Agnes Scott college student Jordan Simi (C) takes part in a chant during a pro-abortion rights march and rally held in response to the leak of a draft U.S. Supreme Court majority opinion led by Justice Samuel Alito was written to overturn a majority of the court in the landmark Roe v. Wade later that year in Atlanta, Georgia, May 3, 2022.
Alyssa Pointer | Reuters
A federal judge in Washington, DC, proposed Monday in a court order in a criminal case against a group of anti-abortion groups that federal abortion rights — overturned by the Supreme Court last year — could continue to be protected by the 13th Amendment, the abolished slavery.
Judge Colleen Kollar-Kotelly also asked federal prosecutors and attorneys to file briefs on whether the Supreme Court ruling is limited to only the 14th Amendment and whether another provision of the Constitution “could confer a right to an abortion. “
Kollar-Kotelly’s order potentially opens the door to a federal challenge over the 13th Amendment to state laws that have severely restricted access to abortion in some states since the Supreme Court’s controversial ruling last summer, the 1973 decision in Roe v. Wade picked up. which established federal abortion law.
The 14th Amendment includes several rights, including citizenship rights and a government prohibition on “depriving any person of life, liberty, or property without due process of law.”
The amendment’s due process clause was a cornerstone of the Supreme Court ruling in Roe v. Wade, which established federal abortion law.
Kollar-Kotelly wrote in her order, previously reported by Politico, that the 13th Amendment “has received significant attention among scholars and, briefly, in a federal appeals court decision.”
A 1990 paper by a Northwestern University School of Law professor found that the 13th Amendment, with its prohibition on forced labor, provides a textual basis for abortion rights.
“When women are forced to bear and give birth to children, they are subjected to “involuntary servitude” in violation” of this amendment,” wrote the paper’s author Andrew Koppelman, quoted by Kollar-Kotelly in her order.
US District Judge Colleen Kollar-Kotelly
Charles Dharapak | AP
The order comes in a case in which Lauren Handy, a Virginia resident, and nine other anti-abortion activists were charged in an indictment last year for conspiring to block access to a Washington abortion clinic on Oct. 22, 2020 .
Handy and the other defendants have asked Kollar-Kotelly, who was appointed to the Washington District Court by former President Bill Clinton, to dismiss the charges of lack of jurisdiction.
Her argument is based, at least in part, on the reasoning that the majority opinion of Justice Samuel Alito’s court last year in what was considered Dobbs v. Jackson Women’s Health Organization noted in the case that “the Constitution does not grant a right to an abortion,” the judge noted in her order.
But Kollar-Kotelly wrote that this argument “is based on the false legal premise that the federal law cited in the indictment “regulates only access to abortion,” when in fact it also regulates access to a broad category of reproductive health services.”
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“Nonetheless, to the extent that the defendants seek a resolution of this matter through a constitutional decision, the court will require additional notice,” Kollar-Kotelly wrote.
The judge wrote that the question before the High Court in Dobbs “was not whether any provision of the Constitution provides for a right to an abortion”.
“Rather, the question before the court at Dobbs was whether the Fourteenth Amendment provided such a right,” Kollar-Kotelly wrote.
“Therefore, neither the majority nor the dissent in Dobbs analyzed anything other than the Fourteenth Amendment,” she wrote. “Indeed, according to the court’s initial review, not a single one [friend-of-the-court] The letter mentioned anything other than the Fourteenth Amendment and the unratified Equality Amendment.”
The due process clause of the 14th Amendment was upheld by the Supreme Court in Roe v. Citing Wade noting that included in this clause and elsewhere in the Constitution was a right to privacy that gave people the right to an abortion until a fetus became viable.
In its ruling excluding Roe, the Supreme Court wrote in its majority opinion that the 14th Amendment “clearly fails to protect the right to an abortion”.
Kollar-Kotelly wrote that “it is quite possible that the court at Dobbs would have held that another provision of the Constitution provided a right of access to reproductive services had that issue been raised.”
“It wasn’t addressed, however,” she noted.
And she wrote that since last year the court’s decision that the Constitution does not grant a right to an abortion “is often read as if the Supreme Court were ruling that no provision of the Constitution extends any right to reproductive health services.”
For her part, Kollar-Ktelly wrote that she “is not sure if that’s the case.”
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