyone care?

[Brett Bellmore]

I suppose some people on the Court care, but since it already either didn't work, (Assuming it was meant to sabotage the ruling.) or did work, (Assuming it was meant to make backing down impossible.) there's not a lot to be gained on this issue by finding the leaker. Worst case it would utterly destroy comity on the Court, if it was found to have been one of the Justices.

[Mr. Bumble]

If ignorance is bliss, 'tis folly to be wise?

[Brett Bellmore]

Something like that.

[Mr. Bumble]

Can't agree with you on this.
This is just the latest example of the cascade of leaks from officials throughout the government which undermine respect for the rule of law (since many of them are illegal under existing statutes).
Your arguement sounds somewhat like Hillary's "what difference does it make now" comment. The truth should always make a difference and where is there comity if you can't trust your clerks, other employees or in the worst case your fellow Justices?

[Brett Bellmore]

I'm not at all saying that they shouldn't care. Just that the potentia policy gain from catching the person is now minor, so a lot of people will no longer be motivated to care.

[Mr. Bumble]

Until the next time?

[OtisAH]

Ginni Thomas “leaked” the draft.

[Mr. Bumble]

Doubtful, but the leaker should be discovered and revealed and punished if the law allows for it.

[JerKat]

The Second Amendment ***as interpreted by Heller/McDonald and their progeny*** establishes an individual constitutional right to bear arms for self defense. "Bearing arms for self defense" inherently implies the (limited) right to terminate another person's life.

States with "stand your ground" or "castle doctrine" laws allow the (limited) right to take another's life upon reasonable (even if mistaken) fear of harm.

Bruen established an individual Second Amendment right to concealed carry in the home and (most) public places... and (generally) requires states to change their co no concealed carry policies from "good cause" to "shall issue." So under Bruen, the state (generally) cannot stop its citizens from obtaining or transporting a self defense weapon (even if the need to *use* that deadly weapon is not imminant).

Assuming for sake of argument that an unborn fetus is a "person" for constitutional purposes, a pregnant woman's act of killing their unborn fetus in self defense when the life of the mother is at risk is not much different from a pregnant woman's act of killing an adult in self defense when the life of the mother is at risk.

Put another way, it is irrational for a state to prohibit its citizens from obtaining an abortion (or from preemptively obtaining abortion pills) for the purpose of protecting the mother from pregnancy-relayed health risks when (1): there is an individual constitutional right to bear arms: (2) a generalized desire for self defense is in-and-of itself "good cause" to obtain a concealed carry gun permit: (3) the state "shall issue" such concealed carry gun permits.

As such, the Second Amendment is the source of a constitution right to abortion *when continuing the pregnancy to term* puts the woman's life at risk.

(See also the 14th Amendment).

[Lee Moore]

I thought you were doing quite well until the last sentence, which is silly. Arms carried pursuant to 2A rights, which are then used in self defense, are simply an example of the legal defense of self defense; which applies just as well if you use your fists, or push your assailant off a cliff. 2A is not the source of your right to defend yourself.

However, you are quite right that there is a clear application of the legal defense of self defense, in the case of abortion. By clear, of course, I mean extremely murky.

For the questions arise - how realistic was the threat to your life ? And if there was no threat to your life, how much self defense are you entitled to use to protect yourself from how much injury ? And how certain must the injury be - how probabalistic can you get ? Is it all up to the jury, or are there legal rules ? Does it make any difference if you put yourself in danger by your own choice ? Does it make a difference if the threat comes from an unknowing innocent as against a miscreant ? How stands a third party, who assists you to protect yourself from threat, when it's an innocent rather than a miscreant that's going to be iced ? How much protection do you get if you are acting on the advice of a doctor ? Does it make a difference if it's the same doctor, or hospital, that is potentially guilty with you if your self defense claim fails ? And last but not least, how much does it matter whether the fetus is constitutionallly a person ? ie how well does self defense work as a defense when you feel threatened by a cat or a dog ? Presumably a lot better than with a human, but not infinitely better. ie if you shoot your neighbor's dog, you probably still need to produce some kind of plausible threat story, that the jury is willing to buy.

