Judge suggests abortion might be protected by 13th Amendment despite Supreme Court ruling
S E E D E D C O N T E N T
- A federal judge in Washington, D.C., suggested in a court order in a criminal case against a group of anti-abortion activists that the federal right to abortion might still be protected by the Constitution’s 13th Amendment, which abolished slavery.
- The Supreme Court last year, in a majority opinion written by Justice Samuel Alito, ruled there was no constitutional right to abortion, overturning the 1973 decision in Roe v. Wade.
- A number of states moved to sharply restrict or ban access to abortion on the heels of the high court ruling in Dobbs v. Jackson Women’s Health Organization.
Judge Colleen Kollar-Kotelly, who was appointed by President Bill Clinton, asked lawyers to file briefs on the question of whether the Supreme Court’s decision is only limited to the 14th Amendment.
A federal judge in Washington, D.C., on Monday suggested in a court order in a criminal case against a group of anti-abortion activists that the federal right to abortion — which was overturned last year by the Supreme Court — might still be protected by the Constitution’s 13th Amendment, which abolished slavery.
Judge Colleen Kollar-Kotelly also asked federal prosecutors and lawyers for the defendants to file briefs on the questions of whether the Supreme Court’s ruling is only limited to the 14th Amendment, and whether any other provision in the Constitution “could confer a right to abortion.”
The order by Kollar-Kotelly potentially opens the door to a federal legal challenge on 13th Amendment grounds to state laws that have sharply restricted access to abortion in some states since the high court’s controversial ruling last summer overturning the 1973 decision in Roe v. Wade, which established the federal right to abortion.
The 14th Amendment covers several rights, including citizenship rights and a prohibition against the government depriving “any person of life, liberty, or property, without due process of law.”
The amendment’s due process clause was a keystone of the Supreme Court’s ruling in Roe v. Wade that established the federal right to abortion.
Kollar-Kotelly in her order, which was previously reported b y Politico , wrote that the 13th Amendment “has received substantial attention among scholars and, briefly, in one federal Court of Appeals decision.”
A 1990 paper by a Northwestern University School of Law professor found that the 13th Amendment, with its prohibition against involuntary servitude, provides a textual basis for the right to abortion.
“When women are compelled to carry and bear children, they are subjected to ‘involuntary servitude’ in violation” of that amendment,” wrote the paper’s author Andrew Koppelman, which was cited by Kollar-Kotelly in her order.
That order came in a case where Lauren Handy, a Virginia resident, and nine other anti-abortion activists were charged in an indictment last year with conspiring to obstruct access to a Washington abortion clinic on Oct. 22, 2020.
Handy and the other defendants have asked Kollar-Kotelly, who was appointed to the district court in Washington by former President Bill Clinton , to dismiss the indictment for lack of jurisidiction.
Their argument is at least partially based on the grounds that the court’s majority opinion by Justice Samuel Alito last year, in the case known as Dobbs v. Jackson Women’s Health Organization, said “the Constitution does not confer a right to abortion,” the judge noted in her order.
But Kollar-Kotelly wrote that argument “is predicated on the false legal premises that the “federal law cited in the indictment “only regulates access to abortion,” when in fact is also regulates access to a broad category of reproductive health services.
“Nevertheless, to the extent that Defendants seek resolution of this matter via a constitutional holding, the Court will require additional briefing,” Kollar-Kotelly wrote.
The judge wrote that the question before the high court in Dobbs “was not whether any provision of the Constitution provided a right to abortion.”
“Rather, the question before the Court in Dobbs was whether the Fourteenth Amendment to the Constitution provided such a right,” Kollar-Kotelly wrote.
“That is why neither the majority nor the dissent in Dobbs analyzed anything but the Fourteenth Amendment,” she wrote. “In fact, on the Court’s initial review, not a single [friend-of-the-court] brief mentioned anything but the Fourteenth Amendment and the unratified Equal Rights Amendment.”
The 14th Amendment’s due process clause was cited by the Supreme Court in Roe v. Wade, which established that there was a right to privacy contained in that clause and elsewhere in the Constitution which gave people the right to obtain an abortion until a fetus became viable.
In its ruling tossing out Roe, the Supreme Court wrote in its majority opinion that the 14th Amendment “clearly does not protect the right to an abortion.”
Kollar-Kotelly wrote that “it is entirely possible that the Court might have held in Dobbs that some other provision of the Constitution provided a right to access reproductive services had that issue been raised.”
“However, it was not raised,” she noted.
And she wrote that since last year, the court’s holding that the Constitution does not confer a right to abortion “is often read as saying “the Supreme Court held that no provision of the Constitution extends any right to reproductive health services.”
Kollar-Ketelly wrote that for her part, she “is uncertain that this is the case.”
