Ginsburg and the Roe v. Wade decision

[CTyankee]

IIRC, Justice Ginsburg wanted to argue the abortion case of the grounds of equal protection under the law, as she thought that would protect a woman's right to choose better. In an ideal world, that should have happened.

Is there a possibility that, absent Roe's protection, our right to choose could better be the equal protection argument that would secure it for the future?

[CrispyQ]

1. Why not use the 13th Amendment?

Abortion and the 13th Amendment

2010
Forced Labor, Revisited: The Thirteenth Amendment and Abortion
Andrew Koppelman
Northwestern University School of Law, [e-mail]

https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1031&context=facultyworkingpapers

snip...

I. The basic argument The Thirteenth Amendment reads as follows:

1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

2. Congress shall have the power to enforce this article by appropriate legislation.

My claim is that the amendment is violated by laws that prohibit abortion. When women are compelled to carry and bear children, they are subjected to "involuntary servitude" in violation of the amendment. Abortion prohibitions violate the Amendment's guarantee of personal liberty, because forced pregnancy and childbirth, by compelling the woman to serve the fetus, creates "that control by which the personal service of one man [sic] is disposed of or coerced for another's benefit which is the essence of involuntary servitude."6

Such laws violate the amendment's guarantee of equality, because forcing women to be mothers makes them into a servant caste, a group which, by virtue of a status of birth, is held subject to a special duty to serve others and not themselves.

This argument makes available two responses to the standard defense of such prohibitions, the claim that the fetus is a person. The first is that even if this is so, its right to the continued aid of the woman does not follow. As Judith Jarvis Thomson observes, "having a right to life does not guarantee having either a right to be given the use of or a right to be allowed continued use of another person's body -- even if one needs it for life itself."

Parents can't be compelled to donate their organs to their child, even to save the child's life, and yet some want to give a clump of cells that right over women.

THE MOST IMPORTANT DECISION A WOMAN CAN MAKE, ISN'T YOURS.

[CTyankee]

2. Thanks for this. Interesting and compelling arguments.

I agree that it is a good argument and vehicle.

[CrispyQ]

3. I also have these great graphics that point out the hypocrisy of the right on this issue: