The things we bear: on guns, abortion, and substantive due process

• Author: Gabriella Kamran
• Position: UCLA School of Law, J.D., 2022
• Pages: 479-510

NOTES

THE THINGS WE BEAR: ON GUNS, ABORTION, AND

SUBSTANTIVE DUE PROCESS

GABRIELLA KAMRAN*

ABSTRACT

As the Supreme Court sits ready to curtail both abortion rights and gun con-

trol laws in its current term, this Note seeks to retheorize the nexus between the

constitutional claims to abortion and individual gun ownership. It departs from

existing theories, which largely frame the legal arguments or bases of the two

rights as parallel, by proposing a framework of constitutional interpretation

that both expands access to abortion and restricts individual access to firearms.

This framework, building on the recent work of Douglas NeJaime and Reva

Siegel, understands substantive due process—the constitutional hook through

which both rights have passed during their development—as an equality-

focused doctrine concerned with removing group-based subordination as a bar-

rier to full democratic participation. In this capacity, the Due Process Clause

requires that abortion and firearm restrictions’ constitutionality are evaluated

with reference to their implications for social inequality. To illustrate this

theory, this Note analyzes abortion restrictions—specifically, the fetal homicide

laws sometimes used to prosecute self-managed abortions—and permissive fire-

arms policies that are each justified in part by appeals to women’s empower-

ment and protection. This Note establishes that, to the contrary, the laws in

question have an inverse relationship to women’s protection. The potential re-

gime of crippled abortion access and expanded gun access is a regime under

which women are criminalized and more vulnerable to gender-based violence.

As such, regulating firearms and deregulating abortion is not only doctrinally

consistent but in fact doctrinally compelled.

INTRODUCTION .............................................. 480

I. EXISTING THEORIES OF THE RIGHTS TO ABORTION AND GUNS . . . . . . . . . 483

A. NICHOLAS JOHNSON .................................. 483

B. JUDGE HARVIE WILKINSON, III .......................... 485

C. ROBIN WEST ....................................... 487

* UCLA School of Law, J.D., 2022. I would like to thank Professor Cary Franklin for anchoring her

students amid great uncertainty about the future of reproductive rights, Cece Bobbitt for being a

fantastic co-pilot in navigating legal academia, and Claire Fieldman for sharing my appreciation of a

good essay title. This Note is dedicated to the courageous abortion providers and organizers to whom the

responsibility of safeguarding pregnant people’s autonomy now falls. © 2022, Gabriella Kamran.

479

II. TOWARD A NEW THEORY .................................. 489

A. CONSTITUTIONAL BASIS OF EACH RIGHT .................... 489

B. SUBSTANTIVE DUE PROCESS AS A DOCTRINE OF ANTI-

SUBORDINATION ..................................... 491

C. MAPPING THE DISCOURSE ON SOCIAL MARGINALIZATION ........ 494

III. CRIMINALIZING SELF-MANAGED ABORTION SUBORDINATES WOMEN . . . . 498

IV. PERMISSIVE GUN LAWS SUBORDINATE WOMEN ................... 503

A. THE POWDER KEG OF GENDER-BASED VIOLENCE ............. 504

B. WHO IS ALLOWED TO STAND THEIR GROUND? FORCE AS A WHITE

MALE PREROGATIVE .................................. 506

CONCLUSION ............................................... 509

INTRODUCTION

During oral arguments for Whole Woman’s Health v. Jackson

1

—the lawsuit in

which petitioners sought to invalidate Texas’s radical attempt to ban abortion af-

ter six weeks

2

Maggie Astor, Here’s What the Texas Abortion Law Says, N.Y. TIMES (Sep. 9, 2021), https://

www.nytimes.com/article/abortion-law-texas.html. On December 10, 2021, the Supreme Court settled

the major procedural questions the law raised by allowing abortion providers to proceed with their

lawsuit against state licensing officials but not state court judges or clerks. Ian Millhiser, Don’t Be

Fooled: The Supreme Court’s Texas Abortion Decision Is a Big Defeat for Roe v. Wade, VOX (Dec. 10,

2021), https://www.vox.com/2021/12/10/22827899/supreme-court-texas-abortion-law-sb8-decision-

whole-womens-health.

—Justice Kavanaugh asked essentially: What about gun rights?

3

Citing an amicus brief filed by the Firearms Policy Coalition in the petitioners’

favor, Justice Kavanaugh anticipated that Texas’s innovative end-run around the

Constitution could be replicated and weaponized by gun-control proponents

against the Second Amendment right to bear arms.

4

Transcript of Oral Argument at 73, Dobbs v. Jackson Women’s Health Org., (2021) (No. 19-

1392). On December 11, 2021, Gavin Newsom, Governor of California, called for a law deputizing

California citizens to file lawsuits against purveyors of restricted “ghost guns and assault weapons.” See

Shawn Hubler, Newsom Calls for Gun Legislation Modeled on the Texas Abortion Law, N.Y. TIMES

(Dec. 12, 2021), https://www.nytimes.com/2021/12/12/us/politics/newsom-texas-abortion-law-guns.

html.

In fact, the two issues are

rhetorically contiguous—cultural controversy and highly contested legal lineages

have positioned abortion and gun rights as two sides of a politically charged

coin.

