United States v. Smith

• Court: District Court, District of Columbia
• Decided: February 6, 2023
• Docket: Criminal No. 2022-0096
• Status: Published

Opinion

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

1 Since the docketing of Defendant’s Motion, almost every other Defendant in this matter has filed a notice indicating that they join this Motion. 1 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

2 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

3 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