The 13th Amendment doesn’t contain a right to abortion, and federal judges shouldn’t pretend otherwise.

NRPLUS MEMBER ARTICLE P regnancy isn’t slavery. Pretending otherwise isn’t a serious effort to change the law and is unworthy of the serious role of a federal judge. It also requires ignoring binding Supreme Court precedent.

Federal district judge Colleen Kollar-Kotelly is overseeing a criminal prosecution of anti-abortion protesters in D.C. who stand accused of obstructing access to abortion clinics. The charges were brought under the Freedom of Access to Clinic Entrances Act, commonly known as the FACE Act, and also under 18 U.S.C. § 248(a)(1), which prohibits private conspiracies to “injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.”

The defendants now argue that they cannot be charged with depriving anyone of a constitutional right because, after Dobbs, the Supreme Court has made it clear that a right to abortion was never in the Constitution in the first place. They also advance the more tenuous claim that the FACE Act charges should be dismissed because the statute “is implicitly based upon a constitutional right to abortion,” even though it protects clinic access for those who seek only “counselling or referral services” and even though the FACE Act was upheld by the D.C. Circuit as an exercise of the commerce powerand wraps its protection into a statute that also bans violence against churches. Moreover, even aside from the thornier question of whether section 248 protects against deprivation of purported rights that were erroneously recognized by the Supreme Court at the time of the alleged crime, the fact remains that a right to abortion exists to this day in District of Columbia law. So, denying these motions should be a no-brainer.

Judge Kollar-Kotelly, however, has another idea: What if she could use this case to attack Dobbs from another angle? What if nobody noticed until now that a right to abortion was included when Congress and the states enacted the 13th Amendment banning slavery in 1865? She has asked the Justice Department to submit a brief by March 3 on that question. One can only blanch at what manner of response Merrick Garland’s department will offer.

The reactions from the usual suspects range from excited to cynically approving. Lisa Rubin at MSNBC’s Maddow Blog enthuses, “Could this then be the opening salvo in a new debate about the breadth of Dobbs — and the revival of a federal constitutional avenue to abortion?” Ian Millhiser of Vox writes that the judge “mocks the Supreme Court on abortion . . .the argument that the Thirteenth Amendment protects a right to an abortion is serious . . . Judge Kollar-Kotelly’s order is, at most, a very thoughtful effort to troll the Supreme Court.” Dahlia Lithwick and Mark Joseph Stern of Slate ask, “Was this an audacious judicial request? Maybe. . . . If the rules of abortion-rights Calvinball that followed the Supreme Court’s reversal of Roe v. Wade in June have illuminated any one thing, it’s that there are no rules in this game. There’s only the matter of who holds the ball.”

Judges hear all manner of desperate arguments in criminal cases, but it’s usually not the judge suggesting those arguments to bail out the prosecution, especially when the prosecution scarcely needs the help. There are three possibilities here. One, the 79-year-old Judge Kollar-Kotelly is sincere and has fallen so far down the rabbit hole of progressive academia — her order cites a 1990 law-review article by Andrew Koppelman — that she has lost touch with elementary reality. Two, as Millhiser and the others suggest, she’s just trolling. Three, she is grasping at any argument, knowing it to be legally frivolous, as part of the Left’s campaign of massive resistance against the Dobbs decision. It is debatable which of these reflects most poorly on her.

The 13th Amendment

A point of personal privilege: I’m one of the very few living lawyers who can say that I have argued and won a 13th Amendment case in court. When I was in private practice, I was a court-appointed lawyer for a client who challenged Vermont’s practice of putting pretrial detainees in the state prison with the convicts and then requiring them to do the kinds of labor that, under the 13th Amendment, can be compelled only upon conviction of a crime (in his case, long hours in the prison laundry). The Second Circuit agreed that this was involuntary servitude banned by the 13th Amendment.

Motherhood isn’t.

The 13th Amendment says that “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.” It was passed by Congress in January 1865 after much arm-twisting by Abraham Lincoln, and ratified in December of that year.

It is uniquely broad in its application in two ways. First, alone among the provisions of the Constitution, it directly restricts the power of private individuals and institutions by banning all forms of slavery, whether carried out by government or private actors. In America, no one may own you. Second, while section two of the amendment gives Congress the power to enforce it by appropriate legislation, the Supreme Court has long held that, as the Court explained in The Civil Rights Cases (1883), the ban on forced labor is “self-executing without any ancillary legislation. . . . By its own unaided force it abolished slavery, and established universal freedom . . . . The amendment is not a mere prohibition of state laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.”

Congress did not write on a blank slate in 1865: The language it chose had been drafted by Thomas Jefferson in 1784 and included in the Northwest Ordinance of 1787. Similar language was incorporated in numerous state constitutions before the Civil War, including those of Ohio and California. It therefore had already acquired a generally understood meaning by 1865. The Supreme Court observed in Slaughter-House Cases (1872) that “its two short sections seem hardly to admit of construction, so vigorous is their expression,” adding, “the word servitude is of larger meaning than slavery, as the latter is popularly understood in this country,” because the amendment was intended to prohibit all forms of involuntary labor so as to preclude evasion of a narrow definition of “slavery.” Thus, it bans not only slavery but indentured servitude, peonage, “coolie” labor (as it was then known), and any other employment relation the laborer is not free to leave.

