> Regardless, Texas cannot hold you liable for an abortion that you get performed in another state.
Texas can do whatever the US Supreme Court allows them to do, and if you think well-established Constitutional precedent is a firm guide on that...how do you think they have the ability to ban abortion in Texas in the first place?
But even under established precedent, I don't think it's at all clear that they cannot punish you for anything you do while in Texas with the intent of getting an abortion, even if the actual abortion is performed outside of Texas.
And even if they can't (based on what the courts will eventually decide) punish you, they can arrest you, charge you, try you, convict you, sentence you, and send you to prison, possibly awaiting execution, before your case is even ripe for appeal.
>It seems pretty clear to me that in your scenario Texas wouldn't have jurisdiction over anything that happens outside its border.
States enforce laws across state lines all the time, doing so for abortion - now considered a crime - would be no different. Several states, including Texas, have or are attempting to pass laws making it illegal to cross state lines to obtain an abortion. South Carolina is banning websites which describe how to get an abortion. So this affects not only freedom of travel, but freedom of speech.
> > In this case, they’re trying to get their own law ruled unconstitutional so that SCOTUS will have to agree that the TX abortion law is, too.
> I dont think that is true.
It was approximately true when the law was adopted, before Roe was struck down. Specifically, they were trying to present a situation where the Court would either be forced to rule that the mechanism the Texas law used to try to avoid federal court review of the substance by calling it something other than state action would be ruled as not serving that purpose, or states would be free to do whatever they want by the same method, including things that judges that preferred avoiding reaching the merits of the Texas case given Roe would not approve of.
With Roe overturned, that fork no longer works to protect abortion rights, but that was the (fairly overt) purpose of the law. And it still works on other things, and other states have either adopted or discussed using the Texas mode to attack other rights which remain federally protected that California would have the same issue with by the same means Texas used on abortion, so the basic concern is still active even if the particular issue is less so.
> The Supreme Court neither banned abortion nor prohibited the legislature from protecting the right to abortion. It merely decided that it is not currently protected by constitution, which to me seems completely correct.
The Supreme Court includes multiple justices put there in no small part due to lobbying by conservative faith groups, and as part of their lobbying plan, several states have trigger laws on the books that immediately make abortion legal in many states. The Supreme Court’s decision is the immediate cause of these “trigger laws” going into effect. It’s a part of a larger concerted effort, so this is a distinction with little difference for anyone living in these states or who may find themselves sued in Texas for providing abortions to a Texan who crossed into their state.
There is no Federal law governing abortion. State law governs abortions, subject to Roe v. Wade and subsequent cases that provide a Constitutional right to abortion within certain parameters that the States cannot abrogate.
The Supreme Court is already considering a Mississippi abortion law case (Dobbs v. Jackson Women’s Health Organization, nr. 19-1392) that, depending on the outcome, could significantly curtail this right, possibly lowering the deadline to 15 weeks. The decision is expected in June.
> There is a zero percentage chance the Supreme Court re-hears the [Texas] case on abortion.
If they do, will you come back and admit you were wrong?
> The fact the Texas legislature came up with that completely ridiculous scheme is not that surprising. They just aren't that good at making laws
They are very good at making laws to do what they want (in this case, leverage precdent
to ensure that that wfeffoets to block the law before it went into effect did not succeed, maximizing the chilling effect on abortion provision).
> That the Supreme Court basically rubber stamped it is absolutely insane.
The Supreme Court did not rule on the legality of the law (either the abortion restriction or the enforcement mechanism), it only validated the Texas Legislature's attempt to avoid a pre-implementation block against the law. While this enables the chilling effect of the law, it does not validate the substance of the law.
> That the Supreme Court basically rubber stamped it is absolutely insane.
If you want an outcome-oriented reasoning explanation, I’d say the majority wanted to set back the availability of abortion without overturning row; indeed, while likely still upholding it once a case reaches it through the slow path it has required.
> There is no way this can be upheld, right? How on earth can citizens of state 1 go after citizens of state 2 for something that's legal in state 2?
Yes, it’s insane. But I don’t have faith in our courts to not split this hair and allow it for abortion specifically because they are so clearly partisan on social issues here.
Even without the insanity of the Texas law though, it’s still a huge issue for poor women in red states.
> Who decides when the will of a state's majority is "democracy at work" and when it's "persecution of the minority violating equal protection"?
