The right to abortion is guaranteed by the 9th Amendment to the US Constitution, which states:
“The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people.”
The US District Court for the Northern District of Texas, in Roe v Wade, 314 F. Supp. 1217 (1970) stated:
On the merits, plaintiffs argue as their principal contention that Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couples of their right, secured by the Ninth Amendment to choose whether or not to have children. We agree.
At the time the Constitution was adopted, abortion was understood pursuant to Anglo-American common law, which generally held abortion legal up until quickening (first fetal movement), about 16-20 weeks after gestation. It follows that if abortion was a right at the time the Constitution was adopted then it was one of the un-enumerated rights protected by the 9th
Amendment which could not be denied or disparaged.
A Diversion, if you will allow me.
Justice Thomas’s concurring opinion in Dobbs, indicated he thought gay marriage, and the right to contraception could be overruled in the future. Notably, Justice Thomas did not suggest that the right to interracial marriage be overruled, although it flows from the right to privacy underpinning abortion, gay marriage, and contraception. You can speculate as to why Thomas did not mention interracial marriage.
However, I suggest that if there were no laws prohibiting contraception, gay marriage, or interracial marriage at the time the the Constitution was adopted, those rights may also be among the unenumerated rights guaranteed by the NINTH Amendment. If there were no laws prohibiting such conduct, then the conduct was not illegal, albeit possibly frowned upon, and it would follow that they were protected from being denied or disparaged by the 9th Amendment. Frankly, I have no idea if any such laws existed or not, and will leave the answer to that question up to the historians.
Now lets return to the immediate problem, “abortion,” and ask ourselves what we can do to protect it right NOW.
ANSWER: Abortion rights groups should immediately institute cases in Federal Court challenging individual state abortion laws as unconstitutional pursuant to the 9th Amendment, and request a Declaratory Judgment finding them unconstitutional as “a matter of law.” No trial necessary, the facts consist of the statutory language contained in the state laws prohibiting all abortions without exception, and as long as the plaintiff is actually pregnant at the time the case is filed, she has standing, and the issue is not moot.
Because the recent Dobbs decision reversing Roe was based on the 5th and 14th Amendments, it will have nothing to do with cases brought under the 9th Amendment. Federal District and Circuit Court Judges can rule the various abortion bans unconstitutional under the 9th Amendment, without worrying about the recent ruling in Dobbs.
It will take years for these decisions to reach the Supreme Court, and by that time we should have a new group of Justices deciding them, particularly if the Congress passes legislation expanding the Supreme Court to, at least 13 Justices, and the President signs it into law.
Imagine 20-30 cases in States all over the country challenging oppressive abortion laws pursuant to the 9th Amendment. If you are or know a member of a pro-choice organization pleaase give them this information and urge them to institute litigation in Federal Court to guarantee abortion under the 9th Amendment. The time to act is NOW!
Back to interracial marriage, gay marriage, and contraception.
If the Courts rule that the right to abortion is protected by the 9th Amendment, it may just inhibit Thomas, Alito, and the other judicial dictators from attempting to take away the rights to contraception, or gay marriage. At the same time it would be a gift to Justice Thomas. He would not have to worry about the possibility of having to rule on the legality of his own marriage to Ginny.
A Happy Anniversary gift to Clarence and Ginny, from the Pro-Choice movement.