Dahlia Lithwick, one of the few Slate regulars I don't find to be assholes* (contra Kaus, Saletan, Shafer, Hitchens, etc.), has a new piece up on the Dawn Johnsen's entitled "Obama's OLC nominee discovers the perils of "blogging, advocating, and speeching." To wit:
The diminutive university professor, mother of two, and Methodist Sunday-school teacher speaks in tones just this side of "whispery." And with armies of cousins, aunts, and preteen sons arrayed beyond her today, it's tough to see her as anybody's zealot. Still, Jeff Sessions, R-Ala., accuses her outright of "blogging, advocating, and speeching for the opposite side."
The gentle lady from California (not the Lieberman lover, the other one) feared she would be too left wing. The horror! Of course, see a link to a National Review piece linked there, abortion provides a useful place to tag her as too liberal:
The low point comes when Sen. Arlen Specter, R-Pa., begins to question Johnsen on a position she has allegedly taken, declaring that abortion bans are a violation of the 13th Amendment ban on slavery. Johnsen responds that she was shocked to see this analysis in a piece in the National Review, which pulled a footnote out of a brief written 20 years ago, tore it out of context, then baldly misstated Johnsen's position as concluding that "forced pregnancy" somehow "violates the Thirteenth Amendment, which prohibits slavery."
Whatever she allegedly did, the argument is reasonable. Justice Ginsburg in Gonzales v. Carhart (dissent) noted for four justices:
Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.
Reproductive autonomy is a basic aspect of freedom. In an earlier case, Justice Stevens cited a member of the Reagan Administration:
What a person is, what he wants, the determination of his life plan, of his concept of the good, are the most intimate expressions of self-determination, and, by asserting a person's responsibility for the results of this self-determination, we give substance to the concept of liberty.
C. Fried, Right and Wrong, 146-147 (1978). See also Fried, Correspondence, 6 Phil. & Pub.Aff. 288-289 (1977) (the concept of privacy embodies the "moral fact that a person belongs to himself, and not others nor to society as a whole").
What does "belonging to oneself" mean if not freedom from slavery? Control of reproduction was a major wrong of slavery. In areas where "slavery" and "involuntary servitude" were illegal prior to the 13A, abortion was at times illegal much earlier than it is today. The terms were not originally in so many words thought to cover abortion. But, we apply equal protection to women etc. in ways that would surprise many of the time. Constitutional understandings change.
A full understanding of those terms could quite reasonably apply to forcing women to have children against their will. You cannot force someone to be a doctor or ball player against their will, even if they sign a contract (monetary damages might be possible, but you cannot force the labor). The same applies here, particularly given the specific nature of the issue. As Justice Blackmun noted in his separate opinion in Casey:
By restricting the right to terminate pregnancies, the State conscripts women's bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care. The State does not compensate women for their services; instead, it assumes that they owe this duty as a matter of course.
He used this to show the equal protection issue at hand as did Justice Ginsburg, but it also sounds like a 13A argument too. It is not an either/or proposition, necessarily, because what the 14A does is to add force to the 13A, to make clear that full freedom -- particularly in areas where slavery served as clear evidence as to what the negation of that meant -- must be secured by the state. Still, if forced pregnancy is not a form of "involuntary servitude," what truly is?**
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* Others can just be lame -- the movie review columnist is not an asshole as such but has enough lame reviews not to be worth my time. You know how precious that is. Seriously, Slate has gone downhill. I do find the Today's Papers feature useful to get a quick thumbnail sketch though it has a somewhat limited focus. But, generally, Salon is more read worthy in any consistent way (not just for GG).
** The 13A is special because it applies to private action -- the government cannot uphold privately agreed upon slavery contracts. [OTOH, freedom of the press only applies against the government, not private parties.] This makes sense in this context too. A woman, for example, cannot be forced to have a child against her will to carry out a surrogate contract.