Ohio seeks to felonize (out-of-state) abortion

[bascule]

http://www.centralohio.com/apps/pbcs.dll/article?AID=/B8/20060320/NEWS01/603200302/1002&template=B8

 

Doesn't this, I dunno, violate the Constitution in some way? Can one state really criminalize an activity you participated in in another state?

[ydoaPs]

I'm pretty sure they can't. Interstate activity is federal jurisdiction, iirc.

[Phi for All]

There's a nice precedent to set.

[Jim]

There's a nice precedent to set.

 

Set aside Roe for a moment - which these states would clearly like to do - and assume that the state is constitutionally entitled to view the fetus as a person with its own legal rights. Many divorce decrees control the ability of parents to remove children from the state. The state has its own interest in protecting children.

[zyncod]

Many divorce decrees control the ability of parents to remove children from the state. The state has its own interest in protecting children.

 

True. But for this to be legal, then the state would have to restrict the ability of all pregnant women to leave the state. After all, it's not what you do in another state that's illegal in custody law, it's the very fact of leaving the state with the child that's illegal.

 

And I kind of think that that runs afoul of the Constitution, especially the Fifth amendment, given that there is no pressing need to keep pregnant women in the state.

[Pangloss]

Set aside Roe for a moment - which these states would clearly like to do - and assume that the state is constitutionally entitled to view the fetus as a person with its own legal rights. Many divorce decrees control the ability of parents to remove children from the state. The state has its own interest in protecting children.

 

But if I were to come to Oklahoma, Jim, and you were to kill me, what possible interest would the State of Florida have in the case?

[Jim]

True. But for this to be legal' date=' then the state would have to restrict the ability of all pregnant women to leave the state. After all, it's not what you do in another state that's illegal in custody law, it's the very fact of leaving the state with the child that's illegal.

 

And I kind of think that that runs afoul of the Constitution, especially the Fifth amendment, given that there is no pressing need to keep pregnant women in the state.[/quote']

 

 

No, the law would say that you can't take a "child" out of state with the intent to kill it/him/her. There are state laws saying that a debtor cannot take personal property pledged to a security interest out of state with the intent to defraud creditors.

 

Unless there is a federal statute preempting state jurisdiction, the mere fact that the crime involves taking property or a child across a state line does not, by itself, mean that there is exclusive federal jurisdiction. The feds can preempt the state laws but, in this case, federal kidnapping laws do not apply. There could be concurrent jurisdiction.

 

I wouldn't express an opinion without considerably more research. The issue become complex if you assume that the fetus is not an extension of the woman's body.

[Daecon]

But if I were to come to Oklahoma, Jim, and you were to kill me, what possible interest would the State of Florida have in the case?

That depends on if killing is legal in Oklahoma...

[ydoaPs]

That depends on if killing is legal in Oklahoma... is abortion?

the crime was in Oklahoma, so Florida has no say in what happens, iirc.

[zyncod]

There are state laws saying that a debtor cannot take personal property pledged to a security interest out of state with the intent to defraud creditors.

 

I would really like a reference in terms of those laws, because I can't imagine that they would be constitutional.

[Jim]

That depends on if killing is legal in Oklahoma... is abortion?

I need to slow down. I think I misread your post. Time for scotch...

[Pangloss]

But if I were to come to Oklahoma, Jim, and you were to kill me, what possible interest would the State of Florida have in the case?

[Jim]

But if I were to come to Oklahoma, Jim, and you were to kill me, what possible interest would the State of Florida have in the case?

 

The difference here is that the criminal conduct originated from the state enacting the law. A better analogy would be whether Florida could prosecute you if you came to Oklahoma to kill me. They might get you for attempted murder even though as a practical matter, Florida would leave it to Oklahoma. OTOH, your point is that the mere residency of the perp does not determine jurisdiction. True, but here as in the attempted murder anlogy part of the criminal action arises in a state.

 

The argument being made is that the mere fact that a crime involves interstate commerce means it is not subject to state laws. I'm no criminal lawyer but I think this is false. Many state crimes involve interstate commerce (e.g. using the telephones or mail). There can be concurrent federal (e.g. wire fraud) and state jurisdiction (e.g. a state law re fraud) even though these issues usually do not arise in normal cases.

 

As you recall from the Rodney King case, it is not double jeopardy to prosecute a person twice for a federal (civil rights) and state (assault) violation relating to the same event.

[zyncod]

Florida might prosecute you for attempted murder if you set the plan in motion in Florida.

 

No, I think they would prosecute for conspiracy, if anything.

[Pangloss]

That depends on if killing is legal in Oklahoma...

 

This statement is incorrect.

 

If killing is legal in Oklahoma, Florida has no interest in the case.

 

If killing is illegal in Oklahoma, Florida has no interest in the case.

