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
If you read below, you will see pages and pages of arguments about how many angels fit on the head of a pin. Progressives are convincing themselves that, if they hold the constitution up to the light just right and squint, they can somehow make out the right to an abortion. It’s the progressive version of the hyper-religious who see the image of Jesus in their toast.
The real takeaway? For all the caterwauling about “their” democracy, progressives are terrified of the democratic process. Terrified that, if left to their own devices, the American people will reach an enduring compromise on the abortion question. The progressives are afraid of democracy. Afraid of the American people. Afraid that they are losing their grip on political power. They will do anything to keep it.
Sometimes the U.S. Supreme Court gets it wrong especially on complicated issues like these.
Around the turn of the 20th Century, the U.S. Supreme Court ruled in “Plessy v. Ferguson” that racial segregation was constitutional.
The real evidence was that if there were “separate” bathrooms and separate schools (based on race), the minority group received inferior treatment (ie: dirty bathrooms with faulty plumbing and unsafe schools) compared to white-only facilities.
African-Americans were then ticketed, fined or jailed if they used the bathroom in the woods or slept in their cars (since they were banned from most hotels and motels while traveling.
It took nearly 70 years to correct that faulty “Plessy” rulings. Part of the delay was showing the real harm of institutionalized racism over 70 years and then having justices with integrity to the U.S. Constitution to overturn those bad rulings.
Hopefully it won’t take 70 years to correct Alito’s flawed 9th Amendment interpretation in Dobbs, which contradicts James Madison (the one who designed the 9th Amendment).
Even if the 9th Amendment view is corrected, it could still be used to outlaw extreme late-term abortions and other circumstances. Seems like Alito got the concept wrong, the 9th Amendment was ratified in 1791 and the first abortion law was in 1821.
Again, you have zero clue how the Ninth Amendment works. The right to abortion is an unenumerated right.
Let’s start calling a spade a spade. Abortion is the killing of an innocent human being. Many Americans are pro-killing.
Well, this argument can certainly be presented to SCOTUS, along with the raft of other abortion cases. I don’t thing it would prevail, however.
Under this logic, a woman could kill all her children because she believes being a mother is servitude to her offspring. Some people view parenting as a form of servitude, rather than an innate biological drive, continuation of genetic lines, an act of love, or making a difference in the world.
Biology can “force” a woman to give birth. A 2nd trimester abortion requires cervical dilation (labor), and a 3rd trimester abortion is the labor and delivery of a stillborn, who was given a lethal injection in the womb. After a certain point in gestation, a woman cannot escape labor and delivery or a C-section. It’s a ride she cannot get off of, though she might elect to deliberately kill her fellow passenger.
Childbirth does not make a parent. A woman can give her baby up for adoption. A childless woman can adopt a child and become a mother without childbirth. An abortion of a viable fetus means the woman would rather see that baby dead, than be happy and alive with another family. It’s not just about ending the pregnancy, but killing the child. They could not imagine birthing a child and giving him or her up, but killing it is ok.
There are certainly arguments for and against abortion in each trimester. Public support wanes the more advanced the pregnancy, though there is still a lot of support for the euthanasia of an imperfect fetus, viable or not.
This is an emotionally fraught issue that the public needs to come to terms with. Instead of deferring the issue to 9 unelected justices on the Supreme Court, who can make or reverse rulings, a responsible people should handle such issues through the representative legislative process. In this manner, laws can me made, repealed, or amended, to reflect the values of society and the governed.
Since this is so contentious, I really think this should be a state issue, so each state can reflect the will of the government, allowing more range and nuance to these laws.
“Under this logic, a woman could kill all her children because she believes being a mother is servitude to her offspring”
You fail logic.
A parent can transfer a child to state care and adoption. A pregnant woman cannot transfer an embryo to state care and adoption.
“After a certain point in gestation, …”
You ignore that most abortions occur before that point, and even after that point, delivery of a 15 week fetus is easier on the body than delivery of a full term fetus.
“A woman can give her baby up for adoption”
If she chooses to bring the pregnancy to term. This isn’t about what happens after bringing a pregnancy to term but about ending the pregnancy long before.
“An abortion of a viable fetus …”
Can you give an example of a legal abortion of a viable fetus?
