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Does Federal Right to Abortion Survive Overturning Of Roe v. Wade? Federal Judge Raises Possibility

Does Federal Right to Abortion Survive Overturning Of Roe v. Wade? Federal Judge Raises Possibility

Supreme Court in Dobbs case considered only the Fourteenth Amendment in finding no federal right to an abortion, but the Thirteenth Amendment may also confer such a right, Judge says

As extensively reported here, Supreme Court Overrules Roe v. Wade, and elsewhere, on June 24 of last year the United States Supreme Court in Dobbs held that “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.” The Court also, addressing arguments that “stare decisis,” or respect for settled law, compelled support for Roe v. Wade, held that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”

Until now, it seemed that this result was, although controversial, not open to question, at least not with the current composition of the Supreme Court. As we reported, some on the left considered the ruling a “betrayal of the country,” some students reported that they were now “scared” to attend college in red states, and the Department of Justice created a “Reproductive Rights Task Force” to address access to abortions post-Dobbs. In none of these cases, nor anywhere else, did anyone consider that it might be possible to do an end-around on Dobbs, and somehow still provide a federal right to an abortion.

Enter District of Columbia federal Judge Colleen Kollar-Kotelly, a Bill Clinton appointee to the federal bench.

On Monday, in an “eyebrow-raising hypothetical” contained in a court order, Judge Kollar-Kotelly suggested that the federal right to an abortion might still exist post-Dobbs, and ordered briefing on the subject. The parties in Dobbs only argued, and Dobbs only considered, the Fourteenth Amendment as lacking a basis for a federal right to abortion. But, Judge Kollar-Kotelly stated, 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.”

Judge Kollar-Kotelly then proceeded to posit that the Thirteenth Amendment, which outlaws slavery and involuntary servitude, might also provide such a basis for a federal right to an abortion, as this amendment “has received substantial attention among scholars and, briefly, in one federal Court of Appeals decision” on the question of whether that section of the constitution could apply to abortion. She ordered briefing on the subject to be filed in March.

The “substantial attention” Judge Kollar cited consists of one 1990 law school law review article, in which the author stated that “When women are compelled to carry and bear children, they are subjected to ‘involuntary servitude‘ in violation of [the Thirteenth] amendment.” The court case cited was a U.S. Court of Appeals for the 10th Circuit opinion from 1995 in which the court found that a lawyer’s argument that the Thirteenth Amendment provided a federal right to abortion was “not frivolous.”

The issue came up before Judge Kollar-Kotelly in a criminal case in which anti-abortion protesters, indicted under a federal provision making conspiracy to block access to an abortion clinic a crime, argued that the court should dismiss the case because the federal government, and courts, were out of the abortion business post-Dobbs. Not so fast, Judge Kollar-Kotelly said.

Commentary thus far has been overwhelmingly negative, with Harvard law professor Alan Dershowitz calling the Judge’s suggestion that the Thirteenth Amendment might provide a federal right to abortion “a stretch” that “diminishes the horrors of slavery.” Law professor Joshua Blackman called Judge Kollar-Kotelly’s suggestion “shocking” and noted that “judges are not happy with Dobbs and are trying to find anything to resist the decision,” at both the state and federal levels. “He views it as part of a ‘massive resistance‘ effort by lower courts to the high court’s abortion jurisprudence,” but warns that “if you want to be taken seriously, you had better not make a Thirteenth Amendment argument on behalf of abortion.” Litigator James Bopp, Jr., General Counsel for the James Madison Center for Free Speech, called Judge Kollar-Kotelly’s suggestion a “bizarre perversion” and “[g]iven the amendment’s Civil War context, he terms its expansion to cover pregnancy ‘insane.'” Ed Wheelan at National Review termed Judge Kollar-Kotelly’s suggestion “grandstanding…folly” and “ludicrous to posit.”