[Bored Lawyer]

7. Due Process / retroactivity.

Seems to me that a retroactive prosecution faces serious Due Process problems in terms of notice. The law pre-Dobbs was that most restrictions on abortion were unconstitutional and unenforceable. Hard for me to see how someone has fair notice that his acts are criminal under those circumstances.

And yes, I am aware of the doctrine, really a fiction, that Constitiutional interpretation is merely what the Constitution has always meant. That is why I say as a practical matter. Suppose an attorney general announces that his state will not prosecute a certain law. Without some counter-announcement, I don't see how someone can be prosecuted anyway. And here the pronouncement was by the highest court in the land.

[Brett Bellmore]

And your last line explains why the highest law of the land will see it that way. They are NOT going to tell people, "You can't rely on our decisions, you may end up a criminal for doing what we specifically told you was legal."

[bevis the lumberjack]

How can there be mens rea during a time when something is legal?

[Lee Moore]

How about spousal rape :

https://www.law.cornell.edu/women-and-justice/resource/people_v_liberta

I don't know how this case finally finished up, but this seems to be saying that the NY Court of Appeals felt quite happy "striking down" an explicit statutory spousal rape exception, on the grounds that it was "unconstitutional."

Of course, the common law's spousal rape exception was hundreds of years old by then. IIRC the House of Lords reversed the common law exemption - in an actual case with an actual defendant - in the 1990s.

So I would not be quite so confident that courts are unembarrassable when it comes to the retrospective effect on criminal liability of changing constitutional interpretations.

[Joe_dallas]

"2. The life/health of the mother. Does the 14th Amendment provide any limit on abortion laws that imperil the life or health of the pregnant woman?"

one of the most bogus talking points from the pro- death/ pro-abortion advocates.
With today's medical technology and medical skills, the actual risk to the health of the mother is extremely low. Less than 17 per 100k in the US.

[Moderation4ever]

Doesn't help if your one of the 17. That number is also an average over all women, race and age also play a part in the number and cannot be neglected.

[Brett Bellmore]

This does not change the fact that pregnancy is actually quite safe these days, unless you have some serious morbidity or it's an ectopic pregnancy or something similar. You're going to have to demonstrate an actual medical condition besides pregnancy itself to declare medical necessity, and get away with it.

[Moderation4ever]

Also safer in other countries. Those countries allow you to end a pregnancy and give you a better outcome if you decide to continue the pregnancy.

[Brett Bellmore]

Other countries that typically restrict abortion more than the US did until a few weeks ago.

[HumanoidAnderoid.]

No, other countries that provide both much wider access to early term abortions than anywhere in the US, and health exceptions much wider than any pro-life statute is ever going to create.

[bernard11]

BS talking point alert.

[Joe_dallas]

bernard11
July.8.2022 at 3:05 pm
Flag Comment Mute User
"BS talking point alert."

Brett's statement is accurate

[Sarcastr0]

Not with the way those country's exceptions were implemented.

[Joe_dallas]

Not exactly true - the higher child birth mortality (as low as it is in the US at 17 per 100k) is higher than most european countries due to A) combination of demographics which has nothing to do with quality of health care and B) methodology in how deaths are counted. Access to earlier or later abortion has virtually nothing to do with the differences in rates.

[Hey Skipper]

Joe_Dallas: damn you and your facts!

[Bob from Ohio]

Severe risk to physical health is one thing, we can argue that as an exception and under what conditions. Doe v. Bolton line of cases interpreted health to mean anything, even brief sadness or regret, as threatening mental health, that is not acceptable.

[HumanoidAnderoid.]

"Sure, I can grudgingly accept that women's life and death should be a secondary consideration in this whole affair, but treating her as a human being and not an incubator is taking things a step too far."

[Lee Moore]

Treating her as a human being necessarily includes regarding her, inter alia, as an incubator. Assuming we are using “her” in its traditional pronounity.

That a woman may be a University Professor or a tennis champion does not stop her also being an incubator.

Motherhood is part of being a woman, just as fatherhood is part of being a man. And hardly an incidental part.

[Alpheus W Drinkwater]

All obviously true. The real question is whether even when pregnant, a woman continues to be more than just an incubator. Maybe she even continues to be a human being and a citizen of the US.

[shawn_dude]

You're mis-framing the argument.

