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.
Oh, hey, Legalese! I've been enjoying your newsletters for the past couple of months! (I'm not much of a podcast listener, but I often nod along with the articles.)
I'll try and reply properly to your comment after I'm done with work today.
I think I consider Koppelman's argument more convincing than you do, and I *might* consider the other arguments less convincing.
The other arguments are all, at their hearts, pretty clearly (IMHO) nothing more nor less than "the Constitution guarantees everything I want." Try to tie them to history, or tradition, or *any* kind of anchoring principle, and the Ninth/substantive due process/P&I arguments all pop like soap bubbles, and that's before you even try to interrogate their underpinnings (which always reveal a bunch more problems). With all due respect to readers who take them seriously and have perhaps worked hard on them, I just don't find them even initially persuasive. Perhaps there's some version of a Fourteenth Amendment argument out there that wouldn't have me rolling my eyes by the end of the first sentence. Perhaps I've heard so many bad Fourteenth Amendment arguments that I'm prejudiced even against the good ones. But I generally think they're categorically terrible. (NOTE: Koppelman himself does not think this way. He sees his argument as having certain advantages over the other arguments, but doesn't seem to disagree with at least some of them -- much less dismiss them the way I do. I've set up this contrast, not Koppelman.)
The Thirteenth Amendment argument, on the other hand, seems to me like it's a lot closer to working. The first time I heard it, I had to have a sit-down for a minute because I thought, "Holy shamollee, do we need actually *need* a Human Life Amendment?" It plays off a very common understanding of a very obscure legal term-of-art, "involuntary servitude" (and understanding I shared), and then reinforces that understanding with a whole lot of smart references to precedent. This is all part of his "libertarian" argument, before he even gets into the territory where anything about rape enters his argument. He could stop there and it would still be an argument that passes that first smell test: it's based on text, it doesn't depend on "the Constitution guarantees everything I want" but only guarantees a few specific things, and there's some good precedents to buttress the case. I think it fails, and I like to think I showed why in this article, but it takes some actual elbow grease to say, "Well, hol' up, I'm fairly sure 'involuntary servitude' actually bears a different and more specific meaning, and here are some counter-examples." (Koppelman anticipated and resisted quite a few counter-examples in his original article, too.)
Even the "egalitarian" argument regarding the "badges and incidents" of slavery -- which I suspect we agree is the weaker part of his argument -- still springboards off some pretty interesting history surrounding the original public meaning of the Thirteenth Amendment in a way that will tend to set different flavors of originalist against one another.
I don't think the proposition that property can be raped is particularly controversial, when the property in question is a human being. An 1861 Georgia statute defined rape as "the carnal knowledge of a female, whether slave or free, forcibly and against her will" (according to Peter Bardalgio's Reconstructing the Household, page 68), so the Confederacy itself seems to have been capable of conceptualizing the concept (just not very good at condemning it). Your bagels, of course, are not human beings. Even if it were controversial that human property can be raped, I don't think it would injure Koppelman's argument. All he needs to say to make Arguments B2/B3/B4 work is that a human being under slavery lacked the legal power of sexual consent, while citizens generally have the legal power of sexual consent, so everyone who was a slave but is now a citizen must gain the legal power of sexual consent in order to abolish all slavery's "badges and incidents."
I think the weak points there are firstly the "badges and incidents" theory overall and secondly his attempt to argue that legal access to abortion is on the same footing, badges-and-incidents-wise, as the legal power of sexual consent.
To some extent, there's always going to be some subjectivity in how we rank the various arguments we disagree with. The important thing is that we agree all the arguments for a constitutional right to abortion are, in fact, bad. But hopefully this helps explain why I respect Koppelman's argument more than the others. It is, at least, the only constitutional argument that has ever made me even momentarily sit down and go, "hoo boy, IS there a constitutional right to abortion after all?"
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.
I don't really care about originalism. I'm not going to respond to this section of your article because endless debating the same issue is annoying.
//Secretary of State William Seward—not only adopted Bingham’s limited understanding of the Thirteenth Amendment, but even convinced dubious slave states that it only did what it said: abolished slavery and involuntary servitude, no funny business.//
My understanding is that the "convincing" had less to do with constitutional interpretation and more to do with Generals Grant and Sherman burning down the capitals of the dissenting states.
