Supreme Court rules on abortion as Congress defaults; becomes real federal legislature

Gordon L. Weil

The U.S. Supreme Court just sent a strong signal that it could soon change its collective mind and rule that a woman has no constitutionally protected right to have an abortion.

By taking no action on an appeal to suspend a new Texas law, it took a giant step toward acting as the national legislature.  It took charge, because of a vacuum left by Congress.  Forget about three equal branches of government and their checks and balances. 

The Court allowed into effect a Texas law that limits access to abortions to the point of eliminating it.   Texas tried to dodge responsibility for its own law by only allowing private parties to enforce its extreme terms.

Congress has passed no abortion rights law, leaving the Supreme Court to create such rights. That makes it the federal lawmaker, despite claims by justices that they only apply the law but do not make it.

All nine justices recognized that Texas wants to outlaw abortions. What the Court has legislated as a right, it looks about ready to repeal.

Justices understood that, by allowing the law to go into effect, abortions in Texas would stop.  Providers lack the resources to withstand a possible flood of cases, even if many have no factual basis.  The law raises major political and constitutional issues.

The five-member majority quietly let the law go into effect, leaving abortion providers to find some way to bring an acceptable legal action against it.  It is possible, they noted, that a Court decision more than a century ago could block it from second-guessing state courts.

Chief Justice John Roberts wrote that the law should be suspended until the federal court system ruled on it using normal legal filings and hearing procedures.

Roberts was supported by the three justices considered to be liberals.  But they also noted that, in their view, the Texas law violated the Court’s own earlier decisions allowing abortions.  

The Court long ago adopted the principle that it would usually stick to earlier constitutional decisions on which people relied.  Sen. Susan Collins said that, before voting to confirm Brett Kavanaugh as a justice, he agreed that abortion rights were such “settled law.”

The Court chose one earlier decision, limiting its ability to overturn a state’s action, over another, a woman’s right to an abortion in the first three months of pregnancy with no state allowed to stop it.  Before ruling on the constitutional conflict between its decisions, it effectively decided – for the state.

Its refusal on procedural grounds to delay the Texas law permitted a result that it had previously found illegal.  That way of thinking could ripple across the states on other issues, and that’s why Roberts wanted first to follow usual judicial procedures.

Whatever the effect of the Court’s failure to act, it deployed a method it increasingly uses to avoid taking clear responsibility.  It has reduced the number of its formal decisions, substituting the so-called “shadow docket” to make major rulings.  Under it, without hearings or legal briefs, key decisions are hidden by making them seem only procedural.

The Trump administration sought such quick action 41 times in four years and won 28 times.  In the 16 years of the G.W. Bush and Obama administrations, it was used only eight times. It seems conservative justices prefer fast answers and little transparency.

The Democrats may have worried about losing a vote to establish a federal right to an abortion, which would put the Roe v. Wade decision into law.  But public opinion now seems to encourage such a bill, and House Speaker Nancy Pelosi says one will be offered.

While such a bill might pass in the House, its success in the Senate is less likely.  Still, the Democrats see the Court’s shadowy feint at repeal of Roe v. Wade as a winning political cause for them.

Congress has the constitutional authority to shape the Supreme Court’s powers. It could control the use of the shadow docket and even limit the Court’s ability to determine if laws are constitutional.  That power is itself derived from a Court decision in 1803, not from the Constitution.

President Biden has created a commission to look into the Supreme Court.  Should the Court be enlarged to reduce conservative control?  Court packing is not politically popular, but there’s a way to appoint temporary federal judges. They could redress the political balance and then gradually be phased out as vacancies occur.

Whatever comes from the Texas matter, action to reverse the unelected Court’s growing legislative power seems overdue.  For Congress to regain the elected branch’s control of legislation requires the Senate to end the filibuster so that both houses can make decisions by majority vote. 

Anti-vaxers cause ‘collateral damage’ to vulnerable Americans

 

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Gordon L. Weil

“We took important and dangerous action, and inevitably some innocent people were affected,” the battle report says.  It expresses regrets. 

The supposedly unavoidable harm to people who were not the intended target is labeled “collateral damage.”   You’re supposed to shrug it off as an inevitable price that must be paid to accomplish an essential objective.

Covid-19 has produced the same effect, not on some distant battlefield, but across this country.  But it is other people, not the government, who take the action, and they express no regrets.

What has turned out to be overwhelmingly important to many people is not the fight against the coronavirus, but rather their resistance to that fight, even if it causes collateral damage to their fellow Americans.

People refuse to be vaccinated because of their opposition to the kind of government power that can require them to take action for their own good and the well-being of others.  They proclaim their absolute right to freedom.  It may be a case of “my rights are more important than your lives.”

Many people have been hopeful that the vaccines would allow a return to the “old normal,” allowing for travel, crowds, and restaurants.  The unexpected resurgence of the virus, thanks to the Delta variant and the unvaxed, has been difficult to accept.  With that reluctance may have come resistance to masks and shots.

“We don’t seem to care that we have these really high infection rates,” a British professor told the New York Times. “It looks like we’re just accepting it now – that this is the price of freedom.”  Living with Covid 19 may be the “new normal” for some people.

The uncertain messages about the effectiveness of anti-Covid19 measures have inevitably raised doubts.  The scientific community has tried to discover how to deal with a sudden and worldwide deadly virus using its normal methodical process.  Mandating vaccinations usually comes only after years of trial-and-error research.

The result of both the urgency of stemming the abrupt rise in the death rate and the amazing speed in coming up with vaccines may be an overly optimistic hope that Covid 19 could be wiped out quickly. That would have been unprecedented.   The public may now be forced unhappily to accept the absence of an expected miracle.

In the end, Covid 19 can be brought under control. It is possible that the new normal will involve many people continuing to wear masks, required vaccinations, more remote work and less business travel, and the continued growth of retail business conducted online. It may be possible to lead something like normal lives though with a different lifestyle.

In Maine, the state with the oldest population, and in the U.S. as a whole, with an aging population, the lifestyle change is occurring.  Older people are among the most vulnerable to Covid 19 because of reduced natural immunity. Though vaccinated, many must drastically limit their social contacts and travel.

The spread of the coronavirus deprives retirees, who must exercise special care, of the expected benefits of retirement, including family contacts.  The activities they forfeit may never again be possible as they age. 

The effect on life in the retirement years is part of the collateral damage of the failure to fight Covid 19.  Anti-vaxers rob retirees.

Of course, the problems of seniors are not as serious as the increased hospitalization and deaths caused by the community spread of the virus that could be reduced if more of the population was vaccinated and wore masks.  This is the greatest collateral damage.

The costs they impose on others are unheeded by those whose sole concern is their own opposition to wearing a mask or getting a shot. The high-flown assertion of their freedom looks remarkably like simple selfishness.

Making the harm even more dangerous is the political exploitation of the opposition to protective measures.  The governors of Texas and Florida, both rumored to plan on presidential runs, actively oppose masks and vaccinations that would reduce health risks. They appeal to anti-vaxers for their own political gain.

Some pundits and social media multiply the effect.  They exploit news of evolving research to falsely claim that vaccines, proven to work, are not effective.  They promote resistance to any government vaccine, yet come up with unproven, dangerous remedies for those who contract Covid 19.

The emphasis on personal freedom, even at the expense of others, is part of a belief that rights are absolute. While it sounds good, it can be destructive.  Protecting the rights of each person requires some mediating mechanism.  In the U.S., that’s a freely created government.

In the end, the biggest long-term danger from Covid 19 may not be its threat to public health, but the threat posed by its opportunistic opponents to the sense of community that is essential to democracy.

Impossible to win in Afghanistan: Q&A on failed nation building and Taliban

Gordon L. Weil

The Twenty-Year War is ending with the chaotic withdrawal from Afghanistan. 

But America’s longest ever war cannot simply be understood by the evacuation from Kabul.  Here are key questions about this wasteful conflict that can help put the war in perspective.

Why did the U.S. go to war in Afghanistan?  After the 9/11 attacks in 2001, the headquarters of the terrorist group Al Qaeda was found there, sheltered by the Taliban, religious zealots who ruled most of the country. The U.S. went in to stamp out Al Qaeda, which required ending Taliban control.

Did the U.S. mission change?  President George W. Bush committed U.S. forces without defining the conditions under which they would leave. Though he had said he opposed “nation building,” that’s just what the U.S. tried to do.  Under four presidents, it failed.

Could Afghanistan be turned into “a stable and open” society?  It has never been a unified country, but had been ruled by regional warlords.  The Soviet Union had failed to govern it and withdrew.  Even legendary novelist Rudyard Kipling had revealed how ungovernable and divided it was.

Why couldn’t the U.S. defeat the Taliban?  The Talibs have had a long history in Afghanistan and knew they could wait out the Americans.  Long ago, British statesman Winston Churchill wrote about their entrenched power.  They could endlessly develop and deploy home-grown terrorism to dominate most areas of the country.

