Fugitive Slave Act Redux: On the Run in Texas ... and America

Mike Luckovich, the editorial cartoonist for the Atlanta Journal-Constitution, made an astute observation this week about Texas' draconian abortion law.

A recent cartoon features two fully veiled Afghan women meeting in a remote province with mountains in the distance. "Pray for Texas women ..." one woman says to the other. The reversal of fortune and sentiment is stinging if you're used to pity being a one-way street.

Editorial cartoonists are better at skewering hypocrisies and sophistry the rest of us take for granted. Unexpected juxtapositions -- in this case, the pity Muslim women feel for the women of Texas -- are capable of slipping past partisan arguments on the left and right. This is a cartoon that gets to the heart of the matter.

We agree on a subliminal and conscious level that with the U.S. Supreme Court's refusal to strike down Texas' ban on all abortions after six weeks, the women of Texas and those under Taliban rule suddenly have a lot more in common than many Americans will be comfortable acknowledging.

Americans are now forced to deal with a new reality -- the inevitable scramble by Republican governors and GOP-controlled legislatures to enact Texas-style abortion laws to facilitate a return to the pre-Roe v. Wade status quo in their states, too.

We all remember what happened when the Supreme Court struck down a key part of the Voting Rights Act in 2013, claiming that racial discrimination at the polls was no longer a problem in America.

Free of the obligation of getting permission from the federal government to change the rules and conditions for voting, Republican states that had historically discriminated against Black voters raced to erect new barriers that wouldn't single out minorities per se, but would still negatively impact those who tend to vote Democratic.

This week, Texas also managed to enact into law some of the toughest voter restrictions in the country. When the Texas Legislature wasn't undermining participatory democracy or outlawing abortion this week, it was enacting laws that made it legal to openly carry guns in public without being required to have a permit or to have undergone any training.

Is it hyperbolic to compare Texas' Senate Bill 8 to the Fugitive Slave Act? Not in the least.

The GOP-dominated Legislature decided that having a gun has been every Texan's birthright since the frontier days. The fact that these moves have made the Lone Star State the most dystopic in the country is a point of pride for legislators who have outlawed mask mandates but insist on state control of every woman's body after six weeks of pregnancy.

Still, one of the most hideous dimensions of the Supreme Court's refusal to knock down the Texas abortion law is the Legislature's cynical conscription of the public to do its dirty work.

Senate Bill 8, which makes no allowance for abortion after six weeks regardless of whether pregnancy is a result of rape or incest, allows ordinary citizens -- whether they know the patient or not -- to sue anyone in her circle who has any involvement in an abortion or gives aid or comfort to a woman seeking an abortion after the deadline.

Strangers can sue a woman's boyfriend, husband, best friend, roommate, relative, doctor -- anyone they reasonably suspect of helping to finance or morally support an abortion in violation of state law. This includes the Uber or Lyft driver who taxis the woman to an appointment. The snitch is entitled to collect a bounty and the recovery of court costs.

Just like the court system in the fictional Gilead of "The Handmaid's Tale," there's little doubt about how Texas' judiciary will rule in these cases.

Texas has openly stacked the criminal justice system against women who seek abortions. It even rewards vigilantes for monitoring and snitching on half the population it suspects is pregnant. The legislature is now working to outlaw pills that can be sent through the mail to end pregnancies once the clinics are all shut down. Texas wants to be an authoritarian state worthy of "1984" by deputizing its citizens into a version of the East German secret police.

While references to novels by George Orwell and Margaret Atwood are inevitable because they have such contemporary resonance, there's an even more appropriate analogy from America's antebellum and post-Colonial history: the Fugitive Slave Acts of 1850 and 1793.

Similar to Senate Bill 8, ordinary citizens deputized by a federal marshal could "capture and arrest" anyone they suspected of being a formerly enslaved person, whether there was sufficient proof or not. Blacks were not protected by habeas corpus, whether free or slave, and only a white man's testimony in court was given any weight.

Enslavers would scour the country looking for Black folks who fit the description of runaways. If they were challenged by abolitionists or sympathetic whites in court, the laws made it easy for the enslaver to prevail, since Black folks' testimony about their own status didn't matter. Hundreds of Blacks who were "born free" were consequently enslaved at the whim of bounty hunters who weren't conscientious about who they hauled into bondage.

It took the Civil War and the Emancipation Proclamation to bring an end to the Fugitive Slave Act, a blatantly unjust law that enjoyed the full support of the U.S. Supreme Court.

Is it hyperbolic to compare Texas' Senate Bill 8 to the Fugitive Slave Act? Not in the least.

Both give strangers the right to make life-changing decisions about people they don't know. Both were initiated by a legal process that considered the people who would suffer the brunt of the law second-class citizens. Both are reactionary responses to perceived challenges to the white, religious patriarchy in power.

Chief Justice John Roberts, who sided with the liberal wing of the court in the minority of the 5-4 ruling, laid it out perfectly in his dissent: "The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime."

Translation: Texas wants a segment of its armed population of anti-abortion fanatics to form the equivalent of modern slave patrols. Texas wants a deputized population of vigilantes to monitor and track down women who will be disproportionately poor, Black and Hispanic and make their support system literally pay for their abortions by being fined and prosecuted for their compassion.

They insist that the women who had the abortions will not be prosecuted, only traumatized -- for now, but the bounty hunters will get their pound of flesh no matter what.

This is what passes for Christianity in 2021. Only in a country that has lost all semblance of moral sanity or justice could diabolical legislation like this go forward and be tolerated by a majority on the Supreme Court.

Would Jesus snitch on a woman who had an abortion? Of course he would, according to these hypocrites. Jesus would be the first through the door of the women's clinic, guns drawn and spoiling for an excuse to send the "abortionists" to hell if they made any sudden moves. Jesus loves the little children in the abstract -- but after they're born, they're on their own.

Because Senate Bill 8 is a modern version of the Fugitive Slave Act, there's no reason to spend a lot of money appealing to the greed and venality of the public. We know what appeals to vigilantes. Even if there wasn't blood money involved, plenty of folks would be happy to do it.

Because SB8 targets a portion of the population that's used to being chased, snitched on and hunted, there's no reason for Texas to update the original Fugitive Slave Act posters much. The state could even recycle earlier images and illustrations and not lose any of the original meaning. Only the text on the posters has to be updated to accommodate contemporary sensibilities.

Here in Pennsylvania, we're just a Republican governor away from attempting our own version of SB8. We have plenty of fanatics in the Pennsylvania Legislature who would make their colleagues in Texas look like amateurs if given the opportunity.

Admittedly, Pennsylvania's GOP isn't nearly as clever as Texas', but they're just as ruthless. Only stupidity and in-fighting keeps them from succeeding in their terrible plans. The governor's race in 2024 will determine whether this state follows in Texas' toxic wake.

If we're lucky, the events in Texas will galvanize Democrats to take the threat of Gilead-style theocracy seriously. The kind of people who made the original Fugitive Slave Act possible are still with us. They don't intend to go away quietly.