Federal judge says 13th Amendment – which abolished slavery – may contain ‘right to abortion’

In a February 6 order in the federal case against 10 pro-life activists who were indicted for entering a DC abortion facility in October 2020, U.S. District Court Judge Colleen Kollar-Kotelly asserts that a right to abortion might be inherent to the U.S. Constitution, in spite of the Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and found that “[t]he Constitution does not confer a right to abortion.”

“[T]he ‘issue’ before the Court in Dobbs was not whether any provision of the Constitution provided a right to abortion. Rather, the question before the Court in Dobbs was whether the Fourteenth Amendment to the Constitution provided such a right,” Kollar-Kotelly wrote. “[I]t 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. However, it was not raised.” 

Kollar-Kotelly pointed toward the Thirteenth Amendment as a “provision[] that might contain some right to access [abortion],” noting that it “has received substantial attention among scholars.” 

One such scholar is Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University. He argued that the Thirteenth Amendment provides for a right to abortion in an op-ed for The Hill: “[A]ntebellum slavery … was a bundle of wrongs: inability to move freely, to command one’s own labor, etc. Compulsory pregnancy was one of the worst of those. The 13th Amendment outlaws the whole bundle.”

Howard University School of Law professor Lisa Crooms-Robinson has made a similar argument. In an op-ed for NBC News, she argued: “Denying the rights of reproductive health and choice, bodily integrity and personal autonomy was essential to U.S. slavery, which recognized enslavers’ complete dominion over the people they enslaved.” She added: “U.S. slavery also forced enslaved women to reproduce.” Hence, she argues, the Thirteenth Amendment, in seeking to “undo[] slavery, as well as its ‘badges and incidents,’” could be interpreted to include a right to abortion for Black Americans.

But Faith Elwonger and Omarr Peters argued differently in an op-ed for Newsweek:

The idea that Congress should utilize the 13th Amendment to grant Black Americans the right to an abortion as a “matter of racial equality” is insulting to the core. It’s based on a racist premise that without the ability to kill our children, we Black Americans cannot be equal to other races, who apparently can be successful without having to “off” their offspring. 

Such a bigoted idea is an affront to Black people and a slight to every Black American who came before us and paved the way towards equality.

Judge Kollar-Kotelly directed both the prosecution and defense to address “whether the scope of Dobbs is in fact confined to the Fourteenth Amendment” as well as “whether … any other provision of the Constitution could confer a right to abortion … such that Dobbs may or may not be the final pronouncement on the issue[.]” Judge Kollar-Kotelly did so in response to a motion to dismiss submitted by Lauren Handy’s attorneys, who argued that the conspiracy charge against their client is now illegitimate because Dobbs removed abortion legislation from Congress’s purview.

The deadline for the government to file its response is March 3; the deadline for the defense to file their reply is March 17.

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