“The basic tool for the manipulation of reality is the manipulation of words,” wrote author Philip K. Dick. “If you can control the meaning of words, you can control the people who must use the words.” While Dick probably wasn’t thinking about constitutional interpretation, his statement aptly describes what one federal district court judge is trying to do regarding abortion.
The case, United States v. Handy, concerns pro-life activists who were prosecuted for blocking access to a D.C. abortion clinic in October of 2022. The defendants argued the Dobbs v. Jackson Women’s Health Organization ruling, which overturned Roe v. Wade, removed Congress from playing a role in legislating abortion access. The Supreme Court ruled as they did, goes the defendants’ claim, because Dobbs found that the Constitution did not protect a right to terminate a pregnancy.
In responding to this claim, Judge Colleen Kollar-Kotelly argued that Dobbs only found no right to an abortion in the 14th Amendment, not the Constitution as a whole. Therefore, she concluded, “[I]t 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.”
This claim is laughable on several levels. First and foremost, it simply isn’t true. Justice Samuel Alito’s majority opinion stated plainly:
The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment.
The court here clearly declared that they found no right to abortion anywhere in the Constitution, both within the 14th Amendment’s due process clause as well as the rest of the document. Kollar-Kotelly’s further attempts to limit the precedential value of anything outside of the court’s 14th Amendment analysis is deeply unconvincing.
Indulging Judge Kollar-Kotelly’s misreading of Dobbs leads to a manipulation of the constitutional text itself. She notes one potential alternative source for the abortion right — the 13th Amendment. That provision, ratified in 1865, banned slavery and all other forms of involuntary servitude.
This argument requires a serious mangling of the Constitution’s text to reach its conclusion. The 13th Amendment banned the master-slave relationship, whereby one person consciously controls the will and actions of another. An unborn child did not consciously choose to enter into his or her existence, much less one dependent on a mother. With the exception of cases of sexual assault, by contrast, women consensually engage in the action that creates the child. Moreover, to call the mother-child relationship “slavery” simply because the pregnancy was unwanted also belittles and demeans women. It treats a trait normal for women — the capacity to conceive and bear children — as inhibiting to their true selves and in need of curbing. It makes out intrinsic elements of womanhood to be like the brutal regime of racial, chattel bondage over which we fought a bloody Civil War.
Yet the use of the 13th Amendment is only the beginning of the manipulation. Judge Kollar-Kotelly hints that other groundings for the abortion right might exist as well. What these other sources might be we’re never told. But, given how the judge has treated the 13th Amendment, the possibilities seem endless.
Might Kollar-Kotelly locate a right to abortion in the Eighth Amendment, arguing that a woman carrying a pregnancy to term constitutes cruel and unusual punishment? Since state legislatures have been banning abortion since Dobbs, perhaps she would say that an unwanted pregnancy is a bill of attainder, a legislative instead of judicial conviction, and sentencing banned by Article I.10. Maybe even the 19th Amendment could be worked in with the argument that pregnancy could “inhibit a woman’s exercise of the franchise.”
Such farcical hypotheticals might not be mere comic fodder. Those desperate to return to the Roe regime might make these or similar arguments with a straight face. Their doing so reveals how abortion has distorted our moral compass in its destruction of innocent human life. But such efforts also point to a concern for our republic that goes far beyond the question of abortion.
Our government, grounded in the rule of the people, manifests that rule through written, binding laws. Doing so respects the consent of the governed while also aiding in protecting minority rights from oppression. To truly rule, the laws must have a fixed and understood meaning that enables and limits the actions of persons and of governments. When judges like Kollar-Kotelly manipulate the words of the law (or those of other judges), they undercut the rule of law itself. They do so, not by explicitly rejecting the law but by twisting it to fit preferred outcomes. Such a course of action builds as clear and fast a road to tyranny as one could travel.
Whatever form Judge Kollar-Kotelly’s foray into constitutional manipulation ultimately takes has little chance of holding up on any potential appeal, and that is of some comfort. Yet, the spirit of lawless manipulation of the law lives in the writings of too many judges today — and that is a much less comforting reality.
Adam Carrington is an associate professor of politics at Hillsdale College.