The Originalist Argument for Abortion Rights: Compulsory Childbearing During Antebellum Slavery and Its Relevance Today
On the 40th Anniversary of Roe v. Wade we can expect to hear the perennial criticism that the Court’s decision is insufficiently grounded in the text of the Constitution. Even among commentators who agree a woman has a fundamental right not to remain pregnant against her will, many are critical of its grounding in the right to privacy, locating it instead in explicit Constitutional guarantees like the right to equal protection before the law. The most vehement critics of Roe, however, are so-called originalists who not only deny there is any right to privacy, but are certain abortion cannot be protected by any constitutional provision based on the “original meaning” of the text.
Justice Antonin Scalia, who famously rejects interpretive methods that entail identifying the values the Constitution protects, purports to instead decide cases based on the meaning of Constitutional text when written. According to Justice Scalia, abortion is an “easy” case. There is no mention of abortion in the Constitution so it can’t be protected. However, in a recent essay, Andrew Koppelman challenges this assertion on originalist grounds: forced reproduction was intrinsic to slavery, which the framers of the Thirteenth Amendment sought to prohibit.
As Dorothy Roberts writes in Killing the Black Body: Race, Reproduction and the Meaning of Liberty, “[t]he essence of Black women’s experience during slavery was the brutal denial of autonomy over reproduction.” Female slaves’ ability to produce more slaves was central to the economic interests of slaveowners and, once the importation of slaves was banned, to the perpetuation of the institution of slavery. A woman’s reproductive capacity figured into her price on the market and was as valuable as labor in the fields. As Thomas Jefferson wrote, “I consider a woman who brings a child every two years as more profitable than the best man on the farm.”
Slaveowners beat women who did not reproduce or sold them, separating them from their families. Some engaged in slave-breeding, forcing slaves considered “prime stock” to mate in order to produce particularly valuable new slaves for labor or sale. Evidence exists that slaves resisted slaveowners’ demands that they reproduce by using herbal and other makeshift contraceptive and abortive methods. Slaveowners were free to rape slaves with impunity and the children who resulted increased their wealth. A slave women’s child was not her own, but the property of her master. Even prior to conception, a slaveowner held a property interest in a woman’s future children that could be bequeathed by will.