"inJohn Roberts' America....."
MGRABER at gvpt.umd.edu
Fri Jul 22 09:32:10 PDT 2005
I am not sure about this. Change the hypo a bit. Imagine no contrary
federal law. Surely a state with a speed limit of 60 MPH cannot ban
state citizens from going 70 MPH on out-of-state highways where that is
legal. Is the real issue whether, say, the law of Blue State must give
extra-territorial effect to the law of Red State which declares a fetus
>>> "Sanford Levinson" <SLevinson at law.utexas.edu> 07/22/05 12:26PM >>>
The quick answer is that the criminal here is McDonalds, who sells you
the Big Mac, rather than you. This, of course, raises another question
re the "day after the death of Roe": Will Republicans make criminals of
the women themselves or "only" of the doctors. If the latter, then I
presume that there is no hook on which to criminalize the interstate
travel, since the woman is no more a criminal than is Mark for buying
the illicit Big Mac.
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Graber
Sent: Friday, July 22, 2005 9:53 AM
To: Sanford Levinson; conlawprof at lists.ucla.edu
Subject: Re: "inJohn Roberts' America....."
What about the dormant commerce clause issue. Suppose Maryland bans Big
Macs because of the fat content. I presume it would violate the
constitution for Maryland to forbid me from buying a Big Mac in
>>> "Sanford Levinson" <SLevinson at law.utexas.edu> 07/22/05 10:46AM >>>
Assume that Roe is overruled (with the presumed support of Roberts).
Given that I support the overruling of Roe for crass political reasons,
I am not disturbed by the possibility that Roberts would overrule it.
My genuine (i.e., non-rhetorical) question is the following:
Assuming that Roe is overruled, which would presumably allow a state to
criminalize abortion, could the same state criminalize one of its
citizens travelling to another state to get an abortion? My immediate
response is no, that that would be protected by the "right to travel."
But, of course, the US claims the right to criminalize US citizens
travelling to Thailand to engage in sex with children, and there is
universal jurisdiction to try pirates and torturers. And what if
Congress "authorized" states to engage in such extra-territorial
Another possibility, of course, is that Congress would criminalize
abortion because, after all, it is part of the economy and, surely, the
medical instruments have travelled in interstate commerce. If Roe is
overruled, would anyone, liberal or conservative, doubt Congress's power
to do that under current doctrine? (For what it is worth, I am
altogether confident that no such legislation could get through
Congress, unlike the extraterritorial bills mentioned above, which
simply have to get through a state legislature.)
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