Biden Administration fails to file Petition for Rehearing in Dobbs abortion case

Only way to restore Roe-Casey is to enact the 13 Justices Act

For reasons they did not try to explain, the Biden Administration failed on yesterday’s deadline to file a Petition for Rehearing in the Dobbs abortion decision under S Ct Rule 44 to ask the Court to re-examine the issues by reviewing the argument, not raised by any counsel or any Justice, that having restrictive abortion laws subjects pregnant women, and particularly poor pregnant women, to State coerced labor and delivery at term when the woman wanted to have an early abortion but could not under the law of her State. This coercion, particularly for poorer pregnant women who cannot afford to travel to another State, amounts to involuntary servitude by the State coerced labor and delivery that violates the Thirteenth Amendment to the Constitution.

I have practiced law for 51 years and had my first successful case in the Supreme Court in 1972 was Morrissey v. Brewer, which is still good law and held by an unanimous Court that a parolee was entitled to a full due process hearing before his parole could be revoked. In my view the Thirteenth Amendment argument is a substantial argument, different from the issues the Court discussed in Dobbs and could likely lead to an opinion reinstating Roe-Casey by a 5-4 decision with Justices Roberts, Kavanaugh, Kagan, Sotomayor and Jackson voting that the Thirteenth Amendment invalidates restrictive State abortion laws.

But the Biden Administration failed to make this argument in their original briefs and oral argument and now failed to raise this issue under S.Ct. Rule 44 which requires a Petition for Rehearing be filed within 25 days of the original decision, which for Dobbs was June 24, 2022.

I emailed and called the Solicitor General numerous times to learn what they were doing, and they never answered. Yesterday, I asked them if they had notified President Biden and Vice President Harris that they were not going to file a Petition for Rehearing raising the Thirteenth Amendment, but again no return email or phone call. In my view, the Biden Administration decided not to take the opportunity to present the Thirteenth Amendment issue to the Court. I do not know why since they did not answer my inquiries.

When I say they, I am including Attorney General Garland and Solicitor General Prolegar. Perhaps the news media should ask them why the Justice Department decided not to pursue the Thirteenth Amendment issue.

Now there is only one way left to overrule the recent Dobbs opinion: that is for the President and Vice President to actively support adoption of the 13 Justices Act which would expand the Court by statute, and Biden could then nominate four new Justices to create new majority positions. So far Biden has not supported the 13 Justices Act. There needs to be a net gain of two Democratic seats in the 2022 midterms and to retasin a majority in the House to achieve this after the new Senate in 2023 abolishes the undemocratic filibuster.

There is hope for pregnant women to get the new post 2022 Court to overrule Dobbs, but people need to get busy to achieve that two seat net gain in the Senate as of January, 2023.