The women whose life is at risk are known as it's their doctors that are helping them understand those immediate and personal risks. So the right to an abortion because it endangers the life of the mother isn't generic--it's specific to specific women in that specific circumstance.

So, assuming your numbers are accurate, your 17 per 100K are 17 women that will die even though it was likely known in advance they would potentially die from the pregnancy and the technology to prevent that death is well-understood and safe to administer. There is no legitimate purpose in letting those 17 people die simply for the sake of ideological purity.

[HumanoidAnderoid.]

And, of course, there is also the issue of odds. Like, if a doctor tells me and my wife that a pregnancy has 10% of ending in her death or serious health condition, we will almost certainly choose to terminate it. For Catholics, this constitutes murder, but the Catholics, or anyone really, is invited to kindly fuck off in these kinds of circumstances.

[Joe_dallas]

.017% is far smaller than 10%

[shawn_dude]

This is a non sequitur. He's describing 10% chance for his wife--an individual person. Your number, .017%, was the percentage of deaths from pregnancy per 100k which is an average across 100,000 women and not the medical estimate of a single doctor for a specific woman. One woman could have a 100% chance of death without an abortion that wouldn't necessarily alter the average.

According to the CDC, for 2020, the average maternal mortality rate has increased to 23.8 per 100K live births across all categories but is as high as 55.3 for non-Hispanic black women. When you add age of the mother to the equation, it goes up to 166.5 for non-Hispanic black women over the age of 40.

[Aunt Teefah]

Imagine thinking 17 deaths per 100,000 is good. For the cost of the most expensive healthcare system of the world, we have a higher maternal death rate than . . . Turkey (among a whole bunch of other countries). https://www.statista.com/statistics/1240400/maternal-mortality-rates-worldwide-by-country/

[Mr. Bumble]

Would someone please invent a method of birth control that would prevent unwanted pregnancy.

[Moderation4ever]

Yes, and one that is easily accessible, cheap, and never fails.

[Moderation4ever]

I have, in the past, noted that repealing Roe would be a great social experiment. The questions posed in the article are just the start of experimental process. We had a working process with which the majority of Americans were happy. Over 90% of abortions occurred within the time period of 15 weeks when most people were comfortable with the procedure. I suspect that the repeal of Roe will be the 21-century equivalent of Prohibition.

[gormadoc]

"I suspect that the repeal of Roe will be the 21-century equivalent of Prohibition."
It will decrease infant mortality? It would in turn be repealed for largely economic and tax reasons?

The two aren't as similar as you think. With the "repeal" of Roe and the repeal of Prohibition both abortion and alcohol are state or local matters and are more similar than they were before.

[Noscitur a sociis]

I agree that polling seems to indicate that most Americans want abortion to be legal under the circumstances when the vast majority of abortions are performed.

Why does that fact lead you to think abortion is going g to become illegal almost everywhere?

[Aunt Teefah]

Probably because it is already illegal in many states, and is likely to be made illegal in many more. https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html

And anyone with even cursory knowledge of US politics over the past several decades would know that widespread public support is not sufficient to get a policy enacted into law.

[Brett Bellmore]

All you're demonstrating there is that the NYT has decided to be misleading, along with most media outlets. They label states where abortion is perfectly legal for reasons of medical necessity as having "banned" it.

Medically necessary abortions have super-majority support for legality throughout pregnancy. Elective abortions have a slight majority support in the first trimester, and then support tanks.

Naturally, medically necessary abortions end up legal everywhere, and since that slight majority isn't uniformly distributed, elective abortions end up legal some places, illegal others.

[Aunt Teefah]

"They label states where abortion is perfectly legal for reasons of medical necessity as having "banned" it."

Yes, because that comports with what over 95% of people understand a "ban" to be. Just because there is a carveout for the life of the mother doesn't mean there is not a ban. Most states allow someone to take the property of another to save a life - do those states somehow not "ban" theft? Just because the linked article does not accept your idiosyncratic (and frankly absurd) understanding of what a ban is does not make it misleading.

[Mr. Bumble]

According to your source it is "illegal" in 21 states and legal in 29 states plus the District of Columbia.
The infographic you link to is typical NYT's stuff and at least slightly slanted. Five states are listed as banning abortions with no exceptions for rape or incest but do not address health of the mother.
Of the 29 states and DC where abortion is listed as legal very few are likely to ban abortions.
In any event there will be many court cases in the coming days (years?) while all this gets sorted out.

