Last week, Indiana law professor Dawn Johnsen, Pres. Barack Obama’s nominee to head the Justice Department’s Office of Legal Counsel, had her Senate confirmation hearing. During confirmation hearings, Senators question the nominees about their views and philosophies on legal matters. They often use prior writings, such as articles in law journals, and briefs filed before branches of the federal court, as the basis of their interrogation.
Professor Johnsen has been a strong advocate for the abortion rights position, and has written about the subject. In fact, she was head of the National Abortion Rights Action League in the late 1980’s, and in that position she filed an amicus curiae legal brief to the United States Supreme Court when they were considering the 1989 case of Webster v. Reproductive Health Services , 492 U.S. 490 (1989) (No. 88-605).
In footnote 23 of her brief, Professor Johnsen argued: “Statutes that curtail [a woman’s] abortion choice are disturbingly suggestive of involuntary servitude, prohibited by the Thirteenth Amendment, in that forced pregnancy requires a woman to provide continuous physical service to the fetus in order to further the state’s asserted interest.”
This is an amazing argument. Abortion activists have universally claimed that a woman has an absolute right to choose what happens with her own body. They have also maintained, without exception, that a fetus is not a person. They often compare removal of the fetus to the removal of a wart – it’s just another growth inside the woman’s body, and she of course has the right to remove any such growth at will.
It would appear that Professor Johnsen didn’t get the memo on those arguments.
She argued, to the United States Supreme Court, that pregnancy places the woman in the position of a slave, since she would be in involuntary servitude. But slavery always involves TWO people – one to be the slave and one to be the master. If there is no master, there can be no slave.
So who is the master in Professor Johnsen’s argument?
She helpfully tells us. She states that the woman must “provide continuous physical service to the fetus”. So, according to the professor, the fetus is the master.
That means that the fetus must be a separate and distinct entity from the woman, since a single part of the woman’s body could not the rest of that same body into involuntary servitude. That would be like saying that the heart coerced the lungs into breathing.
It also means that Professor Johnsen is recognizing the fetus as a person, since only a person can exercise ownership rights. And since she is claiming that the fetus “owns” the woman in whom he or she resides, she is claiming that the fetus is breaking the Thirteenth Amendment. Only a person can break a law.
At her hearing, Professor Johnsen claimed that she had not made the argument that is quoted above, although she admitted that she had written it, and sent to the Supreme Court.
So, it would seem that abortion advocates like Professor Johnsen believe that an unborn child is simultaneously a non-person and a person who can break the Thirteenth Amendment, and that a legal argument written and submitted to the Supreme Court is not a legal argument made.
Even the Mad Hatter would have a problem with this one.