Roe v Wade and the 13th Amendment

It's true that Roe v Wade needs some overhauling. It did not go nearly far enough in asserting a woman's right to dominion over her own body and over the next twenty or more years of her life.

While all the reasons the various Justices cited in decisions from Eisenstadt v Baird , Griswold v Connecticut, and Roe v Wade for creating a "zone of privacy" emanating from the 5th, 9th and 14th Amendments, a zone that includes the right of privacy as to "the decision whether to bear or beget a child" are valid enough, there is a still better rationale for more severely limiting the state and federal governement's ability to infringe on women's rights of contraception and abortion.

That better rationale is the 13th Ammendment which says "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convictecd, shall exist within the United States or any place subject to their jurisdiction."

In case anyone needs a definition of "slave" or "slavery", below are a few definitions from the American Heritage Dictionary.

• slave n.
• 1. One bound in servitude as the property of a person or household.
• 2. One who is abjectly subservient to a specified person or influence.
• 3. One who works extremely hard.
• 4. A machine or component controlled by another machine or component
.
• slavery n.,
• 1. The state of one bound in servitude as the property of a slaveholder or household.
• 2.a. The practice of owning slaves. b. A mode of production in which slaves constitute the principal work force.
• 3. The condition of being subject or addicted to a specified influence.
• 4. A condition of hard work and subjection.

Now involunary pregnancy is most assuredly a short term slavery : one has a parisite living inside one's body, draining one's bodily resources, and threatening one's continued health and even one's life. Involuntary parenthood, the arduous task of rearing a child one does not want, is long term slavery : about twenty years of laboring to provide for the support and education of that child.

The task of rearing a wanted child is hard enough and many voluntary parents find it to be more than they had imagined and perhaps more than they can accomplish. It's hard enough for two parents to handle, still harder for the divorced mother whose departing mate may choose to contribute little to the task. (Need I add that it is a task that the accidental and involuntary father usually is able to evade altogether : he does not live with the child and does not participate in the hard work of child care, and all too often he is successful in totally evading the duty of financial support or in providing only a small fraction of half of the actual total costs.)

We must also consider that one of the purposes of those who attempt to deny or abridge to women the right to choose to employ contraception or abortion as means of avoiding involunary pregnancy and involuntary parenthood is the desire of some men and the desire of adherencts of fundamentalist religions to ensure that women generally remain subservient to men and , especially , that wives remain subservient to their husbands. That fits the definitions of slave and slavery quite well.

Denied this self-determination, a woman is at serious disadvantage for supporting herself independently through paid work sufficient to support herself decently. If she is saddled with support for one or more unwanted children, her economic disadvantage is multiplied. Thus it becomes harder for her to remain unmarried or to escape from a marriage in which she is poorly treated. To be forced for economic survival to marry or remain married is at best prostitution and at worst slavery.

If the denial of reproductive choice becomes widespread, we will again hear discrimination against women's admission to higher education and to training programs for well paid jobs and to advancement through job promotion justified on the grounds that "she's only going to get married and start having kids" and "we all know that mothers have to take so much time off from work that they can't perform as well as men". I heard those rationales repeatedly while in graduate school (a few years pre-Roe v Wade) applied against even those women who were twice as good and did work twice as hard as their male competitors.

Another purpose of the opponents of contraception and abortion is that of men who desire to have offspring (for various reasons, ranging from the admirable to the abominable) but who have noticed the inconvenient biological truth that they lack wombs and thus must pursuade or coerce some woman into supplying that essential element and the work and labor to carry out gestation. If coercion is needed, then the result is certainly slavery. (Now it's equally true that a woman needs some participation from a male to become pregnant, but his activity in this regard is so brief and so easy that obtaining it by simple pursuasion is almost always possible. Most men find it difficult to just say "No" to a sexual offer. Moreover there are sperm banks so personal male participation is not needed.) It might also be noticed that most males show little desire to do much of the actual work of raising any offspring, especially the messy parts like changing diapers, so an added purpose is to convince or coerce someone else to do these disagreeable parts.

As to the purported purpose of "protecting potential human life", the hypocrisy of this claim is shown by the refusal of the overwhelming majority of its adherents to provide any adequate level of support for that life once it has actually been born. Welfare support for the unwanted offspring of low income women is far below that needed for a decent life. Nor is there adequate enforcement of the duty of the offspring's father to support it. Males however should take note that taxpayers are getting pretty tired of supporting their abandoned or unacknowledged offspring and males should note that DNA technology makes it easy to prove paternity beyond any reasonable doubt. So we may see a movement towards enforcement of paternal financial responsibility.

As for the supposed value of "human potential" being so much higher than that of any other clump of living cells, any primate biologist would be quick to point out that in every respect of sentience and cognitive abilities that were once supposed to be uniquely human, the newborn human infant is markedly inferior to an adult or teen chimpanzee or bonobo. I don't hear the defenders of "potential human life" showing any concern over the rights of chimpanzees and bonobo to survive. (The same arguements may well also apply to orangutangs and gorillas, possibly also to dolphins and whales. And any dog or cat has more sentience and cognition than a fertilized ovum or zygote has, yet the former are killed by the millions every year while the latter is supposed to be sacred.)

