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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