Would the right to abortion have been on firmer footing had it been based on the Constitution’s explicit guarantee of equal protection, as Justice Ruth Bader Ginsburg famously argued, rather than the implicit right to privacy? Who cares? After all, as Maureen Dowd reminds us, the doctrine to which the justices in the court’s conservative majority, all of whom were raised Catholic, is responsive may not be the framers’ but the bishops’. What about the doctrine known as stare decisis? It requires judges to abide by precedents. Justice Clarence Thomas speaks this month at a Atlanta judicial conference. Let’s think about it. “We use stare decisis as a mantra when we don’t want to think,” he said.
I will end this essay, either out of habit, or just because I am nostalgic for a time in American history when the Constitution was important to the court. Since nothing else seems to be working, I’ll swing for the fences. The 13th Amendment, adopted after the Civil War, prohibits both slavery and “involuntary servitude.” What is forcing a woman to carry a pregnancy to term if not involuntary servitude?
This idea is not mine. In a briefing to the court, Feminists invoked 13th Amendment during Roe V. Wade. And Andrew Koppelman, a law professor at Northwestern University, has been making the 13th Amendment argument as an originalist matter for years, drawing in part on the long history of enslaved women’s involuntary childbearing. Irin Carmon’s graphic description in New York magazine of the burdens of pregnancy, aimed at the Alito draft opinion’s obliviousness to women’s interests, has been making the rounds in feminist circles. While her essay, “I, Too, Have a Human Form,” does not make an explicit 13th Amendment argument, it could serve as Exhibit A in such a case.
Anyone who offers a serious 13th Amendment argument risks being dismissed as a chaser of “fool’s gold,” as Professor Jamal Greene of Columbia Law School put it in a 2012 journal article, “Thirteenth Amendment Optimism.” So, yes, it’s a fantasy. Perhaps the time has come for fantasy, with the reality that a modern nation would not allow legal abortions.
The Alito draft conveys that constitutional argument is dead. There’s a case to be made that it died a long time ago, but in any event, here is my final question to the justices: What, other than raw power, will take its place?
Source: NY Times
