Jan 12Liked by James J. Heaney

While I ultimately agree with you that there is no constitutional right to abortion, I don't get how someone could contend koppelman's argument is the only coherent argument.

I hold the exact opposite to be true. For koppelman to be correct, it would require accepting the proposition that property can be raped.

And if that were true I would not have been acquitted in those lawsuits brought against me by my couch... Or that microwaved cantaloupe... Or when I got Me-Tooed by all of those bagels...

What about the assertion that a women's right to choose is an unenumerated right protected by amendment IX?

Or that bodily autonomy is among the privileges and immunities of citizens, protected federally under Article IV privileges and immunities clause & applicable against the states under amendment XIV privileges or immunities clause?

Again, I don't think any of those arguments are correct but unlike the "no access to abortion is slavery" the article IV, amendment IX and amendment XIV arguments rely on logical, if incorrect, interpretations.

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This article is, for the most part, very silly.

Just kidding. Thanks for writing it. I hope my thoughts below will help you write your next one.

//That’s right: according to Koppelman, the constitutional amendment that enacted Lincoln’s promise to make oppressed Black people “thenceforward and forever free” simultaneously ensured that unborn children would be thenceforward and forever oppressed.//

Fortunately, "unborn children" are not people. They are not conscious, cannot feel pain until at least the 14th week post-fertilization, and don't possess any of the other attributes commonly associated with personhood.

Perhaps thousands of years ao people believed this because they were (unfortunately) scientifically illiterate. That's no fault of heir own, but they were simply incorrect.

//I’ve been there myself, screaming into a silent void even though I’m clearly right. It’s maddening. No one should have to suffer like that.//

Wow. Same!

//Well, he’s right about that: his argument doesn’t rely on the position that the fetus is not a person. In fact, Koppelman’s argument relies on the position that the fetus is a person.//

Koppelman does concede this, but such a concession doesn't appear to be necessary for his argument.

In particular, the service to "another" definition of involuntary servitude doesn't necessarily mean "service to another person". Even if it generally does mean that.

One can serve the state through forced labor. The Sovereign has (usually) never been a "person" under the legal usage of that term. One can also envision someone serving an LLC or Partnership. Indeed, corporations are "people" only by legal fiction, and many corporations are known to hold slaves.

//If the fetus is a juridic person—some kind of “association” of natural persons which collectively exercises rights on their behalf—what can this even mean?//

You are correct. Describing the fetus as a juridic person is absurd. The best escape route in miny mind is to say that you are either being forced to serve the state, or a non-person entity.

Let me take an absurd hypothetical. Say that the state-mandated all men between the ages of 25 and 30 to work for a rock. They need to devote all of their working hours to maintaining this rock, to cleaning it, and to advanced rock scientific research to make it a better rock.

If we took your argument that one can only serve a person. Then you are clearly not serving the rock. Rocks are (hopefully) not people. Yet it also seems clear that you are being forced to serve *someone*. After all, if you refuse the state will send you to jail, maybe even execute you!

//building a hundred-page argument premised on fetal natural personhood and defending it for thirty years without ever really apparently noticing that he’d done that, is perhaps most easily explained by the possibility that the fetus actually is a natural person—and that, at least at a subconscious level, this is obvious to everyone with eyes to see, ears to hear//

Ah. the good old "everyone secretly agrees with me" claim. I think Scott Alexander has a good article on why this is absurd.

Speaking for myself, the notion that a fetus is a person is completely nonsensical.

// Abortions Are Violent Even if Koppelman’s argument is correct on every point from here on out, it would not justify abortion as it is typically practiced in the United States today.//

1. The vast majority of abortions are not done by dismemberment. This is a consistent democrat talking point. You should have an answer.

2. This whole section of your article relies on fetal personhood, which is wrong.

// Even the libertarians are going to put you in jail for murder!//

Can't, no jails, remember? :)

//It is possible to imagine an abortion procedure that looks something like the libertarian dream, where abortion is “merely” a deadly eviction, not a murder. In such a procedure, the fetal “tenant” would be extracted with something like a C-section or induced labor and given some reasonable degree of medical care, even some token amount of futile care.//

This reminds me of (I think) the Merchant of Venice. In order to safely evict the fetus, you need to carve up the mother or give her drugs, both of which are impermissible if not consented to. The mother may only consent to take a pill that destroys the fetus, or surgical D&E.

