Forced Labor: 13th Amendment and Abortion

1. Background

After the Dobbs v. Jackson Women’s Health Organization stripped away the constitutional right to an abortion in June of 2022, reproductive freedom in the United States has been declining after being delegated to the states.¹ For an issue that pertains to half of the population, there have been two opposing viewpoints: those advocating for a woman’s right to make a choice about her own health and the moral argument surrounding the personhood of a fetus and the protection of life in general. The important legal issues and theories regarding reproductive freedom in the United States that could bring back Roe-era protections mainly circle around the right to privacy, while other hypothetical legal theories concocted after the fall of Roe call upon the 13th and 8th Amendments. In the lens of the 13th Amendment, according to scholar Kurt. T. Lash at Georgetown, “Under slavery, both the women and the unborn child were considered property, both equally subject to dismemberment or destruction. Abolishing slavery abolished the idea that one could hold “property in man.” ² In the view of the 13th amendment, some scholars argue that since under slavery the woman and unborn child were the property of the master, their bodies could be done with at will. Post-Roe, this means contemporarily that because the 13th amendment abolished “involuntary servitude”, the forced labor of forced pregnancy is unconstitutional. As legal scholars consider a pathway back to Roe, there has been interesting discussion surrounding the 13th amendment Staying with this argument would also mean that because there are no slave owners, the “master” of a woman’s body would now be the government, propagating another legal theory of government overreach into individual liberties. This paper will explore such fringe post-Roe legal theories as legal scholars grapple with creating a pathway back to restoring Roe protections.

2. Privacy Rights or Human Rights?

Human access to reproductive healthcare is and should be constitutionally protected. While there are no specific amendments protecting reproductive rights, through the use of justiciable review, the United States was able to go from the Comstock Act of 1873 which made it a federal offense to distribute information about birth control or abortion through the mail, along with “obscene materials” such as pornography, contraceptives or information about them and anything that can be used to produce an abortion³; to Griswold v Connecticut⁴ in 1965 which the Supreme Court ruled that married couples should have access to birth control – citing the 1st, 3rd, 4th, 9th and 14th Amendments to enshrine the right to privacy. The effects of this decision are clear when looking at our current society. It is precisely because of this that Dobbs’s decision was the shot heard around the world that upended Roe – another and far more critical privacy rights case. Dobbs has the power to gut privacy rights that affect everything from the same sex (Obergefell v. Hodges⁵) and interracial marriages (Loving v Virginia⁶) to HIPPA and requiring the government a warrant to search cell phone data (Carpenter v. U.S⁷). This not only centralizes power on the federal level but leaves human rights up to states and removes a minimum level of care for the welfare of Americans. More than that – a government that can force you to give birth can also prevent you from giving birth as shown in Buck v. Bell where the Supreme Court upheld forced sterilization of a woman⁸.

The amendment that the Supreme Court has not yet looked at when deciding about abortion rights is the 13th Amendment. Many forget that labor is quite literally labor. Gestational carriers nationwide are commissioned anywhere between $45,000 to $70,000⁹; proving that pregnancy and birth are laborious tasks that people can be employed to perform. So what happens when someone is forced to perform the labor of labor? Homicide is the leading cause of death for pregnant women in America.¹⁰ Pregnancy decreases the likelihood of employment, worsens poverty for mothers and other children in a family, and keeps women in violent relationships. Poverty is extensively correlated with unintended or teenage pregnancies and being a single mother.¹¹ As seen through the conservative playbook for the Trump administration, Project 2025, the benefits of banning abortion nationwide is part of a larger systemic goal because if more people are forced to have children, they become politically disenfranchised, are less likely to take risks, can remain trapped in poverty, and provide cheap labor in low-skill jobs with no hope of moving up economically. This economic barrier is made worse by the fact that the Hyde Amendment prohibits the use of federal funds (Medicaid) for abortions for any reason other than rape, incest, or life endangerment. It stops the people who need abortions from having access to them and targets Black, Brown, noncitizen, and lower socio-economic class people.¹² Black women have three times the rate of maternal mortality compared to their White counterparts and are likely to undertake abortions at five times the rate of white women.¹³ Black women also face a higher risk of being killed while pregnant than White or Hispanic women.¹⁴ Due to this, Dobb’s decision asymmetrically affects nonwhite, low-income bodies, making it more likely for them to die as a result of unwanted pregnancies and effectively signing their death sentence.

