Pregnancy as servitude: reframing the abortion question

As the struggle for a woman’s right to govern her own body moves from the federal to the state level, anguish and anger persist — but the argument needs to change. 

If, as Justice Samuel Alito emphasizes as the central thesis of the Dobbs decision, the constitution is silent on abortion, it is explicit on involuntary servitude. And on the definition of involuntary servitude Justice Sandra Day O’Connor, writing for the Supreme Court in the 1988 United States v Kozminski decision, formulated the essential tests: involuntary servitude includes not only physical but “legal coercion,” a consequence that will be imposed under anti-abortion laws passed by several states. 

This strong constitutional basis for a woman’s right to choose whether or not to carry a pregnancy to term is not addressed in Justice Alito‘s opinion. To force a woman to sustain maternal labor is to ignore the literal meaning of the words “involuntary servitude” — and to imagine a far different context from the slavery in which the constitutional language originated. 

Too little weight has been given to the constitutional protection against involuntary servitude. It is banned as an evident corollary to the slavery proscribed in the 13th Amendment to the federal Constitution. Some 20 state constitutions include parallel provisions. Indeed, Colorado has recently joined Nebraska and Utah by eliminating all exceptions to the ban on such servitude.  (The federal and some states’ constitutions permit involuntary servitude in cases where a person has been lawfully convicted of a crime.) 

In the fluid politics developing among the states, Tennessee is an interesting case. In 2014, voters amended the constitution to make clear that it offered no affirmative right to abortion and authorized the legislature to enact statutes on the subject. They left in place the state constitutional ban on involuntary servitude. In November of this year, they will vote on a proposal to strengthen that prohibition by removing language allowing for the possibility of using such servitude as a criminal punishment — joining Colorado and other states in that camp. 

It is difficult to conceive of any involuntary servitude graver than a government’s compulsion of a woman to bear a child. Compulsory childbearing was a familiar practice in American slavery. Forced breeding of slaves was the widespread policy on numerous plantations, rooted less in the natural passions of humans than in the economic calculations of slave masters. 

There were undoubtedly mixed reasons for encouraging pregnancies among slaves, including some accommodation of honest affections among the partners. It is likely that some slaveowners felt they were both being generous to slave couples and calming dangerous impulses by indulging inter-slave liaisons. Not all congresses among slaves were involuntary, but all of them took place in a general context of involuntary servitude. 

Uglier and more ignoble were the pregnancies arising from intercourse between masters and female slaves. It is possible to imagine that some master-slave relationships were tinged with genuine affection, but they were intrinsically corrupt and immoral. Perhaps Thomas Jefferson and Sally Hemmings loved each other, but that did not alter the fundamental reality that they were bound together in coercion, a condition that as a general matter Jefferson profoundly condemned. His sense of personal hypocrisy must have been acute and soul-searing. 

The authors of the 13th Amendment and their imitators at the state levels could not have been unaware that the emancipation they established surely included freedom from forced pregnancies. That fact is a powerful premise for persuading courts that denying a woman the option to terminate an unwanted pregnancy should be a power denied to the state. It would offer petitioners a fresh basis for action against the state laws now encumbering the lives of women and their families. 

Among the occasions for initiating such action is the Mississippi law on which the Supreme Court has ruled. That state’s constitution is one of those, along with Georgia, Alabama and others where similar statutes are emerging, which contain guarantees against involuntary servitude. In framing challenges to such laws, it would be prudent to ask state courts to apply their standard against such servitude. The myriad tests probable among the states may well generate further recourse to federal adjudication but on novel constitutional principles.  

One needs to be clear that the balancing test with which courts have wrestled will not disappear. As painful as it is to weigh a woman’s right to terminate a pregnancy against the state’s right to intervene in defense of an embryo, the contending values demand respect. Abortion in the second or third month is less problematic than abortion in the seventh or eighth month — and barring the most extreme danger to the life of the mother late-stage abortion becomes harder to support.   

Beyond safeguarding the mother’s health, there are ever-more-perplexing cases that pose excruciating choices. Over the years many states have recognized that cases of rape or incest may warrant terminating a pregnancy, with diseased or malformed fetuses presenting less clear-cur exceptions for enforced childbirth. But in all instances, citizens in a democracy should be horrified at the notion that government has the power to condemn a woman to complete a pregnancy and face the long-term burdens of childbearing and, barring adoption, child-rearing.   

These are circumstances in which justice is neither pristine nor hygienic. It can only aspire to approximation, but it should trust the women who bear children, not judges or legislators — who may otherwise become the new masters imposing involuntary servitude.

Alton Frye, a fellow of the National Academy of Public Administration, has worked and written on many constitutional issues, including as staff director for the late Sen. Edward Brooke (R-Mass.).