‘Highly Dubious’: Federal Judge Speculates 13th Amendment Protects Abortion

This story was originally published by the WND News Center.

A federal judge has, in her comments, speculated that the 13th Amendment could provide a constitutional basis for a right to abortion, and now is facing backlash since her opinion runs “against the text, history, and case law” of the Constitution.

The Daily Caller News Foundation explained it was U.S. District Court Judge Colleen Kollar-Kotelly who suggested that the “right” to abortion might be found in the 13th Amendment.

When the high court issued its Dobbs decision last year, overturning the faulty Roe v. Wade and erasing what had been purported to be a constitutional “right,” it cited the 14th Amendment.

The judge’s comments were “in the context of the ongoing case against pro-life activists indicted on FACE Act charges last March for allegedly creating a blockade that prevented access to a Washington, D.C., abortion clinic. In their motion to dismiss for lack of jurisdiction, attorneys for defendant Lauren Handy argue that the federal government no longer has an interest in protecting abortion rights, since Dobbs found such a right does not exist,” the report said.

Constitutional expert, legal commentator, and congressional witness Jonathan Turley pointed out that Kollar-Kotelly “caused a bit of a stir.”

She “suggested that the Thirteenth Amendment’s ban on involuntary servitude could be used to guarantee a woman’s right to an abortion,” he explained.

She “stressed that the decision that there is no federal constitutional right to an abortion was based on the 14th Amendment, but was silent on the 13th Amendment or other grounds. The problem is that silence may be the most charitable response to this highly dubious theory, which has been bantered about in academic circles for years. The theory runs against the text, history, and case law of the Thirteenth Amendment,” he explained.

The judge claimed the 13th Amendment “has received substantial attention among scholars and, briefly, in one federal Court of Appeals decision” on whether it applies to abortion.

The claim is that: “Abortion prohibitions violate the amendment’s guarantee of personal liberty, because forced pregnancy and childbirth, by compelling the woman to serve the fetus, creates ‘that control by which the personal service of one man [sic] is disposed of or coerced for another’s benefit which is the essence of involuntary servitude.'”

Turley pointed out the judge claimed, “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.”

Turley turned sarcastic: “It is also true that the Supreme Court also did not rule out a theory based on the Preamble. That ‘possibility’ does not make a Preamble claim viable or credible after Dobbs. It also did not rule out a Ninth Amendment claim, but it still sent the matter back to the states.”

He said the facts are: “The long historical analysis considered whether abortion was viewed as a protected right at the time of the framers. The court concluded that it did not. As discussed in prior decisions (and given the reliance in Dobbs on history), it is worth noting that at the time of the ratification of the Thirteenth Amendment on December 18, 1865, 27 of the 36 states had enacted statutes prohibiting abortion. That included 21 of the 27 ratifying states.”

He explained the Supreme Court previously has rejected “expansive readings” of the 13th, including a case where it ruled, “[T]he amendment was not intended to introduce any novel doctrine with respect to certain descriptions of service which have always been treated as exceptional; such as military and naval enlistments, or to disturb the right of parents and guardians to the custody of their minor children or wards.”

Kollar-Kotelly ordered a “briefing” on whether any part of the Constitution could support a “right” to abortion, in defiance of the Supremes’ statement, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. ‘The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.'”

The issue isn’t even new. WND reported last year on the opinion of a professor at Howard University who argued in support of the Women’s Health Protection Act of 2021 which would by law establish abortion.

Lisa Crooms-Robinson says the 13th ban denying “bodily integrity and personal autonomy was essential to U.S. slavery” and forcing women to carry children to term violates bodily integrity and personal autonomy.

That report, from Real Clear Wire, explained, however, “The logic of this position simply doesn’t hold up. First, we must ask whether one can legitimately categorize unwanted pregnancy as a ‘badge and incident’ of slavery.”

It said, “American slavery included pervasive and horrendous sexual assault by white masters on their slaves, especially black women. Rape egregiously violates a person’s right not to have her body controlled by another. But we have no such regime of bodily control today. A small percentage of abortions come from sexual assault. We certainly should not slight the horror of such assault – the pain it inflicts on an innocent woman and the evil of the predatory man – regardless of how often these instances occur. But to compare most pregnancies to the slave regime does a gross disservice to the suffering endured under that system.”

It said, “Moreover, the bodily integrity and autonomy argument was made in Roe and Casey regarding the Fourteenth Amendment. As Justice Alito’s opinion showed, it did not hold up to textual or historical scrutiny. And it still doesn’t when applied to the Thirteenth.”

And, the report continued, “Furthermore, the bodily integrity and autonomy argument falls flat when considering what abortion involves. Or maybe, we would be much better off recognizing that abortion involves both the woman and her child. The child stands in a unique position within the mother’s womb, utterly dependent on her until birth. We should respect that fact in supporting pregnant women in all ways we can. But dependence on others do not – and should never – define away someone’s humanity.”

It said, “The unborn child possesses a right to bodily integrity and autonomy, both of which abortion violently infringes.”

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