'Gutsy' Judicial Opinions Affirm Abortion 'As a Right Among Others,' NYT Op-Ed States

August 7, 2014 — In recent rulings blocking antiabortion-rights laws in Alabama and Mississippi, "federal judges have demonstrated a new willingness to treat the abortion right as a right among others," New York Times op-ed contributor columnist Linda Greenhouse writes.

For example, U.S. District Judge Myron Thompson in his opinion striking down Alabama's admitting privileges law compared gun rights and abortion rights to make a "profound point: that a right -- any right -- without the infrastructure and the social conditions that enable its exercise is no right at all," Greenhouse, a former Supreme Court reporter for the Times, writes. Thompson noted that both rights cannot "'be fully exercised without the assistance of someone else.'"

Similarly, a panel on the 5th U.S. Circuit Court of Appeals looked "beyond abortion jurisprudence" when it "voted 2-to-1 to invalidate Mississippi's admitting-privilege requirement, which would have shut down the state's sole abortion clinic," Greenhouse continues. The judges said that under the 14th Amendment, states cannot shift their constitutional obligations to another state or "'be excused from performance by what another state may do or fail to do.'"

"[J]udges' willingness to step outside the abortion frame and to weigh, from that broad perspective, whether the abortion right has become unduly burdened is something new and potentially of great value in the struggle to preserve women's reproductive freedom," Greenhouse writes, noting that "the right to abortion can become stronger the more tightly it is stitched into the constitutional fabric, the more that smart and gutsy judges are willing to treat it as what it is, a right like any other" (Greenhouse, New York Times, 8/6).