Even left-leaning Vox, despite being enamored with Judge Kollar-Kotelly’s suggestion, calling it “thoughtful” and “serious,” concludes that it is really just an effort to “troll” the Supreme Court, and that “the justices are about as likely to rule that the Constitution protects a right to an abortion as they are to move the Supreme Court’s building to Mordor.”

We will update this post as the briefs are filed and Judge Kollar-Kotelly issues her ruling on the subject.


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“a stretch” that “diminishes the horrors of slavery.”

Slavery was perfectly normal in traditional “hit the guy on the head and take his stuff” economies, a win/win. Instead of killing your enemy, you enslave him. Those economies were not efficient because all your capital wound up spent on defense, but they were all there was. Normal life, not a horror.

With the free market, an invention of the West, a slave contributes more to society working in his own interest than in working for a master, and slavery became obsolete.

It went out kicking and screaming, with bad arguments for its support – the good argument having been made obsolete – like (in the US) naturally subservient race, but slavery lost out.

But everybody wants to feel guilty today, what can you do.

    Stuytown in reply to rhhardin. | February 9, 2023 at 10:25 am

    The slavery that is condemned here (correctly so) wasn’t a case of enslaving a defeated enemy. It was trading in human beings for profit as an economic lever. There was no war. The trade was conducted on an industrialized scale by those who were industrialized against those who were not (with the help of others who were not). It was merely a profit motive. The fact that something was normal 2,000 years ago doesn’t mean it’s not a horror today, or 200 years ago. And not all slavery throughout history was the same. Some earned freedom after a period of time. I’d like to think that there has been some advancement in the evolution of human ethics and morality. (Yes, sometimes it’s hard to see that.)

“When women are compelled to carry and bear children, they are subjected to ‘involuntary servitude‘ in violation of [the Thirteenth] amendment.”

That’s a good argument, made also by Marge Piercy in “Right to Life”

…I will choose what enters me, what becomes
flesh of my flesh. Without choice, no politics,
no ethics lives. I am not your cornfield,
not your uranium mine, not your calf
for fattening, not your cow for milking.
You may not use me as your factory.
Priests and legislators do not hold
shares in my womb or my mind.
This is my body. If I give it to you
I want it back. My life
is a non-negotiable demand.

(the poem works up to that tone, e,g,

A woman is not a basket you place
your buns in to keep them warm. Not a brood
hen you can slip duck eggs under.

    CommoChief in reply to rhhardin. | February 8, 2023 at 5:33 pm

    The same argument could be made for child support. For that matter it could be made about participation in Social Security and Medicare which some workers remain apart from via their choice of an employer who is exempted to this day.

    fscarn in reply to rhhardin. | February 8, 2023 at 6:13 pm

    “I am not your cornfield,
    not your uranium mine, not your calf
    for fattening, not your cow for milking.
    You may not use me as your factory.”

    Big Mo and his Islam think otherwise,

    “Your wives are as a tilth unto you; so approach your tilth when or how ye will; but do some good act for your souls beforehand; and fear Allah. And know that ye are to meet Him (in the Hereafter), and give (these) good tidings to those who believe.” (Al-Quran 2:223)

    Looking forward to hearing leftists criticizing the Religion of the Ridiculous.

    Milhouse in reply to rhhardin. | February 8, 2023 at 8:39 pm

    No, it is not a good argument at all. It’s a terrible argument. A far better 13th-amendment-based argument yields the opposite result, that allowing a woman to kill her children makes them her slaves, and thus states are required to ban abortion and to suppress it. But the Supreme Court long ago rejected a similar argument against parents’ rights to control their children and bring them up according to their own lights, and affirmed that that right is not only not negated by the 13th but actually protected by the 10th.

      chrisboltssr in reply to Milhouse. | February 14, 2023 at 3:39 pm

      Then the Supreme Court is wrong in the latter, and should rule in accordance with the former. As we have seen, the Supreme Court is not always right.