[Chris Gates]

Additional areas:

1. Constitutional status of the unborn. Finnis and Robby George submitted an amicus arguing that the original public meaning of the 14th Amendment /prohibits/ abortions. Josh Craddock has his Equal Protection argument. Clearly there's no appetite for that today on SCOTUS, but that argument might start getting built out in lower courts.

2. Secondary state prohibitions.

Can Mississippi make it unlawful for insurers to cover abortion? Travel for abortion? I see this issue as distinct from the laws specifically targeting funders.

Can Louisiana pass a statute prohibiting any university or public health institutions from research that promotes abortion?

3. What about various regulatory accounting mechanisms? It seems clear that "14th Amendment person" requires birth - hence the birthright citizenship cases. But could Texas start reporting statistics like poverty/fatality/requirements for Medicaid funding or Housing funding to include unborn children? They would probably have an interest in doing so, as it would legitimize the life of the unborn while increasing funding for the state.

[ReaderY]

Regarding prohibiting research on abortion,

Of course it can. Laws already prohibit research without a patient’s informed consent with some exceptions (e.g. when the patient is incapable of consenting, the research has to clearly benefit the patient).

All state law has to do is to clarify that “the patient” includes a fetus, and that would be that.

[ReaderY]

Regarding Medicaid etc. - The programs you mentioned, and the definitions involved in them, are federal. So they are controlled by federsl law and a state can’t change them. But a state can define things however it wants for its own programs.

[ReaderY]

Regarding constitutional status - The Supreme Court has long held, and recently reaffirmed, that a foreigner outside US territory has no constitutional rights, as the word “person” used in the Bill of Rights lacks “extraterritorial application.”

How could it be otherwise? What is war other than taking human life without any process of law? Nothing in the Constitution limits us to just wars or requires us to limit civilian casualties. Nothing prohibits covert action, dirty tricks, or assassinations. Nothing prohibits our launchong a nuclear first strike. We may have laws and treaties doing that, but we could change them by statute if we wanted to.

Abortion is constitutionally no different from war. We could choose to take the high road. We can outlaw war (The Kellog-Bryant treaty does exactly that.) We can say that gentlemen do not read each other’s mail and refuse to engage in spying. We absolutely can follow the moralists and the pacifists among us.

But we can also choose to say that the world just isn’t a perfect place, and sometimes we just gotta do what we gotta do to get by, moral or not. And the Constitution permits it.

So far as the Constitution is concerned, abortion really isn’t any different.

[Mr. Bumble]

Does Dobbs to anything to make abortions safe, legal and rare?

[Brett Bellmore]

That ship sailed long ago. Permitting something awful because the alternative is more awful is psychologically difficult, the temptation is always present to evolve towards denying the awfulness of what you're permitting.

Most of the pro-choice movement have already arrived at, "no big deal, so why would you want it to be rare?", with a substantial minority treating abortion as an affirmative good.

[shawn_dude]

The whole "no big deal" thing is a just a strawman that right-wing religious conservatives use to demonize their opponents in order to deny the awfulness of what they're doing to other people.

[OtisAH]

No, it allows states to pass legislation that does the exact opposite in fact.

[Aunt Teefah]

Like anything else the government bans, it will be somewhat more rare, somewhat less safe, and definitely not legal.

[MatthewSlyfield]

"If it does or most allow them to go, can it still punish them upon their return?"

And if they can't, how does that affect state laws prohibiting transporting a minor out of state for sex?

[defaultdotxbe]

Transporting a minor out of state for sex is criminalized under a federal statute, not state.

[Mr. Bumble]

I didn't think it was restricted to minors.

[defaultdotxbe]

There may be multiple federal statutes related to interstate sex, but the specific one I (and I believe MatthewSlyfield) am referring to basically says if the age of consent in state A is 17, and in state B its 16, you cannot take a 16 year old from state A to state B for the purpose of having (otherwise consensual) sex with them.

