In my previous post, I explained how U.S. District Judge Colleen Kollar-Kotelly used a motion to dismiss a criminal indictment under the Freedom of Access to Clinic Entrances (FACE) Act to promote her personal theory of abortion rights. She should have simply denied the motion because the constitutional status of abortion has nothing to do with her jurisdiction over FACE Act prosecutions. Instead, Kollar-Kotelly speculated that the Constitution might confer a right to abortion, even after the Supreme Court in Dobbs v. Jackson Women’s Health Organization held that “the Constitution does not confer a right to abortion.” Even on its own terms, her theory is deeply flawed.
This was not a speech, an article, or even a tweet in which Kollar-Kotelly took the liberty of offering some personal views on this subject. No, even though it was completely unnecessary to decide the issue before her, she ordered the government and defendant in that case to brief whether “Dobbs may or may not be the final pronouncement” on whether the Constitution protects a right to abortion.
Since, Kollar-Kotelly insisted, Dobbs addressed only whether the 14th Amendment protected such a right, whether “any other provision of the Constitution could confer a right to abortion” might be “an open question.” She also made it clear where she wanted the parties to direct their search, suggesting that the 13th Amendment, which prohibits “slavery” and “involuntary servitude” might protect a right to abortion.
If there’s a question of jurisdiction here, it is whether Kollar-Kotelly may properly require the parties to explore an irrelevant constitutional issue that the judge herself pulled out of thin air. The answer, of course, would be “no” even if the 13th Amendment theory, which has been around a while, had any merit. It doesn’t.
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Long ago, in a 1795 decision, the Supreme Court explained that the Constitution can be “revoked or altered only by the authority that made it.” More than two centuries later, Justice Ketanji Brown Jackson asserted at her confirmation hearing that the Constitution must be interpreted based on its “original public meaning.” In other words, the 13th Amendment can, even potentially, be the basis for abortion rights only if that is consistent with the meaning the amendment’s framers and ratifiers gave it.
The answer requires more than the obvious observation that those who gave us the 13th Amendment did not specifically contemplate its application to abortion. No one argues otherwise, but that’s not the point.
Congress proposed the 13th Amendment in January 1865, and it quickly became part of the Constitution when Georgia, the 27th of the 36 states at the time, ratified it on December 6, 1865. This occurred in the middle of a national movement to enact pro-life laws. Just six years earlier, the American Medical Association unanimously adopted a resolution condemning the “slaughter of countless children” and urging legislatures to ban abortion except to save the mother’s life.
Twenty of the 27 states ratifying the 13th Amendment had already joined this movement, enacting laws that made abortion a crime at all stages of pregnancy. The other seven states passed similar laws soon after they ratified the 13th Amendment. Nine additional states that passed ratification resolutions after 1865 also enacted such a pro-life law.
The suggestion that the 13th Amendment protects a constitutional right to abortion requires believing that every one of these 36 states ratified a constitutional amendment that would make their pro-life laws invalid. To put it mildly, calling that implausible is an understatement.
The Supreme Court has, for more than a century, repeatedly held that “involuntary servitude” in the 13th Amendment refers to “those forms of compulsory labor akin to the African slave.” In United States v. Kozminski, the Supreme Court had to interpret the term “involuntary servitude” in two statutes enacted to enforce the 13th Amendment. The Court concluded that, “In every case in which this Court has found a condition of involuntary servitude, the victim had no available choice but to work or be subject to legal sanction. . . . [O]ur precedents clearly define a Thirteenth Amendment prohibition of involuntary servitude enforced by the use or threatened use of physical or legal coercion.”
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In Kozminski, Justices William Brennan and Thurgood Marshall, who had joined the majority in Roe v. Wade, concurred in the judgment. They explained that “‘servitude’ generally denotes a relation of complete domination and lack of personal liberty resembling the conditions in which slaves were held prior to the Civil War.” It’s no wonder that liberal constitutional scholars such as Professor Donald Regan have concluded that “[u]nwilling pregnancy . . . does [not] involve labor of the sort [Kozminski] was referring to.”
Pregnancy, however unwanted at a particular time, cannot be described the way that the Supreme Court has interpreted involuntary servitude. This may be why some abortion advocates falsely claim, perhaps deliberately, that the 13th Amendment prohibits “forced labor.” They apparently hope that people will hear the word “labor” and assume a connection between pregnancy and the 13th Amendment. It takes more than an imagination and a political agenda, however, to properly interpret the Constitution.
Judge Kollar-Kotelly should have denied the motion to dismiss and allowed the FACE Act prosecution to proceed. She exceeded any reasonable boundary of her judicial power to instead order the parties to address an issue that was not only irrelevant to the case before her, but one that she found important for some unrelated reason. An honest evaluation of the 13th Amendment, however, will not boost abortion rights in the way the judge hopes.
This piece originally appeared in The National Review