Why couldn’t the new government in Kabul take control?   It was riddled by corruption and incompetence.  While it represented an attempt to graft Western values onto local roots, it lacked broad popular support.  It was simply an overlay on historic tribal and Taliban structures.

Also, it was an economic failure. It depended on suitcases of American dollars flown in regularly.  In contrast, the Taliban economy is based on opium sales and few public services, notably schools.

Why did the U.S. and its European allies remain there?  The goal was to prevent the growth of new terrorist bases in the country.  There was progress toward that objective so long as Western troops were on the ground. But terrorism had grown up elsewhere, and it was impractical to keep troops everywhere it might occur.

What about women in Afghan society?  The Taliban suppressed virtually all women’s rights. So long as it did not control the country, those rights could develop and did.  But the society itself did not come to value those rights enough to resist the Taliban after the U.S. troops were withdrawn.

Could the U.S. have struck a deal with the Taliban?  It tried direct talks, even excluding the Kabul government it had fostered. That alone must have sent a message that only the U.S. stood between the people and the Taliban.   Knowing they could outwait the Americans, the Taliban never would make a deal.

Why did the U.S. withdraw from Afghanistan?  It cost too much.  Funds that could have gone to meet urgent domestic needs poured continuously into the country.  Even more important, it cost the lives of Americans and others without producing the desired result.

Both Donald Trump, during his presidency, and President Joe Biden read the message from the American people that Afghanistan meant little when compared with the sacrifice, and it was time to leave. Some generals seemed to have a hard time accepting the failure and favored staying.

Why is the withdrawal a chaotic crisis?  Biden thought the government would fall to the Taliban, but that it might save key cities, resulting in a settlement of sorts.  He believed a gradual withdrawal would be possible by continued government control for a limited period.  In effect, the U.S. bought its own propaganda about the Kabul government.

Biden’s policy was based on this faulty assumption, which provided an overly optimistic view of the country’s support for the government without U.S. military backing.  He failed to order a withdrawal of diplomats and other civilians in line with the troop drawdown. This was a serious and costly error.

What about Afghans who helped the U.S.?  Biden says they will be helped to leave the country. But it would be naïve to believe that all Afghans seeking U.S. help themselves helped the U.S. Some opportunistically chose a side; some simply see a way out to the West.  Those left behind will undoubtedly survive as an American political issue.

Is all lost despite the effort?  Russia and China are not likely to do better than previous outside powers in this failed country.  The U.S. has learned a lot about the country and can use air strikes to damage terrorist bases as they develop.  In the end, the U.S. dollar might have greater long-term influence on the Afghan economy than U.S. troops had on its governance.

  

Census shows demographics favor Democrats, but GOP resists change

Gordon L. Weil

America’s worst kept secret just came out.

It’s the Census, mandated by the Constitution to be conducted every ten years to set the number of members of the U.S. House of Representatives each state gets.  Its purpose is political, and the pundits are now having a fine time with it.

It’s a poorly kept secret because it has become easier to keep track of the population annually.   This time, it confirmed some of what we already knew, but provided at least three results that caught new attention.

The country had previously recognized that the non-white population is growing faster than the white population.  The clear message is that at some point in the next 20 to 30 years, the majority in the U.S. will be non-white.

The surprise this year was that, for the first time in U.S. history, there were fewer whites than at the last count, not merely a smaller percentage.  A lower birth rate, an aging population and fewer European immigrants brought the change. The non-white American majority will develop sooner than expected.

Even Maine, while remaining the whitest state, is showing signs of change as its minority population has begun growing faster.

Race designations in the Census result are the choice of each individual respondent.  A surprise this year was sharp growth among people who classified themselves as being of mixed origins. 

Intermarriage between people from different ethnic groups has become more common and more accepted.  Though they may have called themselves Black, both former President Barack Obama and Vice President Kamela Harris could have chosen the multiple race category.

The third fact revealing change is the movement of people out of rural America to metropolitan areas.  Many big cities are growing, while small towns are declining.  Cities have more diverse populations, while rural areas have been overwhelmingly white.

In Maine, without big cities, the major urban areas have gained while rural counties have either lost population or have experienced relatively small growth. 

A widely accepted article of truth is that non-whites will predominantly be Democrats, while whites, especially those in rural America, are Republicans. That belief has led to the conclusion that country will move toward the community-oriented politics of urban Democrats and away from rural GOP conservative individualists.

