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With a few state-based bright spots, it’s been a bleak time for abortion rights in this country — and one that could become bleaker. So when I saw Politico’s headline Monday — “Federal judge says constitutional right to abortion may still exist, despite Dobbs” — I’ll confess I thought I was hallucinating.
That a federal constitutional right to abortion is rooted and should be recognized outside the Fourteenth Amendment’s Due Process Clause — the source of the right as enunciated in Roe v. Wade — has been a subject of debate among lawyers and scholars for decades. No less an authority than Ruth Bader Ginsburg, as an ACLU lawyer, attempted to litigate the right to abortion on equal protection grounds. In a 1985 essay, she also criticized Roe for its “concentration on a medically approved autonomy idea, to the exclusion of a constitutionally based sex-equality perspective.”
Since then, the notion that a woman’s right to abortion should be derived from her constitutional equality before the law has only grown in popularity. Yet while embraced by the Dobbs dissenters (including through this amicus brief), Justice Samuel Alito’s decision rules any equal protection justification for abortion is “squarely foreclosed by our precedents.” Therefore, since Dobbs overturned Roe, the conventional wisdom has been there is no federal constitutional guarantee to abortion.
And that’s why D.C.-based U.S. District Judge Colleen Kollar-Kotelly threw legal observers for a loop this week. Kollar-Kotelly, a federal trial court judge since 1997, is handling a criminal case stemming from the October 2020 blockade of a reproductive health clinic and filed last March. That blockade, according to the indictment, involved everything from physically blocking the clinic’s main and employee entrances to some defendants’ chaining and roping themselves together in chairs “placed to obstruct passage into the Clinic’s treatment area.” The 10 defendants have been charged with a criminal conspiracy to deprive patients of access to reproductive health services as well as violations of the federal Freedom of Access to Clinic Entrances (“FACE”) Act, by injuring, intimidating and interfering with an unnamed patient’s obtaining reproductive health services.
One of those defendants then moved to dismiss the indictment on the ground that because Dobbs states the Constitution “does not confer a right to abortion,” she could not have violated the statutes at issue. Although Kollar-Kotelly noted that the statutory definition of “reproductive health services” is far broader than abortion itself, in a four-page order, she has requested further briefing as to whether Dobbs, in fact, holds “no provision of the Constitution extends any right to reproductive health services” — an interpretation of which she is “uncertain” — or whether a right to abortion might stem from other constitutional provisions not considered in that case. And before setting a briefing schedule, she then pointed to one such constitutional provision: “Of those provisions that might contain some right to access to such services, the Thirteenth Amendment has received substantial attention among scholars and, briefly, in one federal Court of Appeals decision.”
By floating the Thirteenth Amendment — which prohibits slavery and involuntary servitude, except as punishment for a convicted criminal — as a constitutional justification for abortion rights, Kollar-Kotelly might be engaged in high-minded, liberal trolling, as Vox’s Ian Millhiser observed this week. After all, the “deeply committed” Dobbs majority is “not going to reverse course because a judge appointed by a Democratic president writes a clever opinion arguing that forcing someone to carry a pregnancy to term is a form of involuntary servitude,” Millhiser wrote.
On the other hand, she isn’t just expressing an opinion; she is calling for further briefing from the Justice Department and criminal defendants, a demand a judge of nearly three decades likely does not make lightly. Could this then be the opening salvo in a new debate about the breadth of Dobbs — and the revival of a federal constitutional avenue to abortion? The briefs will be in by mid-March. As we say here in the Maddowverse, watch this space.