Sitting cross-legged on the stage, occasionally referring to a copy of his law paper lying next to him, Prof. Andrew Koppelman delivered a talk – it can hardly be called a speech – on why the right to abortion is a matter of avoiding forced labor. The visual already shatters every cliché of how an impassioned argument is made in defense of one of the most polarizing laws in American history. But that was the point: Koppelman intimately believes in his case, and realizes that defending abortion is an exercise in constitutional law and shouldn’t be belittled by hysterics.
Koppelman, a Northwestern law professor, was brought in by College Feminists to re-argue Roe v. Wade, the 1973 Supreme Court decision that made abortion a right protected by the Constitution. Speaking in Harris 107 on Monday, his argued that denying a woman the right to an abortion would be tantamount to forced labor.
The original case relied on a tenuous finding of a woman’s right to privacy. Unfortunately, notwithstanding all their other wisdom, the inconsiderate Founding Fathers forgot to include a right to privacy in the Constitution. This has left pro-choice advocates scrambling for a more concrete way to connect abortion to a Constitutional right.
Wait. An unwanted pregnancy is “forced labor”?
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Koppelman laughs (literally) at the high court’s decision, and suggests that the case could more persuasively be argued under the 13th Amendment, which protects citizens from forced labor. It turns out a feminist group argued this back in the 1970s and was summarily ignored; one can imagine why calling pregnancy forced labor wasn’t a popular idea.
“I can claim originality, if nothing else,” says Koppelman, chuckling while the meager audience laughs along with him.
But Koppelman remains persistent and his disarming delivery – almost folksy in its charm, which is a funny contrast with his eloquence and qualifications – wages a war of attrition against the skeptic. The argument is cogent (full disclosure: I read his law article (PDF) before hearing the talk) and even Koppelman’s insistence that “it’s not a knockdown argument,” doesn’t doom it to mere novelty. In fact, it’s a tricky but satisfying rationale.
It’s a fundamental right not to be coerced into service. In more crude terms, requiring a woman to carry a baby is “different in degree, but is the same injury as in slavery,” Koppelman says. He begins a sobering analysis of Supreme Court precedent as it pertains to forced labor, but thankfully cuts it short and refers the curious legal scholar to his paper for details.
Koppelman’s conclusion is that “the ‘natural operation’ of a statute prohibiting abortion is to make it a crime for a woman to refuse to render service to a fetus.” And one doesn’t have to be a feminist to believe him.
“It’s crazy, and a lot of people react with horror at first,” Koppelman concedes. But after some reflection and a choice quote from his paper – the 13th Amendment “draws no distinction between the powers of a man’s back and arms and those of a woman’s uterus” – the idea starts to sound inevitable instead of insane.
The biggest discomfort with the forced-labor argument is that it seems to “libel” motherhood, making it less important than it really is. But here Koppelman makes one of his most biting metaphors, although it falls naturally into his narrative, causing most heads in the room to nod in gentle agreement before they realize how logical it is.
“You’re not libeling sex if you complain about rape,” Koppelman says. And once the skeptic understands this point, that a right to abortion has nothing to do with those women who desire pregnancy, he or she will notice his or her unease subside.
“Many treatments of [my argument] are dismissive without saying why; if there’s a defect in the argument, no one’s ever stated it in print,” Koppelman claims. That’s because it’s so logical. A fetus uses someone else’s body – forces labor on it – and “the burden is on the state to show that it can infringe on a fundamental right [by outlawing abortion].” The state could potentially find that a fetus’ right outweighs the mother’s, but “a mere possibility that a fetus may be person is not enough,” Koppelman says.
Because this question – whether a fetus or a mother has more rights – remains rooted in religious rhetoric, as Koppelman acknowledges, his 13th Amendment defense won’t change many minds. But what he does offer is a Constitutionally literate defense of choice that Roe’s friends can be more proud of.