Whether that thesis is true remains to be seen.  As non-whites gain increased prosperity, promised by the “American dream,” the question may be whether they change their politics as they expand their pocketbooks.

So why is a shift to the Democrats assumed?  To a considerable degree, the answer may come from the Republican Party.   At the moment, it is trying to construct political obstacles to minimize the effects of the inevitable change in the ethnic make-up of the population and block Democratic control.

The GOP tool is voter suppression.  Where Republicans now control state governments, they are passing laws making election access more complicated.  They see their traditional white supporters as being more likely to show up at the polling place than are newer, minority voters. Measures to ease voting like longer voting periods or mail-in ballots are being curtailed.

In addition, the GOP uses congressional and state legislative redistricting powers to draw specially designed districts that can produce the smallest number of Democratic legislators.  Through such gerrymandering, they can prolong their control.  That allows time to adopt laws and rules that may be difficult to topple if the Democrats gain control.

In short, the Republicans are attempting to extend their reach far into the future even as power may be slipping away from them.  They seek to delay Democrats gaining political control even as the number of non-white voters increases.

Whether this policy makes sense could be questionable.  It’s possible that some non-white voters are not natural Democrats, but resent GOP efforts to minimize their influence. In effect, the Republicans are inviting them to choose the Democrats.

Too much attention can be paid to what the Census reveals. Two other key factors don’t show up in its count, and they both seem to help the Democrats.

The increased participation of African-Americans in the electoral process shows the Obama elections were not passing events.  Two Georgia Senate races this year elected Democrats in what was a solidly GOP state, thanks to efforts to increase Black voting.  In the face of voter later suppression efforts there, the Democrats have to find ways to keep that happening.

The other change is the participation of women voters.  The major news is that white women are no longer voting similarly to white men. Their participation has grown with their independence.  The GOP has apparently ignored that change.

Political change is coming. The Census and related trends reveal that it may come sooner than 

Infrastructure bill depends on smoke and mirrors, but must bring tax increase

 

Gordon L. Weil

The U.S. Senate is lying to you (and possibly to itself).  Maybe it’s in a good cause, but it’s still a lie. 

The intentional falsehood is that the bipartisan $1 trillion infrastructure bill can be financed without raising taxes.

Its use of smoke and mirrors could help explain why people don’t trust government, an unfortunate sentiment when, at the same time, it’s urging you to get a Covid-19 vaccination.

About half the money for the bill will come from unspent funds previously allocated for coronavirus recovery.  But the rest must come from newly identified revenues.  The bipartisan backers of the bill have created some funding sources that don’t pass the straight-face test.

When Congress comes up with new spending, it must go to the nonpartisan Congressional Budget Office for a forecast of the effect of the proposal on the economy and the federal budget.  The CBO found the infrastructure bill undershot the needed revenues by $256 billion.

That means the Senate compromise failed to provide enough money to pay for its outlays. The result must be an increase in the federal debt, but the bill contains no payments for debt service.  The senators have wishfully assumed enough future economic growth to produce tax revenues that would cover the budget gap

Two of the bill’s key sponsors dismissed the CBO’s expert analysis, saying its rules limited it from considering the pie-in-the-sky accounting they use.  They simply ignored the fact that Congress had created the CBO to avoid just that kind of speculation. Several other independent reviews had come up with results like the CBO’s.

Why are some of the deal-making senators, a group that includes Maine’s Susan Collins, so willing to promote obvious “budgetary gimmicks” in light of the CBO’s official role in forecasting?  Politics.

Donald Trump, hailed for keeping his promises as president, had said he would come up with a $1 trillion infrastructure program, but did nothing. That inaction left Americans increasingly tired of potholes, crumbling bridges, inadequate telecommunications and other weak elements of the physical backbone of the country. 

President Joe Biden and the Senate dealmakers said they would do what Trump had promised.  It should make Biden and the Democrats more popular.  It could help some Republicans meet an urgent public need, possibly putting space between them and Trump, who now opposes the deal, mainly because it helps Biden.

This is a rare case where good policy and good politics exist for both sides and they could make a bipartisan deal.

The main opposition comes from most Senate Republicans.  They would accept a smaller bill using only what is already available from unspent funds and limited to items like roads and bridges.  That position insulates them from the sham revenue forecast, but falls far short of the need.

The alternative to the unfounded projections of new tax revenues from future economic growth is raising federal revenues.  A major new source of funding could have come from getting people to pay income taxes they owe rather than, well, cheating.  To do that would require strengthening the IRS.

