Abortion Rights Under the 9th and 14th Amendments

Understanding what Justice Alito got wrong in Dobbs v. Jackson Women’s Health Organization

Justice Samuel Alito's opinion in Dobbs v. Jackson Women's Health Organization argued that the constitutional right to abortion must be eliminated so that state governments may enjoy free rein to criminalize abortion as they see fit.

The problem with Alito's opinion is that it stands at odds with the text and history of the 14th Amendment, which says: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." As its drafting and ratification history demonstrate, the 14th Amendment was originally understood to protect a broad range of individual rights from state infringement, including unenumerated rights.

Consider the words of Sen. Jacob Howard (R–Mich.), who introduced the 14th Amendment in the Senate in 1866 and spearheaded its passage through that chamber. The 14th Amendment was needed, Howard explained in a speech that was widely reprinted throughout the country, because the "mass of privileges, immunities, and rights" secured by the Constitution "do not operate in the slightest degree as a restraint or prohibition upon State legislation."

Howard was right about that. Remember that the Bill of Rights originally applied only against the federal government. The First Amendment, which begins, "Congress shall make no law," was quite explicit on this point. So, Howard continued, "the great object of the first section of this [14th] amendment is, therefore, to restrict the power of the States and compel them at all times to respect these great fundamental guarantees."

What "great fundamental guarantees" and what "mass of privileges, immunities, and rights" was the 14th Amendment designed to protect from state abuse? For starters, Howard said, the amendment protected fundamental rights that were not explicitly spelled out in the Constitution. "These privileges and immunities," Howard said, "are not and cannot be fully defined in their precise nature." In addition, he continued, "to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution." In short, the 14th Amendment compels the states to respect both "the first eight amendments" (enumerated rights) and other fundamental rights that "are not and cannot be fully defined" (unenumerated rights).

Which brings us to the legal debate over abortion. Thanks to the 14th Amendment's ratification in 1868, every state must now respect the right to freedom of speech, the right to keep and bear arms, and so on down the line of individual liberties mentioned in the Bill of Rights. But that is not the end of it. The states must also respect the individual liberties guaranteed by the Ninth Amendment, which reads, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Those unenumerated rights "retained by the people" are part of the great mass of liberties that "are not and cannot be fully defined." The Ninth Amendment's inclusion in the Bill of Rights makes the unwritten liberties that it protects "fundamental" by definition.

Now we reach the key question: Do abortion rights fall under the protection of the Ninth Amendment? If the answer to that is yes, then that means that abortion rights apply against the states via the 14th Amendment.

My answer to the key question, which I recently spelled out at length, is this: "Founding era history strongly supports the view that abortion rights, at least during the early stages of pregnancy, do fall within the orbit of Madison's Ninth Amendment." What that means is that Alito's abortion opinion got both the Ninth Amendment and the 14th Amendment wrong.

Comments

[Diane Reynolds (Paul.)]

What Marshall got wrong in Roe V Wade under the 14th amendment: (forgive the formatting)

The Court eschews the history of the Fourteenth Amendment in its reliance on the “compelling
state interest” test. See Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 179 (1972)(dissenting opinion). But the Court adds a new wrinkle to this test by transposing it from the legal considerations associated with the Equal Protection Clause of the Fourteenth Amendment to this case arising under the Due Process Clause of the Fourteenth Amendment. Unless I
misapprehend the consequences of this transplanting of the “compelling state interest test,” the Court’s opinion will accomplish the seemingly impossible feat of leaving this area of the law
more confused than it found it.

[…]

As in Lochner and similar cases applying substantive due
process standards to economic and social welfare legislation, the adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on
the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be “compelling.” The decision here to break pregnancy into three
distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the
drafters of the Fourteenth Amendment.

[…]

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.
As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 22, 14, 16. By the time of the adoption of the Fourteenth [410 U.S. 113, 175] Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. 1 While many States have amended or updated [410 U.S. 113, 176] their laws, 21 of the laws on the books in 1868 remain in effect
today. 2 Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 [410 U.S. 113, 177] and “has remained substantially unchanged to the present time.”
Ante, at 119. There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

[Diane Reynolds (Paul.)]

Even if one were to agree that the case that the Court decides were here, and that the enunciation of the substantive constitutional law in the Court’s opinion were proper, the actual disposition of the case by the Court is still difficult to justify. The Texas statute is struck down in toto, even though the Court apparently concedes that at later periods of pregnancy Texas might impose these selfsame statutory limitations on abortion

I’m realizing that the Thomas Court has given me the opportunity to read the original Roe decision and dissent, word for word and as such, what the holy fuck were they thinking when this decision got jammed out the birth canal?

[Kalasmourn]

They were thinking what all leftist activist judges think: logic and reason don’t matter, laws don’t matter, only getting what they want matters. And they will get what they want _by any means necessary_.

[juliafoster57]

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[Social Justice is neither]

And Damon is all on board with them.

[Heresy Hunter]

Love the username.

[Nardz]

Aaaaaand we’re up to our 6th article of the day on abortion.

[Yatusabes]

There is a glimmer of hope. The birth rate has been falling since the 1950s. Thus with increasing abortion rates, none of us will be around in 50 years due to lack of fecundity.

[Overt]

I don’t mind a bunch of articles about abortion. What I do mind is Root spending article after article declaring his opinions to be facts. Let’s start with this one:

“But that is not the end of it. The states must also respect the individual liberties guaranteed by the Ninth Amendment, which reads, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.””

Let’s be clear that this is the OPINION of a History Major. It is not the opinion of a lawyer let alone a settled matter of law within the Supreme Court. Root doesn’t say that, he just asserts this as if it is uncontroversial fact.

I’m not trying to say that you have to be a lawyer to analyze this stuff. But when a History Major decides to imply that a Supreme Court Justice is on the wrong side of settled facts, he should be a bit more humble. Instead he does the opposite, which is very misleading to readers.

For the record, and despite Root’s simplistic summary, not every right in the Bill of Rights has been incorporated. For example, the 7th Amendment’s right to a jury trial in civil cases is not incorporated. Nor has the 5th Amendment’s right to be indicted only by a grand jury.

Indeed, no court case to my knowledge has ever specifically stated that the 9th Amendment is incorporated, and that is perhaps because it isn’t even clear that the 9th Amendment is a source of rights, as opposed to “instructions for interpreting the BoR”.

I am not arguing one way or the other here. I am pointing out that Damon is insisting that Alito- one of the most prolific legal authors in current times- is just egregiously wrong, and his evidence is his OPINIONS about the law, which are easily seen as overly simplified.

But even if we agreed that the unenumerated rights are incorporated, Root’s whole argument comes down to the same damn argument that he has flogged now on 6 different articles. He says essentially that because States felt they could freely ban abortion at the Quickening, this means they recognized a right to abortion before that. Root has repeated this silliness and been mocked on the internet and in the comments for it since the first article.

The fact that Root continues to repeat this tired, worn out argument, unmodified again and again shows that he is not interested in informing *or* Reason. He just wants to shout the same argument over and over until people assume he is repeating well known facts instead of shit he came up with in his head.

[Nardz]

Root has really torched his credibility this past week

[ThomasD]

Reason has been a Bonfire of the Credibilities since about when Trump came along.

[Ted]

That’s a good summary for it.

[Winston in Wonderland]

Nardz–yeah, it seems as if all other news and issues just vanished.

[Kungpowderfinger]

It’s pretty clear, and can be explained in simple language, why Roe Vs Wade was such a horrible decision from a constitutionalist point of view, even with my public HS education. I know because I looked online for myself, looking at articles more than a year old and ignoring bullshit articles like this that try to argue the opposite.

Reason very clearly believes the SC should have continued to legislate from the bench in regards to the left’s holy sacred cow of abortion. It’s also clear the SC is driving the Democrats and their pals in the media out of their fucking minds, with prominent members of the party calling for “emergency” abortion clinics in national parks.

Reason has lost a lot of credibility as of late, with their TDS and culture war bullshit. Perhaps their claim that the Dobbs decision is unconstitutional shouldn’t surprise anyone who’s followed this site over the last few years.

At least it’s a better hill for them to die on than their support of minors at Tranny fashion shows, so maybe things are improving?

