UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
Criminal Action No. 22-096 (CKK)
LAUREN HANDY, et al.,
Defendants.
ORDER
(February 6, 2023)
This matter is before the Court on sua sponte review of Defendant Handy’s 1 [159] Motion
to Dismiss for Lack of Jurisdiction. In part, Defendant moves to dismiss the [113] Superseding
Indictment based on the Supreme Court's statement in Dobbs v. Jackson Women's Health Org.,
142 S. Ct. 2228 (2022) that “the Constitution does not confer a right to abortion.” Id. at 2279. As
a threshold matter, and without the benefit of full briefing, it appears that Defendant’s
constitutional argument is predicated on the false legal premise that the predicate statute at issue
in the [113] Superseding Indictment only regulates access to abortion. In fact, it regulates a broad
category of “reproductive health services,” including, among other things, “counselling or referral
services.” See 18 U.S.C. § 248(5). Nevertheless, to the extent that Defendants seek resolution of
this matter via a constitutional holding, the Court will require additional briefing.
Again, Defendant relies on the Supreme Court’s statement in Dobbs that “the Constitution
does not confer a right to abortion.” 142 S. Ct. at 2279. Over the past several months since its
pronouncement, this statement is often read as the Court’s holding, i.e., that the Supreme Court
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Since the docketing of Defendant’s Motion, almost every other Defendant in this matter has
filed a notice indicating that they join this Motion.
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held that no provision of the Constitution extends any right to reproductive health services. For
its part, and without the benefit of fuller briefing, the Court is uncertain that this is the case.
Although such broad pronouncements, sometimes termed “legislative holdings,” have
sensible appeal as a heuristic for a legal decision’s binding effect, the true “holding” of a case is
limited at its very broadest to “the reason for the decision,” sometimes called its “ratio decidendi,”
involving all the parties’ relevant argumentation and legally salient facts. See, e.g., Ramos v.
Louisiana, 140 S. Ct. 1390, 1404 (2020) (Gorsuch, J.); see also Arthur L. Goodhart, Determining
the Ratio Decidendi of a Case, 40 Yale L.J. 161, 163 (1930). As Judge Friendly more colorfully
put it, “[a] judge’s power to bind is limited to the issue that is before him; he cannot transmute
dictum into decision by waving a wand and uttering the word ‘hold.’” United States v. Rubin, 609
F.2d 51, 69 n.2 (2d Cir. 1979) (concurring op.). “Issues” are most often decided by the parties in
how they present their dispute and, crucially, the arguments they advance before the Court. As
the Supreme Court explained long ago, the reason for limiting a “holding” to the issues actually
considered and decided is to ensure that a particular pronouncement on “[t]he question actually
before the Court [that was] investigated with care” is not inadvertently applied to some other issue
that the Court in that prior case did not “completely investigate[].” Cohens v. Virginia, 6 Wheat.
(19 U.S.) 164, 399-400 (1821); see also Lawrence B. Solum, The Supreme Court in Bondage:
Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, 9 U. Pa.
J. Const. L. 155, 189 (2006).
Here, the “issue” before the Court in Dobbs was not whether any provision of the
Constitution provided a right to abortion. Rather, the question before the Court in Dobbs was
whether the Fourteenth Amendment to the Constitution provided such a right. Petition for Writ of
Certiorari at 1 (“This case involves the United States Constitution amendment XIV, § 1, and
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Mississippi’s House Bill 1510[.]”). That is why neither the majority nor the dissent in Dobbs
analyzed anything but the Fourteenth Amendment. In fact, on the Court’s initial review, not a
single amicus brief mentioned anything but the Fourteenth Amendment and the unratified Equal
Rights Amendment. Mindful that that this Court is bound by holdings, and in consideration of the
Supreme Court’s longstanding admonition against overapplying its own precedent, 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. However, it was not
raised.
Of those provisions that might contain some right to access to such services, the Thirteenth
Amendment has received substantial attention among scholars and, briefly, in one federal Court
of Appeals decision. E.g., Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense
of Abortion, 84 Nw. U. L. Rev. 480 (1990); Jane L. v. Bangerter, 61 F.3d 1505, 1514-15 (10th
Cir. 1995). Therefore, and to ensure the correct and just disposition of this criminal action, the
parties shall address in their forthcoming briefing: (1) whether the scope of Dobbs is in fact
confined to the Fourteenth Amendment and (2) whether, if so, any other provision of the
Constitution could confer a right to abortion as an original matter, which may or may not be
addressed in Dobbs, such that Dobbs may or may not be the final pronouncement on the issue,
leaving an open question. In addition, the parties shall also address the current crux of this case,
the scope of the statutes charged, and any other issues the parties may intend to raise.
Because the Court is requesting the parties to address additional issues, the Court extends
the schedule for the briefing of non-evidentiary pretrial motions. The Government shall file its
response on or before March 3, 2023, and Defendant(s) shall file their reply on or before March
17, 2023. Additionally, as the Court is ordering substantial briefing, the parties may exceed
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reasonably the page limits set by the local rules. All other deadlines in the [154] Amended Pretrial
Scheduling Order stand.
SO ORDERED.
Dated: February 6, 2023
__/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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