A federal judge indicated on Monday there could be an unseen constitutional right to abortion tucked away in the 13th Amendment, according to a court order that explored potentially unanswered questions about the Supreme Court‘s opinion last summer overturning Roe v. Wade.
U.S. District Court Judge Colleen Kollar-Kotelly for the District of Columbia wrote the high court’s landmark decision in Dobbs v. Jackson Women’s Health Organization only determined whether the 14th Amendment included a right to abortion but declined to further analyze whether other constitutional amendments confer the right to women.
“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,” Kollar-Kotelly wrote. “However, it was not raised.”
FETAL PERSONHOOD IS THE NEXT LEGAL FRONT LINE FOR THE ANTI-ABORTION MOVEMENT
In a four-page order in an ongoing criminal case, Kollar-Kotelly referenced discussions among law professors who have suggested the 13th Amendment, which is most commonly known as the post-Civil War termination of U.S. slavery and “involuntary servitude,” gives way to an abortion right.
The case that rendered the judge’s remarks involves 10 defendants who are charged with conspiring to block access to an abortion clinic in Washington, D.C.
Kollar-Kotelly, an appointee of former President Bill Clinton, asked the parties to present their arguments on whether Dobbs is confined to the 14th Amendment in March and “whether, if so, any other provision of the Constitution could confer a right to abortion as an original matter … such that Dobbs may or may not be the final pronouncement on the issue, leaving an open question.”
Attorneys for one defendant, Lauren Handy, claimed that “there is no longer a federal constitutional interest to protect, and Congress lacks jurisdiction,” adding that “the Dobbs court did not indicate that there is no longer a constitutional right to abortion; the court has made clear there never was.”
Kollar-Kotelly made a distinction between the focus of the Dobbs ruling and the language used by its author, Republican-appointed Justice Samuel Alito. She noted that the decision focused squarely on the 14th Amendment despite making vast statements such as: “The Constitution does not confer a right to abortion.”
Alito’s clear statement may “have a sensible appeal as a heuristic,” the judge wrote but said the true “holding” of the Dobbs opinion could perhaps be more limited.
For clarity, Kollar-Kotelly quoted the late 2nd U.S. Circuit Court of Appeals Judge Henry Friendly: “A judge’s power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word ‘hold.'”
In January, Northwestern University law professor Andrew Koppelman wrote an op-ed discussing the 13th Amendment’s implications on abortion, noting those who might disagree often “claim that the Constitution says nothing about abortion.”
He contended that invoking the 13th Amendment “is not a complete defense of Roe” and “doesn’t address the alleged personhood of the fetus.”
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“But it does show that the state, when it forces women to bear children, has a heavy burden of proof. A woman is a person,” Koppelman added.
Outside of Kollar-Kotelly’s musings in her order, some Jewish plaintiffs have filed lawsuits arguing religious freedom protections in the First Amendment or certain state constitutions may confer a right to abortion.
