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Abortion is legal in California. Texas zealots need to get over it.

This is completely ridiculous:

More than a year after Roe v. Wade was overturned, many conservatives have grown frustrated by the number of people able to circumvent antiabortion laws — with some advocates grasping for even stricter measures they hope will fully eradicate abortion nationwide.

That frustration is driving a new strategy in heavily conservative cities and counties across Texas. Designed by the architects of the state’s “heartbeat” ban that took effect months before Roe fell...[new ordinances] make it illegal to transport anyone to get an abortion on roads within the city or county limits. The laws allow any private citizen to sue a person or organization they suspect of violating the ordinance.

Roulette and craps are illegal in California, but it's not illegal to drive someone to Las Vegas to play. Why, we even allow Las Vegas to advertise here in order to lure people into activities that are illegal in California.

This is universal in a country where freedom of movement is guaranteed and the Constitution says "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Texas may not like the fact that abortion is legal in California, but that's tough. The Supreme Court says every state can decide for itself, and the Constitution says other states have to respect that. But there's a problem:

While these restrictions appear to violate the U.S. Constitution — which protects a person’s right to travel — they are extremely difficult to challenge in court, said Mary Ziegler, a law professor at the University of California at Davis who focuses on abortion. Because the laws can be enforced by any private citizen, abortion rights groups have no clear government official to sue in a case seeking to block the law.

This needs to go to court right quick anyway. Someone has standing and someone can be sued, even if no one has yet tried to enforce the law. I know that deputizing private citizens for enforcement is the latest hotness from too-clever-by-half Republicans, but I don't think even crackpot judges like Matthew Kacsmaryk or James Ho would have the balls to uphold statutes like this. Texas abortion fanatics may want to "build a wall" against "abortion traffickers," but they can't. End of story.

86 thoughts on “Abortion is legal in California. Texas zealots need to get over it.

  1. drickard1967

    "I don't think even crackpots like Matthew Kacsmaryk or James Ho would have the balls to uphold statutes like this."
    You are *seriously* underestimating right-wing craziness/zealotry, Kevin.

  2. D_Ohrk_E1

    I would think it just requires a Californian to allow themselves to be sued, in order to give way to a countersuit in California. That way, you can get in through the interstate (commerce) clause.

  3. museumatt

    One question I have with laws like this, among the many obvious ones, is that how do they effect tourists and other travelers? If a pregnant woman has some sort of medical complication while in Texas and leaves for her home state for medical help that includes, for whatever reason, termination of her pregnancy, is everyone who facilitated that return trip liable?

    1. Keith B

      If they can be reached by Texas courts, then yes. If you're pregnant and visiting Texas, and the locals suspect you are leaving to get an abortion, they may well try to stop you. Moral: stay out of Texas if you're pregnant.

    2. J. Frank Parnell

      The fourteenth amendment grants all citizens equal protection under the law. This means a resident of CA has to be treated the same as a resident of TX.

      1. AnotherKevin

        That interpretation would negate state laws very broadly, and I don't think would be correct. At most, residents of CA and TX must be treated equally with respect to federal law (and I'm not sure that is even the recognized doctrine). State governments in different states routinely enforce requirements/limitations on their citizens as compared to other states. And Dobbs means that there is no overriding Constitutional command.

        1. J. Frank Parnell

          California and Texas residents must be treated the same when they are in California and under California law. Likewise California and Texas residents must be treated the same when they are in Texas and under Texas law.

  4. Yehouda

    for Kacsmaryk and Ho to reject this kind of laws will seriously undermine the trust that was put in them by those who appointed them. It is only sane people that object to these laws.

  5. Altoid

    As I understand the way these laws and ordinances are set up, they're like the state's anti-abortion law in that they create a right of action by third parties who have actually incurred no direct harm. That seems to me where the real point of leverage should be-- though we don't really know because iirc our SCOTUS just glided right over this finer point of the abortion ban when it didn't stay its operation.

    I don't know how common it's been for states to create these kinds of private third-party rights, and I don't know whether localities have any authority to do that by local ordinance, leaving aside the local interference with interstate commerce and travel. But it seems facially ridiculous (though that might be just in this kind of instance, if it's been done often).

