It will never get ruled on because the core concept is so obscenely unconstitutional that it doesn't matter.
this post was submitted on 19 Dec 2023
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I know. Or at least I really hope so.
I’m more interested in the theoretical question.
I was also wondering if it would be possible to make it illegal to have had an abortion. The analogy that comes to mind is that cannabis is legal in California, but if you fly back to Texas and still have it in your system, I think you can be busted because there’s specific laws against testing positive (iirc). I’ve never heard of anyone getting charged for coming home high from California, so I have no idea whether it would pass a challenge.
The US constitution forbids states from creating ex post facto crimes, and the jurisdiction of state laws does not extend into other states. Texas cannot make it a crime to have an abortion in California, nor to have previously had an abortion in California.
Texas may be able to make it a crime to leave Texas for the purpose of having an abortion. That would make creating any evidence of the reason for travel, or providing explanations to authorities dangerous.
I just want to make sure I understand your answer. I’m going back to the cannabis example to make sure I’m clear in terms of what I’m saying and understanding.
Texas cannot make it illegal to smoke pot in California. We are on the same page there. Texas can however make it illegal to have drugs in your system while in Texas. If you get back from CA and test positive in Texas, I believe you can be charged for having drugs in your system. For instance, you will probably go back to jail if you test positive while on parole. I don’t want the parole thing to confuse the issue - the point is that smoking in CA is not what’s illegal. Being in TX with drugs in your system can be.
This isn’t ex post facto because the law against having terminated your pregnancy would have existed before the patient traveled.
What I’m thinking about specifically is the concern many people have about things like menstrual tracking apps being used by law enforcement to determine if someone was pregnant and now is not. To my reasoning, that means that the concern is ipso facto the termination.
And I agree on keeping any conversations about it in a manner that a prosecutor would be unable to use them to show motivation for travel. I mentioned that when o was asking whether it would be a reasonable defense if/when someone were to be charged (pretending that it doesn’t get overturned).
Texas can however make it illegal to have drugs in your system while in Texas
I'm not sure that's actually a crime in Texas (please link a law if you know of one), and using it as evidence of prior drug possession is legally iffy as this Ohio case shows. In your example of consuming cannabis in California before traveling to Texas, it would be an even more difficult case for Texas prosecutors.
I don’t want the parole thing to confuse the issue
It does though; parole can include restrictions like "pass random drug tests", "don't drink alcohol", etc... that can't be imposed on people without a prior criminal conviction. It's probably best to leave parole out of the discussion entirely.
the concern is ipso facto the termination.
When it comes to an abortion outside the state, the laws I'm aware of concern travel for the purpose of abortion. An alternate purpose for the travel could be useful as a defense, but that's best delivered by one's lawyer after charges are filed.
Narrator:
Weeks later, Ken Paxton, the notoriously embattled Texas AG who has been under investigation for corruption for years, announced intent to prosecute Texans who have abortions out of the state, regardless of the obvious conflicts with federal law.
California is a lovely state with many reasons to visit. If a person who happens to be pregnant comes to Los Angeles, she could go camping, skiing, surfing, tour stars' homes or Disneyland or Hogwarts... And she could get a safe legal abortion. Or the pregnancy could spontaneously miscarry in a hotel room or on the side of a mountain, who knows?
When she goes home no longer pregnant, it's nobody's fucking business.
Or she could not go home, and start a new life in a place that respects her.
Edit: feel free to go back and change all the "she"s to "they"s because a pregnant trans man would deserve all the same rights and safe medical care.
My real question now is whether the defendant could state
If you're being investigated by law enforcement in the USA, you have the right to remain silent. Use it.
Yes, absolutely. I’m talking about the in court defense, not what you say to the officers.
If you’ve been following all of the Trump investigations and trials, you’ll see a lot of it comes down to the prosecution proving that the defendants knew what they were doing was illegal and that they don’t have a credible alternative explanation for their actions. I’m speculating that a medical consultation may be a credible alternative explanation.