Gunning for Involuntary Pregnancy
by Sherry F. Colb
This week, the Supreme Court held that New York State's limits on concealed carry are unconstitutional under the Second and Fourteenth Amendments. Anyone who is being honest will acknowledge that those who framed and ratified the Second and Fourteenth Amendments had no expectation that the constitutional protection would extend without limits to those carrying concealed firearms on their person. That is perhaps why a group of people who are actually knowledgeable and competent on the history submitted an amicus brief explaining that the historical evidence does not do what the six ideologues on the Court want it to do. What bothered Justice Clarence Thomas (CT) about the New York law that he and his fellow power-judges invalidated was the requirement that a person who seeks a license to carry a concealed weapon in public demonstrate that they have an elevated need for a gun they might use in self-defense. Such a requirement, according to CT, demotes the Second Amendment right to keep and bear arms to second-class status.
One could articulate many problems with the Court's decision, but I will focus on just one: hypocrisy. In Justice Samuel Alito's (SA's) opinion for the Court in Dobbs v. Jackson Women's Health Organization, SA, on behalf of himself and four other ideologues, pays exactly no attention to the self-defense rights of women who become pregnant and wish to escape that health-compromising and intense pain-inducing condition. A pregnancy increases the odds by 21% that a woman (or trans man or nonbinary person) will die. Pregnancy causes the person carrying it to become quite ill, even when it does not threaten her life. Many women experience nausea all day long for many months and end up losing important nutrients to the placenta, which siphons oxygen, nutrients, and minerals from the mother to the developing fetus. Labor itself is notoriously painful, and delivery sometimes necessitates surgery, when the baby to be delivered shows signs of being in distress. To say all of this more succinctly, a pregnancy inflicts substantial bodily harm against the person carrying it.
The right to use deadly force in self-defense frequently accrues when the target of deadly force threatens the self-defender with substantial bodily harm. If someone approached CT with a syringe filled with a virus that would make him sick for nine months and rob his body of essential nutrients until the end, when CT would have his nether regions shredded (perhaps with a little "wife stitch" added), most of us would say that CT has a right to self-defense against the person with the syringe. CT could, in other words, take out the gun that he may now carry in public in Washington, D.C., and shoot his assailant to death.
The same Supreme Court, worried so admirably about second-class entitlements, nonetheless finds, that women have essentially no interest in freeing their bodies from the substantial bodily harm of pregnancy, even when the only interest on the other side is the viewpoint that a single cell with human DNA is entitled to use the woman's body to become what it is not: a child. CT is thorough (though, as Professor Dorf's Verdict column yesterday explains, not always accurate/honest) in analyzing and considering the contours of the New York statute. SA fails to be as thorough in evaluating the Mississippi abortion law. He does not, for instance, say anything about the law's failure to include a rape or incest exception.
I suspect that CT would generously extend to the rape victim or incest victim the right to carry a hidden gun and use that gun to prevent the rape or the incest. Unfortunately, victims of serious crime are not always in a position to reach for a gun when a perpetrator attacks them, especially when--as is often the case--the perpetrator is related to the victim and places the latter in a prison of coercive control. In such cases, the only self-protection potentially available to the victim is after-the-fact: it is an abortion through which the victim takes her body back from the parasitic growth forced on her by her attacker. Self-defense is not simply a metaphor for what a woman does when she exercises her moral right (legal or not) to remove the source of harm growing inside her body. It is in fact exactly what women do, what women have always done, and what women will always do to stop the physiological and psychological assault on their bodies that an unwanted pregnancy inflicts. SA's opinion seems unwilling to acknowledge that pregnancy is any big deal at all. The very definition of second-class citizenship for half the population.
One might now feel nostalgia for the Court's earlier rulings saying that doctors must treat patients seeking an abortion like incompetents who don't know what they're doing. Recall laws that require pregnant minors to get parental permission for an abortion and laws that force women to undergo trans-vaginal ultrasounds so they can see the raw materials that they want removed from their bodies. Other laws required women to listen to nonsense before terminating, including the false narrative that holds that an abortion kills a baby or that abortion causes depression or breast cancer. And SA, author of the gender violence that is the Dobbs opinion, was quite comfortable upholding a Pennsylvania law requiring women to notify their husbands prior to terminating. Perhaps the fact that the Supreme Court overruled that unapologetic misogyny in Planned Parenthood v. Casey is what energized SA to treat forcible pregnancy as a whole lot of nothing now. He can take revenge for the slight that he experienced as a man and as a husband. I would say that he was born in the wrong decade, but he and his colleagues are rapidly turning the clock back to suit their own ideological preferences.
One would think that after a series of mass killings, CT and the others would appreciate the need for gun control of the sort that New York has had for a long time and that coincided with a substantially lower homicide rate than that found in other states without similar limits on concealed firearm licenses. But this Court is chock full of humans who feel no empathy for people on the other side of the political spectrum. To pregnant women who find their pregnancies painful and threatening to their health--much as CT might find an attacker with a syringe in his hand--this Court says "fuck you." It does not even say that the interest in removing unwanted tissue causing harm to one's body is a serious interest, one that would trigger some type of heightened scrutiny. Instead, from SA's perspective, one would think that unwanted pregnancy was no more of an imposition than the need to stop at a red light. We do not even need a compelling or substantial government interest to force women to remain pregnant against their will because the non-existent individual interest triggers only rational basis scrutiny.
To protect the supposedly absolute right to keep and bear arms that the Second Amendment (whose preamble makes clear has nothing to do with individual gun ownership), the Court says that people should be able to carry concealed weapons even if they have no special reason to believe they will confront a situation calling for lethal self-defense. And to rob women of their natural right to expel unwanted tissue from their bodies and thereby avoid the substantial bodily harm against which self-defense law ordinarily protects, the Court recognizes a gerrymandered "elected representative" authority to force women to keep and bear pregnancies. I am nonetheless hopeful that the women and men who find this position morally revolting will figure out ways to allow for safe abortions in the wake of Dobbs. And I for one will empathize with every girl or woman who manages to escape from an unwanted pregnancy notwithstanding the Bible Belt that five justices secured around her body, even as her neighbors and perhaps their children walk the streets armed and presently dangerous.