    Here’s an excellent way for the woman who wrote that “poem” to use it: Keep it between her knees.

    chrisboltssr in reply to rhhardin. | February 14, 2023 at 3:38 pm

    This idiot always has idiotic takes, doesn’t he/she/they/it/f off?

“When women are compelled to carry and bear children, they are subjected to ‘involuntary servitude‘ in violation of [the Thirteenth] amendment”

Firstly, it’s called biology. The fetus could be considered to have involuntary servitude for 9 months and requires protection. Sterilization is the easiest way to prevent abuse under the 13th amendment. Considering the Karens… maybe not a bad option.

    fscarn in reply to alaskabob. | February 8, 2023 at 6:14 pm

    Right, no government is imposing the so-called servitude.

      henrybowman in reply to fscarn. | February 8, 2023 at 8:07 pm

      Plus, one could make the same argument for a severely retarded child, or an elderly parent with vegetative Alzheimers. Does the 13th amendment give us a right to kill them, too?

      Until some court decides that the 13th outlaws the military draft (a much clearer case of forced servitude), nobody should entertain such far-out flights of fancy.

        CommoChief in reply to henrybowman. | February 9, 2023 at 10:29 am

        Yep. IMO this ultimately it boils down to personal responsibility and accountability being rejected by self indulgent narcissists who place their interests ahead of anyone or anything else.

When women are compelled to carry and bear children, they are subjected to ‘involuntary servitude‘ in violation of [the Thirteenth] amendment.

Where is the compulsion? If you chain yourself to a train you were not compelled into imprisonment. If you participate in behavior that can result in pregnancy you were not compelled.

    The_Mew_Cat in reply to NotCoach. | February 8, 2023 at 7:10 pm

    It could be considered “involuntary servitude” in the case of rape, though.

      Ironclaw in reply to The_Mew_Cat. | February 8, 2023 at 7:35 pm

      Rape is already illegal is it not?

        Paula in reply to Ironclaw. | February 8, 2023 at 8:08 pm

        If you are raped, that is involuntary servitude of your body, whether you get pregnant or not. Hence, rape victims should receive reparations as well.

          The_Mew_Cat in reply to Paula. | February 9, 2023 at 3:19 pm

          That is beside the point. This hypothetical illustrates the issue: A woman is raped. Whether her attacker is caught or not is immaterial. Assume her State prohibits all abortions with no exceptions (other than saving her own life), and prohibits her from having an abortion or crossing the state line for purposes of abortion under penalty of mandatory life imprisonment. Does that State Law violate her 13th amendment rights?

      David Walker in reply to The_Mew_Cat. | February 9, 2023 at 10:58 am

      In which it could be worth debating that an exception could be made for proven rape victims.

So the vaccine mandates are prohibited because of the 13th Amendment also? How about the EPA and OSHA impositions? Federal drug laws?

No matter what the 10th Circuit determined in 1995, the 13th Amendment argument IS frivolous.

    It depends on what you consider “frivolous”. The bar for imposing sanctions on a lawyer for making frivolous arguments is very high.

      Again, Milhouse, you miss the right for the current legal administration.

        Milhouse in reply to GWB. | February 9, 2023 at 10:25 am

        Huh? What does that even mean? What right? There is no “right” to have a lawyer sanctioned for making frivolous arguments? The courts decide when and whether to impose such sanctions, for their own convenience. And the bar is high. If I were a judge I would like to see it lower, but as in this case the appeals courts set it high and overturn sanctions imposed by judges in cases that don’t reach that high bar.

          Exactly, Milhouse. You miss the right for the legal procedure. You miss the statement being about moral correctness because you’re overly fixated on the arcane legalities.

          It’s why you’re so often not wrong, and yet so wrong when correcting people. They are making a moral argument and you’re focused on the intricacies of the code. It’s not so much that you’re wrong, but you’re often missing the argument.

          Milhouse in reply to Milhouse. | February 9, 2023 at 7:27 pm

          You’re not making any sense. What moral argument? How can there be a moral argument over whether a lawyer should be sanctioned? That was the only question before the 10th circuit, so it is ridiculous to criticize the decision with a moral argument.

