Dem 51
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GOP 49
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...Or, They Might Restore the 1973-2022 Status Quo

And now, as a counterpoint to the previous item, we give you a judge who sees abortion very differently than does Matthew Kacsmaryk. That would be Judge of the United States District Court for the District of Columbia Colleen Kollar-Kotelly, who is currently presiding over a criminal case involving several defendants who blocked access to an anti-abortion clinic.

Without getting too much into the weeds, one of the charges against the defendants is that they conspired to violate federal law. However, the defendants' attorneys argue that since the Dobbs decision, access to abortion is no longer the law of the land, and so the conspiracy charge should be dropped. In her ruling on that question, Kollar-Kotelly observed that while Dobbs did bring an end to Fourteenth-Amendment-based abortion rights, it did not necessarily declare that there are no federal protections for abortion. In particular, Kollar-Kotelly writes, there may be a Thirteenth Amendment argument for abortion rights.

This insight is not unique to Kollar-Kotelly, the notion that prohibitions against "involuntary servitude" prohibit the government from forcing a woman to carry a fetus to term is an old one. But now, the argument has been made in a ruling by a federal judge (albeit as a secondary finding in service of a ruling on another matter). We would be very surprised if someone doesn't soon instigate a case in which they claim their wish for an abortion is covered by the Thirteenth Amendment. Heck, there may well be a case (or two, or three) like that in the works already.

What it all really boils down to is this: The Supreme Court has made its bed, and now has to lie in it. They encouraged partisans on both sides to fight this out through the legal process, often with wildly problematic lawsuits like the one in Texas (see above). And one day, SCOTUS is going to have to rule in another high-profile abortion case. On one hand, as we have already observed, it is clear that the majority of the justices oppose abortion rights. On the other hand, the Court's reputation is in very bad shape right now, and if they push their luck too much farther, they will encourage two things: (1) defiance of the Supreme Court and (2) a potential overhaul of the Supreme Court, perhaps by adding more justices or establishing term limits. They all know this, and they should be preparing for the day when they have to decide what's more important to them. That day may arrive very soon. (Z)

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