Shock waves are still reverberating from the Supreme Court overturning Roe v. Wade by ruling in Dobbs v. Jackson Women’s Health Organization that a woman has no constitutional right to an abortion.
But I maintain that a woman does have a constitutional right not to be denied access to an abortion. If this seems like legal hairsplitting, let me explain, because doing so will illuminate the path to restoring access to abortion nationwide.
Roe was about a woman’s freedom under the 14th Amendment to choose to have an abortion. But instead of looking at abortion through the lens of choice, let’s consider the reality of what it means as a woman to endure an unwanted pregnancy in a state banning abortion.
She is a captive of her condition: forced to carry a fetus to term, subjected to the traumas and dangers of pregnancy, and compelled to undergo childbirth in a nation with a shamefully high rate of maternal mortality. Such state-imposed gestation, by denying her access to an abortion, is “birthing bondage.”
The 13th Amendment to the United States Constitution says: “Neither slavery nor involuntary servitude… shall exist within the United States.” Slavery is the ownership of one person by another person or institution. Involuntary servitude is defined by Merriam-Webster as “a condition in which one lacks liberty especially to determine one's course of action or way of life,” and typically involves forced labor.
In his majority opinion in Dobbs, Supreme Court Justice Samuel Alito argued that before the Roe decision, “there was no support in American law for a constitutional right to obtain an abortion.” But he cannot dispute that there is a constitutional right to be free from involuntary servitude. The question then is whether birthing bondage is in fact a form of involuntary servitude. If it is, a woman has the right under the 13th Amendment to be freed from that servitude through her only recourse: an abortion.
A woman in birthing bondage is forced, around the clock for many months, to serve as a vessel to carry a fetus. This causes her physical and emotional distress, deprives her of the life she would lead were she not pregnant, subjects her to the pain of childbirth, and puts her very existence at risk.
Moreover, being denied an abortion has significant long-term negative consequences for her physical and mental health, financial condition and family life, according to a major research project, The Turnaway Study.
In birthing bondage, a woman is deprived of her liberty and suffers as a prisoner of her impregnation. Being forced to undergo an unwanted pregnancy and give birth is literally forced labor. So yes, we can only conclude that birthing bondage is involuntary servitude.
Of course, many women willingly, even joyously get pregnant and give birth. We love and respect them, and we thank you for your service. Being pregnant is a tough and dangerous unpaid job with no time off. No woman should ever be compelled by the power of the state to perform this service unwillingly.
State legislators enacting abortion bans, often without exceptions for rape or incest, are zealots intent on imposing their religious beliefs on us all. They are the Inquisitionists of a new Dark Age, Crusaders for the conquest of the bodies of women.
Efforts to counter this unholy Crusade have thus far failed in Washington. The House passed legislation to codify the constitutional right to interstate travel, so as to assure the legality of crossing state lines for an abortion. Republican opposition and the filibuster make passage impossible in the Senate.
Lawsuits have been filed to block state abortion bans, but these face a difficult path, playing in anti-abortionists’ home courts, whose judges were likely appointed by conservative governors. In several states the legality of abortion has changed on an almost daily basis as those suits proceed.
Reliance on state constitutions to affirm the right to an abortion is tenuous, when those constitutions are subject to being amended. A ballot question to do so in Kansas, and open the door to anti-abortion legislation, failed resoundingly when women from across the political spectrum arose in a historic revolt against being stripped of their ability to make the health care decisions they feel are best for them.
Attempts thus far to protect access to abortion are necessary but defensive, and don’t directly address what underlies Dobbs: callous denial of a woman’s right to control her body, cruel deprivation of her “life, liberty and the pursuit of happiness” as an American citizen, cavalier disrespect of her autonomy and dignity as a human being.
We must go on the offense by filing suits in federal courts to have state anti-abortion laws declared unconstitutional for violating the prohibition of involuntary servitude in the 13th Amendment.
The 13th was ratified right after the Civil War. There had been an historical connection between slavery and controlling women’s bodies for procreation. In 1808 a federal law went into effect which prohibited the importing of slaves. Some were still smuggled into the country through Texas and Florida, which were not yet members of the Union. For a slave owner, the only legal way to maintain or increase his work force was to buy slaves from other slaveholders, or for his female slaves to produce babies, often as the result of rape.
Black women did what they could to resist being forced to birth new slaves. They induced abortions by folk remedies such as chewing the roots of the cotton plant (also used as a contraceptive). Many plantation owners forbad their slaves from possessing cotton roots, at the pain of corporal punishment. Today, anti-abortion states want to prevent women from obtaining abortifacient medications, at the pain of criminal prosecution.
Suits to declare state anti-abortion laws unconstitutional could achieve what current efforts cannot: undo nationwide the legal apparatus which subjects women’s bodies to state control. I believe this approach can find support even among some conservative libertarians, as the Kansas vote strongly suggests.
Originalist judges would interpret the 13th Amendment in light of the intent of its framers. Michele Bratcher Goodwin, a distinguished professor of law at the University of California, Irvine, says: “It was very well understood and in fact debated and articulated by members of the Senate who led the campaign for the 13th Amendment that they were abolishing Black women’s involuntary reproductive servitude.”
Let us now free all women from the involuntary servitude of an unwanted pregnancy, and abolish birthing bondage in America.