          Nor did the OP make any moral argument, so what are you on about. The OP claimed that the 13A argument is “frivolous”. That can only mean “legally frivolous”, because that is the only kind of frivolous it can be. The OP made no argument to support his assertion, but any implied argument must be legal, not moral.

The search for the missing penumbra continues.

BierceAmbrose | February 8, 2023 at 5:50 pm

“the justices are about as likely to rule that the Constitution protects a right…”

So interesting that Vox said this.

** “The justices … rule” — so, ruling has consequences.

** “The Constitution” — so, the court refers back to the Constitution.

** “Protects a right” — so, that’s what it does.

Now, Vox will go on, or go off on activist judges, culture wars, and poli-party team sports or whatever. Vox gonna Vox. You do what you’re paid for. BUT look at the framing they used, straight out of The Supremes. Get enough rulings out there that refer to the Constitution, protecting rights, etc. and that’s how people talk about it.

Subotai Bahadur | February 8, 2023 at 6:05 pm

Keep in mind that to the Left the law, court rulings, and the Constitution have no weight when they oppose the will of the Party.

We cannot vote our way out of this, and the courts cannot relieve us of the burden of Leftist tyranny.

Subotai Bahadur

    ghost dog in reply to Subotai Bahadur. | February 8, 2023 at 6:26 pm

    The emotional child want’s what it want’s.

    BierceAmbrose in reply to Subotai Bahadur. | February 9, 2023 at 2:30 pm

    So true.

    It seems to me that your obs and mine go together. “The Left” want what they want. At issue is also how we want to govern ourselves — or allow ourselves to be governed. VOX saying what they said makes it clear that this is also at issue — how we gonna do this? That VOX said it shows the topic is part of the zeitgeist.

    I’m reminded of three notions:

    — One of the Tea Party 1.0 eminences calling the US Constitution “The Divine Operating System.” It’s a designed system for governing ourselves together to our advantage, intended more to work than to embody any particular fantasy.

    — The notion of The Declaration of Independence, particularly the opening, as a mission statement, with the Constitution as the operating agreement.

    — And a riff about from late in the movie Margin Call. Paraphrasing, about money: “It’s made up. Pieces of paper with pictures on them, so we don’t have to go about bashing each other on the head to get lunch.”

MoeHowardwasright | February 8, 2023 at 6:24 pm

The judge knows what she’s doing. She knows she can’t get this through an appellate, let alone this Supreme Court. She wants a brief out there in support of her 13th amendment supposition. She’s looking at how this would play out with a different Supreme Court with a more liberal bias. Don’t forget, it’s always about the long game with these cretins.

This apology is why it was imperative to establish a religion that denies women’s dignity and agency, why they violated men’s civil rights with the sociopolitical myth of rape… rape-rape culture, and why they normalized the fetus… or baby-fetus judgment and label, and technical term of art for social distance. DIEversity, indeed.

“…the Due Process Clause of the Fourteenth Amendment.” The Court also, addressing arguments that “stare decisis,” or respect for settled law, compelled support for Roe v. Wade,…”

It isn’t law, it was never legislation; it was simply a case before the Supreme Court.

Can’t wait for the 3rd Amendment argument about quartering babies in a woman’s body.

    Ironclaw in reply to TheOldZombie. | February 8, 2023 at 7:39 pm

    Nah, that wouldn’t fly because she made the decision that ended up with the baby inside her so that would have been her quartering the baby inside her own body not the government.

    henrybowman in reply to TheOldZombie. | February 8, 2023 at 8:26 pm

    When I was young, we used to laugh about “the amendment that never got used.” Since then, I’ve seen at least three cases where it either got used or should have gotten used: Andre Marrou’s hotel room; the Waco command center; and the Elian Gonzales command center.

