Federal Judge Suggests Abortion May Be Protected Under 13th Amendment’s Ban on Involuntary Servitude

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



306 thoughts on “Federal Judge Suggests Abortion May Be Protected Under 13th Amendment’s Ban on Involuntary Servitude”

  1. I could see this in the case of rape. Otherwise it is a way to rationalize shirking an obligation willingly assumed. If she believes this argument shouldn’t the same argument be made regarding child support payments?

  2. The problem with such an argument is that it equates motherhood to servitude, which if allowed to fly, would effectively outlaw parenting in America. That’s never going to happen. A 13th Amendment defense is patently absurd.

    1. Seems like a 9th Amendment argument (unnamed rights and privileges) is the winner on this issue for both Democrats and Republicans.

      The 9th Amendment was ratified in 1791. There were no abortion laws in America, by any state, until 1821.

      Republicans and Conservatives should like this constitutional precedent (9th Amendment argument) since it also strengthens another right established in 1791: 2nd Amendment gun rights!

      This 9th Amendment argument also protects gun rights not explicitly protected by the 2nd Amendment. Things like hunting, target shooting, etc.

      As far as abortion, almost every state already has laws banning late term abortions. So this not totally unregulated by any state.

  3. Turley’s article says “…at time of ratification of the 13th Amendment..” in 1865 following the Civil War. The actual date of ratification for the base Constitution was in 1789 (base charter without a Bill of Rights). The Bill of Rights (which included the 9th Amendment) was ratified in 1791.

    In other words if a 9th Amendment argument were made, there was likely no abortion laws on the books of any state in the United States in 1791.

    The 9th Amendment was a two-pronged amendment. It protects “unnamed” rights and privileges. The second part means you can’t cherry-pick rights.

    For example: a state or locality can’t cite the 10th Amendment (states’ rights) while ignoring the 9th Amendment or any other right (ie: Jim Crow laws have always been unconstitutional since the Civil War).

    Seems to me, this should have been a 9th Amendment argument. Even if you argue the 13th Amendment case, not every state had abortion laws in 1865. In those states you could make both a 13th and 14th Amendment argument. It also seems unconstitutional to prohibit a women in a repressive state to travel to a free state, if raped by her husband or boyfriend (for the purpose of controlling a woman from an abusive situation).

    1. There is a 9th amendment argument. But SCOTUS addressed and rejected the 9th amendment in Dobb’s.
      Which means that lower courts can not support a 9th amendment claim.

      I would note that a broad reading of the 9th amendment – which was INTENTIONALLY broad, as well as the Privildeges and Immunites clause of the 14th Amendment which historically was a slap at the courts for ignoring the 9th amendment – the ?Priviledges and imunities clause goes FARTHER than the 9th amendment by protecting things that are NOT RIGHTS.

      Thar said – Abortion itself is not getting through a 9th amendment claim.

      The best 9th amendment claim is to the right to control our own bodies.
      That is NOT a right that the courts have actually recognized.
      Bell v. Buck is still good law. Forced vaccinations are still constitutional.

      Abortion is not even close to the only instance in which govenrment has been allowed to infringe on our rights regarding control of our own bodies.

      That said accepting control of our own bodies are a 9th and 14th amendment protected right – there is still no right to terminate a fetus. Only the right to end its dependence on your body.

      No matter what your rights do not extend to other people, fetus’s and creatures.

      Even if they do not have rights of their own, they are still inside the domain of governments power to make laws.

      There are no animal rights, but government is free to bar cruelty to animals.

  4. I y-league ostensibly atholic, Judge Colleen here things she’s onto something with her full-throated, half-minded defense of abortion on demand. I’m sure she climbs into her EV Volvo at night with the Biden-Harris sticker stuck on there and meanders through the streets of DC confident she has made the world a better place. We all know the soon to be 80-year-old Karen just deluded herself. Pathetic.

    1. I have advocated fir 13th Amendment protection of abortion for months. It was specifically passed regarding slavery, but so was thex14th Amendment.

      The authors of the 14th intended itcto apply to freed slaves, not unborn fetuses, not white people, or immigrants if it applies to everyone, then so does the 13th.

