Federal judge suggests abortion may still be protected by 13th Amendment

A federal judge this week suggested abortion could still be federally protected even after the Supreme Court’s overturning of Roe v. Wade last summer, according to court filings.

U.S. District Judge Colleen Kollar-Kotelly, who was nominated by former President Clinton, asked the parties in an ongoing criminal case on Monday to file briefs on whether the high court considered the entire Constitution in overturning Roe, or if it only found the 14th Amendment didn’t confer abortion rights.

Despite the landmark Dobbs v. Jackson Women’s Health Organization landmark decision, the judge went on to suggest that the 13th Amendment — which abolished slavery and involuntary servitude — could perhaps cement abortion rights.

“Here, the ‘issue’ before the Court in Dobbs was not whether any provision of the Constitution provided a right to abortion,” Kollar-Kotelly wrote. “Rather, the question before the Court in Dobbs was whether the Fourteenth Amendment to the Constitution provided such a right.”

Her filing came in response to a defendant seeking to dismiss charges of conspiring against rights and violating the Freedom of Access to Clinic Entrances Act.

Lauren Handy, an anti-abortion activist, is accused of unlawfully blocking access to an abortion clinic in Washington, D.C. She argues the statutes protecting clinics are premised upon abortion being a federal right.

“There is no longer a federal constitutional interest to protect, and Congress lacks jurisdiction. For the same reason, the Court here does likewise,” Handy’s attorneys wrote to Kollar-Kotelly.

Kollar-Kotelly responded on Monday by saying she was “uncertain” that no provision of the Constitution protects abortions, and she asked the Justice Department to opine on the issue in writing by March 3.

If Kollar-Kotelly were to ultimately rule that the 13th Amendment protects abortions, however, the decision would likely be appealed to the D.C. Circuit Court of Appeals.

“Mindful that this Court is bound by holdings, and in consideration of the Supreme Court’s longstanding admonition against overapplying its own precedent, 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,” Kollar-Kotelly wrote.