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Thursday, July 19, 2018

Massachusetts fears Justice Kavanaugh

Following on this post: Josh Blackman writes that Massachusetts is moving to repeal its criminal prohibitions on abortion, adultery, and fornication. Democratic legislators explained that the move anticipated the Court overruling Roe and other cases, after which those laws would become enforceable.

Posted by Howard Wasserman on July 19, 2018 at 01:56 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Another correction :

" Fornication " section 18 and not 15 as stated above .....

Apologizing .....

Posted by: El roam | Jul 20, 2018 8:37:29 AM

Just correcting it :

The link I have put up there , is not directly leading to the sections sought . So, here the direct link . One needs simply to choose , the right title and section ( for example : section 14 or 15 , " adultery " and " fornication " respectfully ) here :


P.S : without repealing it , a prosecutor , may hesitate whether to press charges . Yet , one can think of one conservative ,that would for example , lodge complaint in a police station or whatever . And if not prosecuted and investigated and so forth…. He may petition for it ( to administrative court or whatever ) . So , without repealing it , it may bear some consequences ( provided that the precedent ( Roe V. wade ) is reversed in the Supreme court of course ) .


Posted by: El roam | Jul 20, 2018 8:34:52 AM

It could. But the Democrats may be trying to plan for the future situation in which there is an anti-choice Governor or AG who may want to enforce those laws. By repealing, they eliminate that risk.

Posted by: Howard Wasserman | Jul 20, 2018 7:56:00 AM

Couldn't the state simply not enforce the law like Obama didn't enforce the DOMA?
If Arizona can't enforce immigration law when the feds don't, wouldn't a Massachusetts county or city also be unable to enforce a state law if the state refused to?

Posted by: Doma of the rock 'n roll | Jul 20, 2018 4:49:49 AM

Interesting . One should notice , that that law about to be repealed , is in fact , some sections in one of the "General laws " bearing the title :

" Crimes , punishments and proceedings in criminal cases" .( chapter 272 ) .It may be accessed here ( just to search in the sections , for provisions have to do with adultery and so forth in accordance ) . here :


But , already in 1974 , one section was repealed there , here titles as :

Section 28A, 28B: Repealed, 1974, 430, Sec. 2

In sum , when there is no specific legislation , dealing with legislation and interpretation of law , such mess is formed . One state should have , specific legislation , prescribing : what is the right procedure for legislating , interpreting laws , and how law is repealed and formally enacted and such . One may read illustration , in the Israeli law ( the interpretation law ) here :



Posted by: El roam | Jul 19, 2018 5:04:43 PM

Given the proviso paragraph ("this is not" etc.) in Lawrence v. Texas, I'm not completely sure MA's adultery law does clash with current precedent. It can be argued to be, but that linked discussion just blithely assumes so. Protection of same sex marriage also does not by itself protect adultery. If anything, resting on a right to marry might arguably reinforce laws that protect the sanctity of marriage. Again, I'm open to a more libertarian reading, but it is far from compelled.

Posted by: Joe | Jul 19, 2018 2:38:02 PM

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