Jordan Simi (C), a student at Agnes Scott College, participates in a chant during an abortion rights march and rally in response to the leak of a majority draft opinion from the United States Supreme Court drafted by Justice Samuel Alito preparing for a majority of the court to overturn the landmark Roe v. Wade on abortion rights later this year, in Atlanta, Georgia on May 3, 2022.
Alyssa Pointer | Reuters
A federal judge suggested on Monday that the federal right to abortion — which the Supreme Court struck down last year — could still be protected by the Constitution’s 13th Amendment, which abolished slavery.
Judge Colleen Kollar-Kotelly posed this hypothetical question in a court order in a criminal case against a group of anti-abortion activists accused of blocking access to an abortion clinic in Washington, D.C.
Kollar-Kotelly’s order asked prosecutors and defense attorneys to file briefs by next month on whether the Supreme Court’s ruling only addresses the issue of whether the Abortion is not protected by the 14th Amendment, and whether any other provision of the Constitution “could confer a right to abortion.”
His order in Washington District Court could end up being an invitation to federal legal challenges based on the 13th Amendment to state laws that severely restricted abortion access in some states after the controversial High Court ruling. Court reversing its 1973 decision in Roe v. Wade. The order had previously been reported by Politico.
U.S. District Judge Colleen Kollar-Kotelly
Charles Dharapak | PA
The 14th Amendment covers several rights, including citizenship rights and a prohibition on the government depriving “any person of life, liberty, or property, without due process.”
The due process clause of this amendment was the keystone of the Supreme Court’s earlier decision in Roe v. Wade, who first established the federal right to abortion.
But Kollar-Kotelly in his order wrote that the 13th Amendment “has received substantial attention among scholars and, briefly, in a Federal Court of Appeals decision” on whether this section of the constitution could s apply to abortion.
A 1990 article by a Northwestern University School of Law professor found that the 13th Amendment, with its prohibition of involuntary servitude, provides a textual basis for the right to abortion.
“When women are compelled to bear and bear children, they are being subjected to ‘involuntary servitude’ in violation of ‘this amendment,'” wrote newspaper author Andrew Koppelman, quoted by Kollar-Kotelly in his order.
In a 1995 decision on a question of legal fees in a case that challenged Utah’s abortion law, a panel of judges from the United States Court of Appeals for the 10th Circuit said that a District court judge had erred in awarding costs on the grounds that the arguments against the law, which cited the 13th Amendment, were frivolous.
“Without ruling on the merits of the involuntary servitude argument, we find it not frivolous,” the appeals panel wrote.
The judge’s order came in a case where Virginia resident Lauren Handy and nine other anti-abortion activists were charged last year with conspiring to obstruct access to an abortion clinic in Washington on October 22, 2020.
Handy and the other defendants asked Kollar-Kotelly, who was appointed to the Washington District Court by former President Bill Clinton, to dismiss the indictment for lack of jurisdiction.
Their argument is at least partially based on the fact that the court’s majority opinion expressed by Judge Samuel Alito last year, in the case known as Dobbs v. Jackson Women’s Health Organization, said “the Constitution does not confer the right to an abortion,” the judge said. noted in his order.
But Kollar-Kotelly wrote that the argument “is based on the false legal premise that the ‘federal law cited in the indictment’ only regulates access to abortion,” when in fact, it also regulates access to a broad category of reproductive health services.
“Nevertheless, to the extent that the Defendants seek to resolve this matter via a constitutional decision, the Court will need additional information,” Kollar-Kotelly wrote.
The judge wrote that the issue before the Dobbs High Court “was not whether any provision of the Constitution provided a right to abortion.”
“Rather, the issue 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 Dobbs dissent analyzed anything other than the Fourteenth Amendment,” she wrote. “In fact, during the Court’s initial review, not a single [friend-of-the-court] the writ mentioned something other than the Fourteenth Amendment and the unratified Equal Rights Amendment.”
The Due Process Clause of the 14th Amendment was cited by the Supreme Court in Roe v. Wade, which established that there was a right to privacy contained in this clause and elsewhere in the Constitution that gave people the right to obtain an abortion until a fetus becomes viable. .
In its decision dismissing Roe, the Supreme Court wrote in its majority opinion that the 14th Amendment “demonstrably does not protect the right to abortion.”
Kollar-Kotelly wrote that “it is entirely possible that the Court held in Dobbs that another provision of the Constitution provided a right of access to reproductive services if that issue had arisen.”
“However, it was not lifted,” she noted.
And she wrote that since last year, the court’s ruling that the Constitution does not confer the right to abortion “is often interpreted as saying ‘the Supreme Court has ruled that no provision of the Constitution extends the right to reproductive health services.”
Kollar-Ketelly wrote that for her part, she “isn’t sure that’s the case.”