//Moreover, it strains credulity that the slave states would have so easily adopted the Thirteenth Amendment if they shared Trumbull’s broad understanding of its text, rather than Bingham’s narrow one//
Uh. No. It does not strain credulity. The Slave States would have adopted anything that the Union Boot imposed on them.
//However, I remind you (ad nauseam) that “badges and incidents” does not appear in the Thirteenth Amendment’s text. (Nor does “vestiges and relics,” a phrase Justice Stewart used in Jones.) To justify acting against badges, incidents, vestiges, or relics of slavery, Congress must tie them back to the original meaning of the Thirteenth Amendment’s text. Otherwise, we are no longer doing law, but haruspicy.//
Law is, of course, a social construct. We didn't tie things to the "original" meaning for many decades, yet laws still existed. Indeed exists a lot better than whatever combinations of fascism and neo conservativism the originalist-backing republican party has devolved to.
//most with only a life-of-the-mother exception. The right to an abortion was simply not a privilege or immunity enjoyed by ordinary citizens at all. Therefore, its denial was not a disability of slavery. Abortion prohibition was simply a law, of the ordinary sort, promulgated to promote the common good (in this case, the protection of vulnerable unborn human lives).//
Thankfully, we can now see that fetuses are not alive. The foundation of abortion law thus collapses, and the only remaining justifications for it were those steeped in slavery.
>> 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.
Ha ha, well played. Thank you for reading it and providing your feedback.
>> 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.
I did not argue for the actual personhood of the fetus in this article, because I took it as conceded by the terms of Koppelman's argument (and I see you agree that, at least, Koppelman conceded it). I will not attempt to develop a full argument for actual fetal personhood here, but will offer three small points in their defense:
1. Unborn children are members of the species homo sapiens. They are not members of a different species, nor are they merely constituents of a human organism (like a toenail or gamete). They are living human beings. (I answered objections to this in my 2015 article, "Bill Nye's Big Lie".) According to the consensus around which we have built the modern international community, this is enough: humans have human rights. We do not limit rights based on age, ability, race, nationality, or any other characteristic; the 1860s and the 1940s showed us where that mentality leads.
(It is true that, as Alasdair Macintyre pointed out in his 2021 conference presentation critiquing human dignity, this consensus is hollow and in many ways illusory. But it is also the consensus out of which the Bill of Rights, the Universal Declaration of Human Rights, and the whole framework of human rights was built. It is not easy to reject it and still say you believe in human rights.)
2. If we accept the idea presented by pro-choicers that unborn children are human beings but not "ensouled" or "personified" unless they are exercising some arbitrary capacity common to human adults -- self-awareness, or the ability to feel pain, or moral agency -- then we don't just exclude fetuses from the human community. We also introduce very serious problems for newborn babies (who are so hilariously un-selfaware that they don't understand they have arms, hit themselves with their arms by accident, and get confused then furious at the sensation), for people with various disabilities, for the elderly (especially those suffering from various forms of decline), anyone in a coma, and -- in some careless formulations -- sleeping people. (If Bob murders Alice in cold blood, but Alice is, like an early-pregnancy unborn child, not conscious at the time, did he do anything wrong?)
3. This is semantic, not substantive, but there is no need to put "unborn child" in scare quotes. The OED, Merriam-Webster, and various other dictionaries agree that "child" is the proper word for an unborn creature. The phrase "with child" has meant "preggers" for centuries, and the word itself derives from the Gothic "kilthei" (womb) and inkiltko (pregnant). "Zygote", "embryo", "fetus", and "baby" are colloquially acceptable, but technically refer to specific developmental stages. Only "child" includes them all. So "child" is how English talks about these entities -- unless the word "child" is being deliberately avoided for political reasons.
>> 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.
No one has ever believed that unborn children were self-aware or capable of moral agency. Even the ancients knew how babies worked and could work backwards.
In fact, ancient ignorance about human gestation *supported* the view that there was no human in early pregnancy. Thanks to ignorance, many believed that the elements of generation (semen and menstrual fluid, according to Galen, because sperm and egg were not discovered until quite recently) did not fully unite and become a new human organism until well after the beginning of pregnancy. Hence the widespread view that abortion was not murder until quickening -- they believed there was no new human life there until that point.
