A Stitch in Haste

Consider the following hypothetical: New York State, in furtherance of some otherwise constitutional state interest (e.g., to fight compulsive gambling), makes it a crime, an actual criminal offense, to leave the state for the purpose of gambling. So, for example, my trip last week to Foxwoods would have been illegal.

Unrealistic? Unfair? Un-American? Unconstitutional?

Yes, yes, yes and yes.

Yet supposed law school prodigy Will Baude thinks exactly such a scenario could arise if Roe v. Wade, 410 U.S. 113 (1973) (really Planned Parenthood v. Casey, 505 U.S. 833 (1992)) were overturned:

States could make it illegal to cross state lines in order to abort a fetus… While the Supreme Court has recognized a constitutional right to travel across state lines, it has also recognized exceptions.
…
Just as Utah could make it a crime for a resident to go to Rhode Island for an abortion, Rhode Island could forbid Utah’s law-enforcement officials from interfering with her decision to get one.
…
The precedents are muddy, the standards unclear, and so it is almost impossible to know how a future Supreme Court would resolve the matter.

This is, of course, utter nonsense. It’s not just wrong, it’s flunk-the-bar-exam wrong.

There are at least two reasons why Baude’s doomsday scenario could never arise in a post-Roe world:

1. All state police power is local. End of discussion. A state can only criminalize conduct within its borders. There are, contrary to Baude, no exceptions. Ever. Baude’s examples of “long-arm jurisdiction” are completely misplaced. “Long-arm jurisdiction” is exactly that — a matter of jurisdiction, the ability to reach an out-of-state defendant and bring him back into the state to prosecute him for local crimes. Long-arm jurisdiction does not equal the ability to rewrite another state’s penal code. (In fact, long-arm jurisdiction is primarily a civil litigation concept with little bearing on criminal prosecutions.) In any event, as my Conflict of Laws professor put it: “One state cannot simply throw its laws into another state.” New York cannot make it a crime to gamble in Atlantic City, Virginia cannot make it a crime to pay for sex with a prostitute in Nevada, and Utah could not make it a crime to have an abortion in a post-Roe Rhode Island.

2. Article IV Privileges and Immunities. Baude acknowledges that there is a “fundamental right to travel.” Let’s go to the source:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

So what are “privileges and immunities”?

Protection by the Government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the Government must justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefits of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State…”

–Corfield v. Coryell, 6 Fed. Cas. 546 (No. 3,230) (1823); accord, U.S. v. Wheeler, 254 U.S. 281 (1920).

What part of “otherwise” is unclear? Is Baude suggesting that overturning Roe/Casey also includes, just for flavor, overturning Corfield and every Supreme Court case that has embraced it? Yeah, right, good luck with that.

Baude’s last-gasp argument — that a state could place a fetus into “protective custody” — does not require a jurisprudential response; common sense alone is required to dismiss it wholesale. But if you want a jurisprudential response, then see the Fourteenth Amendment:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Life may begin at conception, but the Fourteenth Amendment does not.

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Switching from the legal to the political, Baude makes another absurd assertion:

It’s unlikely that Congress would pass a comprehensive federal ban on or right to abortion.

Oh really?

I hope Baude is referring to the prospect of a Democratic filibuster of such a bill, which is the only plausible justification for such a statement (and which is anything but certain in future sessions of Congress).

Does anyone seriously doubt that, if Roe/Casey were overturned, then the conservatives in Congress would, within a matter of hours, introduce a “Federal Right to Life Act”? After all, these are the same conservatives who are perfectly willing to perpetually consume congressional time and resources on a Federal Marriage Amendment, which is infinitely more futile than a mere anti-abortion statute would ever be. How’s the saying go — “it deserves an up-or-down vote”?

Radley Balko, another non-lawyer who spewed much the same gobbledygook a while ago, anticipated this point and observed that, to truly “leave abortion to the states,” the Supreme Court would not only have to overturn Roe/Casey, but would also, in a totally unprecedented (and impossible) example of (true) judicial activism, have to proscribe Congress from passing such legislation. (For more, see here.)

I guess that’s the difference between a D- and an F.

More thoughts on the Baude op-ed piece at De Novo, Running Scared Fritz Feds, Abuse of Discretion.