It's All About the Jimmy Hats
Rethinking the constitutional defense of reproductive rights after Dobbs via the Ninth Amendment
In 1991 I was in Geneva serving as a technical advisor to the World Health Organization's Global Programme on AIDS. We were chipping away at a task that seemed insurmountable: the exponential growth of the AIDS epidemic. But we knew our strategy—which relied on affordable condoms and clever advertising—could, at least theoretically, work. All we needed was user compliance.
The United States, however, wasn't pulling its weight, despite having plenty of money and technical expertise. Yes, the Centers for Disease Control was moving forward, publishing an article in 1981 about an opportunistic infection affecting immunosuppressed gay men. Four years later, an HIV antibody test was developed. By 1987, even Surgeon General C. Everett Koop had stepped up to the plate, urging that the nation's physicians recommend condom use for sexually active patients.
But most Americans seemed as if they couldn't care less, staying far away from offenses to their Puritan sensibilities. Homosexuality, anal sex, IV drug use, and condoms? Not topics they were eager to help with. It didn't improve matters that the U.S. Supreme Court had recently reaffirmed that criminalizing homosexuality was constitutional in Bowers v. Hardwick (1986).
In Europe, though, I saw billboards that displayed an erect penis wearing a condom. Play safely was the tagline. I was informed not to hold my breath expecting the United States to follow suit. That was not surprising. Condom advertising, in and of itself, was forbidden on the radio, and print ads for them had vanished too. There was also the matter of obscenity law precedent, Miller v. California (1973) in particular. Did billboards of erect penises appeal to prurient interests based on local community standards?
I vented my frustration to Dr. Jonathan Mann, the founder of WHO's Global Programme on AIDS. How can this be? It's a worldwide epidemic! Since when is the truth immoral? Or obscene? And what about our sexual rights?
We have no sexual rights, Jonathan quickly informed me.
That can't be true, I continued. It makes no sense.
Read the Constitution, he said.
I spent the next 10 years studying constitutional law, especially original documents relevant to the Bill of Rights. I dug into the writings of, and correspondence between, James Madison and Thomas Jefferson. I also took a deep dive into the relevant Supreme Court cases, eventually writing two books about sexual rights: Sexual Rights in America: The Ninth Amendment and the Pursuit of Happiness (2003) and Romance in the Ivory Tower: The Rights and Liberty of Conscience (2007).
I was now officially a "sexual rights" guy, well aware that the story of legal condom acceptance throughout America could be traced back to Connecticut in the early 1960s. The state's government loathed jimmy hats and every other form of contraception, and its ban on them ended up being reconsidered by the Supreme Court in Griswold v. Connecticut (1965). The Court struck down the Connecticut statute because it violated "the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights."
Though the outcome was laudable, the reasoning was disappointing. If inexplicit rights radiate as light emitting from the Bill of Rights, it's easy enough to claim that light can radiate from every other contract, social and otherwise. That, clearly, would damage the value of certainty and clarity one wants from contracts.
This is not to say that I oppose the right to privacy; quite the opposite. I'd argue, instead, that it was self-evident. Justice Arthur Goldberg's concurring opinion in Griswold agreed. The Ninth Amendment, with its call upon the rights retained by the people, he asserted, is more than sufficient to justify the right to privacy. Better yet, it's a rationale anchored in the history and language of the Bill of Rights, not just "emanations" that only this Court appeared to see.
When Justice Goldberg soon left the Supreme Court to become the U.S. Ambassador to the United Nations in 1965, he seemed to take the Ninth Amendment with him. One notable exception appeared in the opening statement of Roe v Wade on December 13, 1971. Sarah Weddington, the attorney who represented Jane Roe, asked the Supreme Court to affirm a district court ruling that the Texas abortion statute was unconstitutional "because it interfered with the Ninth Amendment rights of a woman to determine whether or not she would continue or terminate a pregnancy."
However, when Weddington reargued Roe v Wade before the Supreme Court on October 11, 1972, she shifted her position to emphasize that the Texas abortion statute improperly invaded a right possessed by pregnant women to choose whether or not to terminate a pregnancy—a personal liberty embodied in the 14th Amendment's Due Process clause–or more generally, a pregnant women's right to privacy as codified in Griswold.
In either case, that reasoning has drawn to a close, thanks to a recent Supreme Court decision, Dobbs v. Jackson's Women's Health Organization. According to Justice Samuel Alito, there's no right to abortion since "it is not a fundamental constitutional right because such a right has no basis in the Constitution's text or in our Nation's history."
If one turns a blind eye toward the Ninth Amendment, one might reach such a conclusion, but that's hardly a sustainable rationale. All such facile declarations are premised on the nonexistence of the Ninth Amendment. Perhaps an abridged version of the Constitution was inadvertently circulated among some Justices?
Why the Ninth Amendment?
When James Madison drafted the Bill of Rights, he feared making some rights explicit would make it seem that only those rights demanded respect from government. But many citizens demanded a Bill of Rights, and some state constitutions already had them. Since ensuring ratification of the U.S. Constitution was his first order of business, Madison went along with writing a Bill of Rights. But to cover his own fears, he affixed an additional class of rights—those unenumerated—onto the Bill of Rights to ensure that they were also protected against government interference.
"It has been objected," James Madison proclaimed in a speech before the first Congress on June 8th, 1789, "against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government and were consequently insecure."