The amendment does not just ban states or private employers from restricting the worker’s right to leave; it bans the commencement of any employment that would be conducted on such terms, even voluntarily. The Court has repeatedly explained, in cases arising from backdoor efforts to tie poor laborers (especially black southerners) into effectively coerced employment, that it protects against the degrading working conditions of the slave. It aimed “to cover those forms of compulsory labor akin to African slavery which in practical operation would tend to produce like undesirable results.” Butler v. Perry (1916). “When the master can compel and the laborer cannot escape the obligation to go on, there is no power below to redress and no incentive above to relieve a harsh overlordship or unwholesome conditions of work.” Pollock v. Williams (1944).

This reflects the free-labor ideology of the early Republicans who adopted Jefferson’s wording. None of this had anything to do with pregnancy, and mid-19th-century Americans would have scoffed at the notion that it did. Even Koppelman, writing in 1990, observed that when he described his argument to others, some of them “responded less with skepticism than with horror. They consider it a libel on motherhood.” He argues that this is misplaced because of the “distinction between wanted and unwanted pregnancy,” but the 13th Amendment banned wanted forms of servitude, too — such as indentured servitude, which had once been a popular, voluntarily entered way to pay for emigration to America — because their terms were abusive and inherently akin to slavery. This is a far cry from how ordinary Americans in the Victorian era conceived of pregnancy — especially the sorts of Evangelical Christians who formed the political vanguard of the movement to pass the 13th Amendment.

Reading the 13th Amendment

In interpreting the 13th Amendment’s language today, courts would of course begin with the commonly understood meaning of its words in 1865. This is where Koppelman and other proponents of using the amendment as an end-run around Dobbs run into their first legal problem. Nobody makes a serious effort to argue that anybody in 1865 thought they were being asked to vote upon a right to abortion. The Civil War was not even over when the amendment passed Congress, and its singular focus was on the institution that had caused the war, and on anything that might permit its resurrection in another guise.

Justice Samuel Alito’s opinion for the Court in Dobbs mustered extensive evidence of bans on abortion in most states by the 1860s. The fact that nobody objected in 1868 that the 14th Amendment might disturb these laws suggests powerfully that it did not, and this same evidence would apply to its predecessor three years earlier. While it is true that constitutional amendments sometimes have unexpected consequences or are violated almost as soon as adopted (certainly, the 14th Amendment was), one expects to at least find contemporaneous controversy around such violations, as happened when Congress violated the First Amendment in the Alien and Sedition Acts. The absence of any controversy indicates that the common understanding of the language did not cover abortion.

In the case of the 13th Amendment, which unlike the 14th explicitly applied to the federal government as well as private individuals, the evidence is even stronger than what Alito cited in Dobbs: In 1873, the Comstock Act was passed by the Republican Congress and signed by President Ulysses S. Grant. It banned, among other things, the interstate sale through the mails of “every article or thing designed, adapted, or intended for preventing conception or producing abortion . . . and every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for preventing conception or producing abortion.” This was passed with the support of many of the congressmen who had supported the 13th Amendment, and signed by the man who had uprooted slavery by force of arms, yet without any debate over a constitutional right to abortion.

There is an additional problem with the theory advanced by Koppelman and entertained by Judge Kollar-Kotelly: While the Court has read the 13th Amendment broadly to prohibit inherently exploitative terms of employment, it has never read the ban on “involuntary servitude” with blinkered literalism to ban forms of compulsory labor that were traditional and broadly uncontroversial in states that already had such bans before 1865. The largest category of these are forms of civic service, including the military draft, compulsory jury service, and even (in Butler) an old Florida rule that all males must contribute a few days of labor a year to repairing the public roads. In prisoner cases, the courts have recognized as well that while only convicts can be put to hard labor, inmates of any kind can be required to perform more limited “housekeeping” duties such as keeping their cells clean that reflect the customary conditions of residence.

In Robertson v. Baldwin (1897), the Court recognized an exception to the ban on involuntary servitude to uphold a federal statute that prevented sailors from deserting their ships for the duration of the voyage — a rule of maritime law that the Court traced back to antiquity. The Court noted that the 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.” It rejected the notion that exceptions were limited to civic labors for the government, as the amendment “makes no distinction between a public and a private service.” As the Court observed in its leading contemporary 13th Amendment decision, United States v. Kozminski (1988), Robertson reflects that “involuntary servitude” is subject to exceptions “well established in the common law at the time of the 13th Amendment.”

