Texas Abortion Laws Don't Regulate Out-of-State Abortions

From today's decision by Judge Robert Pitman in Fund Texas Choice v. Paxton (W.D. Tex.):

[T]he Court will grant [Texas AG Ken] Paxton's motion to dismiss and grant the preliminary injunction in part. Specifically, the Court finds that while Paxton has enforcement authority under H.B. 1280, the statute does not regulate abortions that take place outside the State of Texas and cannot even be arguably read to do so.

By contrast, the pre–Roe laws do arguably proscribe Plaintiffs' desired conduct, and the Court finds that Plaintiffs have standing to sue the local prosecutors tasked with enforcing those laws. However, turning to the preliminary injunction, the Court finds that the pre-Roe laws have been repealed by implication [citing Judge Edith Jones' opinion in McCorvey v. Hill (5th Cir. 2004)] and will grant the motion in part to enjoin the named local prosecutors from enforcing the pre-Roe laws.

Part of the court's rationale for preliminary enjoining the pre-Roe laws (under the "balance of equities" prong of the preliminary injunction analysis) was that they restrict speech and fundraising about abortions and not just actually performing abortions:

[T]he harms to Plaintiffs are severe—they will be unable to fulfill their core organizational missions, their speech will be suppressed, and they may even be forced to shut down. Texas's interest, on the other hand, is relatively small. Abortion will remain illegal in the state regardless of this Court's holding. The extent to which Texas has a cognizable interest, if any, in preventing abortions which occur outside its borders is not decided by this Court today. Texas's interest in enforcing the pre-Roe laws is minimal because … they have long ago been repealed….

In addition, a preliminary injunction serves the public interest. Where constitutional rights are concerned, "enforcement of an unconstitutional law is always contrary to the public interest[.]" Absent injunctive relief, Plaintiffs' First Amendment rights—and those of Texans more generally—may be chilled ….

Note that charitable fundraising to support illegal conduct is likely to be constitutionally unprotected, I think. But here the court concluded that the fundraising was aimed at supporting legal conduct (since out-of-state abortions aren't legally forbidden by Texas law), and the Court has indeed treated fundraising for legal causes as constitutionally protected, see, e.g., Riley v. Nat'l Fed'n of the Blind (1988) (cited by the court on p. 19).

Comments

[ReaderY]

Why isn’t it legal to fundraise for, say, honor killings for people who can’t afford them? Honor killings are legal in some countries, let’s say legal in the jurisdictions where it occurs. So is fundraising for it only speech, and the First Amendment prohibits restricting it?

It’s an absolutely rediculous interpretation of the law. Nobody would apply such a rule to any conduct they actually considered wrong.

Texas can prohibit soliciting in Texas conduct that is illegal if done in Texas, whether or not that conduct is considered legal elsewhere. The solicitation in Texas is a violation of Texas’ peace and dignity. So it can damn well prohibit fundraising for it.

[defaultdotxbe]

It could invoke the interstate commerce clause, since you are fundraising for goods and/or services being sold in another state.

Your interpretation would allow a state to prohibit funding a hunting trip to Alaska to bag a moose, in a state where it is not legal to hunt moose (which would likely include any state where moose don't live) which seems to me an even more ridiculous interpretation.

[Roman Moroni]

I don’t know how likely it is that there are any moose laws in states without moose.

But maybe gambling and prostitution are better examples. I’ve seen commercials for Nevada casinos outside of Nevada. Although I don’t think I’ve ever seen any commercials for Nevada brothels anywhere, including in Nevada. I have no idea if there are laws on the books about it. But if there are, that might be relevant.

[Dr. Ed 2]

It's illegal to hunt Moose in Massachusetts because the population is too small. I suspect that is true in most states where it is illegal.

[Rev. Arthur L. Kirkland]

Let's see whether ReaderY's perspective changes when some advanced states criminalize bigotry. The list of organizations that would be forbidden to fundraise in states with educated, reasoning, accomplished, productive populations would be long and deplorable.

[ReaderY]

You’ll note that I defended California’s position regarding pork. I’m being completely consistent here. California could prohibit raising funds in California for pork produced in a manner it considered illegal if it wanted to.

