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’. And what about the doctrine of stare decisis, which calls on judges to stand by precedents? Justice Clarence Thomas, speaking this month at a judicial conference in Atlanta, let us know what to think about that. “We use stare decisis as a mantra when we don’t want to think,” he said.
Whether out of habit or simple nostalgia for a time when the Constitution mattered to the court, I will end this essay with a constitutional proposition, one fit for a future in which women experience reproductive freedom in roughly half of these United States. 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?
I claim no credit for this idea. Feminists invoked the 13th Amendment in a brief to the court 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. But maybe the moment has come for fantasy, the reality of a modern nation without legal abortion having failed to move the current majority.
The message of the Alito draft is that the age of constitutional argument is over. 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?