Indiana law professor Dawn Johnsen, Pres. Barack Obama’s nominee to head the Justice Department’s all-important Office of Legal Counsel, had her Senate confirmation hearing Wednesday. During questioning by Sen. Arlen Specter, the professor professed to be “shocked” by my contention that she had once analogized pregnancy to involuntary servitude, a violation of the Thirteenth Amendment’s prohibition of slavery. I made this contention in a profile of Johnsen for the current (March 9) issue of National Review, which was posted on NRO on Monday.
I think the shock is on the other foot, for two reasons. First, Johnsen did make this jaw-dropping argument to the Supreme Court. And second, in her hearing testimony, she nevertheless flatly denied making a Thirteenth Amendment argument: “This is a brief that I filed arguing that the right to privacy protects, um, the right of women and their families to make these choices and that Roe v. Wade should be upheld, which is in 1989. I made no Thirteenth Amendment argument.”
Given the inevitability of the claim that I’ve taken Johnsen out of context, I am going to provide the full colloquy below, in the form of a transcript. But don’t take my word for it: The recorded hearing is available on the Senate Judiciary Committee website, here. Senator Specter’s questions on this topic begin at around 47:40 into the proceeding, which was a joint confirmation hearing for Johnsen and David Kris, the nominee to be assistant attorney general for DOJ’s National Security Division.
Before getting to that, though, let’s set the stage. Here is what Johnsen argued in footnote 23 of the
amicus brief she filed (as the head of the National Abortion Rights Action League) in the Supreme Court’s 1989 case
Webster v.
Reproductive Health Services, 492 U.S. 490 (1989) (No. 88-605):
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 line of argument was not an aberration. It is consistent with a major theme of the brief, to wit, that abortion restrictions result in “forced pregnancy” and government “conscription” of the woman’s body for its own purposes. Thus, for example, Johnsen wrote elsewhere in the brief: “[The woman] is constantly aware for nine months that her body is not wholly her own: the state has conscripted her body for its own ends.” Consequently, she concluded, abortion restrictions “reduce pregnant women to no more than fetal containers.”
With that in mind, here is the exchange between Johnsen and Specter at yesterday’s hearing. Note that Senator Specter does not purport to be reading from my article. He says he is going by Johnsen’s own writings — it was Johnsen who brought up my article.
Specter: [Video 47:40] The position you take on pro-choice — I’m pro-choice, and I agree with that doctrine. Some of the Supreme Court cases don’t please me, but that’s the law. When I read in your writings that abortion bans go beyond the Thirteenth Amendment, which bars slavery, and that “forced pregnancy requires a woman to provide continuous physical service to the fetus in order to further the state’s asserted interest” — it seems to me just candidly beyond the pale. To say that that’s a violation of the Thirteenth Amendment against slavery — do you stand by that statement?
Johnson: [Video 48:35] Thank you, Senator, for that opportunity to clarify. I was, I have to say, shocked when I saw that National Review article that made certain claims about what I had written yesterday. I have never —
Specter: You did not write that?
Johnson: I did write the part that you quoted, absolutely. Um, I have never argued that there’s a Thirteenth Amendment violation um, when, um, the government restricts abortion. Uh, that — I was shocked when I saw that. It took me a while to search and find what they were referring to. They made other claims that were clearly false. Uh — Here they — I did write a brief 20 years ago. Uh — In footnote 23, I found, makes um, um, a suggestion that there may be an analogy, um, between, not what the article said, pregnancy, which I’ve been blessed with twice and have two wonderful sons, but forced childbirth. This is a brief that I filed arguing that the right to privacy protects, um, the right of women and their families to make these choices and that Roe v. Wade should be upheld, which is in 1989. I made no Thirteenth Amendment argument. I can state categorically: I do not believe the Thirteenth Amendment is relevant at all. It was a straight Fourteenth Amendment argument.
Specter: Well, my question was whether you wrote that. I have listened to your answer, but I do not understand it. But I’ll take a look at footnote 23.
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