    As ridiculous as I think it is, let's not forget that Ho's opinion in the mifepristone case did accept third-party harm, in fact was largely premised on it. So I'm with E-6 and drickard1967. There's nothing these zealots won't do if it gets them what they want.

    1. golack

      Environmental laws are set up to let private parties sue offenders. Typically the people involved will have some standing and the government may or may not decide to join in. The anti-abortion laws were meant to make a mockery of private parties helping to enforce laws.

      1. Altoid

        Thanks for the background on private-party enforcement and standing. The TX vigilante provisions are obviously provocations, I just didn't know whether they were parody or invention.

  6. name99

    Pot/Kettle. eg:
    Guns are legal in Texas. California zealots need to get over it.
    Trans legislation is legal in Florida. New York zealots need to get over it
    etc etc

    Federalism died in the US over the course of the 20th C, with plenty of help from both political sides. EVERY important issue from now on will be a federal issue, with neither side willing to limit its demands to its state.

    Hell, thirty years from now this will be remembered as the good old days, before people started making demands about legislation in currents of which they are not even citizens (a path we've already moved down wrt to abortion/gay/women's issues, with trans probably going to be next).

    1. Crissa

      No, constitutional rights are the same everywhere.

      You may own a gun in California, you can bring it from Texas, but you cannot operate it the same way.

      Laws against trans rights are violating constitutional right to be secure in one's person, and violating federal regulations for equal access.

      Eff you if you think equal rights are a football to be punted.

      1. Doctor Jay

        In the case of gender-affirming care, since it is necessary to know that the patient is trans to determine the legality of the care, it is facially discriminatory, and a violation of Equal Protection.

    2. Doctor Jay

      Trans legislation is not legal in FL. The matter is far from settled in the courts. See Doe v. Lapado (https://www.glad.org/cases/doe-v-ladapo/)

      By the way, the text of the Judges grant of a temporary restraining order is well worth reading. Of course, if you seek to eradicate trans people from public life, you won't like it.

      1. Doctor Jay

        Here's Asa Hutchinson talking about the trans law that Arkansas passed: https://www.npr.org/2021/04/06/984829976/gov-asa-hutchinson-on-vetoing-a-bill-banning-gender-affirming-care-for-trans-you

        The Republican Party that I grew up with believed in a restrained government that did not jump in the middle of every issue. And in this case, it is a very sensitive matter that involves parents, and it involves physicians. And we ought to yield to that decision-making, unless there's a compelling state reason.

        Asa Hutchinson on All Things Considered

    3. Murc

      Show me the California zealots who are trying to make it illegal to travel to California to shoot gun, or assist others to do the same.

      Are they in the room with you right now?

  7. realrobmac

    This is fine until the Supreme Court rules that fetuses are persons and abortion is a violation of their rights and therefore unconstitutional. It will happen barring an unforeseen death or two on the court in the next 4 years.

    1. golack

      The problem with a ruling like that is that most fertilized eggs never properly implant and the woman never realizes one of her eggs was fertilized. Such a ruling would mean that women would have to not do anything that any crackpot could think of to interfere with implantation--so no jumping up and down for a week after having sex? Of course she better report that she had sex too so the state can monitor this.

  8. Jasper_in_Boston

    This needs to go to court right quick anyway.

    I don't know if it will get to court quickly or not, but if it's the latter, one silver lining is that the GOP may again reap the political whirlwind in next year's election. Abortion is not working for them as an issue like it used to, pre-Dobbs.

    1. jte21

      Somehow it never occurred to them that if abortion got kicked back to the states, people would actually have to vote on it, then.

      Big mistake.

    2. royko

      SCOTUS already had one chance to knock this nonsense down in the Texas abortion law and chose not to, calling it "novel". I know they wanted to overrule Roe (and eventually did) but these "any private citizen can sue" laws are absurd end runs around the Constitution and our judiciary. I expect they will get around to it eventually because the implications are absurd, but it pisses me off that they were happy to ignore it because it targeted a policy they don't like.

