Sunday, September 28, 2008

If Roe Goes...

Linda Hirshman has an excellent piece at the Washington Post examining the question of how far states will be able to take their "states' rights" if Roe v. Wade were to be overturned. In particular, she looks at the issue of whether or not states where abortion would be criminalized would be able to prosecute women who travel to states where the procedure is legal to obtain an abortion.

If John McCain wins the election, we are but a few years, at most, from witnessing the overturn of Roe. It looks clear that at least one, if not two, spots will be opening up on the highest court in the land, and McCain has repeatedly indicated that he will appoint judges like Roberts and Alito. The overturn of Roe v. Wade is a real possibility at this point. So what would happen if Roe was tossed out?

Well, abortion wouldn't automatically become illegal throughout the land. Rather, the issue of the legality of abortion would be left to the states. There are a number of states where abortion would become illegal following the demise of Roe. And just as was the case before abortion rights were nationally recognized, women living in states criminalizing abortion would travel to states without criminal abortion laws to obtain the procedure. "Okay," you might think, "not such a big deal. Women can still get abortions, they just have to travel a bit." A woman living in Missouri - a state which will likely criminalize abortion nanoseconds after Roe is overturned - would just have to travel across the border into Illinois to get the procedure done. No problem (as long as you can manage to get the money together to make the trip). Missouri couldn't do anything to stop her or penalize her for doing something in another state, right?

Well, apparently it's not that simple. It seems silly to think that an individual could be prosecuted in his or her home state for doing something in another state which is perfectly legal in that state. To me, that sounds like saying that the US government can charge you for possession of marijuana because you bought and smoked some in a cafe in Amsterdam. But it looks as though there are some precendents in favor of allowing states to do just that. According to Hirshman,

Under the American constitutional system, a state does have some authority to regulate its citizens' conduct even when they aren't on its territory. The Tenth Amendment and numerous Supreme Court rulings have recognized the broad reach of state sovereignty. In 1792, the Supreme Court approved Virginia's prosecution of a Virginian for stealing a horse from another Virginian, even though the dastardly deed took place entirely in the District of Columbia...

...In some indirect -- but ominous -- cases, the Supreme Court has shown itself to be open to the idea that a state has an interest in its citizens' behavior wherever it occurs. In 1985, the court allowed Alabama to prosecute an Alabama defendant for his wife's murder, even though he had already been tried and convicted in Georgia, where the actual murder occurred. In 1993, the court recognized the interest of a state that forbids gambling in upholding a federal law prohibiting broadcasters from tempting its citizens with advertisements for out-of-state lotteries.

So it looks like a state with an abortion ban might have some Constitutional backing if it decided to bar women from leaving to obtain abortions or prosecute after the fact. And we shouldn't forget that if a majority of five neo-con justices were to include in their reversal of Roe a declaration that the fetus is a person, states might then have the power to prevent women from leaving their boundaries by claiming that such action is necessary to protect the fetus. If the state can take custody of a child for its protection, and the fetus has all the same rights as a child, then the state might argue that it has custody over the fetus, and bar the woman from taking the fetus outside the state. (This, of course, ignores the whole issue of bodily autonomy. But the anti-choice side of this debate never actually addresses that issue anyway)

Thankfully, it looks like there is some Constitutional support for the conclusion that states cannot prosecute women for deeds in other states:

There are, of course, limits to what states can do to stop out-of-state abortions. They have to comply with the restrictions of the federal Constitution, such as the clause saying that no state may deprive any person of life, liberty or property without due process of law. Courts apply this due-process clause to prohibit states from taking "arbitrary" actions. A state's decision to prosecute a woman for an abortion that it holds to be illegal but that was legal where she got it could be seen as arbitrary -- meddling in behavior that's none of its business -- unless that state shows that it has a legitimate interest in the out-of-state act.

Unfortunately, it looks like we've already suggested a way in which a state with an abortion ban might argue that it has a legitimate interest in the out-of-state act - if a SCOTUS ruling contains a declaration that a fetus is a person, then the woman's home state could claim that it has a legitimate interest in protecting the fetus.

In fact, it might not even be necessary for SCOTUS to make the declaration. If the state itself has amended its Constitution to confer the status of personhood on the fetus (as was attempted in Colorado recently), then that just might give the state enough of a ground to claim legitimate interest in the out of state act.

