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 ten 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? Then 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 that this right 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. But 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 in Montana does not mean that you can drive 75
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.