"In a Post-Roe World, Can States Prevent Women From Seeking Abortions Out-of-State?"

We are at most a three months away from determining what the Supreme Court will do in the major abortion. There is a game in predictions, but at this point, we can also just wait.

The assumption, including by some law professors who are well informed about the specific subject matter, is that it will be a broad attack on abortion rights. This to me is many things, including surprising.  Less so with a sixth vote, yes, and I hoped Ginsburg would live long enough to avoid that. 

Meanwhile, states have already started to push the envelope. Five members of the Supreme Court has provided an opening for them to do so by allowing SB8 to stay in place, even though it is patently in violation of Planned Parenthood v. Casey.  Chief Justice Roberts  before the beginning of this term joined the liberals to show there is no actual good reason to do this.  Faux restraint in fact is a threat to judicial and constitutional values.

One proposal, and this is all it is, suggests you can apply SB8 type laws to abortions performed in another state.  The logic of the bill is broader as those who warn about these sort of things note.  "Abortion" here can include use of morning after pills.  In theory, why not birth control?  

Prof. Dorf, a reliable liberal, notes that it is not actually fully clear that such "long arm" attempts are unconstitutional in all cases.  I'm willing to take that as a hypo; of course, there is also the basic reality that law is in flux.  Still, I wonder both on principle grounds (Thomas and maybe Gorsuch) and pragmatic grounds (Roberts and maybe Kavanaugh), you would get (granting the liberals are safe) five votes here.  

Professor Kreimer, however, does to me make a strong argument. I checked out the third article cited, and find his constitutional argument rather convincing.  It sounds like the guy is more open to federalism with local discretion than I would appreciate (shades of Prof. Hills, who does at least leave comments open) though it's somewhat hard to say from one article. 

All the same, the argument is pretty good.  Prof. Dorf quotes from a reply that argues the limits on extraterritorial reach here has various caveats. Again, I won't claim to say I went into the weeds.  It also seems somewhat theoretical.  At the very least, there seems to be a general understanding that what Missouri might do here is rather dubious.  

Prof. Dorf's wariness of taking the Bigelow v. Virginia language too far also does not convince.  (The article also covers the case.)  For instance, the basic issue in U.S. v. Guest is the reach of federal power and it is argued that protecting the right to travel offers a reason for its legitimacy.  

The article again goes into more detail here. It also gives a good twist on the privilege and immunity issue  [both the Art. IV provision (these days seen as a sort state equal protection provision) and the 14A, setting up a clear national right of citizenship].  If Missouri leaves open a Missouri citizen to be specially liable for an abortion in Illinois, basically there would be two classes of citizens in Illinois.  

The hypos Prof. Dorf offers makes me wonder but actualities. It seems unlikely that parents never got into trouble for harming their children while on vacation in another state.  What happens in such scenarios?  

I would think that the vacation state would be the one with criminal jurisdiction. OTOH, if the parent takes the child back, the home state would be concerned about someone in their state now.  Out of state action, like speech in discrimination suits, very well might be relevant.  

We would not likely have a state that does not prosecute murder. The real issue there is likely borderline cases.  Is the act truly murder or involuntary manslaughter or something.  Maybe euthanasia issues would arise.  Again, did this never come up?  I would like to know the specifics. 

Consider Burr and Hamilton.  Let's say a state allows duels and two duelists go there to avoid local murder laws.  Can the foreign state prosecute the duelist?  What if the person killed was a state official? Did this never arise?  I know one or more states did things like deny duelists to practice law or something.  A privilege of state citizenship there could be (I reckon) based again on out of state action.  It is an active state issue. 

My opposition to some absolute rule would arise in part since there seems to be some situations where a state actively regulates people as they travel. Consider a governor who on an out of state junket bribes someone.  Or, a licensed doctor.  Stripping them of their license for an out of state abortion seems okay.  If the abortion is not protected.  

I don't say this with full assurance, but it does not seem outrageous.  OTOH, a more open-ended attempt to penalize someone for out of state conduct is a lot more troubling.  What power do states have over things that occur elsewhere as an open matter?  As the article notes, this simply was not accepted as a general matter, for a variety of reasons.

My one note of concern here might be that there is some power of the federal government over acts internationally.  OTOH, they have express powers to do so, including matters of interstate commerce.  The feds have power over the nation and the world to some degree.  

The Slaughterhouse Cases also references a right of U.S. citizens to have protection abroad.  I assume some might argue individual states should have the power to protect their own citizens in other states.  But, the Constitution already protects them -- states protect their own and must treat travelers equally.  And, the feds protect the people as a whole.   

The Constitution provides very limited interstate reach to state power.  States had some obligation to at least not (wrongly) interfere with the retrieval of fugitive slaves.  This was not left to implication. The same applies now with fugitives generally.  And, even here, there was a strong argument that this was a duty that could not be compelled by force.  A sort of "comity" that the states would follow by "gentlemen agreement."

If even that limited issue had to be spelled out, the power of Missouri to make people liable for large civil suits (and in theory arrested) for abortions in New Mexico seems constitutionally a bit outrageous.  

The hope would be that two members of the Supreme Court conservative wing, on principle or pragmatics, would realize this. I realize some find that as very naive.  Still, these people are not just robots.  There is some nuance. Justice Thomas, for example, accepted California's power to allow intrastate marijuana use.  Yes, abortion is religiously laden though then so is the war on drugs for many people.   

We will see where this all leads.  I think on some level absolute lines tend not to work here.  But, this is not some fine line issue.  It burdens another state from equally allowing certain health care and so on.  

What is the state interest in doing this?  Some general interest to protect life in Missouri is cited in the articles (if you follow the links).  What is the stopping point there? I would think some might think a bit more narrowly, perhaps arguing the "father" of the "child" has a right to defend here.  

Going by Kavanaugh's argument during the Dobbs argument, the Constitution allows local options in this case.  Why should one state reach cross state lines in this fashion and interfere with how the other state chooses?  Again, various problems arise.  At best, quite narrow cases should be allowed here.  This does not seem to be one of them.

But, reasonable results is not guaranteed with the tainted six.  So, we shall see.  I would note that this would also be a logical issue for Republicans in the U.S. Congress to regulate.  At least there, the Congress has some clear interstate reach.  

It's somewhat defensible such as some law that targets someone that wrongly helps someone cross state lines for some wrongful act such as [goes the argument] helping a teen to obtain an abortion without parental involvement. 

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Supreme Court: They are on a bit of a break with the next conference coming 3/18.  Will see if anything pops up before then. 

After writing this entry, I see there is a bit of news -- the current limited seating and live audio will be continued for March arguments.  Maybe, someone can ask Jackson if she will post her public speeches on the speech page of the website.