When United States District Judge Myron H. Thompson ruled last fall that the Alabama Women’s Health and Safety Act is unconstitutional, Planned Parenthood Southeast, Inc. v. Strange, 33 F.Supp.3d 1330 (M.D. Ala. 2014), he concluded his opinion with an analogy and a hypothetical. A woman’s “right to abortion,” he thought, is analogous to the right to bear arms. He wrote:
In deciding this case, 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. At its core, each protected right is held by the individual: the right to decide to have an abortion and the right to have and use firearms for self-defense. However, neither right can be fully exercised without the assistance of someone else. The right to abortion cannot be exercised without a medical professional, and the right to keep and bear arms means little if there is no one from whom to acquire the handgun or ammunition. In the context of both rights, the Supreme Court recognizes that some regulation of the protected activity is appropriate, but that other regulation may tread too heavily on the right. Finally, as to each right, there are many who believe, as a matter of law, that the Supreme Court’s reasoning in articulating the right was incorrect and who also believe, as a matter of strong moral or ethical convictions, that the activity deserves no constitutional protection.
With this parallelism in mind, the court poses the hypothetical that suppose, for the public weal, the federal or state government were to implement a new restriction on who may sell firearms and ammunition and on the procedure they must employ in selling such goods and that, further, only two vendors in the State of Alabama were capable of complying with the restriction: one in Huntsville and one in Tuscaloosa. The defenders of this law would be called upon to do a heck of a lot of explaining—and rightly so in the face of an effect so severe. Similarly, in this case, so long as the Supreme Court continues to recognize a constitutional right to choose to terminate a pregnancy, any regulation that would, in effect, restrict the exercise of that right to only Huntsville and Tuscaloosa should be subject to the same skepticism.
Strange, 33 F.Supp.3d at 1379-80 (citations to U.S. Supreme Court precedents omitted.)
Judge Thompson’s use of analogical reasoning is not surprising. Lawyers and judges often reason by analogy or comparison among cases, doctrines, principles, and rights, and analogical reasoning is a basic method of human reasoning that can yield great insight and assist with problem-solving. But, analogical arguments should be carefully evaluated to assess the strength of any analogy. Careful consideration of both similarities and differences between the two things being compared may show that the analogy is strong because similarities outweigh differences or weak because differences outweigh similarities.
In his ruling in the Strange case, Judge Thompson discussed only similarities between the right to abortion and gun rights. By failing to consider differences between these rights, he failed to glean critical insight from his analogy, and he failed to discover its weakness. The evaluation that follows here will explore the analogy and consider both similarities and differences between the rights he compared. Before evaluating the analogy, however, it is helpful to begin with some background information regarding the Alabama act that was challenged in the Strange case.
The Alabama Legislation
In the spring of 2013, the Alabama legislature enacted the Women’s Health and Safety Act, establishing health and safety standards for abortion and reproductive health centers in Alabama. Lawmakers in Alabama passed this legislation after the horrors of the Philadelphia abortion clinic operated by Kermit B. Gosnell, M.D., came to the public’s attention in 2011 and as his criminal case went to trial in 2013. The Gosnell case revealed serious deficiencies in the government’s regulation of abortion doctors and clinics and the serious harm being done to women and babies in those facilities.
The Alabama law requires facilities to comply with several safety standards, physicians to be present and personally participate in abortion procedures, and providers to comply with specific nursing care and personal examination requirements related to the prescribing of abortion-inducing drugs. In addition to mandating that patients be provided the names and the telephone numbers of the physicians who will provide care in the event of complications, the act requires each physician performing abortions to have staff privileges at an acute care hospital within the same metropolitan statistical area as the abortion-providing facility to perform dilation and curettage, laparotomy procedures, hysterectomy, and other procedures reasonably necessary to treat abortion-related complications. (The author has elsewhere written about this Act.)
