Federal Judge Equates Gun Rights to Abortion Rights in Alabama Decision

A court opinion finding the state’s antiabortion law unconstitutional drew the analogy between the two politically charged rights.

Anti-abortion demonstrators protest in front of the US Supreme Court during the 41st annual March of Life in Washington, DC, January 22, 2014. Held around the anniversary of the Supreme Court's Roe v. Wade decision, the march draws thousands from around the country for a rally on the National Mall before marching up Capitol Hill to the US Supreme Court. AFP PHOTO / Saul LOEB 
National Journal
Sophie Novack
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Sophie Novack
Aug. 4, 2014, 9:38 a.m.

A fed­er­al judge ruled Alabama’s abor­tion law un­con­sti­tu­tion­al Monday, freez­ing re­stric­tions that would have closed three of the state’s five abor­tion clin­ics.

The law, passed in 2013, would re­quire doc­tors per­form­ing abor­tions to have ad­mit­ting priv­ileges at a nearby hos­pit­al, a re­stric­tion that U.S. Dis­trict Judge Myron Thompson deemed an “un­due bur­den” to wo­men seek­ing abor­tions.

The law is part of a wave of an­ti­abor­tion le­gis­la­tion passed in a hand­ful of states over the past few years. Most have been put on hold while lit­ig­a­tion con­tin­ues, with the ex­cep­tion of Texas, where the Fifth Cir­cuit Court of Ap­peals up­held sweep­ing le­gis­la­tion that has already shut down more than a third of the abor­tion clin­ics in the state.

Thompson re­ferred to the Texas de­cision—which main­tains a re­quire­ment for ad­mit­ting priv­ileges—as “flawed and in­con­sist­ent with the Su­preme Court’s teach­ings.” If the Alabama de­cision stands and is up­held on the full cir­cuit level, it would set up the pos­sib­il­ity of a split de­cision that could boost the is­sue to the Su­preme Court as soon as next ses­sion.

In the con­clu­sion of his opin­ion, Thompson drew an ana­logy between the right to abor­tions and the right to bear arms, both of which face staunch op­pos­i­tion but are typ­ic­ally cham­pioned by op­pos­ite ends of the polit­ic­al spec­trum.

A con­sti­tu­tion­al right can­not be reg­u­lated to the point where it be­comes ef­fect­ively un­avail­able, Thompson ar­gued, wheth­er that right be ter­min­at­ing a preg­nancy or pur­chas­ing a hand­gun.

For ex­ample, he said, if Alabama is­sued reg­u­la­tions that lim­ited fire­arms sales to only Hunts­ville and Tus­ca­loosa, gun-rights ad­voc­ates would not be pleased.

The full text of the ana­logy is be­low.

In de­cid­ing this case, the court was struck by a par­al­lel in some re­spects between the right of wo­men to de­cide to ter­min­ate a preg­nancy and the right of the in­di­vidu­al to keep and bear fire­arms, in­clud­ing hand­guns, in her home for the pur­poses of self-de­fense.

At its core, each pro­tec­ted right is held by the in­di­vidu­al: the right to de­cide to have an abor­tion and the right to have and use fire­arms for self-de­fense. However, neither right can be fully ex­er­cised without the as­sist­ance of someone else. The right to abor­tion can­not be ex­er­cised without a med­ic­al pro­fes­sion­al, and the right to keep and bear arms means little if there is no one from whom to ac­quire the hand­gun or am­muni­tion. In the con­text of both rights, the Su­preme Court re­cog­nizes that some reg­u­la­tion of the pro­tec­ted activ­ity is ap­pro­pri­ate, but that oth­er reg­u­la­tion may tread too heav­ily on the right.

Fi­nally, as to each right, there are many who be­lieve, as a mat­ter of law, that the Su­preme Court’s reas­on­ing in ar­tic­u­lat­ing the right was in­cor­rect and who also be­lieve, as a mat­ter of strong mor­al or eth­ic­al con­vic­tions, that the activ­ity de­serves no con­sti­tu­tion­al pro­tec­tion.

With this par­al­lel­ism in mind, the court poses the hy­po­thet­ic­al that sup­pose, for the pub­lic weal, the fed­er­al or state gov­ern­ment were to im­ple­ment a new re­stric­tion on who may sell fire­arms and am­muni­tion and on the pro­ced­ure they must em­ploy in selling such goods and that, fur­ther, only two vendors in the State of Alabama were cap­able of com­ply­ing with the re­stric­tion: one in Hunts­ville and one in Tus­ca­loosa. The de­fend­ers of this law would be called upon to do a heck of a lot of ex­plain­ing—and rightly so in the face of an ef­fect so severe. Sim­il­arly, in this case, so long as the Su­preme Court con­tin­ues to re­cog­nize a con­sti­tu­tion­al right to choose to ter­min­ate a preg­nancy, any reg­u­la­tion that would, in ef­fect, re­strict the ex­er­cise of that right to only Hunts­ville and Tus­ca­loosa should be sub­ject to the same skep­ti­cism.

Read the full opin­ion here.

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