Mama's Got a Plan:

Maternity Care, Health Insurance, and Reproductive Justice

A Third Amendment theory of abortion rights



This cartoon grew out of the study of different constitutional theories of abortion rights, some better known than others. The First and Second Amendments of the Constitution have infiltrated the popular imagination, but the Third -? What is the Third Amendment, anyway?

Frame 1. The soldier in the title frame is General John Burgoyne, as shown in his portrait by Sir Joshua Reynolds, c. 1760.

Frame 2. Justice William O. Douglas first articulated the Privacy framework in the case of Griswold v. Connecticut (381 U.S. 479 (1965)), which concerned not abortion rights, but the right of married couples to use contraception. As Privacy is not a right specifically named in the Constitution, Douglas introduced the concept of a penumbra, a shadow or cloud emanating from the Bill of Rights, chiefly the First Amendment. Privacy was defined as preventing the government from interfering with marital privacy. This protected area was later expanded to rights to contraception for unmarried people, and then to abortion rights (see Roe v. Wade, 410 U.S. 113 (1973).

Frame 3. Justice Ruth Bader Ginsburg believed that abortion rights were better protected by the Fourteenth Amendment’s Equal Protection Clause:

“… legal challenges to undue restrictions on abortion procedures do not seek to vindicate some gen­eralized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”
Gonzales v. Carthart, 550 U.S. 124 (2007), dissent

Ginsburg’s critique of Roe‘s constitutional basis is described in greater detail in this article. Neil S. Siegel and Reva B. Siegel, in their 2013 journal article, “Equality Arguments for Abortion Rights,” further explore the Equal Protection argument by quoting Justice Blackmun’s dissent in Planned Parenthood  v. CaseyBlackmun asserts that the Court’s assumption that women “can simply be forced to accept the ‘natural’ status and incidents of motherhood—appears to rest upon a conception of women’s role that has triggered the pro­tection of the Equal Protection Clause.”

Frame 4. According to the History Channel, the photo of African-Americans in the cotton fields represents a “slave family standing next to baskets of recently-picked cotton near Savannah, Georgia in the 1860s.” The realities of slavery with respect to women’s reproduction has been ably addressed by Dorothy Roberts and Rickie Solinger, who discuss both the coercive nature of these women’s pregnancies as well as their subjugation to the role of producers of future slaves.

The connection to abortion rights is the Thirteenth Amendment, which forbids slavery and involuntary servitude. Legal scholar Andrew Koppelman, in his 2012 article, “Originalism, Abortion, and the Thirteenth Amendment,” draws an analogy between the forced labor of slaves, including their forced reproduction, and the forced labor of women compelled by abortion bans to carry their pregnancy to term. Of course, Koppelman is not claiming that absence of abortion access is equivalent in severity to the past system of slavery in this country, only that both issues can be seen as a violation of the Thirteenth Amendment.

Frame 5. The crowd at the 2004 March for Women’s Lives seems puzzled by the Third Amendment. The photo of the march by Bubamara, shared under a Creative Commons license, is augmented by an airplane towing a “Keep Abortion Legal” sign.

Frame 6.  At last! All is explained! The Third Amendment forbids the forcible housing of military personnel in  citizens’ homes. Its incorporation in the Bill of Rights was a reaction by the Founders to that very practice carried out by the British during the Revolutionary War. The home pictured here is the Brewster House of Setauket, New York, built in 1665. The photo is by Iracaz, shared under a Creative Commons license. The reluctant B&B host is taken from a work housed in the New York Public Library. She is Elizabeth Zane, whose exploits are detailed here; apparently, she was the inspiration for Zane Grey’s Betty Zane (1903), the first volume of his Ohio River Trilogy.

Frame 7. The Guttmacher Institute, one of the prime sources of U.S. abortion data, lists state abortion restrictions enacted during the last several years. The old woman in the shoe, it is surmised here, has so many children that she doesn’t know what to do because of these abortion restrictions. She accuses the state of forcibly housing a fetus in her uterus.

