In a pending criminal case against anti-abortion activists, a federal judge on Monday raised what CNBC is calling an "eyebrow-raising hypothetical" on the issue of a constitutional right to abortion. Judge Colleen Kollar-Kotelly said that when the Supreme Court overturned Roe v. Wade with its ruling last year in Dobbs v. Jackson Women’s Health Organization, it concluded the 14th Amendment does not include a right to abortion, but it did not rule out the fact that other parts of the Constitution could also apply, Politico reports. The Washington Examiner calls it a potential "loophole" to the Dobbs ruling "tucked away in the 13th Amendment."
That amendment, ratified at the end of the Civil War, abolished slavery, and since it also prohibits "involuntary servitude," some legal scholars have argued it could provide a basis for a constitutional right to abortion because forcing a person to carry and birth a child is akin to forcing them into involuntary servitude. "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,” Kollar-Kotelly wrote. “However, it was not raised." She asked both sides in the case she's overseeing to file briefs by mid-March addressing the questions she's raised on the matter. CNBC predicts her order could lead to legal challenges of state anti-abortion laws on 13th Amendment grounds. (Read more abortion stories.)