A Judge Mocks the Supreme Court on Abortion

The newest challenge to the Supreme Court exudes contempt for the Nine.

AP/Patrick Semansky
President Biden speaks about abortion access during a Democratic National Committee event Tuesday. AP/Patrick Semansky

The most contemptuous reaction to the Supreme Court’s reversal of Roe v. Wade is coming from, shockingly, a United States district  judge. The judge, Colleen Kollar-Kotelly, has ordered the government to give an opinion on whether by becoming pregnant a woman has become enslaved — and therefore whether abortion must be allowed under the 13th Amendment that declared that “neither slavery nor involuntary servitude” shall exist in America.

Opening that line of questioning in the wake of Dobbs v. Jackson Women’s Health Organization strikes us as contemptuous not only of the Supreme Court, which just ruled that there is no right to abortion in the Constitution. It’s also contemptuous of African Americans who endured the travails of chattel slavery. She is making of the 13th Amendment, one of the most important laws ever passed, a kind of constitutional joke in service of abortion rights.

In Dobbs, the Supreme Court rejected the idea that the 14th Amendment provided a privacy right that protected a woman’s right to choose.  As A.R. Hoffman reports, Judge Kollar-Kotelly instead is suggesting that the Court should have kept looking. 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.”

In fact, in Dobbs, the Supreme Court held more broadly than the 14th Amendment and without qualification that the Constitution “does not confer a right to abortion.” Yet Judge Kollar-Kotelly quotes Judge Henry Friendly, late lion of the Second Circuit, to the effect that a “judge’s power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word ‘hold.’”

Let us say, we are not opposed to novel legal theories. We write about them all the time — and enjoy as much as anyone the law’s exotic edges. Judge Kollar-Kotelly’s ostensible open-mindedness, however, is in the service of doctrinal dogmatism. It appears as if she cannot abide an America where the matter of abortion is, in Dobbs’s parlance, a matter for the “people and their elected representatives.” The court did not ban abortion, after all. 

Judge Kollar-Kotelly’s recalcitrance leads her to a law review article, that perpetual redoubt of airborne castles. Professor Andrew Koppelman writes that “forcing women to be mothers makes them into a servant caste” and that “when women are compelled to carry and bear children, they are subjected to ‘involuntary servitude.’” Welcome to the Wild West of the liberal legal professoriate, where pregnancy — even motherhood — can be analogous to slavery. 

Attention now swings to the Department of Justice. Attorney General Garland’s lawyers will have to decide whether to put pen to paper to argue for Mr. Koppelman’s proposition that “giving fetuses a legal right to the continued use of their mothers’ bodies would be precisely what the 13th Amendment forbids.” No doubt progressives will see in this Hail Mary a final chance to win the abortion game once and for all after the clock hits 0:00.  

We see it less as a last-ditch maneuver than as an opening salvo. Another professor, Joshua Blackman, warns us to expect similar stratagems from liberal judges to frustrate the high court’s decisions in New York State Rifle & Pistol Association, Inc. v. Bruen (gun rights) and potentially in Students for Fair Admissions v. Harvard (affirmative action). Even as Democrats mount efforts to change the high court, lower courts will try to frustrate it. We’ve been warned.

The New York Sun

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