Americans agree that slavery was a terrible injustice. But, put a person who is pro-choice and another who is pro-life in the same room and the topic of abortion becomes volatile rather quickly. Americans have settled the national attitude on slavery; it’s immoral and evil. The nation is split down the middle, however when it comes to the topic of abortion. The U.S. is a place that is terrified of being racist towards blacks and other minorities because of it’s past involvement with slavery. Oddly enough, many who work so hard to not be racist, will vehemently defend the right to have an abortion.

The moral and scientific arguments, that conservatives and evangelicals tend to recite, against both of these matters, are low hanging fruit. The legal arguments are a little more complex. Interestingly enough, judicial decisions concerning abortion and slavery are “nearly identical” according to anti abortion activist Star Parker. The American court system ruled that slavery and abortion were legal. There are two specific ways that abortion and slavery use the same justifications for its legality.

  1. What is Personhood?: Dehumanization

The foundation of slavery and abortion laws comes down to the same issue- ‘What is Personhood’. Legally speaking, what actually constitutes personhood in America? The reason this is such a delicate legal issue is if someone is defined as a person then God-given, individual rights come into play. Idealistically, when American citizenship is established protection under the law kicks in; then slavery (and potentially abortion) is considered punishable by the courts. So, until the question of personhood is settled the courts are powerless in defending those being mistreated or killed. Fortunately, this question was answered by the courts concerning slavery long ago. Unfortunately, the question has not been answered in the infants’ favor… Yet!

Personhood is defined by those in power. Justin Dyer, writer for the Public Discourse, wrote, “(A) feminist legal theorist said, ‘a fetal life has value when people with power value it’.”Laurence Tribe, a pro-choice, Harvard Law Professor retorted, “The same thing was once said of slaves: the value of black Americans was less than the value of white Americans in the view of people with power.” Berkeley Law Professor, John Noonan said there has always been “a propensity of professionals in the legal process to dehumanize by legal concepts those whom the law affects harshly.”

How could slavery and abortion ever been legal in the Land of the Free? Well, in both cases those in favor of keeping abortion and slavery legal used the Constitution to justify both actions. In the Dred Scott v Sandford decision the 5th Amendment was utilized to defend the slave master. That amendment states, “No person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

In this case, the question was whether or not a black slave was a person or a piece of property. If property, the state could not free slaves and, according to law, citizens could not be deprived of their property thus, slaves could not be freed. A slave’s freedom would essentially deprive an American from his possession.

In the Roe v Wade case the decision was based on the first section of the 14th Amendment. That section states, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The argument is that the state cannot withhold an American citizen (the mother) from what she deserves (life, liberty and property). Also, the state cannot choose the life of a fetus, who has no viability, over that of a viable citizen, the mother. The state is to protect the women over the fetus. In order to choose the life of the mother over the life of the fetus the law cannot consider the fetus a person. If the fetus were considered a person no judge could decide that abortion is legal, because, at that point, the 5th Amendment would be violated.

The issue with both of these arguments was broken down by the infamous Justice Scalia along with Justice Bork who said,“The fatal constitutional flaw in each decision was it’s reliance on the legal doctrine of substantive due process.” Meaning, the courts misinterpreted the meaning of protecting basic rights that are separate from rights created by man. The decisions by these courts did not take into consideration the substantive rights of the slave and the fetus, mainly because neither were/are defined as a person.

If America is to believe that there are substantive, God-given rights that belong to all mankind then categorizing humans as property or lacking viability is ultimately against the law. If America is a just country then, by law, slavery and abortion are equally immoral, equally injust and equally illegal, according the Constitution.

2. It’s None Of Your Business: “Private Violence”

In 1977 the National Right To Life Committee Newsletter said, “(If) one accepts the position that life is private, and therefore you have the right to do with it as you please, one must also accept the conclusion of that logic. That was the premise of slavery. You could not protest the existence or treatment of slaves on the plantation because that was private and therefore outside your right to be concerned.”

How many picket signs during women’s marches said something along the lines of “My Body, My Choice, No Debate”? How many Pro-life Americans have been shouted down because they should have nothing to do with what a woman chooses to do with her body? This argument, although a very weak one, was not brought up out of thin air. Its a legal argument against criminalizing abortion. As flawed as that argument may be it worked in the generation that had slaves.

One of the foundational principles of America is that the government should, technically, butt out of the lives of American citizens. Americans are free to get rich, live like a pauper, marry whomever they want, own weapons and own property. With each generation the court has to decide if an action is a right, in which, the government shouldn’t step in to bring order and justice. The state cannot be involved with what you do or say in the privacy of your own home. The idea of private violence, oddly thought of as liberty, isn’t new in America. It was used in the time of slavery and is being used again in the era of abortion on demand. But, this argument of privacy is a porous one.

Abortion and slavery have undertones of private violence within each issue. Should the state intervene in abortion, after all, there is a life being lost? Should the state have intervened when slaves were mistreated or killed on the plantation?

In 1829, State v Mann, North Carolina Judge Thomas Ruffin had to determine whether or not private violence was, in fact, none of the state’s business. A slave girl, as she was running away from her master, was shot in the back. Obviously, shooting a human being, in cold blood, is a terrible offense, but the girl was not a free citizen, she was property. According to Judge Ruffin, within slavery, there is a “realm of private violence” that the law was “powerless” to interfere. Judge Ruffin said, “The wrath of the master was generally practiced with impunity; by reason of privacy.” In other words, a man could do with his property whatever he saw fit without consequence. Private violence is built on the fact that slaves and fetuses have no personhood. Once a lack of viability or personhood is established then liberties of an unfortunate class of Americans are completely violated and that violation is protected under the law.

Humans have no right to health care, money, equal outcome, food or any other thing that a man can give or take away. Humans do have a right to live, have a free will and work hard to pursue their dreams, all of which are God given. With that in mind it is easy to see that private violence on human beings is completely unconstitutional. Forcing someone to work for your dreams is not life, liberty and the pursuit of happiness. Killing someone before they can even start to pursue life and liberty is, in fact, murder and most definitely violates the Constitution up one way and down the other.

There is a scary parallel between decisions on slavery and that of abortion. The recent laws passed concerning late term abortions are concerning. Understanding how America came to decisions on these matters will help the country not make the same mistakes as the past. America failed when it came to abortion. In 1973 the realization that we had been here before didn’t dawn on us. We learned nothing from the decisions made by judges in the early stages of this country when slavery was being debated.

Once again we have a class of people that have been deemed less than human. The elite among us have overstepped the Constitution. We have become prideful in thinking that we can play God, deciding who lives, who dies, who’s viable and who’s property. But much like slavery, abortion is not set in stone and it will end, but also like slavery it will be a stain on this generation.