South Carolina bill outlaws websites that tell how to get an abortion
washingtonpost.com
washingtonpost.com
SC would have no recourse for web hosts that have no nexus within it's borders?
Are they going to start to force local ISP's to block out of state hosts?
Think I'm joking? This is the stated judicial philosophy of the majority of Supreme Court justices. There is no traditional deeply rooted in American tradition that says anything about the Internet, either.
Moreover, when taking that mode of interpretation, it doesn't say anything about the States, nor does the 14th Amendment say anything about some of the rights protected against federal intrusion by the Bill of Rights.
The Court will rely on this precedent where convenient, I suspect.
It's complicated.
Obviously a website cannot simply proclaim to only facilitate the dissemination of information to people exclusively in one state, or to exclude people in another. There is practically no concept of mutual exclusivity or mutual inclusivity on the internet, so then it's abjectly "interstate" or even "international". But it's not that simple.
The commerce clause tends to apply to federal laws, of things that transit state or territorial lines. Just because something could transit a state line, does not mean the all things in all states are automatically under federal regulation, or that federal regulation has supremacy. Obviously certain things are legal in one state but not in others, and things might be legal or illegal at a federal level regardless of interstate commerce.
The question is, is free speech subject to interstate commerce? What about commercial speech (which is afforded less 1st amendment protections)? Since we are talking about free speech, commercial or otherwise, does the idea of commerce clauses even apply? According to Heller case, and recently reaffirmed by the NY v Bruen case, when dealing with civil liberties the courts must apply strict scrutiny.
So it might boil down to a simple 1st amendment case without any commerce clause mental gymnastics.
Laws are allowed until the Court rules on them. The states can pass all manner of fucked up laws (and they will), and they will stand while we figure this out -- or, until the Supreme Court rules in their favor.
Edit: changing Supreme Court to Courts, since the appellate court exists. But the point is the same.
No, they aren't. Unconstitutional laws are unconstitutional ab initio, and lower courts can and do refuse to enforce laws on that basis, and the Supreme Court may never even get to rule on them since appeal to the Supreme Court is not by right; the farthest that cases in the federal system get by right is the Court of Appeals.
Courts don't enforce laws, but I get what you mean. I have no confidence whatsoever that appellate courts will do anything about these laws. There has been a willful, deliberate, strategic stacking of the judiciary starting in the early 2000s to get us to this place.
Sorry to repeat myself, but we really can't all sit back and reference our civics books as if this system is still functioning to protect us against these fucked up laws. It's over. Stare decisis is now at the whim of the political affiliation of the courts.
Out of curiosity, what about the current makeup of appellate courts in this region + the Supreme Court makes you think this is going to get shut down quickly?
That being said I would hope this is an open and shut enoght case under the 1st Amendment and the Interstate Commerce clause to justify this. Which I would hope overrules personal agendas in the court.
I know a lot of people are upset with the overturn of Roe v Wade, but even the initial judges in that case said the constitutional ground that case was ruled on was shaky, which my understanding is the basic job of the SC is to rule on the constitutionality of laws. Now decades of an activist judiciary have distorted that concept as the legislative branch has chosen to abdicate their responsibility for their own gain, but the fact still stands, congress should be making the laws and the courts deciding if they are constitutional.
The Supreme Court ruled on the constitutionality the first time. If it’s up to Congress to make the laws, then why did the Supreme Court intervene this time? They could have kicked this back to congress and said: “We already ruled on this. If you want a different outcome, do your job.” But they didn’t.
Your citation to Wickard v. Fillburn for support of this is...bizarre. That case took what some view as an unreasonably expansive view of the federal power under the ICC, but that does the opposite of supporting the contention that it was “hollowed out” in a way that expands state power into the reserved federal space.
It explicitly says Congress however it is currently interpreted that it applies to all governmental organizations. Federal, state and local. It has previously been argued that the same limitation on interstate law existed at the state level, as the authority of a state could not exceed that of the congress when it came to national matters. If congress effectively has no limitation, there is no limitation to exceed.
No, it isn't.
States are limited by the 14th Amendment. Now, the Supreme Court has interpreted the Due Process Clause of the 14th Amendment to apply a whole lot of substantive rights against the states, including rights exactly identical to those protected against federal interference by the 1st, 2nd, 3rd (but only, to date, but one Circuit Court), 4th, 5th, most of the 6th (except for the jury locality requirement), and 8th (but maybe not the excessive bail requirement) amendments.
