This is an editorial of mine that appeared in the Herald-Leader recently. It’s also reproduced below the link.
https://www.kentucky.com/opinion/op-ed/article275787356.html
There is a constitutional basis for a woman’s right to terminate a pregnancy the Supreme Court has never addressed – the 13th Amendment abolishing slavery and involuntary servitude. 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, 61 F.3d 1505, 1514 (10th Cir. 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, at 1534, 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, the doctrine of coverture held that women had no legal identity. 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 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.
Ginsburg famously said, “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When the government controls that decision for her, she is being treated as less than a full adult human responsible for her own choices.” One of Ginsburg’s criticisms of Roe v. Wade, the 1973 case recognizing a limited right to abortion was that equal protection would have provided a firmer foundation for abortion rights than the right of privacy relied upon in Roe. Her fears proved correct when Roe was overturned in 2022.
But actually, anti-abortion laws are not just a violation of equal protection. 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 constitutes slavery. This violation of the 13th Amendment is unaffected by the legal status of a fetus. Call it a person, call it potential life, call it whatever you like – the involuntary servitude of the woman remains the same. It’s an uncomfortable thing to utter, but the anti-abortion laws make women breeding slaves.
