I hate liberalism’s language of choice. I always have. Redolent of the marketplace, it reduces the most intimate aspects of existence, of women’s physical autonomy, to individualistic purchasing preferences. A sex life or a Subaru? A child or a cheeseburger? Life, death or liposuction? In that circumstance, capitalism’s only question is, Who pays and who profits? The state’s only question is, Who regulates and how much? If there is a sliver of benefit to the right’s ongoing and grotesque multi-front assault on women, it is the clarion it sounds to humanists to take the high ground and ditch the anodyne talk of “a woman’s right to choose” for the weightier, fundamental assertion of “a woman’s right to be.”
That requires that we look anew to history and the Constitution, which, Justice Alito is quite correct, does not include the word ‘abortion’ (or ‘space travel’ or ‘automobile’ or even ‘woman’) but does include ‘slavery’.
When I first wrote that opening paragraph, in 2012, my friend and sister Pamela Bridgewater, who’d been their impetus, was alive. She was starting cancer treatments, which ultimately failed. At that moment, though, she was intending to revise her legal writings on reproductive liberty and the legacies of slave breeding into a book that would speak a common language to women, particularly the class of women whom she’d escorted to safety while doing clinic defense in Florida, Wisconsin, DC. She was a legal scholar, a professor, an activist, a sex radical, a diva. Pamela was fire.
She was also very sick. I mostly use her familiar name here because the circumstances of first writing were intimate. Dying is intimate, even if, like being born, it is also social. I had been staying at Pamela’s house, a big, welcoming place in DC that she and her husband, Kweku Toure, filled with friends, food, fast talk and quiet when that was required. One afternoon we were two women sitting around talking the way friends do—a little gossip, a little news, a little bit about the Thirteenth Amendment. Pamela had been talking about the Thirteenth as long as I’d known her. She was fascinated by the complex history and legal interpretations secreted behind its plain language:
Section 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.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
This was years before Ava DuVernay’s riveting documentary 13th would make the amendment meat for mass discussion because of its re-enshrinement of slavery in the prison system. Pamela insisted that this repressive function was not all that had survived the nineteenth century. The liberatory heart of the amendment, its recognition of full personhood, for which men and women had fought and died, must also be understood as living law.
She planned to call her book Breeding a Nation: Reproductive Slavery and the Pursuit of Freedom, and in articles, forums and everyday conversation she had argued that beneath the deceptive simplicity of the amendment’s words lay the most compelling conceptual and constitutional frame for defending a woman’s bodily integrity and her right to control her own reproductive and erotic life. To understand that, it is first necessary to put black women at the center of the story. And to pay attention.
That afternoon the TV was bringing the latest on a debate over whether the State of Virginia should force a pregnant woman to spread her legs and endure a plastic wand shoved into her vagina. Transvaginal ultrasound was not invented for political purposes, but as a technology capable of making a fetal heartbeat audible in very early stages of pregnancy, it has been made into an apparatus for a propaganda of the body and the mind (required by law in Mississippi, Louisiana, Texas and Arizona) against women seeking abortions.
“What a spectacle,” Pamela exhaled. “Virginia, the birthplace of the slave breeding industry in America, is debating state-sanctioned rape. Imagine the woman who says no to this. Will she be strapped down, her ankles shackled to stir-ups?”
“I suspect,” said I, “that partisans would say, ‘If she doesn’t agree, she is free to leave.’”
“Right, which means she is coerced into childbearing or coerced into taking other measures to terminate her pregnancy, which may or may not be safe. Or she relents and says yes, and that’s by coercion, too.”
“Scratch at modern life and there’s a little slave era just below the surface, so we’re right back to your argument.”
In brief, that argument rolls out like this. The broad culture tells a standard story of the struggle for reproductive rights, beginning with Margaret Sanger, gathering steam with the flapper, climaxing with the pill, Griswold v. Connecticut and its assumption of privacy rights under the Fourteenth Amendment, and concluding with Roe v. Wade. The same culture tells a traditional story of black emancipation, beginning with slave revolts and Abolitionism, climaxing with exhaustion of legal remedies in Dred Scott, with Harpers Ferry and Civil War, and concluding with the Thirteenth, Fourteenth and Fifteenth Amendments. Both stories have a postscript—a battle royal between liberation and reaction—but, as Bridgewater has written: “Taken together, these stories have no comprehensive meaning. They tell no collective tale. They create no expectation of sexual freedom and no protection against, or remedy for, reproductive slavery. They exist in separate spheres; that is a mistake.” What unites those stories but what both leave out, except incidentally, is the experience of black women. Most significantly, they leave out “the lost chapter of slave breeding.”
