Judge Colleen Kollar-Kotelly in the District Court for the District of Columbia has caused a bit of a stir after a hearing in a criminal case where she called for briefing on the alternative grounds for the right to an abortion. At the hearing, Judge Kollar-Kotelly suggested that the Thirteenth Amendment’s ban on involuntary servitude could be used to guarantee a women’s right to an abortion notwithstanding the Court’s recent opinion in Dobbs v. Jackson Women’s Health Organization. The court 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.
The court came to this question by a rather circuitous route. Lauren Handy and nine other anti-abortion activists were charged last year with conspiring to obstruct access to a Washington abortion clinic on Oct. 22, 2020. They have asked for the dismissal of the indictment for lack of jurisdiction since the Court ruled in Dobbs that “the Constitution does not confer a right to abortion.”
Kollar-Kotelly suggested that, just because the Court said that there was no right of abortion under the Constitution, it does not mean that there is no right to abortion under the Constitution. The reason that abortion may still be a protected constitutional right, according to the court, is that the Dobbs majority did not expressly rule out other possible grounds like servitude under the Thirteenth Amendment.
The Thirteenth Amendment states in part:
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
Kollar-Kotelly stated in her order that the 13th 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. That academic attention is generally a reference to a 1990 Northwestern University Law Review article, which is cited by the Court in its order. Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U.L. Rev. 480, 484 (1990). Professor Koppelman quoted a 1911 servitude decision in Bailey v. Alabama, 219 U.S. 219, 241 (1911), to assert 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.”
Bailey involved an Alabama law making it a crime to refuse to do labor under a contract.
Others have argued for a more expansive interpretation of the 13th Amendment to be used in cases of child abuse. Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, 105 Harv. L. Rev. 1359, 1365–66 (1992).
The court’s other citation is to a decision of the United States Court of Appeals for the Tenth Circuit in Jane L. v. Bangerter, 61 F.3d 1505, 1514-15 (10th Cir. 1995). In that case, the court reversed a lower court decision imposing sanctions for making this argument as a frivolous claim. The 1995 opinion found that, “without expressing a view on the merits of the involuntary servitude argument, we hold that it is not frivolous.”
The citation to the 10th Circuit case is illustrative of the court’s overall reasoning. It suggests that the 10th Circuit gave credence to this claim by declaring it not frivolous. However, the standard for sanctions is fairly high. The court was merely saying that this was within the broad scope of arguments that could be made in a court. That was notably before the Dobbs decision but even today I would argue for the same result. Sanctions can deter lawyers from seeking to change existing judicial doctrines and standards. It was not any real endorsement of the underlying theory to say that it was not sanctionable conduct to raise it in a court of law.
Judge Kollar-Kotelly used these two sources to conclude that “the Court will require additional briefing” because Dobbs did not expressly reject this theory or other theories. The court added:
“Rather, the question before the Court in Dobbs was whether the Fourteenth Amendment to the Constitution provided such a right. That is why neither the majority nor the dissent in Dobbs analyzed anything but the Fourteenth Amendment,” she wrote. “In fact, on the Court’s initial review, not a single amicus brief mentioned anything but the Fourteenth Amendment and the unratified Equal Rights Amendment.”
Judge Kollar-Kotelly insists that she is being “mindful that that this Court is bound by holdings.” However, she insists “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.”
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.
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.
That does not mean that the Court was right and many disagree with the holding. However, the fact that the Court did not expressly reject the 13th Amendment argument is a hardly compelling basis for suggesting that abortion may still be protected under the Constitution.
The Court itself has rejected expansive readings of the 13th Amendments, including in Arver v. United States, 245 U.S. 366 (1918), where it rejected such a claim to challenge military conscription. Moreover, the Court has long rejected “novel” 13th Amendment arguments. In Robertson v. Baldwin, 165 U.S. 275, 282 (1897), the Court stated:
“[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.”
Nevertheless, Judge Kollar-Kotelly ordered briefing on whether “any other provision of the Constitution could confer a right to abortion as an original matter, which may or may not be addressed in Dobbs, such that Dobbs may or may not be the final pronouncement on the issue, leaving an open question.”
For its part, the Supreme Court did not sound like it had lingering doubts about alternative grounds for a federal right to abortion when it declared:
“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.’”
Here is the order: United States v. Handy