This story was originally published by the WND News Center.
A federal judge’s wild theory that the 13th Amendment could be claimed to support a “right” to abortion, because, after all, the argument is that being pregnant is the same as slavery, already had been called “highly dubious” and “against the text, history, and case law.”
Now the reaction has become even blunter, with an expert saying the “looniest” theory “shouldn’t be heard outside of a mediocre law professor’s late-night conversations with her cats after hitting the wine box a bit too hard.”
That’s from Nathanael Blake, a senior contributor to the Federalist and a postdoctoral fellow at the Ethics and Public Policy Center, who wrote of the proposal from Colleen Kollar-Kotelly, a judge appointed by Bill Clinton.
“Lawyers recognize that, judicially, this is going nowhere. But as the legal counterpart to abortion supporters’ rhetoric about ‘forced birth,’ this argument is illuminating. Its efforts to justify abortion reveal a bitter worldview that spitefully rebels against the nature of human existence itself,” Blake explained.
“The legal reasoning of this theory is that an unwanted pregnancy is, in the words of the 13th Amendment, a form of ‘slavery or involuntary servitude’ because in an unwanted pregnancy, a woman’s body is used by another (that is, the child developing inside her) without her consent. Furthermore, per this argument, consenting to sex is not consenting to pregnancy, even though it is a foreseeable possibility. Consequently, women require a right to abortion in order to escape from the service of an unwanted pregnancy,” Blake wrote.
Then the descriptives “insane” and “lunacy” appear in the commentary on Kollar-Kotelly’s concept.
Because, he said, “No one at the time the 13th Amendment was written and ratified thought it included unwanted pregnancy as a form of involuntary servitude. And they were right. It is madness to regard a developing human in the womb as an intrusive stranger with no claim upon a woman. It is crazy to believe that the ordinary, natural processes of human reproduction are the moral and legal equivalent of slavery.”
“Abortion supporters regard pregnancy as deeply unfair to women, who endure far more than men when it comes to bearing children, and often when it comes to raising them too. And from the perspective of undifferentiated, autonomous individualism, they are right; it is unfair. But so is life, the universe, and everything. Thus, a quarrel that begins with the reproductive realities of being a woman extends to existence itself, with all of its givenness and contingency, with all of its blessings, burdens, and curses unequally distributed. Life is also filled with relationships and consequent moral obligations and demands that we did not choose,” he noted.
And, he said, “Judges and scholars who equate motherhood and slavery reveal far more about the hardness of their hearts than they do about the law.”
WND previously reported that constitutional expert, legal commentator, and congressional witness Jonathan Turley pointed out that Kollar-Kotelly’s comments “caused a bit of a stir.”
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.”
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.”