Wednesday, June 08, 2022

Abortion, the Thirteenth Amendment, and a (Hypothetical) Conversation with Justice Souter

 by Sherry F. Colb

When I served as a law clerk to Justice Harry A. Blackmun almost thirty years ago, I had the opportunity to meet most of the Justices, and they were all quite likable. One of my favorites was Justice David H. Souter. He was warm, friendly, super-smart, and very kind as well. On many occasions, Justice Souter did exactly what a good person of unquestionable integrity would do. But he and I once had a conversation that I found surprising and somewhat out-of-character. Because Justice Souter is such a mensch, the perspective that he brought to the issue we discussed is likely shared even by many good people today. My goal in this post is to lay out the view, explain its appeal, and then demonstrate why it is wrong.

I clerked the term that followed the Supreme Court's decision in Planned Parenthood v. Casey, a decision that was originally expected to overrule Roe v. Wade but ultimately upheld and applied it instead. (And no, I do not expect that switch to happen again). Justice Souter and I and my co-clerks were walking to lunch and talking about the theoretically soundest basis for grounding a right to abortion, on the theory that substantive Due Process was less than ideal. I said that I thought the Thirteenth Amendment was a much more sensible basis for protecting the right to abortion, and we were off to the races.

Justice Souter said that the Thirteenth Amendment--which prohibits slavery outside of the punishment-for-crime context--seemed inapposite because the entirety of the servitude would be no more than nine months. I was not sure of what to say because this argument struck me as wrong, but I did not have a clear sense of why it struck Justice Souter as right. I have had a chance in the last three decades to think about the conversation that day, and I will offer here a fictional account of what Justice Souter might have been thinking and the responses I would have given if we were still in conversation. I will write it as a dialogue to make it easy to follow along.

DHS: Nine months is not very long. It isn't even a year, just three quarters of a year. Enslaved persons were another individual's or family's property for life. How can you compare the two?

SFC: The Thirteenth Amendment contains no minimum time requirement. It is obviously much worse to be enslaved for life or for seven years than it is to be enslaved for nine months, but any slavery, any involuntary servitude, violates the Thirteenth Amendment.

DHS: Well okay, I suppose if you kidnapped someone and made him work in your fields for nine months against his will and on pain of punishment, you would be violating the Thirteenth Amendment. But pregnancy is different somehow. A woman can be pregnant and also do whatever she wants to do. If you're working in the field, you cannot simultaneously do a different job for pay or find a different field where you would rather work or prevent your "owner" from selling your family to someone else. Pregnancy, however, is consistent with doing whatever you would otherwise want to be doing. In fact, the Pregnancy Discrimination Act (PDA) holds it would be wrong to refuse to hire a pregnant woman or to refuse to promote a pregnant woman. The logical premise is that pregnant women can perform their jobs and fulfill all of their obligations just as well as their non-pregnant counterparts.

SFC: I see what you're saying. In your view, slavery means monopolizing the attention and effort of the enslaved person. Because pregnant women can dedicate themselves to activities and tasks unrelated to the pregnancy, it would be an exaggeration to describe her as engaged in involuntary servitude, even if the pregnancy is unwanted and involuntary. Is that about right?

DHS: Exactly.

SFC: Okay. Well I think maybe you are underestimating the burdens that pregnancy places on a woman. It is true that many pregnant women continue to work at their jobs while pregnant and continue to engage in chosen activities as well. Nonetheless, pregnancy is painful and difficult. Though a zygote/embryo/fetus is relatively small for most of the nine months, the pregnant woman carries around a lot of extra weight in the form of amniotic fluid and the placenta. The placenta is significant because it is a special organ that develops for pregnancy alone, and its job is to take whatever the fetus needs from the mother's body and direct it to the fetus. If a pregnant woman is low in calcium, the placenta will nonetheless siphon calcium from her bloodstream and her bones, if necessary, to give it to the fetus. The pregnant woman will likely suffer back pain and difficulty sleeping as the pregnancy wears on, and she may also develop gestational diabetes (a pregnancy-specific illness) and pre-eclampsia, a pregnancy-related elevation of blood pressure that can threaten the woman's life. Also potentially life-threatening are other conditions that pregnant women can develop, including placenta previa and placental abruption. Many women experience what is euphemistically called "morning sickness" but can in fact be extreme nausea and vomiting that lasts well beyond the first trimester. It is true that a pregnant woman need not actively engage her attentional faculties in the way that a field worker must, but pregnancy makes many women quite sick, and nausea has a way of drawing all of a person's attention. Many people continue to work at their jobs while pregnant, just as many people continue to work at their jobs while suffering from other illnesses, but that fact in no way undermines the point that being pregnant is like having an illness. Some people's experience of an illness is worse than others', but in the case of involuntary pregnancy, the sick person is unable to do anything to cure her illness. Unlike a person suffering from syphilis, for instance, a pregnant woman living in a a regime of abortion prohibition must experience all of her painful, nauseating, and sometimes life-and-health-threatening symptoms without doing anything about it.

