Federal judge: Constitution may still protect abortion, despite Dobbs

Washington D.C., Feb 9, 2023 / 13:35 pm

Despite the U.S. Supreme Court ruling to overturn Roe v. Wade, a federal judge is claiming that the 13th Amendment, which was ratified to abolish slavery, might establish a constitutional right to have an abortion.

Under Roe v. Wade, the court previously held that the 14th Amendment protects a right to privacy and a right to privacy protects a woman’s right to decide whether to have an abortion. In the Dobbs decision last June, the court revoked that precedent, stating that “the Constitution does not confer a right to abortion” and that “procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our nation’s history.”

Regardless, U.S. District Judge Colleen Kollar-Kotelly wrote in an order that the court was only addressing claims related to the 14th Amendment and did not evaluate the possibility that the right was protected elsewhere in the Constitution. The order was in relation to a criminal case against pro-life activists who are accused of impeding an abortion clinic’s operations.

“Here, the ‘issue’ before the court in Dobbs was not whether any provision of the Constitution provided a right to abortion,” Kollar-Kotelly wrote. “Rather, the question before the court in Dobbs was whether the 14th Amendment to the Constitution provided such a right.” 

The judge further added that the court might have ruled differently if other constitutional questions were raised.

“Of those provisions that might contain some right to access to such services,” the order read, “the 13th Amendment has received substantial attention among scholars and, briefly, in one federal Court of Appeals decision.”

The 13th Amendment, which was ratified in 1865, officially abolished slavery. The amendment declares that “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.” Although Kollar-Kotelly did not elaborate on why the 13th Amendment would protect a right to abortion, she cited two scholars who have argued that abortion bans create a type of involuntary servitude.

Kollar-Kotelly’s suggestion stems from an order she wrote in a criminal case that accuses nine pro-life activists of violating the Freedom of Access to Clinic Entrances (FACE) Act. The activists allegedly set up a blockade at an abortion clinic to prevent it from operating, according to the Department of Justice. The indictment accuses them of using their bodies, furniture, chains, and ropes to create the blockade and streaming it on Facebook. 

The lawyers for one of the defendants, Lauren Handy, argued that the FACE Act is no longer legitimate because the congressional authority to pass it relied on precedent set in the Roe v. Wade decision. The FACE Act establishes harsh penalties for those who interfere with access to reproductive health care services. 

“Dobbs undermines Congress’ authority to pass the FACE Act because … [it] was, in part, based on the 14th Amendment,” Michael McHale, counsel for the Thomas More Society, which is representing Handy, told CNA. 

Without the constitutional protection for abortion, McHale argued, the only justification the court could use to uphold the FACE Act is the commerce clause. However, he said, this issue is “within state police powers and not within Congress’ commerce clause authority.”

Kollar-Kotelly ordered both sides to draft arguments about whether any other provision in the Constitution confers a right to an abortion. The judge also said the defendant’s argument seems to rest on a “false legal premise” that the statute “only regulates access to abortion.” Rather, she said, “it regulates a broad category of ‘reproductive health services.’”

Denise Harle, the senior counsel and director of the Center for Life at Alliance Defending Freedom, told CNA that the Supreme Court’s ruling was clear.

“In Dobbs, the Supreme Court explained clearly that a so-called ‘right’ to abortion has ‘no basis in the Constitution’s text or in our nation’s history,’” Harle said. “Not even the dissent suggests that the freedom to take an unborn human life is found in the 13th Amendment. Abortion activists and others who endorse their ideology will do anything to try to justify the heinous act of abortion and push their radical agenda of allowing abortion up to the point of birth and boosting their abortion business. Thankfully, the Supreme Court — without a doubt — is right, and states all across the country are affirming that life is a human right and ensuring that women have real support.”