Agnes Scott College student Jordan Syme (center) participates in a chant during a pro-abortion rights rally and rally in reaction to the leaking of a draft U.S. Supreme Court majority opinion written by Justice Samuel Alito preparing to overturn the court’s overwhelming decision. Teacher Roe v. He endorsed a resolution on abortion rights later this year, in Atlanta, Georgia, May 3, 2022.
Elisa Index | Reuters
A federal judge suggested Monday that the federal right to abortion — which the Supreme Court struck last year — may still be protected by the 13th Amendment to the Constitution, which abolished slavery.
The eyebrow-raising hypothesis was assumed by Judge Colleen Kollar-Kotelly in a court order in a criminal case against a group of anti-abortion activists accused of blocking access to an abortion clinic in Washington, DC.
Kolar-Kotley’s order required prosecutors and defense attorneys to file briefs by next month on questions of whether the Supreme Court ruling only addresses the issue of whether abortion is protected under the Fourteenth Amendment, and whether any other provision of the Constitution “could grant the right to abortion.” “.
Her order in Washington District Court could end up being a call for federal legal challenges on the grounds of the Thirteenth Amendment to state laws that severely restricted access to abortion in some states after the controversial Supreme Court decision overturning its 1973 ruling in Roe v. valley. The request was previously reported by Politico.
US District Judge Colin Kollar-Kottle
Charles Darback | AP
The Fourteenth Amendment covers several rights, including citizenship rights and a prohibition on government depriving “any person of life, liberty, or property, without due process of law.”
The due process requirement in that amendment was a cornerstone of the Supreme Court’s previous ruling in Roe v. Wade, who first established the federal right to abortion.
But Kollar-Kotelly in her order wrote that the Thirteenth Amendment “has garnered considerable attention among scholars, and in short, in one of the federal appeals court decisions” on the question of whether this section of the Constitution can be applied to abortion.
A 1990 paper by a Northwestern University School of Law professor found that the Thirteenth Amendment, with its prohibition against involuntary servitude, provides a textual basis for the right to abortion.
The paper’s writer Andrew Koppelman, who was cited by Kollar-Kutley in her order, wrote: “When women are forced to bear and bear children, they are subjected to ‘involuntary servitude’ in violation of ‘that Amendment’.”
In a 1995 ruling on the issue of legal fees in a case that challenged Utah’s abortion law, a panel of judges in the United States Court of Appeals for the Tenth Circuit said the district court judge was wrong in determining the fee on the basis that the arguments against the law, which cited the Third Amendment, were th, a trifle.
“Without expressing a view on the merits of the involuntary slavery argument,” the appeals committee wrote, “we believe it is not absurd.”
The judge’s order came in a case in which Virginia resident Lauren Handy and nine other anti-abortion activists were charged in an indictment last year with conspiring to block access to an abortion clinic in Washington in October. 22, 2020.
Handy and the co-defendants asked Kollar Kotley, who was appointed to District Court by former President Bill Clinton in Washington, to dismiss the indictment for lack of jurisdiction.
Their argument is based at least in part on the court’s majority opinion delivered by Judge Samuel Alito last year, in the case known as Dobbs v. The Jackson Women’s Health Organization said, “The Constitution does not confer a right to abortion,” as the judge noted in her order.
But Kollar-Kotelly writes that this argument “is based on the spurious legal premises that ‘the federal law cited in the indictment’ only regulates access to abortion,” when in reality it also regulates access to a broad category of reproductive health services.
“Nevertheless, to the extent Defendants seek resolution of this matter through a constitutional provision, the Court will request additional briefing,” Kollar-Kutley wrote.
The question before the Dobbs Supreme Court, the judge wrote, “was not whether any provision of the Constitution provides for the right to abortion.”
“Instead, the question before the Court in Dobbs was whether the Fourteenth Amendment to the Constitution provided such a right,” Kollar-Kutley wrote.
“That is why neither the majority nor the opposition in Dobbs analyzed anything but the Fourteenth Amendment,” she wrote. In fact, in the initial court review, not one [friend-of-the-court] The brief mentioned nothing but the Fourteenth Amendment and the unratified Equal Rights Amendment.”
The Supreme Court cited Roe v. Wade, who acknowledged that there was a right to privacy implied in this clause and elsewhere in the Constitution that gave people the right to obtain an abortion until the fetus was viable.
In its ruling overturning Roe, the Supreme Court wrote in the majority opinion that the Fourteenth Amendment “clearly does not protect the right to abortion.”
Kollar-Cottley writes that “it is entirely possible that the Court would have held in Dobbs that some other provision of the Constitution provided for the right to access reproductive services if this issue had been raised.”
“However, it was not filed,” she noted.
Since last year, she writes, the Court’s decision that the Constitution does not grant the right to abortion “has often been read as, ‘The Supreme Court has determined that there is no provision in the Constitution that extends any right to reproductive health services.'”
For her part, Kollar-Ketelly wrote that she was “not sure this is the case”.