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By Alma Adams
160 years ago, the United States fought a Civil War over bodily autonomy: the right to control one’s body, the right to one’s labor, and the right of self-determination. The Confederate States seceded because they wanted to control Black bodies, benefit from the fruits of their labor, and create new property – children – in perpetuity. The Union’s victory and the Reconstruction Amendments to the Constitution settled the constitutional question of slavery, even if the Juneteenth announcement in Galveston failed to settle the matter in practice.
In the wake of last month’s Supreme Court opinion, Black women yet again face a question of bodily autonomy in the context of abortion, while many other women will face it for the first time. The holding in Dobbs v. Jackson Women’s Health Organization gives state governments the power to regulate a woman’s body and the course of her life in ways unprecedented in the 21st century. Though nothing devised by the Court could ever approach the horrors of chattel slavery and the Antebellum South, the Dobbs decision yet again creates two Americas — one patchwork of states where women can control their destinies and their bodies, and one where they cannot.
I do not raise the specter of America’s “peculiar institution” lightly. Dobbs is the most consequential decision of the Court since the Civil Rights era. The decision will force women to carry children to term, rearranging their lives against their will. Women in medical danger and the victims of rape or incest may not have choices in post-Roe states.
In some states, only women with means will be able to buy their life back by traveling to another state to terminate a dangerous pregnancy. With the Dobbs decision, old state laws regulating reproductive rights came back into force; what shouldn’t surprise anyone is many of the most restrictive ones have their legal and theoretical origins in preserving the “property” of slaveowners.
The Dobbs decision may be only the first of many opinions to devolve a constitutional right to the states. Justice Alito’s majority ended the constitutional right to reproductive freedom with the reasoning that the right to abortion is neither “deeply rooted in this Nation’s history and tradition” nor “implicit in the concept of ordered liberty.” By that logic, would rights granted more recently than Roe – for example, LGBTQ rights, or the federal right for women to have a bank account and access to credit – not be deeply rooted in our history?
If Justice Clarence Thomas’ concurrence is to be believed, we may also face a future in which contraceptives are only available in some states; where marriage equality is only recognized in some states; and where LGBTQ people can only live openly in some states. States with peculiar laws about abortion and same-sex relationships, such as Texas, will border progressive states like New Mexico where bodily autonomy continues to be respected.
The decision further polarizes the country by sorting Americans into states based on which rights they choose to grant or take away. If you are a gay man or a woman with a history of complicated pregnancies, which state would you choose? If you are a conservative state government, why worry about 14th Amendment freedoms such as equal protection, due process, and freedom of movement if the Court is inclined to make such issues state questions?
An unfortunate appendix to the Dobbs decision is that while the majority decided that Roe v. Wade and Planned Parenthood v. Casey were incorrectly decided, they did not investigate a legal framework for preserving a woman’s right to control her own body, stating “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
Andrew Koppelman, a law professor at the Northwestern University School of Law, also believes that Roe “is an unpersuasive opinion,” but still believes the right to abortion exists in the 13th Amendment to the Constitution.
The 13th Amendment states, “Neither slavery nor involuntary servitude … shall exist within the United States.” This amendment has been used outside of its original context to empower Congress to legislate against sex trafficking, another question of bodily autonomy, so why would it not prohibit a state from forcing choices upon a woman for nine months? In the Slaughter-House Cases, the Court writes, “Undoubtedly while [Black] slavery alone was in the mind of Congress which proposed the [Thirteenth Amendment], it forbids any other kind of slavery, now or hereafter.”
Koppelman, writing over three decades ago, recognizes the labor inherent in pregnancy. “Women differ from men in that the services they [can perform] include the production of human beings. The [Thirteenth Amendment], however, draws no distinction between the powers of a man’s back and arms and those of a woman’s uterus … indeed, the recent advent of ‘surrogate motherhood’ has shown that women’s reproductive powers are as capable of any others of being transacted for in the marketplace.” The freedom to labor and work requires bodily autonomy.
In his dissent in Webster v. Reproductive Health Services, Justice Blackmun — the author of the opinion of the Court in Roe v. Wade – wrote that the right to have an abortion “has become vital to the full participation of women in the economic and political walks of American life.” I agree.
As a mother and grandmother, I cannot allow our country to go back to a time when we didn’t have the fundamental human right to control our bodies, the right to our labor, and the right of self-determination. We must work in the courts, in Congress, in state legislatures, and in public spaces to make sure that our children and grandchildren enjoy the same freedoms we have enjoyed for the past 49 years.
Rep. Alma Adams grew up in Newark and graduated from West Side High School.
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