      Milhouse in reply to henrybowman. | February 8, 2023 at 8:45 pm

      Nope. The 3rd amendment specifies “in peacetime”. Whenever the USA is at war it doesn’t apply. And the USA has been at war for a long time. Certainly since 2001, but you can probably find a state of war in the ’90s as well.

        henrybowman in reply to Milhouse. | February 8, 2023 at 10:47 pm

        And the Fifth amendment requires compensation for takings. That didn’t happen, either.

          Milhouse in reply to henrybowman. | February 9, 2023 at 2:23 am

          Quartering is not a taking, because you get it back when they’re done with it.

          Ken in Camarillo in reply to henrybowman. | February 9, 2023 at 3:04 pm

          This is actually a reply to the Milhouse reply: quartering IS a taking as it is taking occupancy of a facility which normally requires payment of rent. The fair rental value would have to be reimbursed, unless the courts ruled that the quartering was so widespread in a war effort that the general public shared the expense already. If the quartering was more local, then it is not reasonable for a few owners to shoulder a general cost of the public, and they should be compensated. A further application would be the suspension of eviction rights for non payment of rent during the Covid pandemic. I don’t understand why those landlords did not receive compensation for the taking of the use of their property for public use.

          Milhouse in reply to henrybowman. | February 9, 2023 at 7:33 pm

          Are there any cases that say occupying premises without paying rent is a form of taking?

          henrybowman in reply to henrybowman. | February 10, 2023 at 3:55 am

          For heaven’s sake…of course it is a taking, because you’re deprived of the use of it. And for something like a house, that’s a pretty serious deprivation.

          CommoChief in reply to henrybowman. | February 10, 2023 at 11:26 am

          The tort of conversion would seem to fit the bill. Not to mention the wear and tear or other damages.

          Depriving someone of the use of their property is a taking. That’s why folks have to pay you for a new easement just to cross your property. The rights of ownership includes not only the ability to use the property itself but to exclude and deny the use by others. .

        Ken in Camarillo in reply to Milhouse. | February 9, 2023 at 2:55 pm

        The exception when not at peace would only apply if the war effort had a context in the situation of quartering. If the quartering was not a proximate result of the war, the 3rd amendment protection for the facility owner would still be operative. Example: Waco was a relatively local law enforcement matter which had no connection to whatever war we may have been involved with, therefore 3rd amendment still applied. Of course Waco may not have been a legitimate example of quartering.

          That’s not what the amendment says. According to the amendment’s own text, so long as the US is engaged in a war, anywhere in the world, the amendment is not operative anywhere. Do you know of a court decision that has interpreted it more narrowly?

          henrybowman in reply to Ken in Camarillo. | February 10, 2023 at 3:57 am

          I don’t know of a third amendment court decision of any type anywhere, so your guess as to how a judge would rule is only as good as anyone else’s.

Are we arguing over “involuntary” or over “servitude”?

It can’t be servitude unless the court rules that the fetus is a person, then the mother is in service to the fetus—whom would be a kind of be slavemaster. In that case, why is only the womb being considered? Shouldn’t mothers be required to take care of their children after they’re born?

If the fetus is a person living in the womb, to abort would be child endangerment, neglect or even murder.

On the other hand, the issue would be whether the servitude is “involuntary”. The solution, of course, is for all mothers to be paid reparations for being slaves.

    henrybowman in reply to Paula. | February 8, 2023 at 8:27 pm

    Plus… it can’t be involuntary if you said yes.

      Next we will have to address the involuntary servitude of millions of grandmothers who are forced to raise their daughters’ children.

      CommoChief in reply to henrybowman. | February 8, 2023 at 10:15 pm

      Did the parties mutually consent to a sexual encounter or did both parties mutually consent to the specific goal of pregnancy? There is quite a difference between those two things.

      In any event there are over two dozen forms of birth control as well as the morning after pill. Pregnancy can only occur on a limited timeline of ovulation a little bit prior, during and a little bit after. It seems totally irresponsible to have an unwanted pregnancy when all those things exist and could be factored into the planning for sexual activity.

