A federal judge’s hilarious attempt to troll the Supreme Court on abortion, in United States v. Handy

Last June, the Supreme Court said in Dobbs v. Jackson Women’s Health Organization (2022) that “The Constitution does not grant a right to abortion.” Given Dobbs tossed out half a century of precedent, upended reproductive freedom in about half of the country, and effectively removed all constitutional rights, you probably heard about this decision.

However, on Monday, a federal judge in Washington, DC issued a summary order indicating that the Supreme Court may not have understood what it said in Dobbs. “Issue’ before the Court in Dobbs no provision of the Constitution grants a right to abortion,” wrote Justice Colleen Kollar-Kotelly, a Clinton appointee. “However, the question before the Court in Dobbs what’s in it The fourth amendment for the Constitution provides that right.”

And this leaves open the possibility that the Thirteenth Amendment, which prohibits “slavery” and “involuntary servitude,” does not prohibit laws prohibiting abortion. Judge Kollar-Kotelly’s order requires parties in criminal prosecutions that touch on abortion rights to state whether the Thirteenth Amendment or “other provisions of the Constitution may confer abortion rights.”

Unless the members of the Supreme Court change drastically, the Court is very reliable for the rule that any provision of the Constitution protects the right to abortion. The majority of the Court’s GOP appointees adamantly oppose abortion rights. They don’t just overrule Roe v. Wade. They were established, the Whole Woman’s Health v. Jackson (2021), states can effectively immunize anti-abortion laws from judicial review by using bounty hunters to enforce the laws.

Simply put, this staunch opponent of abortion rights isn’t going to reverse it because a judge appointed by a Democratic president wrote a smart opinion arguing that forcing people to carry out a pregnancy is a form of involuntary servitude.

That said, the argument that the Thirteenth Amendment protects abortion rights is serious — or, at least, no more serious than the legal considerations coming out of this Supreme Court. As Harvard law professor Laurence Tribe has written, “women who are forced by law to suffer the pain and anguish of carrying, giving birth, and caring for an unwanted child have the right to believe that more than a play on words connects them. forced labor with the concept involuntary servitude.”

Additionally, while Judge Kollar-Kotelly’s order was, at most, a desperate attempt to sway the Supreme Court, trolling is now a common practice by lower court judges in all federal courts. The United States Court of Appeals for the Fifth Circuit is dominated by right-wing trolls, who regularly give decisions with strange reasons that declare all federal agencies unconstitutional, order the Biden administration to change American foreign policy, or even allow military personnel to refuse the order. political conservatives don’t like it.

It would be better if all federal judges made a good faith effort to follow the law, including established legal precedent. But since we don’t live in that world, the Kollar-Kotelly order raises a lingering question: Why should leftist justices disarm? If Republican judges can play this game, why can’t judges who support abortion rights do the same?

The Thirteenth Amendment case against the abortion ban, briefly explained

Judge Kollar-Kotelly’s order arose out of the case referred to United States v. Handycriminal prosecution of several individuals who allegedly worked together to block access to reproductive health clinics in 2020, when Roe the law is still good.

Among other things, the defendant is accused of violating a federal law that makes it a crime to “injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States.”

previous Dobbs, this would be a fairly simple case (assuming, of course, that the government can prove the factual allegations against the defendant beyond a reasonable doubt). Previous Dobbssuch cases Roe establish that there is a constitutional right to abortion. So blocking an abortion clinic undermines the right of the clinic’s patients to exercise their constitutional rights.

Next Dobbs, however, the case becomes more complicated. The government still has strong arguments that blocking abortion clinics violates a federal statute that specifically prohibits the use of certain tactics to block access to abortion clinics — and the government is also accusing the defendants of violating this statute. However, the prosecution’s argument that these defendants violated the broader prohibition on harming constitutional rights would be stronger if they could also argue that these defendants violated the constitutional right to abortion.

Enter the Thirteenth Amendment. Kollar-Kotelly’s message cites two sources — a scholarly article by law professor Andrew Koppelman, who said the amendment “violates the law that prohibits abortion;” and the Tenth Circuit’s opinion addressing the same argument—in support of the proposition that abortion bans can constitute “involuntary servitude.”

The argument that the Thirteenth Amendment protects abortion rights is fairly straightforward. At Bailey v. Alabama (1911), the Supreme Court stated that this amendment sought to eliminate “the control exercised over the personal service of one. [person] to be banished or forced for the benefit of another, is the essence of involuntary servitude.”

As Koppelman writes, “forced pregnancy and childbirth” by its nature, operates “by forcing the woman to serve the fetus.”

But wait, what about Dobbs‘ statement that “The Constitution does not grant the right to abortion?”

Of course, one major problem with the Thirteenth Amendment argument is that Dobbs said in categorical terms about the right to abortion – or, rather, there is no such right. Dobbs saying that “The Constitution does not grant a right to abortion.”

To address this issue, Kollar-Kotelly has a very difficult distinction to make between the “decision” of the court’s decision and the so-called “dicta”.

Briefly, the part of the opinion that responds to certain legal questions before the court is considered to “hold” the court, and is binding on the lower court that considers the same case. By contrast, when the judge is launched into a non-sequitur or otherwise opines on issues that do not correspond to the real legal issues in the case, that part of the judge’s opinion is considered “dicta” and not binding.

As Kollar-Kotelly wrote, quoting the famous federal Judge Henry Friendly, “a judge’s power to bind is limited to the issue before it; he cannot turn dictum into a decision by waving a stick and saying the word ‘hold.’

Certain issues that are before the Court Dobbs, Kollar-Kotelly notes, is that the Fourteenth Amendment protects the right to abortion, not that any other provision does. “That’s why it’s not a majority or a disagreement Dobbs analyze nothing but the Fourteenth Amendment,” he wrote. Thus, the Court’s broad pronouncement that the Constitution as a whole “does not grant the right to abortion” can plausibly be dismissed as dicta.

Realistically, this argument could not persuade anyone on the Supreme Court who joined the majority opinion Dobbs. The distinction between holding and dicta is notoriously slippery. And even if the five judges were convinced DobbsThe broad pronouncement that the entire constitution is dicta, these justices still have the formal authority to simply reject Thirteenth Amendment arguments for abortion rights on the merits.

The Supreme Court has only itself to blame for the Kollar-Kotelly order

Again, unless two Republican appointees to the Supreme Court accidentally leave the Court and are replaced by Democrats, the justices will decide that the Constitution protects abortion rights because they want to move the Supreme Court building to Mordor, Asgard. , or the Unseelie Court.

And, again, in a better world, judges would act as servants of the law – instead of trying to enforce the law to serve a particular agenda.

But in the real world, lower courts don’t always act as loyal followers of Supreme Court precedent. They often act as think tanks for new legal ideas that have yet to gain support in the Supreme Court, but may in the future. The Fifth Circuit more or less operates as a generator and legitimizer of right-wing ideas that are often, but not always, rejected by this Supreme Court. So are some federal court judges who have become favorites among right-wing advocates seeking to move the law to the right.

If this Supreme Court doesn’t want lower court judges to behave like partisan trolls, it might inform these judges more closely to existing legal texts and precedents. But, if anything, this Court is actively encouraging judges on the extreme right of the federal courts to play games with the law.

The Kollar-Kotelly order cannot be defended as a serious attempt to convince the Supreme Court to change the law. But, at worst, it’s just the center-left equivalent of the kind of judicial entrepreneurship routinely practiced in the Fifth Circuit. The Supreme Court will not be surprised if, if it refuses to rein in overreach by courts like the Fifth Circuit, Democratic judges will also act as if they have a free hand.