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Constitutional right to abortion may still exist despite Dobbs decision, federal judge says

By Sarah May on
 February 7, 2023

Though in the minds of most observers, the U.S. Supreme Court's summer decision in Dobbs v. Jackson Women's Health Organization was a conclusive reversal of the abortion precedent of Roe v. Wade, a federal judge in Washington, D.C. posited this week that a constitutional right to the procedure may still exist, as Politico reports.

U.S. District Court Judge Colleen Kollar-Kotelly suggested that while the Dobbs ruling definitively stated that the 14th Amendment did not encompass a right to abortion, that does not necessarily mean that such liberty is not granted by other constitutional provisions that the high court did not explicitly address in its June opinion.

Criminal dismissal sought

Kollar-Kotelly's hypothesis about the potential limits of the Dobbs decision came in the context of an ongoing criminal matter in which a group of defendants stand accused of conspiracy to block access to an abortion clinic in contravention of the Freedom of Access to Clinic Entrances Act.

In that case, abortion activist Lauren Handy is seeking a dismissal of the charges against her, arguing that the aforementioned statute is necessarily premised on the existence of a federal right to abortion, something she contends Dobbs eliminated.

Attorneys representing Handy declared, “There is no longer a federal constitutional interest to protect, and Congress lacks jurisdiction. For the same reason, the Court here does likewise.”

“The Dobbs court did not indicate that there is no longer a constitutional right to abortion; the court has made clear there never was,” Handy's lawyers continued.

Dobbs' scope questioned

Kollar-Kotelly, an appointee of former President Bill Clinton, issued a response on Monday indicating that she was far from convinced that the Dobbs ruling was nearly as expansive as Handy's lawyers believe.

In an order dated Feb. 6, the judge noted that the defendant's claim relies on language from the decision that said, “the Constitution does not confer a right to abortion” and acknowledged that many observers have interpreted this to mean that no “provision of the Constitution extends any right to reproductive health services.”

Such a reading, Kollar-Kotelly opined, may be overbroad and while perhaps having a “sensible appeal as a heuristic for a legal decision's binding effect,” the actual holding must be restricted to “the reason for the decision” based on the actual arguments raised by the parties and legally relevant facts.

As such, the judge contended, the Dobbs court did not endeavor to answer “whether any provision of the Constitution provided a right to an abortion,” but rather only “whether the Fourteenth Amendment to the Constitution provided such a right, and due to what she deemed the absence of that broader discussion in Dobbs, floated the idea that the 13th Amendment's provision banning slavery and “involuntary servitude” may provide the basis for such a right.

Briefing ordered

In declining to rule just yet on Handy's motion for dismissal, Kollar-Kotelly referenced the existence of some legal scholarship and a single Court of Appeals decision related to the 13th Amendment's potential impact on abortion rights.

The judge then ordered the parties to submit briefs addressing several issues, including “whether the scope of Dobbs is in fact confined to the Fourteenth Amendment.”

She also sought arguments on “whether...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.”

Kollar-Kotelly also instructed the parties to address in their briefs the scope of the statute at issue in the case and any other issues that may pertain to the questions she raised, and while the Justice Department was given until March 3 to file its brief, the defendants received a deadline of March 17.

Turley weighs in

George Washington University law professor and frequent media commentator Jonathan Turley assessed Kollar-Kotelly's thought-provoking order on his blog Tuesday, ultimately casting significant doubts about the judge's theory.

As reason for his skepticism, Turley in part noted that the extensive historical analysis described in the Dobbs opinion examined whether abortion was thought of as a protected right at the time of the nation's founding. The high court, he explained, “concluded that it did not.”

Turley added, “the fact that the Court did not expressly reject the 13th Amendment argument is a hardly compelling basis for suggesting that abortion may still be protected under the Constitution,” and he also referenced Supreme Court precedent rejecting expansive readings of the 13the Amendment, including those deemed “novel.”

If, following briefing on the questions, Kollar-Kotelly decides that the 13th Amendment does safeguard a right to abortion, such a ruling will almost certainly be appealed, as The Hill notes, And in Turley's estimation, the Supreme Court in June did not evince any doubt about its final stance on the matter when it wrote, “It is time to heed the Constitution and return the issue of abortion to the people's elected representatives.”