Activist Supreme Court’s Abortion Ruling Has Resurrected the U.S. Free/Slave State Divide

“Abortion is an essential component of women’s health care” — American College of Obstetrics and Gynecology

“When women are compelled to carry and bear children, they are subjected to ‘involuntary servitude’ in violation of the [13th] amendment” — Andrew Koppelman, Northwestern Univ. Law Review (2010)

The moment the U.S. Supreme Court handed down its opinion in Dobbs — the case in which five of the Court’s six right-wing Radicals in Robes voted to completely overturn Roe v. Wade (1973) — it resurrected a cruel and grotesque division between States that had not existed since the end of the American Civil War.

In 1860, prior to passage of the 13th, 14th and 15th Amendments, the very existence of a “United States” was under a grave threat due to an unsustainable, race-based divide between Slave States and Free States.

Today, courtesy of Dobbs, our nation finds itself mired in an unsustainable, gender-based divide between Free States, where a woman’s reproductive liberties are preserved, and Slave States, where reproductive liberties no longer exist. (Andrew Koppelman’s 2010 paper argued that “forced pregnancy” doesn’t just deprive women of their “individual liberty”. It also denies Equal Protection under law guaranteed by the 14th Amendment because that “deprivation is selectively imposed on women.”)

The immediate impact of Dobbs was felt in Ohio, where the only option available to the parents of a 10-year old rape victim was to flee to neighboring Indiana so that their child would not be forced to carry the rapist’s baby to term. But even the liberty that 10-year old’s parents took advantage of is now threatened by a gender-based, Fugitive Slave Act mentality…

The Fugitive Slave Act

The mentality behind the Fugitive Slave Act was laid bare in our founding document.

Twenty-five of the 55 framers of the U.S. Constitution were slave owners. The original Constitution contained a “Fugitive Slave Clause”, (Art. 4, §2, Cl. 3), mandating that slaves who escaped to Free States must be returned to their owners.

In order to maintain their “Peculiar Institution”, Congressional representatives from the Antebellum South secured passage of the Fugitive Slave Acts of 1793 and 1850 — Acts which not only created vigilante “slave patrols” and empowered federal marshals to capture and return slaves, but also imposed hefty penalties on anyone who aided runaway slaves in their flight for freedom.

Today, according to U.S. Senator Tina Smith (D-MN), “Republicans want to hold women captive in their own states by punishing them for exercising their constitutional right to travel within our country to get the [medical] care they need”.

Right to travel between States

Until recently, legal scholars would no doubt regard the right of Americans to travel between States to be a matter of settled law — a point that was the focus of the U.S. Supreme Court’s 1999 decision in Saenz v Roe:

But of course, until recently, legal scholars would have said the same thing about the right to an abortion.

Indeed, as late as 2018, while under oath during his confirmation hearings, Justice Brett Kavanaugh testified that a woman’s right to an abortion is “settled Supreme Court precedent”.

Like the word “travel”, the word “privacy” does not appear in the text of the Constitution. That’s disconcerting because Justice Clarence Thomas, in his concurring opinion in Dobbs, argued that its absence reveals that the Court should “overturn” Griswold v. Connecticut (1963), a case which upheld the right of married couples to use contraceptives. In both Griswold and Roe, the Court concluded that the right to privacy was a right logically derived from multiple provisions of the Constitution and its Amendments.

Ominously, Thomas, who rejects the right to “privacy” because it’s not explicitly set forth in the Constitution, joined former Chief Justice William Rehnquist’s dissent in the Saenz “right to travel” decision.

Faced with this disconcerting threat to the fundamental right to travel, Senate Democrats introduced the Freedom to Travel and Reproductive Rights Act. But it was blocked this month when Sen. James Langford (R-OK) refused the unanimous consent request to initiate Senate debate on the measure.

21st century misogynistic Fugitive Slave Act mentality

This past March, Republican state Rep. Mary Coleman introduced a bill in the Missouri House of Representatives that would prevent women from crossing State lines to obtain an abortion. This coincided with separately introduced Republican bills that would make the performance of an abortion a class A felony, punishable by a ten years to life sentence. The bill would apply even to a life-threatening ectopic pregnancy, one that is nonviable because it occurs outside the uterus, usually in a fallopian tube.

(Ironically, medically ignorant Republicans actually believe they’re being “pro-life” when they forbid physicians from terminating an ectopic pregnancy incapable of producing a live baby even though the failure to terminate such a pregnancy is likely to kill the female patient.)

Coleman didn’t limit her misguided efforts to an assault on a woman’s right to travel.

Just as the Fugitive Slave Laws imposed hefty penalties on anyone who aided a runaway slave in their flight for freedom, Coleman’s “measure would make it illegal for anyone out of state to provide, aid or advertise abortion to a Missouri resident,” according to ABC News.

Indeed, Coleman’s bill goes beyond the punitive nature of the Fugitive Slave Acts. Her effort to make it a crime to “advertise abortion to a Missouri resident” calls to mind the Alabama Slavery Code of 1833, which made it a crime to teach a “free person of color, or slave, to spell, read or write.”

Illiteracy and ignorance are weapons of the enslaver.

Ramifications

One suspects that anti-abortion zealots haven’t really given much thought to the Brave New World they are aspiring to create.

Even assuming their assault on the right to travel prevailed, how would it be enforced? Would women have to undergo pregnancy tests before being allowed to board a plane or other means of interstate travel, like a train, ship or bus? Would they station police officers on interstate highways to intercept travelers and demand that women submit to pregnancy tests before leaving the State?

It isn’t just the right to abortion that will be on the ballot this November. For all of us, and especially for women, the maintenance of fundamental rights, like the right to essential healthcare and to travel freely to other States, will be on the ballot.

UPDATE 7/26/22: Apropos of our observation that “illiteracy and ignorance are the weapons of the enslaver”: In the wake of their State’s total abortion ban, Oklahoma public librarians were warned that they could face “civil penalties” that could “include a $10,000 fine plus jail time” and job loss if they either assist library patrons in locating abortion-related materials or so much as mention the word, “abortion”.

So much for the right of “free speech”, as supposedly guaranteed by the First Amendment.