Frame 8. Prepare for a romp through property law, Dear Reader! (Remember, don’t go to law school.) We apply this question: when can someone else be in your home? In this frame, the fetus is compared to a guest who has been invited but is now being asked to leave – as is acceptable at common law, under which tenants or guests of property owners possess relatively few rights. The scene shown, for those who came of age after reruns of The Jeffersons ceased, is of Mr. Jefferson ejecting Mr. Bentley. The dialog, however, is taken not from The Jeffersons, but from The Spellbinders Collection. Our thanks to Ed G. for suggesting this source.

Frame 9. On the other hand, perhaps the fetus is more like a tenant delinquent in rent payments and now facing eviction, as shown in this 1892 painting, Evicted, by Danish artist Erik Henningsen. This image is in the public domain. This comparison highlights the uncompensated nature of women’s labor: the fetus, after all, gives no consideration in exchange for housing – and neither does the state that imposes abortion restrictions.

Frame 10. We move on to trespassing. Harrison Ford, as President James Marshall, spends most of Air Force One (1997) playing hide-and-seek with a deadly group of planenappers. When the president finally gets Gary Oldham (“Ivan”) in his clutches, Ivan finds himself violently pushed off the plane. We show the classic line in a still from another scene (in which the president growls, “Leave my family alone!”). The true scene of Ivan’s end is here. It is worth mentioning that property owners are discouraged from using self-help to eject trespassers; since the president had no sheriff accessible, he can probably be forgiven for taking matters into his own hands.

Whether the fetus is trespassing on the pregnant person is an interesting philosophical question. However, given that almost half of all U.S. pregnancies are unplanned, it is fair to say that in many cases the fetus is present against the pregnant person’s wishes.

Frame 11. Even a person who comes on the land without the owner’s permission may gain some property rights. A prescriptive easement is granted when a person takes adverse possession of the land: their use of the land is open, notorious, and hostile. That is, they use the land openly and against the owner’s wishes, continuously over the course of a statutory period defined by the state. At the end of this period, they are granted an easement to be on the land.

In Michigan, the statutory period is fifteen years. Therefore, we show a fifteen-year-old fetus establishing a Disco in Utero. Even if she is there without her mother’s permission, may she invoke the law in continuing to occupy the space, operate strobe lights and loud music, and dance all night?

Confirmation of the Michigan fifteen-year statutory period led to immediate thoughts of a prenatal quinceañera celebration. Alas, there is not room here to explore this idea; the concept will have to be set aside for another cartoon. Forewarned!

Please note that this image is the only instance in this cartoon of a visibly pregnant person. That is because 65% of abortions in the U.S. are carried out by eight weeks’ gestation, before most pregnancies have begun to show at all. In fact, 91% of all abortions are carried out by thirteen weeks, still very early in a typical 40-week pregnancy. We felt that a fifteen-year gestation, on the other hand, really demanded a visibly pregnant person.

Frame 12. The final frame shows a 1787 painting of the Hartley family, by Henry Benbridge. We discovered this painting on the blog 18C American Women, maintained by art historian Barbara Wells Sarudy; we later tracked it down to the collection of the Princeton University Art Museum.

The ladies of Family Hartley are declaring their autonomy and personhood as an explanation of why an analogy of the fetus to an occupier of maternal land must ultimately fail. To separate pregnant person and fetus as conflicting entities – occupier and occupied – is tempting but unsound. As explained by the authors of Laboring On: Birth in Transition in the United States, mother and fetus constitute a bonded dyad.

A fetus is neither property nor a legal person, but a potential person. Women are not houses, airplanes, or discos. The fetus is not their possession, but part of them. The reason that pregnant people are the best decision-makers about abortion – or childbirth, for that matter – is that they are the experts. They hold close to their hearts the interests of their families, present and future, their own lives, and their many other responsibilities.

Your cartoonist expresses gratitude to SMV for inspiring this cartoon through his persistent complaints of the sad neglect of the Third Amendment in both U.S. jurisprudence and high school government classes.

