Forced Pregnancy Is Involuntary Servitude, Violates the 13th Amendment

abortion-bans-13th-amendment
Protesters at a Stop Abortion Bans Rally in St. Paul, Minnesota. (Creative Commons / Lorie Shaull)

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.

The 13th Amendment to the U.S. Constitution

The draft Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization leaked this month gives America a glimpse into a dystopian future where the Constitution would offer no protection for women’s rights—including abortion rights—because they are not “deeply rooted in the country’s history and traditions.”

Without Roe, 26 states are certain or likely to ban abortion, predicts the Guttmacher Institute. These laws will force women to continue pregnancies against their will.

Abortion bans force pregnant women to endure the dangerous work of pregnancy, labor and childbirth against their will. Abortion bans place pregnant women seeking abortion under state control and require them to perform involuntary labor. This is a violation of the 13th Amendment.

Pregnancy, labor and childbirth are difficult 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 the entire body, affecting the cardiovascular system, kidneys, respiratory system, gastrointestinal system, skin, hormones, liver and metabolism. It increases blood volume by about 50 percent and depletes calcium from the 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 force this labor on a woman, the government is imposing a form of involuntary servitude prohibited by the 13th Amendment.

The injustice and illegality don’t stop there: Abortion bans also violate the 14th 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, abortion bans 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 14th 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. 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 13th and 14th Amendments of the U.S. Constitution.

A version of this article originally appeared under the headline: “Abortion Bans Violate the 13th Amendment’s Prohibition of Involuntary Servitude.”

Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.

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About

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at [email protected] or follow her on Twitter @CarrieNBaker.