The recent leak of a draft opinion written by Supreme Court Justice Samuel Alito, which would overturn Roe v. Wade, has generated intense attention to the issue of abortion. The right-wing majority on the court appears eager to ignore precedent and negate a woman’s constitutional right under Roe to choose to have an abortion.
But even if Roe is overturned, there is an alternative legal approach that would protect access to abortion. Rather than focusing on the issue of choice, it is based on the reality of what it means as a woman to have an unwanted pregnancy in a state banning abortion.
She is a captive of her condition: forced to carry a fetus to term, subjected to the traumas and dangers of pregnancy, and compelled to undergo childbirth in a nation with a shamefully high rate of maternal mortality. Such state-imposed gestation, by denying her access to an abortion, is “birthing bondage.”
The 13th Amendment to the United States Constitution says: “Neither slavery nor involuntary servitude … shall exist within the United States.” Slavery is the ownership of one person by another person or institution. Involuntary servitude is defined by Merriam-Webster as “a condition in which one lacks liberty especially to determine one’s course of action or way of life,” and typically involves forced labor.
In his draft, Alito argues that before the Roe decision, “there was no support in American law for a constitutional right to obtain an abortion. Zero. None.” But he has no grounds whatsoever to dispute the constitutional right to be free from involuntary servitude. Zero. None. The question then is whether birthing bondage is in fact a form of involuntary servitude. If it is, a woman has the right under the 13th Amendment to be freed from that servitude through her only recourse: an abortion.
A woman in birthing bondage is forced, around the clock for many months, to serve as a vessel to carry a fetus. This causes her physical and emotional distress, deprives her of the life she would lead were she not pregnant, subjects her to the pain of childbirth and puts her very existence at risk.
Moreover, being denied an abortion has significant long-term negative consequences for her physical and mental health, financial condition and family life, according to the just-released results from a major research project, the “turnaway study.”
In birthing bondage, a woman is deprived of her liberty, and suffers as a prisoner of her condition. Being forced to undergo an unwanted pregnancy and give birth is literally forced labor. So yes, we can only conclude that birthing bondage is involuntary servitude.
Of course, many women willingly, even joyously get pregnant and give birth. We love and respect them for what they must go through, and thank them for their service in bringing a new life into the world. Being pregnant is a tough job with no time off. Zero. None. No woman should be compelled by the power of the state to perform this service unwillingly.
Anti-abortion extremists would not allow an exception even in the case of rape. Imagine a woman’s anguish in being compelled to carry in her body the result of her violation. Some state legislators want to outlaw abortion from the moment of conception, to declare any abortion homicide, to make it a crime for a woman in a state which bans abortion to have one in a state which permits it.
These legislators are zealots intent on imposing their religious views on us all. They are the American Taliban, the inquisitionists of a new dark age. It is of no concern to them what becomes of the mothers and children of forced births in the years to follow. They are only concerned with controlling the bodies of those women by using the power of the state to hold them in birthing bondage.
Let us free women from the involuntary servitude of an unwanted pregnancy. Let us abolish birthing bondage by challenging state anti-abortion laws as violating the 13th Amendment. A nation and a Supreme Court which cruelly sanction such a deprivation of women’s liberty as Americans, by denying them access to abortion, is a nation and a court which cannot long endure.