Federalization of Abortion

[Rufus T. Firefly]

This is something I'm curious about. Suppose Roe v. Wade is overturned. That won't make abortion illegal; it will just make its legality a matter for the States. So suppose it becomes illegal in a Red state (say, Indiana), but remains legal in a nearby Blue state (say, Illinois). Would it be possible that an Indiana woman who has an abortion in Illinois would be breaking Indiana law? What would the prevailing precedent be for deciding -- Dred Scott? Just how wacky could that get?

[AnnC]

Back in the days when states had different legal drinking ages, people could cross a state line and drink in a state with a lower drinking age even though it was illegal for them to drink in their home state.

If Roe v. Wade is overturned, we'll have a similar situation. Women who live in red states will go to blue states to get abortions and their home states won't be able to do anything about it.

[Rufus T. Firefly]

Originally posted by AnnC
Back in the days when states had different legal drinking ages, people could cross a state line and drink in a state with a lower drinking age even though it was illegal for them to drink in their home state.

If Roe v. Wade is overturned, we'll have a similar situation. Women who live in red states will go to blue states to get abortions and their home states won't be able to do anything about it.

Ah, but here's the issue: in Red states, presumedly, abortion would be outlawed by declaring that the fetus is a person. So a woman having an abortion in Illinois may not be breaking any Illinois law, but she just killed someone who was a person in Indiana.

That's why it seems to me that the only revevent precedents may be things like Dred Scott; we haven't had a system where someone was a person in one state, but not a person in another state, since slavery.

[AnnC]

If an Indiana resident commits murder in Illinois, Indiana doesn't prosecute - Illinois does. So even if Indiana law were to define abortion as murder, Indiana couldn't prosecute unless the abortion was performed in Indiana.

The only possible complication that I can forsee is this: If Roe v. Wade were overturned and Republicans were still in control of Congress, they would probably try to pass a law which prohibits crossing state lines to obtain an abortion. And they would claim that they can regulate such things because of the inter-state commerce clause. It would be interesting to see how the Federal courts would handle that.

[Rufus T. Firefly]

Ah, but what about full faith and credit? If Indiana declares that a fetus is a person, is Illinois, under the full faith and credit clause, required to honor that definition?

[Vesayen]

I'm abandoning my other thread because I realized we asked the same question .

Rufus and AnnC your both missing the *BIGGER* point.

You COULD argue this:

If abortion is banned in a state any woman wishing to have an abortion in that state automatically proves themself an unfit parent and the fetus should become an automatic ward of the state.

If she goes into another state it does not matter *WHERE* she commited the crime, only that she commited the crime, murdering a citizen of X state, and a ward of the state.

States are requires to extradite residents of other states who commit crimes. It may not be possible to prosecute her in ANOTHER state, but she is most definatley commiting a crime in her home state.

This ties the U.S. legal system into a pretzel lol.

Because she crossed state boundries to commit a crime, does that make a federal matter? Except its a state crime, not a federal one..... would the feds interfere? They would not prosecute so what WOULD they do? Would they force extradition or just sit on their ###es because they don't know what to do lol?

I find this idea concept hysterical... it breaks the U.S. legal system.

[Rufus T. Firefly]

Well if you like that, Vesayan, you'll love this: in the 80s, when Missouri passed a law defining a fetus as a person, the first suit filed in court under the new law was a writ of habeas corpus on behalf of the unborn child of an imprisoned woman!

[Vesayen]

Commiting the crime across state boundaries makes it all the more delicious lol, and when you throw in the idea of an individual whose legal status is completley indeterminate, it becomes even funnier. How the hell do the feds resolve the matter of a crime being commited against an individual which does not legally exist in the eyes of the federal goverment? The *CRIME* occured, but victim may not exist....

States can define beings to have citizenship and rights beyond the federal goverement, for example utah allowed women to vote in their electorate for presidential elections before most states... its not the same, but its similar.


Can a state define an inclusionary definition(exclusionary would not work for obvious reasons) personhood and force the federal goverment to accept it?

[KrazyHorse]

Originally posted by Rufus T. Firefly
Ah, but what about full faith and credit? If Indiana declares that a fetus is a person, is Illinois, under the full faith and credit clause, required to honor that definition?

No. Being a person is not a contract.

[Whoha]

Originally posted by Rufus T. Firefly
Ah, but what about full faith and credit? If Indiana declares that a fetus is a person, is Illinois, under the full faith and credit clause, required to honor that definition?

I think full faith and credit excludes contradictory laws like the above situation, such as the gay marriage stuff. It is of course foolish to assume that such challenges wouldn't be attempted, but they'd get shot down.

[KrazyHorse]

such as the gay marriage stuff

No it doesn't. A contract recognised by one state must be recognised by all others. If Massachussets allows full gay marriage, one partner divorces the other and alimony is ordered by a Massachussets court then it doesn't matter where the partner moves in the US; the courts there have to enforce the alimony agreement.

[KrazyHorse]

Indiana couldn't make it illegal for an Indiana woman to get an abortion in Ohio because that would be an extraterritorial law. They probably couldn't regulate travel for the purposes of abortion either (interstate commerce being the province of the federal government).

[Sikander]

The only possiblity I see for someone getting busted for murder for having an abortion in another state would be conspiracy charges in the state of origin.

[KrazyHorse]

Can there be a conspiracy when there's no crime to conspire to commit?

[Imran Siddiqui]

Originally posted by Rufus T. Firefly
Ah, but what about full faith and credit? If Indiana declares that a fetus is a person, is Illinois, under the full faith and credit clause, required to honor that definition?

Full faith and credit wouldn't apply. It mostly applies to judgments between parties. There is also a public policy exception. That means that if enforcing the judgment or act would violate the state's public policy, the state doesn't have to recognize it (note, this doesn't apply to money judgments optained in another state... so if a state is against gambling and asked to enforce a gambling judgment made in another state, it can't claim the public policy exception because all that is asked to be enforced is a money judgment and you can't look to what is behind that). So Illinois could say that it violates our public policy that to take away the right to choose for a woman.

And as pointed out Indiana can't charge someone for doing something in Illinois. It doesn't have jurisdiction over those acts.