Court: Women’s natural rights overrule anti-abortion law

True or false?  The U.S. Constitution begins: “Natural Rights.  All people … have certain natural, inherent and inalienable rights….”

False.  That is in the first sentence of the Maine Constitution.  Most other states have a natural rights clause.  For example, the Kansas Constitution begins: “Equal rights.  All men are possessed of equal and inalienable natural rights….”

The Declaration of Independence adopted the principle of natural rights in the United States, but those exact words were not included in the Constitution.  It contains similar but more limited provisions.

This concept is not simply what some belittle as a “glittering generality.”  It may mean a lot.  That’s what the Kansas Supreme Court decided last week, determining a state law violated the natural right to liberty.

By a 6-1 vote, it overruled a state law designed to limit a woman’s right to an abortion.  When a conservative state produces a decision on state law that cannot be appealed, possibly making many conservatives unhappy, that’s news.

This was no Ivy League decision.  All seven judges had studied at one of two Kansas law schools.  Four were appointed by Republican governors and three by Democrats.

Given GOP domination of Kansas politics in recent years, the decision received national coverage.  Most government action on abortions in mid-America is aimed at restricting access to them.  Kansas upset the pattern.

As important and surprising as the decision may have been, the court’s reason for its decision was more far-reaching.  It was a rare moment when a government institution focuses on the fundamentals of American beliefs underpinning the entire system of government.

Many people may believe that the Bill of Rights lists all the rights given to people by the government.  In fact, it only limits the power of government to infringe certain rights that people already have.  The Constitution specifically states that people have other rights which government cannot override.

Many state constitutions, like those in Maine and Kansas, go beyond the U.S. Constitution and declare that people have natural rights, which result from their being, well, human beings.

Natural rights, derived from nature itself, exist with or without government.  When people create governments, they give up only some of their rights.

The Kansas court found that the state could not limit the natural right of a person to control her own body by denying her access to what doctors consider the safest abortion method.  The Kansas law was unconstitutional because it violated the state constitution’s recognition of natural rights.

The decision was a stark reminder that people have inherent natural rights and choose to cede some authority to government, not that government gives people their rights.

What about the sole dissenter?  He agreed that people have natural rights and may limit some of them to give powers to government.  But the people themselves must decide what rights they have limited or kept.  They elect legislators to act for them.

Americans are accustomed to majority rule.  Can the constitutional recognition of natural rights, belonging to each person, be overruled by the majority?  “Inalienable” means they cannot be taken away, especially by government, but doesn’t that happen frequently?

In the dissenter’s view, courts should not decide on natural rights.  But the Court majority noted that checks and balances empower it to review legislative action.  Is there judicial review of whether laws are constitutional when it come to natural law or is majority rule the last word?

The dissenter questioned if courts really have the authority to decide what a natural right is, even if that right is recognized in a constitution.  If they don’t have the authority, how much is the right worth?

Most people now believe they have a right to privacy, though it is not mentioned in the Constitution.  The U.S. Supreme Court, not Congress, acknowledged it.   It relied on a key article written by Samuel D. Warren, a Boston lawyer and owner of a paper mill in Westbrook, Maine, and his law partner, Louis D. Brandeis, later a Supreme Court justice.

Governments, federal and state, have assumed increasing powers, sometimes required in an increasingly complex world.  But they also set themselves apart from the people who are the ultimate source of their powers.  Think of times when government secrecy is used for government’s own purposes.

If the Kansas decision is taken seriously, other state courts may question abortion laws and government attempts to assert powers at the expense of people’s natural rights.  Will lawyers, opposing government policies, start asking the Supreme Court to consider natural rights?

This could get interesting.

Gordon L. Weil

About Gordon L. Weil

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.