Unwanted Pregnancy Is Not 'Involuntary Servitude'
The Thirteenth Amendment argument for abortion distorts the history of involuntary servitude.
Last Monday, a federal judge requested briefing on whether the Thirteenth Amendment protects a right to abortion. This raised a few eyebrows. The Thirteenth Amendment, ratified in 1865, says nothing about abortion:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.
Professor Andrew Koppelman and a handful of stalwarts have led a long, quixotic quest to prove that the Constitution protects abortion rights through this amendment, not (as Roe v. Wade supposed) through the capacious generalities of the Ninth and Fourteenth. For three decades, Koppelman toiled in deafening silence. Neither conservatives nor progressives took his argument seriously.
Then, last June, Roe fell, along with its (silly) rationale. Progressives, desperate to constitutionalize their abortion policy, needed a new argument. This once-obscure scholarship now found splashy headlines at Washington Monthly, Ms., the New York Times, and the Nation. It is only beginning to appear in courtrooms, so we need to understand it.
The "Thirteenth Amendment argument" for abortion rights has two prongs.
First, the Supreme Court has defined involuntary servitude as "that control by which the service of one man is disposed of or coerced for another's benefit." In other words, Alice can choose to serve as Bob's employee, but the law cannot coerce her to serve Bob.
But being pregnant is really hard work. So if the law prevents Alice from getting an abortion, the law is, in effect, compelling Alice to serve the fetus involuntarily. Therefore, fetal-rights laws create involuntary servitude and are unconstitutional.
Notably, this argument bases a right to abortion on an intuitive reading of the actual words of the Constitution, not some haruspex's "penumbra." This alone makes it stronger than any argument offered in Roe v. Wade or its sequelae.
On the other hand, the Thirteenth Amendment argument has at least one feature that its supporters have largely failed to recognize. The argument claims that unwanted pregnancy is involuntary servitude because one person is coerced to serve another person. But who is that "another person"? Who is the mother being "forced" to serve? The argument seems to admit that, in the eyes of the Constitution, unborn children are people.
Since the Fourteenth Amendment guarantees all persons, not just those born in the United States, a right to life, this admission fatally undermines most arguments for abortion. Even if one grants a "right to privacy," the deliberate killing of a living person without due process is not a matter of "privacy." Even the Roe Court admitted that, if fetuses are people, the pro-abortion argument "collapses." Yet the Thirteenth Amendment argument presumes fetal personhood!
Nevertheless, the Thirteenth Amendment argument could succeed. The amendment outlaws involuntary servitude unconditionally. If the argument's supporters are correct about the meaning of "involuntary servitude," then it seems possible that not even the life of a child could outweigh his mother's right to be free of an unchosen obligation to him.
But how can these supporters possibly be correct about the meaning of "involuntary servitude"? Their definition is absurdly broad. Perhaps a person's "service" is indeed "coerced for another's benefit" in pregnancy, but the law often coerces services for the benefit of others. Citizens can be conscripted into the military, coerced to serve on a jury, and even forced to build roads. A caregiver is required by law to provide care. Good Samaritan laws press passers-by into service of accident victims. A landlord may be obligated to perform labor for his tenants.The list goes on.
Even children are sometimes coerced to perform services for the benefit of others. You might call it "doing chores," but supporters of the Thirteenth Amendment argument, with their broad definition of "involuntary servitude," must call it "unconstitutional."
Parents, too, are bound by law to perform compulsory service on behalf of their children. If you do not take care of your children, you will go to prison. This duty is binding even if we hate it, even if we're poor, even if we're forced to sacrifice every comfort we have to fulfill it. Parents do not have a constitutional right to terminate or transfer this duty. It binds us even when it puts our mental and physical health at risk. If the Thirteenth Amendment argument for abortion is correct, child neglect laws must also violate the Thirteenth Amendment—and parents not only have a right to abort their children, but to expose their infants.
Happily the Thirteenth Amendment argument misunderstands what its drafters meant by "involuntary servitude."
