This week, Kentucky will defend state regulations designed to make it more difficult to open and operate abortion clinics. Known as "TRAP laws," these regulations target abortion providers with medically unnecessary hurdles to operation. Two Louisville abortion providers, Planned Parenthood and the private EMW Women's Surgical Center, are suing, arguing that the state is using unconstitutional regulations to either keep them out of business (PP) or shut them down (EMW).

The key regulation at issue in Kentucky is one that requires abortion clinics to acquire "written agreements" with a "licensed acute-care hospital" and a "local ambulance service" to care for clinic patients who may need emergency treatment beyond what the clinic itself can provide. The regulation does not specify what content is required in these written agreements, nor does it specify how close a hospital must be to the clinic for an agreement to be valid.

There are several problems with this regulation. First, hospitals and ambulance services are required by law to treat and transport emergency patients no matter where they come from. If a patient at the downtown Louisville location of EMW were to face a serious emergency, the clinic need only call 911 and a Louisville Metro EMS ambulance would arrive to take her to the nearest hospital, which is just a few blocks away. This would happen automatically, no "written agreements" necessary. So the written agreement regulation is medically unnecessary.

Second, if a hospital and ambulance service would be available anyway, what's the problem with getting a written agreement that confirms this? It should be simple, right? Well, Governor Matt Bevin has allegedly used his power to pressure Louisville hospitals not to enter into written agreements with abortion providers. For example, Planned Parenthood and the University of Louisville Hospital claim that that hospital rescinded a written agreement with the PP clinic after Bevin and his underlings directly threatened the hospital's various funding sources. PP then reached out to hospitals in southern Indiana (less than a mile away, just across the Ohio River) and in Lexington (50 minutes away) but the state has rejected those as too remote (even though the regulation specifies no geographical limits).

So PP is left without the paperwork necessary to get a license. And now EMW is trying to renew its license and is facing the same problems.

Regulations like these are specifically designed to interfere with a woman's right and access to abortion. Similar regs have been struck down by the U.S. Supreme Court because they create an "undue burden" on the autonomy of women without providing any legitimate medical benefit. Just last year, the Court struck down Texas regulations (and similar ones in other states) that required abortion providers to have hospital admitting privileges and required the clinics to be equipped as if they are "ambulatory surgical centers," even though they are not.

All of these schemes are part of a desperate flanking effort by conservative politicians to ban abortion without actually banning it, which they cannot do outright under current Supreme Court case law dating all the way back to 1974's Roe v. Wade decision.

Speaking of Roe, immediately after that decision, Kentucky passed new laws allowing and regulating abortion, but very begrudgingly. It set strict rules on who could perform abortions, where they could perform them, and what hoops women had to jump through to get them.

These laws are of varying coherence. One of the more head-scratching examples comes from KRS 311.710, the "Legislative Findings" section, first passed just after Roe. Subsection 1 reads:

How, exactly, the Commonwealth can ensure that an unborn child continues its "life after its abortion" is not explained in the law. Nor is it explained in Nebraska law, which passed a nearly identical statute around the same time. The Nebraska legislature uses stronger language to denounce abortion than Kentucky does, and it identifies Roe v. Wade by the date it was decided. Kentucky is more subtle, but does conclude the statute with a promise - if the Supreme Court changes its mind about this silly "woman's right to privacy" thing, you can bet the Commonwealth will ban abortion again.

It is the present intention of the General Assembly to protect the valid and compelling interests of the Commonwealth and its inhabitants without unduly burdening a woman's constitutional privacy rights as delineated by the courts. If, however, the United States Constitution is amended or relevant judicial decisions are reversed or modified, the declared policy of this Commonwealth to recognize and to protect the lives of all human beings regardless of their degree of biological development shall be fully restored.

So far that hasn't happened (if not without trying), and, presuming that the federal courts maintain their current position on TRAP schemes, Kentucky's attempted end run around Roe and its progeny via unnecessary and burdensome regulations will soon be eliminated, frustrating once again the "declared policy" of the Commonwealth.

The biggest hurdle to comprehensive restrictions on private gun ownership is the Second Amendment. It has been interpreted to protect an individual right to self defense, and local bans on handguns have been struck down under that interpretation. Other gun limitations have survived (so far), but at a minimum, the Second Amendment preserves a base level of individual armament.

But what would happen if both the Second Amendment and its state constitution counterparts were repealed? Would the government, either federal or state, be able to fully ban private gun ownership? The answer could very well be no for another reason than the one I discussed in my last post.