        The_Mew_Cat in reply to CommoChief. | February 9, 2023 at 3:25 pm

        Nobody plans sexual activity. It happens when the urges and opportunity are present simultaneously.

          CommoChief in reply to The_Mew_Cat. | February 10, 2023 at 11:34 am

          Do what? Sure they do. Easy example some ex shows up like an ally cat looking for a booty call and despite your sexual arousal you decline b/c they are as crazy as a run over dog.

          Well adjusted adults are quite cable of managing to think instead of acting on hormonal influences. Some can’t for sure, turn down a woman’s advances and they usually freak.

Antifundamentalist | February 8, 2023 at 8:38 pm

I don’t understand what the right to not be pregnant isn’t a right “reserved to the individual” – The state should be able to regulate what procedures doctors can/cannot perform under what conditions, same as any other medical procedure…but jailing a woman for not carrying a pregnancy to term is just wrong for a host of reasons, some of which should be obvious (how do you prove it wasn’t a legitimate miscarriage and why should the state waste resources trying).

    No one has ever proposed jailing a woman for “not carrying a pregnancy to term”. Nobody is currently even proposing jailing women for actively soliciting their babies’ murder, not even with clear proof; but that is the most that any hypothetical future proposal might do. It is inconceivable that any future law would penalize a woman without proof beyond reasonable doubt that she solicited and was an accomplice in the deliberate murder of a living foetus. It is inconceivable that a woman who loses a pregnancy would ever have the burden of proof that she didn’t murder the baby. Nobody has ever proposed such a law, and I can’t imagine anyone ever will.

      Nobody has ever proposed such a law, and I can’t imagine anyone ever will.
      You need to get out more.
      It has been proposed, though out on the margins. And the pro-abortion folks will dig up a quote if they have any brain cells at all. It’s not beyond the bounds of reason, either.

        Milhouse in reply to GWB. | February 9, 2023 at 10:31 am

        It’s certainly beyond the bound of reason. The standard for a criminal conviction is a rock-solid foundation of our entire legal system. The defendant need prove nothing; the prosecution must prove beyond reasonable doubt that the defendant committed a crime, without any assistance from the defendant. So how could such a law exist? How could it be within the bounds of reason?

        Forget pregnant women. A parent has a child, and one day they no longer have the child. Is it possible to charge them with a crime?! Or to force them to explain where the child is?! Of course not. It’s up to the authorities to find evidence of foul play before they can do anything. So why would this be different?

          It would be very easy in many cases to prove the case, Milhouse. Merely the evidence she voluntarily went to an abortion provider would be proof. (Yes, I’m assuming there’s proof she was pregnant, then immediately after was no longer pregnant.) And I am not claiming that every single abortion would put a woman in jail. But it certainly is NOT beyond the bounds of reason to pass that sort of law.

          The_Mew_Cat in reply to Milhouse. | February 9, 2023 at 3:28 pm

          Many women have already been prosecuted for miscarriages – before Dobbs – because the prosecutor could prove the woman was on alcohol or illegal drugs during her pregnancy.

          Milhouse in reply to Milhouse. | February 9, 2023 at 7:39 pm

          If you can prove that she had the baby killed then we are no longer discussing the same case. The claim is that there is some proposal that would lead to “jailing a woman for not carrying a pregnancy to term”. Not for having an abortion but simply for not carrying to term. And that is impossible. Even if a legislature were to pass such a law, no court would allow it to be enforced. Legislatures can’t change the standard of proof required for a criminal conviction.

          If there is enough evidence to prove the case beyond reasonable doubt, then why should anyone object to such a proposal, should one ever be made? It would remain the case that nobody in the GOP is at this time making one, but if one were, why object?

