Section 7 – And be it further enacted, That any person who shall knowingly and willingly obstruct, hinder, or prevent such claimant, his agent or attorney, or any person or persons lawfully assisting him, her, or them, from arresting such a fugitive from service or labor, either with or without process as aforesaid, or shall rescue, or attempt to rescue, such fugitive from service or labor, from the custody of such claimant, his or her agent or attorney, or other person or persons lawfully assisting as aforesaid, when so arrested, pursuant to the authority herein given and declared; or shall aid, abet, or assist such person so owing service or labor as aforesaid, directly or indirectly, to escape from such claimant, his agent or attorney, or other person or persons legally authorized as aforesaid; or shall harbor or conceal such fugitive, so as to prevent the discovery and arrest of such person, after notice or knowledge of the fact that such person was a fugitive from service or labor as aforesaid, shall, for either of said offences, be subject to a fine not exceeding one thousand dollars, and imprisonment not exceeding six months, by indictment and conviction before the District Court of the United States for the district in which such offence may have been committed, or before the proper court of criminal jurisdiction, if committed within any one of the organized Territories of the United States; and shall moreover forfeit and pay, by way of civil damages to the party injured by such illegal conduct, the sum of one thousand dollars for each fugitive so lost as aforesaid, to be recovered by action of debt, in any of the District or Territorial Courts aforesaid, within whose jurisdiction the said offence may have been committed.

That’s Section 7 of the Fugitive Slave Act of 1850. This Act of Congress allowed states and territories of the U.S. to create commissioners to hunt down black Americans who escaped slavery and return them to their enslavers. If an enslaved person was able to reach a state that had legally banned slavery, their enslaved status was not overturned. Instead, the people of that state were forced, by Section 7, to void their own antislavery laws by helping the slave commissioners in whatever way those commissioners demanded: help them to find enslaved people, take them into custody, guard them while they awaited return to their enslaver, and turn them over to the enslaver. Preventing a slave commissioner from enforcing slavery in a free state was illegal. Helping an enslaved person hide or escape was illegal. Knowing about people who were helping or hiding enslaved people was illegal, because it was a form of “hindering” the slave commissioner. The penalty for those who hindered slavery, directly or indirectly, was a $1,000 fine (a fortune in the mid-1800s), up to six months in prison, and another $1,000 fine to pay back the enslaver the “civil damages” they experienced as “the party injured by such illegal conduct”. Since very few Americans would have $1,000 to pay the first fine, the second $1,000 would be collected “by action of debt” – that is, seizure of property and/or any other asset the person might possess.

We posted about the FSA four years ago, in September 2017 in “The 2017 Fugitive Slave Act”; that time, we were comparing it to laws making it criminal to help immigrants who are in the U.S. illegally, and turning police officers into “immigrant-catchers” just like the slave commissioners were “slave-catchers”. When you are rewarded for doing something, you will find ways to do it. When you are punished for doing something, you’ll stop. That’s how these acts work.

This September, in Part 1 of a short series, we’re comparing the Fugitive Slave Act of 1850 to the 2021 Texas Senate Bill 8. Why? Because this Bill, now law, makes it illegal for a woman to get an abortion after six weeks of pregnancy in the state of Texas, and therefore illegal for anyone to provide an abortion or, crucially, to help a woman to get an abortion in Texas after six weeks in any way. Abortion is realistically banned by this procedure, not just or primarily because not all women know that they are pregnant at just six weeks, but because

–all women are forced to make two appointments with an abortion provider, one to get an ultrasound so they can be shown their “baby” and told that they will be “murdering” it if they get an abortion, and one to get another ultrasound before the procedure;

–women under age 18 are forced to get written and signed parental approval to get an abortion; and

–only women with strong support systems, money, and flexible employers who allow time off are able to travel out of Texas to a state that does provide abortions after six weeks.

With the passage of this bill into law, it’s not just illegal to perform an abortion; it’s also illegal to drive a woman out of state to get one elsewhere, to pay for one, or, potentially, to tell a woman where she can get an abortion after six weeks. The law is purposefully vague, using the phrase “conduct that aids or abets the performance or inducement of an abortion” to cover just about anything.

Let’s do a close reading. We took the text of this Bill from the website Texas Legislature Online, which is part of the official State of Texas government website. We’re not reproducing the entire text, but letting you know which sections we’re looking at.

AN ACT

relating to abortion, including abortions after detection of an unborn child’s heartbeat; authorizing a private civil right of action.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1.  This Act shall be known as the Texas Heartbeat Act.

