The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Abortion and the 13th Amendment

Judges cannot take the Supreme Court's silence as a ground to subvert Supreme Court precedent.


It is easy enough for a District Judge to be all alone in Amarillo or Lubbock. But it is quite difficult for a judge to maroon herself on a deserted island along the Acela corridor. Yet, Judge Colleen Kollar-Kotelly somehow managed that Crusoan feat.

Judge Kollar-Kotelly is presiding over prosecutions against anti-abortion advocates. And post-Dobbs, the defendants had the temerity to state that "the Constitution does not confer a right to abortion." Bad move to accurately state Supreme Court precedent. Sua sponte, the court ordered briefing on whether "any other provision of the Constitution could confer a right to abortion as an original matter, which may or may not be addressed in Dobbs, such that Dobbs may or may not be the final pronouncement on the issue, leaving an open question." This is the sort of move that an eager law clerk cooks up, but a judge is supposed to veto. Not here.

You see, Dobbs was a 14th Amendment case. But Dobbs did not address the 13th Amendment. The majority opinion did not answer whether a restriction on abortion amounts to "involuntary servitude." Thus, this issue was left open! Apparently, Justice Alito hid an invisible elephant in a non-existent mousehole.

Judge Kollar-Kotelly explained:

Mindful that that this Court is bound by holdings, and in consideration of the Supreme Court's longstanding admonition against overapplying its own precedent, it 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.

I suppose anything is possible. Maybe Justice Thomas penned a secret concurrence about the Thirteenth Amendment, and spiked it. (Josh Gerstein, go find it!) But this analysis is not how lower court judges are supposed to treat Supreme Court precedent. Consider an easy example. Imagine if a district court judge, pre-Dobbs requested supplemental briefing on whether the Preamble to the Constitution protects a right to fetal personhood. After all, it "secure[s] the Blessings of Liberty to ourselves and our Posterity." Nothing in the text says Posterity has to be born. And neither Roe nor Casey squarely addressed this issue. How would that sort of order fly from Victoria or Wichita Falls?

Judge Kollar-Kotelly framed her order in terms of minimalism, but she is inviting the parties to put forward arguments that could overturn Supreme Court precedent. And to what end? This constitutional issue has almost no bearing on the case. The judge is simply riffing on an accurate statement from a defendant's brief. Are we really going to get an entire constitutional exegesis on involuntary servitude in a dictum?

If the Thirteenth Amendment actually protected a right to abortion, then Dobbs must be overruled. And why stop there? What about the Free Exercise Clause and RFRA? Those issues are being litigated, and were not settled by Dobbs. Hell, everyone forgets about the Ninth Amendment? That provision was actually cited in Roe, and I don't think Justice Alito affirmatively rejected those pearls of wisdom from Justice Blackmun. Another invisible elephant!

I think there is some room for lower-court judges to decline to extend Supreme Court precedent to new contexts, but judges cannot take the Supreme Court's silence as a ground to subvert Supreme Court precedent.

For decades, conservative lower-court judges dutifully, and begrudgingly, followed Roe and Casey. Do not forget that Judge Ho joined the Fifth Circuit opinion that ruled in favor of Jackson Women's Health Organization. But what we are seeing here is massive resistance to Dobbs, much like we are seeing massive resistance to Bruen, and will soon see massive resistance to Students for Fair Admission. Judges do not like these rulings, so they will be read as narrowly as humanly possible, to maintain the pre-2022 status quo.

For those curious, the district court judges in Texas have an almost-perfect affirmance rate at the Fifth Circuit. Me thinks that not even the Reidified D.C. Circuit would affirm an order finding that the Thirteenth Amendment protects a right to abortion. And if this case slips upstairs, that's a GVR.