With a few state-based bright spots, it’s been a bleak time for abortion rights in this country — and one that could become bleaker. So when I saw Politico’s headline Monday — “Federal judge says constitutional right to abortion may still exist, despite Dobbs” — I’ll confess I thought I was hallucinating.
That a federal constitutional right to abortion is rooted and should be recognized outside the Fourteenth Amendment’s Due Process Clause — the source of the right as enunciated in Roe v. Wade — has been a subject of debate among lawyers and scholars for decades. No less an authority than Ruth Bader Ginsburg, as an ACLU lawyer, attempted to litigate the right to abortion on equal protection grounds. In a 1985 essay, she also criticized Roe for its “concentration on a medically approved autonomy idea, to the exclusion of a constitutionally based sex-equality perspective.”
Since then, the notion that a woman’s right to abortion should be derived from her constitutional equality before the law has only grown in popularity. Yet while embraced by the Dobbs dissenters (including through this amicus brief), Justice Samuel Alito’s decision rules any equal protection justification for abortion is “squarely foreclosed by our precedents.” Therefore, since Dobbs overturned Roe, the conventional wisdom has been there is no federal constitutional guarantee to abortion.
And that’s why D.C.-based U.S. District Judge Colleen Kollar-Kotelly threw legal observers for a loop this week. Kollar-Kotelly, a federal trial court judge since 1997, is handling a criminal case stemming from the October 2020 blockade of a reproductive health clinic and filed last March. That blockade, according to the indictment, involved everything from physically blocking the clinic’s main and employee entrances to some defendants’ chaining and roping themselves together in chairs “placed to obstruct passage into the Clinic’s treatment area.” The 10 defendants…
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