5

Among the more popular slogans on Women’s March protest signs in 2021: “If my uterus shot

bullets, it would be less regulated.” Alexa Lisitza, Women’s March 2021 Abortion Signs, BUZZFEED

(Oct. 4, 2021), https://www.buzzfeed.com/alexalisitza/womens-march-2021-abortion-signs.

Because advocates of one right are typically hostile to the other,

6

The coalition between the Firearms Policy Coalition and Whole Women’s Health, an abortion

provider, is an anomaly. See More Support for Gun Rights, Gay Marriage than in 2008 or 2004, PEW

the two

1. Whole Woman’s Health v. Jackson, 142 S. Ct. 522 (2021).

2.

3. Transcript of Oral Argument at 72, Whole Woman’s Health v. Jackson, 142 S. Ct. 522 (2021) (No.

21–463) (“Can I ask you about the implications of your position for other constitutional rights, the

amicus brief of the Firearms Policy Coalition says ‘this will easily become the model for suppression of

other constitutional rights with Second Amendment rights being the most likely targets.’”)

4.

5.

6.

480 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 23:479

RSCH. CTR. (Apr. 25, 2012), https://www.pewresearch.org/politics/2012/04/25/more-support-for-gun-

rights-gay-marriage-than-in-2008-or-2004/.

rights have emerged as twin juridical objectives caught in an intractable lockstep—

expanding one risks the entrenchment of the other.

The Supreme Court’s current term has highlighted the proximity between gun

and abortion rights. The same week that the Supreme Court heard arguments for

Whole Woman’s Health, it also heard oral arguments for New York State Rifle

and Pistol Association v. Bruen,

7

a gun rights case that will clarify and likely cur-

tail the permissible scope of gun control.

8

Amy Howe, Majority of Court Appears Dubious of New York Gun-Control Law, but Justices Mull

Narrow Ruling, SCOTUSBLOG (Nov. 3, 2021), https://www.scotusblog.com/2021/11/majority-of-court-

appears-dubious-of-new-york-gun-control-law-but-justices-mull-narrow-ruling/.

Concurrently, a leaked draft of the

Court’s potential holding in Dobbs v. Jackson Women’s Health Organization

9

indicates a strong possibility that the Court will overrule Roe v. Wade by the end

of its 2021-2022 term.

10

See, e.g., Josh Gerstein & Alexander Ward, Supreme Court Has Voted to Overturn Abortion

Rights, Draft Opinion Shows, POLITICO (May 2, 2022), https://www.politico.com/news/2022/05/02/

supreme-court-abortion-draft-opinion-00029473; Amy Davidson Sorkin, The Supreme Court Looks

Ready to Overturn Roe, NEW YORKER (Dec. 2, 2021), https://www.newyorker.com/news/daily-

comment/the-supreme-court-looks-ready-to-overturn-roe; Ian Millhiser, It Sure Sounds Like Roe v.

Wade is Doomed, VOX (Dec. 1, 2021), https://www.vox.com/2021/12/1/22811837/supreme-court-roe-

wade-abortion-doomed-jackson-womens-health-dobbs-barrett-kavanaugh-roberts; Amy Howe, Majority of

Court Appears Poised to Roll Back Abortion Rights, SCOTUSBLOG (Dec. 1, 2021), https://www.scotusblog.

com/2021/12/majority-of-court-appears-poised-to-uphold-mississippis-ban-on-most-abortions-after-15-weeks/.

At the same time, the implicit game of checkmate that

binds the two rights is breaking down.

11

See Linda Greenhouse, Do Gun Rights Depend on Abortion Rights? That’s Now Up to the

Supreme Court, N.Y. TIMES, (Nov. 4, 2021), https://www.nytimes.com/2021/11/04/opinion/abortion-

guns-supreme-court.html.

Though judges once recognized the sym-

metry between the individual interests in abortion access and gun ownership,

12

the Supreme Court seems poised to drastically retrench the former and expand

the latter in the same term. Most major works of scholarship focused on the inter-

section of the two liberties observe that doctrinal consistency implies that the

rights must rise and fall together.

13

This idea is ripe for revisiting.

This Note seeks to retheorize the nexus between the constitutional claims to

abortion and individual gun ownership. It departs from existing theories, which

7. N.Y. State Rifle & Pistol Ass’n v. Bruen, No. 20-843 (argued Nov. 3, 2021).

8.

9. Dobbs v. Jackson Women’s Health Org., No. 19-1392 (argued Dec. 1, 2021). Jackson Women’s

Health Organization drew an explicit parallel between abortion and gun rights in its brief to the Court. In

imploring the Court to heed stare decisis despite Mississippi’s attempt to malign the Roe decision,

Jackson Women’s Health argued that the seminal Supreme Court decisions protecting abortion and gun

rights are similarly contested and criticized as recognizing new rights on inadequate historical

foundations. Brief for Respondent at 3-4, 20, Dobbs (No. 19-1392).

10.

11.

12. See, e.g., Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330, 1379 (M.D. Ala. 2014)

(striking down a state law requiring doctors who perform abortions to have admitting privileges in local

hospitals because, inter alia, the court was “struck by a parallel in some respects between the right of

women to decide to terminate a pregnancy and the right of the individual to keep and bear firearms,

including handguns, in her home for the purposes of self-defense” and reasoned that a similarly severe

restriction on firearm vendors would be constitutionally impermissible).

13. See discussion infra Part I.

2022] THE THINGS WE BEAR 481