'A servant caste': Federal judge argues abortion could be legal under amendment that outlawed slavery

 One federal judge suggested Monday that abortion rights may be protected by the 13th Amendment, the constitutional provision that outlaws slavery.

Federal District Judge Colleen Kollar-Kotelly, a Clinton appointee, argued the Supreme Court's ruling in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, was narrow and limited to the question of whether abortion is protected under the 14th Amendment.

The eyebrow-raising assessment was made in a case that involves nearly a dozen defendants who were criminally charged for allegedly blocking access to an abortion clinic in Washington, D.C.

One of the defendants argued the case should be tossed because the Dobbs ruling eliminated a federal interest in protecting abortion rights.

But that's not true, Kollar-Kotelly claimed, because "it is entirely possible that the [Supreme] 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."

One of the constitutional provisions that may contain "some right" to abortion access, Kollar-Kotelly claimed, is the 13th Amendment.

The 13th Amendment is one of three Reconstruction Amendments ratified after the Civil War, outlawing slavery except as "punishment for crime." The text of the 13 Amendment does not mention abortion. It reads:

Section 1: 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.

Section 2: Congress shall have power to enforce this article by appropriate legislation.

The novel idea that abortion rights are somehow protected by the 13th Amendment first surfaced in a legal article more than 30 years ago. Kollar-Kotelly cited the article, titled "Forced Labor: A Thirteenth Amendment Defense of Abortion," in her opinion.

The article, which acknowledges that Roe "is an unpersuasive opinion," essentially argues that women become like slaves in service of their unborn child and, eventually, their children.

"Forced pregnancy is a deprivation of individual liberty," the article claims, "that is selectively imposed on women—and women are a group that has traditionally been regarded as a servant caste, whose powers (unlike those of men) are properly directed to the benefit of others rather than themselves. Compulsory motherhood deprives women of both liberty and equality."

The article goes on to argue that "forced pregnancy and childbirth" violate the 13th Amendment's "guarantee of personal liberty" because "forcing women to be mothers makes them a servant caste."

For what it's worth, Supreme Court Justice Samuel Alito explicitly wrote in the Dobbs opinion, "The Constitution does not confer a right to abortion."