From Reconstruction to Reproductive Justice: An Interview with Professor Widney Brown on the Role of the Thirteenth Amendment in (Re)securing Abortion Rights

Content Warning: This article contains sensitive themes of abuse, sexual assault, and violence that may be distressing to some readers. 

“I have borne thirteen children, and seen most all sold off to slavery, and when I cried out with my mother’s grief, none but Jesus heard me! And ain’t I a woman?”

Sojourner Truth

Today marks one year since the U.S. Supreme Court decided Dobbs v. Jackson Women’s Health Organization, which reversed both Roe v. Wade and Planned Parenthood v. Casey and effectively overturned the constitutional right to an abortion. Human Rights Watch has reported that, following the ruling, an estimated twenty-two million American women and girls of reproductive age now live in states where abortion access is “heavily restricted, and often totally inaccessible.” While for many Dobbs felt like the final nail in the constitutional coffin of abortion rights, earlier this year, U.S. District Judge Colleen Kollar-Kotelly pointedly observed that the decision only precludes a Fourteenth Amendment argument for abortion. According to Judge Kollar-Kotelly and others, a more robust argument in abortion’s defense may be found in constitutional waters previously uncharted to activists and scholars alike: the Thirteenth Amendment. 

To understand the protections guaranteed by the Thirteenth Amendment and how they might be used to (re)secure reproductive rights, we interviewed Professor Widney Brown, a human rights lawyer, advocate, and activist who teaches as a professor of Human Rights at Barnard College. In our interview, Professor Brown asserted that the history of slavery in America is in fact deeply intertwined with the control of enslaved women’s reproductive lives, and it is in this historical relationship that pro-choice activists may find palatable legal grounds for a Thirteenth Amendment argument for reproductive rights. However, she suggests that the success of any defense of abortion founded on the Thirteenth Amendment will depend on the extent to which sexual violence and the control of women’s reproductive rights can be considered historically inherent to the practice of slavery. This caveat is perhaps unsurprising, considering that many of the arguments challenging the constitutional validity of abortion, including Justice Alito’s in the Dobbs opinion, rely on the assumption that the practice lacks enough historical grounding to justify its enshrinement in law. Professor Brown disagrees with this point, suggesting its “total absurdity” when checked against the historical record. Instead, she argues that woven within the American historical tapestry is a winning argument in abortion’s favor, though not in the places one would expect. 

Over the course of the 17th and 18th centuries, the institution of slavery in America became increasingly commodified, racialized, and, crucially, inherited. In 1662, Virginia officially required that the children of enslaved people also be consigned to slavery for life, in effect codifying the jurisdiction of slaveholders over both enslaved people and their reproduction. During this initial period, however, enslavers were largely unwilling to sacrifice the physical capabilities of an enslaved woman for the potential labor of her future child, especially when that labor could already be easily supplied by the transatlantic slave trade. Professor Brown notes that this “utter indifference” to the health of enslaved pregnant women often resulted in them being expected to meet hard labor standards at the expense of their fetus and a safe pregnancy. 

According to Professor Brown, it is this inextricable link between the restriction of enslaved peoples’ reproductive choice and slavery as an institution that clarifies the role of the Thirteenth Amendment in protecting abortion. Because children born of an enslaved mother were legally enslaved regardless of who their fathers were, controlling who enslaved women reproduced with – and how often – allowed enslavers to ensure that slavery as an industry would not die with the passage of the 1808 prohibition. After the international slave trade was outlawed in America in 1808, controlling enslaved peoples’ reproductive lives became essential to the domestic proliferation of slavery. Without a near-constant stream of imported enslaved people, the only way to replenish lost labor was to encourage the growth of domestic enslaved populations. Occasionally, enslavers did this by forcing highly productive enslaved people to copulate, and in other cases, by raping enslaved women to the same effect. All of these practices, from forced abortions to forced pregnancy, were well-known facets of slavery to Americans then and now; in fact, the latter was in large part the reason why domestic enslaved populations ballooned as they did in the antebellum period. These practices are well-documented in slave records, reinforcing the notion that there was a systemic effort to control the reproductive lives of enslaved women.

Given that this kind of unrestricted sexual access and total reproductive control were assumed to be inherent to the practice of slavery, a Thirteenth Amendment argument for abortion rights predicates any ban on slavery with a ban on constraining reproductive choice. With historical context and this reasoning in hand, it appears that not only is abortion deeply rooted in American history, but the future enforcement of the Thirteenth Amendment will depend upon the protection of women’s reproductive autonomy, and by extension, abortion rights. So, it seems that the Dobbs decision, while ruling against them under the Fourteenth Amendment, might still leave room for a more expansive understanding of reproductive rights as a whole.

Beyond reproductive rights, Professor Brown sees the history behind the abolition of slavery as a basis for protecting sexual rights more generally: “Whether you’re being forcibly bred or forced to have an abortion, the issue is the person who is enslaving you’s sexual access, [their] control over reproductive function, and the stripping away of choice.” In this way, the legal reasoning that can be used to protect abortion rights may also act as a blueprint for the advancement of legislation addressing issues ranging from early and forced marriage to female genital mutilation and beyond. Still, at the intersection of all of these social and political problems is the fundamental restriction of an individual’s ability to make sexual and reproductive choices for themselves. 

Our perceived historical distance from slavery can make it harder to psychologically accept such a non-intuitive defense of abortion. In truth, the past is not only nearer than we think, but we remain steeped in it. If nothing else, the Thirteenth Amendment argument should remind us of our unique position at the culmination of the history of reproductive rights in the United States. Of course, none of this is to say that the status quo is in any way comparable to the horrors of slavery, only that it is our collective constitutional responsibility to eradicate all remnants of that institution – legal or otherwise – where they are found. Reproductive justice may simply be a facet of that abolitionist process. For Professor Brown and others, the constitutional interpretations that have dominated the Court’s discussion of abortion until now are not the only possible readings of the issue, and better ones may be on the horizon. In the meantime, America waits for the development of new litigation that will take abortion back to the bench. 

Edited by Lika Gegenava