An Originalist Argument For Abortion Rights

The constitution organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?

Chief Justice John Marshall, in Marbury v. Madison

Originalism, broadly speaking, is that theory of justice which holds that the intention of the writers of the law is the key to its interpretation; and that, as laws were written to be read, it’s not some obscure mindreading process but rather “what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used.” (Justice O. W. Holmes)

This is the doctrine of interpretation used by Justices Thomas, Kavanaugh, and Gorsuch, and to which they habitually adhere in almost all of their legal opinions. As they represent that portion of the Court which may possibly be swayed by legal argument, it is with respect to their interpretation that any statutory or argumentary replacement for Roe v. Wade ought practicably be drafted.

The 13th Amendment to the U.S. Constitution states as follows:
“Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

Slaughter-House Cases, 83 U.S. 36, 72 (1873) “While the thirteenth article of amendment was intended primarily to abolish African slavery, it equally forbids Mexican peonage or the Chinese coolie trade, when they amount to slavery or involuntary servitude”

And what is enforced pregnancy but involuntary servitude?

To be clear: The slave is owned; involuntary servitude traditionally relies on a contractural obligation. In either condition, one person is forced to serve another against his or her will. The slave or servant cannot leave and, in the event they should attempt to escape, is actually subject to recapture and punishment. Literal chains are unnecessary to propagate the institution of slavery; the force of law is sufficient. And by the Slaughter-House Cases, frequently cited and long considered binding as precedent, the 13th was intended to be widely, not narrowly, applicable.

Consider pregnancy, and carrying that pregnancy to term: Delivering a baby. It can only be described as an act of service, one performed by a woman for the benefit of her offspring. It is at best entered into voluntarily, willingly accepting the short-term hazards to her personal health and a long list of great inconveniences including but not limited to the long-term obligations of motherhood, career limitations, educational interruptions, and so on. That’s when pregnancy is entered into or continued voluntarily, mind you, but when it’s not? When a pregnancy is not wanted, how can continuing that pregnancy by force of law be construed as anything other than involuntary servitude?

The State (and all 50 states) thus is enjoined from forbidding abortion based on the involuntary servitude prohibition in the 13th Amendment. A woman may choose to serve the fetus she carries, but she cannot be forced to do so against her will by either state or federal law. Any hypothetical contrary argument invoking the potential rights of the father would, at most, add a second master to the servitude, and by doubling the burden would in no wise counter it.

At the very least, this guarantees such a right in cases of rape, incest, or undue influence, and it provides a basis for argument in instances of ignorance (the which can always be presumed in underage pregnancy) or unwillingness (which can be argued in most other cases). Permitting abortion to guarantee the safety of the mother is arguable under the general welfare clause in Article 1 Section 8 (as in fact are all other aspects of an abortion-rights law, though the present Court may possibly disagree).

The converse cannot be said to hold, that the government would ever have the right to forcibly terminate the pregnancy of a woman of sound mind. Even if we consider that a fetus is a living human from a certain point in its life, it has rights that must be protected; before that point, of necessity, it is at the least property, and cannot be “taken for public use, without just compensation” (5th Amendment). In what coin could such compensation possibly be justly paid? How can be a loss of tissue be recompensed?

The interests of the State demand continuation of the population under the Militia clause, it’s true, but such an argument is undermined by the Third Amendment; if we were to attempt to ban abortion by going to the extreme of drafting fetuses into the Militia, we can only do so once they reach the age of viability, or else we’re quartering them illegally.

A similar counter-argument may be offered in cases of surrogacy, where the bearing mother has second thoughts and wishes to end both pregnancy and contract. In this case, either there’s a life or tissue, neither of which is the actual property of the surrogate; however, there must certainly come a time where the rights of the mother to life and liberty supersede those of the donors to property regardless of contract, and on occasion the rights of the unborn even at such time as it can be considered reasonably to be a person.

Let us be clear: The question of the potential personhood of the unborn is difficult to determine. Medical science can only help us to a certain degree; it isn’t competent to decide supernatural questions such as the nature of the soul and when or even if it arrives. Law itself exists in precedent and tradition; it is by nature subject to change, and perforce subordinate to the will of the people through its expression in its elected representatives. The one thing that is absolutely certain about the potential personhood of the fetus is a complete absence of consensus. Were this not the case, we wouldn’t find ourselves in our present circumstances.

We can determine that, at a certain point, the fetus is merely tissue that might become a potential person — let us say, for example, before sex, or during but before coitus, or a myriad other conditions; at another point, the only difference between a fetus and a baby is that of geography. We can and should attempt to narrow the definitions, quantifying what we can and determining what absolutes constrain us — but we must always expect that there will be a limit to our understanding.

When an action is taken that has the potential to end the life of another person, it falls to the legal system to determine whether it be a matter of endangerment or attempted homicide, or perhaps to fall somewhere in between — but it is always actionable, always unlawful, even in those cases where the law isn’t strictly enforced. Thus, where there exists doubt, we are constrained to act in defense of the potential person unless the equivalent rights of another person equal or outweigh those of the potentiality.

Thus, by these arguments, it can be seen that in all cases, a fetus has some demands of protection under the law, but in the instance where the mother might be constrained to involuntary servitude and may face indeterminate risks herself by continuing a pregnancy, her rights will always outweigh those of the fetus. Once however those risks become determinable — as when live birth presents similar or even fewer safety risks than abortion — limitations may be imposed by the State as a part of its legitimate duty to regulate the medical profession for the public good (Jacobson v. Massachusetts, 1905). It is even foreseeable that, at some point, once medical technology has advanced to the point where an embryo can be harmlessly extracted and then later implanted, perhaps in an artificial womb, tight constraints on abortion versus extraction might be reasonably considered — but we are a very long way indeed from that point.

It is not our purpose here to answer all questions, nor to craft a reasonable and flexible law codifying for all time the answers to our abortion questions; and it certainly not our intention to create a law which satisfies all or even most parties to the discussion. Rather it falls to us to show a framework within which a law satisfying the majority might be crafted, such that it would be unassailable by Supreme Court challenge before Originalist justices. The preceding would seem to answer that objective.

For the purposes of simplicity, we have in most of this document used the term “fetus” in a general, blanket sense, to indicate an unborn child from the point of implantation and potentially even conception. Gestational biologists would certainly have different terms indicating the stages of development, and any scientifically valid document must defer to the language of the scientists; however, it is the intent here to craft an argument that can be understood both by judges and the average person. We rely on the experts to insert the technical where appropriate and correct us at such time as it becomes meaningful.

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