      There are also other avenues to argue for abortion. Freedom of religion and sekf-defense under a castle doctrine. Or we can just have an all out gender civil war. I am seriously cranked up on the last alternative

      1. Penelope:
        “Or we can just have an all out gender civil war. I am seriously cranked up on the last alternative”
        Well, we won’t but if we did it’d be quick with the likes of you leading the charge … er … surrender. Take a look at the “specimens” in WNBA, the finest female athletes on the planet we’re told. A good boys high school team whips ’em by 20 points. Kinda like the Swedisj women’s olympic team getting stomped by a Dallas high school boys 15-U team with only 10 players. The Amazons are mythical.


  5. I have two items I would like to add:

    1) Does this argument mean that I no longer have to make dinner for my wife?

    2) Has anyone noticed that Anonymous, not the generic occasional person being anonymous, but the one and only idiot Anonymous, has commented about 200 times in this one thread? This man needs help!

    1. What I’ve noticed is that you cannot tell liberal Anonymouses apart, are silent about the many conservative anonymous comments, and you can’t count.

  6. If VOLUNTARILY having sex and getting pregnant for your decision equates to involuntary servitude, then I’m a monkeys uncle.

  7. uff ta….I thought I had to work until may….to pay taxes…..finally a judge calls that involuntary servitude!

      1. Randy Perkins and mespo727272: Let’s segment her speech. Take out her thyroid cancer and recovery. Take out her mother’s cancer. Take out her remarks about her husband and children getting through all the rough roads. Take out her being conceived and born- after doctors told her mother she could not carry a child. Take out her trip to (I forget where) when the soldier came up to her and gave her his badge. How emotional and motivational!!!
        –Now tell me what she said about Biden’s plans. Or what statements he made that were false or incorrect. Or mistakes and perils he has introduced to America. Or what Republicans even disagree with…specifically. Or what Republicans would do differently? If you were an Independent, or undecided person who listened to both speeches, what did you walk away with?
        I like Huckabee, I also think she handled her job in the Trump administration very professionally with a hostile media
        The speech she gave last night would have been perfect as an acceptance speech when she won the governorship.
        But as a responsive speech to SOTU from the opposing party? Not so much, maybe. Thanks for listening

  8. The prima facie contract a person enters into when agreeing to have heterosexual sex , is that it is possible that a pregnancy may result. The voluntary contract pre-empts any possible involuntary servitude! Otherwise men could be protected from child support based on the same interpretation of the 13th Amendment ! Don’t think the women would go for that interpretation at all!

    1. No doubt there is that clause about interfering with contracts! And society stood by them…in what you say for child support but also for marriages. Over 50 percent of kids are unplanned. But how many 50 year marriages exist because of a moral society? That demanded shot gun weddings ??? From all involved? If a mathman did the numbers and aborted anyone unplanned…..America would have few posterity. Very few. Hence in ten years we run out of the ponzi social security. .. So if women have an involuntary servitude right….who pray tell takes care of them in old age? Someone else’s kids being involuntarily servituded? The old bags should have had their own kids….to take care of them!

      1. That’s what makes the ring frivilous. A thing is frivolous… When it can’t be rational. It’s not rationale to say… I don’t have to have kids … But you and your kids have to take care of me. Really? Other moms have to involuntarily servitude to create enough wealth and taxpayers to take care of x? That’s elitist…..And ego and not rationale…Bc it requires involuntary servitude to escape involuntary servitude. Hello?

        1. Apparently the judge doesn’t think the tenth amendment means much ! The to the people part! When we said…your duty is to your wife and kids…..she thinks somehow that equates to our wife and kids giving her back sliders a free pass via the 13th? Come on! We didn’t fall off the turnip truck yesterday! She is frivolous!

  9. russia has lots of valuable resources, so, yes, we should go to war with russia and make it the 51st state.

  10. Judge Kollar-Kotelly spent seven years as the presiding judge of the secret Foreign Intelligence Surveillance Act (FISA) court. FISA court proceedings are conducted in secret on an ex parte basis (which means that only the government is represented before the court). The FISA Court is the one that repeatedly authorized the government to spy on Carter Page. Approvals based on government applications that relied on the bogus Steele Dossier.

    With the sort of dubious, results based legal reasoning displayed by Judge Kollar-Kotelly in the abortion case, we can only wonder what went on behind the closed doors of the secret FISA Courts. Absolutely chilling, and likely an abortion of justice.

