Academic

Student Blogger - #13Amend Live Blog: Forced Labor, Revisited

Andrew Koppelman, "Forced Labor, Revisited: The Thirteenth Amendment and Abortion": The 13^th Amendment has been in the news lately, though not directly. It has been argued that restrictions on abortion are unconstitutional because they require women to carry fetuses against their will, though these arguments are generally made citing 14^th Amendment. Koppelman observes that if you want to be taken seriously, you should not make a 13^th Amendment argument for access to abortion. Apparently, in the eyes of much of the opposition, these arguments are so ridiculous that they do not warrant a response. As a law student, Koppelman argued for that the 13^th Amendment is violated by laws preventing abortion. Forced pregnancy and childbirth is equivalent to compelling women to serve fetuses, involuntarily. This argument works even if you accept Prof. Stone's view of the Amendment, that it only applies to state action. It is the state that compels the woman to serve the fetus. This is compatible with the holding of Bailey v. Alabama. Koppelman does not argue that this is of the same degree, but of the same kind, as antebellum slavery. Koppelmen then presents some of the arguments against this position and explains why he believes that they fail. Some have argued that this is an attack on motherhood, which should be seen as a joyous blessing. This, however, only applies to voluntary motherhood. Rape laws do not devalue consensual sex. Arguments for a ban on plantation slavery cannot be refuted by pointing out that many people find gardening to be an extremely pleasant activity. Another potential objection is that implicit in the argument that forced pregnancy requires women to serve the fetuses is the idea that a fetus is a person (with a right to life). This is easily refuted by citing Bailey, which involved servitude to a corporation. The 13^th Amendment has both egalitarian and libertarian aims, both of which are violated by laws prohibiting abortion. It seems that this should be enough. However, Koppelman points out that it is naïve to think that a legal argument made on the basis of well established case law will necessarily be a good one. The 13^th Amendment strikes people as strange and this has limited its application. He also recognizes that the abortion debate will not be resolved with technical legal arguments; however, this application of the 13^th Amendment could do a lot to fix some of the problematic features of Roe v. Wade.

Full post as published by The University of Chicago Law School Faculty Blog on April 18, 2009 (boomark / email).