This Monday, the US Supreme Court struck down several Texas laws that regulated how abortion is provided in the lone star state. The 5-3 decision is undoubtedly the most significant abortion ruling from the high Court since the 1992 case Casey v. Planned Parenthood where it clarified the Roe v Wade decision.
The Court decided that Texas laws that were aimed at making abortion safer were an undue burden on women exercising their constitutional right to the procedure. The laws included requirements that doctors have hospital admitting privileges which proponents claimed would make abortion clinics be subject to the same rules and regulations as outpatient surgery centers.
Without wading too far into the details of the case or the future of abortion in America, I want to discuss part of the opinion that no one is talking about. Justice Breyer’s opinion reads like not just a rebuke of abortion regulations, but also as a repudiation of government regulatory schemes altogether.
On page 27 of Breyer’s opinion, he discusses the argument made by the State of Texas that their regulatory scheme would shut down unsafe abortion clinics. The argument centers around a Pennsylvania case about an abortionist named Kermit Gosnell, who was convicted of manslaughter and first-degree murder. Gosnell ran a clinic and did not have admitting privileges – something which is legal in Pennsylvania – but his clinic also violated numerous existing Pennsylvania laws regarding sanitation and safety.
Gosnell’s behavior was terribly wrong.
But there is no reason to believe that an extra layer
of regulation would have affected that behavior. Determined
wrongdoers, already ignoring existing statutes
and safety measures, are unlikely to be convinced to
adopt safe practices by a new overlay of regulations. – Justice Stephen Breyer’s majority opinion in Whole Woman’s Health v. Hellerstedt
Breyer, a Clinton appointee, is making the argument that criminals do not follow laws. He seems to understand that more laws about the same issue do not make us any safer from criminals who will simply ignore them, a point those of us who support gun rights make often. Obviously, Breyer is himself a hypocrite on the issue seeing that he regularly votes to restrict other constitutional rights, but his opinion does give us a good opportunity to contrast the different ways our government treats regulations on our rights.
In fact, the parallels between gun rights and abortion rights could not be more clear, but the left always ignores one and goes out of their way to protect the other. Individual gun ownership and the right to have an abortion have been interpreted by the Supreme Court to be constitutional rights. The right to bear arms is actually significantly more clear as it is explicitly defined and not the product of the catch all Ninth Amendment. Liberals treat restrictions on abortion as threats to our democracy, but push extremely restrictive gun control as if it is no big deal.
Democrats all of a sudden turn into civil libertarians when restrictions on their favored rights are enacted. The Constitution they continually trash is held up high when they can use it to further their agenda and win over voters.
The court is right to affirm that constitutional rights must be protected at all costs and with very few exceptions. I just wish it felt that way about the rights protected by the Second Amendment and the Fourth Amendment too. I also understand that those on the right usually believe that their is no constitutional right to abortion, and if you are looking for a good piece about that you can find one here. However, regardless of what you believe, you have to be consistent. The Constitution has no sacred cows.