Lash on Roe and the Thirteenth Amendment

"This essay explores the history behind the adoption of the Thirteenth Amendment and conclude the pro-Roe reading of the Thirteenth Amendment is incorrect."

Professor Kurt Lash wrote a timely essay that analyzes Roe and the Thirteenth Amendment. Here is the abstract:

The current debates over Roe v. Wade as a substantive due process right have prompted a number of scholars to investigate alternative sources for a constitutional right to abortion. One approach argues that the Thirteenth Amendment's prohibition on "slavery" and "involuntary servitude" prohibits the government from denying women the right to terminate a pregnancy. Scholars making this argument concede that the right to abortion was not the expected application of the Thirteenth Amendment, but insist that a forced continued pregnancy falls within the original meaning of the Amendment's terms.

This essay explores the history behind the adoption of the Thirteenth Amendment and conclude the pro-Roe reading of the Thirteenth Amendment is incorrect. The original meaning of the Thirteenth Amendment is defined by the text upon which it was based and defended: The 1787 Northwest Ordinance. The framers of the Amendment intentionally used this text precisely because it was well known and had a narrow historical meaning. As used in the Ordinance, the terms "slavery and involuntary servitude" referred to a specific and legally codified "private economical relation" between a "master" and a "servant." Under slavery--the most severe form of "involuntary servitude"--both the women and the unborn child were considered property equally subject to dismemberment or destruction. The Thirteenth Amendment applied the prohibitions of the Ordinance throughout the United States and forever abolished the idea that one could hold "property in man." However, nothing in the Amendment (or the Ordinance) affects laws restricting the termination of a pregnancy—laws that were common throughout antebellum America.

This issue was not addressed during oral argument, and was only given superficial treatment in the briefing. I don't expect the Thirteenth Amendment to play much of a role in the final published opinion.