[CE]

I think the 9th Amendment is overlooked far too often, but this seems more like a clear 10th Amendment case. The federal government was granted no power to enact criminal law, except concerning counterfeiting, piracy and treason.

[BestUsedCarSales]

Do you have any reading on the 9th amendment? I have no idea how it’s applied, and it seems like it gets particularly wonky post-incorporation.

[Moonrocks]

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

I’m not a lawyer, but this reads like it could mean literally anything. Anything you can think of could be one of those other rights retained by the people or it could not be, and there’s nothing in the amendment itself or anywhere else in the constitution saying what might or might not be one of those unenumerated rights.

[BestUsedCarSales]

Yeah. I don’t know a lot, but during the initial ratification of the Constitution it seems that they really did mean “these are the tasks of the federal government.” Within that context, the 9th Amendment is basically a way to make super clear that just because there is a bill of rights positively enumerating rights, we’re serious when we say that the enumerated powers of the constitution is all the federal government has.
Post incorporation this seems like it leads to a weird situation where the states are all precisely bound by the US Constitution as well. This feels like it has very weird consequences that naturally lead to the dissolution of states.
But, I really have no idea. This is all me speaking out of my ass, even moreso than usual. That’s why I’d be curious to read more about it. I don’t have any real concept of what it would possibly mean.

[BestUsedCarSales]

If you incorporated the 9th Amendment against the states, what does that mean for the 10th Amendment?

[Moonrocks]

Even before incorporation the 9th amendment doesn’t seem like it could do much. The 10th amendment made itself crystal clear by explicitly forbidding the federal government from doing anything not spelled out in the rest of the constitution. The 9th amendment never had such a concrete guideline.

[Moonrocks]

Basically, if rights are unenumerated, then how do you know what rights you have? How can unenumerated rights legally be protected or enforced beyond a “I know it when I see it” standard?

[Commenter]

> This feels like it has very weird consequences that naturally lead to the dissolution of states.

How so? Incorporation only applies constitutional protection of individual rights already binding on the federal government to the states as well. In other words, it excludes certain questions from the scope of public policy entirely.

It doesn’t deny power to the states in order to grant to the federal government, but rather excludes the matter in question from the reach of political power at all levels.

I don’t see how this pertains to questions of centralization or decentralization regarding matters that *are* within the reach of policy-making. It’s entirely valid to say “of those questions recognized to be within the reach of political power in the first place, anything not granted to the federal government is reserved to the states”, which appears to be exactly what the 10th amendment is saying.

[Cyto]

It really is quite simple. The 10th !ales it clear… The feds have enumerated powers and no others. The states and the people retain all else.

If the 14th puts all the same uncumberences on the states as on the feds, then reserving powers to the states means nothing….. They cannot use any powers that the feds cannot use.

This would mean no local gun control laws. No building codes, no traffic laws, no prostitution laws…..

Of course, it’s almost impossible to reconcile this with Wickard and Raiche. Not buying wheat or pot is interstate commerce, so possession can be outlawed. But alright to privacy does not allow a private decision to grow a plant in your own basement?

It is a contradictory mess.

[See Double You]

The 9A is a rule of construction/interpretation of the Constitution. The 9A declares no part of the federal government (i.e., Congress, the President, or the federal courts) may interpret the Constitution as only protecting the rights which it enumerates. However, the 9A provides no mechanism for determining what other rights have been retained by the people.

[ThomasD]

This
This
A Thousand Times This

Not like it’s the first time anyone has said this, but about the millionth time that the pro-abortion crowd has ignored it.

Exactly like they have ignored the argument that longstanding laws restricting abortion were not seen as Constitutionally problematic, even after Incorporation

The Roe decision even could have said “oops this was missed and needs to be rectified” but they didn’t. And they didn’t because they knew that ‘arguments’ like Root’s are simply wishcasting.

[CLM1227]

If I were a constitutional scholar, I’d consider the part “retained by the people” to be something that bubbles up through how the people select their laws democratically at the state level.

If enough states reach consensus on something being a certain right, then the federal government recognizes it as an unenumerated right deserving protection.

We might have an unenumerated right to abortion under the circumstances of rape and incest*. I think that’s the only statement that comes even close to universal agreement.

Allowing the states to work this out allows for a consensus to form based on experience and policy preference of the people.

[Commenter]

> If I were a constitutional scholar, I’d consider the part “retained by the people” to be something that bubbles up through how the people select their laws democratically at the state level.

No, that doesn’t work. It’s inconsistent with the way the word “people” is used throughout the rest of the Bill of Rights.

The 4th amendment is talking about the rights of the people — individual human beings — to be secure in their papers, etc. and isn’t referring to a right of privacy belonging to state governments.

People have used similar reasoning to interpret the militia clause in the 2nd amendment in the way you’re describing — as a right belonging to states, not individuals — but the courts rejected this precisely because it explicitly protects the right of the *people* to keep and bear arms.

And the 10th amendment says that powers not granted to the federal government are reserved “to the states respectively, *or to the people*”, explicitly distinguishing rights of states from those of people themselves.

> If enough states reach consensus on something being a certain right, then the federal government recognizes it as an unenumerated right deserving protection.

The purpose of recognizing rights is to protect them against infringement *by* federal or state governments. By this logic, it’s impossible to protect individual rights against violations by states, because we’re relying on the states themselves to recognize them first.

> Allowing the states to work this out allows for a consensus to form based on experience and policy preference of the people.

The purpose of judicial review is to *prevent* policy-making from transgressing individuals’ rights. Rights themselves being determined *by* policy is inherently contradictory.

[Aspiring Statesman]

As soon as one starts to utilize the 9th Amendment to enumerate a “right”, one has exploded one’s own case. The proper application is (with the 10th Amendment) to demand that the Gov’t enumerate its power.

In other words, the proper application of the 9th Amendment is not to assert some new positive right but to falsify any gov’t assertion of power that starts with “Thar ain’t no right to , so we can…”.

[Cyto]

This is the conundrum. You might equally use this decision to begin scaling back the government… No enumerated power to regulate medicine. Therefore no way to ban abortion…

Which all brings it back to personhood.

The body politic is going to have to wrestle with fetal personhood in order to resolve this. Because murder is something that can be outlawed.

The whole thing goes away if we reject the “my body, my choice” argument and define a point of personhood.

Of course, good luck doing that.

[BestUsedCarSales]

You know? I shit talk a lot of these articles, and just posted in Scott’s how it frustrates me that most Reason folks aren’t really discussing the argument made by the majority. Still, Root is at least arguing that the court did have a constitutional way forward, and I think that may be at least consistent. Arguing over the specific history of the law is at least grappling with the originalist framework.

[BestUsedCarSales]

Though it runs into the problem that Roe v. Wade was not decided using the reasoning Root laid out, and so that matters too when it comes to overturning it.

[Overt]

I’m sorry but Root is the worst of all the responders. Every single article is a repeat of the same argument he made weeks ago. He is arguing that since the states felt free to ban abortions in the past, it must follow that they recognized a right to abortion before that.

But that is a wrong reading of the laws in question. The laws in question are clarifying when a is alive, and therefore when it is wrong to kill it. The law implies that you NEVER had the right to murder.

I wouldn’t have a problem with this reading, but Root has now repackaged and repeated only this same argument about 6 times, I’m guessing so that he can continuously tweet over and over again how his writing shows that Alito is a big dummy.

[DefineReasonable]

Agree and add that his interpretation would mean blowing up an airplane was technically a “right” before it was specifically written into law that is was illegal and a crime. The right to Liberty doesn’t include the right to infringe or impair another’s rights to life and liberty etc.

The other big issue I find is that personal rights of the people don’t include rights that in order to be fulfilled require the labor of someone else. While you may have the right to do something, you don’t have the right to force someone else to help you realize that right.

[NOYB2]

Still, Root is at least arguing that the court did have a constitutional way forward, and I think that may be at least consistent.

Do you think he’s the first to think of this argument? It’s been discussed academically and on the fringes for decades. Why do you think nobody made it to SCOTUS?

I’ll tell you: it’s DOA. There is widespread agreement that the 9A simply doesn’t mean what he thinks it means. That is abundantly clear from both its drafting and a long legal history. Therefore, SCOTUS would throw such an argument out. It’s not “the way forward”.