  9. Marlowe

    I have never understood the argument that that these gimmicky Texas laws evade challenge because they are ostensibly being enforced by private parties not a particular government official. Way back in 1948 (before even this old guy was born), the Supreme Court ruled in Shelley vs. Kramer (a famous case that I studied in first year Con Law almost fifty years ago) that restrictive racial covenants barring the sale of property to a black purchaser violated the Equal Protection Clause of the Fourteenth Amendment. While the Court acknowledged that private parties could choose to abide by the terms of such covenants, it held that they could not be judicially enforced since such enforcement would amount to state action and would violate the Equal Protection Clause. Since these Texas vigilante actions would necessarily involve the machinery of the judicial system to enforce (through injunctive relief or collection of damages) actions in violation of the constitutional right to travel, wouldn't they be barred under Shelley? As I noted, its been almost fifty years since I took Con Law, so I'd welcome analysis that distinguishes these cases. (Of course, the real problem remains: the corrupt Republican super-majority on SCOTUS is only interested in outcomes that align with their political preferences not serious analysis of the law.)

    1. ColBatGuano

      Right. What happens if someone is sued, refuses to attend the court hearing and refuses to pay the fine or whatever the judgement is? Are they sending out bounty hunters funded by the plaintiff?

  10. KJK

    Perhaps this madness will stop when these Red states lose enough of their OB/GYN practitioners to provide adequate health care. Same goes for LGTBQ medical practitioners who may leave the hostile environment in many Red states. Time will tell.

    Democrats need to hang this issue around the necks of all their GOP/MAGA opponents in 2024.

    1. Altoid

      Agree with your second paragraph. On the first, why won't these states just forbid graduates of in-state med schools from leaving? And/or forbid any doctor who's ever been paid with state money from leaving? Constitutionality be damned, it's got to be about "respectin' our authoritah!"

      1. Anandakos

        Um, that would be "involuntary servitude", which is banned along with "slavery" in the Thirteenth Amendment. No, it wouldn't be "chattel slavery" where the doctor was held to be the "property" of the State that educated him or her. That's what everyone remembers about the Thirteenth. But it is important to remember that involuntary servitude is also banned, "except as a punishment for crime whereof the party shall have been duly convicted".

        Unless Texas defined graduating from a Texas medical school as some sort of "crime", they couldn't do something like that. I guess they COULD make graduating from a Texas medical university or being paid for practicing medicine in Texas crimes, but it would probably "reduce enrollment" and almost certainly empty the staff rooms at local hospitals.

        Jes' sayin'.

        1. lawnorder

          Even fairly liberal courts have been known to become evasive when it comes to defining involuntary servitude. The draft has been repeatedly held not to violate the prohibition on involuntary servitude. Of course, the draft is exclusively federal. Could states conscript doctors using the same logic?

        2. Altoid

          Or, maybe TX could blaze new legal trails by creating the thoughtcrime of gaining a medical education with the purpose of practicing somewhere else? Or possibly suing the absconders for the part of their medical educations that the state paid for? Or maybe they would think of attaching residency commitments to medical licenses? Yellow-dog contracts don't have to be involuntary servitude in Texas.

          I was kind of kidding originally, but these birds are shady enough to try to work out some kind of compulsion or another. It's not like they haven't had prior experience enforcing specific labor performance from nominally free people.

    2. caborwalking

      KJK - why do you think the far right in states like Texas care if medical care gets worse? We already have a much higher rate of infant mortality than most advanced countries. Do you see the GOP support increasing funding for medical care?

      1. KJK

        Normal, rational people who are impacted, or if someone close to them are impacted by the lack of ob/gyn practitioners may care. If they need to travel many hours for such treatment, they may care. If their loved ones die for lack of available medical personal, they may care. I actually know "normal" people who live in Texas. This will not happen rapidly, so time will tell.

        I did not talk about the loss of teachers from these book banning, censorship loving states, since there are plenty of white christian nationalist who would love the opportunity to indoctrinate the next generation in their warped reality.

  11. kahner

    it is nuts to me that republicans are still pushing for more abortion restrictions after the electoral backlash we're already seen. overturning roe is probably the worst political outcome in decades for the GOP, and many don't seem to recognize that fact.

    1. Doctor Jay

      Some persons, at least, are acting out of a sense of righteousness, rather than out of a sense of political expediency. Historically, this has meant early gains, but later losses.

    2. Art Eclectic

      Exactly why they will abandon a state-by-state strategy and go for a federal designation of fetal personhood. While it will certainly be political suicide for the GOP, it will take a long time to undo once done.

    1. KJK

      And force women to pee on a stick (pregnancy test) before leaving the state. America the home of the brave and the land of the free!

