Fact check: Has the Supreme Court ever taken away a constitutional right?
U.S. Sen. Tammy Baldwin, a Wisconsin Democrat, is one of many Democrats concerned that the U.S. Supreme Court is poised to overturn the landmark abortion rights decision Roe vs. Wade. In an interview, Baldwin said the court "has never taken away a constitutional right." PolitiFact checks that claim.
Posted — UpdatedThe 1973 landmark decision established a constitutional right to abortion, something Supreme Court Justice Samuel Alito wrote in the leaked draft was "egregiously wrong from the start."
U.S. Sen. Tammy Baldwin, a Wisconsin Democrat, has been an advocate for protecting abortion access, including cosponsoring a bill last year that would have guaranteed equal access to abortion across the country.
"I believe it is true that our Supreme Court has never taken away a constitutional right," Baldwin said.
"Never" is a high bar to clear. Constitutional law scholars say there have been a few examples of the court rolling back such rights, albeit decades and even close to a century ago.
Let’s dig in.
Legal scholars say such reversals are ‘uncommon, but not unprecedented’
PolitiFact Wisconsin reached out to several professors of constitutional law to gauge the accuracy of Baldwin’s claim.
Two described the same scenario that would make her statement off-base.
That case set off what is known as the "Lochner era," said Marquette University law professor Scott Idleman. During that time, the court struck down a number of laws attempting to set minimum wages, maximum hours and working conditions.
That changed in the 1930s with a number of New Deal-era cases where the court departed from its previous view of right of contract protected in the 14th amendment, according to Bernadette Meyler, the Carl and Sheila Spaeth Professor of Law at Stanford Law School.
That case limited the scope of economic rights under the 14th amendment, Meyler said, and Alito cited it in the leaked draft.
Since there were at least two instances in American history where the Supreme Court limited a previously outlined constitutional right, that would make Baldwin’s claim off the mark.
But Idleman, the Marquette University professor, did say that it’s uncommon for rights to be eliminated or even significantly restricted, and added he’d be hard-pressed to find too many more examples.
"It’s uncommon," he said, "but not unprecedented."
PolitiFact ruling
Baldwin said she believed the "Supreme Court has never taken away a constitutional right."
Legal scholars say that although such reversals are uncommon, a handful of examples do exist.
That makes her claim False.
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