Guest post by R Johnston: Fetal personhood and the Thirteenth Amendment

Guest post because I hadn’t thought of it this way (that I recall). Originally a comment on We were here first.

Any good faith reading of the Thirteenth Amendment leads to the conclusion that whatever rights a fetus may or may not have, it does not have any property rights to the uterus in which it resides.  The Thirteenth Amendment explicitly abolishes the practice of granting property rights in a person’s body to anyone or anything other than that person.

I really wish that the legal arguments in favor of abortion had been properly framed.  The right to privacy is entirely the wrong way to look at it. A woman’s uterus is nobody’s property but her own; to argue otherwise is to promote slavery.  It’s easy to see exactly how ridiculous arguments about fetal rights and fetal personhood are once you adopt the belief that women are not slaves.

Appendix: The Thirteenth Amendment:



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.


Congress shall have power to enforce this article by appropriate legislation.

Appendix 2: the document itself.


  1. dmcclean says

    This is a good point.

    The right to privacy reading is also correct, that is clearly a 9th amendment unenumerated right, but this is an argument that even a strict textualist (of the kind who tend to skip the 9th amendment entirely) should have trouble dealing with.

    I would point out that an unfortunate side effect to the adoption of this legal reasoning to the exclusion of the right of privacy concept (adopted alongside the right of privacy concept there is no problem), is that the The Handmaid’s Tale crowd could pass a law banning extramarital sex and get what they really want, which is to punish “sluts”, shoe-horned in through the “except as punishment” clause. There would be a bit of an issue because there would be a period of time before the woman could “have been duly convicted”, but I’m sure they would find some wiggle room there, we do imprison some people awaiting trial and issue all sorts of injunctions pending final judgements on other issues.

    I am by no means endorsing this hypothetical response, and I think the 13th amendment argument is an insightful one that should be made.

  2. R Johnston says

    Ophelia–thanks for the elevation to guest post. You’ve made my day!

    dmcclean @1: I suppose I should clarify that when I say that the right to privacy is the wrong framing for looking at abortion rights I don’t mean that it’s invalid, just that it’s a framing that allows a whole lot anti-abortion arguments to look a lot more appealing than they should. It complicates questions that should be easy to answer. We shouldn’t be having arguments about whether the fetus is a person because whether the fetus is a person doesn’t matter. Person or not it has no right to occupy and control a woman’s body; the Thirteenth Amendment guarantees that no person other than the woman herself has those rights.

    The right to privacy is important and it does have implications on its own for abortion rights, but it doesn’t really mesh well with arguments about bodily autonomy that are, in my opinion, at the heart of why abortion rights are so very important. It should be a secondary tool for examining abortion and related rights.

  3. says

    A pleasure, R. It’s a really good point. Privacy seems a much more shallow kind of right (which I suppose is why it’s unenumerated) compared to the right not to be enslaved.

  4. Pierce R. Butler says

    As I understand it, when Justice Blackmun wrote the majority opinion for Roe v. Wade, he based it mostly on his experience in private law practice representing doctors and clinics.

    Rights of women as such barely showed up at all on 1973 radars.

  5. dmcclean says

    I quite agree.

    My intent was in part to say that the punishment clause is a potentially serious (given the non-serious level at which the opponents of women’s rights are operating) vulnerability to this position. I personally would support an amendment changing section 1 to “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.” But I don’t hold much hope in the foreseeable future for passing such an amendment, especially if it is framed in the press as related to abortion — in distinction to the scenario in which reporting and punditry centers on the impact to “chain gangs”.

    Stronger language in the Universal Declaration of Human Rights (see articles 4, 5, 12, 25(2), 26(2), and 29(2)) could get you closer, but as it is not in itself a treaty it isn’t clearly enforceable in the US. AIUI it’s ammunition for the 9th amendment argument, more than it is something that is law under the supremacy clause, but IANAL.

    We need to win the right to privacy argument too, not only for the Roe holding but also for the holdings in Griswold, Lawrence, Baird, and (to a limited extent, since it was earlier, but used similar reasoning) One Package of Japanese Pessaries, none of whose holdings are reachable from the 13th amendment line of argument.

    My intent is not to be argumentative. I agree with you that “[the right to privacy] should be a secondary tool for examining abortion” but for a lot of what are commonly thought to be the “related rights” you need a tool that can address those questions.

  6. Randolph says

    You might rethink your “pregnancy as involuntary servitude” argument. Just one step further and you’ll lose the settled law requiring fathers to support their children.

    “You mean I have to pay and the judge is ordering me to work? But I wasn’t convicted of anything!”

    Instead I suspect that if your argument ever reaches the Supreme Court it will be dismissed as “remarkable” (that is, ridiculous).

  7. doubtthat says

    I worry about broadening the definition of “involuntary servitude” for one very specific reason: the health insurance mandate. There are already legions of nutters on the right who think the income tax is slavery, the mandate is slavery, basically being forced by law to do anything you don’t want to do = involuntary servitude.

    Pregnancy and abortion really aren’t like anything in the constitution. Largely because the Constitution was written by dudes and amended exclusively by dudes until very recently, and even now, it’s not like a coalition of women could unify and actually force something through. There should be an amendment dealing very specifically with this unique issue, but Republicans.

    So, the challenge, then, is to explain why forced pregnancy qualifies and “involuntary servitude” in a way that doesn’t so broaden the definition of that term that the Supreme Court is enabled to begin nullifying federal laws.

  8. hemlock says

    #6 “You might rethink your “pregnancy as involuntary servitude” argument. Just one step further and you’ll lose the settled law requiring fathers to support their children.”

    Wouldn’t work that way, firstly because a child is a person albeit immature and has accrued rights related to that. Those rights include that the child not be neglected and the parents provide the necessities of life up until they are old enough to be independent. This does mean the parents would spend a proportion of their income on the child or be required to do so for the child’s needs to be met, but this is a very different thing to a person losing all rights and be forced into servitude as in slavery. Also these laws are not gendered, it’s the non-custodial parent that would have to pay this, not just fathers.

    Anyway with this, it’s a correct argument to say you take away rights or create a conflict of rights when you remove rights of medical decision making just by the virtue of the state of the woman’s body at the time. That being said, in some circumstances medical decision making rights can be limited or taken away e.g. if the person cannot make the decision themselves for mental health or other reasons, with children not mature enough where the parents act as their proxy, Pregnancy shouldn’t be a special case though, all people should retain the right to make medical decisions for themselves at all times. A potential person (all going well) just isn’t something that can trump all else.

    Then there is the other complication that in medical situations, if a woman is pregnant and has a medical problem the risks to both parties is considered e.g. a woman develops a renal infection with the treatment being adjusted to cause least harm to the fetus as the normal type of antibiotic can cause deafness. So the situation is that while the mothers health will be the paramount consideration, the fetus is considered in treatment. The flip side is where the fetus is in trouble, and there, the woman has to make a decision to incur risks on themselves. In most cases this isn’t problematic. However, there is that problem with so-called unnecessary intervention in childbirth and refusal to allow treatment. C-sections for example can often in retrospect be defined as unnecessary because the fetus was born in good condition, but the whole idea of timely interventions is to prevent problems not fix them after they occur. This aspect can be challenging if there is an conflict between what doctors deem is in both the mother/fetus interests and what the woman wants, but again, ultimately only the person undergoing medical treatment should have that right to make that decision and shouldn’t be coerced otherwise by the state.

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