Last June in the Supreme Court Dobbs v. Jackson Women’s Health Organization (2022) that “the Constitution does not provide a right to abortion.” is given Dobbs You’ve probably heard of the decision, overturning half a century of precedent, upending the reproductive freedom of nearly half the country, and effectively erasing an entire constitutional right.
Nevertheless, on Monday, a federal judge in Washington, DC, issued a summary order suggesting that the Supreme Court did not mean what it said. Dobbs. “The matter is before the court Dobbs “It was not whether any provision of the Constitution provided a right to abortion,” wrote Clinton appointee Judge Colleen Coller-Cotelli. “Rather, the question is before the court Dobbs whether there was Fourteenth Amendment Such a right is given in the Constitution.”
And it leaves open the possibility that the Thirteenth Amendment, which prohibits “slavery” and “involuntary servitude,” prohibits laws prohibiting abortion. Judge Kolar-Cotelli’s order requires parties in criminal cases touching on abortion rights to state whether the Thirteenth Amendment or “any other provision of the Constitution may confer a right to abortion.”
Unless the membership of the Supreme Court changes drastically, it is highly unlikely that any provision of the Constitution will rule that protects abortion rights. The court’s GOP-appointed majority strongly opposes abortion rights. They didn’t just ignore it Roe v. Wade. They are established, in Whole Women’s Health v. Jackson (2021), states that use bounty hunters to enforce those laws can effectively inoculate anti-abortion laws from judicial review.
Simply put, these deeply committed opponents of abortion rights aren’t going backwards because a judge appointed by a Democratic president wrote a smart opinion arguing that forcing someone to carry a pregnancy to term is a form of involuntary servitude.
That said, the argument that the Thirteenth Amendment protects abortion rights is serious — or, at least, no less serious than the legal arguments coming out of this Supreme Court. As Harvard law professor Lawrence Tribe has written, “A woman is compelled by law to submit to the pain and anxiety of carrying, bearing, and rearing a child she does not want to believe that something more than a play of words binds her.” . Forced labor with the concept of involuntary servitude.”
Moreover, while Judge Koller-Cotelli’s order is a very well-intentioned attempt to troll the Supreme Court, trolling is now common practice by lower court judges throughout the federal jurisdictions. The United States Court of Appeals for the Fifth Circuit is dominated by right-wing trolls, who routinely declare entire federal agencies unconstitutional, order the Biden administration to change America’s foreign policy, or even allow military personnel to disobey orders. Political conservatives don’t like it.
It would certainly be best if federal judges all engaged in a good faith effort to follow the law with well-established legal precedent. But since we don’t live in that world, the Kolar-Cotelli ruling raises an arresting question: Why should left-leaning judges be unilaterally disarmed? If Republican judges can play this game, why can’t pro-abortion justices?
Thirteenth Amendment Cases Against Abortion Bans, Briefly Explained
A case is said to have been ordered by Judge Kallar-Kotelli United States v. HandyA 2020 criminal case against several individuals for allegedly working together to block access to a reproductive health clinic, when Ro There were still good laws.
Among other things, the defendants are charged with violating a federal statute that “makes it a crime to conspire to injure, oppress, threaten, or intimidate any person . . . from any right or privilege protected by the Constitution or laws of the United States.” In case of free exercise or enjoyment.
before Dobbs, this would have been a fairly straightforward case (of course, the government could prove its factual allegations against these defendants beyond a reasonable doubt). in the past Dobbsas in case Ro Established that there is a constitutional right to abortion. So blocking an abortion clinic injures the right of that clinic’s patients to exercise a constitutional right.
after DobbsHowever, the case becomes more complicated. The government still has a strong argument that blocking an abortion clinic violates a federal law that specifically prohibits using certain tactics to block access to an abortion clinic — and the government has charged these defendants with violating that law. Nevertheless, the prosecution’s argument that these defendants violated the broader prohibition of injuring constitutional rights would be stronger if it could argue that these defendants violated the constitutional right to abortion.