In the British colonies, individuals could "enter service" to others for a span of time—"indentured servants" who "entered service" to earn passage across the Atlantic. The arrangement was also used for apprentices and domestic servants (like butlers).
Once in service, the servant could not quit until the indenture expired. If a person "bound to service" refused a legal order (or, worse, ran away), a typical punishment was an extra year of indenture. Meanwhile, indentured servants were slave labor. Choosing to enter this arrangement was considered voluntary servitude.
Not everyone chose it. Involuntary servitude was when the state sold an individual into indentured service. The "servant" then had to work the indenture, without pay, or face criminal penalties. This fate could befall vagrants, orphans, debtors, criminals, and (unfortunately) mixed-race children. Involuntary servitude and slavery are legal siblings; Blackstone called both slavery and servitude a "private economical relation" wherein a servant was compelled to do labor for a private, unrelated master. The two institutions seem to have common roots. "Servitude for life" was sometimes interchangeable with "slavery."
The key differences between servitude and slavery were that servitude had an end date and that servants retained civil personhood and could own property, testify in court, and so forth. Slaves had no legal rights and were treated as livestock.
In an invaluable 2022 paper, Professor Kurt Lash traces the phrase "slavery and involuntary servitude" from the 1787 Northwest Ordinance to the 1865 Thirteenth Amendment. He shows that, when the Amendment used that phrase, the institutions it abolished were those described above. Since the draft, jury duty, child-neglect laws, household chores, and fetal-protection laws do not involve or even resemble indenture by servants to unrelated private masters, they are not “involuntary servitude.”
The reality is that human beings are not characters in an Ayn Rand novel. We all have unchosen obligations, and we always will. We must come to the aid of our nation, our neighbor, and our children (born or unborn)— sometimes at great cost. The State has always enforced many of these unchosen obligations. I hope it always will, because the Rothbardian alternative would be a hellscape.
There remains a second prong to the Thirteenth Amendment argument.
Slaves were used as breeding stock. Enslaved women (and men) were raped by their masters and peers, forced into and out of marriages, and coerced to bear children, who were often then sold away. Forced pregnancies could start at menarche, between ages ten and twelve. It was well-documented and dreadfully systemic. Thus, a constitutive element of slavery was "reproductive bondage." Since abortion restrictions strip women of those reproductive rights, they violate the Thirteenth Amendment.
This is an uphill argument, because there is good reason to believe that the Thirteenth Amendment only banned slavery itself, not all of its so-called "badges and incidents." Full equality, restoring slaves to citizenship and freeing them from all legal disabilities, seems to have come only with the Fourteenth Amendment—where abortion supporters have already tried and failed to locate an abortion right.
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Let us grant the point. I certainly agree that the "reproductive bondage" of slaves was both horrific and unconstitutional, regardless of which amendment gets us there. They were denied basic reproductive rights that all white citizens took for granted. Namely: Slaves were denied the right to marry, and they were denied the right to refuse sexual relations outside marriage. The sexual cruelty of slavery flowed from denying these two fundamental rights.
The Thirteenth Amendment argument would have us add a third right denied to slaves: a right to abortion. While it is true that slaves lacked a right to abortion, it wasn't because they were slaves. Nobody had that right. At common law, abortion was never considered a "lawful purpose." Often, it was homicide. At the Thirteenth Amendment's ratification, twenty-five of thirty-six states had criminalized abortion at every stage of pregnancy. Denial of abortions was not a disability of slavery, but simply an ordinary law that applied equally to whites in order to protect innocent unborn human life.
Calling forced marriage and rape a loss of reproductive rights is accurate. But, in our era, the phrase "reproductive rights" is commonly used, inaccurately, as a euphemism for abortion rights. Thirteenth Amendment argument supporters know that you, the modern reader, will naturally read "reproductive rights" to include abortion, even though the historical rights in question did not. The second prong hinges on this sleight of hand, but it's simply equivocation.The Thirteenth Amendment argument for abortion rights is better than Roe, but is built on a misunderstanding of the phrase "involuntary servitude" and equivocation about "reproductive rights." Once this confusion is resolved, it is clear that the Thirteenth Amendment does not provide a right to abortion.