Since the Supreme Court overturned Roe v. Wade last month, there’s been a lot of understandable focus on the practical repercussions for pregnant people in this country and the possible political ramifications. One area that’s received less attention is the way the court’s ruling is certain to further accelerate the balkanization of the United States along social, cultural, and political lines. As the Dobbs v. Jackson Women’s Health Organization decision triggers half of the states to criminalize abortion and the other half to embed abortion protections in state constitutions and statutes, our country sits on the brink of once again being formally and violently divided by significant discord between states. Nowhere will this more immediately play out than in looming fights over extradition of people who some states will consider fugitives and who other states will consider defenders of human rights and people exercising their human right to bodily autonomy.
Not since before the civil war have criminal laws been so discordant. One state’s human right is another’s murder charge. One result we will witness will be anti-abortion states weaponizing extradition and its operating principle of interstate comity against doctors and patients in pro-choice states across the country. States that criminalize abortion will tacitly deploy the constitutional power of extradition to obligate other states to arrest and detain pregnant people and the people that support them. In short, we are heading towards interstate conflict due to the rarely tested extradition clause of the constitution.
The extradition clause states that a “person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.” The Extradition clause was intended as an “obvious policy and necessity … to preserve harmony between States, and order and law within their respective borders.” The opposite of preserving “harmony” will happen as anti-abortion states force the compliance of pro-choice states in the persecution of people seeking access to abortions and those who assist them such as doctors.
This interstate compulsion to violate human rights is not unprecedented. While access to abortion and slavery should never be directly compared as abortion bans and chattel slavery are inherently different, the political and legal context around them offer lessons we should learn from. In 1850, anti-slavery states found themselves in a bind as Congress passed the Fugitive Slave Act that required states to turn over people suspected of being escaped enslaved persons. Abolitionists in New England balked at being compelled to use state police powers to become complicit in the horrid institution of slavery. As a result, Vermont passed a Habeus Corpus Law that created an affirmative duty for state officials, including states attorneys and “all judicial and executive officers” to “protect, defend, and procure to be discharged every such person … claimed to be a fugitive slave.” This law was never seriously tested in court but it created a significant backlash in the south as slave states accused Vermont of engaging in nullification of federal law.
A few years later in 1859, the governor of Ohio, William Dennison, refused to extradite Willis Lago, who was charged with assisting in the escape of an enslaved person in Kentucky. Dennison relied on an advisory opinion by his attorney general that stated laws criminalizing the aiding of escaped enslaved persons were not “known to civilized nations generally, to the common law, or to the statutes or polity of Ohio.” Notably, Dennison relied on a human rights framework to fight against being forced to be complicit in slavery. Kentucky sued in federal court and the Supreme Court ruled in 1861 in Kentucky v. Dennison that the state had no discretion to deny extradition on human rights concerns, but also that the federal courts lacked the ability to compel it through a write of mandamus.
The holding that states lack discretion in extradition was subsequently affirmed a century later by the Supreme Court in Puerto Rico v. Branstad, but Dennison was partially overturned as the court held that federal courts could mandate extradition through mandamus.
Since Branstad, the extradition clause has rarely been tested in modern times as it is often procedural and nearly all people being extradited waive their right to contest it. This is for good reason as those being sought for extradition can only challenge formal aspects of the extradition demand rather than substantive issues in a Habeus proceeding. Additionally, the relative harmony of state criminal laws up to this point made extradition a relatively routine process. That will begin to change as abortion becomes increasingly criminalized and the discordance in criminal laws between states escalates.
There will inevitably be instances of women and pregnant people who accessed abortions (or doctors who performed them) and fled to another state to avoid prosecution. More commonly, we will likely see anti-abortion states like Texas attempt to extradite the residents of other states who assisted someone in accessing an abortion. For example, someone who mailed abortion medication from New York to Texas could find themselves charged criminally in Texas and sought for extradition.
States that support abortion access will find themselves in a bind as they encounter anti-abortion states demanding they extradite people for abortion related charges. In many cases, they will have little recourse to prevent such an extradition, even with safe harbor laws in place. The extradition clause is mechanistic and is intended to act through its enabling federal statute in 18 U.S.C. § 3182. The role of states and governors are simply viewed as ministerial with very little discretion. Thus someone charged for activities related to an abortion that took place while they were physically in an anti-abortion state currently has virtually no legal protections if they leave and seek refuge in a pro-choice state.
States, though, have an obligation to protect the human rights of their citizens, and there are some ways that they can do so.
First, states should reinforce the requirements for extradition. The constitution, federal law, and state extradition laws require the demanded person be an actual fugitive. Thus, states are not required to extradite a person who was not corporeally present in the demanding state when the charged conduct occurred. Constructive presence through the commission of a criminal act is not sufficient to meet the fugitive requirement. So, someone who is charged with “abetting” an abortion in Texas from their home in New York will not necessarily be subject to extradition, even under the current understanding of the Extradition Clause. States can amend their extradition laws to make this explicit to protect their citizens.
Next, states should amend their extradition laws to try to protect potential out-of-state “fugitives” by looking towards international extradition law and using a human rights centered framework that reinforces the requirement of dual criminality for extradition. Dual criminality requires the charged conduct to be a crime in both states for an asylum state to extradite a citizen. States should enact legislation allowing for a defense to extradition under human rights concerns and a lack of dual criminality. It will be an open question as to whether this will pass muster under Puerto Rico v. Branstad, but it will be a fight worth bringing all the way to the Supreme Court.
These suggestions would be meaningless without the demanded person having counsel. States should implement a right to counsel for anyone in extradition proceedings, regardless of socio-economic status. Additionally, states should mandate release from detention for anyone who raises an affirmative defense to extradition of dual criminality and human rights concerns.
Finally, states should prohibit the use of state resources being used to extradite someone for seeking or assisting in abortion-related care. This would be enforced through a private right of action against anyone who violate the law. For state actors, including judges, prosecutors, police, and social workers, states must also explicitly prohibit immunity protection in these contexts.
These actions will inevitably create further tension between the states as pro-choice states resist becoming complicit in the persecution of anyone involved with abortion-related care. However, states that support access to abortion as a human right have an affirmative moral duty to protect their citizens from criminal prosecution and persecution for exercising their fundamental human right to bodily autonomy regardless of the consequences.
Yveka Pierre, Michelle McGrath, and Cynthia Conti-Cook contributed to the article.