As embryology developed in the 18th and especially 19th centuries, civilization gradually realized that, holy cow, the new human life actually starts just a couple days after intercourse. This was shocking and led directly to American states (alongside other nations) recognizing pre-quickening abortions as murder and extending their anti-abortion laws back to the beginning of pregnancy.
So, yes, ignorance of human development did play an important role in abortion laws: it caused us to mistakenly exclude the youngest humans from their protection (because we did not know those humans existed). Fortunately, once our species learned how it gets made, we fixed the laws.
Of course, none of this is here or there when it comes to the 13th Amendment argument. As I concede, the 13th Amendment argument could in theory still work *even if* the fetus is a human person with human rights. And I have only scratched the very surface of the personhood arguments. But you raised the point, so I tried to offer a little something.
>> The Sovereign has (usually) never been a "person" under the legal usage of that term.
I'm curious what led you to think this. The sovereign is a person in Blackstone, and, to my knowledge, all of American law from its inception. (We wouldn't have needed the 11th Amendment otherwise!) Sovereigns enjoy many immunities, which is a whole 'nother ball 'o wax, but they are still *persons*.
>> The best escape route in my mind is to say that you are either being forced to serve the state, or a non-person entity.
For what it's worth, Koppelman considers the former in Forced Labor '90 (p519-521). I don't think it ultimately works, because the State's power to compel labor (even consistent with the 13th Amendment) remains quite broad, capacious enough to include a power to at least *prevent* a specific act of violence and/or medical procedure. You may well be right that this is the best escape route, but I don't think it's as promising as it looks, once everything else I discuss in the article is added in.
As for the latter (a person being held to the service of a "non-person entity"), I don't think this is coherent. If a madman broke into my house and threatened to burn it down if I didn't cook up a steak for him, I would consider myself to be in the madman's power -- not the steak's! Likewise with your rock example.
So, if the fetus is not a person, it seems to me that the only entity we can be said to be serving is the State -- but that avenue does not seem (to me) very promising for our 13th Amendment defense.
>> Ah. the good old "everyone secretly agrees with me" claim. I think Scott Alexander has a good article on why this is absurd.
Well, I do love some Scott Alexander. Are you thinking of "Fetal Attraction: Abortion and the Principle of Charity", or a different SSC article?
If you are thinking of Fetal Attraction, I think it's worth noting that Scott agrees that there are certain circumstances where people *are* signalling in a way that suppresses contrary beliefs, even when those beliefs are intuitively well-grounded. I think Scott is right that, for the most part, people really do consciously believe the things they say they believe -- but I think it's also clearly true that there have been occasions in history where people adopted conscious beliefs because of social constraints that caused them to suppress intuitive doubts. For example, I think that most people in the South really did consciously believe that Blacks were inferior to Whites -- but I also think they were suppressing important and intuitive doubts that would have disproved that. Another example: I think that most people in Medieval France really did consciously believe the Catholic Church was the fullness of truth -- but I also think that they were suppressing important and intuitive doubts that would have led many of them to atheism, had they given themselves the freedom to explore them.
I propose that a similar mechanism is at work in the minds of at least some pro-choicers, and I gently suggest this when evidence of it arises -- not as proof, but (like I said in the article) as an invitation to take a beat and really consider how you (for example) might have accidentally argued for thirty years that fetuses are people without quite realizing it.
>> 1. The vast majority of abortions are not done by dismemberment. This is a consistent democrat talking point. You should have an answer.
I do: the average Democrat on the street is misinformed. Some Democrats are lying. And the smartest Democrats are cleverly redefining "dismemberment" then, like a Jesuit, not disclosing the redefinition. We see this, for example, in the extremely clever move by pro-choicers to redefine the beginning of pregnancy from the time of conception to the time of implantation, allowing them to say (truthfully, according to this definition) that treatments like the copper IUD, which sometimes destroy pre-implantation human zygotes, are not "abortifacient" because "pregnancy" has not yet begun.
The truth, as far as I have been able to determine, is that the great majority of surgical abortion procedures tear the developing human organism into more than one piece. As I said in the article: a D&C does not leave behind a fully intact fetal body, a D&E is straightforward dismemberment, and the vacuum used in an aspiration abortion typically pulls the child into more than one piece.
