The Thirteenth Amendment, which abolished slavery, may protect abortion as a federal right, a federal judge said on Feb. 6 in an ongoing prosecution of pro-life activists charged with conspiracy to block access to an abortion clinic.
The statement could open up a new line of attack that pro-choice activists could use to advance their cause after the Supreme Court overturned the 49-year-old precedent Roe v. Wade, holding that the Constitution does not protect abortion as a right.
The ruling in Dobbs v. Jackson Women’s Health Organization, handed down in June 2022, opened the door to a flurry of lawsuits and new state-level restrictions on abortion.
Roe itself held that a right to abortion was part of a right to privacy that emanates from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
Its companion precedent, Planned Parenthood v. Casey (1992), which was also overturned, held that states could not impose significant restrictions on abortion before a fetus became viable for life outside the womb. Casey was based on the idea that obtaining an abortion was a right protected by the Fourteenth Amendment’s Due Process Clause.
The comment came in a ruling issued by Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia.
Lauren Handy and nine other defendants were indicted (pdf) last year for conspiring to obstruct access to an abortion clinic in October 2020, a violation of federal law. Handy moved to dismiss the indictment for lack of jurisdiction, quoting the Dobbs ruling, which states that “the Constitution does not confer a right to abortion.”
Handy is the director of activism for Progressive Anti-Abortion Uprising, which describes its mission as mobilizing “grassroots anti-abortion activists for direct action and [to] educate on the exploitative influence of the Abortion Industrial Complex through an anti-capitalist lens.”
After being released from jail in July 2022 on a separate charge, Handy said: “As a Catholic and Progressive myself, I am compelled by my deeply held beliefs (religious and political) to put my body between the oppressed and the oppressor.”
But Handy’s “constitutional argument is predicated on the false legal premise” that the federal statute she is challenging “only regulates access to abortion,” Kollar-Kotelly wrote in her new order (pdf). In fact, the law “regulates a broad category of ‘reproductive health services,’ including, among other things, ‘counselling or referral services.’”
Handy is seeking to resolve the charges against her by citing a constitutional holding, so Kollar-Kotelly directed defense counsel and prosecutors to further brief the court.
Although Dobbs has been interpreted to mean that “the Supreme Court held that no provision of the Constitution extends any right to reproductive health services … the Court is uncertain that this is the case,” the judge wrote.
Both the majority and dissenting opinions in Dobbs focused only on the Fourteenth Amendment and the unratified Equal Rights Amendment, so “it is entirely possible that the Court might have held in Dobbs that some other provision of the Constitution provided a right to access reproductive services had that issue been raised. However, it was not raised.”
Scholars and one federal appeals court decision suggest the Thirteenth Amendment in particular “might contain some right to access to such services,” she wrote.
The judge ordered prosecutors to file a brief by March 3 and defense counsel to file a reply brief by March 17 on whether the Dobbs ruling is limited to Fourteenth Amendment grounds.
Kollar-Kotelly is no stranger to controversy.
In October 2017, the Clinton appointee issued a preliminary injunction blocking then-President Donald Trump’s memorandum extending a ban on transgender persons joining the military and directing the military to discharge currently serving transgender service members, according to Ballotpedia.
One of Handy’s attorneys, Martin A. Cannon, senior trial counsel at the Thomas More Society, told The Epoch Times by email that he appreciated the court’s interest in the constitutional issue and will “fully brief the matter” of “whether Dobbs did in fact limit itself to the 14th Amendment and whether there is a right to abortion under the 13th Amendment or any other provision apart from the 14th.”
The Epoch Times reached out to the U.S. Department of Justice for comment but had not received a reply as of press time.