Abortion may still be protected by the constitution even after the Supreme Court overturned Roe v. Wade last year, POLITICO reports. A federal judge in Washington, D.C., suggested that there may still be a constitutional right to abortion protected by the 13th Amendment.
The judge said the 13th amendment went unexplored by the Supreme Court in its momentous decision last year overturning Roe v. Wade during the case Dobbs v. Jackson Women’s Health Organization.
In a pending criminal case against several anti-abortion activists, U.S. District Court Judge Colleen Kollar-Kotelly said the Supreme Court’s last year concluded only that the 14th Amendment included no right to abortion but stopped short of definitively ruling out other aspects of the Constitution that might apply.
The judge asked lawyers to file briefs on the question of whether the Supreme Court’s decision is limited to 14th Amendment grounds, or whether they considered the entirety of the Constitution.
The judge went on to suggest that specifically the 13th Amendment, which abolished slavery and involuntary servitude, could perhaps cement abortion rights.
In the Dobbs case, the 14th Amendment was of center focus for the conservatively-stacked Supreme Court.
The 14th Amendment covers several rights, including citizenship rights and a prohibition against the government depriving “any person of life, liberty, or property, without due process of law.”
That amendment’s due process clause was a keystone of the Supreme Court’s prior ruling in Roe v. Wade which first established the constitutional right to abortion.
Her order in Washington District Court could end up being an invitation to federal legal challenges on 13th Amendment grounds to state laws that sharply restricted access to abortion in some states after the high court’s controversial decision overturning its 1973 ruling in Roe v. Wade.
“Here, the ‘issue’ before the Court in Dobbs was not whether any provision of the Constitution provided a right to abortion,” Kollar-Kotelly wrote. “Rather, the question before the Court in Dobbs was whether the Fourteenth Amendment to the Constitution provided such a right.”