Abortion Bans Violate the Thirteenth Amendment’s Prohibition of Involuntary Servitude

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

State and local abortion bans now sweeping the country force pregnant people to endure the hard and dangerous work of pregnancy, labor and childbirth against their will. Abortion bans place pregnant people seeking abortion under state control and require them to perform involuntary labor. This is a violation of the Thirteenth Amendment.

Pro-choice protestors a Stop Abortion Bans Rally in St Paul, Minnesota. (Creative Commons / Lorie Shaull)

Seven states have now banned abortion before many people even know they are pregnant. Alabama has banned abortion at all stages of pregnancy.

And local governments are now embarking on similar paths: Five male members of the city council in the East Texas town of Waskom have passed a resolution banning abortion, following a similar resolution in the city of Roswell, New Mexico. 

Pregnancy, labor and childbirth are difficult, risky forms of work. Pregnancy causes nausea, fatigue, tender and swollen breasts, constipation, body aches, dizziness, sleep problems, heartburn and indigestion, hemorrhoids, itching, leg cramps, numb or tingling hands, swelling, urinary frequency or leaking, varicose veins—and many more deeply invasive and painful experiences. 

Pregnancy takes over your entire body, affecting your cardiovascular system, kidneys, respiratory system, gastrointestinal system, skin, hormones, liver and metabolism. It increases your blood volume by about 50 percent and sucks calcium out of your bones, decreasing bone density. Risks of pregnancy include high blood pressure, gestational diabetes, anemia, depression, infection and death.

These risks are particularly acute for women of color and low-income women in the United States, which has the worst rate of maternal deaths in the developed world. Labor and childbirth are extremely painful and bloody experiences, even with pain medications.

To force these experiences on an unwilling person is a form of involuntary servitude.

Even though largely uncompensated in the United States, pregnancy, labor and childbirth are still work. Surrogates receive tens of thousands of dollars for this work. Regardless of compensation or not, the work of gestating and birthing a child is an intimate, invasive, grueling form of labor. When undertaken willingly, childbearing can be a labor of love. But when states like Alabama or Georgia force this labor on a woman, the government is imposing a form of involuntary servitude prohibited by the Thirteen Amendment.

And the injustice and illegality don’t stop there: Abortion bans also violate the Fourteenth Amendment, which requires equal protection of the laws. No law requires a human being to donate their organs, blood or body to another human being. If someone forces another person to donate a kidney, they are committing a crime. No law requires a parent to give their organs or even blood to their child, even if the child desperately needs it. Yet, seven states now have passed laws that force pregnant women to donate their bodies to serve fetuses—a right that born children do not even have. To treat pregnant women so differently than all other people violates the Fourteenth Amendment requirement that the government treat all citizens equally.

Any attempt by the government—or anyone else, for that matter—to force another person to continue a pregnancy is a form of bodily assault. This behavior has surprisingly similar dynamics to domestic violence and sexual assault. The essence of rape is taking control over another person’s body and forcing them to do something with their body that is against their will. Abortion bans do the same: They force pregnant people to do something with their bodies against their will. A comparable scenario would be if the government forced people to donate organs against their will. In both cases, the essence of this compulsion is the denial of bodily integrity and autonomy.  

An example of how abortion restrictions resemble sexual assault is a recent Missouri rule that forced people seeking abortion health care to submit to an invasive and unnecessary pelvic exam. The government requires doctors, against their will and against their patient’s will, to insert their fingers into a woman’s vagina while pressing her abdomen to feel her reproductive organs. This is state-ordered sexual assault. 

The government is also surveilling and imprisoning people against their will because they are pregnant. The Trump administration is tracking the menstrual periods of unaccompanied minors like an abusive boyfriend. Wisconsin arrested Alicia Beltran and detained her for 89 days against her will without a trial because she was pregnant. Abortion opponents, including clinic protesters, use the same tactics as abusers: verbal harassment, threats, intimidation, misinformation, gaslighting, shaming, stalking and physical violence.

Denial of bodily autonomy is the essence of violence against women. Reproductive coercion—whether by an intimate partner, an anti-abortion protester or the government—is a form of violence against women. Women have a right to control what happens to their bodies at all times. Forcing a person to continue a pregnancy is a form of bodily assault. Abortion bans and restrictions violate the fundamental human right to bodily autonomy and liberty guaranteed by the Thirteenth and Fourteenth Amendments of the U.S. Constitution.

About

Carrie N. Baker is Professor and Director of the Program for the Study of Women and Gender at Smith College. Her 2007 book The Women's Movement Against Sexual Harassment won the National Women’s Studies Association Sara A. Whaley Book Prize. Her second book, Fighting the US Youth Sex Trade: Gender, Race and Politics, tells the story of activism against youth involvement in the sex trade in the United States between 1970 and 2015.