Published February 13, 2023
Motherhood isn’t slavery. This ought to be obvious, but after the Dobbs decision overturning Roe v. Wade, the left has pushed a variety of bizarre legal theories as they scramble to ensure that elective abortions continue unabated across the country. They just got a federal judge to consider one of the looniest legal theories — the sort of theory that shouldn’t be heard outside of a mediocre law professor’s late-night conversations with her cats after hitting the wine box a bit too hard — which is that pregnancy is slavery, and therefore the 13th Amendment confers a right to abortion.
Colleen Kollar-Kotelly, a district court judge appointed by Bill Clinton, has ordered briefing on the question of whether, despite the Dobbs decision, there might be a constitutional right to abortion, perhaps conferred by the 13th Amendment. This inquiry is unnecessary to resolve the immediate questions in the case, which is about an alleged conspiracy to block access to an abortion facility. It also ignores the plain text of Dobbs, which states that “the Constitution does not confer a right to abortion.” As my colleague Ed Whelan put it, “This silly order by Judge Kollar-Kotelly is a frolic and detour.”
Lawyers recognize that, judicially, this is going nowhere. But as the legal counterpart to abortion supporters’ rhetoric about “forced birth,” this argument is illuminating. Its efforts to justify abortion reveal a bitter worldview that spitefully rebels against the nature of human existence itself.
The legal reasoning of this theory is that an unwanted pregnancy is, in the words of the 13th Amendment, a form of “slavery or involuntary servitude” because in an unwanted pregnancy, a woman’s body is used by another (that is, the child developing inside her) without her consent. Furthermore, per this argument, consenting to sex is not consenting to pregnancy, even though it is a foreseeable possibility. Consequently, women require a right to abortion in order to escape from the service of an unwanted pregnancy.
As with many insane theories, there is an internal logic to this argument. Pregnancy and childbirth impose burdens and risks on women, regardless of whether a woman welcomes them. The lunacy comes from intentional obliviousness to everything besides this short chain of reasoning.
No one at the time the 13th Amendment was written and ratified thought it included unwanted pregnancy as a form of involuntary servitude. And they were right. It is madness to regard a developing human in the womb as an intrusive stranger with no claim upon a woman. It is crazy to believe that the ordinary, natural processes of human reproduction are the moral and legal equivalent of slavery.
The burdens and dangers of pregnancy are nothing like slavery because they are totally different things. The attempt to equate the two is revealing, however, insofar as it presumes a philosophy where we exist as disconnected, atomized individuals, with no moral claims upon each other except for what we have consented to. This takes liberal political theory to an absurd extreme, suppressing the reality that we are interdependent beings. Freedom and rationality are not our natural state but are only partially obtained for a portion of our life, and then only through the unearned aid of others.
Recognizing this truth about ourselves points us toward the moral truth that the dependence of others confers moral obligations upon us, obligations that are strengthened by the proximity of need and the exclusivity of our ability to meet it. Contrary to the claims of abortion advocates, the mother must provide for the child in her womb precisely because only she, and no one else, can do so.
Abortion supporters regard pregnancy as deeply unfair to women, who endure far more than men when it comes to bearing children, and often when it comes to raising them too. And from the perspective of undifferentiated, autonomous individualism, they are right; it is unfair. But so is life, the universe, and everything. Thus, a quarrel that begins with the reproductive realities of being a woman extends to existence itself, with all of its givenness and contingency, with all of its blessings, burdens, and curses unequally distributed. Life is also filled with relationships and consequent moral obligations and demands that we did not choose.
The claim that an undesired pregnancy is slavery implies that our very existence is a form of slavery or imprisonment. This view is a persistent, if rarely fully articulated, part of our culture, and there are many who are willing to take on the role of a cosmic Karen complaining to the management they doubt exists.
This is a miserable way to live. Someone who regards his or her natural, healthy body as a prison cannot be happy. Judges and scholars who equate motherhood and slavery reveal far more about the hardness of their hearts than they do about the law.
Nathanael Blake, Ph.D. is a Postdoctoral Fellow at the Ethics and Public Policy Center. His primary research interests are American political theory, Christian political thought, and the intersection of natural law and philosophical hermeneutics. His published scholarship has included work on Jean-Jacques Rousseau, Hans-Georg Gadamer, Alasdair MacIntyre, Russell Kirk and J.R.R. Tolkien. He is currently working on a study of Kierkegaard and labor. As a cultural observer and commentator, he is also fascinated at how our secularizing culture develops substitutes for the loss of religious symbols, meaning and order.