Originalism, Abortion, and the Thirteenth Amendment

By: Andrew Koppelman

Does an originalist reading of the Thirteenth Amendment support a right to abortion? Not long ago a negative answer seemed obvious enough to make the question silly. Since then, however, originalism has become more sophisticated. It is now understood that original meaning, not original intent, is the most appropriate originalist source of constitutional law. The original meaning of constitutional language sometimes focuses on paradigm cases: specific evils that the Constitution aims to keep from recurring. The Thirteenth Amendment’s purpose is to end the specific institution of antebellum slavery. A ban on abortion would do to women what slavery did to the women who were enslaved: compel them to bear children against their will.

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