Does Federal Right to Abortion Survive Overturning Of Roe v. Wade? Federal Judge Raises Possibility
On Monday, in an eyebrow-raising hypothetical contained in a court order, Judge Kollar-Kotelly suggested that the federal right to an abortion might still exist post-Dobbs, and ordered briefing on the subject. The parties in Dobbs only argued, and Dobbs only considered, the Fourteenth Amendment as lacking a basis for a federal right to abortion. But, Judge Kollar-Kotelly stated, 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.
Judge Kollar-Kotelly then proceeded to posit that the Thirteenth Amendment, which outlaws slavery and involuntary servitude, might also provide such a basis for a federal right to an abortion, as this amendment has received substantial attention among scholars and, briefly, in one federal Court of Appeals decision on the question of whether that section of the constitution could apply to abortion. She ordered briefing on the subject to be filed in March.
The substantial attention Judge Kollar cited consists of one 1990 law school law review article, in which the author stated that When women are compelled to carry and bear children, they are subjected to involuntary servitude in violation of [the Thirteenth] amendment. The court case cited was a U.S. Court of Appeals for the 10th Circuit opinion from 1995 in which the court found that a lawyer s argument that the Thirteenth Amendment provided a federal right to abortion was not frivolous.