[Updated Oct. 22, 2016, for some minor grammar and punctuation fixes. Updated Oct. 23, 2016, to fix factual error about Griswold.]

[Updated Oct. 11, 2017, to fix capitalization errors and the spelling of Gary Oldham’s name. In addition, we deleted a few sentences at the end of the post that we had unconsciously lifted from the end of a Margaret Drabble novel!]

[Updated July 25, 2021, to fix style and punctuation issues.]


The midwife national convention



It’s time for the
Midwife National Convention!

Publicity for the upcoming annual conference of the Midwives Alliance of North America, combined with this summer’s Republican and Democratic national conventions, were the twin inspirations for this cartoon.  It seems unlikely that we will elect a midwife-in-chief anytime soon, but cherishing midwives’ skills and experience under the cover of political maneuvering seems like an end in itself.

References and Explanations

Frame 1. The background photo is from one of this summer’s conventions. Does it matter which? The MNC logo is based on a graphic by Sam Taeguk, shared under a Creative Commons license.

Frame 2. Every gathering needs a quilt exhibit! This quilt is intended to convey – by the variety of fabrics in the baby blocks – the diversity of North American midwifery. Every midwife has been caught out at least once wearing good clothes when the urgent summons to a birth arrives. What to do with those stubborn stains? When Spray N Wash fails, cut up that fabric for a quilt! Many thanks to Kathy Peters for her quilt design skills. The person gazing at the quilt is taken from a photo by Phil Roeder, shared under a Creative Commons license.

Frame 3. The photo by Pete Souza shows a 2009 meeting of President Obama’s cabinet, shared under a Creative Commons license. We’ve taken the liberty of cropping out the President, but perceptive readers will recognize individual cabinet members.

Frame 4. This frame shows the White House Situation Room, as portrayed in The West Wing.

Frame 5. This song, published in 1980 by Molly Scott of Sumitra, is sung here in the U.S. House of Representatives.

Frame 6.  Anyone with knowledge of the midwifery model of care will recognize the original context for the words MANA president Marinah Farrell is speaking to Vladimir Putin against the background of the Oval Office:

Laboring person: I can't do it!!!
Midwife: You're doing it!

The Midwifey Face is an invention of your cartoonist, who theorizes that midwives are endowed with special facial features or expressions that allow them to persuade anyone to do anything, no matter how difficult.


On Mama’s bookshelf


Our bookshelf overfloweth! Here is a sampling of the reproduction-related volumes that have crossed our desk in the last few months.

a-midwifes-storyA Midwife’s Story (1986), by Penny Armstrong and Sheryl Feldman, relates how Armstrong, a nurse-midwife, comes to live near the Amish in Lancaster County, PA and provide care to them. It’s a very tender description of the families she comes to serve and love, as well as the change she herself undergoes in the process.


After Birth (2015), by Elisa Albert. Ari and Paul move to upstate New York from the city when she is six months pregnant. The book begins as Ari is just emerging from her first year postpartum after a traumatic birth. In a town of poverty-stricken fading grandeur (of a kind we’re all too familiar with here in the Rust Belt), Ari’s friendship with a newly-arrived poet/musician is the mirror in which she views her own recovery progress. The first person narrative showcases Ari’s powerful and intensely personal voice:

Adrienne Rich had it right. No one gives a crap about motherhood unless they can profit off it. Women are expendable and the work of childbearing, done fully, done consciously is all-consuming. So who’s gonna write about it if everyone doing it is lost forever within it? You want adventures, you want poetry and art, you want to salon it up over at Gertrude and Alice’s, you’d best leave the messy all-consuming baby stuff to someone else.


Terrible Virtue (2016), by Ellen Feldman, is a fictionalized biography of Margaret Sanger. It describes her humble origins, her relationships with her husband and her children, and – always – the Cause.

sex-is-a-funny-wordSex is a Funny Word: A Book About Bodies, Feelings, and You (2015), by Cory Silverberg and Fiona Smyth. This children’s book identifies the requisite body parts and touches very briefly on babymaking, but chiefly addresses feelings and relationships. It’s probably best suited to children ages 8-14, but readers outside that range will still find gold nuggets between the covers.

