On Judge Kollar-Kotelly’s Procrustean Attempt To Make Abortion A Constitutional Right

That’s Procrustes portrayed above, in both of his favored acts of mayhem. I checked: I’ve used the term “Procrustean” several times here, but never was kind enough to explain the term’s origins, which is what makes it cool.

Procrustes was the nastiest of the bad guys the mythological Greek hero Theseus encountered on his way to killing the Minotaur in Crete. Procrustes would invite a weary traveler to take refuge for the night, offering him sustenance and a bed—but the bed was a deadly trap. Procrustes guaranteed every guest would fit the bed neatly, but that was because it converted into a rack, stretching anyone who was too short. If a guest was too tall, Procrustes just hacked off enough inches from the feet up to ensure that the bed would fit him, too. Theseus killed the psycho, but the word procrustean eventually entered legal lexicon to describe an argument that illogically squeezed facts or omitted them to make a theory fit the law.

I thought of old Procrustes immediately when I read that Judge Colleen Kollar-Kotelly in the District Court for the District of Columbia suggested after a hearing that the Thirteenth Amendment might have created a right to abortions. Wait, you well might ask, “How could an amendment created specifically to make slavery illegal, passed right after the Civil War, be construed to enshrine abortion as a right?” The short answer is, “It can’t and doesn’t.” The stupid, intellectually dishonest answer, however, is the one that the previously responsible female judge has decided to promote.

When the amendment states,

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

…involuntary servitude included being forced to care for and protect one’s own fetus, embryo, or unborn child. Well of course it didn’t, but so desperate and determined to adopt any means (or lies, or distortions of law and reality) necessary to allow the legal killing of unborn human beings that pro-abortion advocates are willing to ignore law, history, common sense, morality, integrity, decency, professional responsibility (in the case of a judge) and more to achieve that objective and neutralize Dobbs v. Jackson Women’s Health Organization. That 2022 SCOTUS case properly held that there was nothing in the Constitution or its amendments that enshrine abortion as a right, and that Roe v. Wade was bad law and bad jurisprudence.

Kollar-Kotelly apparently thinks it might help to make Roe look brilliant in comparison to her absurd and intellectually dishonest theory. Prof. Turley, who is far more restrained in these situations than I am, politely assembled the reasons why the judge’s theory is a crock, pointing out,

  • No case or opinion has ever interpreted the 13th to apply to childbirth, the only such argument originating in a single professor’s fanciful law review article 32 years ago. [Academics like to make off-the-wall arguments like this to get publicity and tenure, and later defend themselves by claiming that they wee just playing devil’s advocate. That’s me talking now, not Turley.]
  • The judge relies on a decision of the United States Court of Appeals for the Tenth Circuit in Jane L. v. Bangerter, 61 F.3d 1505, 1514-15 (10th Cir. 1995) where the court reversed a lower court decision imposing sanctions on a lawyer for making the argument that the 13th Amendment applied to abortion.  The 1995 opinion found that, “without expressing a view on the merits of the involuntary servitude argument, we hold that it is not frivolous.” Such a ruling doesn’t suggest that the argument has any basis in law, just that it wasn’t such a bad faith theory that attempting it justifies punishing the lawyer. This is the aspect of Rule 3.1, the frivolous case rule, that favors stupid lawyers. You can make a really stupid argument to a court if you really believe it has some legitimacy. Believing this theory isn’t so per se stupid that no lawyer could honestly “run it up the flagpole and see if anyone salutes.” At least, that’s what one court held.
  • Judge Kollar-Kotelly  argued that “the Court will require additional briefing” because Dobbs did not expressly reject the expansive 13th theory or other theories. “It is also true that the Supreme Court also did not rule out a theory based on the Preamble,” Turley says. Or a theory based on “Grimm’s Fairy Tales,” for that matter (that’s me again). The Court didn’t rule out the 13th Amendment because the words, intent, history and jurisprudence relating to that amendment are irrelevant to abortion. “The fact that the Court did not expressly reject the 13th Amendment argument is a hardly compelling basis for suggesting that abortion may still be protected under the Constitution,” Turley concludes.
  • When the Thirteenth Amendment was ratified on December 18, 1865, 27 of the 36 states and 21 of the 27 ratifying states had statutes prohibiting abortion.  So those who made the 13th the law of the land didn’t see it as approving abortion, and if that had been an objective of the amendment, it would not have passed.

I think the judge’s order in United States v. Handy is cynical and intellectually dishonest, a breach, indeed several, of the Code of Conduct for U.S. Judges.

Canon I says that “An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.”

Using her position and authority to concoct Hail Mary theories to advance abortion activism undermines trust in the judiciary.

Canon 2 says that “A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” and  “A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.”

I think Judge Kollar-Kotelly has done both in this case. “A judge should be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public clamor, or fear of criticism,” Canon 2 adds. Hers is not a competent position, but a partisan one.

To be generous, she is almost 80. Maybe it is just time to retire. The judge has accomplished a difficult and rare Triple Procrustes. She stretched the meaning of the 13th Amendment beyond recognition. She severed the context of the Amendment from our history and its origins. And she amputated the logic behind a court opinion so she could distort its significance.

8 thoughts on “On Judge Kollar-Kotelly’s Procrustean Attempt To Make Abortion A Constitutional Right

  1. Turley included a photo of the judge. She looks like a well to do, genteel, impeccably northeastern, pearl wearing, society matron. How did she become a rabid abortion proponent? What is wrong with these people?

    • Many people I know who are rabid proponents for abortion are people who seem to be society matrons.

      My mom told me a story from her college days. Her best friend from High School, We’ll call her Barb, called my mom up one night. Barb had just been asked by a college friend to help with her abortion. Barb took her friend to a doctor and stayed there and held her hand through the procedure. Barb left the abortion clinic filled with the knowledge that what had just occurred was EVIL. She was a complete wreck and cried on the phone to my mom the whole night.

      Barb has since become the strongest proponent of abortion. My mom, having been party to many discussions Barb has had, told me that Barb knows that abortion is wrong deep down, but to allay her guilt for being a party to a child’s death, is screaming for it to made legal and acceptable in the eyes of all. Even one anti-abortion comment brings back her guilt so strongly that she must prove that she did nothing wrong to people who know nothing of her past. Only when all of society accepts abortion as not only an ok option, but the best option will Barb be satisfied.

      Barb viciously attacks anti-abortion speech as violence to women and many of the other things we have seen. I believe, with the numbers of children aborted, that most pro-abortion people have (women) had abortions, had friends and loved ones who had abortions, or (men) were a partial cause of abortion. Due to the huge number of abortions we have had, this makes up a significant number of people.

      Of course there are others who have had abortions, been friends with those who have, or been the father of an aborted child who have repented of that killing of an innocent and become staunchly pro-life, but most abortion fanatics I know have strong connections to that brutality.

      • Thanks Sarah. That’s a really interesting observation. I’ve been trying to work on a piece of fiction about the ’70s with a working title of “Love in the Time of Birth Control.” Your point that this dates back decades is well-founded.

    • Good point, Chris. Being a father and husband IS essentially indentured servitude if you look at it that way! Same with motherhood, come to think of it!

  2. I recalled this incident in the story of Theseus and his journey, but I’d forgotten Procrustes’s name. Thanks for the reminder.

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