This month, America’s Supreme Court is widely expected to reverse Roe v Wade, the 1972 Supreme Court decision holding that women have a constitutional right to terminate an early pregnancy. A leaked draft of Justice Samuel Alito’s opinion in Dobbs v Jackson, a case in which Roe is directly challenged, has generated understandable concern over the human and social effects of such a ruling. The consequences of losing the ability to interrupt an unwanted pregnancy are profound, and the consequences of being born outside the embrace of family can be equally so.
Alarm over these things is warranted. But American citizens should be equally troubled by the broad implications that the ahistorical constitutional reasoning of Justice Alito’s draft opinion has for the protection of a broad range of personal and familial freedoms.
Justice Alito argues that the right to choose abortion is neither mentioned in America’s constitution nor deeply rooted in America’s history and traditions. When he does so, he speaks with a grain of truth, but he speaks without regard for the country’s post-Civil War history.
The right of reproductive choice is not revealed by a literal reading of the constitution in its original form. Indeed, it is nearly impossible to find any right of personal or family freedom guaranteed by the terms of the original constitution. Importantly, this is explained in part by the founders’ choice to protect slavery: they could not have protected personal and familial freedoms while preserving the rights of some to ownership of the lives and labour of others.
The absence of human-rights protections in the original constitution of 1789 was addressed by the rather swift adoption of a Bill of Rights in 1791. But the Bill of Rights was drafted to constrain only the federal government. It offered no protection against restraints imposed by individual actors (ie, by slaveholders), or by the states (ie, through laws prohibiting enslaved or freed people from learning to read or write or attempting to vote). This deficiency was addressed during Reconstruction, the period after the American civil war during which the nation was reconstituted.
Responding to the oppressive regime of slavery, and its devastating impact on enslaved people’s bodily autonomy, drafters of the Reconstruction amendments placed reproductive and family autonomy squarely within constitutional protection. The constitution was thrice amended. The 13th amendment prohibited slavery or involuntary servitude; the 15th amendment prohibited denial of the vote on grounds of race, colour or previous condition of servitude; and the grand and sweeping 14th amendment conferred nearly universal citizenship, guaranteed citizenship‘s privileges and immunities, and protected the lives, liberty and property of all persons against undue infringement.
In 1873 the Supreme Court’s ruling in the Slaughterhouse Cases interpreted the privileges and immunities of citizenship in an odd and much criticised way. Essentially it determined that the relevant clause in the 14th amendment referred only to unique attributes of national citizenship (such as the right to travel among states or be protected when in federal custody), but not to the full range of citizenship rights. As a result, the discussion of human rights is most prudently framed in litigation as discussion of whether an act of government interferes unduly with life, liberty or property. The right of protection against unwarranted suppression of liberty is therefore ground on which the right of abortion choice is commonly said to stand.
The ripples of overruling Roe v Wade needn’t stop with contraception. The 14th amendment’s protection against unwarranted constraints upon liberty is also the firmest foundation in American jurisprudence for the right of contraceptive choice, the right to choose a marriage partner, the right not to be discriminated against in public accommodations (such as theatres or hotels) and even the right to education and the right to vote.
Interference with a person’s, or a couple’s, reproductive choices undoubtedly constrains their liberty. Is this the kind of liberty that framers of the 14th amendment had in mind? It most certainly is. Those who drafted the Reconstruction amendments aspired to what Abraham Lincoln described as “a new birth of freedom”, and they repeatedly cited the constraints suffered by enslaved people as freedom’s anthesis. When these amendments are considered in this light, they are easily understood to protect certain basic rights: the right to live and labour on chosen terms, to have a political voice, to move about the country freely, to marry, to procreate and parent in chosen ways and to control how one’s body is used.
Do the Reconstruction amendments also protect a right to choose not to procreate—to refuse to bow to another’s claim on one’s progeny? To answer that question, we can look again at the condition of enslavement. As the prices of enslaved people rose in the Americas, it became much more economical to breed free labourers than to purchase additional labour imported directly from Africa. Price was not the only incentive for this form of human breeding. Perceiving a special rebelliousness among men and women brought directly from Africa, many slaveholders thought it safer to multiply existing stock rather than to purchase imported bodies. Moreover, the opportunity to sell excess labour could make this option lucrative.
We have accounts of the sentiments and actions of those who were chosen to be used against their will for breeding (as well as for the sexual satisfaction of the owning caste). We know from the surviving body of slave narratives that some enslaved men vowed never to marry or to father a child for slavery. We know from direct accounts and from the records and reports of physicians that enslaved women used a variety of substances and devices to prevent conception or to induce abortion. Was it their inalienable right to control their bodies in these ways? Slave narratives and interviews with formerly enslaved people also call our attention to instances of infanticide and maternal suicide to forestall an infant’s enslavement.
The first reaction to these peoples’ resolutions of abstinence, and to the desperate and murderous acts of some of them, must be to condemn the conditions that could motivate self-destruction or the discontinuation of one’s familial line. The next reaction might be to think more deeply about the proper limits of the control that individuals and families should have, and the control that state legislative majorities may have, over our bodies and our bloodlines. During slavery black people's bodies were controlled by others and their reproductive autonomy was nonexistent. It is surely fitting—and consistent with the anti-slavery spirit with which the Reconstruction Amendments are imbued—that people under the jurisdiction of the reconstructed United States hold the right to choose when and whether they will procreate.
Peggy Cooper Davis is the Shad Professor of Lawyering and Ethics at New York University.