Its hallmark is the beautiful diversity of bodies. The challenge of displaying different skin tones is resolved by including skin colors from real life and technicolor faces. The faces shown display a variety of features; these people look like your friends – if you can imagine your friends with blue, green, and purple faces!

The book examines any number of emotionally complicated topics quite sensitively and sensibly. This is the book you wish you’d had when you started asking questions no one would answer.

Interestingly enough, the narrative voice that is progressive and inclusive enough to recognize the work of midwives and avoid giving health care providers sole credit for “delivering” the baby nevertheless fails to question a practice that is the epitome of doctor-patient power relationships:

When a baby is born, the doctor or midwife who helped it be born looks at its new naked body.
If they look down and see a penis, they say, “It’s a boy.”
If they look down and see a vulva, they say, “It’s a girl.”

Why is it necessary for a provider to pronounce the sex of the child? Under the midwife model of care, parents are empowered to make that discovery themselves. On reflection, the ultimate power of mainstream maternity care is that it provides parents with the sex of their child while it is still in utero. This realization, however, is more a critique of that power relationship than of this book.

Our library copy of this book included – charmingly – two to-do lists. One was clearly wedding-related (“gym/tanning” and “drop off wedding dress”). The other listed tasks connected with a camping trip. Perhaps the happy couple was planning for children on their honeymoon?

bottomlandBottomland (2016), by Michelle Hoover, follows a German-American family of Iowa farmers at the end of the first world war. One night, two of the family’s daughters disappear from the house. What can have happened to them? Their older brother seeks them in Chicago while the remaining family deals with the hostility of their community that thirsts for answers about the death of a generation of sons in the war. Beautifully written, and takes advantage of the historical context of the story.


How it was possible for us to miss one of our favorite author’s books from way back in 2013, we don’t know. Life After Life, by Kate Atkinson, explores the life of Ursala Todd, born in England in 1910, by means of a multiple chapters titled “Be Ye Men of Valor,” Snow,” “War,” “Armistice,” “Peace,” and “A Lovely Day Tomorrow,” among others. In some pattern that is difficult to discern, these chapters draw out a common event that leads to different endings, in the context of the era spanning two world wars. The point, of course, is the twin roles of chance and choice in our lives.  This is a book that should be read multiple times, in order to tease out the intricacies of Atkinson’s plot(s)!


Sara Donati is another favorite author, for her Wilderness series, “six historical novels that follow the fortunes of a group of families living in upstate New York from about 1792-1825.” Her faithful readers rejoiced when Donati announced a new series, beginning with The Gilded Hour (2015), set in 1883 New York. Historical figures grace the pages of this novel, most notably Anthony Comstock, of the Comstock Laws that prohibited distribution of contraceptives, making The Gilded Hour a fine book to read alongside Terrible Virtue (see above). Like the Wilderness series, this newest novel portrays the work life and love life of one woman, within the context of her historical surroundings and fictional community. Readers can expect details on Dress Reform, midwifery and medicine, America’s melting pot/salad bowl, and the rights and restrictions women experience in making families for themselves.

the-long-way-homeWe experienced Louise Penny’s The Long Way Home (2014) by way of audiobook, as read by the late Ralph Cosham. Her tenth novel featuring the Québécois sleuth, Inspector Armand Gamache, it concerns the disappearance from the village of Three Pines one half of an artist couple, Peter Morrow. Peter’s wife Clara journeys with Gamache into the far reaches of Canada to search for Peter. This novel features a quest, a mystery that turns on the artist’s identity, and, as usual, brie on every sandwich.


Happy reading to all! Remember to support your public library by borrowing often to boost circulation figures. Michigan residents with participating libraries should remember the Michigan ELibrary is able to quickly place interlibrary loans and put many top-grade collections within our reach.


Bookshelf graphic is in the public domain, from