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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