3. Eugenics

A state that can force one to give birth can also prevent one from giving birth. Eugenics has a long history in the United States as well as around the globe, however, one of the most infamous displays of this is the Buck v Bell decision of 1927.¹⁵ Carrie Buck was a poor white woman who was committed to the Virginia State Colony for Epileptics and the Feebleminded after getting pregnant out of wedlock. She was deemed “feebleminded” and “promiscuous,” for this reason even though the pregnancy was a result of rape by her foster parents’ nephew. Dr. Albert Priddy was a key figure in the eugenics movement in the state of Virginia, actively pushing for the implementation of sterilization policies as early as 1911. Priddy interpreted the 1916 Virginia Law to sterilize women under the guise of performing surgery to benefit the “physical, mental, moral” condition of inmates. He was able to get away with this but realized something had to change after he was faced with a lawsuit after sterilizing Mrs. Mallory. Over time, after partnering with a state probation officer, Priddy arranged for the Mallory family women to be committed to the Virginia Colony on the grounds of “hereditary mental deficiency”. The family had many kids and was struggling with work, alcoholism, as well as domestic violence. By the time the suit took place, the mother had already been sterilized. The court voided the detention of the girls but sided with Priddy only on the grounds of a “medical emergency,” instead of the eugenic grounds, which was the defense he was seeking. It was after this that Priddy realized and persuaded clear legal mandates for eugenic sterilizations. This led him, along with Aubrey Strode, who was the attorney for the State Colony for Epileptics and Feebleminded, to pursue the Virginia Sterilization Act of 1924. After the successful passage of the Virginia Sterilization Act of 1924, it gave him the ability to perform eugenic sterilizations legally. Carrie was chosen as the test case for Virginia’s sterilization law, which aimed to prevent the “propagation of imbeciles” under the rationale of the common good. Though the law had been passed in Virginia, they intended to have court support so they chose a case that was sure to be contested with the hope that they would win and enshrine forced sterilizations.¹⁶ They were right. Justice Holmes, who delivered the majority opinion, said “Three generations of imbeciles are enough” – referring to Carrie’s mother who was also institutionalized and her months-old daughter. Nazi defense lawyers referred to the precedent Buck v. Bell in the United States as justification for legalized sterilization and as an example of “race protection in other countries”¹⁷. Despite this, the sterilizations did not stop. They proceeded, however, as public opinion shifted, they did as well from sterilization to now out-of-wedlock children and mixed-race marriages instead. Buck v Bell has never been overturned.

It wasn’t until Skinner v. Oklahoma in 1942 that the Supreme Court decided that states cannot forcibly sterilize criminals.¹⁸ In addition to the history of reproductive control in the United States, India’s “Sterilization Emergency” or China’s one-child policy among many other examples serve to show that anytime the government decides to control who does and does not give birth, it can not possibly mean anything good. A government that can force a person to give birth also has the power to prevent them from giving birth, and the truth is that laws don’t apply nor target all the same. These sterilization laws were first targeted at inmates – thinking that it could be hereditary. Then it targeted poor and nonwhite people. America has a history of sterilizing native american women by providing false medical information and going as far as to threaten the loss of health or welfare benefits and services. The same is true with black women who are disproportionately affected and targeted by welfare regulations, the criminalization of substance abuse by pregnant women, etc¹⁹.

4. 13th Amendment Theoretical Application

The abortion debate has rarely been framed around the 13th Amendment, however, this is a mistake. Compulsory motherhood and pregnancy strips women of both liberty and equality by forcing them into involuntary servitude, which the Thirteenth Amendment argument resolves. We will be making the argument that abortion restrictions fit the standard of involuntary servitude which is disallowed in the constitution under the Thirteenth Amendment, and further, explain different possible remedies such as Congressional powers which the same amendment remedies.

