What Does Sen. Warren Mean About Providing Abortions On Federal Land?
June 27, 2022 3:06 PM Subscribe
Senator Warren has been quoted, (for example, here) suggesting that the federal government could provide abortion services on federal lands in states where it’s now prohibited. Does anyone understand what she means, legally?
That is, this would be terrific if it worked, but I am a lawyer, and as far as I know state laws still operate everywhere within a state, even if the land you’re standing on is owned by the federal government. There’s no gap in the coverage of state law that lets you, e.g., commit acts that would be battery under state law so long as you’re standing in a federal office building. On the other hand, while I am a lawyer, Senator Warren is a better one, so maybe she’s thinking of something I’m missing.
Does anyone get this on a legal level so that they can explain it to me?
Came here to say the same thing with a different link: Preemption.
posted by tiamat at 3:27 PM on June 27, 2022
posted by tiamat at 3:27 PM on June 27, 2022
Response by poster: Threadsitting here, but if there were a federal law making abortion legal throughout the country, it’d preempt state law everywhere, regardless of whether it was federal land or not. But the problem there is passing the federal law making abortion legal everywhere.
I’ve had the existence of federal enclaves pointed out to me, which are areas where some state laws don’t apply, and which must be what Warren was talking about. Unfortunately, as far as I can tell so far, there’s a federal statute stating that the state criminal law, which would include abortion prohibitions, applies within federal enclaves:18 usc 13. At which point I don’t think Warren’s idea works, at least not without changing federal law which is the whole problem. But if someone has a workaround, please walk me through it.
posted by LizardBreath at 3:49 PM on June 27, 2022
I’ve had the existence of federal enclaves pointed out to me, which are areas where some state laws don’t apply, and which must be what Warren was talking about. Unfortunately, as far as I can tell so far, there’s a federal statute stating that the state criminal law, which would include abortion prohibitions, applies within federal enclaves:18 usc 13. At which point I don’t think Warren’s idea works, at least not without changing federal law which is the whole problem. But if someone has a workaround, please walk me through it.
posted by LizardBreath at 3:49 PM on June 27, 2022
Samantha Bee had a segment about this, that National Parks are federal enclaves and that state law didn’t apply. She interviewed a lawyer and a ob/gyn on location in Yellowstone. I’m on mobile now, will try to find a link later.
posted by phliar at 4:00 PM on June 27, 2022 [1 favorite]
posted by phliar at 4:00 PM on June 27, 2022 [1 favorite]
Isn't the work-around just passing a new federal law that would preempt state law and also amend 18 USC 13 if needed? "Just" is the problem with the prior sentence, but in concept the answer to wanting to change a federal law is to pass a new federal law.
posted by Mid at 4:02 PM on June 27, 2022
posted by Mid at 4:02 PM on June 27, 2022
I love Warren, voted for her, donated to her, but it's worth being aware she's not shy about whistling past precedent when she says stuff like this and doesn't waste time adding caveats and maybes when she's advocating for stuff. For example, I thought her wealth tax would be great policy but it would have been of unsettled constitutionality.
Without speaking specifically about Warren or any other member of a political party as a candidate, the way policies of unsettled constitutionality get to be of settled constitutionality is to implement them and fight out the court case.
The question you ask is v complicated and I want to address it, but don't have time to do so fairly. I'll try to come back later with a better comment.
posted by praemunire at 4:12 PM on June 27, 2022 [12 favorites]
Without speaking specifically about Warren or any other member of a political party as a candidate, the way policies of unsettled constitutionality get to be of settled constitutionality is to implement them and fight out the court case.
The question you ask is v complicated and I want to address it, but don't have time to do so fairly. I'll try to come back later with a better comment.
posted by praemunire at 4:12 PM on June 27, 2022 [12 favorites]
So I believe there is a difference between federal land - which may be being referred to above as enclaves - and federal property.
So for example: federal military bases are generally exempt from state laws. I'm not sure about 18 US 13, which you cite above, but I know that while I was serving, military members with personally owned firearms who resided on base in a state which outlawed said firearms were simply advised not to bring the firearms off base. State taxation also doesn't apply - this is why alcohol is often cheaper on military bases (and cigarettes were too until the military decided to discourage smoking).
Similarly, this is what allows indigenous lands to have things like casinos and fireworks sales despite what the state says: because it's not as simple as "federal law trumps state law", it's specifically that those state laws do not apply on those lands.
However, most federal property is not on federal lands - your average, say, post office, is not residing on federal land, though I believe some if not all VAs are.
Looking more into enclaves, it looks like the date on which a place became an enclave largely governed which rules ("cession statutes") were agreed to between the state and the federal government.
posted by corb at 4:24 PM on June 27, 2022 [4 favorites]
So for example: federal military bases are generally exempt from state laws. I'm not sure about 18 US 13, which you cite above, but I know that while I was serving, military members with personally owned firearms who resided on base in a state which outlawed said firearms were simply advised not to bring the firearms off base. State taxation also doesn't apply - this is why alcohol is often cheaper on military bases (and cigarettes were too until the military decided to discourage smoking).
Similarly, this is what allows indigenous lands to have things like casinos and fireworks sales despite what the state says: because it's not as simple as "federal law trumps state law", it's specifically that those state laws do not apply on those lands.
