Can states ban residents from traveling out of state to get an abortion?

[Gondwanaland]

I keep seeing this. According to current law, not some "wish it was" situation, can a fetus be considered a "resident" of anywhere? They are not asked to pay local taxes or lots of other things that are controlled by residency.

Neither are toddlers, so that's not a very thought out argument in the bold.....

[Alien]

For the precedential law cited earlier, Traveling with Intent to do X is a separate crime from Doing X there. The same could be here as well. And, based on the level of social media evidence that was able to be found, her denial that she planned isn't convincing, and whether or not she carried through is immaterial to the crime of Travel with Intent.

Yes, all interesting to think about. I believe that intent is very hard to prove though.

[Alien]

Neither are toddlers, so that's not a very thought out argument in the bold.....

True, and I thought of that after I posted it. Another thing I considered (afterwards) was a regulation covering how many people can occupy a given residence. A pregnant woman would count as one, wouldn't she? Do you have any better examples?

[Gondwanaland]

True, and I thought of that after I posted it.

Fair enough.

Another thing I considered (afterwards) was a regulation covering how many people can occupy a given residence. A pregnant woman would count as one, wouldn't she? Do you have any better examples?

It depends, actually. For low income housing, landlords are REQUIRED to count pregnant women as two occupants if she discloses her pregnancy:
https://www.novoco.com/periodicals/a...nborn-children

Answer: According to Chapter 3 of HUD Handbook 4350.3: Occupancy Requirements of Subsidized Multifamily Housing Programs, the property manager must include unborn children of pregnant women when determining family size for income limits. If the mother and unborn child(ren) will be moving in before giving birth, then yes, the unborn child(ren) must be counted in household size.

And for things like medicaid applications, depending on the state the pregnant woman can count as one, two, or one plus one expected, when they determine eligibility
https://healthlaw.org/resource/qa-on...d-and-the-aca/

In determining eligibility for Medicaid, the number of children the pregnant woman is expected to deliver count as part of household size. So, for example, if a woman is pregnant with triplets, she counts as a household of four. States may decide whether to count the pregnant woman as one or two people for determining the eligibility of others in the household.

Meanwhile, for SNAP eligibility, unborn children do not count.

Overall a very schizophrenic set of government views (especially when one brings in the fact that in many places you can be charged with manslaughter or even murder for harming a woman and killing her unborn baby in the process - or double murder if you kill her and the baby dies inside her.... even more complicated, if it's a federal crime you committed, then no matter what state you can get manslaughter, murder, or attempted murder/manslaughter from the feds.....).

[CivilDiscourse]

Yes, all interesting to think about. I believe that intent is very hard to prove though.

It depends on how careful the person is. Most people are not careful with internet searches or social media posts.

All of this isn't to promote the law, but that its been made before for other things, and its not necessarily unenforceable.

[Roy]

True, and I thought of that after I posted it. Another thing I considered (afterwards) was a regulation covering how many people can occupy a given residence. A pregnant woman would count as one, wouldn't she? Do you have any better examples?

Driving. In many places it's illegal to carry a child while driving or being driven, and children count towards a vehicle's maximum occupancy.

[Alien]

Fair enough.



It depends, actually. For low income housing, landlords are REQUIRED to count pregnant women as two occupants if she discloses her pregnancy:
https://www.novoco.com/periodicals/a...nborn-children



And for things like medicaid applications, depending on the state the pregnant woman can count as one, two, or one plus one expected, when they determine eligibility
https://healthlaw.org/resource/qa-on...d-and-the-aca/


Meanwhile, for SNAP eligibility, unborn children do not count.

Wow, thanks for all the research.

Overall a very schizophrenic set of government views (especially when one brings in the fact that in many places you can be charged with manslaughter or even murder for harming a woman and killing her unborn baby in the process - or double murder if you kill her and the baby dies inside her.... even more complicated, if it's a federal crime you committed, then no matter what state you can get manslaughter, murder, or attempted murder/manslaughter from the feds.....).

Yup. That comes from having all these semi independent States instead of just one country as more sensible places do.

[Alien]

It depends on how careful the person is. Most people are not careful with internet searches or social media posts.

All of this isn't to promote the law, but that its been made before for other things, and its not necessarily unenforceable.

Agreed.

