A federal judge in Washington, D.C., on Monday suggested in a court order in a criminal case against a group of anti-abortion activists that the federal right to abortion — which was overturned last year by the Supreme Court — might still be protected by the Constitution’s 13th Amendment, which abolished slavery.
Judge Colleen Kollar-Kotelly also asked federal prosecutors and lawyers for the defendants to file briefs on the questions of whether the Supreme Court’s ruling is only limited to the 14th Amendment, and whether any other provision in the Constitution “could confer a right to abortion.”
The order by Kollar-Kotelly potentially opens the door to a federal legal challenge on 13th Amendment grounds to state laws that have sharply restricted access to abortion in some states since the high court’s controversial ruling last summer overturning the 1973 decision in Roe v. Wade, which established the federal right to abortion.
The 14th Amendment covers several rights, including citizenship rights and a prohibition against the government depriving “any person of life, liberty, or property, without due process of law.”
The amendment’s due process clause was a keystone of the Supreme Court’s ruling in Roe v. Wade that established the federal right to abortion. Kollar-Kotelly in her order, which was previously reported by Politico, wrote that the 13th Amendment “has received substantial attention among scholars and, briefly, in one federal Court of Appeals decision.”
A 1990 paper by a Northwestern University School of Law professor found that the 13th Amendment, with its prohibition against involuntary servitude, provides a textual basis for the right to abortion.
“When women are compelled to carry and bear children, they are subjected to ‘involuntary servitude’ in violation” of that amendment,” wrote the paper’s author Andrew Koppelman, which was cited by Kollar-Kotelly in her order. (SOURCE)
