With J.D. Vance now running for Vice President, his remarks comparing abortion to slavery will likely again be the subject of debate. He caused quite a stir when, as a candidate for Senate two years ago, he said, “There’s something comparable between abortion and slavery, in that . . . the people who obviously suffer the most are those subjected to it. I think it has this morally distorting effect on the entire society.” No movement wants to be tarred with the slavery brush, but the comparison has more support than just the feature on which Vance focused. Relying largely on the work of Professor Paul Finkelman and his article “Slavery in the United States: Persons or Property?” The Legal Understanding of Slavery: From the Historical to the Contemporary (2012), several additional analogues between slavery and abortion are prominent.
Ownership of Progeny
Slave owners in America in the 1600’s had a problem. While, under the common law, newborn livestock generally followed the rule that it was owned by the owner of the mother, newborn persons took their name and rights from their father. But White men were having sexual intercourse with enslaved Black women, with predictable consequences. If the common law were applied, their children would take the name and rights of the father and be free persons.
This problem would be solved, of course, if the slave mother were treated as if she were livestock and her progeny took that legal status, too. Then, the White male owner would have done nothing illegal when he did whatever he willed with his property, with or without the mother’s consent, and any resulting child would simply give him more property that he could use as he desired. And that was the solution the all-White-male Virginia House of Burgesses enacted in 1662: “WHEREAS some doubts have arisen whether children got by Englishmen upon negro women should be slave or ffree [sic], Be it therefore enacted . . . that all children borne in this country shall be held bond or free only according to the condition of the mother . . . .”
Professor Finkelman commented on the change in the common law as follows:
The law also led to a particularly disgraceful aspect of American slavery which would continue until final abolition: masters would be the owners of their own children fathered with slave women and would treat them as property, to be bought, sold, used as collateral, and gifted. This law reduced the children of all slave women to property and, perversely, led generations of White southern men to treat their own children as property.
Abortion, likewise, treats the unborn child as owned by the mother, reversing the common law that children take the name and rights of the father. Abortion allows mothers to treat their own children as property—not to be bought or sold as reusable property, but to be killed because they are a present or future burden to their mothers alone.
No Punishment for Killing
British common law provided for the protection of all human life. Despite their value, masters sometimes killed their slaves. Would there be punishment for such killing (treating slaves as persons) or not (treating them as property)?
Virginia, the state that always had the most slaves, is representative of how this question was handled in the Colonies. In 1669, it enacted a law that an owner would not be held responsible criminally if his slave died from punishment. The statute created a legal presumption that the master always acted rationally in such circumstances, stating that “it cannot be presumed that prepensed [sic] malice . . . should induce any man to destroy his own estate.” Then, in 1680, in “An act for preventing Negro Insurrections,” Virginia allowed the killing of any slaves who escaped from their masters and “lye [sic] hid and lurking in obscure places.” It expanded that permission a decade later by authorizing local justices of the peace to order sheriffs to “kill and destroy . . . by gunn [sic] or any otherwise whatsoever” any “negroes, mulattoes, and other slaves unlawfully absent[ing] themselves from their masters and mistresses service” who “lie hid and lurk in obscure places.” Finally, in 1723 the Virginia legislature provided that, if captured, such slaves could be “punished, by dismembering, or in other way, not touching life,” but that death from such punishment would not be prosecuted.
The parallel to abortion is plain. Where abortion is permitted, unborn children may be poisoned, dismembered, and killed by their owners/mothers without fear of criminal prosecution. The law assumes that any mother who kills her unborn child has good reasons to do so, as she will be sublimating her normal, maternal instincts. The idea that she might do so out of anger or caprice or social pressure or mental illness will not be entertained by the law. That the unborn child, if allowed to continue to develop, might prove inconvenient to the mother and others is wholly sufficient justification for killing her child. The child is property of the mother and may be disposed of summarily. The unborn child is her slave.
Lack of Representation
The Supreme Court’s 1842 decision in Prigg v. Pennsylvania, which struck down the “personal liberty laws” of Northern states that provided more procedural protections for fugitive slaves and that sometimes prohibited state officials from assisting slave owners in reclaiming fugitives, fomented a strong reaction in the North and a counterreaction in the South. Northern states simply refused to continue to enforce the 1793 Fugitive Slave Law. In return, the Southern states clamored for a federal law that had the teeth of more enforcement powers—and they got it.
In 1850, Congress amended the Fugitive Slave Law and set up a federal judicial and bureaucratic apparatus to assist masters in recovering their slaves who fled to free states. The revised law also took direct aim at the substance of the “personal privilege laws” by stripping Black people of normal due process rights and privileges and immunities. Federal judges and newly created commissioners would hear these cases, without right of appeal to any court. The certificate issued by a judge or commissioner would “be conclusive of the right of the person or persons in whose favor granted, to remove such fugitive to the State or Territory from which he escaped, and shall prevent all molestation of such person or persons by any process issued by any court, judge, magistrate, or other person whomsoever.” Moreover, picking up from laws in the Southern states that prohibited Black people from testifying against White people, the amended law provided, “In no trial or hearing under this act shall the testimony of such alleged fugitive be admitted in evidence.” As Professor Finkelman remarked, “This provision, more than any other, reduced the slave to a ‘thing.’”
There is a direct analogue to abortion, because the unborn child cannot speak for herself as to whether her life should be terminated. And the unborn child does not get independent, guardian ad litem representation, either. It is even worse for the unborn child than it was for the Black person who was [SF2] accused of being a fugitive, because at least there was some judicial-type proceeding involved in the remand of a Black man to a purported owner’s custody at which other, White people could present evidence on the Black mans behalf. Where abortion is permitted, the unborn child, except in limited cases in some states involving a minor who desires to abort in spite of parental or paternal objections, has no judicial protection. Once again, the unborn child is treated exactly as a slave, as property, as a thing.
Definition of Slavery Applied to Abortion
What, then, is slavery? Professor Finkelman in his work identifies the principal feature to be treatment of the individual as property. Reflecting on the work of Congress and the Supreme Court, he summarizes the incidents of slavery as follows:
slavery . . . was a system of [a] treating people like property—[b] without the power to control their own lives, [c] without the right to own land or personal property, [d] without the power to speak out about their own liberty, [e] without the power to even control their families. These were the ‘badges of slavery’ that began in the seventeenth century and grew until the end of slavery itself.
And to these must be added [f], your “owner” being able to dispose of you with impunity.
All of these incidents and definitions of slavery apply to abortion:
[a] Unborn children are treated as the property of the mother.
[b] Unborn children do not have the power to control their own lives, but may be killed by the one who “owns” them, without penalty.
[c] Being aborted terminates the unborn child’s potential to become an adult and to own land or personal property or, for that matter, to inherit even in utero.
[d] Unborn children have no power to speak for themselves or to fight for their own liberty. They are not even permitted guardians ad litem to speak for them.
[e] Unborn children do not control their families; their families—and in particular their mothers—control them, without any necessary regard for them or their welfare whatsoever.
[f] And the whole point of abortion is that mothers may dispose of their unwanted unborn children with impunity.
Conclusion
J.D. Vance has a point when he analogizes abortion to slavery. In the final analysis, both the slave and the unborn child are treated as property, rather than as persons.
