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Sunday, March 09, 2014

When an Undue Burden?

Recently passed legislation in Texas is effectively closing 44 of 50 abortion clinics in that large and populous state.  Meanwhile, in my home state of North Dakota--large, but not very populous--where one abortion clinic operates in the far southeast corner of the state, parties have just settled a lawsuit regarding a state admitting privileges law when a local hospital agreed to give such privileges.  Despite the divergent outcomes in each of these two states, isn't the ultimate result the same: people who don't reside near a state's clinic(s) may be unduly burdened when attempting to exercise their constitutional right to an abortion.  

Imagine if a Texas or North Dakota law required gun stores to follow clearly unnecessary regulations that forced the closure of most of them, and another law prohibited the mailing of firearms.  No doubt people would claim a Second Amendment violation if they had to

  • travel hours to buy a gun;
  • wait for 24 hours;
  • receive information about the alternatives to buying a gun, such as installing home security systems or buying a guard dog; and
  • receive information about how guns inevitably result in the death of whole, human lives.

Would this be a Second Amendment violation (not to mention a First Amendment violation as to the last point, something courts in the abortion context have rejected)?  If so, should the anti-abortion laws in Texas and North Dakota be unconstitutional as well?  What if potential gun purchasers and women seeking an abortion, who live near their state's border with another, more libertarian, state, can travel five minutes across state lines to exercise their constitutional rights?  Would this mean that these people lack standing to sue for their state's complete prohibition on gun sales and abortions, because they can exercise their rights?  Put another way, may tiny Rhode Island prohibit gun sales and abortions but Texas may not?  

The inconsistent answer depends upon whether we engage in a formalist-legal analysis or a factual analysis.  Under a formalist-legal analysis, the answer is clearly no, because states may not prohibit that which is a federal constitutional right.  It doesn't matter whether Rhode Islanders can easily travel across state borders to exercise their rights.  Under a factual analysis, however, the answer is yes.  Someone in portions of Texas who wants to obtain an abortion will formally-legally have the right to an abortion in one of the six remaining abortion clinics, but because of distance, cost, etc. will effectively not have that right.  Thus, Texas' laws should be struck down because they create an undue burden.  Someone in Rhode Island who wants an abortion, however, can (in theory) easily travel to Connecticut or Massachusetts.  Factually, she has much less of a burden than someone in parts of Texas.

But this cannot be.  There must be a formalist-legal and factual analysis, which courts ostensibly engage in. But thus far, courts have been unwilling to recognize that geographical distance to an abortion clinic might pose an undue burden.  Perhaps if the same law were leveled at gun sales, courts would rule differently.  While choice is popular among legislatures and courts, apparently it's only the choice to possess an object that can kill.  For these institutions, perhaps being pro-choice does, in fact, mean being anti-life.

Posted by Steven R. Morrison on March 9, 2014 at 10:17 PM | Permalink


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Whatever the legal relevance of the comparison, you can certainly imagine a huge public backlash if anyone were trying to enact such strict restrictions on access to guns. But for battles that affect less powerful constituencies, it's a tougher fight. I wrote about this in a post about 4 fundamental rights that are harder to come by if you're poor: http://ow.ly/utcBK

Posted by: Rebecca Griffin | Mar 13, 2014 12:51:15 AM

Ted: "...but I'm not even sure most gun rights advocates would oppose them."

I am.

Posted by: Barry | Mar 11, 2014 2:37:31 PM

Would not the analysis also reply on the purpose of the law?

Posted by: Michael Ejercito | Mar 10, 2014 11:33:31 PM

TM is right. The analogy to gun ownership is just ignorant. Not only is there basically no legal authority holding unconstitutional any of the hypothetical anti-gun legislation/obstacles Morrison discusses (certainly not at the Supreme Court level), but I'm not even sure most gun rights advocates would oppose them.

What a bizarre bit of pro-abortion nonsense.

Posted by: Ted | Mar 10, 2014 5:50:17 PM

"there are in fact states and municipalities that effectively completely ban the ownership of guns"

I take this means certain types of guns since no state now "effectively completely ban the ownership" of guns in general. OTOH, if you have ONE clinic in your state, it basically can effectively ban abortions if that one clinic is closed or something.

Things like a training session is different though as to waiting periods, I do think that is a pretty serious concern on the gun rights side. That is an example where the different sides support different things enough times to be notable. A national background check law has also been filibustered.

Anyway, Texas and ND are cases where "undue burden" should raise red flags if the term is applied reasonably. The test is going to allow various regulations that supporters of abortion rights will find problematic. Some might be illicit on other grounds (e.g., 1A issues might arise as to certain rules or liberty concerns for something like forced ultrasounds) but some bad policy (imho) is constitutional.

But, at some point, there has to be a limit.

Posted by: Joe | Mar 10, 2014 1:27:18 PM

I generally like analogies that try and flip the political perspective. But I think the analogy would work considerably better if you drop the last comparison. In the abortion debate, the fight over whether abortions "inevitably result in the death of whole, human lives" is a fight over the "whole, human lives" part. Nobody disputes that abortions inevitably result in the destruction of a fetus, the question is whether the fetus is a "whole, human life." In the gun debate, the fight is over the "inevitably result" part. Nobody contests that people shot with guns are "whole, human lives." The fight is over whether guns "inevitably" result in death. Mashing the two together like this just invites each side to dig in and cherry pick the aspect most favorable to their prior commitments, which is exactly contrary to the point of a flip-the-perspective analogy.

Posted by: TJ | Mar 10, 2014 6:46:27 AM

This isn't my area, but I would think that a problem with a "factual analysis" in either the 2nd Amendment or abortion context is that it will mean that every law is unconstitutional with respect to some people and yet constitutional with respect to others. Every person's facts are different. Some people will always be in a position to exercise their rights; others will always be in a position where it is quite difficult. With many others, it depends on the details of their lives at that particular time. It's hard for the law to regulate that sort of thing coherently.

Posted by: Orin Kerr | Mar 10, 2014 2:51:05 AM

Not really sure I understand the comparison here...there are in fact states and municipalities that effectively completely ban the ownership of guns, even in the home. That is not a matter of simply having to travel farther to buy a gun, or having to read some literature--there is nothing that those residents can do. Also, pretty much any state that allows carrying concealed weapons requires the applicant to pass a 8-10 hour training session, and most require at least a two day waiting period for buying handguns. Most people aren't claiming that these violate the second amendment (I'm sure someone has argued that, but that is hardly represented of the pro-gun segment of the population).

In fact, large portions of the pro-gun lobby are very much in favor of reasonable limitations on gun ownership (e.g., complete bans for convicted felons, required day-long training). I think the counter-argument to your point is that if abortion is truly supposed to be rare and safe, it follows that there should be some minimum of health regulation.

Posted by: TM | Mar 9, 2014 11:01:53 PM

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