It would seem difficult to oppose adding federal revenues by collecting taxes already due.  That’s not a tax increase, though some taxpayers would pay more.  But the Republicans refused to include measures to improve IRS tax collection, confirming the favorable GOP tax treatment of the richest Americans.

Paul Krugman, a Nobel-prize winning economist who’s now a liberal New York Times columnist, approves of using “smoke and mirrors,” because of the critical need, even if that really requires more borrowing.  Interest rates are now so low it won’t cost much, he claims. The declining value of the dollar and economic growth will allow future taxpayers easily to cover the cost.

The main problem in justifying the cost is that its advocates rely heavily on their own forecasts of congressional behavior, the economy and tax revenues.  Just two years ago, nobody could have forecast the impact of Covid-19 on the national debt.  Nor do we know what will happen in 2025 when personal income tax rates are supposed to increase.

Basing budget planning on wishful thinking is not the best way to run a government. But it may be the best way to make people believe, at least for one election cycle, that they can have something for nothing.

In the end, all government spending depends on taxes.  Taxpayers ultimately pay for debt.  But the U.S. now has an almost religious dislike of tax increases, even on the most wealthy.  Yet that’s just what’s required – now or later.

Even if it’s later, it will be a big bill. As the late Everett Dirksen, the GOP Senate leader, once supposedly quipped, “A billion here, a billion there and pretty soon you’re talking real money.”

Both Dems, GOP split in two as they seek big 2022 wins

Gordon L. Weil

It’s fascinating to watch a big-time gambler in high stakes games.  The risks are great, but the pay-off could be huge.

This week’s news reveals the high roller is Donald Trump.  Using remarkable appeal to raise cash, he has staked himself to over $100 million to spend in political games.  The games are the 2022 congressional elections.

Besides Trump, the other players are President Joe Biden’s mainline Democrats, the traditional Republicans and the Democratic progressives, the party’s most liberal element.

The games will decide who controls Congress.  They could show if Trump’s election and GOP takeover was an aberration or if Biden’s victory was a fluke. In either case, they might set the new normal in American politics for a few years.

Trump Republicans seek authoritarian presidential rule that produces powerful leadership at the expense of popular democracy. That type of government can produce change more easily than the intentionally inefficient democratic process.  That’s why Trump retains political appeal.

The temptation for the Trumpers is to oppose anything the Democrats propose.  As part of the Trump gamble, they even blame the January 6 insurrection on the Democrats. 

If Trump succeeds, he will not only change American government, but would likely destroy the traditional Republican Party.  He may have been a RINO – Republican in Name Only – but he would have stolen the party.

Trump’s GOP deploys voter suppression measures in some states to keep likely Democratic voters from easy access to the polls.  Across the country, Republican dominated state governments are hard at work passing restrictive voting laws using the thin excuse of improving ballot security.

Beyond that, Trump’s millions flow to his favored candidates.  If elected, they can flip Congress back from Democratic to Republican, proving that Biden and the Democrats are the aberration.  Even a thin margin of victory could pave the way to Trump’s run for the presidency two years later.

The first test for Trump comes in the party primaries.  He wants to scare away GOP candidates who are not Trumpers.  Failing that, he tries to tip the vote to his favorites by pumping up their campaigns, enabling them to reach more voters.

In a GOP primary for a safe Republican seat in Ohio this week, Trump’s cash created the frontrunner, who won. He defeated a crowded field of traditional conservatives, though he fell far short of an outright majority. The turnout was light, but Trump’s strategy worked.

Even if Congress hedges its bets and reaches some compromises this year, the battle lines for next year remain. One major question is where do anti-Trump Republicans like Wyoming’s Liz Cheney or Alaska’s Lisa Murkowski end up?  Both are up for reelection next year.

Biden has been trying to undermine Trump’s appeal to alienated voters through massive government programs designed to produce benefits for them. Much of the spending in his array of proposals will end up in visible, local projects. That’s pragmatic politics.

In another Ohio primary this week for a safe Democratic seat, the candidates included a Biden-style practical politician and an outspoken progressive promoter of universal health insurance.   The pragmatic candidate defeated the progressive, gaining a clear majority. But the margin was small with a good turnout.

If the progressives lose their challenges to Biden’s more centrist policies, they face the question of sticking to their beliefs, sitting out the elections, and risking GOP control.  Otherwise, they will have to endorse Biden’s plans for political survival and hope for another chance.

For the Democrats finally to end Trump’s influence, they have to win big. To prove they are the new normal, the Democrats would have to overcome the traditional loss of seats by the president’s party in the mid-term elections.

