The Thirteenth Amendment prohibits Mississippi Abortion Law

The Supreme Court Did Not Discuss This Issue Not Raised by Clinics or U.S.

In the decision on June 24, 2022 in Dodds v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S. ___ (2022), the Supreme Court expressly overruled Roe-Casey and held that there was no constitutional right to an abortion. In doing so, in an Opinion written by Justice Alito and agreed to by four other Justices- Thomas, Gorsuch, Kavanaugh and Barrett, the Court held that since there was no express mention of abortion in the Constitution, and according to them, the opinions by the Court in Roe in 1973 and Casey in 1992, were wrongly decided and were not entitled to precedential effect, meaning that despite the sworn testimony in their confirmation hearings of Gorsuch, Kavanaugh and Barrett, the Roe-Casey opinions were not entitled to stare decisis treatment.

But in so ruling, the Supreme Court did not consider or rule upon the one argument that is the strongest to support continuation of Roe-Casey: The Thirteenth Amendment to the Constitution which not only prohibits slavery but also “involuntary servitude.” The Thirteenth Amendment states,

Section 1.

“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.”

Section 2.

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

The argument under the Thirteenth Amendment as applied to a prohibition by States of abortions, is as follows: forcing a woman carrying an unintended or unwanted pregnancy or one induced by rape or incest or where the mother’s life may be in danger, is involuntary servitude where the State is coercing the woman to carry the baby to term, to go into labor, and deliver the baby, all against the woman’s wishes and intent. That coercion by the State is a form of involuntary servitude expressly prohibited by the Thirteenth Amendment.

Unfortunately, neither the Solicitor General nor the attorneys for the Jackson Women’s Health Organization raised this argument in their written briefs to the Court or in the oral argument, which I listened to using the Court’s new partial openness to the public. For that reason, the Supreme Court did not discuss the issue and certainly did not rule upon it.

Why didn’t the Solicitor General and the attorneys for the Jackson Women’s Health Organization rase this issue? I do not know. But I suspect that those attorneys who were all experienced litigators and appellate advocates and were well versed in the legal issues, were directed by Attorney General Garland not to raise the issue. I do not know for a fact why it was not raised, but I have my speculation.

Supreme Court cases interpreting the Thirteenth Amendment and the Congressional enforcement legislation, authorized by the Thirteenth Amendment, interpret the duties, obligations and prohibitions under the Thirteenth Amendment very broadly.

One of the more recent cases supportive of the argument that the Thirteenth Amendment prohibits a ban on abortions is United States v. Kozminski, 487 U.S. 931 (1988) where the Court ruled 5-4 in an opinion written by Justice Sandra Day O’Connor with the other 4 Justices agreeing to the Judgment, but for different reasons. Justice O’Connor began the interpretation of certain statutes, enacted under the Thirteenth Amendment, by citing the Civil Rights Cases, 109 U.S. 3, 20 (1883): “The Amendment is self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.” It “establishes a constitutional guarantee.” Justice O’Connor then cited some of the cases dealing with forced labor, including Bailey v. Alabama, 219 U.S. 219 (1911), where the Court reasoned that “the State could not avail itself of the sanction of the criminal law to supply the compulsion [to enforce labor] (brackets in original) any more than it could use or authorize physical force. Bailey, supra, at 244.

Justice O’Connor then stated, “our precedents clearly define a Thirteenth Amendment prohibition of involuntary servitude enforced by the use or threatened use of physical or legal coercion.”

Then, Justice Brennan wrote a concurring opinion, joined in by Justice Marshall, which began: “It is common ground among the parties and all the courts and Justices that have interpreted Sec. 1584 (based on the Thirteenth Amendment) that it encompasses, at a minimum, the compulsion of labor via the use or threat of physical or legal coercion.” He then went on “the Court does not dispute that other methods can coerce involuntary labor.”

Justices Stevens and Blackman also concurred in the judgment, stating “the District Court correctly stated, the term “involuntary” means “done contrary to will or without choice’ ‘compulsory’- not subject to control of the will.'“

There are many other Thirteenth Amendment cases favorable to an interpretation that coerced labor (here from pregnancy) is a form of involuntary servitude prohibited by the Thirteenth Amendment. Since the 5-person majority in Dodds was looking for an applicable provision of the Constitution, and Alito claimed they could not find any, but I think even Alito, Thomas, Gorsuch, Kavanaugh and Barrett, and Chief Justice Roberts who concurred, could all agree together with the three dissenters, that the Thirteenth Amendment is actually a distinct and very important and explicit part of the Constitution.

In my view after fifty-one years of law practice, this is a very important argument which will test the sincerity of the Court, if someone raises it. I suggest that the Solicitor General and the attorneys for the Jackson organization raise it with the Court immediately in a Motion for Reconsideration.

If the Court agrees that legally coerced labor and delivery violate the Thirteenth Amendment, they could reimpose the Roe or Casey standards or some other standards to define the limits of the right to be free of a coerced labor and delivery. Roe and Casey may thus be resurrected.