ABORTION, GUN CONTROL AND `RIGHTS'

                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: MONDAY, February 8, 1993                   TAG: 9302080280
SECTION: EDITORIAL                    PAGE: A-10   EDITION: METRO 
SOURCE: MATTHEW J. FRANCK
DATELINE:                                 LENGTH: Medium
ABORTION, GUN CONTROL AND `RIGHTS'
AT THE RISK of angering both left and right, I'd like to set the record straight on two subjects recently discussed in the letters column: abortion and gun control.
First, contrary to Thomas F. Tierney's letter Jan. 29, Andrea Sexton was right: In 1973, the Supreme Court did establish a woman's right to abortion at any time during pregnancy. In Roe vs. Wade, it is true that Justice Blackmun explicitly rejected an argument that a woman's right to abortion is unqualified, saying that after the point of viability for the fetus "the State . . . may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." But on the same page of the opinion, Blackmun cautions us that Roe and the companion case Doe vs. Bolton, striking down a Georgia law the same day, "of course, are to be read together."
In Doe, while citing Roe that "a pregnant woman does not have an absolute constitutional right to an abortion on her demand," Blackmun declared that there can be no restriction, at any stage in pregnancy, on the "professional judgment" of any single physician that the procedure is appropriate, for reasons that encompass "all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the well-being of the patient." In other words, the "maternal health exception" to the prohibitory power of the state after viability (in Roe) becomes (in Doe) a rule that women may have abortions on the grounds of any reason they choose that an abortionist will accept. In a remarkable judicial sleight of hand, what Blackmun seemed to give the state in one case he took away in the other. Contrary to Tierney's suggestion, the states don't "choose" to permit late-term abortions; they are powerless to prohibit them - when any claim that they are needed for "emotional" or other nonphysical reasons is enough to trigger the constitutional "right."
To those who missed this trickery at the start, it was obvious by 1986, when the court struck down a Pennsylvania law merely regulating (not prohibiting) post-viability abortions. In that case, then-Chief Justice Burger dissented, because he finally caught on that he had been wrong to say, when concurring in Roe, that "Plainly, the Court today rejects any claim that the Constitution requires abortion on demand." Tierney may be forgiven for being misled if the same can be said of the chief justice.
Now to gun control: Two letter-writers on Jan. 31 insist stridently on the "plain language" of the Second Amendment about the "right to keep and bear arms." Their aim, I take it, is to argue that Gov. Wilder's proposed handgun legislation would violate that right. But quite apart from any quibbles about the amendment's reference to a "well-regulated militia," one thing is certain: The Second Amendment did not at its origin, and does not now, apply to anything done by a state government. Like the rest of the Bill of Rights, it was intended to limit only the federal government's actions (a point made about the whole bill by Virginia's own John Marshall in 1833). If many parts of the Bill of Rights are now enforced against state governments, it is because the 20th-century Supreme Court abused the due-process clause of the 14th Amendment to "incorporate" those rights. The court has not chosen to "incorporate" the Second Amendment, but conservatives who are more interested in constitutional integrity than in results should not urge it to follow a slew of bad decisions with another.
The Virginia General Assembly is limited only by the Virginia Constitution on this subject. Advocates of the rights of gun owners will have to look there for constitutional arguments, or else stick to a policy argument against Gov. Wilder - and that's as it should be under the vestiges of federalism the Supreme Court has left us. So far, the court has invaded state power on abortion, but left it alone on guns. Not surprising from judicial liberals, but conservatives should be the last to invite more such invasions.

Matthew J. Franck is assistant professor in the political science department at Radford University.

by Archana Subramaniam by CNB