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Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.
A major new abortion case is coming. Possibly even more important is the sleeper issue that arrives with it.
The case just brought by Mississippi, for Supreme Court consideration next year, is about both abortion itself and individual rights. The abortion issue is widely understood. Less so, individual rights.
Mississippi Attorney General Lynn Fitch wants the court to reverse Roe v. Wade, its 1973 decision that blocked states from outlawing abortions. She thinks the Supreme Court has no business dealing with abortion rights.
“The Constitution does not protect a right to abortion,” she wrote. “The Constitution’s text says nothing about abortion. Nothing in the Constitution’s structure implies a right to abortion or prohibits states from restricting it.”
She questions if the court can protect a disputed right not mentioned in the Constitution. The court’s view has been, as even the late Justice William Rehnquist wrote while opposing Roe v. Wade, that the Constitution “embraces more than the rights found in the Bill of Rights.”
Mississippi says any right can exist only if is “deeply rooted” in history, which it says is not true for abortions. If that view takes hold, other rights could be questioned. For example, the right of an American also to be a citizen of another country was not deeply rooted when the court first recognized it in 1952.
The United States was created by uniting sovereign states. The people turned the British colonies into those states by declaring their independence from King George III. People expected the new states to protect their liberty, not crush it as the British had.
The states decided to transfer some powers to a federal government and drafted the Constitution, which was approved by special conventions of the people in the 13 states. All new states must accept the Constitution as it is.
The protection of individual rights was a basis for the founding of the U.S. “We the People” created the Constitution to “secure the blessings of liberty” for people in the U.S. The Declaration of Independence says that government exists to “secure” the rights that, taken together, produce liberty.
Before the Constitution could be adopted, some states said they would only agree to it if they were assured that the new federal government would not violate individual liberty and would protect some rights. They insisted on the Bill of Rights, protecting certain rights that had been overridden by the British.
The Bill of Rights protects only against actions by government, not those of other people. For example, an employer can limit speech or carrying firearms in the workplace. Of course, there may be laws that control private actions.
After the Civil War, the Constitution was amended so that state governments could be required to observe the Bill of Rights just like the federal government. Over the following years, the court also decided that it could protect personal liberty if government took action against individual rights.
So here’s where we ended up. People have liberty in America based on rights that belong to them, and no government can take those rights away from them. While certain rights are contained in the Bill of Rights, there are other rights, like the right to privacy, that governments must also protect.
Government may limit individual rights, if people harm the rights of others when they exercise their own rights. The court decides what limits on rights, if any, the government can apply to the rights that make up individual liberty, whether or not they are in the Bill of Rights.
Famously, freedom of speech is said not to protect shouting “fire” without there being one in a crowded theater. Government may have what the court calls a “compelling state interest” when the community as a whole may be seriously harmed by the unlimited exercise of individual rights.
Congress has not asserted federal control of abortions, but the Supreme Court has decided in Roe v. Wade that the Constitution’s requirement to protect individual liberty from government prevents states from outright banning abortions. It has allowed states to impose some limits if there is a compelling state interest.
The Court can and does change its mind from time to time. That’s what Mississippi wants it to do. Fitch may believe that because the current majority of the justices seem to have personal reservations about abortion, their views will translate into a reversal of the decision that abortion is a federally protected right under the Constitution.
At the Supreme Court, the issue may be broader than whether abortion is a protected right. The case could determine what it takes to identify an individual right requiring protection, the federal government’s role in protecting it, and whether some decisions on protecting rights should be made by the states.