US Supreme Court overturns abortion precedent

Discussion in 'World Events' started by James R, Jun 27, 2022.

  1. sculptor Valued Senior Member

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    Does taking mifepristone and misoprostol. work after 11 weeks?
     
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  3. Sarkus Hippomonstrosesquippedalo phobe Valued Senior Member

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    It would surely be the same as if Utah tried to criminalise people going to Las Vegas and gambling, wouldn't it? Utah currently does not legally allow gambling, while in Las Vegas it (or at least some forms of it) is legal.
    I'm not sure this is a relevant precedent, though, is it? The Fugitive Slave Act 1850 was passed by Congress and was thus the law of the land - i.e. all states had to abide by it. It's not a case of one state writing a law for their state and this law requiring another state act on it.
    Sure, if Congress pass a Bill that says it is illegal for other states to perform abortions on citizens registered in non-abortion states, then every state would presumably have to abide by it. But this would be an Act of Congress, not just a State law.
    Furthermore, the "crime" covered by the FSA 1850 surely was committed in the origin state - i.e. escape from slavery. The escape wasn't committed only once they crossed borders, as they didn't "belong" to the state but to the slave-owner. The "crime" was escape from the slave-owner, not the state. So the Act merely required the other state to return the person to the state in which the crime (escape) was committed. Again, this makes your precedent not really applicable, doesn't it? Or am I missing something?

    With abortion, the "crime" will be committed outside the state's jurisdiction. Any effort by that state to require another state to act would, as said above, be like Utah trying to criminalise their citizens for going to Las Vegas and gambling.

    Now, that said, there may be ways to word a state law that might criminalise not the abortion itself (an act that would happen outside of the state) but the result of the abortion - i.e. the not carrying to term of a healthy pregnancy. i.e. something related to it that would necessarily happen within the state, for which they could then prosecute. Just throwing out the idea, and with no idea how practical or even possible it might be.
     
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  5. RainbowSingularity Valued Senior Member

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    the burden of proof would be on the state to prove beyond reasonable doubt that the woman was pregnant before she went to the other state.
    & the state would need a search warrant to access medical data
    and a judge would need to sign that off

    & the woman could claim no taxation without representation and show the state making abortion illegal, is not offering free medical services in exchange for the law.
     
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  7. Bells Staff Member

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    But how would they know?

    Most importantly, they can't exactly prevent someone from traveling if they are pregnant or may be pregnant. Blue states have already passed legislation to protect abortion providers and doctors who may prescribe the abortion pill or who may help someone access an abortion from out of state. The point of sending it back to the states is to protect state rights and to allow states to enact laws regarding access within the boundaries of each individual state. It does not allow them to prevent women from traveling. Americans have a right to travel within the country. Accessing medical care from another state is well established in the US. To ban one would be to ban all and accessing abortion is medical care. So do you think they would be willing to do that?

    It's established that a state cannot prosecute someone for something that happened in another state.

    A State cannot punish a defendant for conduct that may have been lawful where it occurred. Gore, supra, at 572; Bigelow v. Virginia, 421 U. S. 809, 824 (1975) ("A State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State"); New York Life Ins. Co. v. Head, 234 U. S. 149, 161 (1914) ("t would be impossible to permit the statutes of Missouri to operate beyond the jurisdiction of that State . . . without throwing down the constitutional barriers by which all the States are restricted within the orbits of their lawful authority and upon the preservation of which the Government under the Constitution depends. This is so obviously the necessary result of the Constitution that it has rarely been called in question and hence authorities directly dealing with it do not abound"); Huntington v. Attrill, 146 U. S. 657, 669 (1892) ("Laws have no force of themselves beyond the jurisdiction of the State which enacts them, and can have extra-territorial effect only by the comity of other States"). Nor, as a general rule, does a State have a legitimate concern in imposing punitive damages to punish a defendant for unlawful acts committed outside of the State's jurisdiction. Any proper adjudication of conduct that occurred outside Utah to other persons would require their inclusion, and, to those parties, the Utah courts, in the usual case, would need to apply the laws of their relevant jurisdiction. Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 821-822 (1985).

