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The Elbert Files: Fugitive abortion law


The new Texas abortion law has much in common with the Fugitive Slave Act of 1850, a statute that has been described as “one of the most hated and openly violated federal laws” in U.S. history.

One major difference is that the Fugitive Slave Law involved federal legislation, while the Texas law concerns only one state, although many believe other states, including Iowa, will attempt to adopt similar laws if the Texas statute withstands legal challenges.

In any case, similarities between the 19th century’s Fugitive Slave Act and the 21st-century abortion law abound.

Both were preceded by decades of disagreement on monumental issues, with advocates on both sides claiming the highest moral authority.

Both also raise the question of who has the right of ownership over certain aspects of human beings: In the case of the 1850 law, the ultimate question was whether people could own other people, while abortion laws raise the question of whether women have full ownership of their own bodies.

Finally, both laws have turn-in-your-neighbor aspects that are more common in authoritarian societies than under democratic forms of government.

The Fugitive Slave Act was a key part of the so-called Compromise of 1850 that was designed to lessen conflicts over the slave trade in territories acquired during the Mexican-American War of 1846-48.

The compromise laws established Texas as a slave state and California as a free state and set territorial limits for other future states. The laws also banned the slave trade in the District of Columbia, but not slave ownership, and greatly strengthened a fugitive slave act that dated from the 1790s.

The 1850 fugitive law required federal officials in all states to assist in the return of escaped slaves and provided cash incentives for federal commissioners overseeing enforcement, by paying judges twice as much for a verdict in favor of slaveholders as for decisions favoring people accused of escaping slavery.

Runaways were prohibited from testifying in their own defense, and the law’s broad language encouraged citizens to report suspected violations. Violators could be fined $1,000 and imprisoned for six months.

The unfairness of the act roiled abolitionist sentiment, further dividing the country and eventually leading to the Civil War.

Abortion, like slavery during the 19th century, is an issue that has for decades caused deep divisions of American opinion.

For many years, roughly 6 out of 10 Americans have tended to favor allowing some form of abortion, while 4 out of 10 oppose abortion in all or most cases.

Although smaller in number, abortion opponents tend to be more vocal and, at times, violent in their efforts to overturn Roe v. Wade, the 1973 U.S. Supreme Court decision that legalized abortion.

The new Texas law is receiving a lot of attention because of several novel aspects.


Most notably, the law moves abortion cases from criminal to civil courts and relies on citizens, rather than police and states’ attorneys, to enforce a legal ban on abortion, which it prohibits once the heartbeat of a fetus is detectible, or about six weeks after conception.

The law effectively deputizes ordinary citizens – even people outside Texas’ borders, some argue – to file civil suits against clinics and virtually anyone who assists a woman in Texas to obtain an abortion. That could be anyone from friends who offered advice or encouragement to an Uber driver who provided transportation.

The helpers can be subject to civil fines – payable to the person filing the civil action – of at least $10,000 per abortion.

Although the law appears to violate several common legal strictures, last month five members of the U.S. Supreme Court declined to temporarily block it from taking effect. Later, a lower court federal judge did order a temporary block, laying the groundwork for a monumental legal battle between state and federal authorities.  

While the outcome of the court battles is unclear, it is certain that, if Texas wins, the new law will create a new class of legal fugitives.

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