However: I genuinely could be wrong about this (I found it difficult to locate unbiased sources that dealt with this question directly), and I would genuinely like to be informed if I am wrong. I would correct the article if it contained a factual error.
>> 2. This whole section of your article relies on fetal personhood, which is wrong.
Wrong in your view, but remember that I was debating Koppelman's view, under which fetal personhood is implied! Had I been arguing against you, I would likely have skipped this section.
>> Can't, no jails, remember? :)
Ha!
>> Conscription for threats abroad and jury duty to threats at home are best seen as sui generis.
This seems like a really conclusory statement with literally no basis in American law that I am aware of, and only a very slim basis in non-legal ethical systems of which I am aware. I think you must meet a somewhat higher burden of proof to make this claim.
>> One probably needs to argue that Butler and the line of cases it comes from are wrongly decided.
That does definitely start to get tough for the supporters of the 13th Amendment argument. If they aren't basing it on the original public meaning of the Amendment's text, and they aren't basing it on American case law and the slow accretion of precedent, what *are* they basing the argument on, and how is it related to the 13th Amendment itself?
(This, at bottom, is one of my strongest reasons for being an originalist: for all of originalism's gaps and challenges, I don't see an alternative under which we can even notionally have a rule of law rather than a rule of men.)
>> I believe that our current military is voluntary.
Indeed it is. This sentence was tongue-in-cheek -- perhaps too dryly so.
>> The notion that someone on birth control consents to a rare failure is simply wrong.
On the contrary: anyone who freely engages in sexual intercourse has consented to its actual effects, even if that person is making reasonable attempts to prevent some or all of those effects. Consider liability insurance, and the reason it exists.
>> The relationship between parents and children that has existed for eternity does not estaish general principles.
No, but it establishes a specific parent-child principle. Whether or not the fetus is a person, it is nevertheless certainly a child.
>> 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.
I find that profoundly horrifying!
But admirably consistent!
>> My understanding is that the "convincing" had less to do with constitutional interpretation and more to do with Generals Grant and Sherman burning down the capitals of the dissenting states.
The military defeat of the South helped! But, by this point, the Southern states were acting in their role as members of the union. Undue coercion could have called the validity of the Amendment into question.
(Of course, it *has* been argued for the past century and a half that undue coercion was used during the Reconstruction Amendments, and that this *does* call their validity into question. This is too large an issue to unpack here, but I don't agree with it.)
>> Uh. No. It does not strain credulity. The Slave States would have adopted anything that the Union Boot imposed on them.
But that doesn't track with what actually happened! They let the 13th Amendment go through, and they FOUGHT the 14th Amendment! They showed, in their resistance to the 14th, that they were NOT willing to adopt "anything the Union Boot imposed on them".
>> We didn't tie things to the "original" meaning for many decades, yet laws still existed.
I actually think we did, and that the 20th-century departure from original meaning was the anomaly, not the formal rise of originalism toward the end of that century. But that's a very old argument we're unlikely to make much progress on in a comment section.
>> Thankfully, we can now see that fetuses are not alive. The foundation of abortion law thus collapses, and the only remaining justifications for it were those steeped in slavery.
Now unborn humans are not only not persons, but they're not even *alive*? Either that's a very serious error of biology, or I think that this word should be chosen more carefully.
Anyway, returning to some points I made up top, this gets the history of abortion law backwards: the more we learned, the more we discovered that the unborn child is, in fact, living from a much earlier date than was once believed, which naturally led to the expansion of anti-abortion laws.
Thank you again for your comments. They clearly gave me a bit to chew on, since it took me a full week to say anything in reply. I'm giving you a gift subscription, and you can decide whether you feel more rewarded by accepting it or rejecting it.
PART 3 - AN UPDATE: Turns out I can't give you a gift subscription unless I have your email address. If you (AnonZ) send it to me (james.j.heaney at gmail), I will get a 3-month set up.
This disappoints me, because it would be much more fun to just swoop down and drop a gift subscription like an eagle dropping a grenade. Instead the process apparently requires you to do work, which is lame.
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.
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.
Oh, hey, Legalese! I've been enjoying your newsletters for the past couple of months! (I'm not much of a podcast listener, but I often nod along with the articles.)
I'll try and reply properly to your comment after I'm done with work today.
