On Monday, U.S. District Judge Colleen Kollar-Kotelly seemed to open a new front in the confounding post-Dobbs battleground over when and where and whether abortion is actually still legal in this country. In an unexpected order, the judge asked for supplemental briefing about whether the right to abortion is secretly protected by the 13th Amendment’s ban on “involuntary servitude.” Was this an audacious judicial request? Maybe. But in the alternate-abortion-reality timeline in which we now reside, is it truly all that different from U.S. District Judge Matthew Kacsmaryk entertaining a request to ban the use of abortion pills nationwide? Not really. If the rules of abortion-rights Calvinball that followed the Supreme Court’s reversal of Roe v. Wade in June have illuminated any one thing, it’s that there are no rules in this game. There’s only the matter of who holds the ball.
Kollar-Kotelly’s unusual request stems from a criminal case—over which she is presiding—against several anti-abortion activists accused of conspiring to block access to a D.C. abortion clinic in 2020. These individuals used chain and rope to blockade an abortion clinic in the District of Columbia. They were indicted in April for violating the federal Freedom of Access to Clinic Entrances Act, or FACE Act, which bars interference with those seeking reproductive health care. On the same day the lead defendant, Lauren Handy, was indicted, D.C. police removed five fetuses from her home.
In January, Handy asked Kollar-Kotelly to dismiss the charges against her under the FACE Act, which targets criminal conspiracies designed to deprive individuals of their constitutional and legal rights. When the Supreme Court overturned Roe in June’s Dobbs decision, Handy claims, the majority “made clear there never was” a constitutionally protected right to abortion. As a result, she argues that the FACE Act cannot apply to her.
Kollar-Kotelly, a Bill Clinton appointee, could have dealt with Handy’s arguments without forcing both sides to address the constitutionality of abortion; for instance, she could have noted that the defendants also blocked access to birth control, which remains constitutionally protected. Instead, the judge chose to tackle the abortion issue head-on. In response to Handy’s argument, Kollar-Kotelly pointed out that “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.” Just because abortion is no longer protected by the 14th Amendment, the judge reasoned, doesn’t mean it isn’t protected elsewhere. She thus ordered briefing from the parties on whether “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.” Taking the first stab at drafting the arguments herself, Kollar-Kotelly pointed the parties at the 13th Amendment’s bar against “involuntary servitude,” best known for abolishing slavery after the Civil War.
“Of those provisions that might contain some right to access to such services,” Kollar-Kotelly wrote, “the Thirteenth Amendment has received substantial attention among scholars and, briefly, in one federal Court of Appeals decision.” She then cited Andrew Koppelman, who has advanced the argument that the 13th Amendment plainly forbids forced childbirth, and a 1995 appeals court decision describing this argument as “not frivolous.” The reasoning here is that a law compelling individuals to remain pregnant against their will places them in “servitude” to their fetus, their own interests totally subordinated to the future person they are gestating.
Grudging respect to the judge for her deft use of the post-Dobbs time machine to claim:
Mindful that that this Court is bound by holdings, and in consideration of the Supreme Court’s longstanding admonition against overapplying its own precedent, 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 had that issue been raised. However, it was not raised.
We are both reasonably certain that Justice Samuel Alito would have been even more contemptuous of the unbriefed 13th Amendment arguments that were never put forth in Dobbs than he was of the decades of binding precedent he swept aside.
But then, the post-Dobbs time machine was the instrument that allowed defendant Lauren Handy to argue that the conspiracy charge against her must be dismissed because the Dobbs decision meant there had never been a right to abortion in the first place. Because she and her nine co-conspirators were arrested in March 2022—three months before the Supreme Court ruled that “the Constitution does not confer a right to abortion”—the time-machine logic would hold that there was no right to an abortion on the day of the clinic disturbance in 2020, or at the time of the arrest. As Handy’s lawyers put it: “the Dobbs court did not [just] indicate that there is no longer a constitutional right to abortion; the court has made clear there never was.”
To reiterate, both Handy’s briefing and Kollar-Kotelly’s response are irrelevant to the case at hand, for at least two reasons. First, in Dobbs, the Supreme Court expressly stated that the Constitution still protects a right to contraception. As the judge noted in her order, Handy’s actions blocked patients from accessing that right and therefore still violated the FACE Act. The abortion question is not dispositive. Second, and more importantly, the FACE Act is rooted in Congress’ power to regulate interstate commerce, not to enforce the 14th (or 13th) Amendment. So the prosecution is constitutionally legitimate no matter how you read Dobbs.
Reading the filings from both the plaintiff and the court, though, you get the sense that these details are pretty much beside the point. Certainly, we can fight all day about which plaintiffs advance the most lawless arguments against reproductive health care, and which district court follow the most reckless path in today’s choose-your-own-ending field of modern abortion regulation. Of course, this is why one is meant to approach reversing longstanding precedent with some modicum of care. People who needed certainty now have none. Dobbs itself was demonstrably an invitation to every judge in the country to engage in the sort of addled cherry-picked historical analysis modeled by the court in that decision. Freestyling your way across time and space and the Constitution is the new judicial humility. And whether you are for Dobbs or against it, we should laud any and every jurist willing to step into the ring and have a go.
We have both written recently about the ways in which the rule of law turns on some quantum of certainty and predictability. Now the only thing we can predict on the reproductive rights front is that nobody knows what’s coming next. What’s the current state of abortion law nationwide? Who knows? Who decides what an exception to state abortion laws might be and how to invoke it? Nobody! With what confidence can anyone understand what the law in their state is today, and what it will be tomorrow? Zero! (Right now, 4 women in 10 don’t know whether medication abortion is available in their state!)
The problem with this brave new world is twofold. For one thing, it seems to be never-ending, dragging courts further and further away from anything approaching consensus. For another, the people who currently feel empowered to choose how every pregnancy must end seem to forget that millions of pregnant people are no longer allowed to choose anything at all. They have created chaos on the ground, as health care providers and their attorneys try to figure out just how close to death a patient must be before they can undergo a legal abortion in a red state. And that’s increasingly mirrored by chaos in the courts, as judges desperately seek to impose dueling versions of the kind of stability and certainty upon which law is built—and which is no longer possible in a winner-take-all post-Dobbs world.