The federal government passes laws, or a constitutional convention passes amendments, and federal courts interpret them. The 14th amendment was interpreted to apply this protection before but now it is not.
> The Texas law forbids people from getting abortions in other states, where people have no representation in the Texas legislature by giving Texas citizens the right to sue them in Texas courts.
There is no way this can be upheld, right? How on earth can citizens of state 1 go after citizens of state 2 for something that's legal in state 2?
> More generally problematic, your view would let any state persecute a minority of voters in that state and bind the federal government from guaranteeing equal protection to all Americans.
Who decides when the will of a state's majority is "democracy at work" and when it's "persecution of the minority violating equal protection"?
> Texas will claim jurisdiction since in its eyes a citizen was murdered.
But this just isn't how it works, right? "Claiming" jurisdiction I mean. Take your previous example but instead imagine the woman from Texas took a trip with her husband to New Mexico and paid a hitman to murder him during the trip. The suspected hitman would most certainly be arrested on a layover in Texas (or any other state) but that state wouldn't have jurisdiction to prosecute for a murder that happened in New Mexico. The suspect would instead be extradited to New Mexico to face charges there.
> Would you be willing to risk arrest if you were a doctor in New Mexico and a Texas resident comes to you for an abortion? Even the threat of arrest has consequences on peoples’ actions.
I certainly agree there and definitely cannot speak to the risk assessment that abortion providers might unfortunately be contending with but I can't imagine that this will remain a question for long. Federal courts definitely do not like legal ambiguities between states.
> This situation would absolutely never happen, and I think it’s blatant fear mongering.
On the contrary, Texas in particular has gone out if its way to incentivize its citizens reporting other citizens for getting abortions. The law in that state creates an incentive for someone with the ability to do this, to do so.
What's special about the situation in Texas right now where humans at large will not follow the incentives placed in front of them for the first time in human history?
>In this case, they're trying to get their own law ruled unconstitutional so that SCOTUS will have to agree that the TX abortion law is, too.
I dont think that is true. The SCOTUS didn't rule on the constitutionality of Texas's citizen enforcement.
>The U.S. Supreme Court's ruling in Whole Woman's Health v. Jackson, leaves abortion providers without any possible defendants to sue in a federal pre-enforcement lawsuit challenging the constitutionality of SB 8, because there are no state officials charged with enforcing the law.[1]
>Personally, if I lived in Texas, I wouldn’t move either. I’d just get on a cheap flight out of state and get the abortion.
They're trying to make that illegal too. They've already made it law in a couple of states (and are in a court case on whether it's constitutional), IIRC.
And if you can't afford a plane ticket then anyone who provides financial assistance or provides transportation themselves for the express purpose of getting an abortion, well they're accessories to the abortion too.
> The abortion issue in Texas is being driven by the current executive branch - and it won’t last.
Chances are good it'll last long enough for people to become sterilized (or worse) due to an inability to get an abortion. That ought to be enough reason to avoid the state, especially when there are states where these sorts of laws would never even be considered.
> Abortion is, fortunately, always a choice in the US.
Legally, it is sometimes a choice in America (many states have restrictions, both within the bounds which have previously been found constitutional by the federal courts and in many cases outside them and likely to be challenged in the future, but enforced until such a challenge happens and succeeds -- and there is no guarantee that a challenge will succeed, even if the precedent suggests it should.) Practically, it is even less of a choice than it is legally, due to various factors, including the restrictions, driving abortion providers out of large swaths of the country.
>There is no way this can be upheld, right? How on earth can citizens of state 1 go after citizens of state 2 for something that's legal in state 2?
I'm pretty sure it will be seen as a violation of the constitution's interstate commerce clause, which gives that authority exclusively to the federal government. However, it is possible that a pro-life administration would institute an order that does make it illegal to cross state lines for an abortion, similar to how sex tourism is illegal.
> States are not allowed to restrict interstate travel,
States can restrict interstate travel for...well, lots of reasons, and preventing what state law defines as murder is certainly one of them, but there are limits on the burdens they can impose on travel.
> And they cannot punish you for a thought-crime, meaning they cannot arrest you under the supposition that your travel is arranged with intent to get an abortion outside their jurisdiction.
States absolutely can punish for the combination of intent and action.
