California Gov. Gavin Newsom signed a new law on Wednesday that aims to stop other states from prosecuting doctors and pharmacists who mail abortion pills to patients in places where the procedure is banned.
California already has a law protecting doctors who provide abortions from out-of-state judgements. But that law was designed to protect doctors who treat patients from other states who travel to California.
The new law goes further by forbidding authorities from cooperating with out-of-state investigations into doctors who mail abortion pills to patients in other states. It also bans bounty hunters or bail agents from apprehending doctors, pharmacists and patients in California and transporting them to another state to stand trial for providing an abortion.
Other states, including New York and Massachusetts, have similar laws. But California’s law also bars state-based social media companies — like Facebook — from complying with out-of-state subpoenas, warrants or other requests for records to discover the identity of patients seeking abortion pills.
While this is great postering; this is a law that will undoubtedly be ignored due to the rendition clause of the US Constitution.
Edit: after looking into this some more there is an argument that if someone has conclusively never been in the requesting during the offense, another state cannot request rendition, see Hyatt v People (1903). It was reaffirmed in Michigan v. Doran (1978).
Based on precedent there has to be no evidence whatsoever that a person was present in the state. It cannot be a question of fact or alibi for the crime itself. Ie., if a state asserts the person was present in the state and the person asserts they were not as an alibi defense, the person would still need to be extradited and can assert the alibi defense in their trial.
I think based on this reading my initial take was wrong, but I am not so sure how true this is with some more modern enactments like the Uniform Criminal Extradition Act.
Here is a law review article that discusses related issues in more depth: https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1558&context=clr#:~:text=Without intervention%2C anti-abortion states,the people that support them.
That covers people who commit a crime in state A and then flee to state B. It’s not clear whether it’s even possible for a citizen of state B to commit a crime in state A without entering state A.
Okay I think current precedent is consistent with your view; thank you for providing an opportunity to learn more about the extradition clause. Constructive presence is not currently considered in the context of the extradition clause.
I am by no means a Trump supporter but I believe what’s good for the goose is good for the gander; Trump was never present in Georgia leading up to the electoral count as far as I am aware, yet he is charged with RICO under state law in Georgia. Do you think he could have simply fought rendition to Georgia?
He made a phone call to Georgia, to influence the Secretary of State to commit fraud. That’s a crime. The victims are the citizens of the State of Georgia. If I shoot you over the state line am I innocent of a crime in your state? No.
This isn’t the 1800s where you flee over the county line and they can’t pursue you.
That is exactly my argument.
Your argument is bad because doctors in one state are not committing crimes in other states. Unless they are leaving their state to perform an operation. Mailing something like medicine may be a crime but these are not controlled substances.
Prescribing FDA approved medication for a valid reason is not a crime that has any victim, regardless of what politicians say.
Morally I am in complete agreement with you. I just think the US law is a lot more nuanced.
Could he? Yes. But in a conspiracy all participants are equally legally responsible for each overt act.
It’s not at all clear that this would violate the Extradition Clause or Extradition Act which implements it. The offense in question isn’t illegal in California and doctors practicing in California won’t have fled from the States that may seek to bring charges.
This law will give California governors another reason to ignore requests from other States, requiring them to try their luck with a writ of Mandamus from federal courts.
Could you explain this further? I’m genuinely curious to know more.
States aren’t allowed to be sanctuary for criminals from other states. I’m not clear on whether active pursuit is required, but if the governor of Texas produces a legal warrant for a person to the governor of California, they are required to act on it. They may not have to perform a manhunt, butbifnthe person is stopped for speeding or something, they would likely be required to arrest them. The only exception is that a state can keep a person for criminal prosecution and imprisonment first, which isn’t relevant for an out of state abortion.
The state could argue that a warrant for performing an abortion isn’t legal as the requesting state had no jurisdiction where the supposed crime occurred. This isn’t required by the law though, so it may be up to the arrested person’s counsel to raise that argument, keeping all the risk on the person still.
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Sure.
https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-2/overview-of-the-extradition-interstate-rendition-clause
Article IV, Section 2, Clause 2:
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
Now arguably one can say that a California person did not flee but that argument has not been explored from what I can gather. Generally rendition seems to be granted given an indictment in another state.
In 18 U.S.C. § 3182 (which enables interstate extradition): Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District, or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District, or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. …
Overall it seems to me that a person charged in another state will be extradited as one could interpret residing in California as “fleeing” say Texas’s jurisdiction.
Edit: see my edit on my top level comment. I’ve dug into this issue in a bit more depth and it feels like this is less of a clear cut issue than I initially thought. Thank you everyone for pointing out the flaws in my logic.
How exactly do you flee from somewhere you’ve never been?
By not coming to your arraignment. Edit: this is a potential legal argument a state could make if they try to overturn Hyatt v People in a Supreme Court case.
Thanks for the further explanation. I’m curious how this is handled if products that are banned in California are mailed there from other states. For instance I recently ordered a plexiglass glue and read that if I was a resident of California they would not mail it there due to a chemical in the glue being banned in California. I’m not a lawyer obviously but to me this seems like a very similar legal situation.
I have dug into this issue in a bit more depth and I think California has more of a ground to stand on than I originally thought. See the edit to my top level comment.
https://constitution.congress.gov/browse/essay/artIV-S2-C2-1/ALDE_00013632/#:~:text=A Person charged in any,having Jurisdiction of the Crime.
It’s interstate extradition. Unless California is going to ignore the executive branch, it’s entirely unenforceable.
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