I can’t think of any examples, except a raped 12 y.o. who’d had to wait for a court order to allow her to get an abortion (because her parents objected), where the court case took so long that she was in her 7th month. I’ve asked you before whether you’d have forced her to bring the pregnancy to term, and you never say.
“I really think this should be a state issue”
I don’t.
People often have different opinions.
At 43 days, the baby has brainwaves. At 6 weeks, the baby has a beating heart. Unborn babies feel pain at 12 weeks. These are all scientific facts, and they are all within the first trimester.
Thousands of abortions do happen after the baby is viable. Note that unborn babies become viable at around 21 weeks: https://www.liveaction.org/news/cdc-report-later-abortions-often-public-believe/
People certainly have different opinions. However, unfortunately for you, the facts are not on the pro-choice movement’s side.
What you call “facts” are not facts.
For example, there is no heart at 6 weeks. There are cells that will develop into the heart, and those cells pulse, but the pulsing is not a heartbeat, as the heart itself has not yet developed.
https://www.livescience.com/65501-fetal-heartbeat-at-6-weeks-explained.html
Fetuses cannot feel pain at 12 weeks. “a human fetus does not have the capacity to experience pain until after at least 24–25 weeks” — https://www.acog.org/advocacy/facts-are-important/gestational-development-capacity-for-pain
You don’t say what kind of brain waves you’re talking about, but “The very beginnings of our higher brain structures only start to appear between weeks 12 and 16. Crucially, the co-ordinated brain activity required for consciousness does not occur until 24-25 weeks of pregnancy.” — irishtimes.com/opinion/the-moment-a-baby-s-brain-starts-to-function-and-other-scientific-answers-on-abortion-1.3506968 (written by a physician)
Hardly any fetuses are viable at 21 weeks. Even your own reference says as much.
“What you call “facts” are not facts.
For example, there is no heart at 6 weeks”
What do you call it? Yes, it is a heart and that is how it is referred to.
” cells pulse, but the pulsing is not a heartbeat”
That is the heartbeat of a developing heart. It is still a heart and still a beat. When an infant throws something, it is not identical to the way a baseball player throws a ball, but it is still throwing.
You want to make a living creature into an inanimate object so without concern for conscience you can kill it.
Your comments are disingenuous. The recent SCOTUS opinion switched the question of abortion to the states where it belongs.
Different states will have different rules.
If refused in one state, the woman can go to another state.
At one time or another, you have made foolish claims on this subject. You need to deal with reality and with the fact that leftists like you like to stretch the envelope to create uncertainty, and if possible lies that appear to be true even when things are simple and just.
No woman is denied necessary treatment. Some states will permit abortion up to the time of delivery. One can add to that statement that women can get abortions beyond the time they are necessary and even when most of the country considers the baby viable. There is a word for that, murder. There you have it, favorable to your desires, abortion at will from day one through and beyond murder.
Not true. Once born, anyone else can take care of the child. The mother is not forcibly tied to a child. There is adoption, relatives, many other choices. During the 9 months she is attached to the fetus. Effectively becoming subservient to it. If this is against her wishes, she cannot transfer it to another person. Your argument was ridiculous.
It seems to me this argument of “involuntary servitude” places the cart before the horse. Did anyone force the woman into having sex? That’s the point at which the choice is made, except in a rape circumstance.
Arguing that women have no control over their sexual behavior is inferring they are devoid of reason, no better than animals.
The REAL argument of those advocating for an unfettered right to abortion is actually arguing for the right to sex without consequences. Is that not the true nature of the advocacy for an unfettered right to abortion?
“Under this logic, a woman could kill all her children because she believes being a mother is servitude to her offspring.”
Sure — if you equivocate between a potential and an actual.
“laws can me made, repealed, or amended, to reflect the values of society and the governed.”
It is not the purpose of the law to “reflect the values of society.” That is majority and mob rule, a type of tyranny that the Founders tried to protect us against.
I don’t see how it could be involuntary servitude when the act itself was voluntary. Unless it was rape or incest for which exceptions exist or should exist.