That will take a lot of cash and a strong effort to get out their voters and work around voter suppression.  They could make a last push for the national popular vote. If they win only by squeaking by narrowly in 2022, they remain in jeopardy for the presidential election. If they lose, Biden’s last two years could be a bust.

Biden needs to keep the Democratic progressives involved and supportive.  The Democrats – establishment and progressives – know how to raise money.  Ultimately the question must be if they can pool it to counter Trump’s millions.

In Maine, a similar situation exists. The traditional GOP has been weakened, and it looks like the Republican Party lines up for Trumpian former Gov. Paul LePage.

Gov. Janet Mills, a Democrat, could be somewhat undermined by a public power referendum, which she is likely to oppose.  With no ranked choice voting for governor, she has to worry about the possibility of a vote-splitting independent challenger.

No need to proclaim “Let the games begin.”  They have.

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Abortion case: Can Supreme Court protect rights not in Constitution?

 

Gordon L. Weil

A major new abortion case is coming.  Possibly even more important is the sleeper issue that arrives with it.

The case just brought by Mississippi for Supreme Court consideration next year is about both abortion itself and individual rights.  The abortion issue is widely understood.  Less so, individual rights.

Mississippi Attorney General Lynn Fitch wants the Court to reverse Roe v. Wade, its 1973 decision that blocked states from outlawing abortions.  She thinks the Supreme Court has no business dealing with abortion rights.

“The Constitution does not protect a right to abortion,” she wrote. “The Constitution’s text says nothing about abortion. Nothing in the Constitution’s structure implies a right to abortion or prohibits states from restricting it.”

She questions if the Court can protect a disputed right not mentioned in the Constitution.  The Court’s view has been, as even the late Justice William Rehnquist wrote while opposing Roe v. Wade, that the Constitution “embraces more than the rights found in the Bill of Rights.”

Mississippi says any right can exist only if is “deeply rooted” in history, which it says is not true for abortions.  If that view takes hold, other rights could be questioned. For example, the right of an American also to be a citizen of another country was not deeply rooted when the Court first recognized it in 1952.

The United States was created by uniting sovereign states.  The people turned the British colonies into those states by declaring their independence from King George III.  People expected the new states to protect their liberty not crush it as the British had.

The states decided to transfer some powers to a federal government and drafted the Constitution, which was approved by special conventions of the people in the 13 states.  All new states must accept the Constitution as it is.

The protection of individual rights was a basis for the founding of the U.S. “We the People” created the Constitution to “secure the blessings of liberty” for people in the U.S.  The Declaration of Independence says that government exists to “secure” the rights that, taken together, produce liberty.

Before the Constitution could be adopted, some states said they would only agree to it if they were assured that the new federal government would not violate individual liberty and would protect some rights.  They insisted on the Bill of Rights, protecting certain rights that had been overridden by the British.

The Bill of Rights protects only against actions by government, not those of other people. For example, an employer can limit speech or carrying firearms in the workplace.  Of course, there may be laws that control private actions.

After the Civil War, the Constitution was amended to so that state governments could be required to observe the Bill of Rights just like the federal government. Over the following years, the Court also decided that it could protect personal liberty if government took action against individual rights.

So here’s where we ended up.  People have liberty in America based on rights that belong to them, and no government can take those rights away from them. While certain rights are contained in the Bill of Rights, there are other rights, like the right to privacy, that governments must also protect.

Government may limit individual rights, if people harm the rights of others when they exercise their own rights. The Court decides what limits on rights, if any, the government can apply to the rights that make up individual liberty, whether or not they are in the Bill of Rights.

Famously, freedom of speech is said not to protect shouting “fire” without there being one in a crowded theater. Government may have what the Court calls a “compelling state interest” when the community as a whole may be seriously harmed by the unlimited exercise of individual rights.

Congress has not asserted federal control of abortions, but the Supreme Court has decided in Roe v. Wade that the Constitution’s requirement to protect individual liberty from government prevents states from outright banning abortions.  It has allowed states to impose some limits if there is a compelling state interest.

The Court can and does change its mind from time to time.  That’s what Mississippi wants it to do.  Fitch may believe that because the current majority of the justices seem to have personal reservations about abortion, their views will translate into a reversal of the decision that abortion is a federally protected right under the Constitution.

At the Supreme Court, the issue may be broader than whether abortion is a protected right. The case could determine what it takes to identify an individual right requiring protection, the federal government’s role in protecting it, and whether some decisions on protecting rights should be made by the states.