Analysis

FACT CHECK: Is abortion an enumerated constitutional right?

In a recent MSNBC segment, Joe Scarborough referred to abortion as a “specifically enumerated constitutional right.” Scarborough’s comment is not unique. He joins a slew of other politicians, commentators, and activists who talk about a so called “enumerated right to abortion.” 

But is abortion an enumerated constitutional right? The answer is a firm and unequivocal “no.”

The Constitution specifically defines a number of rights enjoyed by the people, including the right to free speech, right to bear arms, and right to practice religion, among others. These are enumerated—explicitly stated—rights. The word “abortion,” on the other hand, never appears in the Constitution. 

Unenumerated rights are legal rights inferred from other rights that are implied by existing laws. For example, the Constitution does not explicitly mention a right to privacy; however, the Court has determined a right to privacy exists under the Fourteenth Amendment’s concept of personal liberty.

In Roe v. Wade, the landmark 1973 Supreme Court ruling that legalized abortion, the Court did not argue that abortion is an enumerated right. The Court determined that abortion was covered under the right to privacy, which also isn’t explicitly enumerated. The right to privacy originated in the 1965 case Griswold v. Connecticut where the Supreme Court decided certain state restrictions on contraception were unconstitutional because they infringed on the privacy of married couples. The case Eisenstadt v. Bair then found that the right to privacy also extends to unmarried couples. Then, Roe v. Wade concluded that the right to privacy for individuals to obtain contraception included the right to abortion. 

The result of this shaky legal foundation is that 60 million preborn children have been killed by legal abortion since that fateful year.

READ: There is no ‘right’ to abortion in the U.S. Constitution

In a 2019 article, conservative author and speaker Ben Shapiro referred to Roe v. Wade as “a legal monstrosity,” and took issue with the constitutionality of extending the right to privacy to the killing of preborn children. 

“The court’s rationale is specious; the court relied on the ridiculous precedent in Griswold v. Connecticut (1965) that a broad ‘right to privacy’ can be crafted from ‘penumbras, formed by emanations,’” Shapiro stated. “Then the court extended that right to privacy to include the killing of a third party, an unborn human life — and overrode state definitions of human life in the process.”

 

This distinction between enumerated and unenumerated rights matters. In a recent National Review article, David Harsanyi referred to the so called “right to abortion” as “concocted from the ether” by the Supreme Court judges in Roe v. Wade.” He aptly noted that abortion was never discussed by the founders and, until 1973, was decided by the states. 

“Unlike the timeless rights that are foundational to classical liberalism, abortion is tethered to medical technology and the evolving morality of a society,” Harsanyi said. “If Scarborough wants to overturn the Second Amendment, there’s a process for it. Roe v. Wade, on the other hand, can be overturned by a court and thrown into the dustbin with all the other tragic decisions of history.”

Scarborough also connected constitutionality to popularity when commenting on the Republicans supporting the Texas Heartbeat Act, which was recently signed into law by Governor Greg Abbott. The law prohibits abortion after the preborn child’s heartbeat is detected — typically at about six weeks’ gestation. He accused Republicans of “running over” the majority who support Roe v. Wade, citing a recent CNN poll.

“They don’t care that they are the 30 percent compared to the 70 percent that don’t want Roe v. Wade overturned,” Scarborough said. “They don’t care. They are just running over the 70 percent.” But in truth, Americans largely do not understand what Roe allows, and polling shows that while Americans want abortion to remain legal, the vast majority want it to be significantly restricted — typically to the first trimester.

What Scarborough fails to note is that popularity doesn’t confer constitutionality. In a recent Hot Air article, Ed Morrissey pointed out, “In fact, the Constitution and especially its Bill of Rights were explicitly designed to withstand ‘popularity,’ i.e., mob rule.”

The court’s decision to allow the Texas Heartbeat Act to go into effect shows that the tides may be turning toward ending the unconstitutional killing of preborn children in America. 

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