The left is never, ever going to quit when it comes to trying to legalize abortion at the federal level. This time, it’s a federal judge in Washington DC who thinks she has found a legal loophole legalizing abortion… in the Thirteenth Amendement.

Now, for those of you who remember civics class and/or Civil War history, you will know that the Thirteenth Amendment was passed in order to abolish slavery. The text reads:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

Call me crazy, but I don’t see the word “abortion” in there. Never you fear, because Judge Colleen Kollar-Kotelly is HERE to tell you where it is!

In a pending criminal case against several anti-abortion activists, U.S. District Court Judge Colleen Kollar-Kotelly said the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization 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.”

“[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. “However, it was not raised.”

Kollar-Kotelly noted that there is some legal scholarship suggesting that the 13th Amendment — which was ratified at the end of the Civil War and sought to ban slavery and “involuntary servitude” — provides just such a right. She is asking the parties in the criminal case, which involves charges of blocking access to abortion clinics, to present arguments by mid-March.”

In particular, the judge is asking them 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.”

Good Lord. Someone find the judge a good chiropractor, because she certainly injured herself with THAT reach. I’m sure it will shock absolutely no one that Judge Kollar-Kotelly has a long history of judicial activism, from January 6th cases, to ruling against the ban on transgender service members in the military, to issuing rulings on privacy for Guanatanamo detainees. She’s been around a LONG time.

But Salon is desperately hoping against hope that finally, FINALLY, Judge Kollar-Kotelly has discovered the magic loophole that will allow abortion at the federal level!

The judge cited a 1990 paper by Northwestern University Law Professor Larry Koppelman, which argued that when “women are compelled to carry and bear children, they are subjected to ‘involuntary servitude’ in violation” of that amendment.”

The judge also cited a 1995 appellate court ruling related to a Utah abortion law, in which the panel of judges did not express a view on the “merits of the involuntary servitude argument” but concluded that “it is not frivolous.”

Does this judge, sitting on a U.S. District Court, seriously think that the liberal Supreme Court justices left ANY stone unturned in their argument that Roe v. Wade was a good constitutional ruling? Law professor Jonathan Turley is having a long eyeroll at the judge’s expense.

The problem is that Supreme Court's silence may be the most charitable response to this highly dubious theory, which has been bantered about in academic circles for years. The theory runs against the text, history, and case law of the Thirteenth Amendment. https://t.co/mLupthhIHt

— Jonathan Turley (@JonathanTurley) February 7, 2023

…It is also true that the Supreme Court also did not rule out a theory based on the Preamble. That “possibility” does not make a Preamble claim viable or credible after Dobbs. It also did not rule out a Ninth Amendment claim, but it still sent the matter back to the states.

— Jonathan Turley (@JonathanTurley) February 7, 2023

The long historical analysis considered whether abortion was viewed as a protected right at the time of the Framers. The Court concluded that it did not. As discussed in prior decisions (and given the reliance in Dobbs on history), it is worth noting that at the time of the ratification of the Thirteenth Amendment on December 18, 1865, 27 of the 36 states had enacted statutes prohibiting abortion. That included 21 of the 27 ratifying states.”

That does not mean that the Court was right and many disagree with the holding. However, the fact that the Court did not expressly reject the 13th Amendment argument is a hardly compelling basis for suggesting that abortion may still be protected under the Constitution.”

The Court itself has rejected expansive readings of the 13th Amendments, including in Arver v. United States, 245 U.S. 366 (1918), where it rejected such a claim to challenge military conscription. Moreover, the Court has long rejected “novel” 13th Amendment arguments. In Robertson v. Baldwin, 165 U.S. 275, 282 (1897), the Court stated:

“[T]he amendment was not intended to introduce any novel doctrine with respect to certain descriptions of service which have always been treated as exceptional; such as military and naval enlistments, or to disturb the right of parents and guardians to the custody of their minor children or wards.”

As Bonchie at RedState puts it, the legal implications of applying “indentured servitude” to pregnancy could also extend it to motherhood – with extreme consequences.

On the merits, the idea that the 13th Amendment somehow protects a “right” to abortion is farcical. It is not “indentured servitude” to have a baby, and it’s an insult to generations of slaves and indentured servants who actually suffered under an unjust system to even suggest that. By Kollar-Kotelly’s rationale, a mother should be able to murder a three-year-old. After all, a parent must serve their children (especially at younger ages).”

Motherhood, before or after birth, is not slavery, and the 13th Amendment was clearly not written to protect abortion. There’s activism from the bench, and then there’s whatever the heck this judge is trying to do. Of course, you won’t be surprised to learn that Kollar-Kotelly also handles a lot of January 6th cases and has been rubber-stamping government prosecutions in the process.”

Just wait until some defense lawyer catches wind of this argument, and uses it in defense of infanticide, or in a case of a parent murdering their disabled child. We have seen horrific cases like that before. Just wait until some lawyer who thinks Judge Colleen Kollar-Kotelly is some kind of legal genius and attempts to apply the “indentured servitude” argument in order to get a parent off the legal hook for murder. Caring for a permanently disabled child is not what my client signed up for when she became a mother, Judge! Just wait, someone’s going to try it.

If, as Professor Turley says, this argument for using the Thirteenth Amendment to make abortion legal is a “highly dubious theory, which has been bantered about in academic circles for years,” then even if the argument gets to SCOTUS, it will likely be slapped down almost immediately, because there is just no way that the liberal justices would have skipped this argument in order to preserve Roe v. Wade (and likely would have gotten Chief Justice Roberts to go along with them, as he very much did not want to overturn Roe). Using the Thirteenth Amendment seems to have no legal traction… for now. It will be tried again. And again. And again. The abortion activists who sit on the bench and practice law are just waiting for the day when the SCOTUS is tipped in their favor again, and they will be ready. The pro-life side won a massive battle when Roe was overturned, but it is clear that the fight is never going to end. We must be prepared to defend life in the courtroom, as well as the public square, in perpetuity.

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