    Link: https://supreme.justia.com/cases/federal/us/538/408/#tab-opinion-1961225


    In striking down Roe, the courts intent (aside from the obvious) was to revert control back to individual states. And while some states are weighing laws that they could enact to make it illegal to access an abortion in another state, they aren't getting far, are they?

    For example, Missouri attempted to pass a law that would allow people to sue individuals or others who aides a woman to access an abortion in another state. It didn't get far and was struck down. Because consider the consequences. Are they going to sue airlines, train and bus services, car rentals, individuals who may recommend they go interstate, etc?

    Given how insane this situation is, I wouldn't be surprised if they tried to do something even crazier, such as preventing pregnant women from accessing an abortion in another state or charging or suing women who travel interstate for an abortion, but it will open up another can of worms about people's rights when it comes to basic movement in the whole country.

    “The supreme court does not have well-developed case law regarding extraterritorial application of state law,” he added in an email. A court that has gone so far as to overturn Roe, he said, “would likely take that unclear precedent in the direction that is most anti-abortion.”

    But banning travel would go against “basic American principles”, he said. “You have freedom of travel in this country, and as long as you’re following the law in the state where you are, you are legally OK” under current law. For instance, adults can gamble in states where it’s legal, even if they’re from states where it’s not allowed.


    Link: https://www.theguardian.com/world/2022/may/03/us-abortions-travel-wave-of-restrictions
    Doing so, would be an insane legal shift, no?

    I mean, for example. If you visit Texas from New York and you drive over 60mph. In New York, the speed limit is 50mph (this is just an example, I neither know nor care about the speed limit in NY - this is for any reader who may be pedantic about this). When you return to New York, would you be fined? The answer is no. It's for the same reason that people under 21 who travel to another country, drink, aren't charged with underage drinking when they return to the US.


    There are also precedents in preventing states from charging or suing people for committing acts that are legal in other states. Gambling is one such example. One state cannot force another state to change their laws to match their own. The whole argument in Dobbs ruling was to essentially turn it back to individual states - applying states rights within their own borders.

    Which is why I am questioning the legality of charging or suing or even preventing women who travel interstate for a procedure that is legal in that state.

    One thing that could be worth keeping an eye out is whether they would charge a woman or anyone who helped her travel for an abortion, if she returns to her home state where it is illegal, develops complications and has to go to a hospital (say if she went interstate to access an abortion pill, goes home and then develops complications).
     
    Last edited: Jul 18, 2022
  8. parmalee peripatetic artisan Valued Senior Member

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    I was imagining something akin to what Sarkus posits above:

    It's hard to imagine what precisely that might be. However, while creativity and outside-the-box thinking are hardly the strong suits for fascists and right-wingers generally--they kinda are, frankly, when it comes to committing truly heinous and evil shit!

    Incidentally, that is an observation which Karlheinz Stockhausen made repeatedly over the course of his life, and it was almost universally misread by critics--even those who were typically sympathetic towards him. Essentially, they thought he was praising fascists; whereas he was simply observing that what little latent genius or brilliance fascists, who are typically conservative and unimaginative in their thinking, may possess, almost universally manifests in the worst possible ways.

    (Apologies for the run-on sentences: I've had a migraine for two days.)

    Again, it's hard for most reasonable people, I suspect, to conceive how Red states might construe whatever "crime" as having transpired within their confines, that kinda thing is what they're really good at.
     
  9. Quantum Quack Life's a tease... Valued Senior Member

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    Personally, as a strategy, the focus should now be on how the relevant Governments pay for the consequences of their laws. For instance the cost of raising children to adults, the medical bills, the stress and trauma associated with their enshrining the loss of self determination for the women etc etc... I figure that once the bean counters work out the actual cost the laws will very quickly find the round filing cabinet.
    It is disappointing that at a time of painful and exhausting consideration by the women in question that they have to deal with such nonsense.
     
