In a bold move that could stir up a major new controversy over abortion, a federal judge in Washington, D.C., has decided to test a theory that could restore a constitutional right for a woman to end a pregnancy – under the anti-slavery Thirteenth Amendment.
In a four-page order on Monday, U.S. District Judge Colleen Kollar-Kotelly told lawyers on both sides in a criminal case to file new briefs on that very idea. The two sides will have to delve deeply into congressional records and court history to give the judge advice on how to rule: is the Thirteenth Amendment a genuine basis for an abortion right, even if the Supreme Court has never said so and even if Congress has never passed laws to protect abortion access based on that theory?
The judge’s order came in response to a plea by a defense lawyer that the case — charging ten individuals with illegally interfering with an abortion clinic’s services – must be dismissed in the wake of the Supreme Court’s overruling of Roe v. Wade last year.
In a motion filed last month by a lawyer for a Virginia woman, Lauren Handy, who allegedly coordinated the blockade in October 2020 of a Washington clinic, the filing claimed that the two charges no longer have a constitutional basis because the Supreme Court has erased the constitutional right to an abortion by its ruling in the case of Dobbs v. Jackson Women’s Health Organization last June. Lawyers for others accused in the case support the motion.
“There is no longer a federal constitutional interest to protect,” the motion said, so Congress had no basis for passing the conspiracy law or the clinic protection law targeting Handy and the nine other individuals, who were summoned to Washington from eight different states.
While the charges stemmed from a takeover of the clinic before the Dobbs decision was issued, the motion added, that ruling controls this case anyway. It commented: “The Dobbs court did not indicate that there is no longer a constitutional right to abortion; the court has made clear there never was.”
Reacting, Judge Kollar-Kotelly said it could be that the Dodds decision dealt exclusively with a right under only one part of the Constitution, the Fourteenth Amendment. It may be an “open question,” the judge suggested, that a constitutional right to abortion may exist under another part of the Constitution: the Thirteenth Amendment, ratified in 1865. That Amendment abolished slavery and “involuntary servitude.”
The judge said that idea “has received substantial attention among scholars and, briefly, in one federal Court of Appeals decision.” She pointed to the work of a Northwestern University law professor, Andrew Koppleman, who has been arguing that point in multiple articles since he was a college student more than three decades ago.
In one of his articles, in 2010, Koppleman said that laws against abortion “violate the [Thirteenth] Amendment’s guarantee of equality, because forcing women to be mothers makes them into a servant class, a group which, by virtue of a status of birth, is held subject to a special duty to serve others and not themselves.”
In a more recent article, he wrote: “Forced child-bearing was an integral part of the system of slavery that the Thirteenth Amendment was specifically intended to abolish.”
The appeals court ruling that the judge cited was a decision in 1995 by the U.S. Court of Appeals for the Tenth Circuit, commenting in a Utah abortion case that the Thirteenth Amendment argument was not a “frivolous” one and cited the celebrated Harvard constitutional law expert, Laurence H. Tribe, as having made that very point in a major treatise. While the Utah decision said that the Supreme Court had never ruled on the theory, it added that the Court had not rejected it, either.
With those developments in the background, Judge Kollar-Kotelly told lawyers for the prosecutors and defense in the clinic case to file new legal briefs on two points: first, was the Dobbs decision confined to the Fourteenth Amendment, and, second, if so, whether any other constitutional provision may support the abortion right so the Dobbs decision “may not be the final pronouncement on the issue.”
Prosecutors are to file their brief by March 3, and the defense lawyers two weeks after that.
Whether the judge has opened a serious inquiry into the Thirteenth Amendment issue, or something more like an academic exercise without real-world effect, will depend first on how the two sides respond and, second, on how the judge decides in the end.
It is by no means clear that the Justice Department will embrace the Thirteenth Amendment theory. That may turn on whether the legislative debates in Congress at the time the two criminal laws at issue were passed show any interest in or reliance on the anti-slavery concept. That is not something that simply can be asserted, after the fact; there would have to be some evidence in committee reports or floor debates.
Even if the prosecutors do not press the theory, the judge might decide on her own that there is a basis for it. If she were then to rule that the criminal case can go forward, on that theory, the defense lawyers could take that case to higher courts in an appeal.
On the other hand, if the judge gets no support for the concept from prosecutors, it could be more difficult for her to give it credence on her own. If, however, she adopts the theory, and dismisses the charges in this case, prosecutors could be the ones to challenge that on appeal.
It is difficult to predict how such an appeal would come out, in a federal appeals court or in the Supreme Court.