The Thirteenth Amendment reads as follows:  

First, let’s establish what involuntary servitude is and how the Supreme Court defines it under the Thirteenth Amendment before continuing to make the point of how abortion restrictions fit the standard. While many may shrivel at our audacity to employ the Thirteenth Amendment as a defense for legal abortions, the Supreme Court has already cleared up that the amendment application is not only in this specific instance of its original reason. Slaughterhouse cases back in 1873 disclosed that “while the thirteenth article of amendment was intended primarily to abolish African slavery, it equally forbids Mexican peonage or the Chinese coolie trade when they amount to slavery or involuntary servitude, and the use of the word ‘servitude’ is intended to prohibit all forms of involuntary slavery of whatever class or name”²¹. In Hodges v. United States the court wrote “slavery and involuntary servitude as denounced by the Thirteenth Amendment mean a condition of enforced compulsory service of one to another, and while the cause inciting that amendment was the emancipation of the colored race, it reaches every race and every individual”²². Both of these cases highlight that the definition of slavery and involuntary servitude is not limited to chattel slavery of Black individuals; and that every and any person can be protected under this amendment. It would be a mistake to only think of the amendment in its original context of slavery, due to its potential application in modern times, especially when the court has already made clear that the amendment’s application is not restricted to one form of slavery. To look at how the court defines involuntary servitude, one may look to Bailey v. Alabama under which the court held that the Thirteenth Amendment’s “ plain intention was to abolish slavery of whatever name and form and all its badges…by prohibiting that control by which the personal service of one man is disposed of or coerced for another’s benefit, which is the essence of involuntary servitude.”²³ From this interpretation, it is clear that involuntary servitude would entail a clear connection to the involuntary service of labor induced by the banning of abortion. However, even devoid of these court decisions and even without being able to escape its specific context and application of the amendment to slavery, the amendment would still be relevant to abortion. Rape and forced breeding were indisputable parts of enslaved women’s experience, who had no right or ability to avoid pregnancy or refuse sex. If the Thirteenth amendments were to apply to this case in which rape and forced pregnancy were part of slavery, then the application of the Thirteenth Amendment here is valid as is to any woman who is impregnated as a result of a rape, therefore the Thirteenth Amendment applies to at least a portion of abortion cases. Between July 2022 and January 1, 2024, 64,500 rape-related pregnancies occurred, 58,979 of them in the nine of fourteen states who disallow exceptions for rape²⁴. If nowhere else, the Thirteenth Amendment should prohibit this.

As explained before, pregnancy and childbirth are laborious tasks as evidenced by the market for surrogacy. However, it must be said how unfortunate such reasoning is needed to spell out what many women know to be hard work. It goes along with and highlights the devaluation of what some may consider feminine tasks. Why is it that what women traditionally do is not categorized as work and why is it that the fields dominated by women experience male flights and low wages as well as respect? No better example to show this than the societal view of being a stay-at-home mom being seen as the inverse of working. It was found that stay-at-home parents of two children in the United States do about 200 hours of tasks each month consisting of but not limited to cleaning, shopping, cooking, and childcare; with labor costing between $4,000 on the lower end ($48,000 annually) and $5,200 on the higher ($62,400) per month. Over a 20-year period that is about $1.25 million²⁵– all of which is without a 401k, salary, coworkers, and limited to nonexistent sick leave or vacation days. All this is not considered work, and neither is pregnancy. They are simply tasks expected from and thought suitable for women. Just as the white slaveowners viewed agricultural labor as a suitable role for black enslaved people, the opponents of abortion also tend to believe consciously or not that motherhood, whether forced or willing, is a suitable role for women²⁶. If not labor then “what would we call any activity that demanded that a man… endure constant exhaustion, loss of appetite, vomiting, sleeplessness, bloatedness, soreness, swelling, uncontrollable mood swings and, ultimately, hours of agony, often followed by deep depression?”²⁷

