A Howard University law professor may have found the answer to Congress’s problem after the U.S. Supreme Court overturned Roe v. Wade.
With President Joe Biden signing an executive order hoping to protect women’s healthcare throughout the country, Dr. Lisa A. Crooms-Robinson believes the solution lies in Blackness, the slave trade and specifically, the proper application of the 13th Amendment.
Crooms-Robinson explained in an op-ed that to satisfy the most ardent originalists who demand some textual basis for both individual rights and congressional authority to legislate a new plan to save abortion rights would have to put Black people at the center of their legislative efforts in ways that Roe’s original privacy-based right did not.
“A law protecting Black people’s reproductive health is essential to Black freedom because enslavement denied Black people rights, including those recognized in Roe,” she wrote.
Since the court decided Slaughter-House Cases in 1873, Crooms-Robinson noted that the original intent of the framers of the 13th Amendment was to benefit those 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,” Crooms-Robinson continued.
“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,’” she wrote.
Denying the rights of reproductive health and choice, bodily integrity and personal autonomy were 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, Crooms-Robinson observed.
“With the power of the 13th Amendment, Congress can enact reasonable laws that protect these rights today. Just as slavery branded all Blacks with slavery’s ‘badges and incidents,’ regardless of status, Blackness rather than any other aspect of identity would trigger rights protected by any law enacted by Congress using its enforcement power under the Amendment today,” the professor concluded.
“The 14th Amendment’s equal protection guarantee, meanwhile, would allow non-Black people to assert their right to enjoy the same rights the 13th Amendment grants to Black people as a matter of racial equality,” she said.
Despite Crooms-Robinson’s argument, some called it too great a leap.
“While I applaud the effort, and I think we should be exploring every creative avenue possible to try and protect those who have been hurt by the Supreme Court’s decision in Dobbs, I don’t think the 13th Amendment is a viable option to protect reproductive rights, let alone one that would easily succeed,” said Andrew Torrez, a legal communicator, and host of the “Opening Arguments” podcast.
“Even assuming Congress would act – which would mean electing at least two more Democratic Senators willing to blow up the filibuster in 2022 – this activist Supreme Court would be at the ready to do two things: first, to rule that Congress lacks the authority to regulate abortion as interstate commerce following NFIB v. Sebelius, and second, on the merit that reproductive freedoms aren’t deeply entrenched in our nation’s history and traditions. Of course, they’d be wrong but it wouldn’t be the first time,” Torrez told the Informer.
The founder of The Constitution Study, Paul Engle, agreed with Torrez’s assessment.
“I believe a simple analysis of the professor’s argument will show it is full of holes,” Engle stated.
He noted that the 13th Amendment highlights outlawing slavery and involuntary servitude.
“Pregnancy is not involuntary servitude and it is the natural consequence of sexual intercourse,” Engle said. “This amendment makes no distinction about race, so ‘blackness’ does not trigger some special right or allow Congress to enact laws outside of the powers delegated to it under the Constitution of the United States. The Tenth Amendment prohibits this.”
“The Fourteenth Amendment Equal Protection Clause does not logically apply since it is not a question of being treated differently by the law, only by biology. Furthermore, the Fourteenth Amendment’s Due Process Clause says a state cannot deny life or liberty to someone without due process. Abortion, by definition, is the taking of human life. Therefore, even considering questions of potential life, once life is detected in the womb, it must be protected,” he said.