State A cannot criminalize this on their own, it needs a federal law to empower their age of consent in another state. There are similar federal laws regarding firearm sales (if my state requires a waiting period, that applies to a gun I might buy in any state, and so forth)

[MatthewSlyfield]

"State A cannot criminalize this on their own, it needs a federal law to empower their age of consent in another state. "

It is my understanding that several states that have state laws analogs to the relevant federal statutes. With the state laws, it's not empowering their age of consent in the other state, they prosecute the adult after the adult returns to their state.

The argument is that the process of transporting the minor partially occurs in state A, so state A can criminalize this.

[defaultdotxbe]

I'm not familiar with such laws, but it makes sense as it pertains to a minor. A minor who cannot consent to sex also can't consent to actions specifically intended to facilitate sex. It creates a sort of "statutory kidnapping" law.

I think it would be much more difficult to apply those laws to adults seeking abortion services though, since adults are free to move and travel on their own (minors may need parent or guardian permission for such things)

It may also be difficult (albeit less so) to apply such laws to minors being taken by their parents/guardians to another state. They state would probably need to hook it to child abuse laws and prosecute under CPS.

[Lee Moore]

The argument is that the process of transporting the minor partially occurs in state A, so state A can criminalize this.

Presumably there's also the question of conspiracy to worry about. If you take the minor out of state A to have group sex in state B, and you arrange the session in a phone call with the state B participants, while you are in state A; then presumably both you, and the other participants, who never set foot in state A, but conspired with you while you were in state A, are in for some state A lawyers' fees at least.

So in the abortion context, it might be unwise to call, or email, the state B abortion doc to set up your appointment, while you are in state A.

[ReaderY]

The federal government absolutely could prohibit crossing state lines for purposes of procuring an abortion in exactly the same way it currently prohibits crossing state lines for purposes of underage sex.

I don’t think anybody denies that after Dobbs, a Congress inclined to restrict abortion can do a great deal to restrict it, and a Congress designed to facilitate abortion can do a great deal to facilitate it.

[Lee Moore]

How about transporting a minor out of state for the purposes of killing it ?

Suppose you have a really whiny two year old, who is annoying you quite a bit. And suppose you discover that in, say, Panama, the cops don't bother you if you choose to get rid of your kids. So you fly from New York to Panama, polish off the kid, and fly back. Can you be prosecuted under NY State law (ignore federal law) ?

Feel free to substitute any other state for New York.

[not guilty]

Roe v. Wade struck a balance between the individual rights of a pregnant woman to liberty, privacy and personal autonomy vis-a-vis the interest of the states in protecting and preserving fetal life. Dobbs v. Jackson Women's Health eviscerated any consideration of individual rights, imposed a strong presumption of validity of state prohibition/regulation of abortions and required application of mere rational basis analysis to state legislation.

The Dobbs opinion identifies the protection of maternal health and safety as a state interest, but not as an individual interest. A state prohibition of abortion containing no exception where the life or health of the pregnant woman would likely pass constitutional muster.

[mydisplayname]

I'm growing more concerned about an alternate 13th Amendment argument; specifically, that "aborting" gestation and thereafter preserving the "aborted" human for the purpose of growth of human cells (for use in medical research, electronic devices, etc.) is a form of slavery. Truly, what is the difference between holding a living, though "aborted," human for one's own gain and holding a living, "born" human for one's own gain?

Among others, Pfizer and The Johns Hopkins University appear to be dealing with this issue... albeit very quietly.

[Brett Bellmore]

This is kind of like the 'bodily/medical autonomy' argument, in that it's utterly pretextual; The reasoning will never be applied to anything beyond abortion.

[shawn_dude]

You cannot enslave something that isn't a person with civil rights. The cells of a person aren't a person, either. My fingernail clippings aren't a person nor is the biological matter that comes from menstruation or masturbation.

[Toranth]

So, what is a person, in a purely objective definition?

Or did you mean "human", in which case a embryo most certainly is.

[Don Nico]

"My fingernail clippings aren't a person"
Aren't you smart.
Learn some biology before such vomit.

[Rev. Arthur L. Kirkland]

Anyone want to start a pool with respect to how long before Dobbs is discarded by the Court?

[shawn_dude]

Since 2016, I've found that I'm no longer an optimist as it applies to American democracy. So no, I won't make any wager on how long it takes the USSC to overturn Dobbs unless that overturning is to make way for something that removes more freedoms or subjects more citizens to minority religious requirements.

