Hiltzik: A new Fugitive Slave Act, aimed at pregnant women

The Fugitive Slave Act is perhaps the most hated law in American history.

A product of the Compromise of 1850, which brought California into the union as a slave-free state, the act allowed slave owners, or even purported slave owners, to track down runaway slaves. across state lines, making it a crime to harbor fugitives and requiring local officials to assist pursuers.

Historian Andrew Delbanco writes in his 2018 book about pre-Civil War America, “It was an act of zero tolerance.”

Can a State prohibit residents of that State from traveling to another State to have an abortion? In my view, the answer is not based on the constitutional right to interstate travel.

– Supreme Court Justice Brett Kavanaugh

The act was implemented in the hope of quelling emerging regional conflicts over slavery. But it has achieved the opposite.

The dissident Rodney French, a businessman and politician from Massachusetts, called it “a shameful, brutal, unjust, disgusting, hot-tempered, barbaric, insidious, cowardly, woman-killing act. women, pleasing the devil, acting in spite of what Heaven once happened.”

This action incited John Brown to attack the federal garrison at Harper’s Ferry, Va. It led to Dred Scott’s decision in 1857, considered by many to be the worst decision ever made by the Supreme Court, in which Chief Justice Roger B. Taney wrote to a 7-2 majority that Slaves and their descendants could not apply for U.S. citizenship, nor did they have any “rights that white men are bound to respect.”

The Fugitive Slave Act is a federal law. However, some red states are willing to reproduce it on their own books. The quarries this time were not black slaves, but those who supported pregnant women seeking abortions out of state, including employers who paid for their travel and others who helped them.

The trigger for the new laws was the Supreme Court decision in the Dobbs and Jackson Women’s Health Foundation, which overturned the constitutional guarantee of abortion rights established by the organization’s decision in Roe vs. . Wade in 1973.

Anti-abortion states have passed or are considering laws that could hold out-of-state medical providers civil or criminal liability for aiding abortions, while several are supportive. has taken steps to protect service providers or their residents from such actions.

In Texas, those who assist women with abortions are vulnerable to civil lawsuits from foreign plaintiffs, who can sue for fines of $10,000 or more. Oklahoma and Idaho have passed similar legislation. Missouri lawmakers are considering a law that would allow lawsuits against anyone who helped a Missouri resident with an abortion, including foreign doctors performing the procedure or those who helped patients cross state lines . The sponsor of the law said it was targeted at a Planned Parenthood clinic in Illinois that was opened to serve patients from the St. Louis.

States that have the option of having restrictive laws or policies include California, where Governor Gavin Newsom signed the act on June 24 – the very day the Supreme Court made Dobbs’ decision – disclaiming liability. civil rights for Californians imposed by other states for abortion.

Atty. General Merrick Garland said the date of the decision that the Justice Department would protect “health care providers and individuals seeking reproductive health services in states where those services are still legal.”

Garland notes: “Under basic constitutional principles, women residing in states that are barred from accessing comprehensive reproductive care should be free to seek such care in states where it is legal. .”

However, the post-Roe landscape has confounded medical law and practice nationally, especially in anti-abortion states. Pharmacists and health care providers have limited patient access to drugs that can be used for abortions, even if they are prescribed for other purposes.

According to Alexandra Band, an OB-GYN doctor in New Orleans, Walgreens refused to prescribe one patient misoprostol, a digestive medication that can also be used for abortions, “because they couldn’t be certain.” that we do not prescribe this medication for an abortion.” Band said in an affidavit that she prescribed the drug to facilitate the insertion of the IUD.

The prospect of doctors in anti-diet states being prevented or discouraged from performing abortions to protect the health of the mother, including in the case of an ectopic pregnancy or miscarriage, has prompted the government to Biden issued a stark warning on Monday that any interference with a physician’s judgment in emergencies, including whether emergency abortions are indicated, would violate federal law. state, prioritizing state law.

Health and Human Services Secretary Xavier Becerra said violations could result in doctors, hospitals or clinics losing their Medicare privileges or facing civil penalties.

A key issue in the fight against abortion is whether anti-abortion states can regulate the movement of their citizens or go beyond state boundaries to regulate activities elsewhere. When Roe vs. Wade was overturned, law professors from three Pennsylvania universities commented in a draft paper, “we’ve seen the beginnings of these battles.”

Among the signs is Texas’ infamous SB 8, an anti-abortion law that allows anyone, including outside of Texas, to bring civil action against anyone in Texas who “willfully” assists or abetting abortions that the state deems illegal, including payment or reimbursement for the cost of the abortion.

