Commentary

SCOTUS Sweeps Away Constitutional Liberties, Creates Nonexistent Rights

Rob Natelson
By Rob Natelson | July 12, 2016 | 8:56 AM EDT

U.S. Supreme Court building (AP File Photo/J. Scott Applewhite)

Three recent Supreme Court decisions reveal in the area of personal rights, most of the justices are applying rules unrelated to the U.S. Constitution. In two of the cases, the majority refused to protect rights expressly laid out in the Constitution. In the third, the majority strained to protect a “right” that does not appear there.

The First Amendment protects “free exercise” of religion. In 1993, the Court held—correctly, I believe—when government officials target particular religious beliefs, they violate the First Amendment.

But that’s exactly what Washington State officials did in Stormans, Inc. v. Wiesman. In that case, Gov. Christine Gregoire (D) was displeased with pharmacists who, on religious grounds, refused to dispense abortion-inducing drugs. Availability of the drugs was not a serious concern; they were freely available elsewhere. But the governor wanted to force religious dissenters to either violate their consciences or lose their livelihoods. She even threatened to fire members of the state’s pharmacy board unless they banned faith-related opt-outs. Her allies on the state human rights commission threatened board members with personal liability if they did not issue a ban.

Under pressure, the pharmacy board adopted a rule requiring religious dissenters to dispense abortifacients. Left-wing activist groups then used the rule to launch a campaign to badger dissenters into choosing between compliance or closing down.

This was a clear case of a state violating First Amendment rights, and the trial judge so ruled. But an appellate court reversed that decision, and a majority of the U.S. Supreme Court—with Justices Samuel Alito, John Roberts, and Clarence Thomas dissenting—let the appellate court’s decision stand. In doing so, the majority carried out the veiled warning they issued last year in the homosexual marriage case: Religious freedom will not be allowed to obstruct the court’s social agenda.

The First Amendment also guards “freedom of the press.” The phrase was designed to cover not only newspapers but the right to publish political opinion as well, with or without disclosing one’s identity. In fact, when the First Amendment was adopted, the usual practice was to submit an opinion for public judgment without signing one’s name. That’s how The Federalist Papers were first published.

In recent years, Congress and many states have flouted the First Amendment by adopting laws forcing the authors of political media to disclose donors’ names. Those laws are popular only among people who do not understand the real motivations behind them: to aid incumbent politicians and to subject dissenters to harassment.

In Delaware Strong Families v. Denn, the State of Delaware imposed intrusive disclosure rules on a nonprofit organization that distributed a voter guide revealing—in a relatively neutral way—local candidates’ positions on various issues. The guide was precisely the kind of publication protected by the Founders’ phrase “freedom of the press.” Nevertheless, the Supreme Court refused to overturn the Delaware rules. Only Alito and Thomas dissented.

But in Whole Women’s Health v. Hellerstedt the majority zealously protected a “right” not located in the Constitution at all.

In that case, a majority of justices struck down a Texas law requiring each abortion doctor to have admitting privileges at a nearby hospital. The idea behind the law was to assure immediate hospitalization if complications arose during an abortion procedure. The court also struck down another state law requiring abortion facilities to follow the same standards imposed on other out-patient surgery providers.

As business regulations go, the Texas laws were very modest. Judges routinely uphold much more intrusive regulations—even those that entirely abolish otherwise legitimate businesses. Yet, in this case, the Supreme Court majority—again with dissents from Alito, Roberts, and Thomas—voided both laws. The majority reasoned the regulations might reduce the availability of abortion and were therefore unconstitutional. Yet the courts do not show similar concern for other businesses greatly harmed by regulations, including other health care facilities.

The majority’s zeal is particularly striking when you consider two other factors: First, none of the plaintiffs actually were women seeking abortions. The plaintiffs were providers making money from abortions. Second, the majority swept away technical legal hurdles that probably would have killed any non-abortion case.

Sadly, in this area of constitutional law, the Constitution no longer matters much. What does seem to matter, however, are the personal views of the majority of the Supreme Court.

Robert G. Natelson (think@heartland.org) is a former University of Montana constitutional law professor and a senior fellow in constitutional jurisprudence at The Heartland Institute. His research studies are cited frequently by Supreme Court parties and justices.

Editor’s Note: Gov. Jay Inslee (D) was replaced and updated with the corrected state governor, Gov. Christine Gregoire (D) and other stylistic updates.

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