I have come to believe that if Roe v. Wade is ever overturned–a big if–it will be from the other side. That is, I think it is more likely that a future Supreme Court will find Roe and its progeny to be too restrictive and overturn the case in the cause of forging an all-encompassing right to abortion, instead of returning abortion to state regulation. From a piece I wrote about that in First Things, “A Pro-Abortion Reversal of Roe v Wade?”:
[Supreme Court Justice Ruth Bader] Ginsburg believes adamantly that women are denied “equal citizen stature” by boundaries placed around access to abortion. Not only that, but in an angry dissent to the 2007 Supreme Court ruling upholding the federal ban on partial birth abortion, she (joined by Justice Breyer among the current justices) railed against the majority allowing “moral concerns” to “override fundamental rights.”
That sounded to me as advocacy for an unfettered right to abortion at any time and for any reason. So, I asked expert anti-abortion attorney Clarke D. Forsyth, the senior counsel for Americans United for Life. whether Ginsburg’s view would abolish all abortion regulation. Yes, he told me: If the right to an abortion were based on “equal protection of the law,” as opposed to other constitutional standards, it would “permit no regulations at any time,” perhaps even, “requiring [government] abortion funding.”
Now, the New York Times’ legal reporter Linda Greenhouse–who makes little pretense about objectivity in her journalism–provides more fuel for my fire. Lamenting the successful restrictions on abortion in states such as Texas, she lauds a recent Federal Court of Appeals ruling that the right to abortion is equivalent to the right to keep and bear arms. From her piece:
Guns and abortion? That’s a pairing no previous judicial opinion has made. “At its core, each protected right is held by the individual,” the judge explained. “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.”
Do I have to point out how delicious this analogy is? Of course, it’s unthinkable that Alabama would regulate firearms dealers to the point of extinction. But recall the June day 22 years ago when the Supreme Court, to the surprise of nearly everyone, reaffirmed the right to abortion in Planned Parenthood v. Casey. It was unthinkable then that nearly a generation later, states would flagrantly be regulating the practice of abortion (in the name of women’s health and safety, no less) out of business — a goal that Texas, enabled by the United States Court of Appeals for the Fifth Circuit is close to achieving.
Except that gun ownership is an express right, protected by the Second Amendment to the Constitution. In contrast, the right to an abortion was invented by Justices based on implied so-called “penumbras and emanations”–but never mind.
No right is absolute, or course. We aren’t allowed to own machine guns, for example.
But I think that advocates like Greenhouse–and certainly Justice Ruth Bader Ginsberg–want abortion to be. Indeed, check out Greenhouse’s last paragraph:
Still, judges’ willingness to step outside the abortion frame and to weigh, from that broad perspective, whether the abortion right has become unduly burdened is something new and potentially of great value in the struggle to preserve women’s reproductive freedom. Even in the face of cynical and unrelenting political attack, the right to abortion can become stronger the more tightly it is stitched into the constitutional fabric, the more that smart and gutsy judges are willing to treat it as what it is, a right like any other.
As I said in my First Things piece, I believe the successes of the pro life movement has liberals ready to replace the cracked wall of Roe by transforming abortion into an absolute right through the ninth month. Comparing access to abortion to the right to own a gun is a step down that path.