Guest Commentary / December 8, 2021

The Court Called Supreme and Abortion

SCOTUS will soon make a ruling on an abortion law. Just remember: The law and the ruling are about a lot more than just abortion.

By Larry Craig

There is a case before the Supreme Court now that affects all of us. On the surface, the case is only about abortion, but it deals with five important issues that concern all of us.

The first issue is the question of what a constitutional right is.

There is talk that this case might overturn a previous Court ruling that not only made abortion the law of the land but also engendered the belief that abortion is a constitutional right.

At the time when our Constitution was written, the only rights anyone was talking about were unalienable rights, those spoken of in the Declaration of Independence, rights that precede and supersede government and that government cannot restrict or take away. These, the Founders said, were given to human beings by God.

The Founders debated whether to include some of these unalienable rights in the Constitution itself. They were concerned that people might think that these rights came from the government rather than from God.

They finally decided to add them as amendments to our Constitution, and the first 10 became known as the Bill of Rights.

So a constitutional right would be an unalienable right, one that government cannot restrict or take away.

Abortion is now legal, but is it a right, a constitutional one at that?

This is the second issue: How do we know a right is a constitutional one?

A constitutional right would have to be an unalienable right, given by God.

The thinking of the Court was that abortion was a part of some privacy concerns of the Fourth Amendment. That would be limiting government intrusion into a person’s life. Is a limitation or ban on abortion an intrusion into a person’s life? Or are they prohibitions on wrongful activity?

If I were making bombs in my basement, do I have a right to privacy? If I were aborting a baby, would I still have that right to privacy?

One of the foundational rights of our country is the right to life. When does a baby get that right? When we decide? When her mother decides? How is that an unalienable right if other people can decide when or if a person gets it?

That’s the basic issue of abortion. Not the mother’s rights but the baby’s.

So then the question: How do we decide if an issue, a right, is a constitutional right?

I think we should be very careful before we assert that some new right is a constitutional right.

I frankly doubt that, after 200-some years, anyone is going to discover a new right today that everybody would agree comes from God. And that’s what a constitutional right is. Should we decide these questions by taking opinion polls? Are unalienable rights unalienable because a majority of nine people on a court say so? It may not even be a unanimous decision. Shouldn’t an unalienable right at least have some consensus in a country? If half the country is opposed to something, can we really say that this right is unalienable, such that it can never be changed?

Saying that these rights come from God suggests to me that the Founders were thinking of some external point of reference, like the Bible, because other religions don’t all agree with our understanding of unalienable rights, e.g. the right to life, liberty, and the pursuit of happiness. You can’t really talk about God in a generic sense. It would have to relate to a religion that the people were familiar with. A religion is a common understanding of God.

Thirdly, the fact that something is legal doesn’t mean that it is right.

Lying is illegal if you do it in court while under oath, but in everyday life, there is no law against it. Does that mean it’s alright to lie if you haven’t taken an oath beforehand that you won’t? I would say no. I’m guessing some would disagree, saying it depends on the circumstances.

But we could probably agree that there are things that are right and things that are wrong. However, our laws don’t forbid everything that is wrong, and in some cases may specifically allow things we believe to be wrong.

So whether something is right or wrong is not determined by laws. Laws only determine if certain behavior requires a public response to inhibit it, not whether something is intrinsically bad. 

Fourth, something isn’t a right just because loud voices insist that it is.

People seem prone to declaring rights that everyone is supposed to accept as inviolable ones. Governments can endow the people with rights, and they can revoke them as well. And asserting that something is a right does not make it one, and you should not expect that everyone is going to agree with you. You can expect to be challenged.

Where does abortion fit here?

The public is divided.

And the last issue isn’t about rights but about equal protection.

The Fourteen Amendment to our Constitution guarantees equal protection under the law.

Does that mean that different abortion laws in different states constitute unequal protection under the law?

By that thinking, states shouldn’t make laws. Only the federal government should, so every state has the same laws.

No, equal protection under the law means that the law will apply equally to all those affected by the law. Because you can drive 75 MPH in Montana does not mean that you can drive 75 MPH in Illinois. And it does not mean that Illinois must change its law to match Montana’s. But it does mean that in each state, the penalty for breaking the law will, or should, apply to everyone equally.

Soon the Supreme Court will make a ruling on a recent abortion law.

Just remember: The law and the ruling are about a lot more than just abortion.

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