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Cornell Law Review Online Vol. 104

Thirteenth Amendment Reflections on Abortion, Surrogacy, and Race Selection

Dov Fox

, , ,

15 Sep 2019

Pamela Bridgewater’s Breeding a Nation: Reproductive Slavery, the Thirteenth Amendment, and the Pursuit of Freedom never had a chance.1 PAMELA D. BRIDGEWATER, BREEDING A NATION: REPRODUCTIVE SLAVERY, THE THIRTEENTH AMENDMENT, AND THE PURSUIT OF FREEDOM (South End Press 2014) . South End Press went under shortly after publishing it in 2006, forcing the book out of print after a limited run.2Judith Rosen, South End Throws in the Towel, PUBLISHERS WEEKLY (July 24, 2014), https://www.publishersweekly.com/pw/by-topic/industrynews/bookselling/article/63443-south-end-throws-in-the-towel.html [https://perma.cc/RE2X-DLQF]. It is next to impossible to get a copy today. The author, a law professor and civil rights activist, passed away in 2014 at age forty-five.3 UW Law School Mourns the Loss of Pamela Bridgewater Toure ’00, UNIVERSITY OF WISCONSIN-MADISON LAW SCHOOL: LAW SCHOOL NEWS (Jan. 27, 2015), https://law.wisc.edu/current/Articles/UW_Law_School_mourns_the_loss_of_20 15-01-21 [https://perma.cc/3XKR-3P49]. Her book has received next to no scholarly attention. That is a shame—its exhaustive history and gifted narration lay bare the program of human breeding that pervaded the antebellum South. Bridgewater shows how slavery was propagated through control over the sex and wombs of enslaved women.4 See BRIDGEWATER, supra note 1. These abuses were not just like slavery, she argued, but as central to that institution as forced labor.5See id. Bridgewater concluded that making women have children against their will strikes at the heart of their self-ownership and social fairness—the very liberty and equality that the Thirteenth Amendment was enacted to restore.6See id.

This Essay carries these themes into the present day. It asks what the lens of reproductive slavery can teach us about three live controversies: abortion, surrogacy, and race selection. Among these, only abortion bans are vulnerable to a plausible Thirteenth Amendment challenge: namely, that criminalizing abortion access subjects women to “involuntary servitude.” Pregnancy and childbirth are not as coercive in most contract surrogacy, when a woman agrees in advance to carry a child for someone else. That does not necessarily make her gestational service voluntary in the meaningful sense that gives its performance moral force—but it almost certainly has constitutional force for Thirteenth Amendment purposes. The final reproductive context under review here is fertility mix-ups in which assisted procreation patients end up with a baby of a different racial background. Negligence suits in these cases push the limits of Bridgewater’s analysis. They evoke the racial division and hierarchy that animate what the U.S. Supreme Court has called the “badges and incidents” of slavery.7Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441 (1968).

Most people think of American slavery as the distinguishing institution of shackled auctions and plantation lashings.8See Jamal Greene, Thirteenth Amendment Optimism, 112 COLUM. L. REV. 1733, 1736, 1740 (2012) (arguing that “the scopes of [slavery, involuntary servitude, and punishment] were well understood . . . at the time of the [Thirteenth] Amendment’s adoption and [] remain well understood today”). This is the institution that the Civil War extinguished with its commitment that “neither slavery nor involuntary servitude . . . shall exist within the United States.”9U.S. Const. amend. XIII. The Thirteenth Amendment codified the emancipation of former slaves—but it did more, too. During the Reconstruction-Era Black Codes, that constitutional guarantee also proscribed the bondage and chain gangs that bound debtors and their children to labor indefinitely with little if any prospect of ever paying back what they owe.10See Slaughter-House Cases, 83 U.S. 36, 72 (1873) (holding that “[w]hile the thirteenth article of amendment was intended primarily to abolish African slavery, it equally forbids Mexican peonage or the Chinese coolie trade, when they amount to slavery or involuntary servitude”) But more than a few courts and commentators since have sought to limit the reach of the Thirteenth Amendment to this eradication of peonage and chattel slavery.11See, e.g., The Civil Rights Cases, 109 U.S. 3, 25 (1883); David P. Currie, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS 1789–1888, at 400–01 (1985); Joyce E. McConnell, Beyond Metaphor: Battered Women, Involuntary Servitude and the Thirteenth Amendment, 4 YALE J.L. & FEMINISM 207, 217 (1991). Bridgewater rejected such cramped understandings.12See BRIDGEWATER, supra note 1. She was not the first: Other scholars have proposed applying the Thirteenth against race-based denials of equal rights to own property, make contracts, or participate in court.13See MARK V. TUSHNET, THE AMERICAN LAW OF SLAVERY: 1810–1860, at 6, 33 (1981); James Gray Pope, Section 1 of the Thirteenth Amendment and the Badges and Incidents of Slavery, 65 UCLA L. REV. 426, 486 (2018). Some invoke that Amendment more generously to prohibit all kinds of oppressive conduct—from child labor, child abuse, and domestic violence to hate crimes, sex trafficking, and capital punishment.14See Akhil Reed Amar, The Case of the Missing Amendments: R.A.V. v. City of St. Paul, 106 HARV. L. REV. 124, 126, 155–56 (1992); Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to Deshaney, 105 HARV. L. REV. 1359, 1365, 1384 (1992); Baher Azmy, Unshackling the Thirteenth Amendment: Modern Slavery and a Reconstructed Civil Rights Agenda, 71 FORDHAM L. REV. 981, 999 (2002); William M. Carter, Jr., A Thirteenth Amendment Framework for Combating Racial Profiling, 39 HARV. C.R.-C.L. L. REV. 17, 20, 93 (2004); Douglas L. Colbert, Liberating the Thirteenth Amendment, 30 HARV. C.R.-C.L. L. REV. 1, 47–49 (1995); Jennifer L. Conn, Sexual Harassment: A Thirteenth Amendment Response, 28 COLUM. J.L. & SOC. PROBS. 519, 556 (1995); Sarah C. Courtman, Comment, Sweet Land of Liberty: The Case Against the Federal Marriage Amendment, 24 PACE L. REV. 301, 328 (2003); Marcellene Elizabeth Hearn, Comment, A Thirteenth Amendment Defense of the Violence Against Women Act, 146 U. PA. L. REV. 1097, 1098 (1998); Dawinder S. Sidhu, Threshold Liberty, 37 CARDOZO L. REV. 503, 541 (2015). Bridgewater built on these claims to argue that constitutional abolition was capacious enough to bar conditions of domination over matters of pregnancy and parenthood.15See BRIDGEWATER, supra note 1. This is her core insight that this Essay will try to extend to the present-day contexts of abortion, surrogacy, and race selection.

