When the Supreme Court overturned the landmark Roe v. Wade ruling in 2022, abortion was no longer federally protected. Instead, abortion rights became a state-by-state decision. Anticipating the fall of Roe v. Wade, conservatives across the country quickly passed trigger laws that immediately went into effect following the Supreme Court’s decision, and other reproductive rights are being targeted by GOP officials daily.
But while the GOP continues to target reproductive rights— most recently, a new rule by the Food and Drug Administration (FDA) that would permit pharmacies to dispense abortion pills including mifepristone and misoprostol— Democrats and liberals also refuse to give up. Bringing hope in what has been a disheartening post-Roe era, a federal judge said Monday that there is a chance abortion could still be federally protected despite the Supreme Court’s overturning of Roe v. Wade.
According to court filings, U.S. District Court Judge Colleen Kollar-Kotelly said the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization only concluded that the 14th Amendment included no right to abortion. However, it failed to rule out protection under other sections of the Constitution, including the 13th Amendment. In its ruling overturning Roe, the Supreme Court only addressed the 14th Amendment, saying in its majority opinion that it “clearly does not protect the right to an abortion.”
“[I]t 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 had that issue been raised,” the judge wrote, regarding a pending criminal case against several anti-abortion activists. “However, it was not raised.”
Kollar-Kotelly noted that the 13th Amendment, ratified at the end of the Civil War to ban slavery and “involuntary servitude," provides language and text that could apply to the right to abortion.
Outside of slavery, 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.” This due process clause was a key point of the Supreme Court’s prior ruling in Roe v. Wade, which first established the federal right to abortion.
According to Politico, the judge asked the parties in the criminal case, who are charged of blocking access to abortion clinics, to present arguments by mid-March to address ”whether the scope of Dobbs is in fact confined to the Fourteenth Amendment” and “whether, if so, any other provision of the Constitution could confer a right to abortion as an original matter … such that Dobbs may or may not be the final pronouncement on the issue, leaving an open question.”
The year-old case being discussed involves 10 defendants who are being charged with blocking access to a Washington, D.C., abortion clinic.
One of the defendants, Lauren Handy, claims that the charges are no longer valid because the Dobbs decision took away the federal government’s ability to make laws related to abortion access.
“There is no longer a federal constitutional interest to protect, and Congress lacks jurisdiction,” Handy’s attorneys wrote. “The Dobbs court did not indicate that there is no longer a constitutional right to abortion; the court has made clear there never was.”
Judge Kollar-Kotelly, an appointee of former President Bill Clinton, said she found the Dobbs decision was confined to the 14th Amendment alone and while the language may suggest abortion was not protected as a result, such statements were narrow. She questioned whether the high court considered the entire Constitution in overturning Roe.
“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,” she wrote. “That is why neither the majority nor the dissent in Dobbs analyzed anything but the Fourteenth Amendment. In fact, on the Court’s initial review, not a single amicus brief mentioned anything but the Fourteenth Amendment and the unratified Equal Rights Amendment.”
Others have also questioned which other amendments can help protect abortion rights, including religious organizations whose tenets permit abortions to be performed later than some state laws do.
Be sure to listen to The Downballot where Tiffany Muller, the president of End Citizens United, discusses her group's efforts to roll back the corrupting effects of the Supreme Court's Citizens United decision as we hit the ruling's 13th anniversary. Muller tells us about ECU's short- and long-term plans to enact serious campaign finance reform; how the organization has expanded into the broader voting rights arena in recent years; and research showing the surprising connection many voters drew between the GOP's attacks on democracy and their war against abortion rights.