DOJ dodges question about abortion in filing to federal judge

The Justice Department declined an opportunity from a federal judge to take a position on whether abortion is still constitutionally protected under the 13th Amendment.

In an ongoing criminal case, U.S. District Judge Colleen Kollar-Kotelly last month asked the parties to provide briefing on whether the Supreme Court considered the entire Constitution in overturning Roe v. Wade last summer, or if it only rejected the right to abortion under the 14th Amendment.

The judge’s request came after anti-abortion activist Lauren Handy, who is charged with violating the Freedom of Access to Clinic Entrances (FACE) Act by blocking access to an abortion clinic in Washington, D.C., contended her charges should be dropped because they were premised on abortion being a federally protected right.

The Department of Justice (DOJ) in a court filing on Friday argued that it can still enforce the FACE Act under Congress’s broad power to regulate interstate commerce. 

Prosecutors argued the judge as a result can deny Handy’s motion without deciding if abortion is still protected under the 13th Amendment, which abolished slavery and involuntary servitude, following the high court’s landmark Dobbs v. Jackson Women’s Health Organization decision.

“The Court need not consider, let alone decide these issues to resolve the pending motion, as doing so is not necessary to answer the straightforward jurisdictional questions before the Court,” DOJ wrote. “Put simply, the Court need not reach whether the Thirteenth Amendment — or any other provision of the Constitution — protects a right to abortion or that Congress had authority under anything other than the Commerce Clause to enact the FACE Act.”

Handy and nine others were charged with clinic access obstruction and conspiracy against rights prior to the Dobbs decision, and Handy in late January had asked the judge to dismiss the charges.

“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 attorney wrote to Kollar-Kotelly, who was nominated by former President Clinton.

Handy’s reply to DOJ’s argument is due by March 17.

The Hill has reached out to Handy’s attorney for comment.