I need to hit pause on the argument for a moment, because the considerable scholarship that historians have done for the past few decades has not filtered into general consciousness. The mass-culture story of slavery is usually told in terms of economics, labor, color, men. Women outnumbered men in the enslaved population two to one by slavery’s end, but they enter the conventional story mainly under the rubric ‘family,’ or in the cartoon triptych Mammy-Jezebel-Sapphire, or in the figure of Sally Hemmings. Yes, we have come to acknowledge, women were sexually exploited. Yes, many of the Founders of this great nation prowled the slave quarters and fathered a nation in the literal as well as figurative sense. Yes, white people will concede, maybe rape was rampant. Over the past few years, amidst a revival of interest in James Baldwin, YouTube viewers have plumbed history to watch Baldwin debate William Buckley at the Cambridge Union in 1965, hearing him remark: “The problem with America is that we’ve been integrated for a very long time. Put me next to any African and you will see what I mean, and my grandmother was not a rapist.”
The grandmother has received insufficient attention. The flurry of commentary, writing, films, has not emphasized that when Baldwin spoke of color, of blackness, he spoke of whiteness too; that his story of the country was an unacknowledged story of sex, a mixing of blood (in the inhumane but also human sense of that metaphor), and a fatal resistance “to accept our history.”
That the slave system in the US depended on human beings not just as labor but as reproducible raw material is not part of the story America typically tells itself. That women had a particular currency in this system, prized for their sex or their wombs and often both, and that this uniquely female oppression resonates through history to the present, is not foremost in the image that comes to mind at the mention of ‘slavery.’ Even the left, in uncritically reiterating Malcolm X’s distinction between “the house Negro” and “the field Negro,” erases the female experience, the harrowing reality of the house “favorite,” which Harriet Jacobs recounts in Incidents in the Life of a Slave Girl.
We don’t commonly recognize that slaveholders supported closing the trans-Atlantic slave trade; that they did so to protect the domestic market, boosting their own nascent breeding operation. Women were the primary focus: their bodies, their “stock,” their reproductive capacity, their issue. Planters advertised for them as they did for breeding cows or mares, in farm magazines and catalogues. They shared tips with one another on how to get maximum value out of their breeders. They sold or lent enslaved men as studs and were known to lock teenage boys and girls together to mate in a kind of bullpen. They propagated new slaves themselves, and allowed their sons to, and had their physicians exploit female anatomy while working to suppress African midwives’ practice in areas of fertility, contraception and abortion. Reproduction and its control became the planters’ prerogative and profit source. Women could try to escape, ingest toxins or jump out a window—abortion by suicide—except it was hardly a sure thing.
This business was not hidden at the time. A nineteenth-century engraving depicts an enslaved woman, belly big with child, leaping from a window. “It was an open secret,” Pamela said, looking for her copy of Uncle Tom’s Cabin, then tapping a polished fingernail at a bit of in-passing dialogue. “‘If we could get a breed of gals that didn’t care, now, for their young uns…would be ’bout the greatest mod’rn improvement I knows on,” says one slave hunter to another after Eliza makes her dramatic escape, carrying her child over the ice flows.
Look at de Tocqueville in 1835. “As [whites] are determined not to mingle with the negroes, they refuse to emancipate them,” he asserts on one page. On the next he tells this story:
I happened to meet an old man, in the South of the Union, who had lived in illicit intercourse with one of his negresses and had had several children by her, who were born the slaves of their father. He had, indeed, frequently thought of bequeathing to them at least their liberty; but years had elapsed before he could surmount the legal obstacles to their emancipation, and meanwhile his old age had come and he was about to die. He pictured to himself his sons dragged from market to market and passing from the authority of a parent to the rod of the stranger, until these horrid anticipations worked his expiring imagination into frenzy.
The disjunction from page to page is as disingenuous as making slavery an aside in a study of “Democracy in America”; as artificial as pretending the struggle against slavery and reproductive bondage are not parts of a collective tale. “What do you suppose that ‘negress’ was up to while the old man gnashed his teeth?” I can hear my sister saying.
“If we integrate the lost chapter of slave breeding into these two traditional but separate stories,” Bridgewater wrote in a law review article, “if we reconcile female slave resistance to coerced breeding as, in part, a struggle for emancipation and, in part, a struggle for reproductive freedom, the two tales become one: a comprehensive narrative that fuses the pursuit of reproductive freedom into the pursuit of civil freedom.”
