The Two-Thirds Compromise

Considering abortion in the shadow of slavery

Fifty-two years after the Roe v. Wade Supreme Court decision, and going on three years after Dobbs v. Jackson, abortion continues to an issue in American life—and to resonate with its broader history. You can bump into it in unexpected places. 

I’m a high school teacher with the good fortune of teaching an advanced history seminar to one of those magical groups of kids you get every so often. We recently read Joseph Ellis’s Pulitzer-Prize winning Founding Brothers. Ellis, who seems to be more of a sprinter than a distance runner, has a way of picking small incidents and using them as a vehicle for generating panoramic understanding. We were discussing a chapter, “The Silence,” about an awkward moment in 1790 when a group of Quakers presented an antislavery petition to Congress. Ordinarily, the Quakers might well have been heckled out of the room—their pacifism made them even less popular during the American Revolution than they were before it. What made things awkward is that Benjamin Franklin spoke up on their behalf. And the eighty-four-year-old Sage of Philadelphia could not be ignored.

And yet there was also a sense that discussion of this petition would be a disaster: The slavery issue was too contentious. The Founding Fathers had just finished negotiating the U.S. Constitution at a convention where the slaveholding states of South Carolina and Georgia had one foot planted at the door, ready to bolt. The class and I reviewed the various references—none direct—to slavery in the Constitution, zeroing in on the infamous three-fifths compromise in which the enslaved would count as sixty percent of a person for the purposes of representation. We talked through the often-intricate implications of the compromise, among them what it revealed about the balance of power between North and South. I pointed out that Thomas Jefferson would never have become president without it. 

The person who took control of the antislavery petitions was James Madison, on his way to inventing the job we know now as Speaker of the House. And the way he did so was a parliamentary maneuver of tabling it into oblivion. As we know, the abolition question never went away. But Madison, himself an enslaver, wanted to buy time—and he succeeded in doing so.

Was he right, I asked the students? 

Of course, a lot depends on what “right” means. None of the students in the room that day (and in truth, relatively few people at the time, though this would change as moral pressure grew) was willing to defend slavery on moral grounds, even as some insisted on its economic necessity. The question instead was whether the nation could afford an argument at that point. On the other hand, might it have been better off having it out then—Franklin clearly thought so—rather than waiting seventy years at a cost of three-quarter of a million lives? 

You can get a lot of mileage in terms of vigorous class discussion with a question like this, but at some point, diminishing returns set in because there’s no achievably right answer. As we approached that point, a question popped into my head: Can you think of an issue today whose dynamics you could plausibly compare with this one?

No takers. But even as I posed it, my own answer came to mind: abortion. Like slavery, abortion is an issue with strong moral overtones, multiple practical complications, and ideological differences that are difficult to reconcile. In this case, it is a matter of whether you regard—or at what point you regard—a fertilized ovum as a human being. Legally savvy anti-abortion activists like to invoke the notorious Dred Scott Supreme Court decision of 1857, which ruled that slaves have no rights a white man is bound to respect, substituting the terms “unborn child” and “woman” as the nouns in question.

In the second half of the twentieth century, the Court fashioned in Roe v. Wade what might be termed the two-thirds compromise: Generally speaking, abortion was deemed permissible through the second trimester of a pregnancy, and after that, generally not. At the time, the rule of thumb involved fetal viability outside the womb—a technological determination that has since become somewhat obsolete. Such a ruling was hardly satisfying to those on either side who felt passionately about the issue—and who continued to agitate for and against abortion rights—though a rough consensus was established and lasted for half a century. 

As we know, Roe v. Wade was overturned in 2022, and in the wake of its invalidation the two sides have hardened their positions. I have yet to hear a Democratic partisan who will frankly state any conditions in which an abortion should be termed impermissible, while some Republicans have expanded their objections to include the previously uncontroversial procedure of in-vitro fertilization, which can involve the discarding of unwanted or problematic fertilized eggs. (Full disclosure: I have three children conceived by these means.) 

For many abortion rights activists, the preeminent principle at stake is female bodily autonomy: My body, my choice. Those invoking it overlook the fact that male bodily autonomy has routinely been violated for thousands of years through conscription, often with deadly consequences. One reason this may not be obvious is that the suspension of the draft in the United States occurred within a week of Roe v. Wade in 1974, a high tide of left libertarianism. This was also the high tide of support for the ultimately failed Equal Rights Amendment, which would have strengthened abortion rights still further while requiring women to register for the draft—which to this day they are not, even as men are required to do so after their eighteenth birthday. Of course, one could argue that a person’s bodily autonomy should not be regulated for any reason. But wars, like births, have also led to of our most cherished rights, among them the abolition of slavery.

I realize that some may be offended even by comparing reproductive rights to slavery. But I hope that anyone who thinks so—and has made it this far into this discussion—would grant that the idea is at least plausible, even if it may be wrong-headed. People in all times and places have held beliefs and conducted practices others have found heinous. The challenge involves recognizing the humanity of those on all sides.

The state of the abortion question in the twenty-first century remains unresolved. It’s officially left to the states, but I believe we are likely, as was the case with slavery, to reach at least a rough national consensus, notwithstanding regional variances, shifting exceptions, and ongoing agitation. The biggest danger, in my view, is an insistence on moral purity. I see this tendency on both sides of the question, whether as a reification of moral relativism on the left or a punitive absolutism on the right. In this regard we would do well to follow the example of Abraham Lincoln, who was willing to make his own compromises with slavery before presiding over its abolition, always striving, as he put it a few weeks before his death, to do right as God gave him to see the right. 

Jim Cullen teaches history at the Greenwich Country Day School in Greenwich, Connecticut. His most recent book is  Bridge & Tunnel Boys: Bruce Springsteen, Billy Joel, and the Metropolitan Sound of the American Century. His next book will be New Jersey Vanguard: Famous Figures Who Shaped the Nation. 

^{Image credit: Debra Sweet}