Abstract

Excerpted From: Rebecca E. Zietlow, Abortion Rights, Fugitives from Slavery and the Networks That Support Them, 5 North Carolina Civil Rights Law Review 105 (Spring, 2025) (376 Footnotes) (Full Document)

In June 2022, the United States Supreme Court issued a groundbreaking ruling in Dobbs v. Jackson Women's Health Organization, holding the United States Constitution does not guarantee the right to have an abortion. The Dobbs ruling was uniquely disruptive because for fifty years preceding the ruling, the Court had consistently held that such a constitutional right existed. In its 1973 decision, Roe v. Wade, the Court held that the right to choose an abortion was a fundamental right protected by the Fourteenth Amendment. Under Roe and its progeny, the government could regulate abortions and impose restrictions. Still, relying on Roe, courts struck down numerous restrictions that states attempted to impose on reproductive liberty. Plaintiff Jane Roe, exercised her rights pursuant to what constitutional scholars generally consider the standard form of rights enforcement -- she filed a lawsuit in federal court to enforce Fourteenth Amendment based rights against state infringement. After Dobbs, however, federal courts no longer serve as the primary arena for enforcement of abortion rights. Without the precedent of Roe and progeny to stop them, over half of states in this country have imposed severe restrictions or outright bans on abortion. We are now living in a new legal landscape, in which the scope of people's rights to reproductive autonomy depends on the state in which they live and their willingness to travel to cross stateup borders to assert their rights. The Court's ruling in Dobbs has unleashed an unprecedented wave of open and hidden abortion rights activism. Responding to the loss of federally protected fundamental, abortion rights activists are engaging in political action, practical support and clandestine activity to aid people attempting to assert their reproductive liberty.

In the post-Dobbs legal landscape, people seeking to exercise their reproductive rights will play a leading role in shaping those rights, not by filing lawsuits but through their “ordinary acts,” crossing state borders in search of abortions. The success of those seeking to enforce their rights will depend on their allies on the ground who assist them. Many people are obtaining abortions using medication that is shipped to them across state lines. Some activists are risking criminal and civil penalties by helping people cross state lines to obtain abortions. In abortion friendly states, officials are enacting laws to protect abortion seekers, and those who aid them, from criminal prosecution. As activist Cazembe Murphy Jackson observed, “I think activism is evolving post Roe. There are a lot of trainings for folks to become abortion doulas, to assist people getting abortions, raise money, drive them to clinics ... I think we're fired up.” These constitutional activists transgress not only state borders, but also the line between legal and illegal activity, placing themselves at the center of constitutional controversy. They are engaged in a crucial network of support for people seeking reproductive liberty.

The post-Dobbs landscape is reminiscent of another time in our history when conflicts over human rights and moral values occurred over state lines -- the pre-Civil War era, when fugitives from slavery crossed state borders in search of the right to be free. By fleeing from enslavement and crossing state borders, they sought what Hanna Arendt called the “right to have rights” -- to be treated as human beings. Fugitives from slavery were supported by activists on the ground, who openly engaged in the anti-slavery movement and provided both legal and political support for people who were captured and accused of being fugitives. States enacted laws protecting those accused of being fugitives, and local officials resisted enforcement of fugitive slave laws. Fugitives from slavery themselves asserted their rights by crossing state borders, but they could not have succeeded without the help of their allies on the ground who engaged in civil disobedience and provided clandestine support, aiding fugitives in their travels with the Underground Railroad.

People seeking abortions, like fugitives from slavery before them, are engaged in what I call “transgressive constitutionalism,” making rights claims with their bodies and their actions. Like fugitives from slavery, people seeking abortions are transgressing not only state borders, but also the line between criminal and non-criminal activity, to assert their right to bodily autonomy. Most of these people do not consider themselves to be constitutional activists. Rather, they are desperate and seeking help. Nonetheless, they are engaging in constitutionalism. By asserting the right to bodily autonomy, their very acts are rights claims in the tradition of civil rights and labor activists engaging in civil disobedience. Fugitives from slavery and people seeking abortions are not performing in front of an audience but instead are often acting in secret to avoid civil and criminal penalties. However, their acts do send a message to an audience -- a message of determination and resilience which inspires political activists who support them.

To be clear, the institution of chattel slavery was a uniquely dehumanizing and cruel institution that defies any analogy. Enslaved people were deprived of any human rights for their entire lives. By contrast, people who are denied the right to an abortion suffer a temporary deprivation of liberty. However, that deprivation of reproductive autonomy can endanger the life of the pregnant person and impact the rest of their lives. It is also true that the deprivation of reproductive autonomy was a central component of the institution of slavery. To this day, people who lack institutionalized power -- disproportionately likely to be people of color and descendants of enslaved people -- are more vulnerable to coercion and the deprivation of reproductive rights.

Moreover, anti-abortion activists have long employed the analogy of slavery to advocate against abortion rights. They argue that a fetus is like an enslaved person because, liked an enslaved person, a fetus lacks any human rights. Anti-abortion activists have long analogized Roe to Dred Scott v. Sanford, the case in which the Court held that a slaveholder had a fundamental right to own an enslaved person. Calling themselves ““abortion abolitionists,” anti-abortion activists today advocate recognition of fetal personhood. The anti-abortion group, Americans United for Life, have drafted a blueprint for “An Executive Order to Restore Constitutional Rights to All Human Beings,” urging the president to issue an executive order that would recognize a fetus as a “preborn person” with rights under the Fourteenth Amendment. They call their proposal the “Lincoln Proposal,” arguing the executive order would represent a second Emancipation Proclamation. If adopted, this measure based on the anti-abortion analogy to slavery would ban abortion nationwide.