Jonathan: Did you notice that at the State of the Union last night four Justices were conspicuously absent–Clarence Thomas, Sam Alito, Neil Gorsuch and Sonia Sotomayor. We know why Thomas and Alito were absent. Alito stopped attending after 2010, when he shouted “not true” when Pres. Obama denounced the SC ruling in the Citizens United case. And Alito didn’t want to be in an uncomfortable place when Pres. Biden called for overturning Dobbs by making Roe a federal right. And we know why Thomas no longer attends. He also stopped attending after 2010 because it’s “very uncomfortable for a judge to sit there”–everything is “so partisan”. Now it’s curious that Thomas doesn’t like partisanship. That’s why he was the lone dissenter when the Court ruled the Trump WH had to turn over its records to the Jan.6 Committee. Thomas is probably the most “partisan” political hack on the Court and shares a bed with one of the Jan.6 insurrectionists. I suppose being “partisan” means different things to different people.
By the way, since your column of 2/4 when you celebrated Musk’s court win in SF, you haven’t said anything about the guy who you have extolled as the biggest promoter of “free speech” on social media. So let me bring you up to date. Engadget, a research org., reports that Twitter had about 180,000 US paid subscribers last month–with only 290,00 paid subscribers worldwide. They predict Twitter will earn about $27.8 million from paid subscriptions–hardly enough for Musk to pay all his bills. And who wants to pay to be on a platform that has become the home for child porn, Neo-Nazi anti-semite and racist hate speech? I wouldn’t. Why would I pay when I can see some of this everyday on your free blog?
Dennis – You state: “Now it’s curious that Thomas doesn’t like partisanship. That’s why he was the lone dissenter when the Court ruled the Trump WH had to turn over its records to the Jan.6 Committee.” Lone dissents are often the badge of courage, rather than of partisanship. Jeannette Rankin, a member of Congress from Montana, voted against our involvement in both WWI and WWII. As to WWII, she was the only member in Congress who voted against the war resolution. Does this prove that she was a partisan?
edwardmahl: I agree that lone dissents can later prove the correct position. That was true when Justice John Marshall Harlan was the lone dissent in Plessy v. Ferguson (1896) in which he wrote the Constitution is “color blind”. Harlan was vindicated 58 yrs. later in Brown v. Board of Education. But was that the case when Thomas was the lone dissent in Trump v. Thompson? I don’t think so. As you may recall back in Aug. 2021 the Jan 6 Committee asked NARA for WH records relating to the Jan. 6 insurrection and the 2020 election. Trump filed suit in DC District court trying to block release of the docs based on “executive privilege”. Both the District Court and the DC Court of Appeals ruled the former president could not assert the privilege, even if he were the current president because the docs sought were relevant to a congressional investigation. Trump appealed to the Supreme Court. In a short unsigned order the Court upheld the lower court rulings but indicated there might be a case when a former president could assert the privilege. Brett Kavanaugh wrote a 2 page statement indicating he concurred. Thomas did not write a dissent so we don’t have any indication of the reasoning behind his position.
But I don’t think we can conclude that Thomas’ dissent was a principled act of “courage”–certainly not like Marshall’s dissent in Plessy. Thomas didn’t write an opinion because there was no factual or legal reason to justify his dissent. Both Thomas and his wife were and still are firm political supporters of Trump. Ginni Thomas was active trying to overturn a legitimate election. She worked to get GOP state controlled legislatures to appoint separate Trump electors. Ginni had to testify before the Jan. 6 Committee re her role in the insurrection. Do you think Clarence differs at all with his wife’s political views? Do you believe Turley when he claims they have “separate” lives? The Thomas’ are joined at the hip when it comes to their political views. Thomas’s lone dissent in the Thompson case was not a “badge of courage” but a partisan attempt to block the Jan. 6 Committee from getting at the truth about how Trump planned the insurrection–and perhaps even to prevent the Committee from learning the role Ginni played in it. If Thomas deserves a badge it should be a “badge of disgrace”!
There is only one consequential way that I care about “executive priviledge”.
And that whatever the courts decide – they do so consistently.
It is my personal view that it is irrelevant whether it is a former or current president claiming priviledge.
However privildge should be limited to direct communications with the president.
The fundimental purpose of executive priviledge is to prevent the advisors to the president from having to worry about being 2nd guessed or even criminalized in the advice they provide the president.
