Thirteenth Amendment Reflections on Abortion, Surrogacy, and Race Selection


Dov FoxFollow

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This essay was solicited for a symposium on new directions in scholarship about the Thirteenth Amendment. It analyzes controversies over abortion, surrogacy, and race selection through the lens of reproductive slavery.

I argue that abortion bans are vulnerable to Thirteenth Amendment challenge: namely, that criminalizing abortion access subjects women to “involuntary servitude.” Pregnancy and childbirth aren’t as coercive when a woman agrees in advance to carry a child for someone else. Surrogacy may not be voluntary in the meaningful sense that gives its performance moral force—but it's usually willed freely enough to carry constitutional force for Thirteenth Amendment purposes. Finally are reproductive mix-ups in which fertility patients end up with a baby of a different racial background. Negligence suits in these cases evoke the racial division and hierarchy that animate what the U.S. Supreme Court has called the “badges and incidents” of slavery.

I analyze the Thirteenth Amendment implications for each of these three contexts in detail. I conclude with the following reflections: Appeals to reproductive slavery promise to break new ground across these unyielding landscapes. But that analogy can do more bad than good when it's enlisted to resolve hard moral questions by comparison to one of the few practices that almost everyone—even people who rarely see eye-to-eye—can agree is unequivocally evil. The enormity of slavery’s injustice was so plain, so profound, that modern comparisons struggle to escape its absolute wrongs. Imperfect metaphors risk insulting the memory of enslaved person and crowding out prospects for good-faith conversation and practical compromise.

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Cornell Law Review Online, Vol. 104, 2019