2010
Forced Labor, Revisited: The Thirteenth
Amendment and Abortion
Andrew Koppelman
https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1031&context=facultyworkingpapers
snip...
I. The basic argument
The Thirteenth Amendment reads as follows:
1. Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly convicted,
shall exist within the United States, or any place subject to their
jurisdiction.
2. Congress shall have the power to enforce this article by
appropriate legislation.
My claim is that the amendment is violated by laws that prohibit abortion. When
women are compelled to carry and bear children, they are subjected to "involuntary
servitude" in violation of the amendment. Abortion prohibitions violate the
Amendment's guarantee of personal liberty, because forced pregnancy and childbirth, by
compelling the woman to serve the fetus, creates "that control by which the personal
service of one man [sic] is disposed of or coerced for another's benefit which is the
essence of involuntary servitude."6 Such laws violate the amendment's guarantee of
equality, because forcing women to be mothers makes them into a servant caste, a group
which, by virtue of a status of birth, is held subject to a special duty to serve others and
not themselves.
This argument makes available two responses to the standard defense of such
prohibitions, the claim that the fetus is a person. The first is that even if this is so, its
right to the continued aid of the woman does not follow. As Judith Jarvis Thomson
observes, "having a right to life does not guarantee having either a right to be given the
use of or a right to be allowed continued use of another person's body -- even if one needs
it for life itself."7
Giving fetuses a legal right to the continued use of their mothers'
bodies would be precisely what the Thirteenth Amendment forbids. The second response
is that since abortion prohibitions infringe on the fundamental right to be free of
involuntary servitude, the burden is on the state to show that the violation of this right is
justified. Since the thesis that the fetus is, or should at least be considered, a person
seems impossible to prove (or to refute), this is a burden that the state cannot carry. If we
are not certain that the fetus is a person, then the mere possibility that it might be is not
enough to justify violating women's Thirteenth Amendment rights by forcing them to be
mothers.
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