    We Americans are demanding a full accounting of what went on in the secret FISA courts. And the dismantling of the government’s domestic surveillance apparatus.

    1. You don’t need to even look at secret courts to see a betrayal of logic and reasoning….the world courts have been on full display….they have no logic behind reasoning just pure authoritarianism. I wrote once an article..but refused t publish bc the host was chinese . In hind sight I regret it. Because my reasoning and evidence was unassailable. I simply refused because the professor wanted to do it in the chinese..law review. I was red Dragon rising paranoid. And too patriotic….yet what really matters is the rule of law. now I see that more clearly! If he dredged up my article….he can publish it! Now.

  11. Involuntary servitude? 9 months gestation. When does it become involuntary? Day zero? Day one? Day two? After 8.5 months?
    Does declaring involuntaryness necessitate sterilization? Yes.

  12. This actually raises a larger question, what is the constitutional underpinnings of the FACE Act? What section of the US Constitution authorizes the passing of such a statute? Previously it was misunderstood to be an extension of the Rt. of Privacy, but under a Dobbs, that right never existed.

    1. Even if there is a right of privacy that acts violating the FACE Actviolate, how is there federal jurisdiction over these putative crimes. If they are crimes, shouldn’t that be a matter for state law?

  13. If I recall correctly this was one of the judges previously considered for a spot on the SCOTUS. I think she is stretching credibility here with her comments.

  14. Can the judge prove that anyone who hasn’t been born yet WILL suffer indentured servitude? If you don’t believe in tought police…

  15. This decision … ok … this judge … is just another reason why folks hate lawyers and judges. Just sayin

    Using another portion of the Constitution, maybe the government can pay the woman to not abort. I mean, children are property in a manner and the only way government can take your property is if they pay you for it.

    Yeah, yeah, that has always meant like land, but, hey, who cares? Really? Who cares just so long as you sound reasonable under the law. Nevermind it ridiculous on it’s face, even to a non-lawyer.

    1. TD,

      You sure you’re not a “woohoo” Hollywood screenwriter in drag?

      Ya know, all rawhide skirt and no cowgirl?

      I mean that all flows pretty nicely, and with a twang.

  16. “Abortion prohibitions violate the amendment’s guarantee of personal liberty, because forced pregnancy and childbirth, ….”
    what horse chit,… that is like saying I got drunk and then someone “forced” me to drive home! This is an admission that abortion is nothing to them but a means of birth control. If the godless tramp does not want to be “forced” to go thru a pregnancy she should try taking a pill every day or she should try keeping her legs closed!

      1. EXACTLY!!!!! You don’t have the right to kill someone (the baby) because you were to lazy or loose to prevent the pregnancy.

  17. “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.”

    This language used by the Court is, quite frankly, chilling. If one is to apply simple logic to the sentence, it follows that no parent should be required to provide for his or her child because it is “personal service” “coerced by law” “for another’s benefit.” Some may think this an unwarranted leap but consider the recent laws enacted in a number of states permitting abortions up to the moment of birth (no gestation limits) which I have read include Alaska, Colorado, New Hampshire, New Jersey, New Mexico, Oregon, Vermont, and New York plus the District of Columbia. And, in Virginia a lawmaker introduced a bill that would have allowed an infant to be born and then left alone while the mother and her provider decided what was to be done. Is there any moral or practical difference between a “moment of birth” abortion and the roundly condemned ancient Roman practice of “exposure” where unwanted babies were left outside, exposed to the elements. Thus, if a woman can kill a clearly viable human being at the moment of birth, why not a child anytime after his or her birth until the age of 18? To me, this is especially sickening when we consider that because contraception is readily available before, during or after intercourse, the vast majority of abortions today are nothing more than shielding people from their own irresponsible conduct.

    1. Any parent can give his/her child up for adoption.

      Some newborns aren’t viable. They die despite medical intervention.

    2. Honestlawyermostly.

      I like what you wrote here & thought I’d say so before I check out.

      The people running all of that are just pure evil. Military grade Psyop is being run on us & the rest of the world & hardly anyone knows where it’s coming from except a few.

    3. “If one is to apply simple logic to the sentence, it follows that no parent should be required to provide for his or her child . . .”

      Except for the fact that “simple logic” bars the fallacy of equivocation.

Leave a Reply

Res ipsa loquitur – The thing itself speaks
%d bloggers like this: