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.

Comments

[Bob from Ohio]

Another "Billion Dollar Platinum Coin" argument.

[Sarcastr0]

It's an argument from text. I'm a functionalist, and so I don't buy it.

But the right suddenly finding contempt for off-the-wall textualist theories once more reveals the fundamental emptiness of the right-wing judicial project, for all their sound and fury.

[Bob from Ohio]

"off-the-wall textualist theories"

Its not "off-the-wall", its in another galaxy.

Show me references in English or American law comparing pregnancy as slavery pre-Roe.

You can find stupid recent articles as abortionists stated seeing the writing on the wall, so to speak, of reversal but its ludicrous to think it has any relevance to the 13th amendment.

[Alpheus W Drinkwater]

It's exactly as much grounded in constitutional text as non-delegation doctrine or major questions doctrine. Or originalism.

[devilsadvocateri]

I'm sympathetic to arguments that the constitution doesn't protect abortion rights (although I'm somewhat sympathetic to the idea that is does just as I am not a fan of the light switch jurisprudence of the 'switchin time'). But I can't agree that this 13th amendement argument is from another galaxy, or even highly textual. It is contextual and context changes. That doesn't reveal a living constitution but a living culture.

While the analogy can be construed as stretched, it can be equally construed as literally true, which makes this a false indictment of textualism. There is not disagreement that the text outlaws slavery. There is disagreement whether imposing carrying to term is slavery. I wouldn't disagree that the drafters and general public did not understand the amendment to protect women's reproductive choices, but if they understood it to ban slavery and the culture over time and beyond regional scope embraces the notion that an involuntary compulsion to carry to term is slavery I don't think the failure to capture this instance in the original is a bar to this theory at present.

I'm not suggesting the outcome of an inquery into whether such a threshold is reached but that I think we have surely reached a point where it is not off the wall at all. Society has moved past Roe to recognize inherent rights in the fetus beyond the earliest stages of pregnancy–in part, I admit, with references to history including criminal charges related to killing a fetus that are akin to recognizing its personhood. There are indeed less historic popular, academic and legal references to pregnancy as slavery but I don't think that alone is a bar to considering the argument. See, e.g. Steven Calabresi's originalist case that Same Sex marriage is constitutionally protected by the 14th amendment although there is little support in precedent and history up until the time of the amendment's adoption that anyone would have been suspected at that time that gay marriage, perhaps even gay rights more generally might be a matter of equal treatment.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2509443

[bernard11]

Yes.

I recall some here using the 13th as an argument against anti-discrimination laws.

"I gotta sell this guy a hamburger?? It's slavery, I tell you."

[Noscitur a sociis]

It's an argument from text.

Did you read the article (Originalism, Abortion, and the Thirteenth Amendment, 112 Colum. L. Rev. 1917 (2012))? Because whatever else there is to be said about the dubious merits of the argument, I don't see how it could possibly be characterized as being "from text".

[Sarcastr0]

I did not. But I could have told you that. As I said, I don't buy it.

But as Alpheus W Drinkwater, the bar has been set quite low by a lot of conservatives.

[kkoshkin]

This is really all that needs to be said. That the 13th Amendment codified a right to abortion is laughable on its face.

[ReaderY]

One could make a 13th Amendment argument the other way. One could argue that by using the term “party,” the 13th Amendment was intended to include a broader set of human beings than the 14th Amendment, which used the more limited term “person.” One could argue that since one of its key goals was to overturn Dred Scott, language in Dred Scott saying that the Declaration of Independence’s language referring to “all men are created equal” did not intend to encompass the “whole human family” was explicitly overruled. And of course if the Framers of the Declaration had meant born equal rather than the broader term “created” equal, they would have said so.

One area this might be relevant to would be clinical trials of e.g. abortifacients. While the 13th Amendment doesn’t prohibit directly killing human beings, it could be argued, it does prohibit conducting medical experiments on them not intended for their benefit.

The 13th Amendment was not intended to outlaw war. It doesn’t prohibit direct killing of a human being to whom the government otherwise owes no constitutional duty. But being a subject of a medical experiment that has no regard for the protection of the subjects is a much more direct analogy to slavery than direct killing. I think that if we performed destructive medical experiments on prisoners of war, they could make out a 13th Amendment case despite not being constitutional persons under the general Bill of Rights.

The same case could be argued regarding abortifacient experiments. It’s not just dying, it’s being made to do the work of being the subject of a scientific experiment while dying, that would trigger the 13th Amendment under this argument.

