Ak’s approach to abortion question

• Right to abortion is protected by 13^th Amendment.

• Basis in case law for this argument is two cases suggesting that 13^th Amendment protects both liberty and equality

• Personal liberty. Bailey v. Alabama held that personal service cannot be compelled

• Equality: Jones v. Mayer held that Congress can abolish the “badges and incidents of slavery” because those badges and incidents are part of what the amendment forbids).

• Personal liberty. Abortion prohibitions violate 13^th 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 is disposed of or coerced for another’s benefit which is the essence of involuntary servitude.”

• The pregnant woman may not serve at the fetus’ command – it is the state that, by outlawing abortion, supplies the element of coercion – but she is serving involuntarily for the fetus’ benefit, and this is what the Court has said that the amendment forbids.

• If citizens may not be forced to surrender control of their persons and services, then women’s persons may not be invaded and their services may not be coerced for the benefit of fetuses.

• The injury inflicted on women by forced motherhood is lesser in degree than that inflicted on blacks by antebellum slavery, since it is temporary and involves less than total control over the body, but it is the same kind of injury. When abortion is outlawed, the pregnant woman must serve the fetus, and that servitude is involuntary.

• Bailey’s definition of involuntary servitude encompasses the burden imposed on women by laws against abortion, since the “natural operation” of a statute prohibiting abortion is to make it a crime for a woman to refuse to render service to a fetus.

• Even had the decision been differently worded, any decision in Bailey’s favor would a fortiori protect the woman who seeks to abort, since the servitude to which Bailey was subjected was considerably less (less taxing, less intrusive, and less total in its probable impact on the course of his whole life) than that which forced pregnancy imposes on her.

• Equality. Abortion prohibitions 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.

• The class imposed upon by abortion prohibitions consists entirely of women. If indeed “there can be no doubt that our Nation has had a long and unfortunate history of sex discrimination,” this discrimination has consisted primarily of the systematic use of motherhood to define and limit women’s social, economic, and political capacities. Anti-abortion laws continue and ratify that practice. The issue here is analogous to that of “badges of slavery.”

• Because the subordination of women, like that of blacks, has traditionally been reinforced by a complex pattern of symbols and practices, the amendment’s prohibition extends to those symbols and practices.

• Dual nature of 13^th Amendment. The 13^th Amendment is both libertarian and egalitarian, because the paradigmatic violation (e.g. slavery) deprives its victims of both liberty and equality. Neither Jones nor Bailey entailed paradigmatic violations of the 13^th Amendment; however, compulsory pregnancy does entail paradigmatic violation of 13^th Amendment.

• State’s interest in protecting the fetus:

• Under 14^th Amendment, laws that “impinge on personal rights protected by USC” will be sustained “only if they are suitably tailored to serve a compelling state interest.” (City of Cleburne v. Cleburne Living Center). Once it is shown that a law impinges on such a right, the burden is on the state to show that the right is overcome by a compelling state interest.

• Because the 13^th Amendment is worded much more strongly, the state’s burden is even heavier than this.

1. It is arguable that due process and equal protection are preserved even when a fundamental right is impinged upon or a disadvantaged group is discriminated against, so long as a compelling state interest is shown.

2. But involuntary servitude is involuntary servitude no matter how compelling the state’s interest is, and the amendment declares that involuntary servitude must note exist. Slavery could not be justified simply by showing that a “compelling state interest” is served.

• It is hard to say just what level of emergency would be necessary to overcome the amendment’s absolute prohibition, but at the very least, it would have to be clear that human lives are at stake. But a fortiori a law forbidding abortion cannot be sustained if the state is unable to carry the burden of persuading the court that a fetus is, or should be considered to be, a person. While its opinion has many weaknesses, Roe court was surely correct to conclude that this burden had not been met: “When those trained in medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”