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 by 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.”