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  10. Neddy Bate Valued Senior Member

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    My thoughts exactly. It is troubling to me that the SCOTUS made sure to first rule that the Texas bounty hunting scheme was constitutional, even though they knew that later they would throw Roe back to the states. I can't help but suspect they were probably scheming some legal groundwork to further their forced-birth ideology on people who travel out of their red state for such purposes.
     
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  11. Neddy Bate Valued Senior Member

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    I don't think red states have ever cared that their policies wreak havok on the poor, or people of color. They consider that a plus.
     
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  12. RainbowSingularity Valued Senior Member

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    medical access is controlled by insurance company's
    the other state paying for the procedure inside a state that abortion is illegal may not be illegal.
    like servicing a loan for gambling debt
    e.g
    can a company be sued(prosecuted) for lending money to someone who has gambled the money away in another state where gambling is legal ?
     
  13. Tiassa Let us not launch the boat ... Staff Member

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    Usually, the Spooner joke isn't so direct:

    The anti-abortion law that just got resurrected in AZ was part of a code that also said no Black, Indian, or Asian could testify against whites, forbade all marriages between whites and non-whites, and defined the age of consent to be just ten years old.

    (Jay Kuo↱)
     
  14. Tiassa Let us not launch the boat ... Staff Member

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    Satanists to the Rescue

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    The Satanic Temple is suing to overturn abortion bans in two states according to a claim of religious freedom.

    Per Axios↱:

    Why it matters: The temple is one of several organizations suing to block state laws that almost entirely ban abortions.

    • The temple, a nontheistic religious group that often gets confused for the Church of Satan, has used religious freedom arguments in a similar lawsuit challenging Texas' abortion ban earlier this year.​

    The other side: A spokesperson for Indiana Attorney General Todd Rokita told the Indianapolis Star the U.S. Supreme Court decided abortion isn't protected under the Constitution. "This new lawsuit merely offers weaker arguments for the same discredited right," the spokesperson said.

    Details: In latest lawsuits, the temple argued each state's ban violates the rights of people who took contraceptives and still became pregnant, denying the right of an "involuntarily pregnant woman" to engage in the "Satanic Abortion Ritual."

    • The temple's ritual includes the tenet, "One's body is inviolable, subject to one’s own will alone."​

    The temple accused the states of violating the 13th Amendment, discriminating against impregnated contraceptive users and the states' own religion protections.

    • The temple also accused the states of unconstitutionally "taking the property of involuntarily pregnant women" (i.e. their bodies) without just compensation, noting that people get paid thousands of dollars to be surrogates, per court documents.​

    Obvious sarcasm: This ought to go well.

    Counterpoint: Still, though, they are doing their part.
    ____________________

    Notes:

    Solis, Steph. "Satanic Temple goes after abortion bans". Axios. 3 October 2022. Axios.com. 4 October 2022. https://bit.ly/3MeCfkv
     
  15. Michael 345 New year. PRESENT is 72 years oldl Valued Senior Member

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    Obvious sarcasm or not I hope it does go well

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  16. Tiassa Let us not launch the boat ... Staff Member

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    I hope it goes well, but in truth I would expect some serious assclownery from one or another court. Gay marriage should have been a First Amendment issue, for instance, but things didn't work out that way.
     
  17. Tiassa Let us not launch the boat ... Staff Member

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    Georgia Judge Makes the Point: State's Six-Week Abortion Ban Struck

    The lede, via Georgia Recorder:

    Abortion is legal again in Georgia – for now – after fetal cardiac activity is detected, which is usually after about six weeks and before many women know they are pregnant.

    The six-week ban had been in effect since July but was thrown out Tuesday along with a requirement that physicians report to the state Department of Public Health when an abortion qualified under the state's narrow exceptions, such as in the case of rape if a police report has been filed.

    In his ruling, Fulton County Superior Court Judge Robert C. I. McBurney called the provisions "plainly unconstitutional" because they passed in 2019 and before the U.S. Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization ended the federal protection to abortion access.