  12. tango

    The thing that a lot of pro-choice people do not seem to get is that folks who oppose abortion in many/most cases see it as the mass murder of babies. I strongly suspect that most of us would have no trouble screwing around on the edge of the Constitution and maybe going over it if it meant saving babies from being murdered.

    BTW, I am pro-choice (anti-life?) but believe many of the folks who also are pro-choice fail to realize that many anti-abortion people feel they are fighting against the equivalent of an ongoing Holocaust. And I cannot objectively point out to them why they are wrong. This is not like climate change or trickle down economics. I mean it is a defensible position that a life that the state should protect begins at the moment of conception, you know?

    1. Murc

      We think they're lying when they say that, because most of the first birthers are very pro-death in all other circumstances.

      If someone takes the position of "it is impermissible for a woman to get an abortion because that's an ensoulled human and life is sacred" and simultaneously take the position of "that woman should die in the streets if she's uninsured and experiences complications from pregnancy," or various other ghoulish stances, then we're going to conclude that the tears over abortion are crocodile tears and there's an ulterior motive.

      Show me a forced birthers who is in favor of universal health care, gun control, the environment, and everything else that someone concerned about human welfare would, and we'll talk. I'm sure such people exist, but they're rare as hell.

      1. stellabarbone

        In my experience, most forced-birthers are big death penalty fans.

        Libertarians, surprisingly, are also forced-birthers. Liberty for me, but not for thee.

      2. tango

        So, are you actually maintaining that if you do not favor, oh, increased gun control or universal health care coverage, you cannot oppose what you consider the murder of (what they honestly consider) babies? Oh, come on.

        These folks do not have "ulterior motives" other than to prevent what they consider mass murder. They are not lying or anything like that.

        1. HokieAnnie

          They are delusional. They cannot admit to themselves that being Pro-Life is a means to maintain male control over women.

      1. ScentOfViolets

        I would say that whatever they 'believe', their actions gives others the right to believe that they are in fact people looking for an excuse to justify cold-bloodly murdering their fellow citizens.... and should be treated as such. TL;DR: FAFO.

        1. tango

          Are you actually saying that anti-abortionists are just looking for an excuse to cold bloodedly murder people and should be treated as such, meaning presumably being incarcerated? You are living in some weird intellectual and rather dangerous space...

          1. HokieAnnie

            Give it up - we're not buying what you are selling. Anti-Abortionists are all about control. If it was about dead babies they'd be gung-ho for better prenatal care.

            1. tango

              Hey @Annie, do you actually know and talk to anybody who opposes abortion? Are are you just quoting something that you read in Feminist Theory 202 back in the day?

              1. ColBatGuano

                Yes, you have to listen to their half baked appeals to higher authority or you aren't giving them their due. Screw them.

            1. tango

              Oh shut up, Scent. Your posts are almost universally rude, ignorant, and poorly reasoned. It's like you are some maladjusted dude trying to police the rest of us with your extreme progressive views. People like you cost normal liberals elections. Just. Go. Away.

              1. ScentOfViolets

                My posts to _trolls_ show a certain lack of patience. Guess what? You're a troll, and well known to be one, so FOAD you nasty little piece of work.

                As to how well-reasoned my arguments to non badfaith posters are, that's for others to decide for themselves ... not for trolls who deserve every bit of the stomping they get from me.

    2. Anandakos

      Just because that's the way they see it doesn't make them right. Lunatics believe a lot of things that just aren't so. It's that simple.

      As a man by all rights I shouldn't have "standing" to talk about restrictions of women's health care availability, but that's the way our society works. I have that "standing", undeserved or not.

      I am sympathetic to people wanting to ban "voluntary" abortions beyond fetal viability, rare though they are. And I wouldn't object to a "two doctors must agree" standard for terminations being allowed beyond that time to protect the mother's life as long as one doctor could make the decision in a truly "of the moment" crisis.

      But it is completely wack-a-doodle to say that a woman should not be able to terminate a pregnancy before viability for any reason, because that makes her essentially a slave to a fetus which might die tomorrow of some genetic or developmental disorder.

      We eliminated involuntary servitude except as punishment for a crime in the Thirteenth Amendment. I think it applies until fetal viability; the fetus should have no "rights" until it can survive on its own life force. Until that time it is a part of the woman, and she should have the right to dispense with it if she so chooses.