Hirshman looks at this issue from a number of angles in her article, but I think the article leaves out two critical facets of this issue that should be examined. First, while she is keenly aware of the fact that this issue boils down to a question of states' rights, her article fails to bring into the discussion the fact that conservative justices are often staunch supporters of states' rights. Prima facie, this would lead one to conclude that they will be more likely to rule in favor of the states that are attempting to assert their "rights" - that is, the states that wish to prosecute their citizens for obtaining an abortion in a state where it is legal. That should trouble those who are concerned with protecting the right of women to terminate a pregnancy.

Second, I think it important to keep in mind the highly emotional nature, for many, of the abortion issue. Justices are human; they have deepseated convictions and dearly held beliefs just like anyone else. I do not find it improbable that a number of the Justices on the court who oppose abortion rights will select a ruling that matches their dearly held beliefs and then find a legal justification for it, rather than following legal justifications to the ruling. It very well might be that for such Justices, the relevant states' rights case law will take a back seat to preventing women from obtaining abortions.


theosophist97 said...

This is conspiracy thinking at its best. As if states have nothing better to do than track where people go to have abortions.
As for the Supreme Court, that is entirely too much power for nine lawyers to have.It needs to go.It is not doing what the founders set it up to do. It is trying to coopt the power of the other two branches, it wants make laws and sign them too. These lawyers are not gods that their will should override that of the people, in ANY case. This same court that you fear will overturn Roe, in Kelo basically overturned the right to private property. Methinks they care not about justice nor ideology, just their own power. Their function was to rule on what is actually IN the constitution, not read things into. Roe was decided on the issue of the privacy of one's own body, yet it would seem that the court's reverence for the privacy of the body applies only to abortion, and not much else.

Artemis311 said...

It does sound farfetched, doesn't it? It's too bad that it isn't. It's not paranoia if they're really after you.

First, while I agree that states have much better things to do than go after women who are crossing state lines to obtain abortions, apparently they place their priorities in a different place. Several states have taken measures to try and prevent minors from crossing state lines to avoid parental consent laws. Some have even gone so far as imposing criminal sanctions on adults who aid pregnant teens in getting across the border. And the federal government has stepped in as well. See here:

I'm sure you support parental consent laws as well. I'm not trying to argue that particular issue, especially because I believe it requires an extremely nuanced view. Rather I merely wanted to show that the states are indeed interested in who goes where to get an abortion.

And if you believe that the state would have to do any work to track these women down, then you obviously aren't acquainted with very many active anti-choicers. They are known for taking pictures of women walking in and out of the clinic and of the license plates of cars in the parking lot. Originally, this practice began as an attempt to frighten clinic workers and women away.

These are the same people who bring stillborn fetuses to their protests of clinics, send hate mail to doctors, search through clinic trash, and shout all manner of insults and veiled threats at clinic workers and escorts while simultaneously using every last tactic in the book to shame, cajole or badger women into changing their minds. I've spent hours talking to anti-choicers. I've volunteered as an escort at the local PP. I've seen it first hand. Tracking who goes in and out of the clinic and handing over the evidence to police would be nothing to these people. You think they'll just go home and sit on their laurels if Roe gets overturned? Not a chance. They know full well that women would still seek and obtain abortions, and they'll do damn near anything to put a stop to it.

As for the court, I agree that our system is tainted, and that this reaches the court as well. But I've seen how certain people are moved by ideology. And there's no denying that when you have certain beliefs, and the power to force them on others, you're likely to do it. And I have to add that if it were really about power, then why would the conservatives on the court bow to Bushie's claims of executive privilege? That's a weakening of the court's power.

As you know, I disagree vehemently with the ruling in Kelo. That was crap jurisprudence in the cause of further fattening the fat cats, and everyone knows it. Nonetheless, the comparison you seem to want to make between the two rights is not apt. I consider my rights over my own body to be far more precious than my right to some land. Both rights are important, but one is more fundamental. You could own a whole continent, but what good is that if someone else owns your body?

As for the rest of the issues that you touch on in your post, particularly the reasoning the in Roe decision, I'll have a full post up addressing them soon. It's a post that needed to be up on my blog anyway.