Of course, one of those deeply embedded assumptions in 1865 was that mothers were expected to bear and care for their children. Indeed, the child-bearing and child-rearing role of mothers was a major reason why all of the other forms of service exempted from the 13th Amendment applied only to men in 1865. Even Koppelman, who frames his law-review argument around the notion that the pregnant mother is conscripted into “servitude” of her unborn child, acknowledges that his argument is at odds with Robertson and that “the risk that deserting sailors pose to a ship is, of course, considerably less than the danger that abortion poses to a fetus.” He is left to sputter that Robertson must be bad law and that the Court in Kozminski “must be mistaken” in treating it as good law. He asks: “How can there be an exception that antedates the rule?” But of course, the rule against involuntary servitude had been developed over decades since 1787 and had common-law antecedents as well in, for example, the celebrated 1852 English common-law case that refused to require performance of a contract for personal services. The natural presumption, then as now, was that the 13th Amendment aimed to stamp out slavery, not to instigate a social revolution against pregnancy, parenthood, maritime law, or military service.

Badges and Incidents

Of course, Congress has long had the power under section two of the 13th Amendment to ban what the amendment’s framers considered the “badges and incidents” of slavery that did not amount to slavery itself, such as restrictions on the ability to travel or to choose where one lives, without which the laborer may be stripped of the choice to leave the job. There is some tension in how the Supreme Court has read the respective powers of Congress and the courts under the Reconstruction amendments: It has declined to treat the 13th Amendment as self-executing in “badges and incidents” cases, thus giving Congress the power to define these — unlike in the 14th Amendment context, in which the Court held in 1997 that Congress may prohibit only conduct banned by the 14th Amendment itself.

There are arguments that the forcible breeding of slave women (either with slave men or with slave masters) was a distinctive badge of slavery, powerfully embedded in the institution. Under this theory, Congress might have power to legislate against forced pregnancy. But it has not done so in a way that would create a federal statutory right to abortion, and even if it were to try, the real badge of slavery was not that a slave woman was expected to carry a pregnancy to term in the same way as a free woman, but that she was uniquely unfree to choose her sexual partner in the first place due to being enslaved. Ignoring that crucial, real-world historical distinction amounts to rhetorical sleight of hand to wave away the rules regarding abortion that applied to free white women in 1865.

Whistling Past Precedent

There is a more fundamental reason that Judge Kollar-Kotelly should not treat this as a serious legal argument about an unsettled question of law: because it isn’t unsettled. In 1993, before the passage of the FACE Act, the Supreme Court threw out a lawsuit against clinic-blocking anti-abortion protesters under 42 U.S.C. § 1985(3), which prohibits conspiracies “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” The Court’s opinion in Bray v. Alexandria Women’s Health Clinic (1993), written by Justice Antonin Scalia, first concluded that restricting a right to abortion is not proof of any intent to discriminate against women:

The claim that petitioners’ opposition to abortion reflects an animus against women in general must be rejected. . . . Opposition to voluntary abortion cannot possibly be considered such an irrational surrogate for opposition to (or paternalism towards) women. Whatever one thinks of abortion, it cannot be denied that there are common and respectable reasons for opposing it, other than hatred of, or condescension toward . . . women as a class — as is evident from the fact that men and women are on both sides of the issue, just as men and women are on both sides of petitioners’ unlawful demonstrations. . . . Respondents’ case comes down, then, to the proposition . . . that, since voluntary abortion is an activity engaged in only by women, to disfavor it is ipso facto to discriminate invidiously against women as a class. Our cases do not support that proposition.

Scalia’s opinion then addressed a second problem with the lawsuit: The protesters were private citizens, not state actors, so they could be sued only if they violated “a right guaranteed against private impairment.” Scalia reviewed the few such rights contained in the Constitution, explicitly including the 13th Amendment, and found that none of them protected a “right to abortion”:

The other right alleged by respondents to have been intentionally infringed is the right to abortion. The District Court declined to rule on this contention, relying exclusively upon the right-of-interstate-travel theory; in our view, it also is an inadequate basis for respondents’ § 1985(3) claim. Whereas, unlike the right of interstate travel, the asserted right to abortion was assuredly “aimed at” by the petitioners, deprivation of that federal right (whatever its contours) cannot be the object of a purely private conspiracy. . . . The statute does not apply, we [have] said, to private conspiracies that are aimed at a right that is by definition a right only against state interference, but applies only to such conspiracies as are aimed at interfering with rights protected against private, as well as official, encroachment. . . .

There are few such rights (we have hitherto recognized only the Thirteenth Amendment right to be free from involuntary servitude, United States v. Kozminski . . . and, in the same Thirteenth Amendment context, the right of interstate travel). . . . The right to abortion is not among them. It would be most peculiar to accord it that preferred position, since it is much less explicitly protected by the Constitution than, for example, the right of free speech. . . .  Respondents’ § 1985(3) “deprivation” claim must fail, then, because they have identified no right protected against private action that has been the object of the alleged conspiracy. (Emphasis added; quotations and citations omitted).

This is an explicit holding of a majority of the Supreme Court, in a case involving facts nearly identical to the case before Judge Kollar-Kotelly: The 13th Amendment does not protect a “right to abortion.” It is not an offhand reference in some obscure antique case; the congressional reaction to Bray was what motivated it to pass the FACE Act a year later to broaden the legal protection for abortion clinics from obstructive protests. Yet, neither Judge Kollar-Kotelly’s order nor any of the commentary seems to have considered it. The question she is asking has already been answered.