Regardless of whether the analogy between slavery and the lack of reproductive rights is persuasive, people seeking abortions today in over half of the states in our nation have an essential experience in common with enslaved people before them -- the need to cross state borders to assert their fundamental right to bodily autonomy. After Dobbs, people seeking abortions must also rely on means of constitutional activism that enslaved people seeking freedom relied on before them -- using their own actions to assert their rights with help from activists on the ground, and relying on the political process to advocate for change.

Another parallel between people seeking abortions today and fugitives from slavery in the Antebellum era is the constitutional conflict that both movements engender. In the Antebellum era, fugitives from slavery provoked constitutional conflict over interstate comity and federalism, as well as the scope and existence of rights for enslaved and free Black people. Like fugitives from slavery before them, people seeking abortions provoke disputes not only over the scope of their rights, but also between states with conflicting laws regulating abortions. Abortion rights activists and their opponents are generating constitutional conflicts reminiscent of those in the Antebellum era, over interstate comity, federalism, and the scope and meaning of fundamental rights. Scholars and commentators discussing the interstate conflicts engendered by the Dobbs ruling have noted the parallels between the Antebellum era and today.

Activists in the reproductive justice movement have long operated a network of support for people seeking abortions, especially people of color. That movement was necessary even while Roe was still good law because under Roe access to abortion in this country was still limited, especially for low income people who are disproportionately women of color. The United States Supreme Court failed to address the underlying racial and economic inequality that created barriers to abortion access for women of color. Advocacy networks have significantly expanded since Dobbs, creating the space to further advocate for reproductive justice and address the systemic barriers to reproductive rights experienced by low income people, people of color and descendants of formerly enslaved people.

Until now, no scholar has undertaken an in-depth analysis of the parallels between fugitives from slavery and people travelling to receive an abortion, and the constitutional conflicts that they engendered. This essay seeks to remedy that oversight. Part II of this essay describes the transgressive constitutionalism of fugitives from slavery, who risked their lives to cross state borders in search of their freedom and fundamental human rights. In Part III, I argue that people crossing state borders to obtain abortions today are also engaged in transgressive constitutionalism, crossing borders to exercise what they believe to be their right to reproductive liberty. This is followed by Part IV, which maintains that in the Antebellum era and today, people engaging in transgressive constitutionalism are catalysts for constitutional conflict over interstate comity, federalism and individual rights. I build on this argument in Part V, where I discuss the importance of the right to travel to those engaged in transgressive constitutionalism, and illustrates the importance of the right to travel in the Antebellum era and today. The paper concludes by detailing the importance of freedom of expression to the anti-slavery and abortion rights movements, and describes limits on that freedom imposed by states restricting rights, both then and now.

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Like fugitives from slavery in the Antebellum era, people today are once again crossing state borders to exercise fundamental rights. People seeking abortions today, like fugitives from slavery before them, are engaging in transgressive constitutionalism, provoking constitutional conflict over interstate comity, federalism, and the scope of their reproductive rights. Abortion seekers and activists are asserting their right to travel and there right to free speech.

In the Antebellum era conflict over slavery strained our country's constitution and our democracy. On the eve of the Civil War, in its Dred Scott decision, the Supreme Court struck down the Missouri Compromise because the law restricted slavery in federal territories. The Court held that the law violated the fundamental right of slaveholders to own slaves. The Court's decision in Dred Scott precluded any political resolution of the conflict over slavery. Today, a similar absolutist cloud hangs over the debate over abortion rights -- the possibility that the Court could hold that a fetus is a person with constitutional rights. As legal historian Mary Ziegler has observed, the next step in the anti-abortion movement is an all-out fight for fetal personhood. For example, in 2022, the state of Georgia enacted a law defining a “natural person” as “any human being including an unborn child,” and authorizing tax exemptions for pregnancies after only 6 weeks of gestation. Similarly, the Arizona state legislature attempted to enact a law recognizing “personhood” at fertilization. These laws could result in murder charges being filed against anyone in these states who receives an abortion.

If a fetus is recognized as a person, any person who obtained an abortion could be charged with murder. If nationalized, this absolutist measure could end legal abortion anywhere in the country. The ultimate success of “abortion abolitionists” would be to convince the Supreme Court to hold that a fetus is a person. By doing so, the Court might be attempting to end the political debate over abortion once and for all -- just as Justice Taney thought when he wrote the Dred Scott opinion. However, the opposite would likely be true. Just as Dred Scott inflamed anti-slavery sentiment in the Antebellum era, a Supreme Court ruling recognizing fetal personhood would not end the debate over abortion. Instead, it would inspire more people to go underground in support of reproductive liberty, giving strength and motivation to abortion rights activists. Dobbs did not end the involvement of federal courts in abortion rights disputes, but the ruling certainly has sparked increased political activism in favor of reproductive liberty. Like fugitives from slavery and their anti-slavery allies before them, people seeking abortions and their allies today will serve at the forefront of enforcing a constitution of liberty.

Dean, Distinguished University Professor, and Charles W. Fornoff Professor of Law and Values, University of Toledo College of Law.