Center for Reproductive Rights Abandons Fight to Reverse Dobbs with new 5-4 Majority Supporting Abortion Rights

Did their Client the Jackson Women's Center Approve Abandoning the case?

The Center for Reproductive Rights has abandoned the opportunity to obtain a new 5-4 decision in the Dobbs v. Jackson Women’s Center case which would uphold the right to obtain an abortion under new standards or timelines. Soon after the decision on June 24, the attorneys for the Respondent Jackson Women’s Center were made aware of an argument that has not been raised at any earlier time in the case. This argument was not discussed by any Party nor was it commented upon by any Justice in the majority, concurring or dissenting opinions. This argument was first raised in this Newsletter in the July 9, 2022 issue and was discussed in several subsequent issues.

The argument had been hinted at by others, but as formulated in this Newsletter it states, if a State adopts restrictive abortion laws that make it very difficult or impossible to obtain an abortion in that State, particularly in the case of poorer women who cannot afford the cost of travel and hotel costs as well as the cost of an abortion in another State, these pregnant women are being subjected to involuntary servitude by being forced to go to term and endure labor and delivery of a child, and taking on the financial, emotional and physical costs of motherhood and raising the child, when they would have chosen, instead, to have an early abortion, then the State is coercing the pregnant woman to complete labor and delivery and is subjecting her to involuntary servitude in violation of the Thirteenth Amendment to the Constitution. As such those restrictive State abortion laws are themselves unconstitutional under the Thirteenth Amendment.

Justice Alito in his majority opinion said he could not find the right to an abortion in the Constitution, and he and the other members of the Alito Five said that all the prior decisions under Roe and Casey were wrong when written and are wrong today. The Alito Five claimed that their intellect and legal knowledge was far superior to that of the Justices who ruled in favor of abortion rights, as restricted, in Roe and Casey including, among others, Justices Blackmun, Burger, O’Connor, Stevens, Marshall and Brennan. With whatever respect is due the Alito Five, I’ll take the intelligence, honesty and intellect of these supporters of restricted abortion rights over that of the Alito Five any day. So, now examining the Thirteenth Amendment argument, even the Alito Five should be able to find the Thirteenth Amendment in the Constitution if they look really hard. It is not hidden in some penumbras or magically appearing where it was not present before. No, the Thirteenth Amendment, proposed by the first Republican President, Abraham Lincoln, has been right there in the Constitution since its adoption in 1865.

But these self-appointed originalists and textualists of the Alito Five just could not find it in the Constitution despite their version of best efforts to search for it and examine the impact of the ban on involuntary servitude as it applies to abortion. The Alito Five assume that all women could afford the expense of travel to and hotels in another state as well as the cost of an abortion despite statistics to the contrary. See the article, entitled, “Who gets abortions in America,” which states, “The typical patient, in addition to having children, is poor; is unmarried and in her late 20s; has some college education; and is very early in pregnancy.” New York Times, May 25, 2022. See: https://www.nytimes.com/2022/05/25/us/who-gets-abortions-in-america.html.

As discussed in earlier Newsletters, the Supreme Court discussed the meaning of “involuntary servitude” as used in the Thirteenth Amendment in the case of United States v. Kozminski, 487 U.S. 931 (1988) where it held that mere psychological fear absent other conditions is not sufficient to justify a federal prosecution of two landowners who effectively imprisoned two mentally retarded men and forced them to work for very little money and sometimes without pay. But all of the Justices agreed that in the case of State coercion, involuntary servitude can be established if the State is forcing the person to undergo conditions or procedures with which it disagrees when those conditions or procedures impose significant burdens or obligations on the person. There are statutory exceptions in some of the applicable enabling laws, but Justice O’Connor clearly states in Kozminski that the Thirteenth Amendment is self-authorizing and does not need a statutory provision to implement it. President Lincoln would not have permitted a statutory legislative provision to undercut the ban on slavery and involuntary servitude. Though they did not agree with Justice O’Connor’s exclusion of pure emotional coercion, Justices Brennan, Marshall, Stevens and Blackmun in opinions concurring in the judgment and O’Connor in the majority opinion all agreed that State coercion of involuntary servitude would violate the Thirteenth Amendment.

