No, pregnancy is not slavery

In the wake of the Civil War, The U. S. Constitution was amended, fixing the greatest flaw in the text’s original form. The Thirteenth Amendment banned slavery. More specifically, that historic amendment banned “slavery or involuntary servitude” except as a punishment for crimes. Now, a federal judge thinks that may mean that the government cannot force a woman to carry a pregnancy to term, or to put it differently, that it grants her a constitutional right to abortion. I kid you not.

Judge Colleen Kollar-Kotelly sits on the U.S. District Court of the District of Columbia, which is one of the most prominent and influential trial court benches in the federal system (along with the Southern District of New York, which covers Manhattan). She is currently considering a case about whether a pro-life sidewalk counselor violated the federal Free Access to Clinic Entrances (FACE) Act.

In short, the FACE Act guarantees free passage to the public to enter abortion clinics. The act has nothing to do with the constitutionality of abortion, which is legal in the District of Columbia. Nevertheless, in a fit of personal curiosity, this week Judge Kollar-Kotelly ordered the parties to brief whether the Dobbs decision forecloses an independent right to abortion under other constitutional provisions. She notes “the Thirteenth Amendment has received substantial attention among scholars” as the potential source of an abortion right.

Now, it is a well-accepted principle that a law that is constitutional when analyzed under one lens may be unconstitutional when analyzed under a different constitutional provision or principle. In other words, the government may win a case establishing that a law is a valid regulation of interstate commerce, but later lose a different case because that same law violates the First Amendment’s protection of free speech. So it’s theoretically possible that though the Supreme Court in Dobbs determined that the a textual “right to privacy” recognized in Roe does not create a federal right to abortion, the Thirteenth Amendment does. But such a conclusion would fly in the face of both common sense and everything we know about abortion law during the post-Civil War Reconstruction era.

First is the common-sense part. Laws should be interpreted and enforced today as they would have been understood by the general public at the time they were adopted. Legal academics call this the “original public meaning” of the law. Abortions certainly took place in the 1860s. But it is implausible that any member of Congress or the state legislatures who voted to adopt and ratify the Thirteenth Amendment thought that they were creating a federal right to abortion. And it’s equally implausible to think that any member of the general public thought “involuntary servitude” meant “pregnancy without the possibility of abortion.” The nation had just fought a bloody civil war a few short years earlier over the forcible, legalized enslavement of Africans imported here without rights or even recognition of their humanity. They understood the words to cover slavery, not abortion, when the Thirteenth Amendment was passed.

Second, the Thirteenth and Fourteenth Amendments travel together (as does the Fifteenth, guaranteeing former slaves the right to vote, for that matter). They were adopted close in time by the same post-Civil War Reconstruction Congress. The Supreme Court just determined in Dobbs that the Fourteenth Amendment does not create a federal right to abortion. It would be illogical to think that its sister amendment did the opposite.

Third, an amicus brief by Professors Robert George of Princeton and John Finnis of Notre Dame filed in Dobbs collects a tremendous historical record on abortion law during the Reconstruction Era. Their conclusion is that states across the country recognized and protected the right to life of unborn persons by outlawing abortion. It would be a pretty great leap to think that the Reconstruction Congress singlehandedly overruled all those state laws, and that the state legislatures that ratified the Thirteenth Amendment retained all those state laws that were suddenly contrary to the amendment they’d just approved. The argument just doesn’t hold up.

The interesting twist here is the dilemma the judge’s order creates for the Biden Administration. Since the U.S. Department of Justice is prosecuting the case, it will have to respond and take a position on behalf of the government. We will all see whether the Biden DOJ puts politics ahead of law and common sense to placate its pro-abortion base. Are they really going to argue that pregnancy is forced servitude?