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Unpublished Paper
Ain’t I a Woman, Too?: The Thirteenth Amendment, In Defense of Incarcerated Women’s Reproductive Rights
  • Alexandria Gutierrez, Boston University School of Law
In her memoir, Harriet Ann Jacobs highlights the unique impact slavery had on women. The physical dominion imposed upon female slaves included both internal and external bodily control. Beyond sexual exploitation, the bodies of female slaves were used for a type of labor for which their male counterparts were not capable: reproduction. Forced pregnancy in the slavery context was a tragic and violative experience affecting women physically, psychologically, and emotionally. Long after the ratification of the Thirteenth Amendment, slavery-like practices lived on through social, political, and economic mechanisms. In the penological context, peonage laws, penal plantations, and chain gangs were techniques employed to give slavery the façade of legitimacy. Legal advocates from Reconstruction through the Civil Rights Era saw through these practices. Eradicating the “badges or incidents” of slavery became as important as ending the actual slave trade. But what of women? The traumatizing effects of forced labor in the slave context are strikingly similar to those in the penal context – insufficient prenatal care, lack of freedom of choice in either direction (to bear or not to bear), and removal of the newborn upon delivery. Still, we do not associate this with slave-like labor, worthy of eradication on the same principles. At first blush, penal policies restricting or banning abortion raises two constitutional red flags. Denying inmates reproductive choice is a deprivation of due process under the Fourteenth Amendment, and forced labor is conceptualized as a form of cruel and unusual under the Eighth Amendment. Together, the Fourteenth and Eighth Amendments support the argument that women do not forfeit the right to terminate a pregnancy while incarcerated. However, the application of these standards has produced mixed results, and the Supreme Court has not yet granted certiorari on the issue. This Note asserts an alternative argument in favor of incarcerated women’s right to abortion: the Thirteenth Amendment protection against involuntary servitude and slavery. Although the Thirteenth Amendment makes an exception for “punishment,” this exception is a narrow one. Female inmates are not slaves of the State, and the type of servitude the State may impose upon female inmates is not without limitation. Denying an incarcerated woman the right to an abortion—in effect, forcing her to labor in prison—violates her right to be free from “slavery” and “involuntary servitude” under the Thirteenth Amendment.
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Citation Information
Alexandria Gutierrez. "Ain’t I a Woman, Too?: The Thirteenth Amendment, In Defense of Incarcerated Women’s Reproductive Rights" (2012)
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