Federal judge suggests Constitution protects abortion rights, despite Dobbs decision

A federal judge on Monday suggested that the U.S. Constitution continues to protect abortion rights even though the Supreme Court stated it does not in a landmark ruling overturning Roe v. Wade last June.

D.C. District Judge Colleen Kollar-Kotelly, a former President Clinton appointee, ordered lawyers to file briefings on whether the 13th Amendment to the Constitution protects a right to “reproductive health services,” including abortion. Kollar-Kotelly is hearing a case involving several pro-life activists who are accused of illegally blocking access to an abortion clinic in Washington, D.C. 

“Defendant relies on the Supreme Court’s statement in Dobbs that ‘the Constitution does not confer a right to abortion.’ Over the past several months since its pronouncement, this statement is often read as the Court’s holding, i.e., that the Supreme Court held that no provision of the Constitution extends any right to reproductive health services,” Kollar-Kotelly wrote. “For its part, and without the benefit of a fuller briefing, the Court is uncertain that this is the case.”

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court held that the 14th Amendment to the Constitution does not confer a right to abortion. Justice Samuel Alito, writing for the majority, held that the high court’s previous ruling establishing a right to abortion, Roe v. wade, was “egregiously wrong from the start.” 

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“In interpreting what is meant by the Fourteenth Amendment’s reference to ‘liberty,’ we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been ‘reluctant’ to recognize rights that are not mentioned in the Constitution,” Alito wrote. 

However, Kollar-Kotelly said the Supreme Court had not considered if the 13th Amendment, which was ratified in 1865 and outlaws “slavery” and “involuntary servitude, except as a punishment for crime,” could confer a right to abortion.

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She cited legal scholars such as Andrew Koppelman, author of “Forced Labor: A Thirteenth Amendment Defense of Abortion,” who have made such a case. 

“Forced pregnancy’s violation of personal liberty is obvious,” Koppelman wrote in an op-ed for The Hill last year. “Restrictions on abortion also violate the amendment’s guarantee of equality, because forcing women to be mothers makes them into (what so much tradition defined them as) a servant caste, a group that, by virtue of a status of birth, is held subject to a special duty to serve others and not themselves.” 

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Kollar-Kotelly ordered lawyers to file briefings exploring whether the scope of the Supreme Court’s Dobbs decision is confined to the 14th Amendment and “whether, if so, any other provision of the Constitution could confer a right to abortion as an original matter, which may or may not be addressed in Dobbs, such that Dobbs may or may not be the final pronouncement on the issue, leaving an open question.” 

The case before Judge Kollar-Kotelly concerns criminal charges against 10 pro-life activists charged with violating the Freedom of Access to Clinic Entrances Act, which makes it a federal crime to use threats, force or physical obstruction to prevent people from providing or obtaining services at reproductive health care clinics.

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One of the defendants, Lauren Handy, argued that her charges should be dismissed because the Dobbs decision stated “the Constitution does not confer a right to abortion.” Her lawyer’s argued Congress no longer has the jurisdiction to regulate abortion access.

Kollar-Kotelly said this argument is predicated on a “false legal premise” and that federal law regulates a broad category of “‘reproductive health services,’ including, among other things, counseling or referral services’” provided by abortion clinics.