They can also punish under their laws a crime whose culmination happens outside of their borders when some part of it occurred within their borders.
If a state can define a fetus as a person who can be murdered, they can absolutely make it illegal for someone to transport that person to any place (inside or outside the state) for the purpose of killing them.
> The Supreme Court neither banned abortion nor prohibited the legislature from protecting the right to abortion.
Which means that New York, California, Massachusetts will retain abortion access. And Texas, Indiana, will remove abortion access.
This sounds like States rights is actually working.
But the media is distorting the overturning of Roe vs Wade with the sensational claim that “Abortion is banned in the US”.
No, it’s not banned. This just means Texas and New York have differing policies with regards to abortion access. Yes, 46 million women living in conservative states will lose access to abortion, but not all of those women are liberal quite frankly. Moreover, those states are exactly that: conservative. And the Conservative Majority of that state isn’t required to accommodate the views of the Liberal minority of that state.
Just like the Liberal Majority of California isn’t required to accommodate their Conservative Minorities.
That’s the nature of how US Democratic institutions were built.
Sounds fair to me and the Supreme Court made the correct decision by returning that authority back to the states.
> I am a bit of a noob when it comes to American legal system and also the following of precedence. So let’s say if a small town in Texas decides x is legal or not legal, does that mean the rest of the country has to follow?
"Precedent" applies in courts, not in legislatures. A small town may decide that X is legal or illegal, and the validity of that declaration depends on its scope.
Speed limits? Go right ahead.
Banning religious or ethnic minorities from city limits? Not a chance.
Higher levels of government generally override lower levels of government. A state law absolutely wins versus a local resolution, for example. A federal law usually wins over state law, but the federal government has limited jurisdiction over local matters. The federal government can't make it illegal (for example) for a state to teach creationism in public schools, but it can make federal funding contingent on it. That's a carrot rather than a stick.
The US constitution sits at the highest level of the hierarchy, and no government may enact laws that conflict with it. This is (mostly) where the Supreme Court comes in.
At the moment, a limited right to abortion is constitutionally protected. However, the argument behind the Texas law is that it isn't infringing on the right, it's just allowing people to sue each other about it (whereupon the individual case will need to be heard separately and possibly appealed). Constitutional rights apply against governments, not individual people.
The proposed California law would apply this reasoning to firearms, which is another constitutionally-recognized right.
From here, you can see why critics of this technique are worried. If it's okay for people to sue each other over the exercise of otherwise-protected rights, then that can frustrate the very existence of those rights.
> I can see in a constitutional framework it may be useful to have an unelected body decide to interpret the constitution but other than that it just really looks to me an overreach for unelected individuals to irreversibly decide whether someone I know can have abortion or carry guns
That first part of your claim -- an unelected body interpreting the constitution -- is exactly what's happened. The right to carry firearms comes from the second amendment, and the right to abortion derives from the right to privacy that is implied by (and necessary for) the Bill of Rights; the reasoning ultimately comes from Griswold v Connecticut (https://en.wikipedia.org/wiki/Griswold_v._Connecticut), which held that married people have a right to use contraceptives if they wish.
> it is a less than ideal solution but that cannot be illegal, right?
First, we don’t know. The law is deliberately written in a vague and obtuse manner precisely to raise these kinds of questions so that everyone will avoid getting the procedure, except for those with the means and cover to not be harmed by the consequences of someone finding out. There’s an open question, for instance, if the driver of a cab taking someone to the airport to board a flight to a state to get an abortion would be deemed “aiding” the person.
Second, even if it isn’t, requiring someone to leave a state to exercise a right is generally considered not good under our federal system. All rights come with limits (exactly what limits are somewhat up for debate when it comes to any particular right) but, in general, current legal standing is that a person has the right to an abortion prior to the fetus’ viability. The states should not be attempting to restrict further than that.
Texas can do whatever the US Supreme Court allows them to do, and if you think well-established Constitutional precedent is a firm guide on that...how do you think they have the ability to ban abortion in Texas in the first place?
But even under established precedent, I don't think it's at all clear that they cannot punish you for anything you do while in Texas with the intent of getting an abortion, even if the actual abortion is performed outside of Texas.
And even if they can't (based on what the courts will eventually decide) punish you, they can arrest you, charge you, try you, convict you, sentence you, and send you to prison, possibly awaiting execution, before your case is even ripe for appeal.
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