The Washington PostDemocracy Dies in Darkness

What pre-Civil War history tells us about the coming abortion battle

Fights over fugitive slave laws pitted states against each other and showcased the risks of the federal government not supporting liberty

A billboard in Rancho Mirage, Calif., reads: “Welcome to California, where abortion is safe and still legal.” (Mario Tama/Getty Images)
8 min

The Supreme Court’s decision in Dobbs v. Jackson Womens Health Organization, which overturned Roe v. Wade and eliminated the constitutional right to an abortion, is prompting allusions to slavery and the antebellum United States. There’s talk of a new “Underground Railroad” that conjures clandestine networks helping people to flee their home states in search of the freedom to end a pregnancy. And some predict Dobbs will result in conflicts among the states of a magnitude not seen since before the Civil War.

Any historical comparison requires considerable care, with attention to differences as well as similarities. The inability to access abortion, however degrading and oppressive, is quite unlike the horrors of chattel slavery, in which enslavers tortured and murdered enslaved people with impunity, sold children and adults away from loving families and required enslaved status to be passed from one generation to the next.

Yet, like antebellum slavery, abortion is a question of fundamental individual rights, an issue of critical national importance and a matter of great moral significance, marked by bitter divisions in public opinion. And like the battle over slavery, the fight over reproductive freedom raises questions about federal and state authority — in other words, who gets to make the rules.

The Dobbs decision, which gives states complete control over abortion laws, has unleashed conflicts that resemble the battles that arose when enslaved people fled slave states for free states, and enslavers, in turn, mobilized state and federal power to get them back.

This history doesn’t provide a blueprint for action in our own time, but it does remind us of the corrosive impact of interstate conflict and of the importance of federal protections for freedom and individual rights.

In the late 18th and early 19th century, northern states abolished slavery, and a long border emerged within the United States, between free states and slave states. It also became clear that some Americans were strongly committed to enslaving people while others found the practice morally abhorrent. Enslaved people themselves brought the clashing views into relief as they regularly escaped bondage and fled to states where slavery was outlawed.

In 1793, Congress passed a law intended to enforce the Constitution’s fugitive slave clause, which recognized that enslavers had some power to claim enslaved people who managed to get to free states. But that law left open many questions, including how enslavers’ claims would be adjudicated and the extent to which free states could establish their own procedures for such cases.

Over time, as the abolition movement grew, northerners insisted that enslavers had no business sending agents to enforce slavery beyond the borders of their own states, and free states enacted a variety of policies to constrain enslavers’ power. Known as “personal liberty laws,” these included state-level provisions to protect free Black people from kidnapping, strict standards of evidence for evaluating enslavers’ claims and jury trials for adjudicating those claims, rather than cursory proceedings before a single local official.

Infuriated enslavers demanded better treatment from White Americans in the free states. The governments of slave states sometimes sent delegations to free states to demand repeal of personal liberty laws. And free states vacillated in their policies, often changing course when a new political party took power in the legislature. The relative safety of Black people living in the North was in constant flux as a result.

Many looked to the federal government to resolve the conflicts and uncertainty. The U.S. Supreme Court entered the debate in the 1842 case of Prigg v. Pennsylvania. There, the court declared that enforcement of the Constitution’s fugitive slave clause was a matter of exclusive federal jurisdiction, invaliding many personal liberty laws and opening the door for a much more stringent federal fugitive slave law.

But Prigg also made space for free state local officials to refuse to cooperate with enslavers, and this they certainly did. In the 1840s, many free states passed new personal liberty laws, some of which declared that state and local officials were not permitted to cooperate in the renditions of fugitive enslaved people.

As part of the broader Compromise of 1850, Congress weighed in heavily on the side of enslavers, adopting a new Fugitive Slave Act that created a cadre of federal commissioners to oversee claims to human property in the free states. The new law permitted commissioners to deputize people to help them and commanded “all good citizens” to participate when asked. The 1850 law’s vast expansion of federal power in the states gave the lie to the idea that what enslavers really cared about was “states’ rights.” To the contrary, enslavers and their supporters advocated federal power of unprecedented reach when it served their purposes.

Hundreds and probably thousands of Black northerners fled the country rather than face capture and enslavement under the repressive new regime.

Broad-based resistance in the free states grew in the late 1850s, as states passed new personal liberty laws in defiance of the Fugitive Slave Act and local officials and citizens stood up against efforts to enforce it. They continued to do so even after the Supreme Court reinforced in Ableman v. Booth (1859) that the act was constitutional and federal authorities had exclusive jurisdiction in such matters.

Northerners’ growing refusal to tolerate slavecatchers and cooperate with federal law contributed to the coming of the Civil War, and the war, in turn, resulted in the abolition of slavery. The 13th, 14th and 15th amendments, adopted after the war, were an effort to set the nation on a new constitutional footing.

The amendments for the first time put the force of the federal government on the side of freedom, not slavery. In fact, the first federal civil rights statute, the Civil Rights Act of 1866, used the same enforcement mechanisms as the Fugitive Slave Act had, this time in the service of protecting, rather than denying, people’s basic rights.

The capacious language of Section 1 of the 14th Amendment promised that states could not deny people due process or equal protection of the law, and could not deny citizens the privileges or immunities of citizenship. Americans have never agreed on precisely what these broad phrases encompassed, but combined with Section 5, which gave Congress enforcement power, they promised an array of new individual rights, backed by the power of the federal government.

In Roe v. Wade (1973), the court found in the 14th Amendment a constitutional right to terminate a pregnancy under some conditions. In Dobbs, the Court reversed course, declaring that no such right existed and that states get to decide whether residents can access abortion at all and, if so, under what conditions.

This decision has created a landscape with parallels to the fight over slavery and fugitive slave laws. In places where abortion is already severely restricted or banned, state legislators and lobbyists now discuss exerting jurisdiction outside the confines of their states. Referring to proposals along these lines, the vice president and senior counsel for the Thomas More Society, a conservative legal organization, recently said: “Just because you jump across a state line doesn’t mean your home state doesn’t have jurisdiction.”

In response, states that support reproductive rights like Connecticut, California, New Jersey and Delaware have created protections for abortion providers against out-of-state lawsuits and prosecutions. These are today’s personal liberty laws.

Control of Congress is now more important than ever, as some Republicans insist that the next step is a federal ban on abortion, while Democrats seek to rally voters with the argument that if they keep control of the House and gain a couple of senators, they will be able to “codify” Roe v. Wade.

The history of the 19th century reminds us that arguments for states’ rights, or for federal power, have no intrinsic political or moral valence. Northerners adopted personal liberty laws to mitigate oppressive aspects of the Constitution and federal law, while enslavers insisted on extending their jurisdiction beyond state lines and put unprecedented federal power in the service of human bondage.

But that doesn’t mean the best option for the country is to leave questions of fundamental rights in the hands of the states. To the contrary, history also shows that the United States has been at its best when, as in the Reconstruction amendments and federal civil rights laws, it offered federal guarantees of freedom, dignity and equality to all people. Federal guarantees not only strengthen democracy, they also tamp down conflicts among the states. Now the Supreme Court has withdrawn the 14th Amendment’s protection of reproductive freedom. No wonder we find ourselves looking for parallels to a period before the amendment existed.