–The use of the word “child” is already a red flag for subjectivity. A fetus at 6 weeks is a fetus, not a “child”. Anti-choice advocates have long used the words “baby” or “child” to describe something that could one day be a baby or child, but currently is not. From the moment an egg is fertilized by sperm, it’s a “baby”, as Section 171.201 (5) says: “‘Pregnancy’ means the human female reproductive condition that: (A)  begins with fertilization”.

Calling the Bill the “Texas Heartbeat Act” technically refers to the fact that a fetal heartbeat is detected between 3-6 weeks after fertilization. But even the language of this Bill in Section 171.201 (1) reveals what a technicality this is: “‘Fetal heartbeat’ means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.” Is this what anti-choice advocates want you to think of when you hear “Texas Heartbeat Act”? No; they want you to think of a valentine-shaped heart that represents a baby with feelings and emotions.

Basically, calling a 6-week old fetus a “child” or “baby” is like calling someone you enslave a “laborer” or “worker”, as the Fugitive Slave Act of 1850 did, consistently calling people who escaped slavery “fugitives from labor.”

Sec. 171.207.  LIMITATIONS ON PUBLIC ENFORCEMENT. (a)  Notwithstanding Section 171.005 or any other law, the requirements of this subchapter shall be enforced exclusively through the private civil actions described in Section 171.208.  No enforcement of this subchapter, and no enforcement of Chapters 19 and 22, Penal Code, in response to violations of this subchapter, may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person, except as provided in Section 171.208.       

–Here the Bill leads early with its key component: it’s not being enforced by the State government. No enforcement of the Bill may be taken or threatened by anyone representing the state. Here’s the first part of that following section they refer to:

Sec. 171.208.  CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION. (a)  Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:

–Texas never claimed that this Bill is constitutional. The evil genius of it is that it doesn’t have to be constitutional if the state is not carrying it out. No one working for the state government of Texas will be asked to prevent a woman from getting an abortion, or take anyone to court for having an abortion or helping a woman to get one. The state’s hands are off. It’s private citizens who will do this work. Yes, they’re authorized by state law, but this means that anyone who wants to challenge this law will have to go after every individual citizen who acts on it–which could be thousands or tens of thousands of people. No one can sue the State of Texas over it.

Pro-choice advocates will certainly take the first private citizen who acts on this law to court, and hope to work that individual case up to the Supreme Court, just like Brown v. Board of Education or Plessy v. Ferguson. But in the meantime, unknown numbers of people will continue to act on it–far greater numbers than work in Texas state government. 25 million people live in Texas. Far fewer work in state government.

This is an authorization of vigilantism, as we will see. Let’s continue that last section:

Sec. 171.208.  CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION. (a)  Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:

(1)  performs or induces an abortion in violation of this subchapter;

(2)  knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter;

(1) is clear: no abortions can be provided after six weeks. (2) is that horribly vague “conduct that aids or abets the performance” of an abortion that could cover anything. The only specific they give is that insurance companies that pay for abortion can be sued. The vanishingly small number of insurance companies that ever cover abortion will soon, one fears, be reduced to zero.

You may be asking at this point, where is the burden of proof? How can anyone prove that someone “aided or abetted” in an abortion in any way? It’s just hearsay–I can go to court and say “I know that Person A drove Person B to get an abortion” or, worse, “I know that Person A encouraged Person B to get an abortion,” or even “Person A knew that when Person B left the house that day they were going to drive out of state to get an abortion and didn’t try to stop them.” There’s no end to the dystopian nightmare that is made possible here.

This law also makes someone guilty until proven innocent, which is the opposite of the legal principle the U.S. is founded on. If Person A is sued, they are forced to appear in court and argue that they are innocent. The Bill refers to someone in this situation as the “defendant” and the person who sued them as “the claimant”, and never was the word “claim” so accurately and awfully used. No one making a claim against someone will be thrown out of court, and every groundless case will have to be heard–and the “defendant” will pay all the legal fees if they are found guilty, and the state will pay all the legal fees if they are not, as we see here:

[3] (b)  If a claimant prevails in an action brought under this section, the court shall award:

(1)  injunctive relief sufficient to prevent the defendant from violating this subchapter or engaging in acts that aid or abet violations of this subchapter;

(2)  statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter, and for each abortion performed or induced in violation of this subchapter that the defendant aided or abetted; and

(3)  costs and attorney’s fees.

So if Person X takes Person A to court and wins, Person A is first made incapable of repeating their crime (“injunctive relief” is a court order that demands that someone stop doing something), and Person X, the Claimant, gets “not less than” $10,000 for each abortion performed or “aided and abetted” by Person A, and the court will pay for Person X’s court costs and attorney’s fees. Person X, of course, pays their own costs and fees.