How did he remedy this? With the Ninth and 10th amendments. He argued, after doing his best to articulate the specific rights in the first eight amendments, that additional adjustments were necessary to make it clear that enumerated freedoms weren't by any means the whole story of Americans' rights. The Ninth Amendment states that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The 10th declares that "the powers not delegated to the U.S. government, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
Contemplating, say, the East German police state, it seems obvious enough that the right to privacy is central to keeping a people free. There, the Stasi were everywhere, spying and wiretapping everyone and everything. And they were paying your friends, neighbors, and co-workers to spy on you and report your whereabouts regularly.
The right to privacy is the first and possibly the most important right that dictatorships and police states violate. That finding alone should be sufficient to show that the right to privacy is fundamental to a free democracy. Your right to vote, your right to religion, your right to speech and press—and so much more—all depend upon your ability to make decisions in private; have discussions in private; and ultimately exercise all of your constitutional rights, to some degree at least, in private.
So, is the right to privacy an example of a right retained by the people and protected by the Ninth Amendment? Most assuredly so. You don't need penumbra to light the way. And you don't need a civil rights amendment, like the 14th, to come to your rescue either. Madison made sure of that. The Ninth Amendment is one of the original amendments in the Bill of Rights.
The right to privacy, as summoned in Griswold, also has obvious implications for our sexual and reproductive freedoms. But even more basically, the people must retain a right, a freedom that is, to make reproductive choices on their own. It's impossible to even conceive of "the people" without this reproductive right. Reproduction is the biological engine that drives natural selection. Is that a right retained by the people? How could it be otherwise? Must it be granted by a right to privacy? That question seems no less ludicrous than asking about any other fundamental biological process. Do people have a right to physically mature? Grow taller, for example?
That said, a right, like the freedom of speech, is merely held in abeyance until we exercise it by acting on our choices. Consider religion: If we all had to be Catholic, that wouldn't be a freedom to exercise religion. It would be forced religious affiliation. The same is true for the right to make reproductive choices. Though reproduction is intrinsic to our biological nature, if the only way we could exercise this "right" is by engaging in reproductive acts, this would be nothing other than federally mandated reproduction.
How, then, can we exercise the right, as sentient beings, to make reproductive choices? We can either choose to reproduce or not to reproduce. If we choose the latter, how can we implement that choice? Abstinence is one option. But so too is masturbation (sole or mutual), oral or anal sex, the use of contraceptives, and abortion. All of these choices, then, ought to be protected by a Ninth Amendment right retained by the people: the right to exercise our choice of whether to reproduce or not.
What are the practical implications of this understanding for how the law relates to sexual liberties? The right to privacy is circumscribed. Yes, it may be a right retained by the people, but it doesn't provide a sanctuary for doing criminal acts. You can't, for instance, sell heroin in your bedroom and expect to be protected by the right to privacy. Selling heroin is a crime that revokes the right to privacy.
That was basically the argument in Bowers v. Hardwick that reaffirmed the criminalization of homosexuality. As Justice Byron White proclaimed, there is no fundamental right to sodomy. Meaning, in essence, as long as sodomy is a crime, it isn't protected by a right to privacy. And although the ruling in Bowers v Hardwick was overturned in Lawrence v Texas (2003), Justice Scalia's dissenting opinion in the latter reaffirmed, once again, that the Court recognized no fundamental right to sodomy.
If our fundamental rights as humans are enshrined in the Bill of Rights, so must be our right to make reproductive choices. It's right there in the Ninth Amendment. Remember that our Founding Fathers were many things, but not prudes; there seems little chance that liberties related to our private sexual behavior would not have been rights they thought government must respect. Benjamin Franklin had a child with a sex worker. Alexander Hamilton wrote an essay about his affair with a Mrs. Reynolds. Thomas Jefferson had long-term sexual relations, which included children, with his slave Sally Hemings. James Madison was either infertile or routinely used contraception with his wife, Dolly, who had children from a previous marriage. Condoms were readily available in the 18th century.
With this in mind, all of the sexuality-related Supreme Court cases, starting with Roe v Wade, can be rethought on new grounds. Not only do women have a fundamental right to privacy, but they also have a fundamental right to choose not to reproduce, including the choice to obtain an abortion. The real question, however, is not the viability of the Ninth Amendment—it's right there in black and white—but why the judiciary has concluded that they can ignore it with impunity, despite taking an oath to perform all the duties incumbent upon them under the Constitution and laws of the United States.
They are likely afraid that explicitly respecting the Ninth Amendment will open up a floodgate of appeals for all sorts of "rights retained by the people." That might be true, but fear doesn't justify denial. The Ninth Amendment does establish fundamental rights enshrined in the Bill of Rights. There's no getting around that.
Judge Robert Bork, in his 1987 confirmation hearing for the U.S. Supreme Court, said he just didn't know what the Ninth Amendment meant. He also declared, somewhat contradicting himself, that the Ninth Amendment implies that the enumeration of rights shall not be construed to "deny or disparage rights retained by the people in their State Constitutions." Is that so? Here's what James Madison had to say about state constitutions in his aforementioned speech to the first Congress: "Some states have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper."
Judge Bork's answer made a mockery of any oath to uphold and defend the Constitution. The Ninth Amendment is indeed an integral part of the Bill of Rights. The Founding Fathers purposely did not enumerate all essential rights because to do so would have invariably minimized every right that had been inadvertently left off that list, or alternatively, every right that only became evident over time. Treating the Ninth Amendment as irrelevant derides both the Founding Fathers and the Constitution itself. My advice for legal scholars, lawyers, and those dedicated to defending and extending our rights is to dig deep into this amendment. Our constitutional rights depend upon it.