Several abortion providers challenged the staff-privileges requirement of the Alabama legislation, and Judge Thompson held that this requirement violated the substantive due process rights of women seeking abortions. He found that three of the five abortion clinics in Alabama would have to be closed because they are unable to comply with this health and safety requirement, leaving the only clinics in Huntsville and Tuscaloosa. The evidence presented to the court showed that the abortion clinics employed out of state physicians, such as one semi-retired physician who flies to Alabama from her permanent home in Nigeria to perform abortions and another physician who has her primary practice in Chicago and privileges at a hospital there and is unlikely to move to Alabama in the foreseeable future.
The Highlighted Similarities
In his lengthy opinion, Judge Thompson highlighted the following similarities between the right to abortion and the right to keep and bear arms for self-defense:
(1) Both are individual rights.
(2) Both are rights recognized by the United States Supreme Court.
(3) To exercise the rights fully, both require the assistance or participation of third parties—medical professionals for the right to abortion, and firearm and ammunition sellers for the right to bear arms.
(4) Neither right is absolute, and some (but not too much) government regulation is permissible.
(5) The Supreme Court’s recognition of these rights and its understanding of the scope of the rights are disputed on legal and moral grounds.
Judge Thompson did not note another similarity: under Supreme Court precedent, the rights are negative, not positive rights. Consequently, the rights entail freedom or protection from government action or interference, not an entitlement to government action or support.
It is important to note that similarities (1), (2), and (4) are of minor significance because many rights (e.g., religion and speech in the First Amendment, unreasonable searches and seizures in the Fourth Amendment, the privilege against self-incrimination and the taking of private property in the Fifth Amendment, etc.) bear these similarities. In his opinion, Judge Thompson did not proceed from a discussion of these similarities to a discussion of differences between these rights. Indeed, his opinion is silent about differences although it appears from his opinion that he recognized some weakness in his analogical argument because he observed that the rights were “parallel in some respects.”
The Hypothetical Gun Control Law
After highlighting some similarities between the right to abortion and the right to bear arms, Judge Thompson posed a hypothetical in an effort to drive his point home. His hypothetical included two components and one outcome or effect: (a) a new law restricted who may sell firearms and ammunition; (b) this new law regulated the procedure sellers may use when selling the goods; and (c) only two vendors could comply with the new law. His point was clear—such a severe effect should be greeted with skepticism, and the proponents would have to justify the restriction.
Judge Thompson’s hypothetical is not, however, squarely “on point” with the staff-privileges requirement, which was the only provision of the Alabama legislation challenged in the case pending before him. Points (a) and (c) may have some parallels with the staff-privileges requirement (although, unlike with the Alabama legislation and the staff-privileges requirement, Judge Thompson did not specify the manner in which the hypothetical gun-control law would restrict who may sell or the rationale for the restriction), but point (b) is an additional fact in his hypothetical that goes beyond the staff-privileges requirement, which was the only statutory provision challenged in the case before him. The staff-privileges requirement does not regulate the procedure doctors may use when performing abortions. Because Judge Thompson’s hypothetical includes an additional fact that was not at issue in the case challenging the staff-privileges requirement, his hypothetical is not “on point.” Additionally, contrary to his characterization, no provision or regulation of the Alabama law restricts the exercise of the right to abortion to only Huntsville and Tuscaloosa—those two clinics are apparently the only ones that comply with the health and safety regulation because the other clinics employ non-compliant abortion doctors.
The Overlooked Differences
Judge Thompson’s ruling would have benefitted from a more careful analysis of his proposed analogy. An analysis of differences would have shown the weakness of his analogy and diminished the force of the similarities he found convincing. Additionally, had he evaluated differences between the right to abortion and the right to bear arms, he would have obtained clearer insight into the sound reasons behind the staff-privileges requirement.
Several important differences between the rights are missing from his analysis:
(1) The Difference Between the Physician-Patient Relationship and the Commercial Seller-Buyer Relationship. The right to abortion is exercised in the context of a physician-patient relationship, while the right to purchase firearms and ammunition is exercised in the context of a commercial relationship between a merchant and a consumer. These relationships differ in their fundamental nature, and each has qualitatively different duties.
