If it’s remotely possible, consider putting aside your fears of what might be and instead consider what is. The right to an abortion is one of the most feared losses on the left, it being of deep concern that a conservative block on the Supreme Court might reverse Roe v. Wade or, more likely, approve limits on abortions that will put those rights on the slippery slope of obliteration.
In the meantime, Virginia Representative Kathy Tang offered a bill to expand the right to an abortion through the moment of birth, with conditions that included a physician’s certification that birth would “likely” threaten the mental or physical health of the mother. The bill failed, but not before it evoked outrage and took a toll on Governor Ralph Northam, whose words confusing suggested that the right might be availabe after birth as well. It’s not what he meant, even if it’s kind of what he said.
In the midst of outrage and confusion, Julian Sanchez brought a dose of sanity to the debate:
I should probably know better than to wade into Abortion Twitter, but… on what planet do people imagine a woman carries a viable, healthy fetus to term & then decides to abort on the delivery table? Does anyone seriously believe this is a scenario we have to worry about?
Obviously not. No doubt 99.99% of the time, this would be the case. But experience tells us there will be that .01% of the time when the confluence of crazy aligns and the dreaded thing happens. Don’t ask how. We never seem capable of imagining how things go horribly wrong, but we know they do and will.
The question is whether that outlier matters. After all, the right to an abortion exists, not because it’s mentioned in the Constitution, directly or obliquely, but because the Supreme Court adopted it, emanations and penumbras. It is a constitutional adoption, a right that is nowhere to be found in the words of the Constitution, not even if the inferences to be drawn from those words, but by the Supreme Court saying so, adopting it into the Constitution and the constellation of rights.
In constrast, there’s a right that is mentioned in the text of the Constitution specifically. What exactly it may be has been hotly contested and changed dramatically over the more than two centuries of the Constitution’s existence, but it’s definitely in there. And the Supreme Court says it’s protects a fundamental individual right to keep and bear arms.
After this holding, and its extention to the states, the Supreme Court went dark on the Second Amendment, leaving circuit courts of appeals to uphold local restrictions and refusing to uphold its Heller and McDonald rulings by denying certiorari. The Second Circuit was one of the most strident circuits in relying on Justice Scalia’s “errant paragraph” to ignore the core ruling, leaving intact New York’s extreme limitations on gun possession and use.
Few saw the point of challenging these regulations, as there was no chance of prevailing in the circuit and even less chance of getting the Supreme Court to overturn an adverse ruling. Why waste time and money for not only a certain loss, but a conclusive bad holding that wouldn’t be overturned? As Justice Thomas said in his dissent to the denial of cert in Silvester v. Becerra:
The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights. The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message.
The Supremes have now taken a case from New York, raising the spector that it has welcomed this constitutional orphan back into the bosom of the Court.
Last week the court agreed to hear a case from New York City that would, for the first time in a decade, allow the justices to decide whether the right to bear arms is, as Justice Thomas complained last year, a “constitutional orphan.”
On the surface, the case, which the justices will hear in the session that begins in October, seems inconsequential. Three New Yorkers, backed by gun rights groups, are challenging an administrative rule that permits people with a license for a gun on a particular premise, like the owner’s home, to take it only to one of the seven shooting ranges in the city. That means no trips to shooting ranges or vacation homes upstate or across the Hudson to New Jersey.
To possess a gun permit in New York City is to be purer than Caesar’s wife. It’s not that there is any reasonable fear that these three New Yorkers will hold up a liquor store on the way to the shooting range, but that the Supreme Court has, for the first time in a decade, taken on a case that may affirm that a right they’ve held to be fundamental based on its interpretation of the words expressed in the Second Amendment is, indeed, a fundamental right.
Could the Supreme Court’s conservative bloc use the case to declare that a gun owner has a constitutional right to carry a handgun anywhere outside the home, sensible limits be damned? Chief Justice John Roberts Jr. has, at times, played the role of centrist, and he may turn out to be a moderating force in keeping that from happening.
On the one hand, there is a right, which we know to be a right because the Supreme Court has said so, that appears nowhere in the Constitution, but a right for which no “sensible” restrictions are tolerable. Not even a restriction that would preclude abortion in the first trimester except for the physical survival of the mother.
On the other hand, there is a right, whcih we know to be a right because it’s expressly stated in the Second Amendment, plus the SupremeCourt has said so, for which almost no restriction isn’t “sensible.”
We have constitutional orphans and constitutional adoptions, and they do not recieve the same love from the Court, and the progressive public. Do the words of the Constitution mean something, anything? Do the holdings of the Supreme Court mean something, anything? Or are we so mired in hypocrisy that the arguments spin in wildly opposite directions where it’s all reduced to excuses to bolster our policy preferences under the guise of constitutional adherence?
What parent loves one child more than another? What parent loves her natural child more than her adopted child? What parent won’t welcome her child back into the bosom of the Constitution?
Constitutional Orphans and Constitutional Adoptions curated from Simple Justice
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