Judge suggests abortion might be protected by 13th Amendment despite Supreme Court ruling

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  • A federal judge suggested that the federal right to abortion—which the Supreme Court overturned last year—may still be protected by the Constitution’s 13th Amendment, which outlawed slavery.
  • Judge Colleen Koller-Cotelli put the hypothetical into a court order in a case against anti-abortion activists accused of blocking access to an abortion clinic in Washington, DC.
  • The judge, who was appointed by President Bill Clinton, asked attorneys to file a brief on the question of whether the Supreme Court decision is limited to 14th Amendment grounds.
  • The high court, in a majority opinion authored by Justice Samuel Alito, overturned its 1973 decision in Roe v. Wade.
  • Following that decision in the case known as Dobbs v. Jackson Women’s Health Organization, some states increasingly restricted or restricted access to abortion.

A federal judge suggested on Monday that federal right to abortion – K Joe Supreme Court Overturned last year – may still be protected by the 13th Amendment to the Constitution, which abolished slavery.

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Judge Colleen Koller-Cotelli puts forth an eyebrow-raising hypothetical court order one in criminal case Charges against a group of anti-abortion activists for blocking access to an abortion clinic in Washington, D.C.

The Kollar-Kotli order asked prosecutors and defense attorneys to file briefs by next month on the question of whether the Supreme Court decision only addressed the issue of whether abortion is not protected by the 14th Amendment, and whether any other provision in the Constitution “could provide” the right to abortion.

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Her order in Washington District Court could be an invitation to federal legal challenges based on the 13th Amendment, which sharply restricts access to abortion in some states, following the high court’s controversial ruling to state laws. The order was previously reported band political,

14th amendment Covers a number of rights, including the right of citizenship and that no person shall be deprived of life, liberty, or property by the government “without due process of law”.

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That amendment’s due process clause was a cornerstone of the Supreme Court’s earlier decision in Roe v. Wade that first established the federal right to abortion.

But Kollar-Cotelli wrote in her order that the 13th Amendment “has attracted substantial attention among scholars and, in essence, a federal court of appeals decision” on the question of whether that section of the Constitution could apply to abortion. Is.

A 1990 paper by a Northwestern University School of Law professor found that the 13th Amendment, with its prohibition against involuntary servitude, provides a textual basis for abortion rights.

“When women are forced to bear and bear children, they are subject to ‘involuntary servitude’ in violation of that amendment,” wrote Andrew Koppelman, author of the paper, which Kollar-Kotelli cited in his order. was cited.

In a 1995 decision On the question of legal fees in a case challenging Utah’s abortion law, a panel of judges of the US Court of Appeals for the 10th Circuit held that a district court judge was wrong to allocate fees on the basis that the law Arguments against, which cited the 13th Amendment, were frivolous.

The appeals panel wrote, “Without expressing any view on the merits of the involuntary servitude argument, we hold that it is not frivolous.”

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The judge’s order came in a case where Virginia resident Lauren Handy and nine other anti-abortion activists indicted last year on October 22, 2020, with conspiracy to obstruct access to a Washington abortion clinic.

Handy and the other defendants have asked Kollar-Kotly, appointed to the district court in Washington by former President Bill Clinton, to dismiss the indictment for lack of jurisdiction.

Their argument is based at least partially on the premise that the court’s majority opinion by Justice Samuel Alito last year, in a case known as Dobbs v. Jackson Women’s Health Organization, held that “the Constitution does not provide a right to abortion , ” the judge noted in his order.

But Koller-Cotelli wrote that the argument “is based on the false legal premise that the federal law” cited in the indictment “only regulates access to abortion,” when in fact it also regulates access to a broad range of reproductive health services. Is.

“Nevertheless, to the extent that defendants seek resolution of this matter through a constitutional holding, the Court will require additional briefing,” Koller-Kotley wrote.

The judge wrote that the question before the High Court in Dobbs “was not whether any provision of the Constitution confers 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-Cotelli wrote.

“That is why neither the majority nor the dissent in Dobbs analyzed anything other than the Fourteenth Amendment,” she wrote. “Indeed, upon the Court’s preliminary review, not a single [friend-of-the-court] The brief refers to anything other than the Fourteenth Amendment and the Attested Equal Rights Amendment.”

The Due Process Clause of the 14th Amendment was cited by the Supreme Court in Roe v. Wade, which established that the right to privacy contained in that clause and elsewhere in the Constitution gave people the right to have an abortion until the fetus was viable Was. ,

In its decision to overturn Roe, the Supreme Court wrote in its majority opinion that the 14th Amendment “does not explicitly protect abortion rights.”

Kollar-Kotelli wrote that “it is entirely possible that the Court would have recognized in Dobbs that some other provision of the Constitution provided a right to access reproductive services had the issue been raised.”

“However, it was not picked up,” she said.

And she wrote that since last year, the court’s holding that the Constitution does not grant a right to abortion “is often read as saying that ‘the Supreme Court held that no provision of the Constitution extends to the right to reproductive health services. does.’ ,

Kollar-Keitley wrote that for her part, she is “unsure that this is the case.”

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