A federal judge in Washington, D.C., suggested Monday there may still be a national right to abortion, despite the Supreme Court’s landmark ruling last year overruling Roe v. Wade.
U.S. District Court Judge Colleen Kollar-Kotelly, a Clinton appointee, told lawyers on Monday they must file briefs arguing whether or not the 13th Amendment to the Constitution protects the national right to abortion. The 13th Amendment, ratified in 1865, abolished slavery.
She said the justices only considered precedent surrounding the 14th Amendment when the Supreme Court issued its ruling in Dobbs v. Jackson Women’s Health Organization last year. The decision upended Roe, the 1973 ruling that gave women a national right to abortion.
The high court’s move essentially sent the issue of abortion back to the states.
Justice Samuel A. Alito Jr. said in his June opinion that nearly a half-century of trying to make Roe work has proved futile, with Americans still sharply divided. Failing in both legal scholarship and its goal of settling passions, he said it’s time to cast the decision aside.
“Roe was egregiously wrong from the start,” he wrote. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
But Judge Kollar-Kotelly said it’s unfair to say that the ruling “held that no provision of the Constitution extends any right to reproductive health services.”
“For its part, and without the benefit of fuller briefing, the Court is uncertain that this is the case,” she wrote in a brief order on Monday.
“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. Of those provisions that might contain some right to access to such services, the Thirteenth Amendment has received substantial attention among scholars,” she said.
The case at issue before Judge Kollar-Kotelly involves criminal charges against nine pro-life activists, who allegedly violated federal law outside an abortion clinic in October of 2020.
They moved to dismiss the charges citing the ruling in Dobbs, striking down abortion as a constitutional right.
The lawyers’ briefs are due next month, Judge Kollar-Kotelly ordered.
Since the Supreme Court overturned the 1973 Roe v. Wade decision, states where Republicans control the legislatures have moved to pass bills to severely restrict access to the procedure.
The Dobbs decision upheld a ban on abortion after 15 weeks in Mississippi and sent abortion regulation back to states while upending decades of abortion jurisprudence.
• Alex Swoyer can be reached at firstname.lastname@example.org.
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