[Teallaura]

A few states have discussed such legislation. Libertarian blogger Ilya Somin argues that there are two likely reasons this would not fly. One is that this likely violates interstate commerce laws; he does note that at least two Supreme Court justices are on record disagreeing with the Dormant Commerce Clause, but not five. The second reason given is that states simply lack jurisdiction over occurrences in other states. The third reason given is that it would require the Supreme Court to reinterpret its longstanding view on a right to travel.

I suspect that laws crafted like this would target organized travel providers (likely Planned Parenthood, or maybe more broadly, companies like Amazon offering money to allow employees to travel out of state for this purpose) more so than individual people traveling for their own abortions. I'm not sure if that changes Volokh's calculus at all as that distinction wasn't made in the article.

Somin acknowledges he may be wrong about what courts would actually do. He also says what may be obvious; that Congress could pass a law banning such travel, though this is a moot point as it is difficult to imagine Congress would be willing to do this but not ban abortion altogether.

https://reason.com/volokh/2022/05/10...is-overturned/

(I know this is written from a pro-choice perspective, but few seem to be talking about it, and it's written in a largely objective manner until the activism near the end.)

Yes, in the instance of minors. Otherwise, no.

Transporting, however, is a possibility - conspiracy doesn't necessarily end at the state line. Be a difficult case to even find and putting it on the books is mostly symbolic, but I can't think of a reason that a state cannot make transporting a fetus across state lines for the purpose of murdering it illegal.

[rogue06]

Here's a scenario:
Woman is pregnant, Tells the boyfriend, she decides to abort he does not. She travels, comes back without a kid. He is likely able to file a report, and it might be enough to start an investigation. In today's social media world, there likely IS a trail to be found, as if the law was written like the other one, "Travel with intent", and that could be easy enough to prove with web searches.

FWICT, that can't be done with something within the country, but only by the feds, or else all of the folks who were travelling to Colorado specifically to enjoy some legal marijuana could be arrested when they returned to their home states where that activity was illegal.

[CivilDiscourse]

FWICT, that can't be done with something within the country, but only by the feds, or else all of the folks who were travelling to Colorado specifically to enjoy some legal marijuana could be arrested when they returned to their home states where that activity was illegal.

Yes. Someone brought up the us passing a law for those leaving the country.

[KingsGambit]

Yes, in the instance of minors. Otherwise, no.

Transporting, however, is a possibility - conspiracy doesn't necessarily end at the state line. Be a difficult case to even find and putting it on the books is mostly symbolic, but I can't think of a reason that a state cannot make transporting a fetus across state lines for the purpose of murdering it illegal.

Wouldn't anything relating to that be under federal purview? Once state lines have been crossed, it's out of the original state's hands. All previously brought up examples such as alcohol are only addressable by the state entered, and a state where abortion is legal to begin with obviously wouldn't care.

[Teallaura]

Wouldn't anything relating to that be under federal purview? Once state lines have been crossed, it's out of the original state's hands. All previously brought up examples such as alcohol are only addressable by the state entered, and a state where abortion is legal to begin with obviously wouldn't care.

Usually, states themselves have transport laws but there are Federal ones (those pertaining to kidnapping especially). The state has no right to enforce its laws about an act done in another state - but with transport, the crime occurs at the state line, not in the other state.

[Sparko]

Here's a scenario:
Woman is pregnant, Tells the boyfriend, she decides to abort he does not. She travels, comes back without a kid. He is likely able to file a report, and it might be enough to start an investigation. In today's social media world, there likely IS a trail to be found, as if the law was written like the other one, "Travel with intent", and that could be easy enough to prove with web searches.

He wouldn't be able to get criminal charges filed on her, but he might be able to file civil charges, like a wrongful death suit. But if she doesn't have any money, it would be unlikely to be fruitful. And I think someone could file a wrongful death suit for an abortion even now when abortion is legal. You can file a lawsuit for just about anything you want to.

[CivilDiscourse]

He wouldn't be able to get criminal charges filed on her, but he might be able to file civil charges, like a wrongful death suit. But if she doesn't have any money, it would be unlikely to be fruitful. And I think someone could file a wrongful death suit for an abortion even now when abortion is legal. You can file a lawsuit for just about anything you want to.

This is with regards to a hypothetical law that makes "traveling with intent to commit abortion" a crime.
The boyfriend can't file charges, but, like with other crimes can act as a "tipster" in the above scenario. Sort of like I could call the cops and say that I suspect my boss is embezzling funds from the company here's the overall evidence. The cops will do with that as they want.