(a) The Fiduciary Nature of the Physician-Patient Relationship. In American law, the physician-patient relationship is a fiduciary or confidential relationship to which heightened duties are attached. Accordingly, the abortion doctor owes duties of loyalty, good faith, trust, special confidence, and candor, and she must avoid conflicts of interest and act with utmost care for the abortion patient’s benefit. By contrast, the relationship between the gun-selling merchant and the gun-buying customer does not have the same fiduciary quality.
(b) The Power of the Physician and the Vulnerability of the Patient. The law imposes fiduciary duties on physicians to protect the interests of their vulnerable patients. Patients seek the services of physicians when they are in need of professional care, and they call upon physicians to use their superior knowledge, training, skills, and best professional judgment to treat and heal. Additionally, in the physician-patient relationship, physicians possess greater power than their vulnerable patients, and the heightened duties imposed by the law help to ensure that such power is not abused. Such vulnerabilities and power imbalance are not inherent in the relationship between gun-sellers and gun-buyers.
(c) The Physician’s Duty Not to Abandon Her Patient and the Continuity of Care. Under American law, physician-patient relationships and merchant-buyer relationships terminate at different points. Once a physician-patient relationship is formed, the relationship and the attendant duties persist until the patient no longer needs care for the condition that brought the patient to the physician for care. Accordingly, the physician’s duties extend for the “episode of illness,” and the physician cannot abandon her patient and can withdraw only when specific requirements are satisfied. Thus, in the physician-patient relationship, continuity of care is necessary to safeguard the patient’s health, avoid complications, and prevent additional harm to the patient. The relationship between the gun-seller and the gun-buyer does not persist for a comparable “episode”; rather, the relationship is transactional and does not include comparable duties associated with abandonment, withdrawal, and continuity of care.
(2) The Difference Between the Professional Status of the Physician and the Commercial Activity of the Merchant. The abortion patient seeks the services of a physician who is a member of a learned profession and who makes judgments in caring for her patients based upon her knowledge and experience and free of outside influence. The gun-seller is not a member of a profession, and the gun-buyer seeks a consumer good from a merchant who participates in a trade and engages in the buying and selling of goods for money.
(a) The Regulation of the Medical Profession. Under American law, to engage in the practice of medicine a person must obtain a license, and it is a criminal offense to practice medicine without a license. To obtain a medical license, the applicant must graduate from an approved medical school, complete at least one year of an approved graduate medical education program, and pass a medical licensing examination. The applicant for a medical license must also demonstrate good moral character. The medical profession regulates itself and its members by setting ethical and professional standards, determining who enters the profession, regulating how physicians conduct themselves, and disciplining those who fail to comply with professional standards. No comparable profession of gun merchants exists.
(b) The Credentialing and Privileges Processes and Patient Safety. Credentialing is a process through which a hospital medical staff determines whether a physician is qualified to become a member of the medical staff and obtain privileges based upon medical school education, residency training, background check, etc. In the privileges process, the hospital governing board, upon the advice or recommendation of the medical staff, determines what the physician may do at the hospital and grants authority to provide patient care at the hospital by conferring variously denominated privileges, such as admitting, courtesy, clinical, surgical, and staff privileges. These processes are peer-review mechanisms through which members of the medical profession determine the qualifications and competence of physicians, ensure the quality of patient care, and protect patient health and safety. Staff privileges allow continuity of care by giving physicians and their patients ready access to hospitals in the event care is needed.
(3) The Differences Between the Provision of Surgical Procedures and Drugs and the Commercial Transaction. When a patient exercises her right to abortion, the abortion doctor engages in activities that pose inherent risk to the patient and her baby—she administers anesthesia and performs an invasive surgical procedure, or she administers an abortion-inducing drug. States reasonably restrict these activities to those individuals with the requisite authorization. By contrast, when a consumer purchases a gun or ammunition, the merchant exchanges a consumer good for money in an arm’s-length transaction that involves no invasive surgery, no anesthesia, and no drugs.