There is no other valid purpose to executive priviledge.
I would note that the privildge should only apply to the president acting as president.
Not as a private citizen. In the instant case it would apply to communications TO Trump from advisors specific to his actions as PRESIDENT. It would not apply to communications to Trump from advisors specific to his actions as a Candidate as an example.
But that is my view and the courts have generally found priviledge to be broader than that.
I do think SCOTUS and the other courts “got it wrong” – in the sense that it is not relevant whether the claim is made by the current or an ex-president.
Either Congress can request the material they did, or they can not, PERIOD. There should be no – they can’t have it if the current president objects, but they can if he does not.
But again – my concept of executive priviledge is extremely narrow, and likely would not have applied at all.
With respect to this particular decision.
The BIG deal is that every president before Biden has supported claims of executive priviledge by Ex-presidents.
Therefore this issue has not come up before.
Biden chose not to.
He should therefore expect that Future presidents will not protect his documents from future congressional investigation.
If you are OK with that – So am I.
We have had lots of norms obliterated in the past decade by democrats.
Have fun living in the world you made.
This nonsense about the political views and actions of spouses is idiocy.
While overall the J6 committee was an idiotic farce. There is absolutey nothing wrong with trying to overturn an election – so long as you do so within the law and constitution.
Myriads of people have mostly unsuccessfully sought to do so – the overwhelming majority of them democrats.
You can be anoyed and offended, You can beleive they are wrong.
But so long as they stay within the law there is nothing wrong with it.
The J6 committee ignored everything relevant and focused on almost entirely legal conduct.
That is why they never got any traction
What is unusual is the effort to criminally prosecute this.
Trump despite chants of “lock her up” – never went after Hillary and privately committed not to after the election.
This despite the fact that the Trump J6 plan was borrowed from Lawrence Tribe and Hillary Clinton.
Further Clinton successfully got several 2016 electors to change their votes. That is indistinguishable from What Trump attempted.
You fixate on Ginnie Thomas.
Why do her view matter ?
Why do Clarences views matter ?
We do not presume Bill Clinton was a puppet of Hillary.
No one on the right is ranting about the Spouses of left wing nut justices
Because that does not matter.
The actual politics of the justices themselves do not matter.
Who they voted for does not matter.
We expect that Judges will Personally stay out of political frays.
And we expect they will keep their political opinions to themselves.
Only an idiot beleives they do not have them.
What matters is not what Justice Thomas’s or Sotomayor’s political views are.
But when presented with a case can they follow the constitution, not their political views.
That is what we require of every single judge.
And any judge that can not do so should not be a judge.
This is litterally the opposite of what Sotomayor claimed when she talked about bringing her latino background to the court.
I expect Justice Thomas to leave his politics, his wife, his personal history at the door and to make his decisions based on the law and constitution.
In a perfect world every decision would be 9-0 and every judge would have the same reasoning.
Justice is supposed to be blind.
It is not supposed to take into acount race, creed, sex, politics.
How about mix and match?
Litigate the 13th Amendment for “employee non-compete agreements” and the 9th Amendment for abortion.
A previous post pointed out that in the Dobb’s ruling, Alito is on the opposite side of James Madison.
Madison’s rationale for the 9th Amendment was that it was impossible to individually name every right, so he gave “citizens” authority over most of their rights and freedoms, not a government official. The burden is on the government legislatures and courts to take away any right deemed harmful other citizens.
Madison feared naming any rights at all without a 9th Amendment, because government officials would assume authority over unnamed rights.
Using Alito’s logic on the 9th Amendment in Dobb’s, a citizen could own any gun in existence in 1791 but the 2nd Amendment didn’t “name” rights like hunting, target shooting, archery, etc. or apply to any modern weapon.
All constitutional rights are subject to regulation. Conservatives had no problems with the rights violations during the Bush Administration.
Alito is very intelligent, but he’s not James Madison!
A Z – In my view, it is not necessary to make constitutional arguments. The original states preceded the Constitution and the country itself. They retained their common law sovereignty through all later political permutations. But admittedly this may not be a popular view now.
