Last June, the Supreme Court said in Dobbs v. Jackson Women’s Health Organization (2022) that “the Constitution does not confer a right to abortion.” Given that Dobbs tossed out a half-century of precedent, upended reproductive freedom in about half of the country, and effectively eliminated an entire constitutional right, you probably heard about this decision.
Nevertheless, on Monday, a federal judge in Washington, DC handed down a brief order suggesting that the Supreme Court may not have meant what it said in Dobbs. “The ‘issue’ before the Court in Dobbs was not whether any provision of the Constitution provided a right to abortion,” Judge Colleen Kollar-Kotelly, a Clinton appointee, wrote. “Rather, the question before the Court in Dobbs was whether the Fourteenth Amendment to the Constitution provided such a right.”
And that leaves open the possibility that the Thirteenth Amendment, which prohibits “slavery” and “involuntary servitude,” does forbid laws banning abortion. Judge Kollar-Kotelly’s order requires the parties to a criminal prosecution touching on abortion rights to brief whether the Thirteenth Amendment or “any other provision of the Constitution could confer a right to abortion.”
Unless the membership of the Supreme Court changes drastically, the Court is exceedingly unlikely to rule that any provision of the Constitution protects the right to an abortion. The Court’s GOP-appointed majority stridently opposes abortion rights. They didn’t just overrule Roe v. Wade. They established, in Whole Woman’s Health v. Jackson (2021), that states can effectively immunize anti-abortion laws from judicial review by using bounty hunters to enforce those laws.
Simply put, these deeply committed opponents of abortion rights are not going to reverse course because a judge appointed by a Democratic president writes a clever opinion arguing that forcing someone to carry a pregnancy to term is a form of involuntary servitude.
That said, the argument that the Thirteenth Amendment protects a right to an abortion is serious — or, at least, no less serious than much of the legal reasoning that comes out of this Supreme Court. As Harvard law professor Laurence Tribe has written, “a woman forced by law to submit to the pain and anxiety of carrying, delivering, and nurturing a child she does not wish to have is entitled to believe that more than a play on words links her forced labor with the concept of involuntary servitude.”
Moreover, while Judge Kollar-Kotelly’s order is, at most, a very thoughtful effort to troll the Supreme Court, trolling is now common practice by lower court judges throughout the federal judiciary. The United States Court of Appeals for the Fifth Circuit is dominated by right-wing trolls, who routinely hand down outlandishly reasoned decisions declaring entire federal agencies unconstitutional, ordering the Biden administration to change America’s foreign policy, or even permitting military personnel to defy orders that political conservatives do not like.
It would certainly be best if federal judges all engaged in good faith efforts to follow the law, including well-established legal precedents. But since we don’t live in that world, Kollar-Kotelly’s order raises an arresting question: Why should left-leaning judges unilaterally disarm? If Republican judges can play this game, why can’t judges who support abortion rights do the same?
The Thirteenth Amendment case against abortion bans, briefly explained
Judge Kollar-Kotelly’s order arises out of a case called United States v. Handy, a criminal prosecution of several individuals who allegedly worked together to block access to a reproductive health clinic in 2020, when Roe was still good law.
Among other things, these defendants are charged with violating a federal law that makes it a crime to conspire to “injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.”
Before Dobbs, this would have been a fairly straightforward case (assuming, of course, that the government can prove its factual allegations against these defendants beyond a reasonable doubt). Prior to Dobbs, cases like Roe established that there is a constitutional right to an abortion. So blocking an abortion clinic injured the right of that clinic’s patients to exercise a constitutional right.
After Dobbs, however, the case becomes more complicated. The government still has a strong argument that blocking an abortion clinic violates a federal statute that specifically prohibits using certain tactics to block access to an abortion clinic — and the government also charged these defendants with violating this statute. Nevertheless, the prosecution’s argument that these defendants violated the broader ban on injuring constitutional rights would be stronger if it could also argue that these defendants violated a constitutional right to an abortion.