[The New Number Two]

Founding era history strongly supports the view that abortion rights, at least during the early stages of pregnancy, do fall within the orbit of Madison’s Ninth Amendment.

Why would it not apply to the late stages? Why the arbitrary, pseudo-Constututional, line-drawing bullshit? If it’s her body in the 9th week, then it’s her body in the 9th month, right? Grow some balls, and follow your line of legal reasoning to its logical conclusion.

[Diane Reynolds (Paul.)]

to repost a segment of what I posted above, Renquist’s blistering dissent:

The decision here to break pregnancy into three
distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the
drafters of the Fourteenth Amendment.

[Kalasmourn]

They don’t want to admit that their reasoning leads to oking tearing 8.5 month old fetuses limb from limb with foreceps and then crushing their skulls before vacuuming out the brains. Because there is no logic or reason to these things in the end. It’s all motivated reasoning.

[Nelson]

I challenge you to find an instance of that type of abortion being being performed, without medical necessity, on a viable fetus on the last 15 years.

[Jazzizhep]

Give me proof it isn’t happening. Go ahead, try to subpoena all medical records at abortion clinics. Fool.

My proof is the left is fighting to keep abortion legal through term. Why fight for something that doesn’t happen?

[Nelson]

You believe that claiming something is happening doesn’t require even a single point of evidence?

Even worse, you believe that if someone can’t prove the negative, it validates your position?

And your sdditional “support” is the there is a small cadre of extremists who want something to happen, but not for the reasons you claim? A claim which, like your original accusation, lacks any evidence?

There’s a chance someone, somewhere, has made a less valid argument for something than you just did. Not likely, but possible.

[Ted]

Four states have gone to the trouble to enshrine post birth abortion into law in the last few years. Why is that?

[Nelson]

I don’t know. I’ve never looked at the things the legislators in those states said, both publicly and on the floor, during the consideration of the bills. Nor do I think it’s worth my time to look into something that won’t support what you want it to.

If you want to, have at it. But I’m sure you’d prefer to make unfounded assumptions rather than look at facts.

[awildseaking]

This is multiple informal fallacies, both without names.

You have framed the debate in a manner where you being wrong is an impossibility. You demand impossible, unobtainable proof that requires HIPAA violations. You have chosen this standard on purpose because you know it cannot be met. In addition, you have dressed up this fallacy within the burden of proof, corrupting a foundation of logic and reason and warping it into a cudgel. You are not debating in good faith.

[Nelson]

You think it’s unreasonable to expect that if you say something is happening, you should have evidence? Seriously?

When someone says priests and Southern Baptists rape children, that is as a nauseating and extreme accusation. The difference between pedophilia in organized religion and legal, medically unnecessary D&Xs is that there is evidence that organized religions protect and enable pedophiles. That’s not true of legal, meducally unnecessary D&Xs.

Anti-abortionists have even gone so far as to post footage of the D&X of a non-viable fetus and claim it is a viable fetus. They have collected data on third-trimwsted abortions and claimed that they were voluntary abortions of viable fetuses, but they turn out to be late-term stillbirths, genetic conditions that would cause a newborn to die slowly and painfully soon after birth, or other medical necessities.

Stop claiming viable fetuses are killed in legal, medically unnecessary D&Xs. At least until you have actual evidence.

[Cyto]

That progressive governors and legislators are enshrining it in law is not evidence?

If your supposition was true, they would not oppose placing restricting language on these “rare” situations. But they do. They insist that it is entirely a personal choice.

It is an argument, and it is grounded in an ethos… But proclaiming it doesn’t exist because we don’t have Amelia Johnson and her baby daddy on Fox News explaining their decision to abort their baby during the early stages of labor isn’t an argument.

[Nelson]

My position on what legislation should look like used to be that it should surround viability. My actual belief is 24-26 months, when the brain amd lungs are developed enough for survival. A compromise position would be the earliest point a fetus jas been delivered and survived (just over 21 weeks presently).

But that was when I believed that pro-lifers were reasonable and they were being extreme in public to throw red meat to their the anti-abortion extremists.

I have been stunned at the speed at which extreme laws have been passed. It turns out I was foolish to believe that the moderates in the pro-liife movement were in control.

Which brings us to the reason to make abortion legal in all cases through the entire pregnancy: because the last weeks have shown us if you give anti-abortionists any opening, they will push the most extreme laws they can. They cannot be trusted to accept any moderate law or compromise.

I believe that abortion after viability is wrong. Legalizing abortion through the entire pregnancy isn’t a good thing. But making abortion illegal is much worse.

If the only two options are completely legal and completely illegal, completely legal is by far the better choice.

You putting false motives on others is just proof that your argument is weak.

[NOYB2]

My position on what legislation should look like used to be that it should surround viability. […] I believe that abortion after viability is wrong.

“Viability” isn’t a biologically or medically meaningful standard.

If you want an objective standard, take heartbeat, ability to feel pain, or brain development.

I have been stunned at the speed at which extreme laws have been passed.

I see nothing particularly extreme about prohibiting abortion entirely; that used to be the standard in the West and is still in most of the rest of the world.

Sex has consequences. Among them, pregnancy is one of the least serious.

[ThomasD]

Kermit Gosnell says hi.

[Nelson]

Kermit Gosnell was a serial killer and a criminal. Crimes for which he went to jail. No one is talking about criminals.

We are talking about legal abortions. Can you be any.more dishonest or appeal to emotion any harder?

[Ted]

You democrats did a lot to sweep his activities under the rug for over a decade. That’s why he was basically able to operate his surgery of horrors in the open for so long. Now your kind work to give monsters like him legal cover.

[Nelson]

I’m not, never have been, and never will be a Democrat. Their economic and fiscal policies are as delusional and damaging as most Republican cultural policies.

I’m not married to a party so I don’t have to ignore terrible people doing terrible things to defend, nor tie myself into a pretzel trying to elevate individual behavior intp a condemnation of an entire party using guilt by association.

Finally, I’m not workong to give anyone legal cover. If my beliefs were turned into legislation, Kermit Gosnell would be in the exact same situation he is right now: rotting in jail for the rest of his life.

[Cronut]

Because following that line to its conclusion requires them to say that a 9 week fetus and an 8 month baby in utero are the same. That doesn’t work because the entire line of reasoning depends on their “legal personhood” argument, and I don’t think anyone- outside of some blue-haired psychos- are willing to say that an unborn baby at 8 months isn’t a person. If an 8-month baby and a 9 week fetus are the same, and the 8 month baby is a person, then so is the 9 week fetus.

So they have to draw imaginary lines somewhere so they can pretend it’s different. They conveniently draw the line at a point where a fetus starts to look definitely like a baby, because after that point, they can’t dehumanize it to justify killing it.

[DarrenM]

The arguments in favor of abortion have always come across to me a just an exercise in line drawing and rationalizing where that line is.

[Nelson]

That’s also the simplest way to describe a law. Ultimately the entire legislative process is about drawing lines and rationalizing where that line is.

Pretending that abortion law is different than every other kind of law is just navel gazing.

[Jazzizhep]

Roe wasn’t legislative. Or haven’t you heard?

[Nelson]

And? DarrenM criticized the arguments in favor of abortion as “an exercise in line drawing and rationalizing where that line is”. By that logic, laws are not valid because they are exactly that.

My point was it is a ridiculous thing to say unless you oppose any and all laws.

[damikesc]

But law writing was verboten due to Roe.

[Overt]

Rather than make up some right to Abortion, it is far more straightforward to look at what they were actually doing in the laws Root is quoting. They are saying at which point a life has been taken. The clear implication is that they believe women have the right to bodily autonomy up until they are taking another person’s life.

So there is no “right to abortion”. It is a “Right to bodily autonomy”. And it seems clear that the state reserves the right to say when your autonomy is committing a crime by killing someone.

[Jazzizhep]

Roe wasn’t legislative. Or haven’t you heard?

[Jazzizhep]

Forget previous comment. Interface went a little wonky.

