SYLVIE DOUGLIS, BYLINE: NPR.
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SALLY HERSHIPS, HOST:
The Supreme Court's decision not to block the state of Texas' new abortion law could mean major changes for access to abortion in the U.S. The new law bans most abortions around the time a pulse from a fetus can be detected. That's around six weeks - before most people even know they're pregnant. And the law applies even in cases of rape or incest. Similar so-called heartbeat laws have been blocked by the courts before, but there's something unusual about Texas' new law. There's this one very specific provision - a bounty. Richard Blackett remembers where he was when he heard about it.
RICHARD BLACKETT: I was watching the television with my wife. And I turned to her and I said, this sounds like the Fugitive Slave Law of 1850.
DARIAN WOODS, HOST:
Richard is a retired professor who lives in Nashville. He used to teach American and Caribbean history at Vanderbilt University. And he's written two books about the Fugitive Slave Act.
BLACKETT: The government provided a bounty for the recapture of fugitive slaves.
HERSHIPS: Back in 1850, the United States federal government actually offered a payment - a bounty for capturing and returning fugitives from slavery. And if you got caught helping, Richard says, you could be fined up to a thousand dollars. He says that law reminds him of the one Texas just enacted. It also offers a bounty - this time $10,000 to private citizens who can sue anyone for, quote, "aiding or abetting a woman in getting an abortion."
I'm Sally Herships in for Stacey Vanek Smith.
WOODS: And I'm Darian Woods. This is THE INDICATOR FROM PLANET MONEY.
Just today, the Department of Justice announced that it is suing to block the law. It's unclear whether that move will be successful or what will happen next. But we can look back at the Fugitive Slave Act to see how an economy sprang up around this one piece of legislation in the past and at the unexpected consequences that can happen when the government steps in with a bounty system.
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HERSHIPS: In some ways, 1850 felt a little bit like today. The country was really divided. Today, it's red state, blue state, Trump, the pandemic. Then, it was north, south and slavery. Slavery was legal in Southern states like Georgia, Mississippi and Kentucky. But antislavery sentiment was gaining, and the country was teetering on the brink of civil war, so Congress passed the Fugitive Slave Act. Supporters said it was seen as a way to maintain some kind of peace, to retain the union.
WOODS: The law said that if a fugitive from slavery made it into a free state where slavery was illegal, they could still be captured and returned. And the federal government was offering cash - a bounty. Bounty hunters advertised their services to cash in.
BLACKETT: There was one particular Southern sheriff who put advertisements saying that he had the means, he had dogs who would help to recapture people who were running away.
HERSHIPS: This particular sheriff would try to cut deals. For example, he would negotiate with bounty hunters in Canada. If they stopped the fugitives from slavery from crossing the U.S.-Canadian border, they could share in the reward. Commissioners or judges were put in places to hear cases. There was a lot of money floating around. And this entire market sprang up to take advantage of all of that cash.
BLACKETT: The federal government had to pay for all of that - the per diem expenses, the rail tickets, the accommodation fees.
WOODS: Richard says that there was even fraud - people padding expenses and cooking the books. But by the time the law was passed, almost all Northern newspapers refused to carry slave advertisements. So those who claimed people as property found a workaround. They made broadsides, which were flyers advertising the need to recapture a particular individual. And he says the law was received in the way you might expect. It was very popular among white people in the South but very unpopular in Black communities and in some Northern states.
BLACKETT: Another feature of the law, which created a huge backlash even among people who were not opposed to slavery, is that if a local policeman turns to an individual, a citizen, a white person or a Black person, and says, you need to help me recapture this person, this suspected fugitive, and that person declined, they can be charged. They can be fined.
HERSHIPS: And here's where Richard says the Fugitive Slave Act of 1850 starts to look a lot like today's Texas abortion law.
BLACKETT: If you hid the fugitive and the fugitive managed to escape, the slaveholder could sue you for up to a thousand dollars.
WOODS: An enormous amount of money at the time - about $35,000 in today's money. The language is the same in today's law. Anyone from an Uber driver to friends or relatives who, say, gives somebody a ride to an abortion clinic, they can be sued for $10,000 for aiding and abetting.
HERSHIPS: Richard says Americans take a lot of pride in being a law-abiding society. It doesn't matter if a law like the Fugitive Slave Act is morally indefensible. Even in that case, people will enforce it. And he says that created even more backlash.
BLACKETT: Even if a person who is not necessarily opposed to slavery - you are, in effect, asking that individual to become a slavecatcher. And for many, that is simply not on.
HERSHIPS: Back in 1850, Richard says people stormed courthouses. They protested. They burned down buildings where so-called fugitives were held, and they ran judges out of town. Fast-forward to today, and there are other kinds of protests. Both Uber and Lyft have said they will pay legal fees if their drivers get sued under Texas' new law.
WOODS: Michele Goodwin teaches law at the University of California Irvine. And like Richard, she also sees some strong similarities between the Fugitive Slave Act and Texas' new law. She says that having governments step in to offer a bounty is highly unusual.
MICHELE GOODWIN: What we've seen in the past, for example, when states have enacted anti-abortion legislation, typically it's been an agent of the state who was responsible for carrying out the state's legislation.
HERSHIPS: But what Texas has done, Michele says, is to deflect and to leave enforcement to citizens. And that makes things tricky. With past laws, if abortion rights groups or individuals objected, they sued the state. But now the state is not the enforcer, so there is this big legal tangle.
GOODWIN: Who do you sue? And who do you need to go after you before you sue?
WOODS: Michele says that the Fugitive Slave Act put a thumb on the scale in the bounty hunters' favor. They could go to whatever judge or magistrate nearby that they wanted to to have their case heard. But fugitives from slavery did not have the same rights. They had no ability to appeal. Michele says that the Texas law does something similar.
GOODWIN: A person who's the surveiller - right? - a person who's the stalker, this person gets to bring the case where they choose to, at any place that's convenient to them - not so for the person that they've tracked, not so for the person that they're looking to turn in.
HERSHIPS: Michele says for anyone who thinks making a comparison between the Fugitive Slave Act and the Texas law is off target, she can understand that concern. Sometimes, comparisons can be sloppy. But she says it's likely that those critics are falling into an awful kind of trap.
GOODWIN: The awful trap is to think about when we talk about women that we're just talking about white women.
HERSHIPS: Michele says the law's impacts will be disproportionately felt by women who are poor, working-class, Black and brown. Pregnancy is risky. Giving birth can be dangerous. But Black women are two to three times more likely to die from pregnancy-related causes than white women.
WOODS: And there are already a lot of protests against the new law. The city council of Portland, Ore., is set to vote on an emergency resolution next week. It may boycott doing business with Texas, which could cost Texas millions. Richard says that the kinds of protests that happened back in 1850 provide us with some insight about what he thinks could happen today in Texas.
HERSHIPS: Yeah. He says, many of the protesters, the people who stormed courthouses, the people who gathered outside were women, especially Black women. And a lot of things have changed since 1850. But one thing feels kind of the same. The country is divided, and Richard is worried.
BLACKETT: What happens if my neighbor spies on me, and I know it's my neighbor who spied on me? There could be a hell of a price to pay.
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HERSHIPS: Today's episode was produced by Julia Ritchey with help from Isaac Rodriguez. It was fact-checked by Kaitlyn Nicholas. The show is edited by Kate Concannon and is a production of NPR.
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