The Future of Choice

The Overturning of Roe v. Wade Might Forge Unusual Alliances

As someone who was given up for adoption at birth, I have probably struggled with abortion more than any other issue during the course of my life. When I was in law school, I revisited a book I was assigned when I was in college, The Unfinished Constitution by John Arthur. Upon reading his eighth chapter on abortion, I settled into a very “technical” and “legal” lens whereby I came to fundamentally disagree with Blackmun’s opinion in Roe v. Wade, not necessarily with the result but with the reasoning.

The right to privacy is not in the fourteenth amendment, although it is recognized as one of those “fundamental” but “unenumerated” rights in the ninth amendment. But the ninth wasn’t any help to the majority in Roe v. Wade because the adverse party restricting abortion was the state. It seemed as if Blackmun held up the 14th amendment in the mirror and found the word “privacy” in the reflection of the fluorescent light.

So, what are prochoice advocates to do in light of Justice Alito’s draft opinion that ostensibly has five votes as of its writing? It might be time to pick the fight they should have fifty years ago. In Roe, lawyers on both sides agreed the status of the fetus was a philosophical question and not a medical one, conceding the case would fail if predicated on that issue. Blackmun even acknowledged the law has not traditionally accorded rights to the unborn unless there is a live birth. That means the prolife movement hasn’t really scored a victory with this decision because the state legislatures can still disregard them at the peril of the ballot box. So, women in Utah and the Dakotas will just be travelling to Nevada and Minnesota respectively if they become “pregnancy hesitant.”

John Arthur pointed out, in my view, a far more effective authority that could bring abortion right back up the ladder but could create an unanticipated alliance between two groups in this country who are equally passionate about “my body my choice,” only one group is traditionally seen as being on the left whereas the other is categorized by critics as extreme right. The former just got a blow dealt them by Alito, the latter got mixed results last winter over the issue of compulsory vaccinations. For both groups, their possible solution lies in the very unambiguous, if not black and white language of the thirteenth amendment which states:

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 power to enforce this article by appropriate legislation.

If my niece needs a kidney transplant, can the state come in and put me on a table against my will and remove one of mine, or is that not involuntary servitude? How about if I have a unique blood type that will save a patient from dying? I mean, it is just some blood, right? Whether it be slavery or involuntary servitude, neither shall exist and Congress has the enumerated power to enforce this proscription should the states be remotely hesitant.

The abortion question never truly found resolution in 1973. All the Supreme Court really did was kick the can down the road under the guise of a vague reliance on the due process clause in the 14th amendment. As a result, we got this weird “viability” argument that moved dangerously close to sticking SCOTUS with a 1st Amendment establishment of religion issue. I mean, the elephant in the room was “when does life begin in the womb” which is really asking when the little baby inside has a soul.

But under the 13th Amendment argument, the presence of a soul is not necessarily relevant if it is found the woman is subject to involuntary servitude to the state which prevents her from removing the unwanted baggage. As Blackmun pointed out, whether someone has a soul at all is not a question constitutionally cognizant in the courts, the Congress, or the White House. I know that sounds cold, but the law is both blind and cold.

Where this could get interesting, if some state legislatures take a different cue from Alito and the Court’s mixed ruling on mandates, is that a reversal of Roe could easily inspire pro mandate legislatures to introduce mandates for vaccines relying on a case from 1905, Jacobson v. Massachusetts, upholding the the Cambridge, Massachusetts, Board of Health's authority to require vaccination against smallpox during a smallpox epidemic.

To be clear, when relying on any Supreme Court case one must also be cognizant of not only the jurisdictional nature (i.e. states’ rights vs. federal powers) but also what was being specifically challenged in order to ascertain exactly what the court actually held. Mr. Jacobson never actually had to get jabbed in 1905, he had to pay a five dollar fine for refusing the jab. Under that reasoning, would you be willing to submit that a person who wants to maintain his or her physical boundaries from an experimental injection can simply opt out for a fine? Obviously, the question then can be raised as to what would or would not be a reasonable penalty for refusal? By measures of inflation, Jacobson’s five dollar fine would be a little under $170.00 today. I am fairly certain that there are millions of Americans who would gladly shell out the price of a traffic ticket to just be left alone and go about their business.

But there are other problems with the jurisprudential history of Jacobson that are not without some embarrassing evolutions of precedent gone awry. In 1927, in Buck v Bell, the US Supreme Court upheld a Virginia law that authorized the involuntary sterilization of “feeble minded” persons in state institutions. Theories of eugenics (you know, the “master race” idea) drew curious medical and scientific support during the 1920s and 1930s. The Supreme Court found that the law served the public health and welfare because “mental defectives” would produce degenerate criminal offspring or imbeciles who “sap the strength of the state.” In a very noteworthy opinion, Justice Oliver Wendell Holmes concluded:

“Society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v Massachusetts, 197 US 11. Three generations of imbeciles are enough.”