[Yatusabes]

Root’s writing has appeared in the Los Angeles Daily News, Chicago Sun-Times, Newsweek, New York Post, New York Daily News, New York Press, Washington Times, WallStreetJournal.com, The Globe and Mail, The Orange County Register, and other publications.
https://reason.com/people/damon-w-root/

Well, with Damon’s impressive academic pedigree, what with “Democracy Dies in Darkness” WahPutz, and the paper that has replaced its masthead with Twitter feeds, per Bari Weitz, and the Orange County Register, who could possibly argue Damon lacks the bona fides to critique the Cracker Jack Box label?

Dude, you need to engage in serious introspection. I would suggest Scalia’s veritable corpus on the US Constitution, but you probably would have a cerebral accident upon reading just one of his opinions

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Seems mighty strange to argue about the P&I part of the 14th Amendment being ignored now, when it was the Slaughterhouse decision which gutted it 150 years ago.

[Rubbish!]

“Thanks to the 14th Amendment’s ratification in 1868, every state must now respect the right to freedom of speech, the right to keep and bear arms, and so on down the line of individual liberties mentioned in the Bill of Rights.”

Not true. SCOTUS has slowly and selectively incorporated rights as they saw fit. Rights under the Third and Seventh have never been incorporated. Parts of the Fifth and Sixth remain unincorporated. The Second was just recently incorporated. And for the Ninth and Tenth? Unlikely that they ever will be. The text of the Tenth Amendment directly interacts with state law, and SCOTUS rarely relies upon the Ninth Amendment when deciding cases.

Plus, if it was so obvious that the 14th protected abortion rights, why resort to permutations and emanations and penumbras? That right there’s the tell.

The majority of SCOTUS does not believe the Privileges or Immunities Clause does much at all. I’d agree it is a more appropriate textual basis than the due process clause for incorporation of the Bill of Rights, but until SCOTUS overrules the Slaughter-House Cases, this theory is not going anywhere.

Alkito did not misread the Ninth or the 14th.

[retiredfire]

Article 5 says that amendments “shall be valid to all Intents and Purposes, as part of this Constitution“.
Thus, this idea of “incorporation” of any amendment, let alone one of the Bill of Rights, by the SCOTUS, seems outside their powers.
The “incorporation” should have been automatic.
Then there’s Article 6, which states that the U.S. Constitution “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Not only did the Framers want the states not to be allowed to violate the Constitution, though free beyond what is enumerated in its tenets, they went so far as to require state judges to ignore their own laws, and constitutions, if the case before them contradicted the U.S. one.
Why this one wasn’t the first article, instead of almost an afterthought, is a mystery to me, but it certainly ranks up there as one of the most ignored portions of our founding document.

[Heresy Hunter]

I think you need a little history education, my friend. States and their governments, agencies, courts, etc, are bound to the constitution that they have ratified, but that leaves open the question of what the constitution actually requires of the states. Principally, Article I section 10 is the part of the constitution that is addressed to the States as limiting their otherwise federally unrestrained powers. John Marshall, a power-grabbing nationalist, wrote for a unanimous Supreme Court the opinion for the 1833 case Barron v Baltimore. Here, your understanding of federal/state relationship as under the constitution is soundly refuted as unknown to the original writers and ratifiers. Nor does the current Court hold to anything like your view, since they rely on the doctrine of incorporation using various phrases from the fourteenth.

[retiredfire]

Hmmm…amazing how the plain language can be so ignored.

[NOYB2]

Sorry to tell you this, but Heresy Hunter is right.

The Constitution defined the union of largely independent states into a bloc with free trade, free movement of people, and common defense.

For much of its history, the Bill of Rights did not apply to the states, and that was confirmed many times by SCOTUS. Incorporation only started in the 20th century, based on the 14A.

[Chuck P. (The Artist formerly known as CTSP)]

And for the Ninth and Tenth? Unlikely that they ever will be.

It has been brought up, but the 9th amendment has never been the sole determination used in a SCOTUS ruling. Bringing it up is a red herring.

[Commenter]

> SCOTUS rarely relies upon the Ninth Amendment when deciding cases.

Because all the Ninth Amendment is saying is that non-enumeration can’t be used as the grounds for denying protection to a given right. It doesn’t in itself specify a mechanism for recognizing non-enumerated rights to be afforded by the constitution — that’s something that relies on other methods that the courts must apply.

But the Ninth Amendment *should* be interpreted to invalidate the reasoning given in *Dobbs* that relies specifically on the non-enumeration of abortion rights as a primary reason for overturning *Roe*.

[Cal Cetín]

I think what the Supremes said about the Due Process Clause can be said instead of the Privileges and Immunities Clause and the 9th Amendment:

“the Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.”

https://h2o.law.harvard.edu/collages/40026

(That sounds consistent with the Howard speech, by the way)

That doesn’t mean the legislature can’t update laws to reflect growing scientific knowledge. If they didn’t think someone is alive until they stir in the mother’s womb, then they won’t classify abortion prior to that time as such a serious crime. But once they realize, oops, it’s alive before that, why would it be unconstitutional to update the law?

Much tightening of abortion laws took place around the same time as the adoption of the 14th Amendment. Can anyone find contemporaneous objection that this was against the Privileges and Immunities Clause? If not, then it’s the dog that didn’t bark, a significant piece of evidence.

[Cal Cetín]

Of course, accepting “quickening” as the cutoff point isn’t going to satisfy the “abortion rights” crowd.

[Nelson]

“But once they realize, oops, it’s alive before that”

This is the heart of the matter, right? There are scientific, moral, and legal definitions of life. Anti-abortionists believe they are all the same, or at least occur simultaneously. I believe that is why, when they talk about life, they usually fail to distinguish beyween the three. To them, there is no difference.

They also believe that the potential for something to happen in the future, no matter how unlikely, requires others to behave as if it is true in the present. In this way of thinking the fertilized egg has human DNA and has a chance (more likely to fail than thrive, but still a chance) to survive until birth, therefore it must be treayed as a person.

The counterargument is that DNA is not destiny, most fertilized eggs fail to survive, the fetus has a 0% chance of survival before 21 weeks and virtually 0% until 26 weeks so it isn’t alive (in a moral sense) before that, that biological life, moral life, and legal life are (and should be) separate events that require separate proof to be considered true, and that the Constitution protects the right for a person to make medical decisions for themselves.

Would you agree with that assessment?

[NOYB2]

There are scientific, moral, and legal definitions of life. Anti-abortionists believe they are all the same, or at least occur simultaneously.

True. And that means that there is no legal right to life until birth.

But the analogous problem exists on the pro-choice side: there is also no scientific, moral, or legal definition of bodily autonomy or privacy.

That’s why we can’t resolve this question at all and need to leave it to the states.

[NOYB2]

The counterargument is that DNA is not destiny, most fertilized eggs fail to survive, the fetus has a 0% chance of survival before 21 weeks and virtually 0% until 26 weeks so it isn’t alive

No, this analysis makes no sense. Viability until a few weeks before birth depends on how willing you are to replace the natural womb with artificial constructs (and how much money you are willing to spend).

In that sense, a fertilized egg is “viable” because we can keep it alive outside the mother’s womb. Right now, that requires another human female, but in the future, it may be a pig or an artificial womb.

Viability is not a meaningful dividing line for abortion.

[Jerry B.]

If Dobbs hadn’t been filed, Roe would still be the law of the land, and Mississippi would have abortion on demand up to 15 weeks, and after that for cases of fetal deformity or risk to the mother. Now several states are out to ban abortion completely.

Sometimes it might be better to settle.

[Kalasmourn]

I don’t know any state banning abortion completely. They all, to my knowledge, have the rape and incest exclusions everyone harps on even though all they really do is cause lying like Jane Roe herself.

They also. to my knowledge, have “life of the mother clauses”. But I personally would not call it “abortion” if the mother and child will die without the performance. Ending an ectopic pregnancy, for example, should not be classed “abortion”, because ectopic pregnancies can never lead to viable live birth.

I hope no state would ban “abortions” in the case where they are medically necessary!

[retiredfire]

Yes, but the “life of the mother” sometimes was used as an excuse because the “doctor” said it would harm her mental health to not abort.
That loophole became not an impediment at all.
I use quotation marks around the term “doctor”, because I can’t imagine anyone, whose stock in trade is saving lives, being willing to take the life of a baby, simply for convenience.

[ThomasD]

” But I personally would not call it “abortion” if the mother and child will die without the performance.”

