Imagine if gun rights groups demanded that gun shops did not have to meet state safety regulations because the Second Amendment guarantees a right to bear arms and that fundamental constitutional right requires a similar right to be able to access firearms. Americans have a right to bear arms, therefore Americans have a right to purchase guns within a 30-mile radius of their homes, therefore states cannot pass safety regulations that have the effect of causing gun shops to go out of business.
This is the pro-abortion argument in the Supreme Court case June Medical Services v. Gee in a nutshell. Abortion clinics argue that the State of Louisiana cannot enact regulations intended to keep women safe because those regulations would lead to the closure of abortion clinics, and that would infringe on women’s rights not just to have an abortion but to access one in their area. This right to access is one of the key arguments against Louisiana’s law requiring abortionists to secure admitting privileges at a local hospital. The law intends to protect women who get abortions. The admitting privileges would allow the abortionists to bring a woman facing abortion complications into the hospital and treat her there.
During oral arguments last week, Justice Brett Kavanaugh asked Julie Rikelman, the lawyer representing abortion clinic June Medical Services, whether a state regulation would still be unconstitutional if it had no concrete effect limiting abortion.
“If a state passed an admitting privileges law, therefore, and suppose a state had ten clinics and two doctors for each clinic, but all 20 doctors could easily get the admitting privileges, so that there would be no effect on the clinics, no effect on the doctors who perform the abortions, and, therefore, no effect on the women who obtain abortions, would a law be constitutional in that state?” Kavanaugh asked.
Rikelman’s response proved rather revealing. “That law may still be unconstitutional if it’s restricting access because of the 30-mile limit, Your Honor,” she replied, referring to the requirement that abortionists get admitting privileges at a hospital within 30 miles of their facilities. She later condemned the Louisiana law by insisting that if it were enforced, “hundreds of thousands of women would now live more than 150 miles from the closest provider.”
In other words, any law instituting the kind of safety requirements Louisiana passed would be unconstitutional even if it did not force a single abortionist out of work, because in Rikelman’s reading the Constitution protects not only a woman’s right to have an abortion but a woman’s right to access that abortion near where she lives. In Whole Women’s Health v. Hellerstedt (2016), the Supreme Court struck down a more restrictive Texas admitting privileges law claiming it posed an “undue burden on a woman’s access to abortion.” The Court’s decision to take up June Medical Services suggests a willingness to reconsider this stance — although the Louisiana law is less restrictive.
The Court’s precedents on abortion are extreme in many ways, and this access point seems particularly noteworthy. Most constitutionally-protected rights do not also include a right to access.
The First Amendment right to free speech does not also involve a right to a platform. The right to free assembly does not include a right to force other people to assemble with you.
Yet the case that seems most analogous to this “right” to access abortion is the right to keep and bear arms, as Al Mohler, president of the Southern Baptist Theological Seminary, noted last week. After all, the government has an interest in an armed citizenry being able to stave off a foreign invasion. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed,” the amendment states.
Even so, the Supreme Court has not struck down state laws regulating the operation of gun shops in the name of expanding access to firearms.
If gun rights groups claimed that it should, gun control advocates would object that firearms are dangerous and are designed to end human life, so it is eminently reasonable for states to restrict their sale. They might also argue that firearms can be dangerous for the people wielding them as well as the people targeted by them.
Yet both of these objections hold for abortion, as well. Abortion is designed to kill human life in the womb, and it carries a wide range of potential harms for the mothers, as well.
Of course, there is a monumental difference between these hot-button political issues. Unlike the right to abortion, which was “discovered” in the “penumbras” of the Fourteenth Amendment — an amendment passed by state legislators that were even then enacting laws to ban and restrict abortion — the right to keep and bear arms is clearly expressed in the Second Amendment. There is arguably far more reason for the Supreme Court to uphold the right to access firearms than there is for the Court to uphold the “right” to access abortion.
However, no one is calling for a Second Amendment ban on all state laws regulating gun shops, because it’s a ridiculous argument. Yet it helps illustrate the absurdities of the radical abortion argument currently before the Supreme Court.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.