Abortions rights activists need a new Supreme Court strategy, based on the 13th Amendment
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In its decision in Dobbs v. Jackson Women’s Health Organization, the Supreme Court made clear that its new majority rejects the interpretation of the right to privacy in the U.S. Constitution that made Roe v. Wade and a host of other Supreme Court precedents possible. In permitting Mississippi’s ban on most abortions after 15 weeks, the majority in Dobbs declared the ground on which the right to privacy stands to be sand — shifting and unsound.

What poor women — especially poor Black women in Mississippi — have known since 1980, when the court upheld the Hyde Amendment’s restrictions on using federal funds for abortions for those poor enough to qualify for Medicaid, is now the reality for everyone: The Constitution does not guarantee the right to choose nor access to abortion as part of comprehensive reproductive health care.       

A law protecting Black people’s reproductive health is essential to Black freedom because enslavement denied Black people rights, including those recognized in Roe.

When an early draft of Dobbs exposed what was coming, Democratic members of Congress tried to change that reality by resurrecting the thrice-stalled Women’s Health Protection Act of 2021. The proposal seeks to codify two basic things. First, Roe’s essential holding that pregnancies can be terminated before the fetus is viable. Second, the test adopted in Planned Parenthood of Southeastern Pennsylvania v. Casey, a 1992 challenge to Roe, which prohibits states from unduly burdening an individual’s ability to secure a previability abortion.

The bill is breathtaking, with gender-inclusive language, intersectional and reproductive justice framing and references to international human rights norms, and it makes access to abortion services a matter of women’s equality. President Joe Biden announced on Thursday that he would support temporarily removing the filibuster’s 60-vote threshold in the Senate to get legislation protecting abortion passed.

The act finds that Congress has authority to legislate in this way in the commerce clause of the Constitution, as well as in the 14th Amendment. Dobbs, however, rejects the legitimacy of the latter, rendering this a legal dead end. And while the commerce clause was not directly at issue in Dobbs, the reasoning in both the majority opinion and Justice Clarence Thomas’ concurrence foretell that the Supreme Court would probably strike down the law if challenged, which anti-abortion rights advocates would be sure to do. 

The simple fact is that, even if the proposed law could overcome a Senate filibuster to be passed by both chambers of Congress (which it currently can’t), Dobbs means that a majority of the justices would likely strike it down as unconstitutional based on the belief that states, not the federal government, have the constitutional authority to enact abortion laws in the interest of protecting public health, safety and welfare, notwithstanding the commerce clause. 

Moreover, although Congress’ authority to regulate interstate commerce per the commerce clause began to be interpreted quite broadly 80 years ago, the court’s current conservative majority is likely to find this jurisprudence as unmoored from the Constitution’s text as it did Roe’s privacy and substantive due process claims. Since Dobbs announces new criteria to determine if precedent should stand or fall — seemingly based more on the quality of the court’s prior reasoning than on the longevity of the rule — the current court, if given the chance, is likely to curb Congress’ power to regulate intrastate matters that substantially affect the interstate commerce over which Congress’ authority is complete and supreme. 

This outcome, which a legal challenge to the women’s health act might give rise to, would imperil federal statutes such as Title II of the Civil Rights Act of 1964. That legislation prohibits racial discrimination in privately owned places like restaurants, movie theaters and amusement parks.      

Those who support the women’s health act have apparently forgotten that 22 years ago, a 5-4 majority in United States v. Morrison struck down the Violence Against Women Act’s civil remedy provision for victims of gender-based violence because they deemed it to exceed the scope of the commerce clause. Writing for the majority, then-Chief Justice William Rehnquist concluded that the challenged provision ignored the “distinction between what is truly national and what is truly local,” in this case police powers. 

Although Thomas was part of the Morrison majority, he wrote a concurring opinion urging his colleagues to jettison the court’s “existing Commerce Clause jurisprudence” and adopt “a standard more consistent with the original understanding.” Failure to do this, Thomas warned, would allow Congress to continue to “appropriat[e] state police powers under the guise of regulating commerce.”

Introducing the health protection act without taking seriously how the current court’s majority is likely to respond is a path that is ultimately more performative than substantive. Rather than comb the Constitution for an express textual basis for the rights Roe protected, members of Congress have chosen to resurrect an analysis that, more than 20 years ago, proved unable to protect women.  

We need a new plan, and the 13th Amendment might be the answer. To satisfy the most ardent originalists who demand some textual basis for both individual rights and congressional authority to legislate, this plan would have to put Black people at the center of their legislative efforts in ways that Roe’s original privacy-based right did not.

Since the court decided Slaughter-House Cases in 1873, it has been accepted that the original intent of the framers of the 13th Amendment was to benefit those who were formerly enslaved. The 13th Amendment not only establishes declaratory freedom but also grants Congress all the power it needs to enact legislation that undoes slavery, as well as its “badges and incidents,” as the court has put it. Although neither the court nor Congress has set forth an exhaustive list of those badges and incidents, in 1968, the court found Congress has the authority to enact legislation aimed at alleviating the institution’s “burdens and disabilities.”  

Denying the rights of reproductive health and choice, bodily integrity and personal autonomy was essential to U.S. slavery, which recognized enslavers’ complete dominion over the people they enslaved. U.S. slavery also forced enslaved women to reproduce, which fueled the domestic slave trade after the official prohibition on the importation of enslaved people into the U.S. in 1808.

With the power of the 13th Amendment, Congress can enact reasonable laws that protect these rights today. Just as slavery branded all Blacks with slavery’s “badges and incidents,” regardless of status, Blackness rather than any other aspect of identity would trigger rights protected by any law enacted by Congress using its enforcement power under the amendment today. The 14th Amendment’s equal protection guarantee, meanwhile, would allow non-Black people to assert their right to enjoy the same rights the 13th Amendment grants to Black people as a matter of racial equality.  

To be clear, this is not a claim that forced pregnancy, which occurs when abortion is not an option, and the absence of the full spectrum of other reproductive justice rights is analogous to slavery. Nor is it a plea for equality regardless of sex or gender. Rather, it is a direct claim that a law protecting Black people’s reproductive health is essential to Black freedom because enslavement denied Black people rights, including those recognized in Roe. 

Protecting these rights would begin to address slavery’s legacy and a modern-day system that continues to keep Black people in Mississippi and elsewhere unfree in many ways. If Congress is to act, then let it act radically to finish what it started more than 150 years ago.

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