Chief Justice Roberts was attempting to convince one or more members of the Alito Five to join him in an opinion upholding the Mississippi 15-week standard but not overruling Roe and Casey. But none of the Alito Five would break ranks and join Roberts. But with the Thirteenth Amendment issue being now argued for the first time, one or more members of the Alito Five could decide that the Thirteenth Amendment raises significant new issues causing them to rethink the issue and one or more might now join Roberts. The most likely Justice to break ranks is Justice Kavanaugh, and by doing so he would create a 5-4 majority to uphold Roe and Casey subject to potential new standards, timelines or criteria. Roberts only needs to pick off one Justice to create that 5-4 majority; not an insurmountable task.

So, these arguments and points were made known to the attorneys at the Center for Reproductive Rights, and it was suggested that they file a Petition for Rehearing under S.Ct. Rule 44 asking the Court to rehear the Dobbs case and to consider the impact of the Thirteenth Amendment on the Mississippi 15-week abortion deadline. They had until July 19, 2022 to do so as Rule 44 requires a Petition for Rehearing to be filed within 25 days of the original decision. But July 19 came and went and there was no filing from the Center for Reproductive Rights. This Newsletter then suggested that they file a Motion for Extension of Time to File a Petition for Rehearing, but no such motion was filed. It is now 28 days since the June 24 Dobbs decision, but there is no filing from the attorneys for Respondent Jackson Women’s Center.

News reports indicated that the Respondent Jackson Women’s Center had stopped all operations because of the Dobbs decision, but their attorneys still failed to take available steps to protect their client’s interests and the interest of all pregnant women in the United States. Of course, there is no guarantee that if the Thirteenth Amendment argument were made it would be successful. You cannot ever guaranty a particular outcome when Judges or Justices get to make decisions, but based on my 51 years of law practice and my first Supreme Court case in which I participated in April, 1972, Morrissey v. Brewer, holding that parolees are entitled to a full due process hearing before parole can be revoked, I reasonably believe that the Court would find a Thirteenth Amendment violation if the issue were raised. Of course, the Petitioners and their numerous amici would claim various objections including the fact that this issue was not briefed or argued before decision, but I do not think that would stop the Court from ruling on the Thirteenth Amendment claim as the impact is too wide and the effect too potentially harmful for women if the argument were ignored.

So why didn’t the Center for Reproductive Rights raise the Thirteenth Amendment issue? I do not know as they would never answer any of my emails or telephone calls or offers of assistance. Perhaps they felt they would do better fund raising by referencing their efforts in State courts post- Dobbs. Perhaps someone told them not to raise the Thirteenth Amendment issue. Did Attorney General Garland or Solicitor General Prolegar tell them not to raise the issue? Again, I do not know.

But most importantly, did their client, the now non-operating Jackson Center for Women authorize them not to proceed further, again I do not know, but getting explicit authorization not to raise a significant Thirteenth Amendment issue would seem imperative in this very high profile case.

Though there would be arguments of res judicata and other defenses, perhaps another plaintiff with different attorneys could conceivably file Civil Rights litigation raising the Thirteenth Amendment issue which has never been discussed in the context of abortion in any Supreme Court case. Since it was never discussed it is hard to imagine that res judicata would apply to a new case with different parties to bar consideration of the Thirteenth Amendment involuntary servitude clause.

Anyone out there want to take up the challenge?

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Next up: how Justice Thomas and the other Originalists and Textualists on the Supreme Court could interpret the meaning of the Second Amendment when they make no reference to and do not discuss and actually ignore the first half of the Second Amendment referring to a well-regulated militia. Sure, if you do not even refer to half of the Second Amendment you can make any argument you like, but how can these Originalists and Textualists get away with completely ignoring the full text of the Second Amendment? They can’t. To be continued.

That’s All Folks! But stay tuned when Justice Thomas and Justice Scalia’s ghost try to interpret the first half of the Second Amendment together with the rest. It should be entertaining as long as you are not a Party in a case before them.