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Constitutional law scholars say that it’s uncommon, but not entirely unprecedented, for the U.S. Supreme Court to take away a constitutional right.
In the 1930s, for example, the court repudiated a 1905 decision to protect “right of contract” under the 14th Amendment’s due process clause, which essentially allowed employers and employees to set their own terms of employment and previously led the court to strike down laws setting minimum wage, maximum hours and working conditions.
In 1990, a Supreme Court decision reversed an earlier decision that had acknowledged the right to religious exemptions to “generally applicable” laws under the First Amendment’s Free Exercise Clause.
Many Democrats are asking Americans to consider the consequences of losing access to abortion after the leak of a draft opinion from the U.S. Supreme Court that showed the court is poised to overturn Roe v. Wade.
The 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 D-Wis., has advocated protecting abortion access, including cosponsoring a bill last year that would have guaranteed equal access to abortion across the country.
After the draft opinion was leaked in early May, Baldwin spoke in a May 4, 2022, TMJ4 interview about what else she said she believes could be at risk if Roe is overturned, including access to other constitutional rights. She called the court’s probable decision to overturn a 50-year precedent "shocking."
"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.
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.
It begins with the 1905 court case Lochner v. New York, which found that a law forbidding bakers to work more than 60 hours a week, or 10 hours in a day, interfered with "right of contract." The court linked that right to the 14th Amendment’s due process clause; essentially, that there was a constitutional right for employers and employees to set their own terms of employment.
That case set off what is known as the "Lochner era," Marquette University law professor Scott Idleman said. 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, said Bernadette Meyler, the Carl and Sheila Spaeth Professor of Law at Stanford Law School.
One of those was the 1937 case West Coast Hotel Co. v. Parrish, in which justices ruled that a Washington state minimum wage law for women did not violate the constitutional requirement of due process in regard to right of contract.
That case limited the scope of economic rights under the 14th Amendment, Meyler said, and Alito cited it in the leaked draft.
A second instance multiple scholars referred to was the 1990 case Employment Division v. Smith, which found that the First Amendment’s Free Exercise Clause did not contain the right to religious exemptions to "generally applicable" laws. In this case, the court decided Oregon could deny unemployment benefits to two employees who were fired for taking illegal drugs that they were using for religious purposes.
That case reversed the 1963 Sherbert v. Verner decision that declared a right to religious exemptions from such laws under the Free Exercise Clause, said Howard Schweber, a professor of American politics and political theory at the University of Wisconsin-Madison.
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, said 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."
Baldwin said she believed the "Supreme Court has never taken away a constitutional right."
Legal scholars say that although such reversals are uncommon, a few examples do exist.
That makes her claim False.
Email exchange with Scott Idleman, professor of law, Marquette University
Email exchange with Bernadette Meyler, Carl and Sheila Spaeth Professor of Law, Stanford Law School
Email exchange with Howard Schweber, professor of American politics and political theory, University of Wisconsin-Madison
Email exchange with Ronald Allen, John Henry Wigmore Professor of Law, Northwestern University
Congressional bill tracker, S.1975 - 117th Congress (2021-2022), accessed May 25, 2022
Oyez, Lochner v. New York, accessed May 25, 2022
Oyez, West Coast Hotel Co. v. Parrish, accessed May 25, 2022
Oyez, Employment Division, Department of Human Resources of Oregon v. Smith, accessed May 25, 2022
Oyez, Sherbert v. Verner, accessed May 25, 2022
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