I have written before about the constant search by progressive pundits for that one weird trick in the law that will, as if by magic, change the rules of the system to deliver them the results they want without the need to persuade voters or defend their arguments under anything recognizable as existing law.
Enter Howard University School of Law professor Lisa Crooms-Robinson, who writes in an NBC news op-ed that advocates of a constitutional right to abortion, having lost the argument under the 14th Amendment, should argue that bans on abortion would violate the 13th Amendment, which banned slavery or involuntary servitude except as punishment for a crime: “We need a new plan, and the 13th Amendment might be the answer.” To start with, of course, this is preposterous: For all the same reasons cited by Justice Samuel Alito’s opinion in Dobbs, nobody in the 1860s thought there was a natural liberty to commit abortion, or that any of the proposed amendments would invalidate the many state bans on abortion in existence at the time. Unsurprisingly, Crooms-Robinson does not even bother to argue otherwise, which should give you some idea of how intellectually serious an effort this is.
Crooms-Robinson admits that the right she asserts is not one defined under the 13th Amendment’s text: “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.” Instead, “protecting Black people’s reproductive health is essential to Black freedom because enslavement denied Black people rights, including those recognized in Roe.” But the “right” recognized in Roe was never a real constitutional right, regardless of race; that was the whole point of Dobbs.
Her argument is that a black woman carrying a pregnancy to term is a “badge and incident” of slavery:
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.
The two logical flaws in this argument should be obvious. One, if an abortion ban was a badge and incident of slavery, why did most of the states impose such bans in 1865, regardless of race and regardless of whether the state was a free state or a slave state? The point of the badges-and-incidents doctrine was to remove the things that marked slaves as slaves and prevented them from exercising the same rights as free white Americans. But the liberty of free white American women did not include the unrestricted power to kill their children in the womb, either. Two, to the extent that enslaved women were forced to carry children — as they often were, although Crooms-Robinson neglects the many enslaved women who had families voluntarily — that was a badge and incident of slavery because the child would be treated as an item of property. Carrying a black child who would be endowed by the law with the rights of a free American was not part of the common experience of slave women.
There is also a fundamental bait-and-switch here. After all, the badges-and-incidents doctrine is specific to the descendants of slaves, as Crooms-Robinson acknowledges: “This plan would have to put Black people at the center. . . . 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.” But then — watch the one weird trick! — “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.” But under that theory, any power granted to Congress under the badges-and-incidents doctrine, which is supposed to justify remedies for historic injustice to specific people, would be constitutionally prohibited from being so tailored. The sorts of things progressives try to squeeze even today into the badges-and-incidents doctrine — racial preferences, reparations — would have to be provided equally to all, rendering them meaningless.
Once upon a time, we had a Supreme Court that would buy this sort of scheme. In Griswold v. Connecticut (1965), the Court said that married couples had a right to use contraception because marriage was a unique institution older than the state itself, then turned around seven years later and said that it was unconstitutional to give this right to married couples and not provide it equally to unmarried couples. But we do not have that kind of dishonest shell-game Court anymore. It will take more than one weird trick to create a federal right to abortion.