Several national antiabortion groups and their allies in Republican-led state legislatures are advancing plans to stop people in states where abortion is banned from seeking the procedure elsewhere, according to people involved in the discussions.
The idea has gained momentum in some corners of the antiabortion movement in the days since the Supreme Court struck down its 49-year-old precedent protecting abortion rights nationwide, triggering abortion bans across much of the Southeast and Midwest.
The Thomas More Society, a conservative legal organization, is drafting model legislation for state lawmakers that would allow private citizens to sue anyone who helps a resident of a state that has banned abortion from terminating a pregnancy outside of that state. The draft language will borrow from the novel legal strategy behind a Texas abortion ban enacted last year in which private citizens were empowered to enforce the law through civil litigation.
The subject was much discussed at two national antiabortion conferences last weekend, with several lawmakers interested in introducing these kinds of bills in their own states.
The National Association of Christian Lawmakers, an antiabortion organization led by Republican state legislators, has begun working with the authors of the Texas abortion ban to explore model legislation that would restrict people from crossing state lines for abortions, said Texas state representative Tom Oliverson (R), the charter chair of the group’s national legislative council.
“Just because you jump across a state line doesn’t mean your home state doesn’t have jurisdiction,” said Peter Breen, vice president and senior counsel for the Thomas More Society. “It’s not a free abortion card when you drive across the state line.”
The Biden Justice Department has already warned states that it would fight such laws, saying they violate the right to interstate commerce.
In relying on private citizens to enforce civil litigation, rather than attempting to impose a state-enforced ban on receiving abortions across state lines, such a law is more difficult to challenge in court because abortion rights groups don’t have a clear person to sue.
Like the Texas abortion ban, the proposal itself could have a chilling effect, where doctors in surrounding states stop performing abortions before courts have an opportunity to intervene, worried that they may face lawsuits if they violate the law.
Wednesday, June 29, 2022
Two years ago, Justice Neil Gorsuch was the deciding vote in a 5-4 opinion that declared the Creek Nations reservations in Eastern Oklahoma to be sovereign tribal land for the purposes of land administration and law enforcement.
That was of course before the death of the late Justice Ruth Bader Ginsburg and replacing her with Racist PTA Karen, and today with personnel change, that declaration is now gone, and the state of Oklahoma now has control of these lands back when it comes to prosecuting crimes of non-Native suspects.
The Supreme Court on Wednesday narrowed the sweep of its landmark 2020 decision declaring that much of eastern Oklahoma falls within Indian reservation lands, allowing state authorities to prosecute non-Indians who commit crimes against Indians on the reservations.
The ruling left in place the basic holding of the 2020 decision, McGirt v. Oklahoma, which said that Native Americans who commit crimes on the reservations, which include much of the city of Tulsa, cannot be prosecuted by state or local law enforcement and must instead face justice in tribal or federal courts.
The vote on Wednesday was 5 to 4, with Justice Amy Coney Barrett, who was not on the court when the McGirt case was decided, casting the decisive vote.
The new case concerned Victor Manuel Castro-Huerta, who was convicted of severely neglecting his 5-year-old stepdaughter, a member of the Eastern Band of Cherokee Indians who has cerebral palsy and is legally blind. In 2015, she was found dehydrated, emaciated and covered in lice and excrement, weighing just 19 pounds.
Mr. Castro-Huerta, who is not an Indian, was prosecuted by state authorities, convicted in state court and sentenced to 35 years in prison.
After the McGirt decision, an Oklahoma appeals court vacated his conviction on the ground that the crime had taken place in Indian Country. The appeals court relied on earlier rulings that crimes committed on reservations by or against Indians could not be prosecuted by state authorities.
Federal prosecutors then pursued charges against Mr. Castro-Huerta, and he pleaded guilty to child neglect in federal court and entered a plea agreement calling for a seven-year sentence. His sentencing is scheduled for August.
Prosecution in a tribal court was not an option in the case, as tribal courts generally lack authority to try non-Indians for crimes against Indians.
In asking the Supreme Court to weigh in on the case, Oklahoma v. Castro-Huerta, No. 21-429, John M. O’Connor, Oklahoma’s attorney general, said the justices had “never squarely held that states do not have concurrent authority to prosecute non-Indians for state-law crimes committed against Indians in Indian Country.”
Lawyers for Mr. Castro-Huerta responded that the Supreme Court, lower courts and Congress had all said that crimes committed on reservations by or against Indians could not be prosecuted by state authorities.
In his petition seeking review, Mr. O’Connor had also asked the Supreme Court to address a second question: whether the McGirt decision should be overruled. In its order granting review, however, the Supreme Court said it would only consider the narrower question of whether states can prosecute non-Indians for crimes against Indians on reservations.
Writing for the majority in McGirt, which was decided by a 5-to-4 vote, Justice Neil M. Gorsuch said the court was vindicating a commitment that grew out of an ugly history of forced removals and broken treaties.
“On the far end of the Trail of Tears was a promise,” he wrote, joined by what was then the court’s four-member liberal wing. “Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever.”
In the wake of the death of Roe, Justice Clarence Thomas all but begged red states to send the Roberts Court more civil rights cases so that he can personally dismantle them and return America to the violent depths of Reconstruction. Texas GOP AG Ken Paxton seems more than happy to do just that.
Texas Attorney General Ken Paxton last week seemingly expressed support for the Supreme Court potentially overturning past rulings on cases involving the LGBTQ community following the downfall of Roe v. Wade on Friday.
In a separate concurring opinion Friday, Supreme Court Justice Clarence Thomas questioned a number of the high court's past rulings, including Obergefell v. Hodges, which established the right of same-sex couples to marry, and Lawrence vs. Texas—a 2003 decision in which the court ruled against the state of Texas regarding a 1973 law criminalizing the act of sodomy.
Thomas also mentioned Griswold v. Connecticut, which established the right of married couples to use contraception without government interference. "In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is 'demonstrably erroneous,'" Thomas wrote. "We have a duty to 'correct the error' regarding these established in those precedents."
During a Friday appearance on News Nation's "On Balance with Leland Vittert," Paxton said he would support the Supreme Court revisiting the cases mentioned by Thomas and defend Texas' long-unenforced law against sodomy.
"I'm sure you read Justice Thomas's concurrence where he said there were a number of other of these issues, Griswold, Lawrence and Obergefell he felt needs to be looked at again," Vittert told Paxton. "Obviously the Lawrence case came from Texas... would you as attorney general be comfortable defending a law that once again outlawed sodomy? That questioned Lawrence again or Griswold or gay marriage? That came from the state legislature to put to the test what Justice Thomas said?"
"Yeah, I mean there's all kinds of issues here, but certainly the Supreme Court has stepped into issues that I don't think there's any constitutional provision dealing with," Paxton responded. "They were legislative issues and this is one of those issues and there may be more. So it would depend on the issue and dependent on what state law had said at the time."