Enter the Thirteenth Amendment. Koller-Cotelli’s order cited two sources – a scholarly article by law professor Andrew Kopelman, which argues that the amendment “is violated by laws that prohibit abortion;” And a Tenth Circuit opinion that discusses a similar argument — to support the proposition that an abortion ban can qualify as “involuntary servitude.”
The argument that the Thirteenth Amendment protects abortion rights is fairly straightforward. inside Bailey v. Alabama (1911), the Supreme Court held that the amendment “intended to abolish one’s personal service by regulation”. [person] Disposed or coerced for the benefit of another, which is the essence of involuntary servitude.”
As Kopelman writes, “forced pregnancy and childbirth” is by its very nature “compelling the woman to serve the fetus.”
But wait, what happens Dobbs‘ The statement that “the Constitution does not grant the right to abortion?”
Of course, there is a big problem with this Thirteenth Amendment argument Dobbs spoke clearly about abortion rights – or, rather, that rights do not exist. Dobbs Clearly states that “the Constitution does not grant a right to abortion.”
To get at this problem, Koller-Cotelli relies on a notoriously hard-to-pin-down distinction between the “holdings” and “dicta” of court decisions.
In short, the portion of an opinion that answers specific legal questions before the court is considered the court’s “holding” and is binding on lower courts considering similar cases. In contrast, when a judge launches into a non sequitur or otherwise issues an opinion that is not relevant to the actual legal issues in the case, those portions of the judge’s opinion are considered “dicta” and are not binding.
Koller-Cotelli wrote, citing the distinguished federal judge Henry Friendly, “A judge’s power to bind is limited to the issue before him; He cannot convert a decision by waving a stick and uttering the word ‘hold’.
The specific issue that was before the court Dobbs, Kollar-Kotelly notes, whether the Fourteenth Amendment protects an abortion right is not whether any other provision does. “So neither majority nor dissent Dobbs analyzed something other than the Fourteenth Amendment,” he wrote. Thus, the Court’s broad declaration that the Constitution as a whole “does not confer a right to abortion” can reasonably be dismissed as dicta.
Realistically, this argument is unlikely to convince anyone on the Supreme Court who joined the majority opinion. Dobbs. The distinction between holding and dicta is notoriously slippery. And five judges would have confirmed it DobbsIts broad declaration dicta about the entire Constitution, those justices will still have formal authority to reject the Thirteenth Amendment’s arguments for abortion rights on the merits.
The Supreme Court has only itself to blame for the Kollar-Kotelli order
Again, unless two Republican appointees to the Supreme Court unexpectedly leave the court and are replaced by Democrats, the justices will likely rule that the Constitution protects abortion rights as they move the Supreme Court building to Mordor, Asgard. , or Ancilli Court.
And, again, in a better world, judges would behave as servants of the law—rather than trying to stretch that law to serve their particular agenda.
But here in the real world, lower courts don’t always act in accordance with Supreme Court precedent. They often serve as think tanks for new legal ideas that have not received support in the Supreme Court, but may at some point in the future. The Fifth Circuit serves more or less as a generator and legitimator of right-wing ideas that are often, but not always, rejected by this Supreme Court. So have several federal trial judges who have become favorites among right-wing advocates seeking to push the law hard to the right.
If this Supreme Court wanted to avoid treating lower court judges like biased trolls, it could approach those judges by walking more closely with the legal text and existing precedents. But, if anything, this Court has actively encouraged far-right judges in the federal judiciary to play games with the law.
The Kolar-Kotelli order cannot really be defended as a serious attempt to persuade this Supreme Court to change the law. But, at worst, it’s just the center-left equivalent of the kind of judicial entrepreneurship that routinely runs in the Fifth Circuit. The Supreme Court should not be surprised that, if it refuses to rein in the rampant overreach by courts like the Fifth Circuit, Democratic judges will begin to act like they have a free hand.