[Don Nico]

The decline started much earlier than 2016.
BTW, the 2016 was an exercise in democracy.
People get the government they deserve

[Josh R]

Decades (and decades?).

[Rev. Arthur L. Kirkland]

The Supreme Court's credibility, respect, and approval are capsizing, especially among the Americans who seem destined to continue to become stronger in national elections. Enlarging the Court is likely to be a far easier (in several ways) and more probable lift for the liberal-libertarian mainstream than many Americans understand.

[The Turtle Dove]

Licensing comes to mind; a state has a lot of power over how people practice their professions, whether inside the state or not. Corporate form: "any lawful purpose " just got a bit narrower. Tort liability, perhaps it becomes an absolute liability, which places an insurance burden. Zoning laws. Television advertising. Medical associations' codes of conduct. Tax burdens. Antitrust if the providers band together too closely (Maricopa, etc.).

The difference between protecting the fetus and prohibiting the practice becomes important when thinking about jurisdiction. If a pregnant woman passes through a state that bans it while her domicile and the place of the procedure allow it, does the mesne state have a sufficient interest in the life within its borders? Slavery cases perhaps provide an earlier example.

Is domicile at all relevant if no significant steps are taken within the border? Arguably not. Arguably it's (1) the presence of the protected life within the borders and (2) a substantial step taken within the borders. Say a pregnant woman is downstate, while her upstate friend does a gofundme and surprises her with the proceeds when they're in a neighboring state which permits abortion. Classically, you'd say that there was no conspiracy in State A, and it's legal in State B. But there's another party in the equation. Switch it a bit and say that the woman had a pet bird of an endangered species. Can state A prosecute the upstate friend, since they knew that there was a rare bird downstate and tried to eliminate it?

Mr. D.

[Lee Moore]

In most cases of abortion there is going to be a conspiracy - ie at least between the woman seeking the abortion, and the abortion doc (or the person who supplies the abortifacient drugs.)

So the question then becomes - where did the relevant acts of the conspiracy take place ? eg if Alabama woman , calling from Alabama, calls NY abortion practice to book an appointment, is that enough to place the conspiracy in Alabama ? What about an email ? Does it matter where the server is ? And so on.

[The Turtle Dove]

Perhaps, but can you criminally conspire in State A to commit an act in State B that is legal in State B? Conspiracy doesn't merge, but it usually yields.

http://montypython.50webs.com/scripts/Series_1/38.htm

Mr. D.

[Brett Bellmore]

Not only is it pretty well established, Nevada has at least two industries that are founded on that principle. Gambling and prostitution are perfect examples of this.

[Bored Lawyer]

They are making the opposite claim, that Congress can permit abortion nationwide. That has the same Commerce Clause issues as a nationwide ban.

[Brett Bellmore]

Riiight. 49 states that outlawed prostitution were just fine with Nevada having it be legal.

Oh, wait, they weren't, and they lost in court:

US judge dismisses case against legal brothels in Nevada

The legal precedent on promoting travel for purposes illegal in state is mixed, and on promoting travel for purposes illegal for minors in state is a lot less mixed.

So, pretty clearly you can't be prosecuted for traveling out of state for an abortion.

You *might* face legal consequences for facilitating travel out of state for an abortion.

Making it illegal for you to transport a minor out of state for an abortion? THAT would be on fairly solid grounds.

[defaultdotxbe]

How about regular murder? If I commit a murder in another state the state where I committed the crime prosecutes me, not my home state, because my home state has no jurisdiction in another state.

And there are reasons my home state might want to prosecute, perhaps they have the death penalty and where I committed the murder does not. Perhaps I was acquitted and my home state wants a bite at the apple to put me away (its telling that the "dual sovereigns" doctrine has never been tested in this way, because it goes without saying that 2 states can never have jurisdiction over the same crime)

There are also plenty of other cases of "crime tourism," people have been going to California for medical marijuana for well over 2 decades. People travel to other states to hunt game that might not be legal in their home state, or just shoot guns for fun that might be illegal in their home state. I grew up in Illinois, where going over the border to Indiana to buy fireworks was a yearly tradition. It only became a crime when the fireworks crossed the border into Illinois, the state had no ability to ban resident from *buying* them in Indiana.

