A federal judge recently ordered a briefing on whether the 13th Amendment grounds a Constitutional right to abortion.  Legal academics such as Michele Goodwin, Peggy Cooper Davis, and Andrew Koppelman have made serious originalist arguments for a right to abortion on 13th Amendment grounds.  I am no originalist.  But I believe that a deeper historical understanding of the law and its evolution is a valuable resource for interpreting it.  Here I want to add to Goodwin, Davis, and Koppelman by linking their arguments, tied to the experience of slaves forced to reproduce before emancipation, to the civil status of free married women in the 19th century.

In Dobbs v. Jackson Women’s Health Organization, Justice Alito rejects the 14th Amendment Due Process case for a right to abortion on the ground that unenumerated substantive Due Process rights must be “deeply rooted in the nation’s history” and “implicit in the concept of ordered liberty.” He refutes the claim of deep rooting by arguing that abortion was widely prohibited under the common law in England and the U.S. before the 14th Amendment, and that such bans were extended soon after the 14th Amendment was ratified.  In other words, since people didn’t think there was a constitutional right to abortion around the time of ratification, the 14th Amendment doesn’t include such a right.  On his originalist methodology, the same evidence could equally well be used to refute a 13th Amendment grounding for abortion rights.

I will argue that Alito is wrong, because both before and after the Reconstruction Amendments were passed, married women were civil slaves under the law, and that the 13th Amendment bans civil slavery as well as chattel slavery.  Although it took some time for the feminist movement to persuade people that the civil slavery of married women was wrong, any laws passed on the presumption of their civil slavery, such as the laws against abortion, are invalid under the 13th Amendment (and therefore cannot count as evidence against the 14th Amendment case for abortion rights either). [click to continue…]