However, most federal property is not on federal lands - your average, say, post office, is not residing on federal land, though I believe some if not all VAs are.
Looking more into enclaves, it looks like the date on which a place became an enclave largely governed which rules ("cession statutes") were agreed to between the state and the federal government.
posted by corb at 4:24 PM on June 27, 2022 [4 favorites]
Full Frontal with Samantha Bee, Abortions on Federal Lands
posted by kirkaracha at 4:31 PM on June 27, 2022 [4 favorites]
posted by kirkaracha at 4:31 PM on June 27, 2022 [4 favorites]
The idea is that in Federal territory, it's the Federal government that has the "general police powers" (i.e., public safety power, inclusive of basic criminal law and health codes) that are normally delegated to the States.
Ever received a traffic ticket on a Federal reservation? It's issued by a Federal officer and it doesn't necessarily get reported to the state DMV.
I don't know whether there's any precedent that would apply directly to this; but not that long ago it was affirmed that VA hospitals can operate under their own national standards. (See, e.g., VA National Standards of Practice.)
And since we don't know, why not try? And let SCOTUS make its hypocrisy even plainer, if that's how it goes.
After all, what are they going to do in retribution? Overturn Roe? Oh.
posted by snuffleupagus at 4:42 PM on June 27, 2022 [1 favorite]
Ever received a traffic ticket on a Federal reservation? It's issued by a Federal officer and it doesn't necessarily get reported to the state DMV.
I don't know whether there's any precedent that would apply directly to this; but not that long ago it was affirmed that VA hospitals can operate under their own national standards. (See, e.g., VA National Standards of Practice.)
And since we don't know, why not try? And let SCOTUS make its hypocrisy even plainer, if that's how it goes.
After all, what are they going to do in retribution? Overturn Roe? Oh.
posted by snuffleupagus at 4:42 PM on June 27, 2022 [1 favorite]
Sending a MeMail.
posted by crunchy potato at 7:37 PM on June 27, 2022 [1 favorite]
posted by crunchy potato at 7:37 PM on June 27, 2022 [1 favorite]
For anyone else whose interest is piqued, 18 U.S.C. 13 is the "Assimilative Crimes Act."
From an archived DOJ manual page:
posted by snuffleupagus at 8:04 PM on June 27, 2022 [5 favorites]
From an archived DOJ manual page:
The Assimilative Crimes Act, 18 U.S.C. § 13, makes state law applicable to conduct occurring on lands reserved or acquired by the Federal government as provided in 18 U.S.C. § 7(3), when the act or omission is not made punishable by an enactment of Congress.Emphasis added.
Prosecutions instituted under this statute are not to enforce the laws of the state, but to enforce Federal law, the details of which, instead of being recited, are adopted by reference. In addition to minor violations, the statute has been invoked to cover a number of serious criminal offenses defined by state law such as burglary and embezzlement. However, the Assimilative Crimes Act cannot be used to override other Federal policies as expressed by acts of Congress or by valid administrative orders.
The prospective incorporation of state law was upheld in United States v. Sharpnack, 355 U.S. 286 (1957). State law is assimilated only when no "enactment of Congress" covers the conduct. The application of this rule is not always easy....
posted by snuffleupagus at 8:04 PM on June 27, 2022 [5 favorites]
And so possibly an "Administrative Order" from HHS and the US Public Health Service ordering Federal facilities within an enclave to provide abortion services would be sufficient to prevent state law from "overriding" it with criminal sanctions.
That's still a bit short of announced preemption of the criminal law, or explicitly carving it out from the state law received, which I guess could leave the door open to the awful scenario that the protection practically ends when the patient and the staff leave the enclave, as a state might try to snatch then and prosecute them anyway; setting up a habeas fight.
posted by snuffleupagus at 10:06 AM on June 28, 2022 [1 favorite]
That's still a bit short of announced preemption of the criminal law, or explicitly carving it out from the state law received, which I guess could leave the door open to the awful scenario that the protection practically ends when the patient and the staff leave the enclave, as a state might try to snatch then and prosecute them anyway; setting up a habeas fight.
posted by snuffleupagus at 10:06 AM on June 28, 2022 [1 favorite]
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If there is a conflict between state and federal law (and the federal law is valid, within the power of federal government, etc.) the federal law wins.
You are correct that state law would by default apply on federal lands. But Warren seems to be suggesting that the president has enough executive authority under existing law that he could provide health care to women on federal lands. In which case the states couldn't then make it illegal. (Whereas the president clearly has no power to just say "I invalidate these state laws in toto.")
I have no idea if this would work, legally & constitutionally, but it would depend on existing laws and regulations about use of federal land and the exact wording and goal of the presidential order, so at a minimum it would bypass this particular Supreme Court ruling. It's an avenue to pursue, if nothing else.
I love Warren, voted for her, donated to her, but it's worth being aware she's not shy about whistling past precedent when she says stuff like this and doesn't waste time adding caveats and maybes when she's advocating for stuff. For example, I thought her wealth tax would be great policy but it would have been of unsettled constitutionality.
posted by mark k at 3:24 PM on June 27, 2022 [9 favorites]