[Noscitur a sociis]

One could argue that by using the term “party,” the 13th Amendment was intended to include a broader set of human beings than the 14th Amendment, which used the more limited term “person.”

One can always make stupid arguments, but if one is going to say that the Thirteenth Amendment is designed to ensure that foetuses who are convicted of crimes can be sentenced to hard labor, one should not expect that one is going to be taken very seriously.

[ReaderY]

Are people against whom there is no evidence also not covered by the 13th Amendment? They aren’t susceptible to being sentenced to hard labor either. What about saints, people regarded as by their nature incapable of criminal motives? The 13th Amendment doesn’t apply to them?

[ReaderY]

I have a much better argument. Is it your position that children below the age at which they are regarded as capabale of committing a crime are susceptible to being enslaved - the 13th Amendment doesn’t apply to them -because they aren’t susceptible to being convicted of a crime so the entirety of the clause can’t possibly apply to them?

The flaw in Nosciter a sociis’ argument is that not only are fetuses incapable of committing crimes, humans considerably older than fetuses have long been regarded as incapable of commiting crimes. The age at which children are first considered capable of committing crimes varies. But not only is it well after birth, it’s when they are old enough that it would be posibe for a slave master to get some work out of them if the 13th amendment doesn’t apply.

And under the argument it’s very clear that it doesn’t. The 13th Amendment couldn’t possibly have been designed that 3 or 4 or 5 year olds who are convicted of crimes can be sentenced to hard labor. So if this feature results in a 13-amendment-applies argument being “stupid,” then it also has to be “stupid” to regard the 13th Amendment as applying to young children.

If it’s not so stupid to think that the 13th amendment applies to young children from birth up to the point they are first capable of committing crimes, then it can’t be so stupid to think that it applies a bit younger either.

[Noscitur a sociis]

Your "argument" (I'm being generous here) is that the 13th amendment uses the word "party" instead of the word "person" so as to include the unborn. But the only use of the word "party" in the amendment itself is to describe people who have been convicted of a crime, i.e. a group that cannot possibly include the unborn.

[ReaderY]

What about extraterritorial alien young children? Neither persons with general constitutional rights under the Bill of Rights, nor capabale of being convicted of a crime.

[ReaderY]

Also, the 13th Amendment doesn’t use the term “person” at all. The 5th Anendment doesn’t either, it uses the term “the accused” when talking about the rights of criminal defendants. Your argument that the use of the term “party” in the context of criminal accusation somehow implies everyone else covered has to be a person doesn’t have any basis. The 13th Amendment prohibits the institution of slavery as such. And at the time it was adopted, black people certainly weren’t regarded as persons “in the full sense of the word.” That question was only decided with the 14th Amendment. The 13th Amendment didn’t give them person-like rights. It merely prohibited slavery.

[QuantumBoxCat]

What was the public meaning of the 13th Amendment among women and African Americans when they chose whether to adopt or reject it?

[Brett Bellmore]

I think the 13th amendment argument is more of a rhetorical gotcha than anything. "Those pro-slavery abortion opponents!"

The 14th amendment arguments made by pro-lifers aren't much better, because that amendment does say "born", after all.

[M L]

Without embracing these pro-life 14th amendment arguments, whatever they are, I'd note that only the citizenship clauses specifies that it applies to persons who are born. The other clauses do not.

[Sarcastr0]

Oh, Brett. You clearly know no academics. No, it's not rhetoric just because it's silly.

[Brett Bellmore]

I suppose you've got a point there.

[Sarcastr0]

Now that some of my law school friends have become not yet tenured legal academics I can really see the demand balance between 'new' and 'plausible' is way out of whack, at least for entry level folks.

[Bored Lawyer]

Problem is there is no downside to writing silliness. Sometimes it seems the wackier, the better.

[Brett Bellmore]

It's like buying a lottery ticket, only one that pays off in policy. Sure, the odds are terrible, but you can't win if you don't play, and the odds of winning are never quite 0%.

[StellaLink_the dog]

"the odds of winning are never quite 0%"

Sure. Look at Heller and McDonald.

[Sarcastr0]

Full-on appetite. Realism is a secondary consideration.
To be fair, that's why they call it 'academic.'

And I suppose on the second pass, only the plausible ones get responses.

But man does the current incentive structure sure waste a lot of time and paper!

[bernard11]

Well, I guess you have to do something to avoid being assigned to actually teach law classes.