> It has previously been argued that the same limitation on interstate law existed at the state level, as the authority of a state could not exceed that of the congress when it came to national matters.
The interstate commerce clause argument against the state isn't that states can't do what Congress can't: that states can regulate purely intrastate Commerce is not subject to serious dispute.
The argument is that the interstate commerce clause itself prohibits many state regulations of interstate commerce, and further empowers Congress to further narrow the permissible space of state regulations of interstate commerce.
> The argument is that the interstate commerce clause itself prohibits many state regulations of interstate commerce
If you argue that states have the right to regulate interstate commerce AND the congress can pass a bill in regards to abortion because doing so is in the interest of interstate commerce. Then why can't a state pass a law that allows fathers of children that were aborted in another state to sue the abortion provider that did the procedure?
On the other hand what if we agreed that having an abortion isn't a matter of interstate commerce, then congress would not have the authority to regulate it nationally and states wouldn't be able to do so either.
States have the power to regulate intrastate commerce within their own state. They have very limited power with regard to interstate commerce (limited, very roughly, to nondiscriminatory regulation of transactions within the state which impact interstate commerce and where such regulation also is not in conflict with federal regulation of interstate commerce), because interstate commerce is expressly Constitutionally a federal function, and state action in that domain otherwise interferes with that federal function. A more expansive view of the federal power here narrows, rather than expands, the state power.
The law isn't determined on a factual, textual or even a logical basis. Gitmo, civil asset forfeiture, mass surveillance, dread scott, alien and sedition, japanese american internment camps, executive order 6102, roe. It's a political system and it reflects the political thinking at the time. The consensus you outline here is a bad idea, full of logical leaps, and it will lead to ruin, but I guess it will take the other guys getting into power to prove that to some people.
You are talking about how things are, I'm trying to say that they could be something else.
Article gets into this a bit: "Eric Goldman, a professor at Santa Clara University School of Law, said the First Amendment and Section 230, a bill that shields internet providers and tech companies from liability for the posts, photos and videos people share on their sites, provide a strong defense in many instances for websites and providers facing lawsuits over hosting information about abortion access."
While none of those bills related to abortion, I'm still skeptical the courts would let this bill stand
It's more about scoring brownie points with your base and tying up your opponents in litigation for years... Even if they know the law is blatantly unconstitutional, there's no real downside to the legislatures (assuming their constituents support the unconstitutional law)
Where this would fall afoul is likely interstate commerce. South Carolina can't declare a website hosted in California illegal due to jurisdiction. They might be able to convince ISPs to block them, though.
So by that logic, you should be able to sue the owner of a website - as long as it is within the state, because they're aiding and abetting a person with her abortion, by providing the knowledge?
Prior to SCOTUS overturning Roe v Wade, other states were preparing their own bounty laws. I believe those have since been abandoned in favor of criminalizing abortion after overturning Roe v Wade. So I don't think we're going to see dedicated bounty laws, though bounties may be built into anti-abortion laws going into criminal code.
False. The trigger law does not supersede the bounty law, it complements it. Acts can be torts and crimes simultaneously, and when they are both, they can be pursued as either or both.
This basically tells you everything you need to know. These people want to put women in jail and they don't care about niceties like "inter-state commerce" because in their mind they're fighting Al Capone. I hope commenters on here stop minimizing what these groups are trying to achieve. The reversal or Roe was not about "kicking it back to the states", it was the first step in trying to make abortion access illegal nationwide.
It's also very much the "surely the face-eating leopards party won't let leopards eat my face!" mindset.
I've heard anecdotal reports from some people who have more conservative family members than I that some of them are actually starting to realize that there won't be the "reasonable exceptions" they were just assuming would exist, and getting genuinely worried.
[0]: https://crookedtimber.org/2018/03/21/liberals-against-progre...
There are plenty of people who oppose abortion that are appalled at something like this or the Texas bounty hunting law. If we continue to try and paint each other group as a monolithic enemy other division will continue to rise and polarization will increase and the effects will be devestating.