 

You can extrapolate other, peripheral incidents related to the case in which Florida might become interested. Such as if Jim were to flee to Florida to escape Oklahoma authorities, or perhaps if Jim were to perpetuate his crime streak in Florida (the other crimes might have bearing as evidence in trial).

 

You can also certainly make a case where the Federal government might be interested in the case, under certain circumstances.

 

But Jim is suggesting that Florida would take an interest in Jim's murder of Pangloss in Oklahoma, a place where Florida has no jurisdiction, simply because Pangloss is a citizen of Florida.

 

I don't believe that position is legally supportable. But if you guys can show me where I'm wrong, by all means, please do. Cite me a precedent.

[Pangloss]

The difference here is that the criminal conduct originated from the state enacting the law. A better analogy would be whether Florida could prosecute you if you came to Oklahoma to kill me. They might get you for attempted murder even though as a practical matter' date=' Florida would leave it to Oklahoma.

[/quote']

 

Ok, I don't mind flipping the circumstances (I just thought it more polite to allow you to kill me). (grin)

 

I still don't agree. If I leave Florida and come to Oklahoma, kill you, and return to Florida, the only interest Florida would have in the case would be to return me to Oklahoma. I didn't attempt to murder anyone in Florida.

[Pangloss]

No, I think they would prosecute for conspiracy, if anything.

 

The problem with the conspiracy charge is that there's been no conspiracy to commit any crimes presently under Florida statues.

[zyncod]

The problem with the conspiracy charge is that there's been no conspiracy to commit any crimes presently under Florida statues.

 

Right, but if you had conspired to murder somebody regardless of whereabouts, that could be prosecutable. Of course, this is an incredibly silly argument, and is a law school hypothetical.

[Pangloss]

The argument being made is that the mere fact that a crime involves interstate commerce means it is not subject to state laws. I'm no criminal lawyer but I think this is false. Many state crimes involve interstate commerce (e.g. using the telephones or mail). There can be concurrent federal (e.g. wire fraud) and state jurisdiction (e.g. a state law re fraud) even though these issues usually do not arise in normal cases.

 

The federal domain over interstate commerce is pretty well grounded, Jim. It's Article 1 material, guy.

 

I don't see this as having much to do with commerce myself, but maybe that's just me.

[Pangloss]

Right, but if you had conspired to murder somebody regardless of whereabouts, that could be prosecutable. Of course, this is an incredibly silly argument, and is a law school hypothetical.

 

"Conspiracy to commit murder" isn't a crime. The crime is "conspiracy to commit a crime". Murdering Oklahomans (in Oklahoma) is not a crime in Florida.

[Pangloss]

I don't mean to speak so definitively, by the way, it's just been a rapidly developing conversation. I don't pretend to be a lawyer and I certainly wouldn't place a bet on anything I've said in this thread. (grin)

[Jim]

The federal domain over interstate commerce is pretty well grounded' date=' Jim. It's Article 1 material, guy.

 

I don't see this as having much to do with [i']commerce[/i] myself, but maybe that's just me.

 

Interstate commerce is an incredibly broad concept. If states couldn't regulate anything that involves interstate commercie (e.g. wire and mail fraud), they could pass very few laws.

 

There is a difference between concurrent and exclusive federal jurisdiction. Also relevant is whether the feds have acted to preempt a field. That is their right with interstate commerce but they do not always exercise that right.

[zyncod]

"Conspiracy to commit murder" isn't a crime. The crime is "conspiracy to commit a crime". Murdering Oklahomans (in Oklahoma) is not a crime in Florida.

 

My hypothetical was that the authorities had you on tape:

 

Other person: "So you want to kill him?"

You: "Yes, if he's in Oklahoma, or Florida, or whatever."

 

Very silly, and pretty much the only way you could be prosecuted in Florida.

[Jim]

"Conspiracy to commit murder" isn't a crime. The crime is "conspiracy to commit a crime". Murdering Oklahomans (in Oklahoma) is not a crime in Florida.

 

There are two issues:

 

1. Did Florida pass a statute to make this a crime (they might with their attempted murder laws and if some overt acts in furtherance of the conspiracy occurred in Florida)?

 

2. Is the Florida statute constitutional?

[Pangloss]

If states couldn't regulate anything that involves interstate commercie (e.g. wire and mail fraud)' date=' they could pass very few laws.

[/quote']

 

Yeah that's a fair point, I agree. But again, they're still only going to be interested in actions that take place in their own state. For example, they're not going to have any vested interest in a fraud case that involves Oklahomans and Texans. And the only way they're going to get involved in a fraud case with Oklahomans ripping off Floridians is if Floridians got ripped off in Florida (stop sending me those darn emails!). If they travelled to Oklahoma and got ripped off there, totally at random (not even a solicitation in Florida), then Florida would have no interest in (or jurisdiction in) the case.

 

Florida simply has no jurisdiction in Oklahoma, nor ability to do anything there that Oklahoma doesn't want them to do.