How is a right determined? Certainly when the constitution was written a right to an abortion was not supported. So when did it become a right and how?
Well, now, you see here is where we will part company completely, I think. Let me start with a little humor, T.H. White's
The Once and Future King (a tale of King Arthur and Merlin). While growing up an orphan, Wart (later King Arthur) is turned into various animals by Merlin, to teach him lessons. As a bird, for example, Wart discovers that when he's flying high, he can't see borders, and realizes that these are simply man-made. When Merlin turns Wart into an ant, Wart visits an ant colony that Merlin keeps, where he learns that in the ant world, "EVERYTHING NOT FORBIDDEN IS COMPULSORY."
Now, that might work well in quantum physics, and in an ant colony where the only language is "done" and "not done," but it doesn't fit a creature like the human very well, does it? There is a popular maxim in common law systems, “everything which is not forbidden is allowed”. The idea is that in liberal democracies we are inherently and naturally free to do anything, so long as it is not expressly prohibited by law. I tend to agree with this, except that my conscience forces me to disallow anything that may, so far as I am aware, cause harm to any other person, except in the very gravest of circumstances.
I'd like to point out that the U.S. Constitution also does not include the right to marry whom you will -- and especially not someone of another race. For many years, in the United States, anti-miscengenation laws were common throughout the states -- until Loving v. Virginia, in 1967 (when I was already 19 years old!) made laws against interracial marriage unconstitutional. Justice Clarence Thomas, born in 1948 like me, hails from Georgia, whose anti-miscegenation laws banning whites from marrying blacks, native Americans and Filipinos, were not rescinded until 1972. At that time, Thomas was married to a black woman. He would not have been permitted to marry his current wife Virginia at the time.
So the right to free choice in the matter of abortion existed until human laws denied the right -- and the United States Supreme Court finally determined those laws to be unconstitutional in Roe v. Wade, in 1973, returning that right to the individual.
Thus, I think the better question (better than "how is a right determined") is "how do we decide what is
not a right?" The answer is often quite easy, for things like murder, mayhem, theft and so forth. Sometimes it is not so easy, like "hate speech" which in Canada is (partly) defined as: "communicating statements in any public place, [to] incite hatred against any identifiable group where such incitement is likely to lead to a breach of the peace." That is a curb on an absolute right to freedom of expression, I know, but I think it not an unwarranted one.