Enter the Thirteenth Amendment. Kollar-Kotelly’s order cites two sources — a scholarly article by law professor Andrew Koppelman, which argues that this amendment “is violated by laws that prohibit abortion;” and a Tenth Circuit opinion that discusses a similar argument — to support the proposition that an abortion ban might qualify as “involuntary servitude.”
The argument that the Thirteenth Amendment protects a right to abortion is fairly straightforward. In Bailey v. Alabama (1911), the Supreme Court held that this amendment sought to abolish “that control by which the personal service of one [person] is disposed of or coerced for another’s benefit, which is the essence of involuntary servitude.”
As Koppelman writes, “forced pregnancy and childbirth” by its very nature, operates “by compelling the woman to serve the fetus.”
But wait, what about Dobbs’ statement that “the Constitution does not confer a right to abortion?”
Of course, one major problem with this Thirteenth Amendment argument is that Dobbs spoke in categorical terms about the right to an abortion — or, rather, the nonexistence of that right. Dobbs states outright that “the Constitution does not confer a right to abortion.”
To get around this problem, Kollar-Kotelly rests on a notoriously hard-to-pin-down distinction between a court decision’s “holding” and something known as “dicta.”
Briefly, the portions of an opinion that respond to the specific legal question before a court are considered the court’s “holding,” and are binding on lower courts that consider similar cases. By contrast, when a judge launches into a non-sequitur or otherwise opines on issues that are not relevant to the actual legal issue in the case, those portions of the judge’s opinion are considered “dicta” and are not binding.
As Kollar-Kotelly writes, quoting from the eminent federal Judge Henry Friendly, “a judge’s power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word ‘hold.’”
The specific issue that was before the Court in Dobbs, Kollar-Kotelly notes, was whether the Fourteenth Amendment protects a right to an abortion, not whether any other provision does so. “That is why neither the majority nor the dissent in Dobbs analyzed anything but the Fourteenth Amendment,” she writes. Thus, the Court’s broad pronouncement that the Constitution as a whole “does not confer a right to abortion” can plausibly be dismissed as dicta.
Realistically, this argument is unlikely to persuade anyone on the Supreme Court who joined the majority opinion in Dobbs. The distinction between holding and dicta is notoriously slippery. And even if five justices were convinced that Dobbs’s broad announcement about the entire constitution is dicta, those justices would still have the formal authority to simply reject the Thirteenth Amendment argument for abortion rights on the merits.
The Supreme Court can only blame itself for Kollar-Kotelly’s order
Again, unless two Republican appointees on the Supreme Court unexpectedly leave the Court and are replaced by Democrats, the justices are about as likely to rule that the Constitution protects a right to an abortion as they are to move the Supreme Court’s building to Mordor, Asgard, or the Unseelie Court.
And, again, in a better world, judges would behave as servants of the law — rather than trying to stretch that law to serve their particular agenda.
But here in the actual world, lower courts do not always operate as loyal followers of the Supreme Court’s precedent. They often act as think tanks for new legal ideas that haven’t gained support on the Supreme Court, but that could at some point in the future. The Fifth Circuit more or less operates as a generator and legitimizer of right-wing ideas that are often, but not always, rejected by this Supreme Court. So do several federal trial judges that have become favorites among right-wing advocates seeking to move the law hard to the right.
If this Supreme Court didn’t want lower court judges to act like partisan trolls, it could communicate that to those judges by hewing more closely to legal texts and to existing precedents. But, if anything, this Court has actively encouraged judges on the rightward extremes of the federal judiciary to play games with the law.
Kollar-Kotelly’s order cannot really be defended as a serious attempt to convince this Supreme Court to change the law. But, at worst, it is simply the center-left equivalent of the kind of judicial entrepreneurship that routinely goes on at the Fifth Circuit. The Supreme Court should not be surprised that, if it refuses to rein in egregious overreach by courts like the Fifth Circuit, Democratic judges will also start behaving like they have a free hand.