"inJohn Roberts' America....."

John Parry parry at lclark.edu
Fri Jul 22 10:03:35 PDT 2005


The citizenship/domicile/residency issues would get interesting.  Imagine a young woman who as a minor or an adult goes to an out-of-state school or college, becomes pregnant, and seeks an abortion.  Her "home" state, where her parents live, would not allow it.  She has not changed her domicile because she is a minor and/or because she has no intent to remain where she is in school.  Could her home state, or Congress for that matter, really legislate to prevent the domiciliaries of one state from obtaining an abortion in another state?  If it could in general, could it do so when the person seeking an abortion is a temporary resident of the state where the abortion would be performed?

Or imagine the state in which she is in school bans abortion, and she returns to her home state, where it is legal.  Can a state or Congress really criminalize her travel from her state of residency to another state (or more specifically, her state of domicile) to obtain an abortion?  And then imagine a friend or relative drives her across state lines because she does not have a car -- and that is a crime as well (and will airlines and bus companies have to obtain certifications from passengers that they are not crossing state lines to obtain an abortion?).  

My point is simply that any broadly written statute on this issue would be a total mess and might end up being unconstitutional on some kind of due process, right to travel, vagueness, overbreadth, etc. theory, even for judges who are not "liberal activists" (query whether there really are many of those once you get past Reinhardt -- and don't say Stevens; quirky is not the same thing).  Only a narrow statute could hope to be workable (unless Congress went even broader and banned abortions straight out, as it clearly could under the commerce clause but which it might not be able to do as a matter of politics, as Sandy points out).  

John Parry

  ----- Original Message ----- 
  From: DavidEBernstein at aol.com 
  To: hartneed at shu.edu 
  Cc: conlawprof at lists.ucla.edu ; SLevinson at law.utexas.edu ; conlawprof-bounces at lists.ucla.edu ; MGRABER at gvpt.umd.edu 
  Sent: Friday, July 22, 2005 9:28 AM
  Subject: Re: "inJohn Roberts' America....."


  I'm not at all confident of my tentative answer, but let's keep in mind that we are not talking about Marylad giving full faith and credit to Virginia laws when the individual in question was in Virginia.  E.g., minor goes across state lines to get abortion without parental consent. Virginia bans minors in Virginia from getting such an abortion.  But the minor is not in Virginia, so how has Virginia law been violated?  Can Virignia, if it has an anti-gambling statute, prosecute me for gambling in Vegas?

  The Mann Act is a bit different.  It's the equivalent of Congress passing a law directly stating that minors may not cross interstate lines to get abortions, period.  As I understand it from my student, the proposed law in question would not do this, but would only ban crossing state lines to prevent, say, Virginia residents from violating Virginia policy in Maryland.  If a Maryland teenager, where minors don't need parental consent, went to Pennsylvania, also with no parental consent law, to get an abortion, the statute wouldn't be violated.  Thus, Congress is not pursuing an interest in preventing interstate abortions, but in enforcing one state's law against residents while the residents are in another state and not subject to that law.  I don't see the federal interest in that.  Here's an example: Could the federal government, in the Jim Crow era, have enforced a law banning residents of the South from sitting on integrated trains while they were visiting their relatives in Chicago?

  In a message dated 7/22/2005 12:20:50 PM Eastern Standard Time, hartneed at shu.edu writes:

    FWIW, my tentative reaction is that this is exactly wrong. 

    The national government has a powerful interest in regulating inter-state relations.   This interest is reflected in a number of constitutional provisions, including the commerce clause, the state compact clause, the Supreme Court's original jurisdiction clause, the privileges and immunities clause,  the fugitive from justice clause, and the full faith and credit clause.  All of them remove what would otherwise be a sovereign state's power to handle conflict with another state unilaterally or bilaterally (for example, by blocking ingress or egress at the border or by entering into a bilateral agreement) and transfer that power to the national government.   

    And frequently the same end can be achieved by use of more than one of these powers.  For example, assuming Roe/Casey were overruled, why couldn't Congress, under the Full Faith and Credit Clause, require MD to give full faith and credit to a VA statute regulating VA residents?   

    Indeed, might not the commerce clause itself be best understood, as Marshall put it in both the interstate and Indian context, as dealing with "intercourse"?   When we think of "intercourse" with foreign nations or with Indian tribes, don't we mean all of the (potentially conflict-producing) relations with them?  (Don't non-intercourse acts bar interaction more generally, not just trading goods?) 

    Ed Hartnett 
    Seton Hall 


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