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Steve Nelson: If not the 14th Amendment, then maybe the 13th Amendment could secure abortion rights in a post-Roe America

Abortion Indiana

Abortion-rights protesters fill the Indiana Statehouse corridors outside legislative chambers on Aug. 5 as lawmakers vote to concur on a near-total abortion ban, in Indianapolis.

Shock waves are still reverberating from the Supreme Court overturning Roe v. Wade and ruling in Dobbs v. Jackson Women’s Health Organization that there is no right to an abortion under the 14th Amendment to the U.S. Constitution.

The court left the legality of abortion to the states, causing widespread confusion, fear and pain.

A 10-year old rape victim in Ohio, where abortion was banned, had to get an abortion in Indiana, where it was allowed (but no longer is). The Attorney General in Ohio falsely claimed the girl had not been raped, while his counterpart in Indiana harassed her doctor there.

A woman in Texas whose fetus had died was unable to have it removed for two weeks because medical personnel were reluctant to act in fear of the state’s anti-abortion law, until she was in severe pain and on the verge of possibly dying.

An anti-abortion law enacted in Michigan in 1931 was still on the books but never enforced after Roe. With the Dobbs decision, it arose from the legal graveyard to terrify women and their medical providers, who would be subject to harsh penalties if this zombie statute survives a challenge by Governor Gretchen Whitmer.

These are but a few of the horrors unleashed by Dobbs, and doubtless many more will follow. Never before has a constitutional right been ripped away and its former beneficiaries thrown into a snake pit of state laws. Many state abortion bans were enacted through the efforts of religious fundamentalists.

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Writing recently in The New York Times, Supreme Court expert Linda Greenhouse, citing a column in “my local newspaper, The Berkshire Eagle,” admitted that she had changed her mind about the nature of Dobbs: “It was not constitutional analysis but religious doctrine that drove the opposition to Roe.”

Efforts to counter the crusaders of the court have thus far failed in Congress. The House passed legislation to codify the constitutional right to interstate travel so as to obtain an abortion. Republican resistance and the filibuster make passage impossible in the Senate.

Several 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. Suits relying on state constitutions to affirm the right to an abortion are on shifting ground, as those constitutions are subject to being amended, although a ballot question to do so in Kansas failed resoundingly. Such actions to protect access to abortion are necessary but 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. But there is a way to restore access to abortion nationwide.

Anticipating the overturning of Roe after the leak of Justice Samuel Alito’s draft opinion in Dobbs, I argued in a June 3 Eagle op-ed that the 13th Amendment protects access to abortion. Forced continuation of pregnancy, by denying access to abortion, is what I called “birthing bondage,” in violation of the prohibition of “involuntary servitude” in that amendment.

The 13th is best known for banning slavery. There was a deep connection between slavery and controlling women’s bodies for procreation. In 1808, a federal law prohibited the importing of slaves. Some were smuggled into the country through Texas and Florida, which were not yet members of the Union. For a plantation 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 serve as vessels for birthing new slaves. They induced abortions by folk remedies such as chewing cotton roots (also used as a contraceptive). Many plantation owners forbade 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 filed in federal courts to declare state anti-abortion laws unconstitutional under the 13th Amendment could achieve what current efforts cannot: undo 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 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.”

Now we must free all women from birthing bondage.

Steve Nelson, of Williamstown, is a graduate of Harvard Law School.

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