It’s still an abortion, in medical terms it is no longer an “elective abortion,” it is a potentially life saving necessity.

I suspect in the strict states what you will see is the need for some sort of concurrence – a second opinion or board review to certify facts such as non-viability of the pregnancy, or a recognizable threat to life.

In such states procedures will be allowed pretty much up until full term, but the goal must be saving as many lives as existing medical technology permits.

IOW pretty much the same way it happens in a Catholic hospital now.

[CLM1227]

Termination of pregnancy and abortion are not the same thing in what we are discussing. Terminating a pregnancy in the 7th month to help save a woman’s life need not end with a dead baby. Abortion’s purpose is a dead baby.

[Nelson]

Here is a surprisingly informative article on the terms used and the existing laws in each state: https://www.cnet.com/health/abortion-laws-in-every-state-now-that-roe-v-wade-is-overturned/

Bottom line is that, except for the life of the mother (not rape or incest), several states have banned abortion. Even the states that have rape and incest exceptions mostly require the victim to report the rape or incest to police before it is allowed, which essentially eliminates it as an exception since processing that kind of trauma (plus the added challenges of incest and pressure from family members) is a massive barrier.

As of now 13 states effectively have complete abortion bans, with more in line to join them after trigger laws or proposed legislation are implemented.

“I hope no state would ban “abortions” in the case where they are medically necessary!”

At this point I wouldn’t rule anything out. Anti-abortionists are feeling powerful right now and that usually leads to overreach, especially when moralistic movements are involved.

[NOYB2]

Even the states that have rape and incest exceptions mostly require the victim to report the rape or incest to police before it is allowed, which essentially eliminates it as an exception since processing that kind of trauma (plus the added challenges of incest and pressure from family members) is a massive barrier.

Women who fail to report rapes are helping the rapist to go out and rape other women. A woman who fails to report a rape is deplorable.

And the reason you think this is a “massive barrier” is because of your internalized misogyny: you think of women as weak and unable to deal with the harsh realities of life.

[rswallen]

> The problem with Alito’s opinion is that it stands at odds with the text and history of the 14th Amendment

Well, no. Nothing in the first 7 paragraphs of this article show this statement in anyway. Alito’s opinion is entirely supported by both the text and history of 14A *if* abortion doesn’t fall within the purview of 9A. If Alito’s opinion is wrong, it is because of something way before we get to incorporation: whether there is a right to abortion under common law. If there is, then its a right under 9A, and incorporated against the states under 14A. If there is no such right under common law, it isn’t a right under 9A and therefore not incorporated against the states under 14A. This entirely in keeping with both the text and history of 14A.

[Cal Cetín]

“whether there is a right to abortion under common law. If there is, then its a right under 9A, and incorporated against the states under 14A. If there is no such right under common law, it isn’t a right under 9A and therefore not incorporated against the states under 14A”

Well, I think this may prove too much. Consider the rights husbands traditionally had over their wives under the common law, until legislatures specifically overruled the common law and provided more rights to the wife vis-a-vis her husband. Imagine a husband coming into court today demanding all his common-law rights re his wife!

[Overt]

“a husband might give his wife moderate correction… but it is declared in black and white that he may not beat her black and blue, ” – Commentary on Blackstone (1879)

“and the courts of law will still permit a husband to restrain a wife of her liberty, in the case of any gross misbehaviour.” – William Blackstone. Commentaries on the Laws of England. Vol, 1 (1765), pages 442-445.

If I follow Damon’s logic correctly, this means that because the government set down laws at which point a beating was too severe, or at which point (gross misbehavior) detaining her was acceptable, that there is actually an unenumerated right for Men to beat and jail their wives under certain conditions. Correct?

[NOYB2]

f there is, then its a right under 9A, and incorporated against the states under 14A.

Incorporation is not automatic; SCOTUS needs to explicitly make that choice, and I think it’s pretty clear they are not going to do that for the 9A.

[drisco304]

Unenumerated rights are such a vague concept. Do you have a list (enumeration) of unenumerated rights? Pretty sure abortion was not an unenumerated right in the 18th century.

[Nelson]

How about the right to make medical decisions for yourself? Or the right to be free of government coercion regarding your body?

I don’t know of any reasonable person making a detailed argument that claims abortion itself is a right. That’s the shorthand, but abortion is a right because bodily autonomy and medical decision-making are considered rights.

[Ted]

Great, I’m with you. With one caveat. The mother needs to get the written, notarized consent of the baby to proceed with an abortion. No proxy signatures either.

[Nelson]

Sure. As soon as you can achieve a consensus that life begins at conception. Even a significant percentage of pro-life supporters don’t believe that.

Saying something and talking about DNA doesn’t accomplish that.

First establish your premise, THEN use it as the basis of a conclusion. In logic having your premise and conclusion be the same thing is rightfully rejected as an invalid argument.

[Ted]

No consensus needed. It’s human life, and you monsters will never deal honestly. Your friends have passed legislation in four states so far that allows a baby to be killed even after successful delivery, based on the mental state of the mother.

Let’s face it. You and your friends are evil. Case closed.

[Macy's Window]

There is no legal right to make medical decisions for yourself. Maybe you think that there should be but there isn’t.

The govt makes rules about what drugs you can take, what surgery you can have, selling organs, killing yourself, etc.

But we all know that abortion isn’t a medical decision.

People object to abortion because it takes another human life.

[Nelson]

“People object to abortion because it takes another human life.”

No, a small group of people object to abortion because they believe that it takes another human life. The vast majority of people don’t believe life begins at conception.

[NOYB2]

How about the right to make medical decisions for yourself? Or the right to be free of government coercion regarding your body?

I don’t have that right. You don’t have that right. So don’t pretend that this is a right or principle recognized in law or the Constitution.

[Davy C]

My answer to the key question, which I recently spelled out at length,

Your old article doesn’t become more correct just because you cite it. It’s still as wrong as it was when I read it the first time.

[Kalasmourn]

There quite simply is no “right to abortion” in the Constitution. It does not exist. It never existed. Far left activist judges created it whole cloth while mumbling about penumbras and emanations.

Until the civil war there was also an implied “right to own slaves”. Should we restore that one, too? We could say that ending slavery violated property rights.

The most important thing is that these same far left activist judges seek to take away our actually enumerated individual right to keep and bear arms. Stalin, Mao, and yes, Hitler, showed what happens when a population is disarmed.

[Nelson]

The slavery trope supports abortion, not banning it. Slavery is almost universally viewed as morally wrong. The consensus on its moral failing (like the illogic of denying rights to living, breating human beings) grew steadily grew steadily and constantly over time, going from near-universal support in the dawning days of civilization to near-universal opposition today.

Abortion has not done that. Life beginnibg at conception as a moral concept has remained below 20% support since it started being tracked. Despite influence campaigns, vocal politicians and activists, lobbying efforts, and billions of dollars, the overwhelming consensus has remained the same: abortion is not immoral.

When something is clearly and obviously wrong, opposition to that thing grows. Opposition to abortion hasn’t budged. So slavery is an opposing example to abortion, not a supporting example.

[Macy's Window]

Slavery wasn’t universally viewed as wrong in 1860. It was widely accepted in most of the world, including much of the United States.

If people don’t think that abortion is wrong, then what are you worried about? It will remain legal.

When some practice is universally legal, people tend to think that it must be ok. Support for abortion increased after Roe but has generally declined since the late 1970s,

Your problem is that the more that people think about abortion, the more it disturbs them. Just like slavery.

[Nelson]

You are trying to restate my point. Very dishonestly. I said that support for banning abortion hasn’t gained support, due to the fact that it isn’t convincing.

When you have a convincing moral argument (and spend billions of dollars trying to convince people of it), you gain support. Banning abortion has not gained support in 50 years of effort. The four categories (illegal in all cases, illegal in most cases, legal in most cases, and legal in all cases) haven’t moved since Roe was decided.

“If people don’t think that abortion is wrong, then what are you worried about? It will remain legal.”

Because in states that have a majority of anti-abortion politicians in their legislature it can be made illegal throughout the state even if there are counties or cities that overwhelmingly support legality. It is a cynical version of federalism that chooses the preferred level of government based on preferred policy outcomes.

