DOJ Attempts to Stake Abortion Rights on Commerce Clause
It’s a curious case.
A year ago, 10 defendants were charged with obstructing an abortion clinic. Their recent motion to dismiss argues that since Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade, there is no longer a federal constitutional interest to protect. The court, thus, lacks jurisdiction.
So right now, in order to nail them, a U.S. District Court judge for Washington, D.C., has floated the possibility that the 13th Amendment provides a constitutional right to abortion under which the defendants can be convicted.
The truth is that the commerce clause could never have legitimately invested Congress with the authority to enact FACE.
Judge Colleen Kollar-Kotelly has directed the parties to present arguments along that line by mid-March. She says that “the Court is ordering substantial briefing” on the possibility that the 13th Amendment “could confer a right to abortion as an original matter” in the Constitution. (READ MORE: Judge Manipulates Constitution in Attempt to Revive Abortion Rights)
But in a peculiar response last Friday, the Department of Justice has disobeyed the judge’s order — it proffers no such “substantial briefing” on the tentative constitutional possibilities as directed.
Instead, the DOJ has countered that it doesn’t need to examine the 13th Amendment. Instead, all that is needed in this case can be found in the commerce clause. According to the lawyers, this clause vests Congress with ample authority to enact the Freedom of Access to Clinic Entrances Act (FACE) under which these defendants were charged.
But they are wrong.
An Attempt to Undermine Dobbs
The commerce clause has never encompassed the right to abortion. There is no right to injure, destroy, or kill unborn children implicit in providing interstate commercial services.
The defendants contend that in overturning Roe, the Supreme Court held there to be no federal right to abortion in the Constitution. Kollar-Kotelly, however, has claimed that Dobbs examined only the 14th Amendment; thus, “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.”
The judge’s pro-abortion bias is clearly demonstrated throughout as she strives to sow the doubt that the Supreme Court in Dobbs was wrong when it stated, “The Constitution does not confer a right to abortion.”
But, ironically, the DOJ is right in dismissing the 13th Amendment as an avenue to supporting a constitutional right to abortion. It is wrong, however, in thinking that the Constitution’s commerce clause is the answer.
Slavery Is Illegitimate
How can any reasonable person defend the absurd construct that unborn children are private property and so may be lawfully obliterated at their mothers’ behest?
Under the 13th Amendment, legal commerce of human beings is prohibited. In fact, the amendment provides protection against treating live, vulnerable human beings as their mothers’ property, able to be medically killed in an abortion clinic. Had it been thoroughly examined by the DOJ, as directed by Koller-Kotelly, it would have become amply clear that no one can claim ownership over — or the right to kill — even the smallest human beings: those already alive in their mothers’ wombs.
The truth is that the commerce clause could never have legitimately invested Congress with the authority to enact FACE.
Congress has a duty to prohibit and punish forms of private conduct that treat persons as chattel.
Under the Constitution, ownership rights over children in the womb, and the subsequent right to abortion, contravene the “no property in man” principle recognized from the beginning by the Founding Fathers. Congress has a duty — as dictated by the 13th Amendment — to prohibit and punish forms of private conduct that treat persons as chattel. The 13th Amendment is self-executing, meaning that it directly and irrevocably restricts conduct by private individuals who would mistreat other human beings in their power and under their care by designating them “property.” (RELATED: The Story of Mark Houck: Killing the Monkey to Scare the Chickens)
Logically, this constraint applies not just to slaveholders but also to pregnant women who “choose” to have their “property” forcibly destroyed by their abortion “providers.” In The American Slave Code in Theory and Practice, abolitionist William Goodell wrote, “The Slave, as a Chattel, is fed or famished, covered or uncovered, sheltered or unsheltered, at the discretion or convenience of his Owner.” Just so today is a little daughter or son in the womb of his or her “owner” treated in abortion clinics — as readily disposable personal “property” to be cherished or abused, protected or destroyed, subject only to the owner’s will.
The 13th Amendment commands that “slavery” shall not “exist within the United States, or any place subject to [the states’] jurisdiction.” Legalized abortion disobeys that mandate.
So That “No One Dies Today”
Clearly, the District Court’s attempt to convict the 10 defendants under the commerce clause is indefensible.
They were, in fact, protesting under the banner “No one dies today.”
They were trying to stop the medicalized killing in that clinic and on that day of unborn children, utterly innocent and defenseless in their mothers’ wombs.
They were trying to save lives.
That’s the truth. Charges should be dismissed.
Rita Joseph is author of Human Rights and the Unborn Child (Leiden & Boston: Martinus Nijhoff Publishers, 2009).
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