The court order concerns a federal case against 10 pro-life protestors indicted on FACE Act charges for entering a Washington DC abortion facility in October 2020. The defendants filed a motion to dismiss the administration's charges based on the US Supreme Court's decision in Dobbs v. Jackson Women's Health Organization and its statement that "the Constitution does not confer a right to abortion."
Kollar-Kotelly's court order reads,
As a threshold matter, and without the benefit of full briefing, it appears that Defendant’s constitutional argument is predicated on the false legal premise that the predicate statute at issue in the [113] Superseding Indictment only regulates access to abortion. In fact, it regulates a broad category of “reproductive health services,” including, among other things, “counselling or referral services.” See 18 U.S.C. § 248(5). Nevertheless, to the extent that Defendants seek resolution of this matter via a constitutional holding, the Court will require additional briefing.
The judge wrote that the US Supreme Court only ruled on whether the Fourteenth Amendment contained a right to abortion.“[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. However, it was not raised.”
Kollar-Kotelly suggests that such a right might be found in the Thirteenth Amendment, which abolished slavery. "Of those provisions that might contain some right to access to such services, the Thirteenth Amendment has received substantial attention among scholars and, briefly, in one federal Court of Appeals decision."
Such arguments rely on the belief that pro-life laws "enslave" women by making them carry unwanted pregnancies.
The judge directed the prosecution and defense to address "whether the scope of Dobbs is confined to the Fourteenth Amendment" and "whether … any other provision of the Constitution could confer a right to abortion … such that Dobbs may or may not be the final pronouncement on the issue[.]"
