Federal Judge Says A Constitutional Right To Abortion Exists Despite Dobbs… In The 13th Amendment

Written by K. Walker on February 7, 2023

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A federal judge in the D.C. circuit thinks she may have found a loophole around the Dobbs ruling that puts decisions about the legality of abortion back into the hands of the state legislatures.

Judge Colleen Kollar-Kotelly speculated on Monday that there might still be hope for the pro-aborts to force legal support for abortion at the federal level using the Thirteenth Amendment which abolishes slavery and “involuntary servitude”.

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The Thirteenth Amendment states, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Section Two adds, “Congress shall have power to enforce this article by appropriate legislation.”

The judge’s position is basically that pregnancy constitutes “involuntary servitude” to the unborn child and that violates the Thirteenth Amendment.

Kollar-Kotelly noted that there is some legal scholarship suggesting that the 13th Amendment — which was ratified at the end of the Civil War and sought to ban slavery and “involuntary servitude” — provides just such a right. She is asking the parties in the criminal case, which involves charges of blocking access to abortion clinics, to present arguments by mid-March.
In particular, the judge is asking them to address ”whether the scope of Dobbs is in fact confined to the Fourteenth Amendment” and “whether, if so, any other provision of the Constitution could confer a right to abortion as an original matter … such that Dobbs may or may not be the final pronouncement on the issue, leaving an open question.”
Source: Politico

Attorneys for Lauren Handy, one of the defendants, are making the argument that the conspiracy charge is no longer legitimate since the Dobbs decision made it clear that Congress no longer has a role in making laws related to abortion access since there is no Constitutional right to abortion nor has there ever been.

“There is no longer a federal constitutional interest to protect, and Congress lacks jurisdiction,” wrote Handy’s attorneys. “The Dobbs court did not indicate that there is no longer a constitutional right to abortion; the court has made clear there never was.”

In making this request to examine the scope of the Dobbs decision, Kollar-Kotelly, a Clinton appointee, appears to have a pro-abortion bias and, like the Biden DOJ seems to want to make an example of pro-life protesters.

Reaction to the post on Twitter was filled with the “Let’s goooo!” and “Yas, Qween!” from the pro-aborts and the “Is she high?” responses to the bizarre foundation of the argument by pro-lifers because it appears to be a conclusion in search of a premise.

Or maybe it’s in search of more of those elusive penumbras and emanations…

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The premise itself is pretty shaky and appears to have been addressed in the Dobbs decision where Justice Alito clearly states, “the Constitution does not confer a right to abortion.”

Judge Kollar-Kotelly says that language may simply be “heuristic” and the legal effect of the decision could be narrower.

This is how judicial activism works.

Meanwhile, if the judge had bothered to read the amicus briefs, she would’ve come across the one from the Pacific Justice Institute in support of the petitioner, Dobbs. It addresses the Thirteenth Amendment directly, and hoo-boy… that’s a can of worms I’m sure that no one wants to open.

Basically, the amicus brief states that using the Thirteenth Amendment to defend abortion under the guise of “involuntary servitude” is a non-starter because pregnancy is the natural result of a consensual act. It states, “neither males nor females is there a ‘right’ to have sexual relations without accruing its natural consequences, any more than there is a ‘right’ not to be affected by what one hears or reads when exercising the freedoms of speech, press, and assembly.” The brief also states that men have to pay child support even if they didn’t want to become a father.

But the brief goes further than that and states that the Thirteenth Amendment is an argument against abortion because unborn children who are aborted are treated as slave property by the mother.

Here’s a quick summary from the brief:

All of these incidents and definitions of slavery apply to abortion:
[a] Fetuses are treated as the property of the mother.
[b] Fetuses do not have the power to control their own lives, but may be killed by the one who owns them, without penalty.
[c] Being aborted terminates the fetus’s potential to become an adult and to own land or personal property or, for that matter, to inherit even in utero.
[d] Fetuses have no power to speak for themselves or to fight for their own liberty. They are not even permitted guardians ad litem to speak for them.
[e] Fetuses do not control their families; their families—and in particular their mothers—control them, without any necessary regard for them or their welfare whatsoever.
[f] And the whole point of abortion is that mothers may dispose of their unwanted unborn with impunity.
Abortion is also a violation of the amendment’s prohibition on involuntary servitude. While a fetus is, in the large majority of instances, the result of the voluntary choice of the mother and father, a fetus has no choice about whether it comes into existence. A mother bringing her fetus to term is acting in voluntary servitude to the child. However, a mother aborting her fetus is acting in her own interests; instead of acting in the child’s best interests, the aborting mother puts her fetus in unwilling, involuntary servitude to her own, perceived best interests.

And then, the petitioners add this flourishing touch… “there is no limiting language in the amendment, as some resort to in the Fourteenth, to limit those protections to persons already born. Thus, the Thirteenth Amendment, on its face, covers all of the human race, at whatever stage of development.”

Does Judge Colleen Kollar-Kotelly really want to go there?

Bring it on.

I don’t think that’ll go the way that the pro-aborts want it to…

Sources:

1. Constitution Annotated. https://constitution.congress.gov/constitution/amendment-13/#amendment-13-section-2

2. Cheney, Kyle, and Josh Gerstein. “Federal judge says constitutional right to abortion may still exist, despite Dobbs.” Politico. February 6, 2023. https://www.politico.com/news/2023/02/06/federal-judge-constitutional-right-abortion-dobbs-00081391

3. Claybrook, Frederick W. Jr., and David A. Bruce. “No. 19-1392: Brief of Amicus Curiae Pacific Justice Institute in Support of Petitioners.” Supreme Court Docket. July 29, 2021. https://www.supremecourt.gov/DocketPDF/19/19-1392/185314/20210806174039779_19-1392%20Amicus%20Br%20Pacific%20Justice%20Inst.pdf

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K. Walker
ClashDaily's Associate Editor since August 2016. Self-described political junkie, anti-Third Wave Feminist, and a nightmare to the 'intersectional' crowd. Mrs. Walker has taken a stand against 'white privilege' education in public schools. She's also an amateur Playwright, former Drama teacher, and staunch defender of the Oxford comma. Follow her humble musings on Twitter: @TheMrsKnowItAll and on Gettr @KarenWalker
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