Revealed: Judge Roberts' precise view on abortion rights

ABC's This Week aired an interview today that John Roberts gave to an ABC affiliate in Texas five years ago. In it, the new Supreme Court nominee talked about Roe v. Wade and referred to abortion as a basic right.

Political correspondent Linda Douglass, commenting on the taped interview, sounded very reassured. "He kept referring to abortion as a basic right, a basic right," she said.

Not so fast there.

For constitutional lawyers, a "basic right" is something less than a "fundamental right." Read this excerpt from the Associated Press story of July 23 about the Roberts papers from his work in the Reagan administration:

In his Reagan years, Roberts weighed in on matters such as busing, immigration rights, fair housing law and war powers.

In an August 1984 memo, he wrote with lawyerly precision and caution about proposed presidential remarks on fair housing.

"The first sentence refers to the right of fair housing as a 'fundamental' right. I would change this to 'basic' right, since 'fundamental right' is a legal term of art in constitutional analysis and the right to fair housing is not such a 'fundamental right,'" Roberts wrote.

A fundamental right, the Supreme Court has said, is a right that is so fundamental to the concept of due process of law that it must apply to the states through the Fourteenth Amendment, which bars any state from denying due process of law to any person.

Not all rights are fundamental. "Some are in and some are out," Justice Felix Frankfurter complained in his 1947 concurring opinion in Adamson v. California, "but we are left in the dark as to which are in and which are out."

In the Adamson case, the Supreme Court ruled five to four that the Fifth Amendment right against self-incrimination -- the well-known "right to remain silent" -- did not apply in state courts. It was "out," to paraphrase Justice Frankfurter.

But in 1964, a different Supreme Court decided that it was "in." The Malloy v. Hogan case overturned Adamson, which in 1947 had declared it "settled law" that the Fifth Amendment protection offered no protection from state authorities.

As you know if you've read The 37th Amendment, it's a plain historical fact that the Bill of Rights was not intended to restrict the powers of the states. Even as late as 1922, the Supreme Court said the Constitution "imposes upon the States no obligation to confer...the right of free speech."

The reason the states are now required to respect freedom of speech and the rest of the list is this: the Supreme Court has gradually declared almost all the rights in the Bill of Rights -- and some that aren't in the Bill of Rights, like privacy -- to be "fundamental." The Court has said the states may not abridge fundamental rights unless they can show a "compelling" reason that the law is "necessary" to achieve a "permissible" state purpose.

In short, when a right is declared by the Supreme Court to be "fundamental," the states have to respect it. When a right is only "basic," the states can do whatever the voters of that state want them to do.

John Roberts told the ABC affiliate in Texas that abortion is a "basic right."

Depending on your views, you may be reassured or alarmed by that, but you are informed.


Copyright 2005

Complete source notes can be found in the appendix to The 37th Amendment.