Abortion Rights, Gay Equality, Guns, the Constitution and Senator Gillibrand

Column No. 216

On January 31, 2009 a New York Times editorial (“Listening to Ms. Gillibrand) tore up the newly appointed Senator from New York. “She has 100% support from the NRA,” they roared. And as for her position on illegal immigration, well, oh my!

Well, my usual knee-jerk reaction to such a writing would be “well, we’ll get her in 2010.” But even before I saw that editorial I had received two other communications. One, from the Planned Parenthood Federation cheered New York Governor Patterson’s appointment (clumsily handled though it was). The PPFA had already given her a 100% as a Congressperson. And then I heard from the Lesbian and Gay (political) Alliance: she is in favor gay marriage! You read that right. Not just “domestic partnership” (otherwise known as second class citizenship status) for gay couples. But full marriage rights? The Times, stretching the definition of what a “liberal Democrat” is, claimed that “gay marriage is a non-starter even among liberal Democrats like Hillary Rodham Clinton and Charles Schumer,” but tossed off Sen. Gillibrand’s endorsement of it by saying words to the effect of she’s only for it because Gov. Patterson is. 

Well in my view that means that at least two of New York State’s top officials recognize what Constitutional principle we are talking about here. And that’s what I am going to be talking about in this column. For me, the Senator’s position on abortion rights and gay equal rights outweigh (yes, you read that one right) her position on gun “rights” (at least her position prior to becoming a Senator --- it seems to be changing with some rapidity) and even her position on illegal immigration, for in my view there is not major politician in the United States who has got it right. Let’s look at the Constitutional approach to the first three issues, where in my view Senator Gillibrand has got it exactly right.

First, on abortion rights. I don’t know on what the Senator bases her pro-abortion rights position, but I do think that in order to win this battle over the long run, we have to move to the broader Constitutional approach. Since the Senator presumably takes the Constitutional position on gay marriage (with which I will deal below) I presume that if she is not already there she will be ready to move to the Constitutional position on abortion rights as well. Since Roe v. Wade the supporters of abortion rights have based their support for them on the “woman’s right to choose” position. I fully agree with that. Roe v. Wade is in fact based in part on the privacy rights that are implicit in the First Amendment. The gradual development over the years of the Supreme Curt’s determination that there is a Constitutional right to privacy, and that the determination of the outcome of pregnancy up to the time of fetal viability falls under that privacy right, could also have been based on the Ninth Amendment. It says: “The enumeration in the Constitution, of certain rights, shall not be con­strued to deny or disparage others retained by the people.” 

However, since the late 1970s I have been convinced that a pro-abortion rights position based entirely on the right to privacy as it is stated in Roe v. Wade, could be subject to continual attack and would be one that put the abortion rights movement continually on the defensive, politically. My earlier policy recommendation (which has resonance in certain pro-abortion rights quarters) was based on the public health approach to the issue of abortion itself. That approach focuses on how to reduce its incidence through the application of various public health measures, an approach that is shunned by the so-called “anti-abortion” movement. Since the advent of a Christian Rightist President, I moved on to a different Constitutional position, one which I think could carry great weight in the political arena and one which Sen. Gillibrand might find herself attracted to.

Criminalization of abortion is written into the Republican Party Platform. It calls for a Constitutional Amendment that would do just that for the nation as a whole, and/or the overturning of Roe v. Wade so that states could do it on an individual basis. Not widely recognized is that the criminalization of abortion would not only affect women having abortions and any persons providing them (medical or otherwise in the case of re-criminalization). It would affect all of us, men, women, married, un-married, of child-bearing age or not. For the criminalization of abortion goes well beyond abortion to the criminalization my religious belief that life does not begin at the moment of conception but at the time of viability. For me, abortion prior to the time of viability is not murder. Because during that time the fetus cannot survive outside of the woman’s body, abortion is a choice of what to do with an aspect of female biology that is totally within the woman’s right to choose. It lies in the same category as the choice of what kind of cancer therapy to undergo or even whether she should have an inflamed appendix removed. 

We are not talking about the right to privacy here. We are talking about freedom of belief as to when life begins. Any criminalization of any belief as to when life begins, other than at the time of viability when all agree that there is “life,” is the imposition of a particular religious belief that life begins at the time of conception on those whose religious belief is otherwise. And that is a clear violation of the First Amendment: “Congress shall make no law respecting an establishment of religion, or pro­hibiting the free exercise thereof;” The criminalization of abortion would not only prohibit women from having abortions prior to the time of viability. It would also prohibit me, a man, from advocating abortion rights, that is from freely exercising my religious belief as to when life begins. (And by the way, yes, as a Secular Humanistic Jew, I too have religious beliefs. The latter are not limited to Goddists. But that is a discussion for another time.) This position, which I would put in the political arena in addition to the “woman’s right to choose based on the right to privacy” argument, places the political battle on a whole different plane. 

At the same time, under the Constitution I cannot stop any person from not having an abortion if doing so runs contrary to their religious beliefs. Nor can I require any person to work in an institution that provides abortions if doing so would violate their religious beliefs. However, if one chooses to work in such an institution, they do not have the right to attempt to deny patients their abortion rights by say, refusing to work in such situations or, within the walls of such institutions, attempting to dissuade women from having abortions. 

Now as to the gay marriage debate. Regular readers of my column in this space and on BuzzFlash as well know that my position in favor is based entirely on the Constitutional argument flowing out the language of the Fourteenth Amendment, Section 1: “nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws.” To my mind this is a much stronger argument for use in the political arena than the traditional ones of “fairness” and “justice.” I happen to believe in the latter two, but they are representing a belief. The 14th presents in the Constitution, in clear language, what the legal principle in our country is, just as in clear language does the First pertain to my belief as to when life begins. 

Marriage is a civil as well as a religious institution in our country. Each of the 50 states has an extensive series of civil laws pertaining to both it and its legal dissolution. To deny anyone access to the obligations and protections that those laws provide clearly violates the Fourteenth. The Fourteenth clearly requires no religious institution to perform marriages between persons of the same sex. That would clearly violate the provisions of the First.   At the same time, the Fourteenth clearly prevents the importation of any religious test on the application of the civil marriage laws in each state. New York’s Governor is a very smart man and a good lawyer. Senator Gillibrand is a very smart woman and a good lawyer. I would not be surprised if their position on gay marriage rests ultimately on this Constitutional principle.

Now as to “gun rights,” which I will treat very briefly here. The Second Amendment does not provide any clear guidance to this question. Its ambiguity has lead to much controversy over its meaning. The Second says: “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” To me and many others, the Second clearly applies to militias which, even in the time of the adoption of the Bill of Rights, were known as locally organized units of armed men. However, if one is going to interpret the clause “the right of the people to keep and bear arms” as applying to individuals as well as to militias, then one must apply the words “well regulated” to individuals as well as to militias. And then the road to, say, licensing and registration, is a straight one. 

Now that is not what the NRA and the gun dealers want. The NRA, the membership of which amounts to about 6% of the total number of private gun-owners in the United States, is heavily supported by the small-arms industry. They want to sell as many guns as they can. The fact that there are 35,000-plus gun deaths in the United States each year, the vast majority of them from hand guns, is not of their concern, it would seem. Sen. Gillibrand, to my knowledge, has drawn her high rating from the NRA because of her position on hunting weapons, not hand guns. It seems to me that now, representing the whole of the State of New York, as she modifies her position on a variety of issues, should she place her positions on abortion rights and gay rights firmly on the foundation of the Constitution, she could do that with the gun rights issue as well.