“the more that people think about abortion, the more it disturbs them”

Ni, the more people think about abortion, the more their beliefs remain the same. That is abundantly, statistically, and provably clear. It doesn’t disturb most people to have abortion be legal. It never has. And it hasn’t changed in 50 years.

[DarrenM]

The problem with unenumerated rights is that someone still has to decide exactly what those rights are since a right can’t be enforced or protected without knowing what it is. If that someone (SCOTUS in this case) can decide a thing is a right, it can just as easily decide it isn’t.

[DarrenM]

It’s probably still useful in that it makes it a little easier for people to advocate that something is a right. This can then make it more likely that it becomes an enumerated right in the future.

[I, Woodchipper]

actually it’s quite simple and easy.

“Does the constitution explicitly give the government the right to do (x) to me?”

“No? then doing so would violate an unenumerated right, as mentioned in the 9th amendment”

[Cyto]

That does not work for incorporation under the 14th though.

This reading would basically contradict the language of the 10th, reserving all others to the states and the people. Yiuu6

[Nelson]

Reserving all other powers, not reghts. The government (state, federal, or otherwise) doen’t grant rights. The states are no more justified in infringing rights (enumerated or not) than the federal government in a system based on natural rights like the Constitution.

[Macy's Window]

Your idea is … interesting … but it has nothing to do with Constitutional law. Constitutional law recognizes all sorts of govt interests that aren’t explicitly defined in the document.

This is consistent with the Constitution as there were innumerable govt practices in 1789 that were not explicitly mentioned in the Constitution.

The Constitution doesn’t allow that the govt can fund an air force, for example.

[Ersatz]

^THIS^
Someone still has to decide what those rights are. The question become – How does this get done? The constitution is explicit about what its intentions are re the state and federal powers… and the role of the courts. It never says the court is the mechanism to amend the constitution.

Once a right has been identified it has to be come constitutionally enumerated for it to be involved in SCOTUS reasoning. If it isn’t added\recognized to\by the constitution via amendment then you are stuck with working with what you’ve got.

The 9th says there are other rights not identified within the constitution but the process for securing those rights for people are always the same – have them incorporated into the constitution. It is saying that the constitution as-is doesn’t preclude more rights being protected but the way they are protected is to spell them out in the document and the way to do that is via the amendment process – not judicial fiat.

[Ersatz]

in case it is not already obvious…. IANAL
…this is just my hot take on the matter.

[Nelson]

So you are arguing that the Ninth Amendment requires that the myriad of other rights, from privacy to medical decisions to spousal privilege to any one of dozens (or hundreds or tbousans, for all I know) of others that have been established over time through the judicial system, aren’t rights? That the only rights that count are those that are enumerated and the amendment process must be used for every single one?

Given the idea of natural rights that imbues the Constitution and the vast number of rights that Americans have enjoyed for hundreds of years, doesn’t that seem like a bad system?

[Ersatz]

no.. only that to ensure they are constitutionally protected ….yada yada.
I’m not saying the unenumerated ones cant be rights.. just that they must be defined and recognized in the constitution.
they can still be recognized and protected by legislatures in a patchwork manner

[Ersatz]

basically i’m against the defining and enshrining taking place all in one place at the same time. Defeats the purpose of divided government.
All the other things you mentioned are honored to one degree or another with just local ordinances or what have you. Not sure any of them ever went to SCOTUS for any reason. You want any greater protection – constitutional one, add it explicitly.

[Longtobefree]

Regardless of how you read the ninth, the 14th gives the baby due process rights. So abortions are OK after a judge rules against the continued life of the baby.

(if I have to accept that men are women, you have to accept it is a baby)

[Yatusabes]

if I have to accept that men are women, you have to accept it is a baby

Game. Set. Match.

[Nelson]

“the 14th gives the baby due process rights”

If, and only if, you can establish that a fertilized egg is a baby. Which you haven’t (and can’t).

[Ted]

Oh, well shit, in Nelson says we have to prove that then I guess we have to do it.

Seriously, this isn’t up to you, and whatever tests you’ve cooked up are meaningless.

[TJJ2000]

Pro-Life people aren’t looking for clarity, truth or sense on the subject.

They have ingrained in there sheeple imaginative minds that saving there golden ‘unicorn’ is top priority (which isn’t even theirs – ironically they have ZERO real interest in it; it’s someone else’s) and any amount of Gov-Guns, Slavery, Dictation and Tyranny is all A-Okay as long as their precious golden ‘unicorn’ is birthed.

But they sure will dump out a heck of a lot of B.S. to self-justify themselves and their dictation on those other ‘evil’ people.

If you cannot support ?baby? freedom (i.e. Fetal Ejection)
UR supporting Gov-Gun FORCED reproduction…

Treating women as-if they are nothing but “baby” incubators for their ‘golden unicorn’ imagination to the point of enslaving them (“banning” choice of self-ownership) isn’t a direction that is healthy for this nation founded on Individual Liberty and Justice for all.

And their acknowledgement of this comment… ZERO… Pro-Life people already know what they are doing is tyrannical dictation. They just don’t care because of their precious golden unicorn. Which probably carries a 14k-Gold party-affiliation bias with it 90% of the time.

[Ersatz]

Now try this same argument and apply it to your side…
It would be an interesting excercise for you if you were capable of honest evaluation of the issues involved…. you know – like how debaters sharpen their own arguments by arguing the opponents side.
So.. be just as condescending and use your over-the-top dishonest ‘mind reading’ and psychologist skills on the pro-baby killing side.

[see what I did there? i used your colorful tactic of mocking and denigrating the other argument and its adherents within my suggestion.]

I suggest that your comment here betrays your own position as mirroring the motivations you apply to those you hate – and be clear- you are showing your hatred for people, not ideas.

[TJJ2000]

If you cannot support ?baby? freedom (i.e. Fetal Ejection)
UR supporting Gov-Gun FORCED reproduction…

See how I used your precious “baby” there…

I’ll play along with the golden unicorn is a baby but the other side still make’s ZERO sense…

It’s not…
Enslave the Baby and the Mother.
It’s Liberty for the Baby and the Mother.

There; Your precious golden unicorn was recognized as a “baby”.

[Ersatz]

So…you couldn’t make yourself try to see the other side …. expected, of course. You are so locked in your hatred and projection that you are ‘king of infinite space’ [ie – your seething take on this issue has made you nutty].

[TJJ2000]

The other side to a T; Whether they want to admit it to themselves or not…
Force those Pregnant Women to reproduce!!!

Do you deny the other sides intentions?

They like to pretend it’s about “murdering” babies. But there not really talking about “babies” are they? Because if they were they could’ve easily at the very very least settled with very very Pro-Life ruling of Roe v Wade which gave choice only on the chance of baby existence being absolutely 0%…. (It didn’t get much more Pro-Life than that).. Or they could’ve simply made it illegal for a Doctor to intentionally “murder” said fetus…

But nooooooooo…. None of that is what they’re lobbying for and could’ve lobbied for all along. What they wanted was to FORCE every pregnant woman to deliver a child out of some unicorns have potential theories. They essentially said, “You have potential; so [WE] Gov-Gun packing mob is going to FORCE you to reproduce.”

[Macy's Window]

You should take your medication, TJJ2000. I think that you’ve missed a few doses.

[Nelson]

Finally we agree on something.

[n00bdragon]

This is a really stupid article that wastes several pages of copy (gotta fill that word count) for what essentially boils down to one sentence:

Now we reach the key question: Do abortion rights fall under the protection of the Ninth Amendment? If the answer to that is yes, then that means that abortion rights apply against the states via the 14th Amendment.

The answer to this question is trivially yes, but only if the 9th amendment covers abortion, which is ludicrous on its face, but even if you entertained the idea that it did it gives more ammunition to pro-life stances by way of arguing that the rights of the mother cannot disparage the rights of an embryo within her womb.