Constitutionally, the fundamental civil freedom is enshrined in the Thirteenth Amendment. Since the amendment’s language is unadorned, it was left to the political system to sort out what abolition meant in all particulars. In a series of legal cases, courts ruled that in prohibiting slavery the amendment also prohibits what the judiciary called its “badges and incidents”—say, a slave’s inability to make a legally binding contract—and recognized Congress’s power “to pass all laws necessary and proper for abolishing all [of those badges and incidents] in the United States.”
Pamela was arguing that because slavery depended on the slaveholder’s right to control the reproductive capacities of enslaved women, coerced reproduction was as basic to the institution as forced labor. At the very least, it qualifies as one of those “badges.” So sexual, bodily freedom is not simply a matter of privacy, and constraints on that freedom are not simply unconstitutional; they strike at the heart of human autonomy and liberty. Effectively, they reinstitute slavery.
Men in the courts and Congress of the nineteenth century understood contracts. They understood a little bit about labor. Women they understood wholly by their sex and wombs, and those—at a time when all women were under a form of vassalage—they regarded as the property of husbands once owners exited the stage.
Alito’s draft opinion is correct on two points: The historical section of Roe is a mess; it says nothing about slavery, let alone controlled reproduction as intrinsic to it. And, indeed, state laws criminalizing abortion were initiated in the nineteenth century, before and after the Civil War. What Alito omits is that no woman had a say in those state laws. No man in a position to make or enforce those laws would have been thinking about black women’s experience of reproductive tyranny—just as subsequent white advocates of population control (eugenics, even contraception) would not have been. And so it seems that, but for the prison exemption, the Thirteenth Amendment was dead law as soon as the last slave was freed.
But it is not our fate to live with historical erasure. It is not our fate to live with the failure of later courts to apply Thirteenth Amendment principles to the pursuit of sexual and reproductive freedom, or even to consider the historical context out of which the Fourteenth Amendment also emerged. It is not our fate, even if the Supreme Court’s ultimate decision forecloses other legal arguments, to confine ourselves and our politics to the pinched language of choice or privacy—or to partial definitions of reproductive freedom. Nor should we fetishize Roe. The case was not brought on equal protection grounds, as we know, and the decision has no interest in a woman’s inherent, moral claim to her body and her person.
It is astounding, reading the Roe decision today, how absent the woman is. In the majority’s tortuous historical review, her lived experience emerges in faintest outline, and then only in others’ professed interests in her health and life. Her privacy rights are not fully hers, as the Court underscores, citing its notorious eugenic sterilization decision in Buck v. Bell to affirm the state’s power to limit those rights. Nor is the power of decision fundamentally hers. In Roe’s near-legislative prescriptions, which throw open the door to every subsequent constriction of abortion rights, the woman is subordinated to a consultant: “The abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.”
Neil Gorsuch and Brett Kavanaugh almost surely lied to senators before their confirmation to the Supreme Court, yet Roe itself provides a trap door for simultaneously opposing abortion and asserting, as Kavanaugh did, that Roe is “settled law.” The 1973 decision is quite frank that a woman’s autonomy would vanish altogether if anti-abortion forces were to succeed in enshrining the legal personhood of the fetus, with Fourteenth Amendment guarantees of due process and equal protection: “If this suggestion of personhood is established, the appellant’s case [Roe’s], of course, collapses, for the fetus’ rights would then be guaranteed specifically by the Amendment.” Advocates of fetal personhood have not yet succeeded in establishing their claim legislatively, but they have spent decades citing that passage for their cause. Concurrently they argue that fetal personhood is a matter of fundamental human rights, beyond judicial tinkering, and that Roe ought simply be ignored. They note that the 1857 Dred Scott decision—which states, “The question before us is whether the class of persons described in the plea [those of African ancestry] compose a portion of this people [‘of the United States’], and are constituent members of this sovereignty. We think they are not”—was never specifically overturned. It was superseded politically. Alito’s draft gives them what they’ve long desired, the reversal of Roe and Casey, but even if the final opinion were to be significantly tempered, anti-abortion forces have always had a bigger game plan. On the heels of the leaked draft opinion, Louisiana’s Republicans advanced a bill that would empower the state to charge anyone who has an abortion, and anyone who assisted, with homicide.