      The original Roe standard -- regularly updated to match technological advancements -- would be the right one.

      1. tango

        I think your argument doe not strictly oppose mine. There is a conflict between the rights of the fetus ad the mother. The question is when do the rights of the fetus to survive supercede that of the mother's control over her body. Like you, I believe viability is the right time. But that is just an opinion and if you think of the fetus as a baby from the get go, preventing it's termination is stopping a murder.

        BTW, we all have standing to make decisions regarding abortion. I mean, how would you feel about allowing abortion on demand through the 9th month? You would be opposed to that and your opinion should matter. And women can vote on prostate cancer issues as well.

    3. Art Eclectic

      I'm sorry to point out that you are wrong. They are not defending innocent souls from murder. If that was their aim, they would be handing out condoms and birth control on every street corner in America. It's not about babies and it never has been.

      I saved this from Franklin Veaux

      The largest pro-life group in the US is the Roman Catholic Church, which has no fewer than seven sub-groups within its overall organization dedicated to opposing abortion. The Catholic Church opposes all forms of contraception except the rhythm method across the board.

      The second-largest group is National Right to Life. It takes no formal stand on contraception, a policy which it reiterates many times. However, it has consistently lobbied against bills in Congress that make access to contraception easier, as well as against bills that would provide education about contraception both domestically and abroad.

      The American Life League opposes contraception. They repeat the false claim many times on their Web site that birth control pills work by inducing abortion. They also claim that other forms of contraception increase abortion, showing statistics that abortion and contraception use in the US increased at about the same time (which is like saying ice cream causes sunburns; prior to Roe v Wade, most places in the US also outlawed contraception). They seek to overturn Roe v Wade and also ban contraception.

      The Susan B. Anthony List opposes contraception across the board. The group’s president says, “the bottom line is that to lose the connection between sex and having children leads to problems.”

      Americans United for Life, the oldest pro-life organization in the US, opposes all forms of hormonal birth control and IUDs, repeating the false claim that they work by inducing abortion. They oppose measures to teach about contraception, domestically or internationally. They support laws forbidding a company from firing a pharmacist who refuses to sell contraception. They do not have a stated policy on condoms, but they endorse only abstinence-based sex ed and oppose teaching about condoms.

      Live Action opposes contraception. They claim that hormonal birth control induces abortion. They also claim that condoms do not work, that statistics showing 97% efficiency of condoms are lies promoted by Planned Parenthood and the “abortion industry,” and that making condoms readily available increases teen pregnancy.

      The Family Research Council opposes hormonal contraception and IUDs. They do not have a formal position on condoms, but their Web site does say “we do question the wisdom of making it available over the counter to young girls.” They support a system where hormonal contraception and IUDs are banned, and condoms and diaphragms are available only by prescription.

      Focus on the Family opposes hormonal birth control, IUDs, and contraceptive implants. They are neutral on condoms and diaphragms within marriage but oppose making them available to unmarried people. They oppose sex outside marriage across the board.

      The American Family Association opposes hormonal birth control and IUDs. They do not formally oppose condoms, but they do oppose advertising condoms, making condoms available for free, and any sex education that mentions condoms.

      American Right to Life opposes all contraception. They use scare tactics claiming that hormonal birth control causes cancer and strokes. They support legislation banning hormonal birth control and restricting access to condoms and other barrier forms of contraception.

      Campaign for Life in America has no stated policy on contraception.

      The Center for Bioethical Reform, the anti-abortion group most famous for showing grisly pictures of dismembered fetuses at protests in front of clinics, opposes contraception. The group’s leader, Mark Harrington, compares condoms to “drugs, gangs, rapes, assaults, and murder” as proof that America is abandoning its moral heritage as a “Christian nation.” He says legal decisions overturning bans on contraception were done by “terrorists in black robes” with a “warped view” of the Constitution.

      The Human Life Foundation opposes all forms of contraception except the rhythm method.

      Operation Rescue opposes all forms of birth control and states that the only legitimate purpose of sex is procreation.

      Choose Life opposes hormonal contraception, IUDs, and contraceptive implants. It endorses the rhythm method, condoms, diaphragms, and sterilization. It supports teaching of barrier methods of contraception.

      Coalition for Life opposes contraception across the board. It claims that hormonal birth control and IUDs cause abortion. It states on its Web site that only the rhythm method for birth control should be used, and its Web site urges its members to “help end the ravages of contraception.” It supports legislation to ban all contraceptive methods.

      The Right to Life Federation opposes all contraception. Its position is that “abortion, infanticide, euthanasia, and contraception are intimately connected” and that a person opposed to any one of those things must be morally compelled to oppose them all. It claims that use of contraception is statistically correlated with abortion, and supports an across-the-board legal ban on both abortion and contraception.

      1. tango

        I am not sure what you are getting at --- apparently a lot of anti-abortion groups are opposed to contraception too, apparently because some methods destroy already fertilized eggs, which they consider murder?

        In any case, most people I know of who oppose abortion oppose it because they believe its a baby worth protecting once conception occurs...

      2. lawnorder

        It appears that most anti-abortion groups are also opposed to recreational sex. The view that sexual intercourse should only be engaged in by people who are trying to make babies has been around for a long time, and it eliminates the apparent contradiction between being anti-abortion and being anti-contraceptive.

        1. tango

          Oh, okay, thanks for explaining --- presenting an unmoderated laundry list of the various positions of various anti-abortion groups is not a particularly effective form of communication!

          Still is not terribly relevant in that the majority of actual Americans who oppose abortion oppose it because they think its killing babies.

          1. ColBatGuano

            "the majority of actual Americans who oppose abortion oppose it because they think its killing babies."

            No, they oppose because they think the sluts deserve to be punished. Like you, they are stupid, evil people.

  13. Murc

    This is an area of the law that's deeply fucked up and until recently has depended on norms and sensibility.

    For example: Alabama has a law on the books making it a crime in Alabama to conspire to go to another state to do something legal in that state, but illegal in Alabama. That's not a recent thing, it's been on the books for a very long time.

    Theoretically, this means it is illegal for someone in Alabama to organize a gambling junket to Vegas. Under Alabama law, that's a conspiracy to go to another state to do something that's legal there but illegal in Alabama.

    Only no Alabama prosecutor would ever be nuts enough to try to enforce it that way.

    They WILL enforce it against abortion providers, tho.

    It gets worse: the current state of the law is that states must honor extradition requests from other states. Not may; MUST. If I'm charged with a felony in Alabama for wiring someone money to go get an abortion, and they say to New York State "hand him over," current law is that New York MUST comply.

    1. Crissa

      They only 'must' comply if it's of legal jurisdiction. Making up false crimes or allegations wouldn't be appropriate to hand them over.

  14. Dana Decker

    What abortion fanatics should do is establish a nationwide internal passport system - like the Soviets had - to restrict unapproved travel from, say, a red state to a blue state.

    That's how you do it.

    1. Anandakos

      I'd be fine now if they banned us Blueies from the Red States. I've seen almost all of the National Parks, and that's all that they're good for.

  15. shapeofsociety

    As a practical matter, these laws are laughably unenforceable. Obviously no one is going to tell an antiabortion zealot who might be crazy enough to sue that they're traveling for an abortion. Traffic cops can't hope to enforce it either - what are they going to do, pull over every car that has a young woman in the passenger seat and drag her to the station for a pregnancy test? That would be a blatant violation of the Fourth Amendment.

    Oh sure, the zealots say it's to "send a message" but there's no point. If the law can't be enforced, it will not be obeyed.

      1. shapeofsociety

        Even given abusive and overzealous cops, it still wouldn't work, because the percentage of "cars with young woman in the passenger seat" that are transporting for an abortion is miniscule. They'd end up harassing a ton of people who are traveling for other purposes, including pregnant women who aren't planning to abort. They'd be profiling young women just for being young women, and they'd be up to their eyeballs in Fourth Amendment lawsuits within months from people furious at being harassed for no reason. No city budget could hope to withstand that.

        There is simply no way for a traffic cop to detect an abortion traveler without getting absurdly invasive. There's no outward sign they could see that would give reasonable cause for suspicion to justify a search. They have limited resources. When you think about the realities of how highway law enforcement is done, it very quickly becomes clear that it's completely infeasible.

        1. RadioTemotu

          “They’d be profiling young women just for being young women”

          And we all know police never profile based on demographics.

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