The truth is that "human potential" can only be realized AFTER birth and AFTER years of parental effort to rear the neonatal to the stage of cognition, social development, and self-responsibility that exceeds that of chimp or bonobo. That is at least age 3 years. Please note that I am NOT advocating raising the age of permissible parental choice about an offspring's survival to three years, although there certainly have been some high civilizations (for example, classic Greek, classic Roman) who considered it the parent's or male parent's right to refuse to rear a newborn. I think that actual birth is the most logical dividing line. It's the least moveable line, as well as being the time at which someone else could take over parental duties. But we should acknowledge that a newborn will not survive and will not become truely human without many years of parental care, whether by the biological parent(s) or by other adults.

This view also treats the value of the woman carrying that "potential" as being utterly negligible and not worthy of protection If "potential human life" is worth protecting, then actual adult human life should be worth a far higher level of protection. That is true even if the actual adult human life involved is that of a woman, unless of course you really believe that a woman's value is sub-human.

Therefore, under the 13th Ammendment, the states and federal governments should be absolutely barred from putting ANY obstacles in the way of contraception or abortion save only for those absolutely essential regulations needed to make any medical drugs or surgical procedures reasonably safe and effective. The standard of permissible regulation should be limited to that level and kind of regulation that would be applicable to any other drug or procedure. The safety and efficacy of course may vary with the particular procedure and with the stage of pregnancy at which it is applied, just as the safety and efficacy of any other medical drug or procedure varies with its nature, the skill and experience of the medical practitioner performing or supervising it and with the medical condition of the patient to whom it is applied. Finally, given that no medical treatment is totally safe, the final judgement as to whether or not to accept known risks must be that of the patient (pregnant woman) who weighs those risks against the benefits to be gained, just as any other patient weights the likely risks and benefits of any other medical procedure.

We already know that currently a medically supervised childbirth is about 8 times more dangerous to maternal health and life than is a medically supervised abortion. Less publicised is the fact that the risks of being murdered by the pregnant woman's male spouse or by male lover is about 8 times the risk of dying in childbirth.

As to the need to remove all obstacles to contraception, let me point out the brain-dead-simple obvious : the only reason an abortion is ever sought is because an unwanted and/or accidental pregnancy has occurred. Usually that pregnancy was unwanted from the very beginning, but , much less frequently, a pregnancy originally intended and wanted has become dangerous to the health or even the life of the pregnant woman or has been discovered to be a fetus afflicted with a serious disability or life limiting disease.

Anyone who really honestly wants to reduce the incidence of abortion should be doing everything within his or her power to make contraceptive knowledge and contraceptive drugs and devices universally available. That includes making such knowledge, as accurate as current scientific knowledge allows, available and diligently taught (in schools and at home) to children beginning several years before the onset of puberty. Young people need to know how to prevent pregnancy and STDs long before they experience the urges that could lead them to engage in activities that put them at risk for these.

Just saying "abstinence" does not do it for 99.999 % of the population ; it doesn't even seem to work very well for those who as adults took a religious oath of abstinence. And for a non-abstinent adult to preach abstinece is just hypocrisy. And children and teens have as good a nose for adult hypocrisy as dogs have for just about anything that stinks. (There is of course one appropriate audience for abstinence preachments : perhaps an Abstinence course should be required for all who run for state and national elective offices, holders of which in both parties have lately racked up a very poor record for sexual indiscretions. Or maybe I should say "male holders of which" as sex scandals among female office holders seem to be quite rare, thus either the women aren't doing these things or they are a hell of a lot more discrete and aren't getting caught.)

Otherwise, we shall have to implement Shakespeare's suggestion for achieving sexual chastity among the unmarried youth , Act II Scene I of Measure for Measure : "does your worship mean to geld and spay all the youth of the city ?"

• Contraception and Abortion in 19th Century America, by Janet Farrell Brodie
  Contraception and abortion were widely practiced and completely legal in the American Colonies, at the time of the Revolution, and onwards until the mid-1800s, when the male MDs emerging from new medical schools sought to drive other medical practitioners out of business. Public lectures and books or pamphlets on the subject were widespread and respectable. So to any Constitutional "Originalists" , if you want to know what the Framers of the Constitution thought about abortion, they thought it was perfectly legal and often prudent.


• Before Roe v Wade, Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling, by Linda Greenhouse and Reva B Siegel.
  I had thought my 13th Ammendment idea was fairly original. I was wrong. This idea was argued with considerable cogency and detail for some years prior to Roe and in at least some of the Amicus Curiae briefs submitted in Roe. Likewise some of the Amicus briefs argues that abortion laws violated the 8th Ammendment's guarantee against the impositon of cruel and unusual punishment by imposing punishments of mental anguish, physical pain and risk of death , and the punishment of raising an unwanted child.

It's fitting that I publish this update on 11/11/11, Veteran's Day, on behalf of all of us who are veterans of the "abortion wars" that led up to Roe v Wade and who continue to fight the resurgent abortion wars that rage today. We remember what it was like before Roe v Wade.