Pamela Bridgewater Toure expired on December 27, 2014. While she strained to live as cancer ate her up, state legislatures imposed hundreds of new restrictions on abortion, many under the cover of medical procedure. Virginia lawmakers ended up mandating a standard ultrasound rather than the transvaginal version. Rush Limbaugh and his ilk among the Republican light artillery lobbed bomb after bomb as legislators made law out of the injuries to women’s bodily autonomy. Bombs have been falling ever since. Donald Trump proved himself to be the Christian right’s greatest ally. His allies and acolytes pushed and passed countless state regulations as well as amendments to state constitutions, some of which strip women of all abortion rights, even to save their lives. Seeking the same, the fetal personhood movement would effectively render women’s bodies state property.
These reactionaries are the ideological descendants of slave masters. But they must not bear that judgement alone. Republicans built and have maintained a power base around opposition to abortion, but abortion hardly constitutes the totality of women’s reproductive interests. While defending Roe has been necessary in realpolitik, this proverbial litmus test of Democrats’ concern for women has not only been feeble in defending abortion rights; it has also obscured the many other ways in which both parties have used the law to deny a woman’s self-determination by controlling her sexuality and reproduction.
In the 1980s and 90s, poor women, disproportionately black, were first vilified, then punished for wanting to have babies. Reagantime flowed into the Clinton era. Forced contraception became a condition for receiving social benefits or bonuses in states across the country. Dangerous Norplant implants were covered by Medicaid (as was sterilization, though removal of the implants was not, abortion was not). Norplant was pushed on poor teenagers in public schools, on post-partum women in public hospitals, on poor defendants in court and poor patients at some Planned Parenthood clinics. Bill Clinton’s welfare reform penalized benefit-recipients for getting pregnant and having another child. Poor women’s erotic lives were increasingly under surveillance, as they are today. Poverty drove many women to have abortions, as it does today—and to eviction, incarceration, losing their children and parental rights. The concept of child-rearing as unpaid labor was undermined by the language of job-seeking, as it is today. Teen mothers, crack mothers, welfare mothers, all were code for black mothers, who might spawn superpredators, who would destroy America unless they could be locked away at the first sign of trouble. The systemic merger of reproductive bondage and civil bondage has been right in front of us, regardless of the party in power. We live with its legacy. Dorothy Roberts’ momentous book Killing the Black Body detailed much of this in 1997; decades and a Year of the Woman later, the Democratic Party has yet to embrace a conception of reproductive freedom that goes beyond “choice” and funding for Planned Parenthood. Now on the verge of choice being foreclosed for a great chunk of the child-bearing population, party officials are atizzy.
Recognizing black women at the center of the struggle for bodily integrity, as black feminists have argued for decades, does not trample on the principle of individual choice. It widens the field of vision, to include the country’s founding history and the persistent social and economic realities of the choiceless choice. In doing so, as Roberts emphasizes, it forces a confrontation with justice. Placing reproductive justice in the historical context of the Thirteenth Amendment and the struggle against slavery is not, as a libertarian critic of an earlier iteration of this essay argued in Forbes, an opportunity for lurid storytelling. When Pamela Bridgewater detailed women’s lived reality of slavery her aim was not to shock an audience but to dispel ignorance, to encourage us to accept our history—not just the suffering but also, and especially, the bravery. Her passion for the Thirteenth Amendment was all about its promise.
If, through the culture, we have come to see the Thirteenth Amendment as now a deft political maneuver by Lincoln, and now license for the prison state, we can see it yet again, and differently, as a moral imperative. Lincoln is long dead. Mass incarceration was a choice, not an inevitability; it can be unmade. Freedom remains an ongoing human effort. As a symbol of that effort, unfinished in 1865 and unfinished today, the Thirteenth says to every woman, You are heir in your person to a promise of universal freedom, one that recognizes an individual’s fundamental right to her life, her labor, her body and self-possession all as one.
The preachers and lay men and women who raise the “personhood” banner for their side recognize the moral force that slavery holds on the imagination of the country that accommodated it for so long. More than a decade ago they took to calling the fetus and fertilized egg the new slave, the woman seeking an abortion the new slave master, and the movement for fetal personhood a new civil rights movement. In the early part of this century the director of Personhood Florida compared himself to William Wilberforce, the nineteenth-century English abolitionist. A Catholic priest who posted on Planned Parenthood’s “I Have a Say” video thread years ago likened defenders of women’s bodily autonomy to slave traders. On their blogs and other media the foot soldiers of this movement have called Roe v. Wade a latter-day Dred Scott; they have invoked the Thirteenth Amendment and vowed to fulfill its promise.
These people are not stupid, and some are sincere, but they are wrong. They pervert history and morality in the guise of honoring both, and thingify women according to the logic of our cruelest past. There is another logic, and it calls us to complete the unfinished business of emancipation.