MONTGOMERY, Ala. – The U.S. Supreme Court says women in America can terminate a pregnancy and that every citizen has an individual right to own a firearm, but those rulings have done little to settle political arguments over abortion and guns.
The result is an uneven medley of state laws, which means that just how you can exercise those constitutional rights depends on where you live, and the differences often turn on whether a state is run by Democrats or Republicans.
Governors and state lawmakers continue sharpening the disparities with new abortion statutes and a range of gun laws, several of which followed the mass killing last year at a Connecticut elementary school.
Republican-controlled states typically make it harder to procure an abortion but easier to buy weapons and carry them where you please. Live in a state where Democrats run things? You’re less likely to have a waiting period before ending a pregnancy but more likely to have one before buying a gun, and you may not to be able to buy certain semi-automatic weapons at all.
Many Democratic lawmakers reacted to the December massacre at the Sandy Hook elementary school with calls for tighter gun restrictions. Many Republican legislators worked to relax gun-carrying laws and put more weapons into schools, from hiring guards to arming teachers and principals.
Constitutional law expert Randy Barnett, at Georgetown University Law Center, said the landscape demonstrates that politics is at play before and after the Supreme Court weighs in. “It’s not a matter of sophisticated constitutional law,” Barnett said, but of “hot-button wedge issues for one side of the spectrum or the other.’”
The lesson also extends to President Barack Obama’s health care overhaul and wrangling over same-sex marriage laws.
The Supreme Court ratified the main parts of the health care law, but Republicans at the state level have frustrated its implementation. On marriage, the court as early as Monday could release decisions in two cases. Most legal analysts expect declarations that allow state-by-state debates to continue, rather than an absolute ruling that mandates same-sex marriage equality everywhere.
Different practical outcomes around the country result from justices recognizing citizens’ constitutional rights to abortion and gun ownership, while also seeing room for “reasonable regulation,” Barnett said. “That gives a huge opening to political movements attempting to push the boundaries of what can be called ‘reasonable.’”
Out of 27 legislatures that Republicans control outright, at least 23 have passed measures in the past two years that NARAL Pro-Choice America, a leading abortion-rights group, calls “anti-choice.” Assigning each state an overall letter grade for their access laws, NARAL rated 22 of the GOP-run states as failing. Only Montana rated an A. Among the 18 states controlled by Democrats, 11 scored an A, and the only one to rate lower than a C was Rhode Island, which received a D plus.
On firearms, Democratic statehouses haven’t gone as far with restrictive legislation as Republicans have on abortion. But the tightest limits – and the newest – still come almost entirely in more liberal states.
Fewer than a dozen states limit the sale of semi-automatic weapons; 17 states and Washington, D.C., require background checks or records for gun sales beyond federal requirements; and 11 states have waiting periods for certain purchases. In those groups, the GOP runs just Florida and Pennsylvania, though Democrats controlled both when most of the relevant laws passed.
In Alabama this year, Republican supermajorities addressed both guns and abortion.
Gov. Robert Bentley signed a law in April mandating that the four abortion clinics in his state meet all regulations applied to ambulatory care facilities and requiring clinic physicians to secure staff privileges at local hospitals. Alabama patterned parts of the law after a 2012 Mississippi act that a federal judge has put on hold pending a constitutional challenge from Planned Parenthood, a leading provider of women’s health services, including abortion.
Alabama Republicans emphasized the abortion law’s title: “The Women’s Health and Safety Act.” But they also didn’t hide their opposition to abortion rights and eagerness to take whatever Supreme Court precedent allows. “I am strongly pro-life,” said Lt. Gov. Kay Ivey. “We can’t ban abortion — that’s a federal issue that’s been confirmed by the Supreme Court — but at the state level, we can regulate and control unsafe health practices.”
Nikema Williams, a Planned Parenthood lobbyist who doubles as an officer in the Georgia Democratic Party, counters: “This is absolutely meant to restrict women’s constitutional rights.”
Planned Parenthood makes the same argument in its Mississippi court challenge. Hospitals in Jackson denied Planned Parenthood physicians admitting privileges. That, the suit argues, would effectively close the clinic, leaving Mississippi residents without an in-state option for a procedure the Supreme Court declared legal.
Alabama also has joined about a dozen other GOP states since 2010 in shortening the window during which a woman can terminate her pregnancy. Most of the new bans take effect at 20 weeks. Arkansas opted for 12 weeks, while North Dakota Republicans said six. Federal judges have blocked both of those laws pending constitutional challenges. Court precedent generally holds that states can outlaw abortion of a fetus with a reasonable chance to survive outside the womb, now a standard of about 24 weeks.
Many Republican states since 2010 have barred either their state employee insurance plans, private insurers within their borders, or both, from covering elective abortions. Of that group, 17 GOP-run states will prohibit abortion coverage in the insurance exchanges that will open as part of President Barack Obama’s 2010 health care overhaul.
A few weeks after enacting new abortion rules, Alabama’s Bentley signed sweeping changes that loosen gun rules: Sheriffs lose most of their discretion over granting concealed weapons permits; drivers can carry loaded pistols in their cars; businesses can no longer ban employees from keeping guns in their cars on work property.
In California, meanwhile, Democrats did the reverse. They’ve expanded a pilot program that allows nurse practitioners and other non-physician medical professionals to administer certain abortions, while Gov. Jerry Brown signed more than a half-dozen new laws restricting gun use.
The gun laws expand California’s list of banned semi-automatic weapons, require background checks before ammunition purchases, limit the number of rounds in a single magazine, and boost a program to seize guns from felons and citizens whom authorities declare mentally ill.
New York Gov. Andrew Cuomo, a potential national candidate for the Democrats in 2016 and beyond, and Connecticut Gov. Dannel P. Malloy signed laws this spring to widen existing semi-automatic weapons bans.
Those actions follow several years of states, particularly in GOP territory, removing hurdles to obtaining concealed-weapons permits and scrapping prohibitions on carrying in public places.
As with abortion, proponents of the limitations insist their position conforms to Supreme Court guidelines.
“The Second Amendment gets thrown around by people who are pushing for weaker gun laws,” said San Francisco attorney Ben Van Houten of the Law Center to Prevent Gun Violence. “Common-sense regulation,” he said, “is compatible with what the court said.”
Alabama state Sen. Scott Beason in Alabama answered, “We have to take action to ensure our rights.”
Barnett, the law professor, argued that the proliferation of limits — to say nothing of the stark divisions across the country — eventually demands that the Supreme Court step in again. Yet, addressing a group of Chiacgo law students this spring, Justice Ruth Bader Ginsburg suggested jurists should leave some questions unsettled.
“The court can put its stamp of approval on the side of change,” she said, “and let change develop through the political process.”
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