The Bill of Rights identifies specific individual rights, such as the right to free exercise of religion and the right to a jury trial. These rights are called "enumerated rights" and are entitled to strong protection from government interference. The right to self defense is an enumerated right.

But the Supreme Court has interpreted the due process clauses of the Fifth and Fourteenth Amendments to protect other rights beyond those specifically spelled out by the other Amendments. This process is called "substantive due process," and through it the Court has identified and protected certain "fundamental rights" that are not enumerated but are no less entitled to to strong protection.

One of these fundamental rights is marriage. The Bill of Rights contains no Amendment identifying marriage as an individual right, but the Supreme Court has long recognized that its importance to the exercise of personal autonomy is critical to citizenship and should be protected from unnecessary interference. The most recent case on this topic was Obergefell v. Hodges, which recognized a fundamental right to marry to which all people, regardless of sexual orientation, are entitled. Government therefore needs a very good reason to stop people from getting married.

Obergefell is very expansive in its language, and does not provide any clear test to determine if a claimed right is in fact fundamental. That wasn't really necessary in Obergefell, because the Court held that the marriage right sought by the plaintiffs in that case wasn't something novel but a very old right that had been repeatedly recognized as fundamental for decades. Gay and lesbian couples simply sought equal access to it.

By contrast, in the case of Washington v. Glucksberg, the plaintiffs asked the Court to recognize a fundamental right to determine the terms of one's own death, or, more crudely put, a right to die (through assisted suicide). The Supreme Court unanimously rejected this claim under a two-part test designed to ascertain whether a claimed right can really be considered "fundamental" enough to be protected by the Constitution (despite not being mentioned by it).

The first question is to determine a "careful description" of the asserted liberty interest. For a right to be fundamental it cannot be vague or nebulous. The second question to answer is whether the carefully described liberty interest is "deeply rooted in the Nation's history and tradition."

The Court in Glucksberg rejected the idea that there is a general fundamental right to "self sovereignty" or personal autonomy and that there is a right to end one's own life on one's own terms included in that. "That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected." Thus it narrowly defined the liberty interest sought by the plaintiffs as a separate "right to commit suicide" and be assisted while doing so.

Then the Court asked whether a right to commit suicide was deeply rooted in the Nation's history and tradition. Unanimously, the justices answered no. In fact, suicide and assisted suicide had been uniformly prohibited all across the country with nearly no exceptions. Thus, the right sought in Glucksberg was not fundamental and therefore not entitled to special constitutional protection.

There is an argument that Glucksberg has been displaced by Obergefell as the prevailing case on substantive due process, but I'm not convinced for the reason I stated above. Obergefell dealt with a right long previously recognized by the Supreme Court as fundamental. It simply struck down a form of interference with that right. Glucksberg, on the other hand, dealt with a fairly novel asserted liberty interest that had not been allowed or recognized almost anywhere before.

But I digress. The point I'm getting to is that even if you apply the more conservative test and holding of Glucksberg to the question of arms, the likely result is that a right to self defense, or, in the alternative, a right to privately own guns, must be considered a "fundamental right" even if it is someday no longer an enumerated one.

The right to bear arms, or the right to defend oneself, is clearly defined. In fact, it's much easier to define this right if you do so independently from the muddled, confusing language of the Second Amendment itself. A basic right to be armed for self defense is simple and clear cut. Perhaps a right to own private nuclear weapons would not be considered fundamental, but a right to own handguns and rifles certainly would be (since those weapons have always coexisted with the United States).

And a right to private gun ownership is most certainly "deeply rooted" in the national tradition. Private gun ownership predated the Second Amendment and has been allowed - in most states with very few regulations irrespective of the Militia Clause - from the Founding until today. Guns are as American as apple pie (tragically, perhaps).

Under the Glucksberg test, it is difficult to see how a right to bear arms would not be considered fundamental, and therefore retain its protected status despite a repeal of the Second Amendment and all other state constitutional analogs. Granted, a federal amendment explicitly prohibiting gun ownership (similar to the now-repealed Eighteenth Amendment's prohibition of alcohol distribution) would likely cancel out a substantive due process argument.

But if the Constitution were to go silent on the matter, it would be difficult to see how states or the federal government could use the repeal of the Second Amendment to enact total bans on ownership as long as substantive due process remained a viable line of constitutional attack. The Fifth and the Fourteenth Amendments would become the new sources of American gun rights.