Supreme Court ruling on abortion challenged by judge

College student Agnes Scott Jordan Simi (centre) participates in a chant during a march for abortion rights and a rally held in response to a leaked draft U.S. Supreme Court majority opinion written by Judge Samuel Alito, preparing to overturn by a majority of the court. Rowe v. Wade’s landmark abortion rights decision later this year in Atlanta, Georgia on May 3, 2022.

Alyssa Pointer | Reuters

On Monday, a federal judge suggested that federal right to abortion – which Supreme Court repealed last year – can still be protected by the 13th Amendment to the Constitution, which abolished slavery.

Judge Colleen Kollar-Cotelli advanced this puzzling hypothesis in court order V criminal case against a group of anti-abortion activists accused of blocking access to an abortion clinic in Washington, D.C.

In Kollar-Kotelli’s order, prosecutors and defense attorneys were told to submit summaries by next month on whether the Supreme Court’s decision only addresses the issue of whether abortion is protected by the 14th Amendment, and if any other provision of the Constitution “may provide the right to an abortion.

Her ruling in Washington District Court could eventually become an invitation to federal litigation under the 13th Amendment to state laws that sharply curtailed access to abortion in some states following the Supreme Court’s controversial ruling overturning its 1973 decision in Roe v. Wade. Previously reported order band politics.

U.S. District Judge Colleen Kollar-Cotelli

Charles Dharapack | AP

14th amendment covers several rights, including the right to citizenship and the prohibition of the government from depriving “any person of life, liberty, or property without due process of law.”

The due process clause of this amendment was the cornerstone of the previous Supreme Court decision in Roe v. Wade, which established the federal right to abortion for the first time.

But Kollar-Kotelli wrote in her order that the 13th Amendment “has received significant scholarly attention and, briefly, in one federal appeals court decision” on whether this section of the constitution can apply to abortion.

A 1990 paper by a Northwestern University Law School professor found that the 13th Amendment, with its prohibition of forced labor, provided the textual basis for the right to abortion.

“When women are forced to carry and bear children, they are subjected to ‘involuntary servitude’ in violation of” this amendment, wrote article author Andrew Koppelman, whom Kollar-Cotelli cited in her order.

IN 1995 ruling On the issue of legal costs in the Utah abortion law challenge case, a panel of judges of the U.S. Court of Appeals for the 10th Circuit said the district court judge erred in awarding fees on the grounds that arguments against the law that invoked the 13th Amendment were frivolous.

“Without expressing an opinion on the merits of the involuntary slavery argument, we consider that it is not unfounded,” the appeals panel wrote.

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The judge’s order came in a case in which Lauren Handy, a Virginia resident, and nine other anti-abortion activists were arrested. indicted last year for conspiring to obstruct access to an abortion clinic in Washington on October 22, 2020.

Handy and the other defendants have petitioned Kollar-Kotelli, who was appointed by former President Bill Clinton to the Washington District Court, to have the indictment dismissed for lack of jurisdiction.

Their argument is based at least in part on the fact that the majority opinion handed down by Judge Samuel Alito last year in what is known as Dobbs v. Jackson Women’s Health Organization held that “the Constitution does not give a right to abortion.” noted in her order.

But Kollar-Kotelli wrote that the argument “is based on a false legal premise that the federal law cited in the indictment “regulates only access to abortion” when in fact it also regulates access to a broad category of protection services. reproductive health.

“However, to the extent that Defendants pursue this issue through constitutional proceedings, the Court will require further briefing,” Kollar-Cotelli wrote.

The judge wrote that the question before the high court in Dobbs “was not whether any provision of the Constitution gave a right to abortion.”

“Rather, the question before the Dobbs court was whether the Fourteenth Amendment to the Constitution grants such a right,” Kollar-Cotelli wrote.

“That’s why neither the majority nor the dissent in Dobbs analyzed anything but the Fourteenth Amendment,” she wrote. “Indeed, at the initial consideration of the Court, not a single [friend-of-the-court] brief reference to anything other than the Fourteenth Amendment and the unratified Equal Rights Amendment.”

The due process clause of the 14th Amendment was cited by the Supreme Court in Roe v. Wade, which found that there is a right to privacy contained in that clause and elsewhere in the Constitution that gives people the right to have an abortion as long as until the fetus becomes viable. .

In its decision to exclude Roe, the Supreme Court indicated in its majority opinion that the 14th Amendment “clearly does not protect the right to abortion.”

Kollar-Kotelli wrote that “it is possible that the court could have held in Dobbs that some other provision of the Constitution grants a right to access to reproductive services, if the issue were raised.”

“However, he was not promoted,” she noted.

And she wrote that since last year, a court ruling that the Constitution does not grant a right to abortion “is often read as a statement: ‘The Supreme Court has ruled that no provision of the Constitution extends any right to reproductive health services.’ “

Kollar-Ketelli wrote that, for her part, she was “not sure that this is the case.”

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