Recently a federal judge requested a briefing on whether the right to abortion is protected by the Thirteenth Amendment. U.S. District Judge Colleen Kollar-Kotelly has been criticized for asking for the brief. She is simply doing her job, while also placing on the political agenda one of the strongest arguments for abortion rights.
In 2020, abortion opponents blocked the entrance to a reproductive clinic, some chaining themselves together in chairs. They were charged with criminal conspiracy and violating the federal Freedom of Access to Clinic Entrances (“FACE”) Act by interfering with a patient’s obtaining reproductive health services. One of the defendants moved to dismiss the indictment, claiming that she could not have violated the law because the Supreme Court later declared in Dobbs v. Jackson Women’s Health Organization that the Constitution “does not confer a right to abortion.”
Judge Kollar-Kotelly, who is trying the case, was appointed by Bill Clinton in 1997. She served on the FISA court (established by the 1978 Foreign Intelligence Surveillance Act) and was also appointed to two important judicial panels by the late Chief Justice William Rehnquist. Kollar-Kotelly observed that the statutory definition of “reproductive health services” is broader than abortion, and in a four-page order, she requested a briefing as to whether Dobbs holds that “no provision of the Constitution extends any right to reproductive health services”—an interpretation of which she is “uncertain”—or whether a right to abortion could be found in other constitutional provisions not considered in that case. “Of those provisions that might contain some right to access to such services, the Thirteenth Amendment has received substantial attention among scholars and, briefly, in one federal Court of Appeals decision.” She cited an article that I wrote in 1990, which I’ve further developed in later work, including in this magazine.
Kollar-Kotelly’s merely wanting to hear arguments elicited a furious response from Josh Blackman at the conservative Volokh Conspiracy blog. Kollar-Kotelly, he writes, “is inviting the parties to put forward arguments that could overturn Supreme Court precedent.” Dobbs clearly stated that there was no right to abortion, and “this analysis is not how lower court judges are supposed to treat Supreme Court precedent.” There was also pushback from the left: Vox’s Ian Millhiser acknowledges that the Thirteenth Amendment argument is “serious” but thinks the judge is “trolling” because “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.”
Millhiser is one of our sharpest observers of the Court, but he is mistaken to suggest that Kollar-Kotelly’s order is not a “good faith effort to follow the law, including well-established legal precedents.” Blackman and Millhiser are right that a Supreme Court that just struck down Roe is unlikely to buy the argument that there’s another path to abortion rights. That raises questions about the obligations of lower court judges in the post-Dobbs era.
The duty of a judge is to consider law from what the philosopher H.L.A. Hart called the “internal point of view“: one takes the legal sources as authoritative and makes inferences from those sources. That’s what it means to follow and apply the law.
Judges are not supposed to do what might be called Legal Kremlinology, after the old practice of analysts trying to guess what was happening inside the opaque world of the Central Committee of the Soviet Union. The Kremlinologist’s task is to analyze any and all intelligence and offer the best assessment of what Soviet leadership is saying, thinking, and planning to intelligently guess how it will use its power.
Blackman misreads the situation when he writes that “judges cannot take the Supreme Court’s silence as a ground to subvert Supreme Court precedent.” There is no relevant precedent. There is simply Dobbs, which said nothing about the Thirteenth Amendment.
Kollar-Kotelly is right: “The ‘issue’ before the Court in Dobbs was not whether any provision of the Constitution provided a right to abortion. 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.”
The Thirteenth Amendment has been neglected in the abortion debate, but it is pertinent. The constitutional amendment abolishing slavery was passed by Congress during the last days of the Civil War and is a break with a reprehensible past. Slavery, at the time, meant not only forced labor and detention but also, for half the slave population, the compulsion to bear children whether the enslaved person wished to do so or not. Their bodily powers were seized in the intrusive and degrading way that is unique to unwanted pregnancy. Doubtless the amendment’s framers had a limited view of the evil they were remedying, but if that overrides constitutional commands, then Brown v. Board of Education would be wrongly decided.
Since the Court overruled Roe last year, there have been creepy new parallels with antebellum slavery. The phrase “underground railroad” is already a common label for the resistance. Some legislators are considering restrictions on free speech to prevent the subjected population from learning its options, and (unconstitutional) bans on interstate travel for abortion. The Fugitive Slave Act of 1850 made it a crime to help a slave escape; legislators are now proposing to criminalize firms that help their employees travel out of state for abortions. A few states already authorize private bounty hunters to help with the new, daunting enterprise of preventing women from escaping forced pregnancy and repressing would-be rescuers.
With abortion, the task is easy. Blackman and Millhiser are both right about what these very right-wing judges are likely to do. But those judges are not our overlords to whom we must genuflect and whose wishes we must anticipate. There isn’t much daylight between their political commitments and the law they make, but they must actually make some law before lower court judges can be bound by it.
