Would the right to abortion have been on a firmer foundation if it had been based on the explicit guarantee of equal protection in the Constitution, as Judge Ruth Bader Ginsburg had so famously argued, rather than on the implied right to privacy? Who cares? After all, as Maureen Dowd reminds us, the doctrine to which the judges in the conservative majority of the court, all of whom were raised Catholics, respond may not be the framers, but the bishops. And what about the doctrine of stare decisis, which calls on judges to adhere to precedents? Judge Clarence Thomas, speaking at a judicial conference in Atlanta this month, let us know what to think. “We use stare decisis as a mantra when we don’t want to think,” he said.
Whether out of habit or simply nostalgia for a time when the Constitution mattered in court, I’ll end this essay with a constitutional proposal, one fit for a future where women experience reproductive freedom in about half of this United States. Since nothing else seems to work, I wave to the gates. The 13th Amendment, passed after the Civil War, outlaws both slavery and “involuntary servitude.” What compels a woman to carry a pregnancy to full term if it is not involuntary servitude?
I claim no credit for this idea. Feminists invoked the 13th Amendment in a letter to the court during Roe v. Wade. And Andrew Koppelman, a law professor at Northwestern University, has been making the 13th Amendment argument for years as an original case, building in part on the long history of involuntary children by enslaved women. Irin Carmon’s graphic description in New York magazine of the Burdens of Pregnancy, focusing on the ignorance of Alito’s draft advice for women’s interests, has made the rounds in feminist circles. While her essay, “I, Too, Have a Human Form,” does not contain an explicit 13th Amendment argument, it could serve as Exhibit A in such a case.
Anyone who makes a serious 13th Amendment argument runs the risk of being dismissed as a pursuer of “fool’s gold,” as Columbia Law School professor Jamal Greene put it in a 2012 magazine article, “Thirteenth Amendment Optimism.” So yes, it’s a fantasy. But perhaps the time has come for fantasy, the reality of a modern nation with no legal abortion that the current majority has been unable to move.
The message of Alito’s draft is that the time for constitutional discussions is over. It must be argued that it died a long time ago, but at any rate, here’s my last question to the judges: What, other than brute force, will take its place?