In an order yesterday in a criminal prosecution under the Federal Access to Clinic Entrances Act (FACE Act), federal district judge Colleen Kollar-Kotelly stated that “the question before the [Supreme] Court in Dobbs was whether the Fourteenth Amendment to the Constitution provided” a right to abortion (her emphasis) and that the Court’s ruling left open that another provision of the Constitution might provide a right to abortion. In her words, “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 [sic] had that issue been raised.” (Her emphasis.)
Judge Kollar-Kotelly cited the Thirteenth Amendment—yes, the ban on slavery—as one provision that “has received substantial attention among scholars” as a source of a right to abortion. She directed the parties to brief:
(1) whether the scope of Dobbs is in fact confined to the Fourteenth Amendment and
(2) whether, if so, any other provision of the Constitution could confer a right to abortion as an original matter, which may or may not be addressed in Dobbs, such that Dobbs may or may not be the final pronouncement on the issue, leaving an open question.
I’m happy to accept that the Court in Dobbs did not specifically hold that the Thirteenth Amendment does not provide a right to abortion, just as it did not specifically hold that the Third Amendment does not. (Yes, the Third Amendment, which protects against having soldiers quartered in your home, has been invoked as the source of an abortion right, as have, it seems, umpteen other provisions of the Constitution.) But it ought to be obvious that what the Court in Dobbs described as the “unbroken tradition of prohibiting abortion on pain of criminal punishment [that] persisted from the earliest days of the common law until 1973” would foreclose these other alleged bases for an abortion right. As to the Thirteenth Amendment in particular: It was ratified at the end of 1865, just 2-1/2 years before the Fourteenth Amendment was ratified, so the Court’s account of state statutes “criminalizing abortion at all stages of pregnancy” by 1868 would be nearly the same for 1865. (It appears from the Court’s statutory appendix that the number of states with such statutes rose from 25 to 28 in the interim.)
So, no, it is not “entirely possible”—it is, rather, ludicrous to posit—that the Court “might have held in Dobbs that some other provision of the Constitution provided a right to [abortion].” The Court’s declarations in Dobbs that “the Constitution does not confer a right to abortion” and that ‘[t]he Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion” mean what they say.
But what really reveals that Kollar-Kotelly is engaging in silly grandstanding is that the D.C. Circuit, which sits above her, ruled way back in 1996 (in Terry v. Reno) that the FACE Act is a lawful exercise of Congress’s Commerce Clause power. (Other courts of appeals have ruled similarly.) It did not rely on section 5 of the Fourteenth Amendment (a source of power that would have been linked to the protected status of abortion under the Due Process Clause of that same amendment). In other words, under binding circuit precedent, the constitutional status of abortion is irrelevant to the question whether the FACE Act may lawfully be applied. So there is no point to the briefing that Kollar-Kotelly is requesting.
Kollar-Kotelly seems to recognize as much when she states in the first paragraph of her order that “it appears that Defendant’s constitutional argument is predicated on the false legal premise that [the FACE Act] only regulates access to abortion.” As she notes, the Act “regulates [access to] a broad category of ‘reproductive health services.’” This ought to clue her in to the fact that the additional briefing she is ordering is irrelevant.