In response to my post yesterday on the anniversary of Roe v. Wade, one of my Many Tens of Loyal Readers™ emailed me his thoughts about the constitutional basis for abortion rights. He had written a very good column on the subject (which I hope he will link to here in comments, as I would not want to link to anything that would reveal his identity without his prior consent), in which he makes a very good case for a First Amendment basis, i.e., religious freedom. He argues convincingly that notions like ensoulment and “when life begins” are not scientific facts but rather religious ideas, upon which people can and do differ. Any legislation that restricts rights on a religious basis in essence criminalizes every other religious (or philosophical/ethical) view.
In my response to him I agreed that tactically, implicating the First Amendment and religious freedom in the abortion debate is an excellent idea, not least because doing so would underscore that religion is both an individual’s unsupported opinion on a subject open to wildly differing interpretations and a gushing geyser of misogyny. In thinking about it further now, I will note that the Forced Birth Brigades are already onto the religious freedom problem, as states and the federal government are effectively restricting abortion on other pretexts without any (obvious) connection to religion. For example: the ability of a fetus to feel pain; TRAP laws purporting to regulate abortion clinics for the safety of women but actually shutting clinics down; biased counseling requirements and mandatory delays (do men have mandatory delays for any common medical procedures? No I don’t fucking think so…); parental consent laws pretending to protect minors by blocking their access to a medical procedure that is 14 times safer than childbirth; and of course draconian prohibitions on public funding that lead to terrible outcomes for poor women. But the problem is not whether a constitutional right to abortion on demand could or should be based on religious freedom, privacy, or as is the case of Roe, on a physician’s right to practice medicine freely. The problem is that without an Equal Rights Amendment, women can be (and routinely are) legally denied rights that those Real Humans™ enjoy in the United States.
In any event, writing my response gave me the opportunity to flesh out my argument for a 13th Amendment basis for abortion rights more thoroughly and clearly (I think). Here it is.
My purpose in framing this issue as falling under the 13th Amendment’s ban on slavery and involuntary servitude is twofold. First, I want people’s thinking to shift on exactly what forced pregnancy and childbirth is. Under this view, privacy rights, viability, when “personhood” or life* begins, cute little baybeez, the state’s alleged interest in a fetus, and a whole host of other bases for supporting (or denying) abortion rights become irrelevant, and the focus moves instead to the actions of the state in keeping people pregnant who do not wish to be and forcing them to give birth to a child. Unless and until we either reinstate the draft, or we all decide it’s perfectly moral and constitutional to extract blood, a kidney or bone marrow from (a) anyone (b) without their consent, (c) for a period of nine months, (d) in order to keep some other person alive, I will maintain that only people with unwanted pregnancies can be legally enslaved in the United States. I am making a direct appeal to people’s moral intuitions about fairness, harm, justice, pain and bodily autonomy.
Second, I want people’s thinking to shift about what a woman is. If her value to society is determined only in relation to the desires of heterosexual men, i.e. for sexual gratification, childbearing and/or unpaid domestic labor, she will continue to be viewed and treated as if she were a completely different species, inferior to Real Humans™ and therefore not inherently deserving of equal rights, dignity or liberty. If on the other hand she is viewed as a human being whose value to society is inherently equal to that of men, whose own desires and choices are equally deserving of consideration and respect, and whose freedom is not up for debate, then perhaps we can have some realistic hope of seeing a more egalitarian and just culture across the board. The slavery view reframes the issue of women’s reproductive rights to one of human rights (including religious freedom), and thus it has implications not just for pregnant people but also for rape culture, war culture, religion, poverty, politics, transgender people, gay/bi/poly/asexual people, elderly and disabled women, and other people with marginalized identities, including many men.
*Life began at least 3.5 billion years ago. ;)