(Edited to add: there is a separate frustration of the poster of people claiming that diverting reproductive justice to state determination is reasonable. The poster is saying they are frustrated with that statement because it ignore the above fact. I also don’t think this is painting anyone with a broad brush… it is painting specific people’s specific argument as being myopic.)
Then perhaps the other group should not have monolithically spent decades fighting against and removing human rights from people I care about.
So you can worry or you can act.
And to be frank, I don't care if they're unhappy to be lumped together. Lie with dogs and all that.
This is a bit... difficult to take seriously. They are being painted by the general actions at large that they are causing. If you want them to be seen in their best light, try to get their best light into the spotlight.
"large pulled back" belies the fact that the motives are ulterior.
> consequences are largely left up to the people who choose to use those things
In the case of banning abortion, you're denying choice and autonomy. You're saying a woman HAS to give birth even if it wasn't her choice. Even if she was raped. Even if she's 10 years old.
If you don't find that stance appalling, I don't know what to say.
Forcing a birth of a badly unwanted human being, who is going to suffer through life being badly unwanted, is a rather different thing.
And forcing a woman to keep carrying a pregnancy which is dangerous to her life (and thus to the prospective baby's life anyway) is not just indifference, it's a direct opposite of care.
Speaking of things that aren't related. I don't see how those things being legal is even somewhat related to making abortion illegal or making it legal to bounty hunt women. You're going to have to explain that connection to me a bit more.
How does Constitutional case law factor into the question of mass baby murder?
Consider:
You watch someone die in front of you while you hold in your hands the thing that could save their life, but refuse to give it. Is that murder? Maybe, possibly, there's an argument that it's something else but I'm comfortable with this. Should a person be allowed to do it? Again maybe, but I'm ok with no, that's a bad crime, they shouldn't be allowed to do it.
You watch someone die in front of you while the thing that could save them comes from your own body. A blood transfusion, say, or whatever, a fingernail clipping, it doesn't matter really. This is morally the same transgression as the first example. But in this case we have clearly and consistently decided that you are allowed to make this choice. It may be evil but it is not a crime.
If you don't allow the second choice, then you open the door to things like medical experiments on nonconsenting people and organ harvesting. The boundary around bodily autonomy needs to be firm or you permit atrocities.
Abortion may be murder! You can believe it is. But the fact that the life depends on the body of another person means they have the choice not to render aid.
Which "these people" are you referring to? Roe was remarkable in its ability to unify disparate groups: evangelicals and Catholics who oppose abortion categorically, right-leaning independents who support some level of abortion but want more restrictions than Roe allows, and Constitutionalists who find Roe incomprehensible as an assertion of Constitutional law.
Now that Roe is gone, some of those folks will indeed try to "make abortion access illegal nationwide." But hardly everyone who opposed Roe to begin with: https://www.pewresearch.org/fact-tank/2022/05/06/wide-partis.... Just 13% of Republicans are true believers who think abortion should be categorically illegal. The vast majority, 38% think it should be "legal in all or most cases." Most fall in the mushy middle.
In their mind they think they're fighting Satan.
One party unanimously voted in favor of it.
The other party voted 96% against it.
I'll leave which party is which as an exercise to the reader.
Don't get me wrong. There is definitely an abortion rights disaster in progress. It's just that this disaster was manufactured only to distract from a larger, more powerful, disaster.
Have you noticed how expensive everything is lately?
And how will this debacle affect your vote?
Have you noticed that supply and demand can change prices? Such as supply of young people performing labor in an aging country demanding ever more labor, or international conflicts and responses to infectious diseases disrupting supply chains. And of course, the government’s monetary response, but the point is that unless you have a source for a conspiracy, I do not see why it should merit consideration.
Voting itself is a sham. I'm provided with the choice of a baboon and chimp for a leader, alternately I can stand for elections for a troop of monkeys, what can I say?
Yes, and it makes me angry that so many commenters on this and other forums said, "Well, they have a point. It should be left to the states." As if women whose lives are at risk can wait for their judicial philosophy to cleanly play out; as if the raped 10 year old being forced to travel out of state to have an abortion was just how it goes while we figure out how to get the book keeping figured out; as if the woman who was forced to carry a dead fetus inside her for weeks because the hospital didn't want to risk being sued was just one of those tragic, unforeseeable, unavoidable victims of our imperfect democracy.