Forced gestation means that the woman has lost access to her body and labor and is required to provide continuous physical service to the fetus for the state’s or the fetus’s interest. Even if for the sake of the argument the fetus’s personhood is conceded, even then it still does not outweigh the Thirteenth Amendment argument. No one can force others to be involuntary servants to them, whether their life depends on it or not. Many will also be enraged at us for painting such a gloomy picture of pregnancy – something many find to be a beautiful and wanted experience; however our claim is not that pregnancy is terrible, we claim that involuntary pregnancy is. This is a huge difference that must not be lost. “The distinction between wanted and unwanted pregnancy is like the difference between wanted and unwanted sex. Can rape be defended on the grounds that sex is an exhilarating, awe-inspiring, joyous experience?… Plantation slavery cannot be justified on the grounds that many people find gardening deeply satisfying”²⁸. It is consent that makes the difference which as shown in Bailey v. Alabama is relevant when discussing labor. Under this ruling, the court found that the thirteenth amendment disallows making it a crime to refuse to submit to a person or perform a service. While the state may impose involuntary servitude as a punishment for crime, it can not be used to punish the person as a criminal if they do not perform the service; therefore laws that would punish women who get abortions are disallowed. There is no consent between the woman and the state if the woman is forced to carry a fetus to term without having the option to abort it. It is also important to note that consenting to getting pregnant is not the same as consenting to stay pregnant. It was found in Clyatt v. United States that the agreement to perform labor is only consistent with the Thirteenth Amendment if the person has the ability to “elect at any time to break it, and no law or force compels performance or a continuance of the service.”²⁹ Luckily, within the same amendment is a remedy – congress. Congress has the ability to use legislation to take care of this matter. Peonage Abolition Act of 1867³⁰ which did away with debt peonage came before and was supported by Bailey v. Alabama. Victims of Trafficking and Violence Protection Act of 2000³¹ which criminalized human trafficking was passed by Congress as well. This example highlights that a congressional act would be able to remedy the abortion restrictions that we have established are disallowed by the Constitution. 

This analysis of abortion through the lens of the 13th amendment showcases that a fringe theoretical argument has basis in legal precedent. As this review has discussed, the restriction of abortion is akin to eugenics and the involuntary servitude that Black people, especially Black women, overcame in our nation’s despicable history. Our argument, in the simplest of terms, puts forward that restricting abortion access to women is the widespread dehumanization of American women because without access to abortion, a woman’s consent to being pregnant and carrying a child is taken away, thus becoming simply an economic vessel for the state as an unwanted pregnancy and child can easily send a mother into poverty or put a target on her back. Viewing abortion rights through the 13th amendment provides a catalyst to bring back Roe protections, and instill stronger protections of individual liberty and privacy rights for women in America. United States stands for life, liberty, and property. Abortion bans violate all three; after all, how can someone own property without owning themselves first?

Notes

1. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2234 (2022).
2. Lash, Kurt T. “Roe and the Original Meaning of the Thirteenth Amendment.” SSRN Electronic Journal 21, no. 131 (n.d.). https://doi.org/10.2139/ssrn.4115888.
3. Winny 2024
4. Griswold v. Connecticut is 381 U.S. 479 (1965)
5. Obergefell v. Hodges is 576 U.S. 644 (2015)
6. Loving v. Virginia | 388 U.S. 1 (1967)
7. Carpenter v. United States is 585 U.S. 296 (2018)
8. Buck v. Bell, 274 U.S. 200 (1927)
9. CBS News 2024
10. Harvard T.H. Chan School of Public Health 2024
11. American Public Human Services Association
12. Heriot 1996
13. Mills, Elizabeth, and Debra DeLaet 2024.
14. Harvard T.H. Chan School of Public Health 2024
15. Buck v. Bell, 274 U.S. 200 (1927)
16. Oberman, 2010
17. Oberman, 2010
18. Skinner v. Oklahoma (1942)
19. Oberman, 2010
20. National Constitution Center 2024
21. Slaughterhouse Cases, 1872
22. Hodges v. United States, 1906
23. Bailey v. Alabama, 1911
24. Dickman, 2024
25. Roeloffs, 2024
26. Koppelman, 2010
27. Koppelman, 2010
28. Koppelman, 2010
29. Clyatt v. United States, 197 U.S. 207 (1905)
30. Howe 1904
31. H.R.3244 – 106th Congress (1999-2000)