So on the issue of “Pro Choice” most women are actually “Libertarian” and would have supported “Anti-Federalists” on this single issue. Supporting the 9th Amendment.
By contrast, on this single issue Alito was quite liberal supporting intrusive government on this particular issue.
For the big government “Conservatives” have they considered that once you become liberal on “unnamed” individual rights and liberties (9th Amendment rights) – this can backfire in many ways.
The majority in Dobbs recognized that the issue belongs in state legislatures, like amost all other criminal law matters. We have already seen that States come to different conclusions about how far to allow abortion. In a federal system that is the proper result.
Responding to Edwardmahl:
I was suggesting a 9th Amendment argument.
The 9th Amendment was ratified in 1791. There was not an abortion ban, in any state until 1821.
I’m guessing if you asked the majority of America’s judges and constitutional experts, they would tell you Alito’s interpretation of the 9th Amendment in Dobbs is flat out wrong. The opposite of James Madison’s interpretation on “unnamed” rights.
“Pro Choice” – Is that the “choice” of the baby, the fetus, or the adult murderer?
What kind of person devises a fraudulent, specious and erroneous rationale for murder – the extinguishing of life?
Is that a function of the hysterical and incoherent 19th Dumbmendment not dissimilar to “reassignment therapy” (who listens to all this idiocy)?
Of course, after 24-hours of fertilization, a fetus is a very young human being and killing a human being is homi (man) cide (kill).
Where are the human beings who grossly misconstrue the words of the Framers into legalizing murder, as if?
The 9th Amendment, in no way, provides a right and freedom to commit homicide.
Merely for the sake of argument:
May I choose to murder my inconvenient, obnoxious, abusive and annoying neighbor?
May I expect the government to not intrude when I compel his untimely expiration?
Responding to George:
Constitutional rights are always subject to challenge and regulation if they harm other people.
George, simply read the actual court rulings like “Roe v. Wade”. Unlike opinion TV shows, litigants in court cases actually have back up their claims with evidence, facts and the logic used in the case.
What about In vitro fertilization? For every successful birth, many more embryos are simply thrown into trash dumpsters – the same argument you are making. Conservatives opposed “Embryotic Stem Cell Research” which could save lives. It would take the discarded embryos to save lives instead of simply throwing them in the trash dumpster.
Since we have a severely broken and inaccurate justice system, would you also support ending the death penalty? Also an equal sin under the Christian Bible.
If you want some hard evidence, you should look up “The Innocence Project” online. Hundreds of falsely convicted inmates sent to death row for a crime they never committed.
Read the actual court cases, most are very well researched.
When the 13th Amendment was ratified in 1865, the majority of states had anti-abortion laws on their books. Withersppon, Reexaming Roe; Nineteenth Century Abortion Statutes and the Fourteenth Amenment, p. 33, https://www.thecatholicthing.org/wp-content/uploads/2013/01/https:__bearspace. baylor.edu_ Francis_ Beckwith_www_Sites_ReexaminingRoe.pdf (“At the end of 1849 eighteen of the thirty states had enacted antiabortion statutes, and by the end of 1864 twenty-seven of the thirty-six states had done so.”) Yet no one at the time suggested that aboriton laws were affected in any way by the 13th Amendment.
The historic irony is that leading up to ratification of the U.S. Constitution, the “Anti-Federalist” states required a citizen’s Bill of Rights be added soon after ratifying the U.S. Constitution. These states feared having an unchecked federal government.
James Madison, from then “Anti-Federalist” state Virginia feared by “naming” rights individually, that the federal government would assume any authority over any other rights “unnamed”. It’s impossible to list every right.
This is how we got the 9th Amendment – it gives citizens authority over most rights, not a government official.
If Alito were alive back then he would likely be an “Anti-Federalist” as would most southern states and most rural states today. Most Trump voters would have been “Anti-Federalists”. These states and voters fear an unchecked overly powerful federal government intruding into our personal freedoms.
On the Dobb’s ruling, Alito and many of his fellow Conservatives voted the exact opposite supporting a “Federalist” view (overly powerful federal government taking away citizen’s choices).
Let me ask you a question, do you know how the Ninth Amendment works? Do you know how a right is considered to be an enumerated right?
The right to abortion was ruled to be an unenumerated right.