Alrighty, all done with work, kids are in bed.
I dealt with Amendment IX (and, a tiny little bit, Privileges & Immunities) in footnote 4. I talked about both more in An Obol For Glucksberg: https://decivitate.substack.com/p/an-obol-for-glucksberg-more-q-and?s=w . That doesn't quite answer your question, though.
I think I consider Koppelman's argument more convincing than you do, and I *might* consider the other arguments less convincing.
The other arguments are all, at their hearts, pretty clearly (IMHO) nothing more nor less than "the Constitution guarantees everything I want." Try to tie them to history, or tradition, or *any* kind of anchoring principle, and the Ninth/substantive due process/P&I arguments all pop like soap bubbles, and that's before you even try to interrogate their underpinnings (which always reveal a bunch more problems). With all due respect to readers who take them seriously and have perhaps worked hard on them, I just don't find them even initially persuasive. Perhaps there's some version of a Fourteenth Amendment argument out there that wouldn't have me rolling my eyes by the end of the first sentence. Perhaps I've heard so many bad Fourteenth Amendment arguments that I'm prejudiced even against the good ones. But I generally think they're categorically terrible. (NOTE: Koppelman himself does not think this way. He sees his argument as having certain advantages over the other arguments, but doesn't seem to disagree with at least some of them -- much less dismiss them the way I do. I've set up this contrast, not Koppelman.)
The Thirteenth Amendment argument, on the other hand, seems to me like it's a lot closer to working. The first time I heard it, I had to have a sit-down for a minute because I thought, "Holy shamollee, do we need actually *need* a Human Life Amendment?" It plays off a very common understanding of a very obscure legal term-of-art, "involuntary servitude" (and understanding I shared), and then reinforces that understanding with a whole lot of smart references to precedent. This is all part of his "libertarian" argument, before he even gets into the territory where anything about rape enters his argument. He could stop there and it would still be an argument that passes that first smell test: it's based on text, it doesn't depend on "the Constitution guarantees everything I want" but only guarantees a few specific things, and there's some good precedents to buttress the case. I think it fails, and I like to think I showed why in this article, but it takes some actual elbow grease to say, "Well, hol' up, I'm fairly sure 'involuntary servitude' actually bears a different and more specific meaning, and here are some counter-examples." (Koppelman anticipated and resisted quite a few counter-examples in his original article, too.)
Even the "egalitarian" argument regarding the "badges and incidents" of slavery -- which I suspect we agree is the weaker part of his argument -- still springboards off some pretty interesting history surrounding the original public meaning of the Thirteenth Amendment in a way that will tend to set different flavors of originalist against one another.
I don't think the proposition that property can be raped is particularly controversial, when the property in question is a human being. An 1861 Georgia statute defined rape as "the carnal knowledge of a female, whether slave or free, forcibly and against her will" (according to Peter Bardalgio's Reconstructing the Household, page 68), so the Confederacy itself seems to have been capable of conceptualizing the concept (just not very good at condemning it). Your bagels, of course, are not human beings. Even if it were controversial that human property can be raped, I don't think it would injure Koppelman's argument. All he needs to say to make Arguments B2/B3/B4 work is that a human being under slavery lacked the legal power of sexual consent, while citizens generally have the legal power of sexual consent, so everyone who was a slave but is now a citizen must gain the legal power of sexual consent in order to abolish all slavery's "badges and incidents."
I think the weak points there are firstly the "badges and incidents" theory overall and secondly his attempt to argue that legal access to abortion is on the same footing, badges-and-incidents-wise, as the legal power of sexual consent.
To some extent, there's always going to be some subjectivity in how we rank the various arguments we disagree with. The important thing is that we agree all the arguments for a constitutional right to abortion are, in fact, bad. But hopefully this helps explain why I respect Koppelman's argument more than the others. It is, at least, the only constitutional argument that has ever made me even momentarily sit down and go, "hoo boy, IS there a constitutional right to abortion after all?"
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.
//Servitude in the Early United States//
I don't really care about originalism. I'm not going to respond to this section of your article because endless debating the same issue is annoying.
//Secretary of State William Seward—not only adopted Bingham’s limited understanding of the Thirteenth Amendment, but even convinced dubious slave states that it only did what it said: abolished slavery and involuntary servitude, no funny business.//
My understanding is that the "convincing" had less to do with constitutional interpretation and more to do with Generals Grant and Sherman burning down the capitals of the dissenting states.
//Moreover, it strains credulity that the slave states would have so easily adopted the Thirteenth Amendment if they shared Trumbull’s broad understanding of its text, rather than Bingham’s narrow one//
Uh. No. It does not strain credulity. The Slave States would have adopted anything that the Union Boot imposed on them.
//However, I remind you (ad nauseam) that “badges and incidents” does not appear in the Thirteenth Amendment’s text. (Nor does “vestiges and relics,” a phrase Justice Stewart used in Jones.) To justify acting against badges, incidents, vestiges, or relics of slavery, Congress must tie them back to the original meaning of the Thirteenth Amendment’s text. Otherwise, we are no longer doing law, but haruspicy.//
Law is, of course, a social construct. We didn't tie things to the "original" meaning for many decades, yet laws still existed. Indeed exists a lot better than whatever combinations of fascism and neo conservativism the originalist-backing republican party has devolved to.
//most with only a life-of-the-mother exception. The right to an abortion was simply not a privilege or immunity enjoyed by ordinary citizens at all. Therefore, its denial was not a disability of slavery. Abortion prohibition was simply a law, of the ordinary sort, promulgated to promote the common good (in this case, the protection of vulnerable unborn human lives).//
Thankfully, we can now see that fetuses are not alive. The foundation of abortion law thus collapses, and the only remaining justifications for it were those steeped in slavery.
PART 1 of 2
>> 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.
Ha ha, well played. Thank you for reading it and providing your feedback.
>> 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.
I did not argue for the actual personhood of the fetus in this article, because I took it as conceded by the terms of Koppelman's argument (and I see you agree that, at least, Koppelman conceded it). I will not attempt to develop a full argument for actual fetal personhood here, but will offer three small points in their defense:
1. Unborn children are members of the species homo sapiens. They are not members of a different species, nor are they merely constituents of a human organism (like a toenail or gamete). They are living human beings. (I answered objections to this in my 2015 article, "Bill Nye's Big Lie".) According to the consensus around which we have built the modern international community, this is enough: humans have human rights. We do not limit rights based on age, ability, race, nationality, or any other characteristic; the 1860s and the 1940s showed us where that mentality leads.
(It is true that, as Alasdair Macintyre pointed out in his 2021 conference presentation critiquing human dignity, this consensus is hollow and in many ways illusory. But it is also the consensus out of which the Bill of Rights, the Universal Declaration of Human Rights, and the whole framework of human rights was built. It is not easy to reject it and still say you believe in human rights.)
2. If we accept the idea presented by pro-choicers that unborn children are human beings but not "ensouled" or "personified" unless they are exercising some arbitrary capacity common to human adults -- self-awareness, or the ability to feel pain, or moral agency -- then we don't just exclude fetuses from the human community. We also introduce very serious problems for newborn babies (who are so hilariously un-selfaware that they don't understand they have arms, hit themselves with their arms by accident, and get confused then furious at the sensation), for people with various disabilities, for the elderly (especially those suffering from various forms of decline), anyone in a coma, and -- in some careless formulations -- sleeping people. (If Bob murders Alice in cold blood, but Alice is, like an early-pregnancy unborn child, not conscious at the time, did he do anything wrong?)
3. This is semantic, not substantive, but there is no need to put "unborn child" in scare quotes. The OED, Merriam-Webster, and various other dictionaries agree that "child" is the proper word for an unborn creature. The phrase "with child" has meant "preggers" for centuries, and the word itself derives from the Gothic "kilthei" (womb) and inkiltko (pregnant). "Zygote", "embryo", "fetus", and "baby" are colloquially acceptable, but technically refer to specific developmental stages. Only "child" includes them all. So "child" is how English talks about these entities -- unless the word "child" is being deliberately avoided for political reasons.
>> 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.
No one has ever believed that unborn children were self-aware or capable of moral agency. Even the ancients knew how babies worked and could work backwards.
In fact, ancient ignorance about human gestation *supported* the view that there was no human in early pregnancy. Thanks to ignorance, many believed that the elements of generation (semen and menstrual fluid, according to Galen, because sperm and egg were not discovered until quite recently) did not fully unite and become a new human organism until well after the beginning of pregnancy. Hence the widespread view that abortion was not murder until quickening -- they believed there was no new human life there until that point.