Remember how the Fugitive Slave Act guaranteed $1,000 to anyone who turned in someone hindering a slave commissioner? And put the hinderer in jail, and made them pay another $1,000 so they couldn’t do it again (injunctive relief)? Just add a zero to the Texas law and we’ve got the same situation, except that in 1850 the person found guilty paid the reward to the person who had turned them in. Now, it’s all taxpayers in Texas. Everyone, regardless of their stance on abortion, is helping to prosecute people who provide or “aid and abet” abortion.

(d)  Notwithstanding Chapter 16, Civil Practice and Remedies Code, or any other law, a person may bring an action under this section not later than the fourth anniversary of the date the cause of action accrues.

–There’s a statute of limitations of four years on suing someone for providing, aiding or abetting abortion. We’re surprised it’s that short. Why fear that memory or hearsay or “claims” will be harder to prove with passage of time? Concerns about proof don’t seem to trouble anyone who wrote or passed this Bill.

Sec. 171.212.  SEVERABILITY.      

(c)  The legislature further declares that it would have enacted this chapter, and each provision, section, subsection, sentence, clause, phrase, or word, and all constitutional applications of this chapter, irrespective of the fact that any provision, section, subsection, sentence, clause, phrase, or word, or applications of this chapter, were to be declared unconstitutional or to represent an undue burden.

–This is surprisingly frank. The Texas state legislature would have passed last word of this bill, “irrespective of the fact” that any part of it “were to be declared unconstitutional or to represent an undue burden.”

Part of this lack of concern for constitutional law comes from their deviant removal of enforcement from the state to the private citizen–again, it doesn’t matter if the law is unconstitutional if the state is not carrying it out (even though the state is, of course, carrying it out by allowing cases to be heard and punishing the courts if they don’t hear the cases).

But the larger part is that this is meant to be read as a brave, moral stand against the immorality of abortion. Even if the whole world tells us we’re wrong, the lawmakers say, we know that we’re right, and we stand by it. This wrapping oneself in morality is very selective in the U.S., and seems mostly to occur when right-wing politicians go against something liberal politicians support.

It’s also almost always about life-or-death stands that are fairly meaningless: support our troops by funding weapons and wars, because they’re fighting for our freedom… but don’t give military personnel a living wage, safety from rape and/or abuse based on sexuality, good life and health insurance, easy access to quality mental or physical health care, or good housing.

Here, it’s don’t “kill” an unborn “child” because that’s “murder”… but once that child is born, do nothing to fund early childhood education, school breakfasts, mother and infant health care, affordable and safe day care, after-school programs, or anything else that will help that child live a good life. This is not being “pro-life” but “pro-birth”.

People who ban abortion are almost always “pro-birth”. They want huge governmental involvement, investment, and protection for stopping abortion, and zero of the above for helping all children thrive, regardless of race, religion, first language, income, sex, sexuality, etc. They usually follow pro-birth laws with measures designed to prevent exactly that kind of level playing field for the children they insist be born, from segregated schools to gay “conversion camps” (aka torture centers).

There’s no room for this in a democratic nation. The history of the United States is one of incrementally increasing democracy, of getting closer to liberty and justice for all. Making a Christian position against abortion the law for all Texans, and, one day, for all Americans, is a violation of our founding principle of separation of church and state. Un-American oppression and disregard for the Constitution, vigilantism and sexism, have no place in our nation. Religious belief is not protected by the Constitution, as we’ve noted before:

…What the First Amendment does regarding religion is: first, it forbids our federal legislature from making any laws creating an official state religion; second, it forbids our federal legislature from preventing people from worshipping as they see fit. That’s what “free exercise” means–how you worship. Whether you go to a church, synagogue, mosque, or have a prayer room in your home, you are protected. If you wear a head covering like a yarmulke or turban as a form of worship, you are protected.

The First Amendment is all about physical forms of religious worship. It comes from a time when people would burn Catholic churches or refuse to let Jewish Americans build synagogues. It stops this, and stops schools from forbidding students to wear religious clothing.

It does not protect religion itself, or as we usually put it, religious belief. It does not protect anyone’s right to believe certain things. If one’s religion prohibits homosexuality or birth control, that is a belief, not a form of worship. Belief is not protected because belief is so amorphous. One could claim any crazy notion as a religious belief and demand that it be protected. We could say that our religion says women shouldn’t ride public transportation, or men should not be allowed to use public showers, or cats can’t be kept as pets, and we would have to be accommodated.

The Founders were wise enough not to get into religious belief. They just made a safe space for public and private physical worship.

Laws like the ones passed in Texas, and getting closer to passage in many other states, define one specific version of Christianity as “religious belief”, and seek to make it the state (and national) religion. That’s not what we’re supposed to do in America.

Next time, details of how the law is playing out in Texas–and beyond–and a primer in why these anti-choice laws are unconstitutional.