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Wow - two really "opening" breaks here -
Kollar-Kotelly wrote that “it is entirely possible that the Court might have held in Dobbs that some other provision of the Constitution provided a right to access reproductive services had that issue been raised.”
“However, it was not raised,” she noted.
and -
“In fact, on the Court’s initial review, not a single [friend-of-the-court] brief mentioned anything but the Fourteenth Amendment and the unratified Equal Rights Amendment.”
13th Amendment
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Amendment XIII
Section 1.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2.
Congress shall have power to enforce this article by appropriate legislation.Law.
Lawyers and Congressional folks gonna be busy as hell on this one.
"Given the Dobbs reliance on history, it is worth mentioning that at the time of the ratification of the Thirteenth Amendment on December 18, 1865, 27 of the 36 states had enacted statutes prohibiting abortion. That included 21 of the 27 ratifying states."
Its such a dumb argument.
Why don't liberals just admit they don't want to be governed by the Constitution? Stop torturing its clauses beyond recognition and stop empowering judges to act like super legislators instead of judges.
We are getting close to that point. They control almost every level of power. It should be easy for them to say it.
Stop torturing its clauses beyond recognition and stop empowering judges to act like super legislators instead of judges.
Right now it's hard for them. One term of Trump did that.
Must be from the same school of law as the Biden nominee who couldn't identify what the various Articles of the Constitution address.
I do appreciate her exemplifying every criticism of an activist judge ever levelled though.
This sounds like a long shot, but who knows? Good seed.
Hmmm, I think this will be an interesting fight. I can see it going all the way to SCOTUS. But I don't see it passing based on what I can glean from this article. But if it gets Congress off their butts and gets them to pass some sort of compromise bill that allows abortion I think that will be a good thing. One thing I hate more than anything in this is a return to the 60's with the patchwork of laws across the country.
A better argument for abortion can be based on the notion that one cannot be compelled to have part or all of their body used for the benefit of another, per the precedent established in McFall v Shrimp (1978). Also, the states and federal government do not recognize the unborn as persons with rights, and therefore have no (or should not have) legal protections.
That state court held you can't force someone to undergo surgery. That's not the same argument, at all. There's a reason the best pro abortion lawyers in the country didn't make these arguments before the Supreme Court. They have no legal merit. they just play on the emotion of those obsessed with obtaining a result and not understanding or caring how they get there.
Lol. Even the Roe court realized states have a legal interest in protecting the unborn.
The court held that one cannot be compelled to have their body used to benefit another. The same can apply to a pregnant woman who's body is being used to support a fetus, at the woman's own expense. Forcing a woman to gestate against her will is effectively no different than forcing someone to donate part of their body to benefit another.
It's also funny how a court invokes "state interest," but neither the court or the state specifies exactly what that "interest" is or codefies or explains why.
No, it didn't. Since you don't understand what the court actually held and it's reasoning, I'm going to keep this very simple.
This was a local trial court in Pennsylvania. The ruling did not cite the Constitution. The Court held that under the common law, the state couldn't compel someone to undergo surgery and have a part of their body removed. Very True!
Of course, under the common law, abortion could, and was restricted. Moreover, statutory law, which is what regulates abortion in every state, always trumps common law.
Do you see how ridiculous your claim is? It's premised under common law, even though the common law specifically outlawed abortion going back hundreds and hundreds of years. What's more, any state, or the federal government, can overrule or change the common law simply by passing a statute. So a vague common law argument will never defeat a statute on that specific point.
I am familiar with the case. What you do not seem to understand is the same reasoning behind the case and its argument can be applied to abortion rights. And since the unborn are not legal persons with rights, there is no legal reason to deny or restrict abortion rights.
So you are claiming that people are being forced to get abortions? That is the only way the ruling would ever apply.
Where did I ever claim or even imply that? It's more accurate to say women are "forced" to gestate due to anti-abortion laws, especially the more strict one.
So you are a proponent of the other side of the equation then. You want to then believe that women are "forced" to get pregnant? After all, they cannot be "forced" to gestate if they were not first "forced" to get pregnant.
I did not say that either.
If the government is given the power to force/legislate birth then the government could also have give itself the power to regulate/deny or criminalize birth. How many different ways can this turn out?
Can't understand why conservatives favor government intrusions in bedrooms, classrooms, Doctors' offices and anywhere else it desires to intrude. And this is conservatism? Really?
No they can't. You should read Dobbs.
Judge Colleen Kollar-Kotelly, who was appointed by President Bill Clinton,
So, Clinton was a conservative?
INVOLUNTARY SERVITUDE
An anti-choicer wet dream maybe?
I wonder if it's been banned in schools in conservative districts.
I wouldn't be surprised.