On the 40th Anniversary of Roe v. Wade we can expect to hear the perennial criticism that the Court’s decision is insufficiently grounded in the text of the Constitution. Even among commentators who agree a woman has a fundamental right not to remain pregnant against her will, many are critical of its grounding in the right to privacy, locating it instead in explicit Constitutional guarantees like the right to equal protection before the law. The most vehement critics of Roe, however, are so-called originalists who not only deny there is any right to privacy, but are certain abortion cannot be protected by any constitutional provision based on the “original meaning” of the text.
Justice Antonin Scalia, who famously rejects interpretive methods that entail identifying the values the Constitution protects, purports to instead decide cases based on the meaning of Constitutional text when written. According to Justice Scalia, abortion is an “easy” case. There is no mention of abortion in the Constitution so it can’t be protected. However, in a recent essay, Andrew Koppelman challenges this assertion on originalist grounds: forced reproduction was intrinsic to slavery, which the framers of the Thirteenth Amendment sought to prohibit.
As Dorothy Roberts writes in Killing the Black Body: Race, Reproduction and the Meaning of Liberty, “[t]he essence of Black women’s experience during slavery was the brutal denial of autonomy over reproduction.” Female slaves’ ability to produce more slaves was central to the economic interests of slaveowners and, once the importation of slaves was banned, to the perpetuation of the institution of slavery. A woman’s reproductive capacity figured into her price on the market and was as valuable as labor in the fields. As Thomas Jefferson wrote, “I consider a woman who brings a child every two years as more profitable than the best man on the farm.”
Slaveowners beat women who did not reproduce or sold them, separating them from their families. Some engaged in slave-breeding, forcing slaves considered “prime stock” to mate in order to produce particularly valuable new slaves for labor or sale. Evidence exists that slaves resisted slaveowners’ demands that they reproduce by using herbal and other makeshift contraceptive and abortive methods. Slaveowners were free to rape slaves with impunity and the children who resulted increased their wealth. A slave women’s child was not her own, but the property of her master. Even prior to conception, a slaveowner held a property interest in a woman’s future children that could be bequeathed by will.
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Slavery separated black women from their future children at the moment of conception, treating the interests of the fetus as separate and conflicting with that of the mother. Though this conception of the fetus as having distinct interests to be protected from the mother is a familiar part of our discourse and legal framework today, this division did not exist for white women at the time. Professor Roberts describes one method of whipping pregnant women that illustrates this early conception of the maternal-fetal conflict. The mother would be forced to lay with her stomach in a hole dug in the ground so the mother could be beaten while the fetus was protected. “It is the most striking metaphor I know for the evils of policies that seek to protect the fetus while disregarding the humanity of the mother,” she writes.
Professor Koppelman has previously argued, on the basis of Supreme Court precedent interpreting the Thirteenth Amendment’s prohibition of slavery and involuntary servitude to protect individual liberty and equality, that the government may not prohibit abortion. To do so would be to require physical service from a woman for the benefit of a fetus. The originalist argument relies less on analysis of the case law than a more comprehensive understanding of what antebellum slavery entailed. Though most originalists would likely argue that neither the framers of the Amendment nor a reasonable person alive at the time of its passage would have thought of unwanted pregnancy as a form of involuntary servitude, this is not the question. Forced childbearing is not analogous to slavery, it was an element of it. This is not to equate forcing a woman to carry a pregnancy to term against her will with permanently enslaving her. It is only to say it is a historical fact that this was a fundamental part of dual oppression female slaves endured by virtue of being black and female.
As Professor Roberts explains, “[w]e often envision the hallmark of slavery’s inhumanity as the slave picking cotton under the overseer’s lash.” However, “[a]s much as slaves’ forced labor, whites’ control of slave women’s wombs perpetrated many of slavery’s greatest atrocities.” The Thirteenth Amendment prohibits treating human beings as they were treated under antebellum slavery. The denial of reproductive autonomy is a brutal and under-recognized aspect of that treatment.