As embryology developed in the 18th and especially 19th centuries, civilization gradually realized that, holy cow, the new human life actually starts just a couple days after intercourse. This was shocking and led directly to American states (alongside other nations) recognizing pre-quickening abortions as murder and extending their anti-abortion laws back to the beginning of pregnancy.
So, yes, ignorance of human development did play an important role in abortion laws: it caused us to mistakenly exclude the youngest humans from their protection (because we did not know those humans existed). Fortunately, once our species learned how it gets made, we fixed the laws.
Of course, none of this is here or there when it comes to the 13th Amendment argument. As I concede, the 13th Amendment argument could in theory still work *even if* the fetus is a human person with human rights. And I have only scratched the very surface of the personhood arguments. But you raised the point, so I tried to offer a little something.
>> The Sovereign has (usually) never been a "person" under the legal usage of that term.
I'm curious what led you to think this. The sovereign is a person in Blackstone, and, to my knowledge, all of American law from its inception. (We wouldn't have needed the 11th Amendment otherwise!) Sovereigns enjoy many immunities, which is a whole 'nother ball 'o wax, but they are still *persons*.
>> The best escape route in my mind is to say that you are either being forced to serve the state, or a non-person entity.
For what it's worth, Koppelman considers the former in Forced Labor '90 (p519-521). I don't think it ultimately works, because the State's power to compel labor (even consistent with the 13th Amendment) remains quite broad, capacious enough to include a power to at least *prevent* a specific act of violence and/or medical procedure. You may well be right that this is the best escape route, but I don't think it's as promising as it looks, once everything else I discuss in the article is added in.
As for the latter (a person being held to the service of a "non-person entity"), I don't think this is coherent. If a madman broke into my house and threatened to burn it down if I didn't cook up a steak for him, I would consider myself to be in the madman's power -- not the steak's! Likewise with your rock example.
So, if the fetus is not a person, it seems to me that the only entity we can be said to be serving is the State -- but that avenue does not seem (to me) very promising for our 13th Amendment defense.
PART 2 of 2:
>> Ah. the good old "everyone secretly agrees with me" claim. I think Scott Alexander has a good article on why this is absurd.
Well, I do love some Scott Alexander. Are you thinking of "Fetal Attraction: Abortion and the Principle of Charity", or a different SSC article?
If you are thinking of Fetal Attraction, I think it's worth noting that Scott agrees that there are certain circumstances where people *are* signalling in a way that suppresses contrary beliefs, even when those beliefs are intuitively well-grounded. I think Scott is right that, for the most part, people really do consciously believe the things they say they believe -- but I think it's also clearly true that there have been occasions in history where people adopted conscious beliefs because of social constraints that caused them to suppress intuitive doubts. For example, I think that most people in the South really did consciously believe that Blacks were inferior to Whites -- but I also think they were suppressing important and intuitive doubts that would have disproved that. Another example: I think that most people in Medieval France really did consciously believe the Catholic Church was the fullness of truth -- but I also think that they were suppressing important and intuitive doubts that would have led many of them to atheism, had they given themselves the freedom to explore them.
I propose that a similar mechanism is at work in the minds of at least some pro-choicers, and I gently suggest this when evidence of it arises -- not as proof, but (like I said in the article) as an invitation to take a beat and really consider how you (for example) might have accidentally argued for thirty years that fetuses are people without quite realizing it.
>> 1. The vast majority of abortions are not done by dismemberment. This is a consistent democrat talking point. You should have an answer.
I do: the average Democrat on the street is misinformed. Some Democrats are lying. And the smartest Democrats are cleverly redefining "dismemberment" then, like a Jesuit, not disclosing the redefinition. We see this, for example, in the extremely clever move by pro-choicers to redefine the beginning of pregnancy from the time of conception to the time of implantation, allowing them to say (truthfully, according to this definition) that treatments like the copper IUD, which sometimes destroy pre-implantation human zygotes, are not "abortifacient" because "pregnancy" has not yet begun.
