That’s right, the Civil War amendment that abolished slavery. As ridiculous as this seems, it’s still worth taking it seriously because it is being considered by a seriously misguided federal judge. And it also unintentionally reveals some very interesting things about their real positions.
Slavery and Involuntary Servitude
The Thirteenth Amendment to the United States Constitution was passed by the House in April 1864 and by the Senate in January 1865 – while the Civil War was still raging. It was ratified by the necessary two-thirds of the states by December 1865, at which point it became the supreme law of the land. Slavery had already been abolished in the northern states even before this, either by constitution or statute.
The terms of the amendment is worth noting because of its specificity:
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, or any place subject to their jurisdiction.
This language was copied, virtually verbatim, from the Northwest Ordinance of 1787. This was originally passed by the Continental Congress before the adoption of the Constitution and is one of the founding documents of our country. It organized government and law in the territories that would eventually become the states of Ohio, Indiana, Michigan, Illinois, Wisconsin, and part of Minnesota. It was reaffirmed in 1789 by the very first Congress elected under the Constitution and signed into law by George Washington.
There is no reasonable doubt about the original meaning of either the Northwest Ordinance or the Thirteenth Amendment. Everyone in 1787, 1789, and 1865 knew that it abolished chattel slavery, under which one person was compelled to the service of her master for life. It also eliminated arrangements like indentured service or peonage, under which a person was legally bound to serve a master for a period of time or until debts are paid off.
Everyone also knew that the amendment had no effect on other kinds of legal obligations of one person to another or to the government. It clearly did not absolve parents of their duty to care for their children, the military draft, jury duty, paying our taxes, mandatory education, or even the duty of children to obey their parents and eat their vegetables.
Any other interpretation of the amendment is purely magical thinking.
Slavery and Abortion?
For years, in anticipation of the overturning of Roe v. Wade, some legal thinkers have been trying to come up with new constitutional theories that would permit killing unborn children. This is partly because the purported legal theory of Roe was so weak and tenuous that very few scholars actually defended it.
One of these proposed theories builds on the common pro-abortion argument that says that laws restricting abortion are tantamount to “forced child-bearing”. One of their favorite arguments is the absurd thought experiment where you wake up one day and your circulatory system is attached to a stranger in order to keep him alive.
Unless the mother was raped, pregnancy was the natural consequence of a freely-made decision to have sex. People with normal value systems understand that this has absolutely nothing to do with slavery or involuntary servitude, as meant by the Thirteenth Amendment.
Everyone also acknowledges that “bodily autonomy” — another principle they invoke like an incantation — has legitimate limits. For example, very few people disagree with a law that bans me from selling any of my body organs or having sex with a child or buying controlled substances. That’s even without taking into account that there’s another human body involved that would love to have the luxury of arguing about autonomy in her dorm room late at night.
The problem is that this “autonomy” theory has no limiting principle. If the law can never compel me to do anything against my will, then society falls apart.
What They’re Really Saying
It’s important to take people at their word, and to take their arguments seriously. But it’s also useful to read between the lines to see what they’re really saying, even if unconsciously.
Freedom for me, servitude for you – It’s funny that pro-abortion advocates never seem to have a problem with compelling me to pay for abortion through my taxes, or forcing doctors to refer for abortions, or requiring employers to cover it in their health insurance.
Who’s the slave? – Nor do pro-abortion advocates have a problem with saying that the unborn child is tantamount to the mother’s property. After all, they’re saying that she can dispose of the unborn child at will, and she can’t be held legally accountable for any act of violence against the child. That’s exactly like the slave laws before the Civil War, which the Thirteenth Amendment swept away.
Abortion really is a form of birth control – Listen carefully to the words they actually say. They usually use the phrase “forced childbirth” or “forced childbearing”. They stay away from “forced pregnancy”, which is usually understood as an egregious human rights violation where a woman is raped in wartime, or used as a breeder for slaves, or forced to marry against her will.
This implicitly concedes that it’s not the pregnancy per se that they abhor. They want to prevent the baby from developing normally and being born – that’s birth control in its purest form.
We’re desperate – Relying on the Thirteenth Amendment to justify abortion is really raising the intellectual white flag. It’s an admission that you have no coherent argument except “the constitution means whatever I want it to”. This has been dressed up in names like “living constitutionalism”. But it’s really not legal reasoning, it’s magical thinking.
The Great Concession – Fetal Personhood
One of the ironies of the pro-abortion Thirteenth Amendment argument is that it actually undermines everything they stand for.
One of the bedrock principles of pro-abortion legal thinking is that an unborn child is not a “person” within the meaning of the law. If you’re not a “person”, then you have no rights that born people are bound to respect and that the law is bound to protect.
By the way, that last sentence is a close paraphrase of the Supreme Court’s holding in Dred Scott v. Sandford which excluded African-Americans from the protections of the law. That’s not a coincidence
But here’s the catch. If you’re using the Thirteenth Amendment, and a person is a slave or is in involuntary servitude, then you also have to have a “master”. That’s the person who owns you or who can compel you to work for them.
Note that word I used – “person”. If you’re not a person, you can’t be a “master”, because a non-person has no legal rights. It can’t be the government – they have nothing to do with your pregnancy. Only a person who is in a direct relationship with another person can own a slave.
So if you’re going to compare pregnancy to slavery, then the only one who can be the “master” is the unborn child.
That means that they’re conceding that the unborn child is a “person”. So she does indeed have rights that born people are bound to respect, and that the law is bound to protect.
That’s what we’ve been arguing for, all along. It’s the ultimate goal of our movement. By making this argument, the pro-abortion advocates are admitting that they really believe it too. They’re not willing to say that. But we are.