Abortion and the Legacy of the Civil War

Freddie deBoer

August 8, 2022

The recent US Supreme Court decision overturning Roe v Wade has enflamed an already-smoldering country. I, like millions of Americans, find myself in a fiercely politically divided country, but of course, we’ve been in this position before. In the late 19th century, the country was split into two, and a great civil war was fought between the two sides. At the root of that conflict lay a fundamental question: who owns the human body? The abolitionists and the Union believed that the individual did, that the control of the self was sacrosanct, and that forcing anyone to give up that control was an injustice so great it was worth risking the country’s very existence. Against them stood the slaveowners and their Confederacy. The matter was settled, and the blood of every Confederate soldier became the ink that spelled out a great American principle that held that, indeed, each and every one of us is sovereign over our own selves, our own bodies.

Abraham Lincoln defined the fundamental divide by saying, “With some the word liberty may mean for each man to do as he pleases with himself…. while with others the same word may mean for some men to do as they please with other men.” And he ensured that his own position, the former, became both the law and the spirit of the land.

The overturning of Roe v Wade and subsequent conservative attempts to restrict abortion rights endanger precisely that tradition, the conception of human self-ownership that was won at the expense of hundreds of thousands of lives in the Civil War.

A Revolutionary Lineage

The demand for legal abortion is ultimately part of the same revolutionary lineage as the demand made by slaves and the abolitionists who fought to free them, in that legal prohibition of abortion fundamentally denies the individual the right to own the self. Pregnancy, no matter how beautiful, is an immense imposition on the human body, and it carries with it permanent costs that everyone who bears children endures. A pregnant woman’s body is not wholly her own, perhaps a beautiful condition to those who do so willingly but a terrible burden on those who do not. To be forced to carry a pregnancy to term is to lose control of that which should remain forever inviolate. Since we are our bodies, to lose control of our bodies is to lose control of all of the rights and privileges we value. The right to own the self thus precedes all other rights. Of what value could all of the rights afforded to Americans be, if your person itself could be captured unwillingly for nine months and in that way forcibly and permanently altered?

“Slavery is the ownership of one person by another, the ownership of his person or her person,” said the historian Barbara Fields in an interview for the Ken Burns documentary The Civil War. The slaveholder, according to Fields, says always to the slave “important decisions that control your life are mine.” And now, so too do American women and others who become pregnant give up control over their own lives, not to slaveowners but to nine unelected judges whose power depends upon the contingent and random outcomes of when their peers retire or die.

A Question of Freedom

In 1973, Roe v Wade was decided based on the notion that abortion rights were guaranteed under a right to privacy that, the justices of that court argued, was implied into the Constitution even though it was not explicitly delineated there. Last month, the Roberts court annulled that argument based on the logic of Samuel Alito’s majority opinion, which insists that there is no right to an abortion to be found in the Constitution, implied or otherwise.

But in his opinion, Alito does grant that some implied rights do exist, and the reference is telling. Alito refers to the Fourteenth Amendment, which was passed during Reconstruction in the face of bitter Southern resistance, and which enshrines into the Constitution the concept of equal protection under the law. Its most basic impact was to protect the rights of freed slaves as equal in the eyes of the law – though sadly only in letter, not in effect. Alito dismisses reference to the Fourteenth Amendment in regard to abortion by quoting the Washington v Glucksberg case in saying “any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”

But, of course, slavery itself was deeply rooted in the nation’s history and tradition. Now, I dearly hope, we can no longer say so. Far from representing an intelligent guide to the limits on our liberties, the Washington v Glucksberg standard merely underlines the absurdity of continuing to hold our nation hostage to the whims of a document written nearly 250 years ago. Our concepts of personal freedom must evolve alongside technological progress, including in medicine. The writers of the Constitution (without exception white property-owning men) could not possibly have comprehended modernity’s safe and reliable abortion options, to say nothing of the civil rights of modern women. To appeal to the Constitution to restrict abortion rights is thus an absurdity. One might note how poorly the Republican assault on abortion freedoms fits with their overall rhetoric and agenda. It’s strange that the political party that never stops talking about liberty and rights insists on such a narrow reading of the laws that delineate those rights. The strict originalist position that insists our rights extend only so far as they have been enshrined explicitly into law would seem to cut directly against the conservative notion that liberty is endowed to us by God and that things that are not expressly forbidden should be permitted. Why would a maximalist interpretation of the concept of freedom lead to a minimalist interpretation of how freedom is inscribed in law?

The Universality of Freedom

Conservatives have a habit of complaining about the tension between freedom and democracy, but strangely abortion is one of the only issues where they favor the latter. W.E.B. Dubois said that the fundamental question of slavery was, “What were to be the limits of democratic control in the United States?” And the answer was that democratic control ended when it came to the individual’s inviolate right to self-ownership.

I do not suggest that considering the Civil War’s legacy amounts to a specifically legal argument that might have saved Roe. I am, in fact, arguing that this lineage is something much greater than a legal argument. The right to own the self has been won through the blood and toil of an immense number of Americans, many of whom were willing to fight and die for the right to be their own masters. If the right for women and others who become pregnant to control the body by terminating a pregnancy is not in our Constitution, the fault lies in the Constitution and not in the American character.

Moreover, we will go on fighting until such rights are restored to all Americans because the lineage to which I refer demands universality across the entire nation. “In defending this law,” Alito writes in his opinion, “the State’s primary argument is that we should reconsider and overrule Roe and Casey and once again allow each State to regulate abortion as its citizens wish.” This deference to the states on the question of who owns the human body is precisely the argument that many Southerners made in the years leading to the Civil War. Supporters of slavery argued relentlessly that there should be different systems in slave states and free states. The war put this question to the test, in combat, and came back with a definitive answer. The basic logic of that war, and the moral righteousness of the North’s victory, cut precisely against the notion that those in some states have inferior rights to those in others, inferior right to claim the body for the self. Such rights are universal, or they exist not at all.

And it is in the spirit of that fundamental, liberty-favoring, profoundly American insistence that each person is wholly and totally the master of their own self that we will undertake the fight to restore abortion rights to all Americans, and it is in that spirit in which we will win.