This is a fascinating essay by Jamelle Bouie looking at the role federalism has played and is playing on the issue of bodily autonomy. In the end, this is the big flaw, isn’t it?
One of the ironies of the American slave system was that it depended for its survival on a federal structure that left it vulnerable and unstable.
Within the federal union, the slave-dependent states had access to a national market in which they could sell the products of slave labor to merchants and manufacturers throughout the country. They could also buy and sell enslaved people, as part of a lucrative internal trade in human beings. Entitled to representation under the supreme charter of the federal union, slave owners could accumulate political power that they could deploy to defend and extend their interests. They could use their considerable influence to shape foreign and domestic policy.
And because the states had considerable latitude over their internal affairs, the leaders of slave-dependent states could shape their communities to their own satisfaction, especially with regard to slavery. They could, without any objection from the federal government, declare all Black people within their borders to be presumptively enslaved — and that is, in fact, what they did.
But the federal union wasn’t perfect for slaveholders. There were problems. Complications. Free-state leaders also had considerable latitude over their internal affairs. They could, for example, declare enslaved Black people free once they entered. And while leaders in many free states were unhappy about the extent of their free Black populations — in 1807, as the historian Kate Masur tells us in “Until Justice Be Done: America’s First Civil Rights Movement, From the Revolution to Reconstruction,” Ohio lawmakers passed a law requiring free Black migrants to register with the county clerk and have at least two white property owners vouch for their ability to support themselves — they ultimately could not stop the significant growth of free Black communities within their borders, whose members could (and would) agitate against slavery.
The upshot of all of this was that, until the Supreme Court’s decision in Dred Scott v. Sandford settled the matter in favor of slaveholders, the status of an enslaved Black person outside a slave state was uncertain. It was unclear whether property in man extended beyond the borders of states where it was authorized by law.
It was also unclear whether a slave state’s authority over an enslaved Black person persisted beyond its borders. And on those occasions when a free Black person was within the reach of slave-state law — as was true when free Black sailors arrived in Southern ports — it was unclear if they were subject primarily to the laws of their home states or the laws of the slave states. South Carolina assumed the latter, for example, when it passed a law in 1822 requiring that all “free Negroes or persons of color” arriving in the state by water be placed in jail until their scheduled departure.
One would have to conclude, surveying the legal landscape of slavery before Dred Scott, that federalism could not handle a question as fundamental as human bondage. The tensions, contradictions and conflicts between states were simply too great. As Abraham Lincoln would eventually conclude, “A house divided against itself cannot stand. I believe this government cannot endure, permanently half slave and half free. I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided. It will become all one thing or all the other.”
“The overturning of Roe v. Wade reveals the Supreme Court’s neglectful reading of the amendments that abolished slavery and guaranteed all people equal protection under the law. It means the erasure of Black women from the Constitution.”
I want you to keep all this in mind while you read about the latest developments in state and local laws regarding abortion. On Monday, Steve Marshall, Alabama’s Republican attorney general, announced in a court filing that the state has the right to prosecute people who make travel arrangements for women to have out-of-state abortions. Those arrangements, he argued, amount to a “criminal conspiracy.”
“The conspiracy is what is being punished, even if the final conduct never occurs,” Marshall’s filing states. “That conduct is Alabama-based and is within Alabama’s power to prohibit.”
In Texas, anti-abortion activists and lawmakers are using local ordinances to try to make it illegal to transport anyone to get an abortion on roads within city or county limits. Abortion opponents behind one such measure “are targeting regions along interstates and in areas with airports,” Caroline Kitchener reports in The Washington Post, “with the goal of blocking off the main arteries out of Texas and keeping pregnant women hemmed within the confines of their anti-abortion state.”
Alabama and Texas join Idaho in targeting the right to travel. And they aren’t alone; lawmakers in other states, like Missouri, have also contemplated measures that would limit the ability of women to leave their states to obtain an abortion or even hold them criminally liable for abortion services received out of state.
The reason to compare these proposed limits on travel within and between states to antebellum efforts to limit the movement of free or enslaved Black people is that both demonstrate the limits of federalism when it comes to fundamental questions of bodily autonomy.
It is not tenable to vary the extent of bodily rights from state to state, border to border. It raises legal and political questions that have to be settled in one direction or another. Are women who are residents of anti-abortion states free to travel to states where abortion is legal to obtain the procedure? Do anti-abortion states have the right to hold residents criminally liable for abortions that occur elsewhere? Should women leaving anti-abortion states be considered presumptively pregnant and subject to criminal investigation, lest they obtain the procedure?
Laws of this sort may not be on the immediate horizon, but the questions are still legitimate. By ending the constitutional guarantee of bodily autonomy, the Supreme Court has fully unsettled the rights of countless Americans in ways that must be resolved. Once again, a house divided against itself cannot stand.
Maybe the federalism is the fundamental problem. Perhaps institutionalizing dozens of different cultural/political/tribal sovereign power structures within a larger country maybe isn’t such a hot idea after all? It’s screwing us royally right now with the nonsensical electoral college that makes a mockery of our democracy. And this ongoing battle with the idea of individual autonomy and the rule of law in 50 different jurisdictions has been our great achilles heel from the very beginning. The authoritarian, white supremacist, patriarchy always seems to get a huge benefit from it even as they wave the American flag and call everyone else unpatriotic.