Second Middle Passage: How Anti-Abortion Laws Perpetuate Structures of Slavery and the Case for Reproductive Justice
Halley Townsend * | 25.1 | Citation: Halley Townsend, Second Middle Passage: How Anti-Abortion Laws Perpetuate Structures of Slavery and the Case for Reproductive Justice, 25 U. Pa. J. Const. L. 187 (2023).
“To celebrate freedom and democracy while forgetting America’s origins in a slavery economy is patriotism à la carte.”
In the 1850s, a slave woman named Celia was raped by her owner and forced to bear his children. The same situation is playing out in present-day abortion prohibition states thanks to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health overturning Roe v. Wade. In our country, neither a nineteenth-century enslaved woman nor a present day woman of color in many of the former slave states could seek an abortion. This Article argues that anti-abortion laws in the former slaveholding states perpetuate structures of slavery in the form of state control over the Black female body.
By centering Black women, this Article shifts our constitutional and political discourse on reproductive justice in important ways. The rationales that propped up maternal bloodline codes and laws enabling forced reproduction in the 1800s persisted through the Jim Crow period to the present day. States have always exercised control over Black women’s bodies, whether through slavery, abortion bans, medical experimentation, gendered lynching, or forced sterilization and eugenics. Anti-abortion laws are no different. The conversation around reproductive choice has, however, always been overwhelmingly white. If we want to truly eradicate slavery and all its vestiges, we must admit the fact that the current trend in the former slave states of outlawing abortion reproduces structures of slavery. This Article exposes the connection between forced birth and slavery, recognizing that there are constitutional pathways to resist anti-abortion laws and support reproductive justice.
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* Associate, Holland & Knight. J.D., Washington and Lee University School of Law