These are lives we're talking about here. And it's only going to get worse. Sorry to use a cliche, but wake the fuck up y'all.
No other developed country has approached the abortion issue by saying "pfft the rules don't matter." The EU Court of Human Rights just last year refused to recognize a universal right to elective abortions. In every European country where abortion is legal, advocates of abortion made their case to the people, and the people decided whether to allow it and under what circumstances. In some cases it took a long time--Ireland legalized it just in 2018. But that's how civilized societies operate.
Your thinking is how third world countries operate. They say "lives are at stake" (or something similarly weighty) and use that to justify ignoring the legal process. As someone from one of those countries let me tell you that you do not want to go down that road. The rules are more important than anything else. They are more important than any individual lives. Because the rules are what make civilization possible. If you disregard the rules on issues that you deem sufficiently important to you, that frees the other side to ignore the rules on issues they deem sufficiently important to them, and it goes quickly downhill from there.
For example, Colorado and other states have legalized weed. They don't need to wax poetic about separation of powers etc to defend their position, because everyone understands that this is exactly what the Federal system was designed for. To allow states to augment their economies and taxation systems as they see fit (going back to colonial era reasoning).
Throughout US history the most vocal proponents of states rights have been those who attempt to limit personal liberties. They first use the constitution as a jumping board, arguing that "it's not explicitly stated in the constitution!" because the constitution is limited and vague (The founding fathers intentionally kicked the can down the road for racial issues). Technically, the regressives are right here, but they are hiding behind legalism to protect their abhorrent viewpoints.
"If it's so popular then just vote on it then!"
Unfortunately it's not so simple. At the Federal level, a filibuster proof majority is required in the Senate (non-proportional) as well as full control of all three branches of government (president and congress are also non-proportional, although in a different way). So it's incredibly difficult to pass overwhelmingly popular legislature/amendments in the US. Which is precisely why we have seen most of our civil rights gains over the last 50 years be accomplished through the court system. At the state level, there is no filibuster (mostly) and so there is no mechanism for a minority to halt legislation at the state level.
This kind of game has been played out for the last 200 years. Yes rules are important, but the reactionaries in US history have typically "meta-gamed" the flaws in our system that were overlooked by the founding fathers in order to preserve horrendous practices. That's not to say that there is no benefit to our checks and balances, but when it comes to things like civil rights, gay marriage, and abortion, the opposing side is mostly meta-gaming and exploiting checks and balances negatively.
To sum up, corruption in the third world occurs by circumventing the laws. Corruption in the US occurs when you put someone in a position of power to interpret the laws the way you want them to. If you need sources, I can provide.
> No other developed country has approached the abortion issue by saying "pfft the rules don't matter."
The Roe decision was not made on "rules don't matter" it was an extension of the due process clause in the 14th amendment. The overturning of it was made on interpretations of common law going back to the 14th century, the main point of argument being that there was "no innate protection of abortion as a fundamental right".
We’re already there. That’s already happened. Stare decisis — remember when all the justices who just ruled to overturn Roe called it “settled law”? Remember when the Republican Senate refused to consider Obama’s Supreme Court nominee? Remember when the courts gutted the voting rights act? Remember when the courts determined the outcome of Bush v Gore? The side that “won” this argument didn’t do it by playing by the rules. Because the court doesn’t have rules. The constitution doesn’t outline any of the philosophy that you are calling “rules.” So sitting back and saying “let’s just play by the rules” is handing a victory to a side that doesn’t care for them.
If you watch this youtube video of Kavanaugh answering questions I never get the idea that he says he won't overturn Roe v Wage, or that it is a binding or super precedent.
You needn't use your real name, of course, but for HN to be a community, users need some identity for other users to relate to. Otherwise we may as well have no usernames and no community, and that would be a different kind of forum. https://hn.algolia.com/?sort=byDate&dateRange=all&type=comme...
The phrase is often used as if it's meant to suggest that they're fighting off federal government overreach. In fact, it's used exactly to allow them to have overreach over you, at the level that they can make it happen. When they get the opportunity to control it at the federal level, it will stop being "left to the states".
It's very much about denying individual liberties, using Orwellian language making it seem otherwise.
People in the US are able to freely travel between states, this isn't the case elsewhere in the world. Some things are crimes in some jurisdictions and not others, this is normal.
