When I first saw and twitted about the Dallas newspaper story, it was because it was a funny story, a pregnant woman in the HOV lane claiming that her fetus was her second person in the car.Come on, it’s hilarious, right? But as funny as it may be, it’s also a legitimate issue, even if driving in the carpool lane isn’t the biggest legal deal around.
There’s a point here, one that lawyers who will be left to clean up the mess left behind by the Dobbs majority and the great many aspiring midwits in state government seizing the opportunity to convert their simple-minded dreams into fevered reality fail to grasp. Law is hard. Good law is extremely hard. Bad law is not merely a social disaster and failure, but gives rise to myriad new and heretofore unconsidered problems.
And in the rush to leap on the back of the Dobbs decision to prove to Reverend Billy Bob’s tent people that you hate abortion more than anyone else, a laundry list of crimes, prohibitions, threats and promiscuous evisceration of the basic rights that we’ve taken for granted are not only on the chopping block, but being chopped by the grinning fools of state legislatures.
Oh boy, are we in for a decade or two of disaster. On the one side, it’s happening with gun laws designed to circumvent the Bruen decision. On the other side, it’s old school religious freaks against the new school religious freaks, and suddenly issues that never needed to be decided before are on the table.
“Some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter,” [Justice Kavanaugh] wrote. “For example, may a state bar a resident of that state from traveling to another state to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”
Is that how it works, Brett? In “your” view? Is that all it takes to resolve what will obviously become a battleground over life and death? What the hell were you thinking, if you were thinking at all?
A few hours later, Rory Little, a law professor at the University of California’s Hastings College of the Law, noted a bit of irony on Twitter: “Justice Kavanaugh votes to overrule abortion protections because not specifically mentioned in the Constitution — and then his concurrence relies on an unwritten ‘constitutional right to interstate travel.’”
Our ability to travel from state to state as a citizen of the United States of America, unfettered by guards at the border demanding our papers or requiring us to pay an entry or exist fee, has long been taken for granted. Of course we can travel from state to state. For any reason or no reason. Since when do Americans need to explain to some border guard at the Jersey line why he wants to drive down Route 80?
But the Constitution doesn’t say so. The Supreme Court has said so, kinda sorta, but it’s never clearly enunciated why this is a right or whether it’s subject to limitations by states who decide that crossing borders to engage in criminal conduct, whether in the state in front or the state behind, is okay.
“We need not identify the source of that particular right in the text of the Constitution,” Justice John Paul Stevens wrote in a 1999 decision of “the right of a citizen of one state to enter and to leave another state.”
Similarly, Justice William J. Brennan Jr. wrote for the court in 1969 that “we have no occasion to ascribe the source of this right to travel interstate to a particular constitutional provision.”
But it’s all cool in justice Kavanaugh’s, and only Justice Kavanaugh’s, view?
Justice Kavanaugh, for his part, cited no precedents or constitutional provisions for his statement that a state may not “bar a resident of that state from traveling to another state to obtain an abortion.”
As argued when the Supreme Court in Dobbs did the unthinkable (to me, at least) of unfinding a right that its predecessor found and upon which a nation relied for almost 50 years,the legal instability this would cause would be manifest. You don’t just snap your fingers, make a right go away, and that’s that. That’s just the very beginning of a million questions, problems, scenarios and situations that will assuredly arise to wreak havoc with the fragile eco-system of law in the even more fragile eco-system of hyper-partisan politics.
Where it ends up is anyone’s guess at the moment, though states leaping to criminalize abortion, whether surgical or medicinal, whether the person performing or receiving, whether working for companies that will assist in their going to another state where abortion is lawful threatened with prosecution as aiding and abetting murder, and the list of lunacy goes on. This is merely the beginning of a million new laws and their ensuing challenges, whether directly or on behalf of those prosecuted for the commission of the crime of doing what’s lawful in a sister state because she stepped over a border.
And if this isn’t bad enough to make one’s head spin at the obvious reality of a struggle to see who can bludgeon whom to death with the stupidest and least constitutional law possible (yes, kids, the zealots on the right hate your freedoms every bit as much as the zealots on the left), the battles will persist causing massive legal and social disruption and giving the crazies at the fringes of both sides plenty of ammunition to keep shooting at each other.
Guess who will be in the crossfire as this legal lunacy goes on for the rest of our natural lives?
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