Supreme Court Justice Samuel Alito probably hoped to get credit for softening the blow when, at the stroke of his virtual pen, he issued an opinion depriving every woman in the U.S. of the constitutional right to abortion. He repeatedly insisted in Dobbs v. Jackson Women’s Health Organization that the decision overruling the court’s 1973 decision in Roe v. Wade did nothing more than “return the issue of abortion to the people’s elected representatives” in each state, some of which would presumably continue to recognize the right to terminate a pregnancy. Justice Brett Kavanaugh went further in his solo concurrence, maintaining that the “constitutional right to interstate travel” would enable women to “travel to another state to obtain an abortion.”
Red state Republicans have other ideas, as they eagerly plot to circumvent pro-choice legislation in blue or purple states. Modeled after Texas’s “bounty-hunter” law, a bill introduced in Missouri would authorize private citizens to recover $10,000 in damages from those – including friends, family members and doctors – who assist a Missouri resident in obtaining an abortion out of state.
In Texas, the “Freedom Caucus” has threatened employers with “criminal liability” if they proceed with plans to cover employees’ travel expenses for out-of-state abortions, invoking a 1925 statute making it a felony to “furnish the means for procuring an abortion knowing the purpose intended.”
That is only the beginning. As the Washington Post reported, anti-abortion organizations are working on model legislation that would stop women from obtaining out-of-state abortions. “Just because you jump across a state line doesn’t mean your home state doesn’t have jurisdiction,” said Peter Breen, senior counsel for the Thomas More Society. At a conference of the National Association of Christian Lawmakers, Okla. state Rep. Todd Russ spoke in favor of preventing women from obtaining abortions across state lines. “If somebody was driving the getaway car in a bank robbery,” he cautioned, “it is a very, very serious crime.” Kristan Hawkins, president of Students for Life, put it more bluntly. “Look, if you travel out of state for an abortion, that abortionist can be held liable.”
The Dobbs decision may not, as Alito rationalized, simply allow “each State to regulate abortion as its citizens wish.” We may instead be headed toward years of interstate battles, in which the reddest states attempt to extend the reach of their extreme anti-abortion statutes beyond their borders, penalizing the exercise of reproductive choice even in states where women’s right to abortion is protected by law.
There is a troubling historical precedent for extending laws into unwilling states. In 1850, the southern states prevailed on the U.S. Congress to enact an enhanced Fugitive Slave Act, requiring the free states to return alleged fugitives to enslavers without the benefit of a jury trial, appeal or other essential features of due process. Worse, the Fugitive Slave Act dragooned free state citizens into assisting slave hunters on pain of fine or imprisonment if they refused or interfered.
In 1858, Abraham Lincoln famously observed that “a house divided against itself cannot stand.” Less well known is the passage that followed. “I do expect it will cease to be divided. It will become all one thing, or all the other.” That was an aspiration – Lincoln hoped to put slavery on the “course of ultimate extinction” – but it was also an admonition that slavery’s advocates would continue to “push it forward.”
Because of the notorious Dred Scott decision, Lincoln warned, “We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their State free; and we shall awake to the reality, instead, that the Supreme Court has made Illinois a slave State.”
Chief Justice Roger Taney’s Dred Scott opinion shamefully held that that the “African race” had “no rights which the white man was bound to respect” because, according to “the histories of the times,” they were “not in the contemplation of the framers of the Constitution.”
The Dobbs opinion uses the same originalist reasoning to conclude that women have no constitutional right to terminate pregnancies because it is not “deeply rooted in this Nation’s history and tradition.” Taney allowed that the individual states could confer rights “upon any class or description of persons,” just as Alito held that abortion rights are now to be determined state-by-state. Most ominously, however, Taney declared that Dred Scott’s status as an enslaved person was governed by the law of his home state, Missouri, even after he traveled to free-state Illinois. Will Missouri women now be subjected to its punitive laws if they dare to obtain abortions in Illinois?
Justice Kavanaugh thought the threat of fugitive abortion laws was real enough to address in a concurring opinion. Perhaps he is right that the constitutional right to travel will invalidate them, although no other justice in the Dobbs majority joined his concurrence. Meanwhile, it would take years of litigation to get a definitive ruling from the Supreme Court, while thousands of women and their helpmates are intimidated by the prospect of vigilante prosecutions.
My Northwestern colleague Andrew Koppelman has written in The Hill (and elsewhere) that the 13th Amendment’s abolition of “involuntary servitude” should also cover forced pregnancy. Until recently, few would have imagined that the law of slavery might apply to the abortion debate. In the post-Dobbs world, we cannot be so sure.
Steven Lubet is the Williams Memorial Professor at the Northwestern University Pritzker School of Law. He is the author of “Fugitive Justice: Runaways, Rescuers, and Slavery on Trial” and “The ‘Colored Hero’ of Harper’s Ferry: John Anthony Copeland and the War against Slavery.”