The one saving grace of Roe was that it took a legal question that hinged on whether a thing was one person with a single set of rights or two people with separate sets of rights and made a decision (and by its own admission, an imperfect decision) about where to draw the line between when an entity stops being one person and splits into two distinct entities for the purposes of law. Is that a stretch of judicial authority to decide? Yes. But in the absence of legislation, the line had to be drawn somewhere in order to make a decision. Where should be the line actually be? Should there be a single hard line at all or should be there a gradient series of lines? Should the line be time-based or fetal-development based? These are all questions best addressed by a legislature, but they can’t simply remain unanswered, and my biggest problem with Dobbs is that it doesn’t address this aspect of Roe. The purpose of supreme court decisions is to make adjudications one way or the other so that the exact same questions remain unanswered. If a case exactly like Roe popped up again, I can see it going all the way to the Supreme Court again. This question of whether a woman has complete individual rights over what is essentially a part of her body or whether two distinct people exist is returned to an unanswered state by Dobbs. Is the SCOTUS the best place for that question to be answered? NO. But until a law answers it, someone has to make that call when the people appear in court.

[TJJ2000]

The rights of my precious golden unicorn….

If you cannot support ?baby? freedom (i.e. Fetal Ejection)
You are trying to use golden unicorns (i.e. mythical creatures)
To Gov-Gun Dictatively FORCE someone else to reproduce.

[NOYB2]

The answer to this question is trivially yes, but only if the 9th amendment covers abortion,

The answer to that is trivially no, because the 9A has never been incorporated; it was originally not intended to apply to the states and it currently does not apply to the states.

Incorporation isn’t an automatic process. SCOTUS judges need to put on their magic glasses and consult the oracle bones. For now, they have reached the sensible conclusion that incorporation of the 9A would make no legal sense, and that legal chaos would ensue if they did.

If there will ever be a 6:3 progressive majority on the court, I expect they will incorporate the 9A, and they will then use to impose every positive right they can imagine on the American people. I intend to move out of the country before that happens.

[Ersatz]

i would say the 9th isn’t there to offer protection – How can you offer protection to something that isn’t defined?? It just serves to indicate the ability to add specific protections (that currently are not there) to the constitution. To show that future actions of the state may require reigning in. The adding must be done via due process.

[MatthewSlyfield]

The problem with Alito’s opinion is that it stands at odds with the text and history of the 14th Amendment, which says: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

The problem with this claim is that the Supreme Court a long time ago effectively neutered the Privileges and Immunities clause in favor of using “Substantive Due Process”, which has squat to do with the P&I clause.

[TJJ2000]

Alito’s opinion in a nutshell was The People have a right to privacy (PERSONAL CHOICE in their PERSONAL LIFES) ……… Except for ……… those nasty pregnant women.

Read it… It’s quite appalling.. He uses “potential life” (exact phrase) to cancel pregnant Womens rights and no one else’s.

[TJJ2000]

The last time we had people amongst us that didn’t own themselves was when slavery was happening…. And frankly that is exactly what this ruling did. It Enslaved Women to reproduce because propaganda built up the golden unicorn belief.. “Potential” is NOT a word enslavement should be based upon.

You have potential; so that’s our excuse to enslave you???

Liberty for the Baby and the Mother…
Not ENSLAVEMENT of the Baby and the Mother…

[Ersatz]

take a pill man!

[Ted]

Yeah, he’s really losing it on this subject.

[NOYB2]

The People have a right to privacy (PERSONAL CHOICE in their PERSONAL LIFES) ……… Except for ……… those nasty pregnant women.

Under the federal constitution, you do not have a “right to privacy”. You do not have a right to “personal choice in your personal life”. All you have is protections against “unreasonable searches and seizures”, a specific prohibition on law enforcement.

Your state constitution may grant you such a right.

[TJJ2000]

And your stance is exactly why the 9th Amendment was written.
You’re trying to “construe” and deny other rights held by the people.

Who amongst us doesn’t believe they have a right to make PERSONAL CHOICES in their PERSONAL LIFE’S as long as it doesn’t concern others???

[TJJ2000]

And ironically that’s where Pro-Life bases all of it’s Power-Mad self-justification is in that ‘other’ being their golden unicorn of potential.

[NOYB2]

And ironically that’s where Pro-Life bases all of it’s Power-Mad self-justification is in that ‘other’ being their golden unicorn of potential.

Well, neither being pro-life nor power mad, I wouldn’t know.

You should know about the “power mad” part, though.

[TJJ2000]

Individual Liberty Power-Mad over State Gov-Guns…..
Yep; You got me…

[NOYB2]

And your stance is exactly why the 9th Amendment was written.

No, the 9th Amendment was written to limited federal power only. That is crystal clear from its draft:

That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress. But that they may be construed either as making exceptions to the specified powers where this shall be the case, or otherwise as inserted merely for greater caution.

It was not written to allow SCOTUS to define an endless litany of positive rights.

[Ersatz]

^THIS^

[TJJ2000]

You have a point UNTIL the Civil War that ended slavery
And that 13th and 14th Amendment you want to pretend were a mistake and doesn’t exist.

[TJJ2000]

SCOTUS and the newly adopted 13th and 14th Amendments over-stepped their authority by freeing the slaves nationally… Then you do a run-around and pretend the U.S. Constitution is ‘federal over-reach’…

That is exactly what you’re trying to preach here… Well; let me clue you in. Even the State government officials take an oath to the US Constitution…
https://www.law.cornell.edu/uscode/text/4/101

Every member of a State legislature, and every executive and judicial officer of a State, shall, before he proceeds to execute the duties of his office, take an oath in the following form, to wit: “I, A B, do solemnly swear that I will support the Constitution of the United States.”

[TJJ2000]

So lets summarize the excuse to protect the golden unicron…
— Slavery should have never ended.
— Right to Privacy doesn’t exist
— A Woman’s pregnancy is only the business of the State.
— And State’s don’t have to adhere to the U.S. Constitution

Am I missing any?

[NOYB2]

You really are a deeply dishonest, manipulative, and vile human being.

[Macy's Window]

TJJ2000 is pretty clearly mentally unbalanced. Charity.

[TJJ2000]

Bigotry and Gov-Gun Force isn’t going to save this nation…
As-if that wasn’t entirely on full display already…
Take a chance; Change your minds…

I’m a Pro-Choice Republican because Anti-Choice isn’t compatible with the LIMITED government party.

[TJJ2000]

I should add;
You have every right to keep your mind made-up about the subject.
Just change your minds about the use of Gov-Guns against ‘others’.

[NOYB2]

As I explained to you, the 9A was never incorporated, hence it doesn’t apply to the states.

If you wish the 9A to be incorporated, make your case to SCOTUS.

Until then, you are simply wrong as a matter of law.

[TJJ2000]

Are there any other parts of the Bill of Rights you’d like to cancel to save your precious unicorn???

[Ted]

Now you’re just raving.

[TJJ2000]

And never-mind even the Dobbs ruling established the consistency of a ‘right to privacy’ just not for those icky pregnant women.

[NOYB2]

And never-mind even the Dobbs ruling established the consistency of a ‘right to privacy’ just not for those icky pregnant women.

And I have clearly stated that I’m with Justice Thomas: that is wrong. Obergefell, Griswold, etc. should be revisited as well.

[Ersatz]

My take – maybe it identifies the need for a specific right to privacy BUT that should still req a constitutional amendment to allow invocation of the power of the state to protect it [at the federal level, i guess, anyhow]. In the absence of that – the only ruling should have been constitutional or not based on the existing constitution at the time.

[NOYB2]

I think a constitutional amendment guaranteeing a right to privacy would be good, after a careful drafting and an extensive public debate on it. Writing such a thing is not easy. Currently, 11 states have privacy protections in their constitutions. It might be good for more states to adopt such protections before a federal amendment.

But for nine judges with little expertise in the area of privacy to create such a “right” in an opinion is a recipe for disaster.

[Ersatz]

totally agree

[MatthewSlyfield]

I read it and I would agree that his treatment of unenumerated right is appalling.

But that does nothing to change or challenge the fact that the statement I quoted from the article is not a valid criticism given other non-abortion related case law on the P&I clause and “substantive due process”.

[Dan S.]

I’ve always thought that Roe v. Wade should have been based on the 9th amendment, rather than on “penumbras” or “emanations” of the 14th, which are admittedly a kind of fanciful concept.

But I wasn’t really aware of the history behind the 9th amendment. According to another recent article here, it was passed because people feared that otherwise, naming specific rights the Federal government had to respect would imply that it didn’t have to respect any others. That could suggest that the 9th couldn’t be “incorporated” to restrict what laws states could pass. But the 10th amendment says explicitly that the Federal government does not have any powers not directly granted to it, so the 9th isn’t needed for that, and could be incorporated to operate against the states. But it’s interesting that Howard’s speech referred specifically to the first eight amendments.

