Judge questions Supreme Court’s abortion ruling

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Agnes Scott College student Jordan Simi (C) participates in a chant during a pro-abortion march and rally, which was organized in response to the leaking of the draft of the US Supreme Court majority opinion that Justice Samuel Alito, preparing to overturn the court’s majority. Historic Roe v. Wade abortion rights decision later this year, May 3, 2022, in Atlanta, Georgia.

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A federal judge in Washington, DC, on Monday in a criminal case against a group of anti-abortion activists suggested in a court order that the federal right to abortion – which was overturned by the Supreme Court last year – is still protected by May go. 13th Amendment to the Constitution, which abolished slavery.

Judge Colleen Koller-Cotelli asked federal prosecutors and attorneys for the defendants to brief on the question of whether the Supreme Court ruling limited only the 14th Amendment, and whether any other provision in the Constitution “could” confer an abortion right. Is. “

Koller-Cotelli’s order potentially opens the door to a federal legal challenge based on the 13th Amendment, which restricts access to abortion in some states, since the high court’s controversial decision last summer upheld the 1973 decision in Roe v. Wade. The decision was overturned. Which established the federal right to abortion.

The 14th Amendment covers a number of rights, including citizenship rights and a prohibition on “depriving any person of life, liberty, or property without due process of law”.

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

In her order, first reported by Politico, Kollar-Cotelli wrote that the 13th Amendment “has received substantial attention among scholars and, briefly, in a federal court of appeals.”

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.

US District Judge Colleen Koller-Kotley

Charles Holder | AP

The order came in a case where Virginia resident Lauren Handy and nine other anti-abortion activists were charged with conspiracy to obstruct access to a Washington abortion clinic last October 22, 2020.

Handy and the other defendants have asked Kollar-Kotley, who was 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.

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“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] Briefly mentioned anything but the Fourteenth Amendment and the unproven 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 finding 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 the right to reproductive health services. Is.

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

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