[Sarcastr0]

That's the thing - most law profs signed up to teach classes, and then have to write 1 or 2 papers a year to not lose that ability.

There's a reason why deans and administration folks are paid so well - no one in the cohort they hire from wants those jobs.

[Brett Bellmore]

I don't know; I always figured it was just like industry: Management gets paid well because management decides how much people get paid.

[Sarcastr0]

Lots of times pay is set by the greater university, not law school administrators.

[Nisiiko]

If the 13th Amendment proscribes laws prohibiting abortion, then so should laws requiring child support, all public accommodation laws, and the like.

[Seamus]

You'd have a better chance arguing that the military draft violates the 13th amendment--a position that's been brought before the courts, and shot down decisively. (It would be ironic if the 13th amendment, which almost certainly wouldn't have happened but for conscription of the Union soldiers who won the war, were found to make such conscription unconstitutional.)

[DWB]

The military draft is the WORSE type of slavery and yes, requiring someone to serve them against their will IS slavery.

[Brett Bellmore]

You've actually got a much stronger case with the public accommodation laws, particularly in regards to sole proprietorships.

[bernard11]

Guess I should have scrolled down.

[AmosArch]

if the 13th amendment protects abortion why not child abandonment? Heck why not define any responsibility for anything you don't want as slavery?

[bernard11]

Ask Brett.

[not guilty]

The argument that the Thirteenth Amendment proscribes regulation of abortion is a non-starter. OTOH, one of the incidents of slavery was female slaves´ lack of control of their fertility, including being required to service slave owners sexually.

[RhymesWithRight]

Yeah, how could a ban on involuntary servitude possibly apply to a situation where someone is required by law to literally submit their body to the service of another against their will?

[DWB]

If anything the 13th Amendment would outlaw abortion. Democrats: you cannot own black folks anymore!

And no, you can't even own your children!

Sick, evil people!

[Armchair Lawyer]

Since Freedom is actually Slavery, the 13th Amendment really is the legal basis for eliminating the supposed "Freedom" of people to choose how to live.

[Seamus]

As Justice Scalia, a consistent originalist, pointed out, they *weren't* thinking about protecting zygotes as legal persons, so the 14th amendment can't be cited as mandating the pro-life position.

[Bored Lawyer]

"but who knows what was in their minds then? "

Let's take a stab at it. They were thinking of abolishing slavery in the United States.

See, that was easy.

[Sebastian Cremmington]

I’m usually thinking about boobies and swimming pools.

[Bob from Ohio]

"They were thinking of abolishing slavery in the United States. "

Some kind of war had just ended. Unimportant I'm sure to their considerations.

[Bored Lawyer]

Right. Scalia's view, which I believe is the mainstream originalist view, is that the Constitution says nothing about aboriton, and the states are free to restrict it or allow it.

[Bored Lawyer]

Except one is the law of the land (for now), the other is only the musings of people with too much time on their hands. So they are not equal in that respect.

[ReaderY]

Well, as Roe itself noted, fetuses could be a party to a lawsuit at common law and in most lawsuits. So can extraterritorial aliens, my other standard conparator. But more fundamentally, so, at least sometimes, could slaves. Slaves who claimed to be free could lose their cases, but generally on the merits.

[Brett Bellmore]

The 13th amendment isn't about not being paid, Queenie; Indentured servants often got paid. It's about not being given a choice about doing the work.

[Bored Lawyer]

I misread you. I meant, the 14th Amendment protects the right to an abortion is the law of the land. And that one is silly like the rest.

[Brett Bellmore]

That falls under the universal "The government thinks stuff is OK when it does it itself." rule the courts apply to most topics.

[DWB]

Women have been say "no" (or yes!) for as long as there have been women.

We all know where power resides...

[Brett Bellmore]

No, I've got an idea that any compelled labor is involuntary servitude.

[Leo Marvin]

You must be very young and/or uneducated, as apparently you've never heard of marital rape.

[ReaderY]

You didn’t read my argument. The 13th Amendment didn’t outlaw war, so it doesn’t prohibit direct killing. So one would have to look carefully for a case where it could apply. My suggested example would be medical experiments not for the subject’s benefit - for example, clinical trials of abortifacients. Recall the Tuskegee syphilis trial. Being subjected to having experiments performed on one without regard for ones welfare or benefit could be seen as an example of slavery in a way that direct killing couldn’t be.

[DWB]

And how often did/does that happen, really????

[Leo Marvin]

Seriously? What's wrong with you?