Anti-abortion laws constitute involuntary servitude that violates 13th Amendment | Opinion

There is a constitutional basis for a woman’s right to terminate a pregnancy the Supreme Court (SCOTUS) has not directly addressed – the 13th Amendment, which abolished slavery and involuntary servitude. Several op-eds over the past several decades have argued government-forced pregnancy is slavery. A few months ago, a federal judge suggested that possibility, but it’s not the first time a court has given serious consideration to the question.

Jane L. v. Bangerter, a 10th Circuit case in 1995, quoting Laurence Tribe, a prominent constitutional law scholar, said, “A woman forced by law to submit to the pain and anxiety of carrying, delivering, and nurturing a child she does not wish to have is entitled to believe that more than a play on words links her forced labor with the concept of involuntary servitude.” The Bangerter court, pointed out, as Tribe did, the judicial recognition of the similarities between the historical plight of women and blacks underscores the Thirteenth Amendment’s relevance.

The idea that women are autonomous persons is relatively new. Historically, in English and American law, women had no legal identity under the doctrine of coverture. At birth, a female baby was covered by her father’s identity, and upon marriage, by her husband’s. Until passage of Married Women’s Property Acts in the late 1800s, married women could not even own property apart from their husband’s. They also had no right to control their bodies – a husband owned his wife’s labor, had absolute right to sexual access, and a claim to children born therefrom. When the states ratified the 14th Amendment in 1868, no one thought its provision for “equal protection under the laws” applied to women. That didn’t happen until 1971, in Reed v. Reed, a case litigated by crusading attorney (and future Supreme Court Justice) Ruth Bader Ginsburg.

But equal protection can’t save abortion rights if SCOTUS is ideologically committed to denying them. Dodd v. Jackson Women’s Health Organization, overruling Roe v. Wade in 2022, simply dismissed equal protection in two sentences without addressing any arguments or precedent. Attempting to foreclose the issue for good, SCOTUS broadly stated that no constitutional provision could be construed to include abortion rights, that abortion was merely a political question for state legislatures. Someday the Dodd decision will be viewed with the same shame as Plessy v. Ferguson, which found state and local laws segregating Blacks “constitutional” in deference to the political preferences of White people.

When government restricts abortion, at any stage of pregnancy, government in effect seizes control of a woman’s body and requires the woman to carry the child to term and give birth whether she wants to or not. The 13th Amendment abolished slavery and involuntary servitude “except as punishment for a crime.” Pregnancy is not a crime, so the involuntary servitude imposed by anti-abortion laws violates the 13th Amendment. This argument cannot be refuted. It can only be suppressed by ignoring it.

Or avoided by changing the subject. SCOTUS, in Dodd, comes close to calling a fetus a person. But call it a person, call it potential life, call it whatever you like – the slavery and involuntary servitude of the pregnant woman remains the same. As Ruth Bader Ginsburg famously said, until women can choose for themselves whether to bear children, they will never be full adult human beings. It’s uncomfortable to say it out loud, but anti-abortion laws make women breeding slaves in violation of the 13th Amendment and in conformity with The Handmaid’s Tale, Margaret Atwood’s dystopian novel.

Mike Wilson
Mike Wilson

Mike Wilson is a lawyer, professor, and author of “Arranging Deck Chairs on the Titanic,” political poetry for a post-truth world.