SCOTUS likely to soon have a modern “Ableman v Booth” case
SCOTUS likely to soon have a modern “Ableman v Booth” case
As slavery roiled the nation in the 1850s, the case of Ableman v Booth reached the US Supreme Court.[4] An abolionist newspaper editor, Sherman Booth, was jailed for assisting a runaway slave. He was jailed under the 1850 Fugitive Slave Act [5]. The act required the seizure and return of runaway slaves who may have escaped to so-called “free states, “ states that did not allow slavery. Section 7 empowered law enforcement to arrest and prosecute those who aided escaped slaves. Ableman, in the case, was the US District Marshall who arrested Booth.
After the Supreme Court struck down a fifty year old precedent [1] which made abortion legal in the USA, numerous states resurrected old anti-abortion laws still on the books or implemented new restrictive laws. On the other hand, several states, notably Kansas and Michigan, implemented state constitutional provisions protecting reproductive freedom.
As of November 23rd, per the New York Times, thirteen states have full bans in effect. Texax, Oklahoma, Missouri, Arkansas, Louisiana, Mississippi, Alabama, Tennesee, Kentucky, West Virginia, Wisconsin, South Dakota, and Idaho. Georgia implemented a ban after six weeks (which advocates have repeatedly noted that most women don’t even know if they are pregnant at that point).
What is notable about some of the bans on abortion is the mechanisms used to implement, in Texas especially! Per the Texas Tribune “Texas’ abortion law, passed last year as Senate Bill 8, empowers private citizens to sue anyone who “aids or abets” an abortion after about six weeks of pregnancy.” This empowerment does NOT stop at the state line. If a woman leaves Texas and goes to Michigan, for example, any individual in Texas that finds out about this can sue the woman, the person that drove her to Michigan in a car, or anyone else that facilitated the action! Again, per the Texas Tribune [2], “The law is extremely broad — anyone, regardless of where they live or whether they have a connection to the person obtaining an abortion, can bring a lawsuit against anyone who helps someone obtain an abortion in virtually any way.”
How exactly this works has yet to be fully tested in court. One Texas judge said it was unconstitutional, but declined to block it. I am not a lawyer, but I would think the issue of suing should rest on the legal principle of Standing.
“”Standing limits participation in lawsuits and asks whether the person(s) bringing a lawsuit, or defending one, has enough cause to “stand” before the court and advocate, since not anyone can go to court for any reason. To have standing, a party must show an “injury in fact” to their own legal interests.”[3]
Based on the principle of standing, one’s neighbor would have NO justification for suing the woman on their block should they find out she had an abortion. Perhaps the only person to have standing would be the man who got the woman pregnant and that may have a lot to do with the nature of their relationship.
Since the Fugitive Slave Act was a federal law, Chief Justice Taney’s ruling was that the states had no right to interfere in enforcement of the law. If you think that the issue of abortion is now settled on a “states rights” state by state status, you would be very wrong and can expect to see anti-choice advocates continue to push for federal statutes, hindered at this time only because Democrats will control the US Senate and Presidency for the next two years.
Should Republicans once again gain a trifecta- controlling both chambers in Congress and the White House, I would bet good money an attempt will be made to pass a federal abortion ban law and under which anti-choice advocates will argue that the states’ rights to legislate on this issue is null and void. The irony of them using states rights to this point and then pivoting later should not be lost on anyone.
[1]
https://www.nytimes.com/news-event/roe-v-wade-supreme-court-abortion
[3]
https://adfmedialegalfiles.blob.core.windows.net/files/WhatIsStanding.pdf
