U.S. District Court Judge Colleen Kollar-Kotelly suggested Monday that the constitution may include the right to an abortion, despite the Dobbs v. Jackson Women’s Health Organization ruling that overturned Roe v. Wade.
Kollar-Kotelly’s comments come in the context of the ongoing case against pro-life activists indicted on FACE Act charges last March for allegedly creating a blockade that prevented access to a Washington, D.C., abortion clinic. In their motion to dismiss for lack of jurisdiction, attorneys for defendant Lauren Handy argue that the federal government no longer has an interest in protecting abortion rights, since Dobbs found such a right does not exist.
In last summer’s Dobbs decision, the Supreme Court held that the Constitution “does not confer a right to an abortion.”
“There is no longer a federal constitutional interest to protect, and Congress lacks jurisdiction,” Handy’s attorneys wrote, according to Politico. “The Dobbs court did not indicate that there is no longer a constitutional right to abortion; the court has made clear there never was.”
Kollar-Kotelly wrote that she is “uncertain” whether the Supreme Court’s holding extends to the entire constitution.
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“The question before the Court in Dobbs was whether the Fourteenth Amendment to the Constitution provided such a right,” Kollar-Kotelly wrote. “That is why neither the majority nor the dissent in Dobbs analyzed anything but the Fourteenth Amendment.”
“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,” she continued.
The 13th Amendment’s prohibition on “involuntary servitude” has been cited as a potential place to source a right to reproductive healthcare by scholars, she said. It also received a passing mention in the 1995 Federal Court of Appeals case Jane L. v. Bangerter.
Kollar-Kotelly wrote that the court requires “additional briefing” to determine whether the defendant’s argument holds up.
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