First of all, apologies that there’s no Cam & Co attached to this post. We had some technical difficulties today, but we’ll be back tomorrow with another show. In the meantime, let’s delve into what was supposed to be today’s topic: a new op-ed by the NY Daily News that manages to completely ignore the fundamental difference between the right to an abortion, which may soon be undone by the Dobbs decision, and the right to bear arms in self-defense, which will hopefully be upheld by the Supreme Court in its decision in New York State Rifle & Pistol Association v. Bruen.
To the editors of the Daily News, there’s only one explanation why the justices may decide to overturn Roe v. Wade as well as throwing out New York’s “may issue” carry permitting scheme: judicial activism.
For 49 years, under a ruling of the nation’s highest court and subsequent precedent, Americans have gotten used to the idea that women have the freedom to terminate a pregnancy until the point of fetal viability.
They don’t have to travel from state to state to access a right that, while not explicitly named in the U.S. Constitution, courts have consistently said springs from its protections for privacy and due process.
Now, unless a draft Supreme Court majority ruling is dramatically revised or becomes a dissenting opinion, Justice Samuel Alito and his band of not-so-merry conservatives are poised to denationalize that right, making reproductive liberty wholly contingent on the state in which a woman happens to live and the disposable income she happens to have at the ready.
A New Yorker will be able to get an abortion in the 12th or 20th week. An Oklahoman won’t be able to get one after the sixth week, not even if her pregnancy is the product of a rape.
It should not be lost on Americans that on another life-and-death question, the very same court looks poised to rush in the exact opposite direction, barring states from legislating as they deem necessary.
Is the Court really rushing in opposite directions here? I don’t think so, for one very simple reason that there is no right to an abortion to be found in the Constitution, while the right of the people to both and keep and bear arms is explicitly enumerated and protected in the Bill of Rights. The Daily News argues that “since the very start of the Republic, different states have had wide latitude to put different curbs on firearm possession,” but that ignores the fact that originally the Bill of Rights was specifically designed to prevent federal infringements on individual rights. Only after the ratification of the 14th Amendment did the idea that the Constitution should serve as a check on state and local government infringements as well emerge, and the Supreme Court declined in the 19th century to fully incorporate the Bill of Rights under the protection that the 14th Amendment offered. Instead, the court adopted a more piecemeal process known as selective incorporation; a decision that is still controversial to this day, with some legal scholars and attorneys arguing that a more inclusive incorporation process using the privileges and immunities clause of the 14th Amendment is the more constitutionally sound approach.
Abortion, on the other hand, was never seen as an individual right subjected to protection under the 14th Amendment or any other guarantees of liberty, at least not until 1973 when a majority found a general right to privacy that had been created, not by the Framers themselves, but through a string of cases (including Griswold‘s infamous right to privacy discovered in an emanation of a penumbra) that led to the Court’s conclusion that the right to an abortion is protected by the Constitution despite its absence in either the document itself or any of its amendments. Now, just because there might not be a right to an abortion found in federal law doesn’t mean that abortions automatically become legal. Even if Heller had concluded that the Second Amendment didn’t protect an individual right against federal infringement, that wouldn’t have banned gun ownership, and the Dobbs decision would simply return the issue of abortion to the states, where, to be sure, there will be both attempts to ban it outright and to allow it as broadly as possible.
All of that being said, there’s a valid reason why the Supreme Court would find that New York can’t deny the average citizen from obtaining a license to carry a concealed firearm for self-defense while also upholding the Mississippi law prohibiting abortion after 15 weeks. I completely understand why the editors of the Daily News won’t like those decisions if they come to pass, but that doesn’t make their objections legally sound.
The editors claim that “if the court in one breath creates a state-by-state abortion rights free-for-all, and in the next cuffs state gun laws by making the right to carry a concealed weapon uniform, it will beclown itself,” and I’m sure we’ll hear a lot more of the same from the left when the Dobbs and Bruen opinions are officially released. The only ones wearing clown shoes, however, are the folks like those at the New York Daily News who’ve demonstrated that they really don’t give a damn about the rule of law or the Constitution, at least if it means they won’t get their desired outcome in court.