Agnes Scott college student Jordan Simi (C) takes part in a chant during a pro-abortion rights march and rally held in response to the leak of a draft U.S. Supreme Court majority opinion led by Justice Samuel Alito was written to overturn a majority of the court in the landmark Roe v. Wade later that year in Atlanta, Georgia, May 3, 2022.
Alyssa Pointer | Reuters
A federal judge suggested Monday that the state’s right to abortion — which the Supreme Court overturned last year — could continue to be protected by the 13th Amendment to the Constitution, which abolished slavery.
Judge Colleen Kollar-Kotelly advanced this surprising hypothesis in a court order in a criminal case against an anti-abortion group accused of blocking access to an abortion clinic in Washington, DC
Kollar-Kotelly’s order called for prosecutors and defense attorneys to file briefs by next month on whether the Supreme Court ruling addresses only the issue of whether abortion is not a right to abortion through the 14.”
Their order in Washington District Court could become an invitation to state challenges on 13th Amendment grounds to state statutes restricting access to abortion in some states following the controversial High Court decision upholding the 1973 Roe v . Wade was lifted, severely restricted. The order was previously reported by Politico.
US District Judge Colleen Kollar-Kotelly
Charles Dharapak | AP
The 14th Amendment includes several rights, including citizenship rights and a government prohibition on “depriving any person of life, liberty, or property without due process of law.”
The due process clause in this amendment was a cornerstone of the previous Supreme Court ruling in Roe v. Wade, which first established federal abortion law.
But Kollar-Kotelly wrote in her order that the 13th Amendment “received considerable attention among scholars and, briefly, in a federal appeals court decision” on whether this section of the Constitution could apply to abortion.
A 1990 paper by a Northwestern University School of Law professor found that the 13th Amendment, with its prohibition on forced labor, provides a textual basis for abortion rights.
“When women are forced to bear and give birth to children, they are subjected to “involuntary servitude” in violation” of this amendment,” wrote the paper’s author Andrew Koppelman, quoted by Kollar-Kotelly in her order.
In a 1995 decision on an issue of attorneys’ fees in a case challenging Utah’s abortion law, a panel of judges from the U.S. Circuit Court of Appeals for the 10th Circuit said that a district court judge was wrong to set fees because the arguments on the other hand, the law citing the 13th Amendment is frivolous.
“Without commenting on the merits of the involuntary bondage argument, we do not consider it frivolous,” the appeals body wrote.
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The judge’s order comes in a case in which Lauren Handy, a Virginia resident, and nine other anti-abortion activists were charged in an indictment last year for conspiring to block access to a Washington abortion clinic on Oct. 22, 2020 to block.
Handy and the other defendants have asked Kollar-Kotelly, who was appointed to the Washington District Court by ex-President Bill Clinton, to dismiss the charges of lack of jurisdiction.
Her argument is based, at least in part, on the reasoning that the majority opinion of Justice Samuel Alito’s court last year in what was considered Dobbs v. Jackson Women’s Health Organization noted in the case that “the Constitution does not grant a right to an abortion,” the judge noted in her order.
But Kollar-Kotelly wrote that this argument “is based on the false legal premise that the federal law cited in the indictment “regulates only access to abortion,” when in fact it also regulates access to a broad category of reproductive health services.”
“Nonetheless, to the extent that the defendants seek a resolution of this matter through a constitutional decision, the court will require additional notice,” Kollar-Kotelly wrote.
The judge wrote that the question before the High Court in Dobbs “was not whether any provision of the Constitution provides for a right to an abortion”.
“Rather, the question before the court at Dobbs was whether the Fourteenth Amendment provided such a right,” Kollar-Kotelly wrote.
“Therefore, neither the majority nor the dissent in Dobbs analyzed anything other than the Fourteenth Amendment,” she wrote. “Indeed, according to the court’s initial review, not a single one [friend-of-the-court] The letter mentioned anything other than the Fourteenth Amendment and the unratified Equality Amendment.”
The due process clause of the 14th Amendment was upheld by the Supreme Court in Roe v. Citing Wade noting that included in this clause and elsewhere in the Constitution was a right to privacy that gave people the right to an abortion until a fetus became viable.
In its ruling excluding Roe, the Supreme Court wrote in its majority opinion that the 14th Amendment “clearly fails to protect the right to an abortion”.
Kollar-Kotelly wrote that “it is quite possible that the court at Dobbs would have held that another provision of the Constitution provided a right of access to reproductive services had that issue been raised.”
“It wasn’t addressed, however,” she noted.
And she wrote that since last year the court’s decision that the Constitution does not grant a right to an abortion “is often interpreted to mean that ‘the Supreme Court has ruled that no provision of the Constitution extends any right to reproductive health services.’ “
For her part, Kollar-Ktelly wrote that she “is not sure if that’s the case.”