So, what happened here was Jacobson was cited as support for the general principle that public welfare was a sufficient justification for involuntary sterilization. As Holmes said, “Society can prevent those who are manifestly unfit from continuing their kind.” The decision extended the police power’s reach from merely imposing a monetary penalty for refusing vaccination to forcing surgery on a young woman against her will and depriving her of the ability to have children.

Mind you, all this was before Roe v. Wade. Since 1973, I don’t believe the viability of Jacobson and its progeny has ever been tested against the 14th Amendment precedent in Roe. Remember that, in Roe, the states were told they COULD NOT interfere with a woman’s right to abort the fetus. After Roe, we could debate the “viability” of the fetus all day long, but in defending the woman’s right to defy the wishes of the state, the nine clearly said she could kill it.

Clearly, Roe was not without its Achille’s heel and the issue is, ironically, before the Supreme Court during the same term it is hearing arguments on medical mandates. But why strain so hard to extract an interpretative meaning in the 14th amendment when the one just prior reads, in black and white, “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.”

So here is the crucible. While Jacobson preserves (for the moment) the power of the state to impose the jab you have to answer my earlier question. Does the state have the power to make me get on an operating table and remove one of my kidneys to save a total stranger? Let me make this harder. How about if the needy recipient is my niece? No? I didn’t think so. But can the state make me donate my blood because I have a rare blood type necessary to save another? How about if my blood contains unique properties because I survived an infection that is killing others?

Now, are there exceptions to even “involuntary servitude” absent due process? Sure. You may have heard of Manzanar? No? Okay, how about Guantanamo Bay? We do it all the time. But when we as a nation decide to throw individual liberty and due process out the window we have always, at least until of late, been big enough to own it. George Jr. was very clear: “If you’re not with us you’re with the terrorists!”

And here we are now, with a very vocal portion of society all too ready to impose this:

… or maybe this?

…or dare we engage in hyperbole?

The number of folks who are today beginning to sound like those they would have happily burned in effigy only five years ago, before they allowed an ex game show host get under their skin, and sacrifice their common sense is playing out as an academically distressing irony that is hopefully schooling us as a human race in how little we have truly evolved in the last one hundred years. We all watched Hitler, Mao, and Pol Pot chuck individual rights to the wind under the banner of being some kind of noble guardian of the greater good. Auschwitz? The Great Leap Forward? The Killing Fields?

In the end this is not “academic” at all, because in the end it will always be about enforcement. Ask any cop who begins the simple process of turning on the red lights to pull over a guy who failed to signal and, for whatever reason, that guy won’t pull over. How far do you go to enforce the law? Is it justified to chase the fellow at high speeds for ten minutes through alleys and yards just to enforce a traffic violation or is it okay to discontinue the chase and just mail the driver a ticket since you already have the license plate? The latter resolution is what Jacobson was ultimately about. It is why, at least I believe, the Supreme Court ultimately ruled as it did. I mean, what is a five dollar fine anyway?

It is really curious how, on the one hand, “my body-my choice” is hanging (according to Alito’s leaked “1st draft”) by the thread of which members of the nine might not salvage and opt to return the ultimate decision on abortion back to the states while, at the same time, those same nine are weighing “my body-my choice” in the arena of compulsory medical intervention. To be clear on the power of any Supreme Court ruling the gospel of the nine is only gospel until the nine say something different. Remember Dred Scott? Plessy v. Ferguson? Well, now we have Roe v. Wade.

I imagine there are no shortages of passionate advocates on both the right and the left who will find it an anathema my suggestion that “baby killers” and “ant-vaxxers” will at least find a common wrench in the Constitutional tool box. For in both cases the standard of the 13th Amendment is simple. We don’t force people to give up their liberty simply because it makes others feel safe. We don’t subject people to a condition of servitude unless there is a clear and present danger.

But for the interest of the state to prevail over the 13th Amendment you cannot just say COVID is a clear and present danger. You have to prove it in a court of law and so far no one has been able to do that. Actually, if you read the substantive briefs of many recent cases, no one has really tried. Similarly, for the interest of the state to prevail over a woman’s right to remove what the law to this day still recognizes as nothing more than an organ, well, you have to prove it is something with a soul.

The 1st Amendment, that very troubling amendment for our newly established Ministry of Truth, is pretty clear that no branch of government, Federal, State nor municipal, can even go there.