      Antifundamentalist in reply to Milhouse. | February 9, 2023 at 11:13 am

      Sorry Millhouse, but you are wrong on this one. It happens all the time. Has for generations. There are women in jail today who were accused of deliberatly causing themselves to miscarry. In some cases, they did. Some of them legitimately miscarried but were convicted anyway.

There seems to be a basic misunderstanding of the 5-4 ruling in Dobbs.
It all boiled down to the courts not having the ability to create rights.
They either had to exist prior to the Constitution or conferred by the Constitution. This means new rights have to go thru the Constitutional amendment process, not the courts.
For instance, slavery was not ended by a SCOTUS ruling, but rather the 13th, 14th and 15th amendments to the Constitution.

    Capitalist-Dad in reply to Neo. | February 9, 2023 at 9:51 am

    But abortion advocates pretend that abortion is some sort of unalienable right. Unalienable rights are not granted by the Constitution but rather by the “Creator,” and are protected by the Constitution from government intrusion (via made made law). The Creator-endowed “right to life” is incompatible with a “right” to kill a child in the womb. At most, this means abortion might be the subject of state statutes, but is far from some universally applicable right.

Looking at that picture: NOT ONE of those crazed women has a prayer in dating a desirable man, let alone get pregnant by one of them.

Ironic how it’s always the fat lesbians and the crazy undesirable women who carry on about abortion rights. Which solidifies the argument that abortion isn’t what they’re carrying on about, but the narcissistic destruction crazy women buying into leftism are trying to spread.

    Fine, are you really that ignorant? I’ve known plenty of very pretty women who were fanatical supporters of unlimited abortion rights. And I’ve seen them in photos of feminist protests. Their heads were full of very bad ideas, but they were not ugly. Why do you make such foolish assertions?

    Sadly there are many sexually active women many quite pretty who want the option of abortion. They have been taught by our society that it is their right to do so. At root it is, IMO, a reflection of our self centered culture and our mentality of a disposable society.

“the justices are about as likely to rule that the Constitution protects a right to an abortion as they are to move the Supreme Court’s building to Mordor.”

That’s a funny line, right there.

Where were these 13th amendment rights when so many of our young men were drafted and thousands died? All that is left is their name on a wall in Washington DC.

    The_Mew_Cat in reply to kjon. | February 9, 2023 at 3:32 pm

    Since the Constitution grants Congress the power to raise an army, the 13th Amendment does not apply.

      Milhouse in reply to The_Mew_Cat. | February 9, 2023 at 7:44 pm

      The 13th amends the constitution. So if it really contradicted the constitution, it would prevail.

      But that challenge has already been brought and the courts all rejected it. It’s clear that the states that ratified the 13A did not understand it that way, and neither did the public.

        henrybowman in reply to Milhouse. | February 10, 2023 at 4:05 am

        I agree with your first para. I don’t agree with your second.

        The 13th was ratified in 1865. The draft didn’t even exist until 1940, so the states that ratified the 13th could not possibly have had any opinion about it. As for the public’s opinion about what the constitution says, using that as a standard for anything is guaranteed heartbreak.

“When women are compelled to carry and bear children”
There is nothing unlawful or unconstitutional when anybody is compelled to accept the consequences of their own actions, unless one wishes to discard all alimony and child support laws and innumerable other contracts, implicit and explicit.
When a man and a woman, a binary combination, I must in our present context note, exercise a function that nature has for a million years evolved and perfected to produce a healthy child, murdering that child because of its inconvenience is not a lawful or constitutional option.

Steven Brizel | February 9, 2023 at 6:13 am

This is judicial activism combined with radical feminism and poor legal scholarship

Steven Brizel | February 9, 2023 at 6:14 am

This is judicial activism combined with poor legal scholarship

Capitalist-Dad | February 9, 2023 at 9:31 am

Sophists in black robes will adopt any ridiculous argument grasping at results. Our Founding principle, Natural Rights, cannot and does not condone murder, and therefore murder is NOT an unalienable right protected by the Constitution. The only remaining question is what limitations might be applied to the man-invented “right” to kill a child in the womb. Blue states say none. Why should that be the country-wide standard?