[ReaderY]

Also, I’m definitely not saying a state can require its population to boycott another state. That would be very different All I am saying is that states can prohibit attempts to commit crimes in their state, by the usual understanding of what an attempt means, even if the deed is completed in another state.

[David Nieporent]

All I am saying is that states can prohibit attempts to commit crimes in their state, by the usual understanding of what an attempt means, even if the deed is completed in another state.

Attempting to have an abortion in (say) California is not "attempting to commit crimes in their state."

[Noscitur a sociis]

Why isn’t it legal to fundraise for, say, honor killings for people who can’t afford them?

Is it illegal?

[Armchair Lawyer]

It may not be. A better example may be something like assisted suicide

[EscherEnigma]

Can Alabama make it illegal for me --while in Alabama-- to turn to my husband and say "hey, give me $50, I want to buy a sex toy"?

[John F. Carr]

Based on skimming the order, the judge is carefully looking away from the doctrine that prohibits federal courts from ordering state officials to obey state law. He's in what Blackman called the epicycles era of jurisprudence, where abortion gets to bypass the normal rules.

Reading my tea leaves, the Fifth Circuit might certify a question to the appropriate state court asking whether the pre-Roe laws are repealed or not.

[Dr. Ed 2]

What Texas ought to do is copy what Maine's General Mills did and pass a law (or executive order) that anyone who has had an abortion in the past 12 months is not allowed to enter the State of Texas.

The justification for this would be the same as that of General Mills, which was upheld -- that they are conserving the state's finite hospital resources. And Mill's exclusion, that of anyone from a state with a higher COVID ratecouldn't enter Maine is less rational than saying that people who are actually at risk of abortion morbidity can't enter the state.

And like Maine, a Texas resident can leave and have an abortion -- she just can't come back for a year.

[Dr. Ed 2]

Rhode Island was stopping suspicious vehicles (with a NY plate) on highways and sending the National Guard after them. I don't see why Texas couldn't do this -- precedents are dangerous things...

[Bruce Hayden]

Texas is a bit larger than Rhode Island?

[Dr. Ed 2]

Both states have borders with other states, and highways that cross them.

[hoppy025]

If Texas can't ban abortions from taking place in New York, New York shouldn't be allowed to prohibit guns from being sold in Texas to New York residents. But to liberals, killing babies is a holy grail, so all other rules must yield to that.

[Rev. Arthur L. Kirkland]

But to liberals, killing babies is a holy grail,

If you have information about anyone killing a single baby, the sole reasonable course for a decent person would be to notify the relevant law enforcement authority without delay. If you do not have such information, the sole legitimate course for any competent adult would be to keep your superstition-addled right-wing bullshit to yourself and leave the reasoned debate to competent adults.

[Dr. Ed 2]

Kirkland, what does the word "abort" mean?

You can't possibly be this stupid.

[Dr. Ed 2]

A better example is a charity in NYC collecting money for NYC residents to buy guns in Texas.

[John F. Carr]

There is already a federal law limiting gun sales to residents of another state.

[Dr. Ed 2]

Hmmm, is it Constitutional?
Would a similar law on abortion?

[John F. Carr]

I remember some litigation over the law recently. The law was not struck down entirely. There is some disagreement over what it means to comply with Colorado law when buying a gun in Texas. The law in effect prohibits interstate travel to buy a gun you couldn't buy at home. But it's not worded that way. Here is ATF's summary (https://www.atf.gov/firearms/qa/may-licensee-sell-firearm-nonlicensee-who-resident-another-state): "Generally, a firearm may not lawfully be sold by a licensee to a nonlicensee who resides in a state other than the state in which the seller’s licensed premises is located. However, the sale may be made if the firearm is shipped to a licensee whose business is in the purchaser’s state of residence and the purchaser takes delivery of the firearm from the licensee in his or her state of residence. In addition, a licensee may sell a rifle or shotgun to a person who is not a resident of the state where the licensee’s business premises is located in an over–the–counter transaction, provided the transaction complies with state law in the state where the licensee is located and in the state where the purchaser resides."