//Naturally, an important government and medical priority in this world would be to develop technology to push back the frontiers of viability to very early dates, eventually culminating in the old sci-fi fantasy of artificial wombs where unwanted children can gestate safely without inconvenience to their mothers.//

As an empirical matter, I doubt it. Conservatives already have the incentive to do this, but don't, because then they would no longer be able to exploit abortion as a political issue to win votes. The same would be true in this hypothetical world. Leaving the fetus to die would be in the political interests of the elites.

I hope that you are right though!

//The Argument Proves Too Much Your first reaction to the Thirteenth Amendment argument—Argument A especially—might be that it seems to prove too much. (That was John McGinnis’s reaction, as well as Michael Stokes Paulsen’s.)//

The problem with the "proves too much" argument is that it inevitably proves too little.

//However, we live in a society where able-bodied men can be conscripted into the military.//

Governments are created, first and foremost, to defend the people from eternal threats through violence. Conscription for threats abroad and jury duty to threats at home are best seen as sui generis.

//For much of our nation’s history, able-bodied men were also subject to the entire trinoda necessitas. This meant that the State could—and did—force men to leave their homes and livelihoods for some period of time to build roads and bridges, all without pay. In Butler v. Perry, the 1916 case upholding this practice under the Thirteenth Amendment//

One probably needs to argue that Butler and the line of cases it comes from are wrongly decided. While a free state cannot survive without an army or juries, the forced conscription for labor was not necessary, and seems like it was upheld by historical inertia.

//Yet is a person under the trinoda necessitas as free as it is possible for a citizen to be? I’m a citizen, and I’m free, and I am not subject to the road-building draft//

Well, yes. You are equally free to citizens living in your time period. Thankfully advances in technology have obviated the need for conscription.

//It is also possible to imagine an all-volunteer military//

I believe that our current military is voluntary.

//If a man falls overboard, courts have held that a ship captain has a responsibility to stop the ship and attempt rescue, even if the rescue operations and resulting delay will incur enormous (perhaps crippling) expenses//

Yeah. Every example you cite involves someone making a promise, implicit or explicit, that they will do something. No such promise is made to the fetus.

//Koppelman has to commit to this position, because, if he doesn’t, the Thirteenth Amendment argument for abortion rights really only applies to women who conceive children as the result of rape.//

Doubtful. Any woman who unintentionally gets pregnant is covered by this. The notion that someone on birth control consents to a rare failure is simply wrong.

It also doesn't apply, because a fetus is a person, and therefore has no rights even if someone made a promise to it. You can't be held liable for breaking promises to a rock.

//Duties of Parent and Child Only now do we come to the largest difficulty with Koppelman’s broad definition of “involuntary servitude.”//

Again, pointing to the historical carveouts doesn't help you. The relationship between parents and children that has existed for eternity does not estaish general principles.

//This is exactly the same burden laid upon pregnant parents in a polity where abortion is prohibited: parents are bound by law to take minimally decent care of their kids, even if they hate it, even if they’re poor, even it risks some injury//

But a fetus is not a child.

//what if there is no opportunity for adoption? (Perhaps your child is profoundly disabled and nobody wants to adopt him.//

Then the parent can give the Child to the State.

//Koppelman's argument implies that, if you can't adopt your child out, the Thirteenth Amendment to the United States Constitution guarantees you the inalienable right to leave your child alone in the woods to die of exposure.//

I agree that you have the inalienable right to abandon your child if the state fails in its duty to provide for it with your tax money.

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Jan 26Liked by James J. Heaney

Thanks for outlining this interesting legal argument. I'm an IT guy, not a lawyer, but both information technology and law deal with logic and abstractions. That's a long-winded way of saying that I'm something of a legal nerd.

I agree with you in giving Professor Koppelman props in coming up with an originalist argument for abortion as a Constitutional right.

But your refutation can be summed up this way: The original public meaning of the phrase "involuntary servitude" never included, in 1865 or since, pregnancy.

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