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Reviews |  Abortion questions for Justice Alito and his Supreme Court allies


Would the right to abortion have been stronger if it had been based on the Constitution’s explicit guarantee of equal protection, as Justice Ruth Bader Ginsburg so aptly put it, rather than on the implicit right to private life ? We do not care? After all, as Maureen Dowd reminds us, the doctrine that the justices of the court’s conservative majority, who were all raised Catholics, are sensitive to may not be that of the editors but that of the bishops. And what about the doctrine of stare decisis, which calls on judges to stick to precedent? Judge Clarence Thomas, speaking this month at a court conference in Atlanta, let us know what to make of it. “We use stare decisis as a mantra when we don’t want to think,” he said.

Whether out of habit or sheer nostalgia for a time when the Constitution mattered to the court, I will end this essay with a constitutional proposal, a proposal worthy of a future in which women will experience reproductive freedom in about half of these United States. Since nothing else seems to work, I’m going to swing for the fences. The 13th Amendment, passed 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 court brief during Roe v. Wade. And Andrew Koppelman, a law professor at Northwestern University, has presented the 13th Amendment argument as an original issue for years, drawing inspiration in part from the long history of involuntary motherhood of enslaved women. Irin Carmon’s graphic depiction in New York magazine of the burdens of pregnancy, aimed at the unconsciousness of Alito’s draft opinion vis-a-vis women’s interests, made the rounds in feminist circles. Although his essay, “I, too, am in human form,” does not present an explicit 13th Amendment argument, it could serve as Exhibit A in such a case.

Anyone who makes a serious 13th Amendment argument risks being dismissed as a hunter for “fool’s gold,” as Columbia Law School professor Jamal Greene put it in a 2012 newspaper article, “Thirteenth Amendment optimism”. So, yes, it’s a fantasy. But perhaps now is the time for the fantasy, the reality of a modern nation without legal abortion having failed to move the current majority.

The message of Alito’s project is that the era of constitutional debates is over. There’s room to prove he died a long time ago, but regardless, here’s my final question to the judges: what, other than raw power, will take his place?

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