Federal judge says constitutional right to abortion may still exist, despite Dobbs
Kollar-Kotelly noted that there are legal studies suggesting the 13th Amendment — which was ratified at the end of the Civil War and sought to outlaw slavery and “involuntary servitude” — provides such a right. She is asking the parties to the criminal case, which involves charges of blocking access to abortion clinics, to present arguments by mid-March.
The judge asks them in particular to decide “on the scope of Dobbs is in fact limited 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 as Dobbs may or may not be the final decision on the matter, leaving an open question.
Kollar-Kotelly’s request stems from a year-old case against 10 defendants, who are accused of conspiring to block access to an abortion clinic in Washington, DC.
One of those defendants, Lauren Handy, argued that the conspiracy charge was no longer legitimate because the Dobbs decision removed Congress from the task of making laws relating to abortion access.
“There is no longer any federal constitutional interest to protect, and Congress has no jurisdiction,” Handy’s attorneys wrote. “THE Dobbs the court did not indicate that there is no longer a constitutional right to abortion; the court made it clear that there never was.
Kollar-Kotelly, an appointee of former President Bill Clinton, said she considers the position too broad. Dobbsshe noted, limited her analysis to the 14th Amendment alone, although she admitted that it contains sweeping statements that could lead to the conclusion that the judges were convinced that nothing in the Constitution protects the right to ‘abortion.
“The Constitution does not confer the right to abortion,” Judge Samuel Alito said in the Dobbs the majority opinion, which was endorsed by four other judges.
However, Kollar-Kotelly said that statement may just be “heuristics” and the legal effect of the Supreme Court’s decision may be narrower.
“The ‘question’ before the Court in Dobbs was not whether a provision of the Constitution provided for the right to abortion. On the contrary, the question submitted to the Court in Dobbs was whether the Fourteenth Amendment to the Constitution provided such a right,” she wrote. “That is why neither the majority nor the dissent in Dobbs analyzed everything but the Fourteenth Amendment. In fact, during the court’s initial review, not a single amicus brief mentioned anything other than the Fourteenth Amendment and the unconfirmed Equal Rights Amendment.
Beyond the 13th Amendment argument that Kollar-Kotelly launched, several Jewish organizations have filed lawsuits arguing that religious freedom protections in the First Amendment or state constitutions may extend to the right to abortion.
A Massachusetts-based Satanic Temple has also filed suit, claiming abortion restrictions in other states violate the group’s religious freedom rights.