The only cases where state laws have an effect outside of the state are where a federal law exists to empower the state law. Such as when purchasing firearms, or traveling to a state with a lower age of consent law to have sex with someone who would be a minor in your home state.

[Brett Bellmore]

I think that clearly Congress can permit abortion nation-wide. And does!

That wouldn't have any implications for the states having to, though.

[Bored Lawyer]

I meant, they can create a right to abortion and override state law. Obviously Congress can just do nothing and leave it to the states.

[Brett Bellmore]

No, it was on sex trafficking laws not applying to prostitution where it is legal. Which is analogous, anyway.

Really, Nevada does demonstrate that morals laws can't be applied to activities outside a state, at least to the extent they involved adults. Minors are another matter.

[Brett Bellmore]

And one hopes the federal law concerning out of state firearms purchases is on its last legs after Bruen. The constitutionality of saying you can't exercise a constitutional right outside your home state is pretty dubious.

[Noscitur a sociis]

If I commit a murder in another state the state where I committed the crime prosecutes me, not my home state, because my home state has no jurisdiction in another state.

Again, this seems to be begging the question. The federal government criminalizes all sorts of extraterritorial conduct: it seems to me that the fact that states generally choose not to doesn't itself mean that they couldn't exercise the same sovereign power if they wanted to do it.

[David Nieporent]

because it goes without saying that 2 states can never have jurisdiction over the same crime)

That's not at all true, and I'm not talking about an absurd hypo about committing crimes on the state line. One day my friend and I, residents of Pennsylvania, decide to rob a bank in Ohio. We meet in my living room, come up with a detailed plan, buy equipment, hop in a van, and drive across the state line. We are guilty of conspiracy and attempt in both states.

[Noscitur a sociis]

You may want to give them statute another gander.

[ReaderY]

How do you get that? It’s true the statute was amended to define “indecent” that way. But the relevent text says:

“Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or [sic] for any indecent or immoral use…”

“Or” is disjunctive. Producing abortion is one purpose. Indecent use is another. Immoral use is a third. Any one of the three
violates the statute. So what the other terms mean simply doesn’t matter.

[ReaderY]

The case seems to have been decided on standing grounds. It involved three women who claimed they were sex traffic and that legal prostitution in Nevada was the cause. The opinion held that the harm the plaintiffs claimed to have suffered could not be fairly traced to these laws, but rather was caused by the illegal conduct of third parties.

This means the case simply wouldn’t apply to a criminal prosecution. State prosecutors always have standing to enforce their laws.

There doesn’t appear to have been any merits decision about the extraterritorial application of state criminal law. There doesn’t seem to have been any decision about that subject at all. It doesn’t seem to have had anything to do with this case.

[Bob from Ohio]

"they can create a right to abortion and override state law."

Can Congress create a right to murder and override state laws?

Regulating abortion is a traditional state police power, reserved to the states by the 10th Amendment. There is no general federal police power.

I'm aware of the partial birth abortion ban case. That was then, this is now.

[ReaderY]

I think that Flores is basically a block to Congress using 14th Amendment powers to override Supreme Court prcedents it doesn’t like.

I think that Congress can’t flat-out permit abortion under the Commerce Clause. But if it wants to pass laws to facilitate it, it has significant authority to do so. For example or could amend the Assimilative Crimes Act allow abortion clinics in federal enclaves. And if it wants to it could set up an abortion clinic in every federal courthouse, VA hospital, and SS office, and post office if it wants to. If it appropriates the money, it could provide abortions for free.

So while I don’t think Congress has the power to directly override state law on this subject, it could so undermine it as to render it a nullity for all practical purposes if it really wants to.

[defaultdotxbe]

It's not that they "generally" choose not to, its that they've *never* chosen to, even when they very much wanted to.

For example in 1968 only a couple states required background checks for gun sales, but those were easily circumvented by traveling to another state that didn't require the checks.

Those states that required background checks certainly had a strong interest in preventing their citizens from traveling to another state to buy a gun, but they couldn't until the Gun Control Act of 1968 brought federal power down on interstate gun sales (initially banning them entirely, but later allowing them in some circumstances so long as state laws were followed)

[Bored Lawyer]

It's hypothetical. If abortion opponents ever gain enough votes to impose a national ban on abortion, which I very much doubt, then you will say many prior fans of an expansive Commerce Clause become critics, and many critics become fans.