(4) The Difference Between the Unenumerated “Right” to Abortion and the Expressly Enumerated Right to Bear Arms. The right to abortion is not expressly recognized in any constitutional text. Rather, the United States Supreme Court in Roe v. Wade found the right to abortion included in the right of privacy, which the Court thought could be found in the Fourteenth Amendment’s concept of personal liberty, the Ninth Amendment’s reservation of rights to the people, or perhaps the First Amendment, or the Fourth and Fifth Amendments, or the “penumbras” of the federal Bill of Rights. By contrast, the right to bear arms is a right expressly recognized in the Second Amendment to the United States Constitution and most state constitutions.
(5) The Difference Between the Destruction of a Living Human Organism and the Exchange of a Consumer Good. When the right to abortion is exercised, a physician destroys a living human organism. By contrast, when the right to purchase a firearm or ammunition is exercised, a merchant sells and transfers title to an inanimate object or inanimate objects from the seller to the buyer.
(6) The Differences Between the Classes of Right-Holders. The right to abortion may be exercised by women, but the right to bear arms may be exercised by women and men alike.
These differences between the right to abortion and the right to bear arms demonstrate that the analogy is weak. On balance, the differences are substantial and more profound than the similarities highlighted by Judge Thompson.
This evaluation of differences between these rights brings into clear focus the reasonableness of the Alabama legislature’s action. The act was passed to provide comprehensive standards of medical care for abortion and reproductive health centers, and the staff-privileges requirement helps to ensure that abortion patients in Alabama are served by competent, qualified physicians who will faithfully fulfill the full range of duties they owe their patients. The staff-privileges requirement thus protects abortion patients by ensuring that abortion doctors performing surgical procedures, administering anesthesia, and prescribing drugs in Alabama possess the requisite qualifications and competence. Like patients in other settings, abortion patients are vulnerable. Like physicians and institutional providers in other settings, abortion doctors and abortion clinics possess superior knowledge and power, which they are capable of abusing. If the Gosnell case demonstrates anything, it is that abortion doctors and clinics cannot be trusted to police themselves, that abortion providers will depart from professional standards and duties (and often have incentives to do so), and that government regulation is necessary to protect patient health and safety. (See “Alabama’s Law Setting Standards of Medical Care for Abortion Providers Challenged“)
The United States Court of Appeals for the Eleventh Circuit will eventually review Judge Thompson’s ruling. The judges on that court may not find the analogy between the right to abortion and the right to bear arms as persuasive as Judge Thompson. Perhaps the Eleventh Circuit and other courts will find that important differences between the two rights demonstrate that the analogy is weak.
In the meantime, those of us who are concerned about the health and safety of women and who defend the life and dignity of the unborn should evaluate and be prepared to demonstrate why the analogy (while perhaps creative) is weak and unpersuasive. There are undoubtedly additional differences between the rights beyond those identified here. In any event, this is not merely an academic or mental exercise. Dr. Gosnell’s case has shown some serious deficiencies in governmental regulation of abortion doctors and clinics and the harm being done to women and babies in those facilities. Furthermore, abortion-rights advocates will likely employ this analogy in the future because it has received favorable media attention and because one of the principal proponents of abortion rights (Planned Parenthood) is a party to this federal litigation in Alabama. It is important that we be prepared to respond to this analogy.
 In Roe v. Wade, 410 U.S. 113 (1973), the United States Supreme Court found in the right of personal privacy a “right” to abortion (or a “right” to decide to terminate a pregnancy). The legal and factual foundations of this Court-created right have been unsound from the beginning, and a recently published study shows just how unsound the Court’s decision was both legally and factually. See Clarke D. Forsythe, Abuse of Discretion: The Inside Story of Roe v. Wade (2013). In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), members of the Court refashioned this right as a liberty interest and thereby attempted to establish it on a surer foundation. For style reasons, the essay will use the term “right” without quotation marks although the author (like Chief Justice William Rehnquist, who dissented in both Roe and Casey) believes the “right” was completely unknown to the drafters of the Fourteenth Amendment, was invented by the Court, and continues to lack legitimacy.
 A penumbra is the shaded space or space of partial illumination between the perfect shadow on all sides and the full light.