Excerpted From: Halley Townsend, Second Middle Passage: How Anti-abortion Laws Perpetuate Structures of Slavery and the Case for Reproductive Justice, 25 University of Pennsylvania Journal of Constitutional Law 187 (March, 2023) (352 Footnotes) (Full Document)


HalleyTownsendFrom ages fourteen to nineteen, Celia, a slave, endured five years of horrific rapes at the hands of her owner, Robert Newsom. Celia was forced to bear two of her rapist's children. When she became pregnant and ill a third time, she warned him that the abuse had to stop.

But on the night of June 23, 1855, Newsom crept into her cabin and tried to force her to have sex with him. Celia took a stick and bashed his head with it, killing him .... Then she pushed his body into a roaring fire in her cabin's fireplace. The next day, his bones were carried out in the embers.

Celia claimed self-defense at her trial, Missouri v. Celia, a Slave, arguing that Missouri law protected “any woman” from “attempts to ravish, rape, or defile.” The Court held that Celia was a slave, not a woman, and sentenced her to death. She escaped, but was captured a few days later. The Missouri Supreme Court delayed her execution to allow her to give birth to her rapist's third child, who was born dead. The State of Missouri hanged Celia for first degree murder at the age of nineteen.

Abortion was not an option for Celia, and her master Robert Newsom had every interest in forcing Celia to bear as many children as possible. Because the international slave trade was prohibited after 1808, the only way to increase the slave labor force was to control the wombs of enslaved women. It was economically profitable for seventy-year-old Robert Newsom not only to rape his teenage slave, but to force her to carry the pregnancies to completion.

Celia's story is not unusual. This Article will trace the regulation of the Black female body back to the days of chattel slavery. I will argue that the pro-life legal movement began in America as a way for white slaveholders to profit from the exploitation of Black female bodies. After the African slave trade ceased, white slaveholders had a direct financial incentive to force Black women to bear as many children as possible. The slave trade became more economically valuable than slave labor itself. Once the states ratified the Thirteenth Amendment, slavery became formally illegal. But the regulation and subjugation of Black bodies by the white people in power never ceased. Slavery turned to Jim Crow, which turned to the various examples of structural racism that we see today. But while historians and legal scholars have written about these injustices at length, they have paid comparatively little attention to the disproportionate impact anti-abortion laws have on Black and Brown women.

One and a half centuries after Celia's death, the Supreme Court overruled the constitutionally protected right to an abortion in Dobbs v. Jackson Women's Health Organization. Justice Alito, writing for the conservative majority, argued that abortion legislation should be left up to the states. This decision came as trigger bans and highly restrictive abortion bills passed in many of the former slave states and around the country. An example is the Texas Heartbeat Act, or SB8. SB8 nests with Texas's total abortion ban to allow any private citizen to sue providers who violate the law. There is no exception to Texas's ban if the woman is a survivor of rape or incest. Legislators specifically designed SB8 to avoid federal constitutional review. This Article will argue that anti-abortion laws in the former slave states, like SB8 in Texas, will perpetuate structures of slavery in the form of state control over the Black female body. At worst, like during the days of slavery, these laws will force Black women to carry pregnancies resulting from rape or incest to term, taking on all the risks and costs that pregnancy and childrearing entail. In the best-case scenario, abortion bans will compel Black women to carry unwanted pregnancies to completion, increasing their expenses and making it more likely that more Black women will fall below the poverty line.

This Article proceeds in three Parts. Part I explains how state control over the reproductive rights of Black women is rooted in slavery. After slavery formally ended, states and their white citizens continued to exploit Black women's bodies through abortion criminalization campaigns, the Jim Crow era, forced sterilization, and eugenics. Part II discusses the state of America after the death of Roe, with a specific focus on abortion laws in Mississippi and Texas. These laws are modern examples of states denying Black women agency over their own bodies. Finally, Part III makes the case for reproductive justice by specifying the structures of slavery perpetuated by anti-abortion laws.

[. . .]

In 1850, at age fourteen, Celia began the last five years of her life: five years of rape and abuse at the hands of her owner, a white man five times older than her. She bore three of his children. Nearly two hundred years later, sixteen-year-old Margaret was trafficked for sex by her older cousin in Texas. Strangers raped Margaret multiple times a day. Margaret dissociated from her life of coerced sex, and “was so disconnected from her body and her tortuous reality” that she did not know she was pregnant until well after the six-week deadline in SB8. On April 7, 2022, Texas police arrested 26-year old Lizelle Herrera for self-inducing an abortion using the abortion pill and charged her with murder. Celia could not seek an abortion. Margaret could not seek an abortion. Celia was charged with murder for protecting herself from her rapist. Lizelle was charged with murder for seeking an abortion.

Two hundred years later, abortion laws in the former slave states perpetuate structures of slavery by controlling Black women's reproductive decisions. Two hundred years later, states are still controlling Black women's bodies. Now, more than ever, it is critical that we call out the disproportionate impact anti-abortion laws have on Black women. Now more than ever, it is crucial that we resist anti-abortion laws for the sake of the many millions of people in America who can be forced to bear children without the fundamental constitutional protection of choice.

Halley Townsend, Associate, Holland & Knight. J.D., Washington and Lee University School of Law.