Under that well-known legal doctrine of pendent in cuius bovis infixa est (depends on whose ox is gored).

[Mr. Bumble]

Suck queenie suck, blow is just a figure of speech.

[David Nieporent]

There doesn’t appear to have been any merits decision about the extraterritorial application of state criminal law. There doesn’t seem to have been any decision about that subject at all. It doesn’t seem to have had anything to do with this case.

Forget it, ReaderY; it's Bretttown.

[David Nieporent]

Under current interpretations of the constitution, if Congress comprehensively regulates abortion, that would preempt state laws that touch on the subject.

[Brett Bellmore]

"And if it wants to it could set up an abortion clinic in every federal courthouse, VA hospital, and SS office, and post office if it wants to."

"To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;"

It's worth noting that the federal government seldom bothers to secure that consent these days, and as a result, no, it doesn't, constitutionally, exercise exclusive jurisdiction over "every federal courthouse, VA hospital, and SS office, and post office".

It would be a fun legal fight, though.

[David Nieporent]

Um, you know that many women are themselves anti-abortion, right?

[Josh R]

What fans of an expansive Commerce Clause became critics in the wake of the federal partial-birth abortion ban?

[Josh R]

The comprehensive regulatory scheme must be of interstate commerce (e.g., outlawing the interstate market in marijuana). On the other hand, Congress could regulate intrastate abortion without a comprehensive regulatory scheme so long as abortion is considered economic activity that in the aggregate substantially affects interstate commerce.

[Brett Bellmore]

Yes, and if you'd gotten into a fight on a train, and started beating on somebody in Ohio, and finished up in Michigan, both states could charge you for assault and battery.

But that's not because states have extraterritorial jurisdiction, it's because you actually did commit the crime in both states.

[Mr. Bumble]

Being stupid again?
What does some women having terrible relations with other women have to do with some women opposing abortion?

[Bored Lawyer]

They all relied on Roe v. Wade, on which they succeeded pretty quickly. (I once was in a courtroom when a hearing was going on for one of those challenges. I was waiting for another case to be heard.)

That option is now gone.

[Josh R]

Have any fans of an expansive Commerce Clause now come forward as critics to attack the federal partial-birth abortion ban in the wake of Dobbs?

[Noscitur a sociis]

1. Yes.
2. The statute says that "indecent" includes "matter of a character tending to incite arson, murder, or assassination." It doesn't say it's limited to material of that character.

[ReaderY]

“Go down to the liquor store and get me a Jack Daniel’s whiskey or any beer.”

You would seriously interpret that to mean that I don’t want you to get me a Jack Daniel’s whiskey because it’s not a kind of beer?

[Bored Lawyer]

Dobbs has only been out a week, and no one is even close to passing a national ban on abortion.

It's what is called a prediction. By definition, it has not happened yet. If it comes true, I am a genius. If not, we can forget about it.

[Josh R]

Fair enough.

I'm taking the other side of that bet for two reasons: 1) the partial-birth abortion ban exists and not a peep out of abortion supporters about the Commerce Clause even though there has been lots of speculation (as evidenced by this and many other posts), and 2) I don't recall Commerce Clause fans reacting differently to Raich even though they hated the law.

[David Nieporent]

Congress can regulate abortion in the circumstance you describe, but I don't see how it can legalize it, if a state makes it illegal.

[Lee Moore]

Have the Feds ever actually sought such consent from State Legislatures ? And if so what form did the consent take ?

Seems to me at least tangentially relevant to the Independent State Legislature thing. Here is a role for State Legislatures which is obviously not legislative. Consequently if they have typically given such consent by passing a State law, that would bolster the argument that State Legislatures when performing federal constitutional tasks do so within the State lawmaking structure.

But if they just pass a resolution to grant such consent that looks more like the State Legislature acting in a federal role as a body independent of the rest of the State structure.

[Josh R]

I think Congress can pass a law which forbids any party, private or public, from preventing a woman from having an abortion.

[ReaderY]

Indecent appears in a disjunctive clause separate from the clause on abortion. If I gave you money for “food, clothing, or lodging,”it simply wouldn’t matter whether you or I thought food was a kind of lodging or not.