The 13th Amendment could secure abortion rights

We need a new plan, and the 13th Amendment might be the answer. To satisfy the most ardent originalists who demand some textual basis for both individual rights and congressional authority to legislate, this plan would have to put Black people at the center of their legislative efforts in ways that Roe’s original privacy-based right did not.

Since the court decided Slaughter-House Cases in 1873, it has been accepted that the original intent of the framers of the 13th Amendment was to benefit those who were formerly enslaved. 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.