Abortion and the 13th Amendment

In the debate over whether Roe v. Wade should be overturned, a major constitutional issue has been neglected.

Imagine a world in which women are forced to bear children. They do not control their reproductive powers. Their bodies are at the command of others. Their bodies are mere instruments. Their lives are seized and put to the service of purposes not their own. 

This isn’t dystopian fiction. That was the United States before the Civil War for enslaved women. We adopted the 13th Amendment to end the institution of antebellum slavery — all of it. The amendment provides that “Neither slavery nor involuntary servitude . . . shall exist within the United States.” That has implications for abortion, implications that I’ve been pressing for a long time.

Legal terms often need unpacking. Law students are sometimes surprised to learn that property isn’t a single right, but a bundle of them: to use something, to sell it, etc.  Similarly with antebellum slavery. It was a bundle of wrongs: inability to move freely, to command one’s own labor, etc. Compulsory pregnancy was one of the worst of those.   

The 13th Amendment outlaws the whole bundle. The Supreme Court has held that, for example, it empowers Congress to prohibit racial discrimination in housing, because such discrimination is a relic of slavery. It doesn’t enslave anyone, but it is a fundamental part of the institution that the amendment abolishes.  

The opposite view makes clear the world that abortion bans bring into existence. At oral argument in Dobbs v. Jackson Women’s Health Organization, the pending abortion case, Justice Amy Coney Barrett asked a rhetorical question: to the extent that “the consequences of parenting and the obligations of motherhood that flow from pregnancy” burden women, “Why don’t the safe-haven laws take care of that problem?”  

It is a brutally silly question. Pregnancy is itself physically grueling, more so as it progresses. Adoption is hard. Many women find it difficult to give up for adoption an infant born of their bodies, and when they do the experience is often traumatizing. One study found that nine out of 10 women who were denied abortions ended up keeping the baby.

That’s fine only if you think that they weren’t entitled to decide for themselves what to do with their lives. Abortion restrictions tend to take over and reshape the lives of the women concerned. That loss of control over the course of one’s life is, of course, another part of the bundle.

Forced pregnancy’s violation of personal liberty is obvious. Restrictions on abortion also violate the amendment’s guarantee of equality, because forcing women to be mothers makes them into (what so much tradition defined them as) a servant caste, a group that, by virtue of a status of birth, is held subject to a special duty to serve others and not themselves. (It is also pertinent that abortion restrictions disproportionately burden Black women.)

The argument is not an analogy. The amendment is at its core a break with a reprehensible past, a determination not to repeat certain specific historical wrongs. For a large part of the slave population, loss over their reproductive capacities, and compulsion to bear children whether they wished or no, was one of those wrongs.  Many enslaved women wanted children, of course, and parents were devoted to their families despite heartbreaking obstacles. But they still had little choice. “Every indignity that comes from the denial of reproductive autonomy,” Dorothy Roberts writes, “can be found in slave women’s lives – the harms of treating women’s wombs as procreative vessels, of policies that pit a mother’s welfare against that of her unborn child, and of government attempts to manipulate women’s childbearing decisions through threats and bribes.” 

Their bodily powers were seized, in the intrusive and degrading way that is unique to unwanted pregnancy, and directed to the end of producing children. An ex-slave, Harriet Jacobs, wrote in 1860: “Slavery is terrible for men, but it is far more terrible for women.” No other prohibition in our entire legal system so entirely dominates one’s life.

Much of modern constitutional theory focuses on original meaning. That is pertinent here. This amendment was understood to be a radical break with the past, a determination never again to repeat past wrongs. To give it effect, we must be clear-eyed about what those wrongs were. Doubtless the framers had a limited view of the evil they were remedying, but the language they adopted was not confined to their understanding of that evil. If it were, Brown v. Board of Education would be wrongly decided, and few originalists are willing to say that.

This argument answers the often-repeated claim that the Constitution says nothing about abortion. It is not a complete defense of Roe. It doesn’t address the alleged personhood of the fetus. But it does show that the state, when it forces women to bear children, has a heavy burden of proof. A woman is a person.

This Court, with its dominant rightwing, will almost certainly overrule Roe. That will be a disaster for women. It will also be a disaster for the Constitution — in particular, for that provision of the Constitution by which the United States, for the first time, became the land of the free.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.