The truth, as far as I have been able to determine, is that the great majority of surgical abortion procedures tear the developing human organism into more than one piece. As I said in the article: a D&C does not leave behind a fully intact fetal body, a D&E is straightforward dismemberment, and the vacuum used in an aspiration abortion typically pulls the child into more than one piece.
However: I genuinely could be wrong about this (I found it difficult to locate unbiased sources that dealt with this question directly), and I would genuinely like to be informed if I am wrong. I would correct the article if it contained a factual error.
>> 2. This whole section of your article relies on fetal personhood, which is wrong.
Wrong in your view, but remember that I was debating Koppelman's view, under which fetal personhood is implied! Had I been arguing against you, I would likely have skipped this section.
>> Can't, no jails, remember? :)
Ha!
>> Conscription for threats abroad and jury duty to threats at home are best seen as sui generis.
This seems like a really conclusory statement with literally no basis in American law that I am aware of, and only a very slim basis in non-legal ethical systems of which I am aware. I think you must meet a somewhat higher burden of proof to make this claim.
>> One probably needs to argue that Butler and the line of cases it comes from are wrongly decided.
That does definitely start to get tough for the supporters of the 13th Amendment argument. If they aren't basing it on the original public meaning of the Amendment's text, and they aren't basing it on American case law and the slow accretion of precedent, what *are* they basing the argument on, and how is it related to the 13th Amendment itself?
(This, at bottom, is one of my strongest reasons for being an originalist: for all of originalism's gaps and challenges, I don't see an alternative under which we can even notionally have a rule of law rather than a rule of men.)
>> I believe that our current military is voluntary.
Indeed it is. This sentence was tongue-in-cheek -- perhaps too dryly so.
>> The notion that someone on birth control consents to a rare failure is simply wrong.
On the contrary: anyone who freely engages in sexual intercourse has consented to its actual effects, even if that person is making reasonable attempts to prevent some or all of those effects. Consider liability insurance, and the reason it exists.
>> The relationship between parents and children that has existed for eternity does not estaish general principles.
No, but it establishes a specific parent-child principle. Whether or not the fetus is a person, it is nevertheless certainly a child.
>> 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.
I find that profoundly horrifying!
But admirably consistent!
>> My understanding is that the "convincing" had less to do with constitutional interpretation and more to do with Generals Grant and Sherman burning down the capitals of the dissenting states.
The military defeat of the South helped! But, by this point, the Southern states were acting in their role as members of the union. Undue coercion could have called the validity of the Amendment into question.
(Of course, it *has* been argued for the past century and a half that undue coercion was used during the Reconstruction Amendments, and that this *does* call their validity into question. This is too large an issue to unpack here, but I don't agree with it.)
>> Uh. No. It does not strain credulity. The Slave States would have adopted anything that the Union Boot imposed on them.
But that doesn't track with what actually happened! They let the 13th Amendment go through, and they FOUGHT the 14th Amendment! They showed, in their resistance to the 14th, that they were NOT willing to adopt "anything the Union Boot imposed on them".
>> We didn't tie things to the "original" meaning for many decades, yet laws still existed.
I actually think we did, and that the 20th-century departure from original meaning was the anomaly, not the formal rise of originalism toward the end of that century. But that's a very old argument we're unlikely to make much progress on in a comment section.
>> Thankfully, we can now see that fetuses are not alive. The foundation of abortion law thus collapses, and the only remaining justifications for it were those steeped in slavery.
Now unborn humans are not only not persons, but they're not even *alive*? Either that's a very serious error of biology, or I think that this word should be chosen more carefully.
Anyway, returning to some points I made up top, this gets the history of abortion law backwards: the more we learned, the more we discovered that the unborn child is, in fact, living from a much earlier date than was once believed, which naturally led to the expansion of anti-abortion laws.
Thank you again for your comments. They clearly gave me a bit to chew on, since it took me a full week to say anything in reply. I'm giving you a gift subscription, and you can decide whether you feel more rewarded by accepting it or rejecting it.
PART 3 - AN UPDATE: Turns out I can't give you a gift subscription unless I have your email address. If you (AnonZ) send it to me (james.j.heaney at gmail), I will get a 3-month set up.
This disappoints me, because it would be much more fun to just swoop down and drop a gift subscription like an eagle dropping a grenade. Instead the process apparently requires you to do work, which is lame.
Up to you either way.
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.