If you think it's inadequate, pass an amendment to the constitution, that's what the amendment process if for. If you think the process to too burdensome, encourage your state to secede.
This is not a right that is specifically enumerated by the Constitution. The current Supreme Court has indicated that rights that are not specifically enumerated by the Constitution are subject to evaluation and curtailment.
Easier said than done, for many.
One really simple example of what the SCOTUS could do is they could rule that an unborn child - from the time of conception - is covered by the rights laid out in the 14th amendment.
Takes all choice back away from the state once more.
Do you know of countries with a federal government and where people can't travel freely between the member states? The ones I know don't have this problem so I'm not sure how that's something unique to the US.
“We could have acknowledged it was bad reasoning in a legal context but not a human rights and that a fix would just create the same status quo and left it.” — sane people
Agreed; this was a political flex to remind the proles grandpa is still sitting in the corner rambling nonsense.
Was this motive ever hidden?
Abortion should be illegal. I hope each state passes laws criminalizing it. That has always been the goal.
The ‘judicial philosophy’ crap emerged due TO roe V. wade. The decision made a mockery of the constitution.
The millions upon millions of people working and praying and picketing and voting on this issue for the past 40 years we’re doing it to save babies… not to defend some abstract philosophy.
If one ‘bans’ murder, the legislatures and courts will need to grapple with killing in self-defense, pulling the plug on a brain-dead vegetable, administering drugs in some cases that have a high risk of death, assisting in a suicide, accidentally causing a death vs intentionally, etc.
This isn’t new.
Each state crafts it’s own laws to address these things, each prosecutor uses his discretion in applying them, each jury or grand jury weighs in, each judge crafts a sentence taking these things into consideration, etc.
In short your edge cases are nothing new… every law is over and under inclusive. The judicial system as a whole has been dealing with these issues for centuries.
If you don't investigate every miscarriage, what's the criteria for getting the state involved? Do you wait for family or neighbors to report a crime? Do you track medical appointments and make a judgement as to when a birth was expected and didn't happen?
I'm not sure you've thought this through.
Every felony charge goes through a grand jury.
Indeed, every death is investigated to some extent. Every county has a coroner, some states have full-blown inquests after each death.
Do you think when grandma dies of old age she’s just taken to a funeral home and that’s that?
There’s more to it.
If something looks suspicious, it’s kicked up to the next level. If questions remain, it’s kicked up another level.
I don’t mean to sound rude, but you seem to have little experience with the day-to-day legal processes surrounding every death. You may be more familiar with a crime like arson. As you MAY know, every single structure fire is investigated. Some turn out to be arson. Some don’t. These processes exist, always have existed, and I think you’re straining.
>I’m not sure you’ve thought this through.
I’ve been doing this for a living for over 25 years.
Whether your pro-choice or pro-life isn’t my concern. God bless you either way. But, the criminal process regarding abortion existed for centuries prior to Roe v. Wade. It’s really not as complicated as you make out.
This bill isn't law, which is what I thought based on the headline.
Edit: seems I was wrong because bill means proposed law, so the clarification would have been redundant
Nobody would say "Terrorist bombed subway" when they meant "Terrorist would have bombed subway" (except that they were stopped, and didn't get the chance).
I even went back to this popular kids’ video to confirm if I was misremembering, but I could not find anywhere “official” that refers to bills as passed laws.
> A bill is a proposed law, by definition. You're assuming bad faith where there isn't any.
All kinds of crazy bills gets proposed that are DOA, especially at the state level. Evaluating some outrage-inducing one for clicks is still bad faith. The real question is "does it have a realistic chance of going anywhere?" If it doesn't, why is it being covered?
However, I can't really judge in this particular case, because the article is paywalled.
Hosting a website:Free Speech/Freedom of the Press(You are the Press when you're hosting a website)
If they try to go the interstate commerce route, they'll be punting up to Federal jurisdiction which will be DoA.
Also hello, new incentive to creatively communicate in code if they even try to effectively enforce this.
Is this targeting private citizens (or companies) that put up websites regardless of where the servers are located?
And/or is this targeting servers running these website within South Carolina.
Obviously both are bad, But I have to wonder if it is the second what this could mean for states like VA where AWS has a datacenter. If they were to enact similar laws.