WI: A Different Roe v. Wade

Pesterfield · May 1, 2011

Since various state governments are making moves against abortion this idea came up.

Instead of putting together several amendments to get abortion legal thanks to a right of privacy a more direct route is taken. Anti-abortion laws are declared unconstitutional as a violation of the 13th amendment.

Section 1. 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.
Section 2. Congress shall have power to enforce this article by appropriate legislation.

Are challenges harder with it being on firmer legal ground?

As a downside I could see antichoice states finding reasons to arrest pregnant women seeking abortions, for none abortion reasons, then sentencing them to carry the pregnancy to term.

Mr Qwerty · May 1, 2011

Pesterfield said:
As a downside I could see antichoice states finding reasons to arrest pregnant women seeking abortions, for none abortion reasons, then sentencing them to carry the pregnancy to term.

Considering the endless creativity of that movement, I'm surprised that hasn't been tried-and wouldn't be surprised at all to find out it has been.

Cathcon1 · May 1, 2011

**Sigh**... (bad sigh, not the good kind of sigh)

Georgepatton · May 1, 2011

Pregnancy is slavery?

You can't legally agree to be enslaved, so doesn't using the 13th Amendment mean that no one could legally engage in pregnancy?

Evan · May 1, 2011

It actually has been tried. (Prof. Andrew Koppelman, 84 Nw. U.L. Rev. 480 1989-1990, reiterated in http://ssrn.com/abstract=1544503 ) However, his argument seems to me to prove just as well that driving halfway across town is slavery because you can't stand up and instantly get to your refrigerator.

Pesterfield · May 1, 2011

You can't legally agree to be enslaved, so doesn't using the 13th Amendment mean that no one could legally engage in pregnancy?

The article Evan linked answers that. Wanting to get pregnant is voluntary servitude, being forced to carry it is involuntary servitude.

Nice article by the way, and makes good sense. I didn't notice anything that would imply your driving/refrigerator idea.

Georgepatton · May 1, 2011

Pesterfield said:
The article Evan linked answers that. Wanting to get pregnant is voluntary servitude, being forced to carry it is involuntary servitude.

Nice article by the way, and makes good sense. I didn't notice anything that would imply your driving/refrigerator idea.

The article seems weak on the last section about the similar situation of child care. The reference to slave women being raped, while of course morally outrageous, is only relevant to women not legally competent to engage in sex.

Parents can give up their child to relatives or state institutions, surely. But, if we talk about that in terms of abortion, people aren't allowed to abandon their children without provision for their wellbeing. I can't dump my kid out in the desert and just let him die.

EDIT: But we're being needlessly political here. If the 13th Amendment were used as part of the Roe decision, it would probably ban all state restrictions, no? As opposed to the first trimester ban we got in OTL. If that's the case, there could be a movement to amend the 13th Amendment with language like: "Nothing in this amendment shall be construed to apply to abortion," or something. Abolishing some restrictions is one thing, politically, but tossing all of them is another thing entire.

Wendell · May 2, 2011

I'm pleasantly surprised that this thread has yet to collapse into a flamewar. That said, I really don't see how the thirteenth amendment is applicable with respect to abortion policy.

Pesterfield · May 2, 2011

Why don't you think it applies?

Carrying an unwanted pregnancy could easily be seen as either involuntary servitude to the fetus itself, or involuntary servitude to the government that won't let you get an abortion so is making you carry it.

Sift Green · May 2, 2011

Pesterfield said:
Why don't you think it applies?

Carrying an unwanted pregnancy could easily be seen as either involuntary servitude to the fetus itself, or involuntary servitude to the government that won't let you get an abortion so is making you carry it.

Well, in slavery the master has the life of the slave in his hand. In Pregnancy the life of the fetus is in the hands of the woman.

Second, with the exception of rape and blackmail, the woman made a choice at the beginning that got her pregnant. Where as with slavery the slave has no choice at any point of the ordeal.

Third, if the Supreme court had used this kind of language their would have been an even stronger backlash when the ruling was made. So you might just see a Pro-life amendment as a result of stronger language.

lloyd007 · May 2, 2011

Using the 13th as a pro choice justification would annihilate the movement. The court would either be packed or a Constitutional Amendment would be passed banning / restricting abortion.

Roe was about as positive for the pro choice movement as it could possibly be.

Wendell · May 3, 2011

lloyd007 said:
Using the 13th as a pro choice justification would annihilate the movement. The court would either be packed or a Constitutional Amendment would be passed banning / restricting abortion.

Roe was about as positive for the pro choice movement as it could possibly be.

This. If an amendment having less to do with abortion than at least two others becomes the foundation for imposing legal abortion on all of the states, then a backlash will happen, and should be expected to receive some level of support form people on the fence who may otherwise be inclined to lean the other way. Of course, movements to limit the jurisdiction of the court in various respects might be stronger too as a result.