[Dilan Esper]

It's worth remembering as well Kavanaugh's concurrence in Dobbs. There's a constitutional right to travel, which Kavanaugh says protects abortion. And he's the 5th vote in the Dobbs majority.

So it seems to me quite reasonable to say that getting an abortion out of state is constitutionally protected under current doctrine.

[Dr. Ed 2]

OK, you have a right to go out of state for an abortion, but you can’t return without posting a bond to cover any possible medical care you may require as a result of said abortion.

While a tax case, NH v MA is applicable here...

[Dilan Esper]

No it isn't.

[John F. Carr]

Will Kavanaugh recognize a right to drive to California, get an abortion, and come back? Will he recognize a more limited right to move to California and get an abortion there? Is a fetus more like personal property or a marriage?

Will he recognize a right to move to California and get an abortion there only with her husband's consent? I suggest this by analogy with the rule distinguishing divorces from dividing up the marital estate. If a woman moves to California and gets divorced, she is legitimately divorced but the court does not have jurisdiction to dispose of her husband's property.

[Dr. Ed 2]

It's actually worse than that -- I know someone whose wife abandoned him and moved to Rhode Island, and he moved to Nevada and became a Nevada resident, and got a divorce there.
He then moves back here and his wife somehow nullifies his Reno community property settlement.

[Dr. Ed 2]

"Will Kavanaugh recognize a right to drive to California, get an abortion, and come back? .... Is a fetus more like personal property or a marriage?"

Arguably, a fetus is more like a disease.

My point is that a state was given the power to restrict travel into the state so as to conserve its medical (hospital) resources during the COVID hysteria, and thus a state has the authority to restrict travel into the state so as to conserve medical resources.

A woman who has had an abortion is pathogenic in that she could have complications that the state (she is entering) would have to treat -- and is statistically more likely to than random people entering a state locked out on the basis of statistics.

Hence she would have the right to go to Cali and get an abortion, but not to return to Texas until she could certify that she had fully recovered from the abortion.

Or would Texas be able to ignore Federal ER law and just toss her back out on the sidewalk and let her die?

[ReaderY]

Whatever Dobbs means, and it doesn’t in any way require states to regard fetuses as persons, it does mean that Texas can give fetuses the same protection California can give pigs. I think California is entitled to restrict its citizens from getting “animal abusive” pork from out of state. And I think Texas can do the same with fetuses.

Congress can pass a law regulating the matter one way or the other. Under current precedent it can regulate how pigs intended for sale are raised, and under older precedent it can regulate interstate travel for purposes of abortion It can regulate drugs, including abortifacients, as articles of commerce. I don’t think it should be able to regulate non-drug abortion directly, but maybe under current precedent it can.

But unless and until Congress acts, states are free to act.

[ReaderY]

Suppose a person in State A, standing near the state line, fires a gun and kills a person in State B. Is it a crime in State A? Nobody was killed in State A. Is it a crime in State B? Nobody did anything in State B.

Now, suppose somebody solicits the murder. Protected by the First Amendment?

[Dr. Ed 2]

This was actually a question in my International Law class.

A is in Maine and shoots B who is across the river in New Brunswick, Canada. A is a German citizen and B is a French citizen. Which country can prosecute the crime?

As I remember it, the answer was any of the four could, but the realistic answer was the US because they have physical custody of A -- unless there are extradition treaties at which point the language of such would be governing. I don't remember about double jeopardy.

[David Nieporent]

This is like asking a squirrel that's high on meth to solve a quadratic equation.

[myself]

Interesting, though I'd expect Canada to extradite and prosecute the offender since the major component of the crime was committed there, and therefore Canada has the clearest claim to injury and proximity to the crime.

[KenveeB]

A state has jurisdiction if any element of an offense occurs within the state. The death of the person is an element, so they'd have jurisdiction if the death occurred in their state, even if the person fired the shot across state lines. Depending on how the murder law is phrased, firing the gun with the intention to kill someone might be an element, so that state would also have jurisdiction. Not really a difficult question. We deal with crimes all the time that happen in multiple jurisdictions. Usually whichever jurisdiction with the strongest connection to it will prosecute the case.