[NOYB2]

The WIkipedia article on the 9A explains this quite well. The draft text of the 9A read:

That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress. But that they may be construed either as making exceptions to the specified powers where this shall be the case, or otherwise as inserted merely for greater caution.

The 9A could theoretically be incorporated, resulting in a country with lots of individual rights (many of the positive rights), but still retaining its massive social welfare system and system of taxation. The end result would be much closer to communism than libertarianism, and it would fail miserably.

That is not the way forward for achieving a libertarian society, it would be a disaster for libertarianism and liberty.

[WuzYoungOnceToo]

Jimminy Christmas. This might well be the most legally and historically ignorant piece I’ve ever read here.

[Macy's Window]

That’s a bold claim. I agree that it is on the short list.

[NOYB2]

It is questionable whether incorporation of the Bill of Rights was ever the right thing to do legally or politically, before the 14A or after its passage. But one thing is crystal clear: incorporation of the Bill of Rights requires an active act of SCOTUS, it is not automatic. Like other parts of the Bill of Rights, the 9A has never been incorporated, hence it does not apply to the states.

Now, you might argue that it ought to be incorporated, for logical consistency. Perhaps, if that’s the hill you want to die on. Incorporating the 9A means the death warrant for liberty in the US.

Oh, at first, you’ll win a few cases that make the country more libertarian under the 9A. But even if SCOTUS only uses the 9A to increase liberty, the country will not become libertarian by a long stretch, because that would mean abolishing the 16A and limiting state taxation, since a country that takes half of everybody’s earnings for government use cannot ever be libertarian; it is not a functioning countyr.

But it wouldn’t get there anyway. Within a few years, the progressives would get started inventing all sorts of right: a right to housing, a right to be free from gun violence, a right to not having one’s reputation smeared, a right not to be offended by someone else’s religion, etc. Does that conflict with the rest of the Bill of Rights? Sure. But then you have the 1A vs the 9A and the 2A vs the 9A and history be damned, and when there is a conflict between parts of the Constitution, SCOTUS gets to pick. Incorporation of the 9A would end in disaster for the same way communism does: it assumes that you already have a society composed of people ideally suited to its utopian society; and like well-meaning communism, incorporation of the 9A would end in totalitarianism.

You cannot impose libertarianism or “liberty” on the US by fiat. Such a form of government requires substantial changes to other amendments passed after the BoR. More importantly, the vast majority of Americans simply don’t want that form of government.

If you care about libertarianism or liberty, the only way to get there is to create the legal breathing room for at least some states to operate in a more libertarian fashion; that is, to get the federal government out of the states’ business. Yes, the price you pay for having some libertarian states is having a lot of very progressive and conservative states. But the alternative is having a constant fight at the federal level between two authoritarian ideologies and getting no liberty.

So, again, legally your argument is wrong. And from a libertarian point of view, incorporation of the 9A would be a disaster.

[TJJ2000]

“get the federal government out of the states’ business”

You’re pretty sold on SCOTUS upholding the US Constitution nationally being ‘federal over-reach’… You know who else was sold on that theory? Slave State’s (thus the Civil War).. And along came the 13th and 14th Amendments…

I’ll admit that sometimes those Amendments have been curses but allowing Women to chose if they’re going to reproduce or not isn’t one of them.

[TJJ2000]

Also I find it humorous how you like to pretend every woman’s pregnancy is the ‘State’s’ business… So long LIMITED government ideology… If it isn’t for the Federal Gov-Guns it’s for the State Gov-Guns… F’That whole Individual Liberty thingy… /s

[NOYB2]

Well, I don’t find it “amusing” that you keep attributing political positions to me that I don’t hold. In fact, you are acting like an asshole.

[Ted]

Murdering babies is the state’s business. Just like murdering everyone else is the state’s business.

[NOYB2]

You’re pretty sold on SCOTUS upholding the US Constitution nationally being ‘federal over-reach’… You know who else was sold on that theory? Slave State’s (thus the Civil War).. And along came the 13th and 14th Amendments…

You really need to read up on the causes and history of the Civil War before having debates on it.

[NOYB2]

You’re pretty sold on SCOTUS upholding the US Constitution nationally being ‘federal over-reach’… You know who else was sold on that theory? Slave State’s (thus the Civil War).. And along came the 13th and 14th Amendments…

Neither the 13A nor the 14A were needed to end slavery.

Slavery persisted because until the mit-19th century, both SCOTUS and Congress supported it in violation of the US Constitution.

The same process repeated itself when in the 20th century, both SCOTUS and Congress supported segregation and eugenics in violation of the US Constitution.

I’ll admit that sometimes those Amendments have been curses but allowing Women to chose if they’re going to reproduce or not isn’t one of them.

So are you going to impose the “right to choose” on Germany? On India? Are you willing to fight a war over it?

US States were intended to have almost the same powers in all areas of government than independent nations, exceptions being national defense, trade, freedom of movement within the US, and a requirement for a republican form of government.

The US was not set up as a libertarian nation state. And while it may seem attractive to use the 14A to turn it into that, such an attempt would fail, for the same reason you cannot create a communist utopia from the top down.

[TJJ2000]

And your counter-point (without all the garbage) is……….
Ending slavery nationally was a mistake because every State is an island..

Any excuse…. Any excuse at all to save your imaginary unicorn…

[NOYB2]

And your counter-point (without all the garbage) is………. Ending slavery nationally was a mistake because every State is an island..

Are you reading impaired or plain dumb?

I said that SCOTUS should have ended slavery right after the founding of the US. That’s because slavery was incompatible with the US Constitution as originally written.

The 13A and 14A were necessary because SCOTUS had failed at its job.

[Scotterbee]

Bad armchair lawyer. By your reasoning SCOTUS should have struck down the Constitution’s 3/5ths compromise because it violates the Constitution.

[NOYB2]

Bad armchair lawyer.

Really? How so?

By your reasoning SCOTUS should have struck down the Constitution’s 3/5ths compromise because it violates the Constitution.

How does it violate the Constitution? It is part of the Constitution and it doesn’t even reference slavery.

(Of course, the irony is that Democrats still are up to their old tricks, these days counting their illegal serfs as “persons” for apportionment. Disgusting.)

[awildseaking]

“As its drafting and ratification history demonstrate, the 14th Amendment was originally understood to protect a broad range of individual rights from state infringement, including unenumerated rights.”

Just stop. There would be countless records of debates on laws on the books at the time if 14A was intended to upend everything. This is like saying 2A only covers the guns of 1791 even though all the founders saw the advancement of firearm technology and didn’t say a thing for the next 40 years.

[Truthteller1]

What a contorted mess of reasoning. Root is a demented progressive cuck who, like the rest of them, confuse feelings for facts.

[Patrick Trombly]

The Ninth Amendment does not protect the right to an abortion.

Arguably it does protect the right to bodily autonomy.

In fact that is probably more “originalist” than Alito or Gorsuch.

But those are different.

And the difference is that if you are going to argue “unenumerated rights,” you can’t logically then enumerate them, so as to protect only one specific, very narrow, set of choices that one might make with one’s body. That narrow approach distinguishes some bodily choices from others, and thus implicitly accepts that bodily choices are valid policy questions, which is all that Alito wrote.

There is no legal, or logical, or fair, or equal, argument for “my body = my choice” only for some people’s bodies and choices.

It has to be all of them. Unless/until what I choose to do with my body harms an involuntary participant in the choice, it’s none of the government’s business. Period.

This is the winning argument. It’s also the only deal I’m willing to make. After two years of the Governor – not even with legislation but by executive decree – controlling whether, when and for what purpose I could take my body outside my own house, the people who supported that are now dusting off their “my body = my choice ” signs?

And they want my support?

No. Park’s closed. Moose out front should have told you.

[NOYB2]

The Ninth Amendment does not protect the right to an abortion. Arguably it does protect the right to bodily autonomy.

The 9A simply does not apply to the states; it has never been incorporated by SCOTUS. So, it’s only ever a limitation on Congress.

[Dillinger]

now now, the seventh or eighth time he argues the point may just convince us all …