    "Under Dobbs, it may someday become the law of Georgia, but only after our Legislature determines in the sharp glare of public attention that will undoubtedly and properly attend such an important and consequential debate whether the rights of unborn children justify such a restriction on women's right to bodily autonomy and privacy," McBurney wrote in his ruling.

    As is, the restrictions passed three years ago "exist on paper only," he wrote.

    "They were and are void and must be re-enacted in our post-Roe world if they are to become the law of Georgia," McBurney wrote.

    This is something of a technical ruling: It's one thing if Dobbs makes it legal to pass certain laws, but that doesn't mean prior laws were somehow in effect. That is, the laws at hand don't work, but the legislature can easily fix that.

    On page four of his decision, however, Judge McBurney made a certain point in a footnote:

    The State argues that Dobbs reflects no change in constitutional law "because there was never a constitutional right to abortion," (Defendant's Response at 2; emphasis in original). Except there was. For 50 years. And we know it because the very same Supreme Court told us so. Repeatedly. Those prior pronouncements carried no lesser effect and were entitled to no less deference in Georgia or anywhere else in the Republic than that which we must all afford the Dobbs decision. Dobbs is now the law of the land; this Court and every other court in America are bound to apply it faithfully and completely. Yet Dobbs' authority flows not fromsome mystical higer wisdom but instead basic math. The Dobbs majority is not somehow "more correct" than the majority that birthed Roe or Casey. Despite its frothy language disparaging views espoused by previous Justices, the magic of Dobbs is not its special insight into historical "facts" or its monopoly on constitutional hermeneutics. It is simply numbers. More Justices today believe that the U.S. Constitution does not protect a woman's right to choose what to do with her body than did in that same institution 50 years ago. The new majority has provided our nation with a revised (and controlling) interpretation of what the unchanged words of the U.S. Constitution really mean. And until that interpretation changes again, it is the law.

    Sometimes people treat politics like they're watching a sporting event they don't know much about, and maybe it's interesting to watch the players run around, but the game is a mystery. In the history of political equivocation, the scorching McBurney lays on the Supreme Court of the United States is illustrative of the difference. Sure, one side says something, and the other side says something else, but what the judge is doing here is observing the distinction between the two.

    †​

    When logic fails, fallacy works well enough for some. Ceteris paribus is not necessarily in effect. The short form is that when traditional power faltered, egotism led people to the comfort of fallacy, so when the basic two plus two of the law met unsparing sunlight, tradition blinked and flinched and faltered. Unable to justify themselves, they accepted the only explanation left, that the other side was just making it up as they went.

    The conservative majority on the Supreme Court is similar. Women have rights? Only because they say so. Gay people have rights? Only because they say so. Thus, the way to correct these problems under law is to simply say so; thus the Supreme Court set aside precedent and custom so that conservatives could make believe and enshrine their fantasies into law.

    Or, y'know, maybe. It really does seem like a strange explanation for prestigious behavior, but it fits the circumstance better than presuming all things are equal, and that one argument is as valid as the next simply for the fact of existing.

    Judge McBurney, being stubbornly old school insofar as he chooses to abide precedent, custom, and history, parses the distinction well. It is not a matter of facts or insight or clairvoyance, but, rather, that a majority of nine people believe human rights are too good for women.

    And if it only took all this for a judge to come right out and say it, he never should have needed to.
    ____________________

    Notes:

    McBurney, Robert C. I. "Order on Motion for Partial Judgment on the Pleadings and Motion to Dismiss". Sistersong Women of Color Reproductive Justice Collective v. Georgia. Superior Court of Fulton County. 15 November 2022.

    Nolin, Jill and Ross Williams. "Fulton judge overturns Georgia’s six-week abortion ban as unconstitutional". Georgia Recorder. 15 November 2022. GeorgiaRecorder.com. 17 November 2022. http://bit.ly/3EDIVq5
     
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  18. RainbowSingularity Valued Senior Member

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