To take the argument to its logical conclusion…
If pregnancy is indentured servitude (as defined for the 13th Amendment), then ALL pregnancy is indentured servitude, regardless of the desires of the woman. The 13th Amendment only has one “but” clause, and that’s for criminal conviction. There’s not “but” for voluntary vs. involuntary. If it’s indentured servitude, then it’s indentured servitude and ILLEGAL under the 13th Amendment.
Therefore, by their argument, ALL pregnancies must be terminated in order to prevent the women from being in a position of indentured servitude.

    Milhouse in reply to GWB. | February 9, 2023 at 10:33 am

    WTH?! What are you on about? Have you ever read the thirteenth amendment?!

    n.n in reply to GWB. | February 9, 2023 at 10:45 am

    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.

    They don’t know better is an argument of social justice. They may have day, week, decade after regrets is an argument of social progress.

I’m appalled by the discussion here and by Judge Colleen Kollar-Kotelly, all of which seems to assume that only women can get pregnant.

yes, /s

So, any shared responsibility, democratic/dictatorial decree, or day/week/month/decade after regrets is tantamount to slavery. Whether contract, dating, sex, or any social life, you better have a lawyer, backed by force, present throughout the episode.

In Dobbs, SCOTUS held, ““The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision ….” What is it about that textual language that is unclear or ambiguous? I don’t see any ambiguity. The argument that the matter is still open is creative but defies the clear language of the Dobbs court. And lower court judges are bound by SCOTUS and should not try to read the law to undermine SCOTUS. It is basically insubordinate.

    Milhouse in reply to Cicero. | February 9, 2023 at 7:46 pm

    The 13A argument was not before the court, so it didn’t and couldn’t address it. To the extent that the sentence you quote refers to questions not before the court, it is dicta.

Much is made of the “long march through” our institutions, and whether that is what we in fact see in institutional leftism. Can there be any doubt how effective the lunatic left fringe has been at penetrating and nearly overwhelming the entire legal system?
Let this idiotic opinion from a D.C. Federal judge put that to rest, and let the original Roe opinion by a nitwit Republican liberal judge show how long the law has been a complete joke.
Law schools now admit unqualified halfwits, teach them little and graduate them, state bars have watered down their testing to the point of irrelevance, corporate affirmative action employs jackasses who are passed through that sieve, and the DOJ is a function of the DNC, and Soros promotes all of the city prosecutors – who prosecute only Christian abortion protesters.
Law is a joke.

    Ken in Camarillo in reply to JeromeF. | February 9, 2023 at 4:26 pm

    I know it can be frustrating how we seem to be in a period of “the insanity of the summer of 2020”, but if you reflect on things, you’ll recall that the courts are saving us from a great deal of lawlessness from the Biden administration.

And against the backdrop of this new wrinkle with pregnancy and 13th Amendment servitude, there are still some who claim that men are able to become pregnant? Go figure.

Involuntary servitude, like in the military draft that fueled several wars and killed thousands of US soldiers. Is that the 13th amendment involuntary servitude the judge is implying?

You have to laugh when armchair quarterbacks don’t know the difference between remanding it back to the states and overturning a law.

Um… with very few exceptions, nobody forced these women to become pregnant; they willfully engaged in an activity specifically designed to result in pregnancy. So, they are pregnant BY CHOICE, because they willingly risked pregnancy so they could have sexual gratification. That’s the well-understood trade-off.

Of course, if “involuntary servitude” is allowed to make abortion a federal right, then it also applies to the involuntary servitude of men who don’t want to financially support a child they didn’t want to conceive, doesn’t it? After all, by the same legal logic that may be used to advance this theory to allow abortions, they did not choose to become financiers for 18 years. What’s good for the goose is good for the gander, no?

“a stretch” that “diminishes the horrors of slavery.”

how about we use it to end taxation