The Left thought it received a gift on August 4, 2014, when U.S. District Court Judge Myron Thompson left in place a temporary halt to Alabama’s law requiring abortionists to have admitting privileges at a local hospital. It was not until page 166 of his 172-page decision, however, that Thompson triggered real excitement within the Left when he offered this hyperbole: “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.”
Even the veteran commentator of all things considered judicial, Linda Greenhouse, couldn’t disguise her enthusiasm, writing: “Guns and abortion? That’s a pairing no previous judicial opinion has made…. By pairing gun rights and abortion rights, Judge Thompson was not just indulging in shock value. He was making a profound point: that a right—any right—without the infrastructure and the social conditions that enable its exercise is no right at all.”
This begs the question: Are gun enthusiasts granted blanket exceptions to land-use or environmental regulations when operating a shooting range? Are they the beneficiaries of a government mandate (perhaps we should call it a tax, not a penalty) for employers to purchase ammunition coverage for their employees? Do they receive public funding for firearms training?
Let’s Try Something Called ‘Reading’
Greenhouse reaches a curious and absurd conclusion about the abortion “right” (an elective procedure, after all), inferring that special exemptions must exist, or abortion is “no right at all.” It’s no wonder Greenhouse was giddy.
A more sober review of Thompson’s hyperbole would begin with the most basic principle in interpreting the Constitution (or even a simple contract): read the plain language of the document. Applying this principle, even a first-year law student would conclude that the plain language of the Second Amendment explicitly guarantees and protects the right of individual citizens to keep and bear arms, but doesn’t require government action to do so. Thompson’s musings notwithstanding, the U.S. Supreme Court did not need conjecture, speculation, or fabrication to make this guarantee even more explicit when deciding the case of District of Columbia v. Heller, which reiterated the obvious wording in the Bill of Rights: “the right of the people to keep and bear arms” is an individual right, not one simply reserved for states and their militia.
The so-called “right to abortion,” on the contrary, is neither explicit nor implied on the face of the Constitution. To begin with, even the most sophisticated search of the Constitution and its amendments will not find the words “privacy,” “contraception,” or “abortion.” Indeed, unlike the “right of the people to keep and bear arms,” the “right to abortion” is entirely a creation of judicial conjecture, speculation, and fabrication. You can read more about this in Clarke Forsythe’s book, “Abuse of Discretion.”
Consider further that the fundamental “right to life” is clearly contained in the Declaration of Independence, a foundational document setting forth the principles upon which the Constitution itself is based. The words “privacy,” “contraception,” or “abortion” are not found there, either.
The Right to Protect Women
It is simply an exaggeration in the extreme to equate the so-called “right to abortion” with the people’s right to keep and bear arms; on the face of the Constitution alone they are not “equal” rights. Going further, even when considering actual “rights,” it is still necessary to evaluate them in context to balance competing interests in a civilized society.
To varying degrees, some government regulations of, or restrictions on, any rights may be justified, depending on the circumstances. In the case of abortion, early on the U.S. Supreme Court held that abortion is different than other “rights,” insofar as “abortion involves the purposeful termination of a potential life.” (Harris v. McRae, 1980).
Beyond the law, Thompson’s review of the facts about the need for admitting privileges glosses over the legitimate interest government has in establishing standards of care for women. The “rule of law” in this context allows precisely the type of government regulation of the abortion procedure for women’s safety: “[t]he State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that [ensure] maximum safety for the patient.” (Roe v. Wade, 1973).
The Roe Court further held that the state’s legitimate interest in regulating abortion to protect women’s health “obviously extends at least to [regulating] the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that may arise.”
The facts are these: abortion providers routinely claim that 2.5 percent of women who have a first-trimester abortion “undergo minor complications,” while fewer than 0.3 percent experience a complication requiring hospitalization. Taking even these conservative estimates at face value and using the latest abortion statistics from the pro-abortion Guttmacher Institute (for 2011), that would mean 26,500 women experienced complications and approximately 3,180 women required post-abortion hospitalization across the United States in 2011. These numbers are significant and reveal a serious public health concern worthy of regulation.
In fact, the National Abortion Federation (NAF) has conceded the appropriateness requiring admitting privileges for an abortionist at a local hospital for patient safety. NAF’s publication, “Having an Abortion? Your Guide to Good Care” (2000), provides that abortion patients searching for a doctor should find one who “[i]n the case of an emergency” can “admit patients to a nearby hospital (no more than 20 minutes away).”
Thompson’s “guns and abortion” hyperbole is at best clever rhetoric, but his total disregard of patient safety and health concerns for women is inexcusable. Rather than presenting Greenhouse and her fellow travelers a gift, perhaps Thompson actually presented them with a booby prize.
Ovide Lamontagne is general counsel of Americans United for Life.