A model law promoted by the National Commission on the Right to Life would criminalize the transportation of minors across state lines for abortions or abortion pills without parental consent, “anyone no matter where illegal abortion occurs”. Missouri lawmakers are considering a law that would impose civil liability on anyone who helps a Missouri citizen travel out of state to get an abortion.

In Texas (again), a group of self-styled state legislators for the Texas Freedom Caucus engaged in a notable matchup with a July 7 letter to Sidley Austin, a major law firm. based in Dallas, threaten the company with criminal or civil. action because it “decided to reimburse the travel expenses of employees who left Texas to murder their unborn child.”

The letter says that by “facilitating” illegal abortion, it is “causing itself and each of its partners to be prosecuted and disenfranchised for felony crimes”.

Lawmakers said they would introduce a bill to “prohibit any Texas employer from paying for elective abortions or reimbursing abortion-related expenses – regardless of where abortion occurs and regardless of the law in the place where the abortion occurs”, classifies such actions as criminal offenses. Sidley Austin did not publicly respond to the letter.

While the freedom of movement around the country for laypeople seems to be an inalienable constitutional right, legal experts are divided over whether the Constitution actually prohibits states from enforcing the law. “targets out-of-state abortion or abortion tourism,” writes Pennsylvania law professor David. S. Cohen of Drexel University, Greer Donley of the University of Pittsburgh and Rachel Rebouché of Temple University.

Supreme Court Justice Brett Kavanaugh, in his Dobbs concurrence position, implied that the right to travel is inviolable, whatever its purpose: “Can a State prohibit the inhabitants of Does that State travel to another State to have an abortion? In my view, the answer is not based on a constitutional right to interstate travel.

Kavanaugh cited the 14th Amendment’s due process clause to support his point. Justice Clarence Thomas, however, in his concurring opinion, poured a bucketful of cold water on Kavanaugh. “The purported right to abortion,” he writes, “is not a form of ‘freedom’ protected by the Due Process Clause.” He calls the idea “odd.”

Only one Supreme Court ruling came after Roe vs. Wade addressed the issue of out-of-state abortion rules. This is a 1975 case involving a weekly newspaper broadcast at the University of Virginia with advertisements for abortion services in New York, where they are legal.

Virginia courts found that the newspaper violated a state law banning publications that promote abortion. The Supreme Court not only found that Virginia law infringed on freedom of speech, but also found that “Virginia has no authority to regulate services provided in New York” or “prevent its residents from visiting New York to receive those services. “

Nothing can prevent the current Supreme Court from revisiting the 1975 case, just as it reviewed Roe vs. Wade. The ruling, according to the Pennsylvania professors, is “dated, partly based on the now overturned Roe, and centered on the First Amendment.”

As a result, they write, “this area of ​​law is ripe for a re-evaluation once interstate abortion prosecutions occur.” Nor will anti-abortion states or prosecutors wait for a green light from the Supreme Court before examining the limits of the law; “They will just do it. … Nations will proceed as if they had power, waiting for the courts to issue a verdict of bluff. “

The federal government will depend on monitoring those limits and imposing federal guidelines as needed. Garland’s promise is an important first step, and the guidance released Monday by the Department of Health and Human Services is an encouraging next step.

HHS Secretary Becerra cited the federal Emergency Medical Treatment and Active Worker Act as the regulation governing all cases requiring urgent care.

The law states that all patients “must receive appropriate physical examination, stabilization treatment, and referral, if necessary, regardless of state law or mandate applicable to specific procedures,” he stated. .

Federal statute favors whichever state law is more restrictive. Its definition of “stabilizing treatment” may include medical and/or surgical interventions (eg, abortion, removal of one or both fallopian tubes, antihypertensive therapy, therapy methotrexate, etc.), regardless of state laws or regulations.”

If a physician decides that abortion is the appropriate stabilizing treatment, Becerra’s letter states, “the physician must provide that treatment.”

Many state efforts are made to make women, pregnant or otherwise, property whose conduct can be criminalized or subject to civil liability. The federal government has begun to draw the line. State legislators and prosecutors trying to get past it are trying to incite a new Civil War, even though the first civil war ended poorly for the provocateurs or for the country as a whole. .

https://www.latimes.com/business/story/2022-07-12/threats-to-criminalize-out-of-state-abortion Hiltzik: A new Fugitive Slave Act, aimed at pregnant women

Edmund DeMarche

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