I think that maybe, Justice Souter, you are thinking that pregnancy is normal and natural and therefore cannot fairly be called an illness. But the problem with this argument is that we are built to protect ourselves against illnesses EXCEPT when the illness is a pregnancy. Evolutionarily, the individual organism generally is "selfish" in the sense of marshaling all resources to serve the interests of the organism. But part of evolution is reproduction, and that means that when the female of the species is engaged in reproduction--literally in creating a new member of the species out of a cell containing DNA--the female can no longer rely on her body to protect her from sickness. The priority during pregnancy is the creation of the new species member. To give just one example, the best theory of why pregnant women experience nausea is that it protects the fetus from potential pathogens. In Japan, where the population consumes an enormous number of raw fishes (which contain many parasites that could hurt the fetus), pregnant women reportedly experience worse nausea than pregnant women in other parts of the world. The nausea is therefore a feature rather than a bug in pregnancy because it prevents pregnant women from endangering the fetuses inside them. The fact that nature gives rise to this state of affairs does nothing to reduce its harmful impact on pregnant women, just as the fact that the natural course of cancer is to destroy the organism harboring the cancer does nothing to mitigate the profoundly painful and destructive impact of cancer.

DHS: Cancer, Sherry, is not a normal natural process.

SFC: I would have to disagree, Justice Souter. When coroners perform autopsies on people who succumbed to a violent death, they often find tumors growing inside the people. Those tumors might well have eventually killed the patients if a murderer had not done so. Humans carry around cancer in much the same way as they carry around zygotes/embryos/fetuses, and having cancer is not a departure from ordinary human experience. What distinguishes cancer from pregnancy is that the Supreme Court would never consider prohibiting cancer sufferers from taking steps to either remove or mitigate the impact of their cancers, let alone identifying the targets of such a law in a manner that leaves one sex completely at the mercy of their illness while the other sex (or sexes) can address their illness to the best of their ability. Imagine that California passed a law that said that anyone suffering from testicular cancer must not have a testicle removed (a standard treatment) and must not take any medications that would affect the patient's sperm count. Let us assume that the point of the legislation is to ensure maximum fertility in everyone who happens to have testicles (and who suffers from testicular cancer). Wouldn't the Supreme Court find a way to strike down California's law?

DHS: Yes, that would be sex discrimination against men because men have testicles and women don't. Also, there is no real countervailing interest in your example. In the case of pregnancy, by contrast, there is a potential baby. Don't you think protecting a potential baby is a more logical objective than protecting a cancer-ridden testicle?

SFC: So first, the argument that you made about equal protection will not fly. Under the questionable precedent in Geduldig v. Aiello, discriminating against pregnancy is not sex discrimination because there are nonpregnant men and nonpregnant women. Under the same ridiculous logic, discriminating against people with testicular cancer is not sex discrimination because there are men without testicular cancer and there are women without testicular cancer. Accordingly, my example avoids a charge of sex discrimination.

As for the potential baby versus the cancer-ridden testicle, I think you may be getting ahead of yourself. You are imputing the value of an actual baby to mere raw materials that the woman's body--if forced to do so by the law--will transform into a baby. By the same token, the man with testicular cancer probably has some viable sperm cells in his diseased testicle. I could call those sperm cells "potential babies" with as much conviction as the pro-involuntary-pregnancy crowd brings to its mischaracterization of zygotes, but no sensible definition of "baby"--one that reflects empirical reality rather than religious conviction--would include either a sperm cell (or many sperm cells) or a zygote. To say that there is already even a potential baby in the woman before she has begun the arduous and literally sickening process of pregnancy requires a leap of the imagination, not neutral observation.

I think maybe you still don't fully accept the degree to which pregnancy poses a threat to a woman's health. Would it help for me to point out that according to a study from the University of Colorado (Boulder), a nationwide abortion ban would increase the number of nationwide maternal deaths (due to pregnancy and birth) by 21% and would increase the number of deaths among Black women by 33%. Abortion thus prevents women from dying. Forcing women to take this potentially life-preserving measure for themselves is reproductive servitude.

One last point I would make is that when abortion is illegal, we are likely to see women suffering the consequences for more than just the duration of one pregnancy. Imagine a woman who suffers a sexual assault on more than one occasion and winds up pregnant each time. For her, the duration of involuntary reproductive servitude is not nine but eighteen months or perhaps twenty-seven months. How long must a woman endure the internal assaults of an unwanted pregnancy before it counts as servitude for Thirteenth Amendment purposes?

DHS: I can see you're very passionate about this issue. I will give it some more thought. Recall that I was part of the majority in Casey that voted to reaffirm Roe.

SFC: I do remember that, and I am far less concerned about the doctrinal basis for recognizing the right to abortion than I am about the need for a right against involuntary pregnancy, whatever the constitutional hook. I am just worried for the future. What if you leave and Justice O'Connor leaves and then Justice Kennedy too? God only knows what your "replacements" will do.

DHS: Don't worry about that. I have no immediate plans of leaving, and Sandra and Tony will stick around too. You can write about the Thirteenth Amendment even as the Due Process Clause takes care of things for the foreseeable future. Our exchange is purely theoretical at this point and for years to come.

SFC: From your mouth to God's ears. Stay well, Justice Souter.

DHS: You too, Sherry, and be sure to send me whatever you write about this conversation!