To read more, click here: Thirteenth Amendment Reflections on Abortion, Surrogacy, and Race Selection.

References

↑ 1. PAMELA D. BRIDGEWATER, BREEDING A NATION: REPRODUCTIVE SLAVERY, THE THIRTEENTH AMENDMENT, AND THE PURSUIT OF FREEDOM (South End Press 2014)
↑ 2. Judith Rosen, South End Throws in the Towel, PUBLISHERS WEEKLY (July 24, 2014), https://www.publishersweekly.com/pw/by-topic/industrynews/bookselling/article/63443-south-end-throws-in-the-towel.html [https://perma.cc/RE2X-DLQF].
↑ 3. UW Law School Mourns the Loss of Pamela Bridgewater Toure ’00, UNIVERSITY OF WISCONSIN-MADISON LAW SCHOOL: LAW SCHOOL NEWS (Jan. 27, 2015), https://law.wisc.edu/current/Articles/UW_Law_School_mourns_the_loss_of_20 15-01-21 [https://perma.cc/3XKR-3P49].
↑ 4. See BRIDGEWATER, supra note 1.
↑ 5. See id.
↑ 6. See id.
↑ 7. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441 (1968).
↑ 8. See Jamal Greene, Thirteenth Amendment Optimism, 112 COLUM. L. REV. 1733, 1736, 1740 (2012) (arguing that “the scopes of [slavery, involuntary servitude, and punishment] were well understood . . . at the time of the [Thirteenth] Amendment’s adoption and [] remain well understood today”).
↑ 9. U.S. Const. amend. XIII.
↑ 10. See Slaughter-House Cases, 83 U.S. 36, 72 (1873) (holding that “[w]hile the thirteenth article of amendment was intended primarily to abolish African slavery, it equally forbids Mexican peonage or the Chinese coolie trade, when they amount to slavery or involuntary servitude”)
↑ 11. See, e.g., The Civil Rights Cases, 109 U.S. 3, 25 (1883); David P. Currie, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS 1789–1888, at 400–01 (1985); Joyce E. McConnell, Beyond Metaphor: Battered Women, Involuntary Servitude and the Thirteenth Amendment, 4 YALE J.L. & FEMINISM 207, 217 (1991).
↑ 12. See BRIDGEWATER, supra note 1.
↑ 13. See MARK V. TUSHNET, THE AMERICAN LAW OF SLAVERY: 1810–1860, at 6, 33 (1981); James Gray Pope, Section 1 of the Thirteenth Amendment and the Badges and Incidents of Slavery, 65 UCLA L. REV. 426, 486 (2018).
↑ 14. See Akhil Reed Amar, The Case of the Missing Amendments: R.A.V. v. City of St. Paul, 106 HARV. L. REV. 124, 126, 155–56 (1992); Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to Deshaney, 105 HARV. L. REV. 1359, 1365, 1384 (1992); Baher Azmy, Unshackling the Thirteenth Amendment: Modern Slavery and a Reconstructed Civil Rights Agenda, 71 FORDHAM L. REV. 981, 999 (2002); William M. Carter, Jr., A Thirteenth Amendment Framework for Combating Racial Profiling, 39 HARV. C.R.-C.L. L. REV. 17, 20, 93 (2004); Douglas L. Colbert, Liberating the Thirteenth Amendment, 30 HARV. C.R.-C.L. L. REV. 1, 47–49 (1995); Jennifer L. Conn, Sexual Harassment: A Thirteenth Amendment Response, 28 COLUM. J.L. & SOC. PROBS. 519, 556 (1995); Sarah C. Courtman, Comment, Sweet Land of Liberty: The Case Against the Federal Marriage Amendment, 24 PACE L. REV. 301, 328 (2003); Marcellene Elizabeth Hearn, Comment, A Thirteenth Amendment Defense of the Violence Against Women Act, 146 U. PA. L. REV. 1097, 1098 (1998); Dawinder S. Sidhu, Threshold Liberty, 37 CARDOZO L. REV. 503, 541 (2015).
↑ 15. See BRIDGEWATER, supra note 1.

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