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The right to abortion, up until viability, is guaranteed by the 9th Amendment of the Constitution. [1]
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Date: 2022-07-23
This includes the right to abortion up until viability.
The US District Court for the Nothern District of Texas, in Roe v Wade , 314 F. Supp. 1217 (1970) stated:
On the merits, plaintiffs argue as their principal contention that Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couples of their right, secured by the Ninth Amendment to choose whether or not to have children. We agree.
Unfortunately, when the Supreme Court issued its Roe decision in 1973 they did not rely on the 9th Amendment and its impact on abortion. Instead, they based their opinion on the 5th Amendment right to “privacy” which had been derived from the right to “liberty.” (see: Griswold v Conneticut, involving contraception).
At the time the Constitution was adopted, abortion was understood pursuant to Anglo-American common law, which generally held abortion legal up to quickening (first fetal movement), about 16-20 weeks after gestation. Recent media reports indicate, contrary to Justice Alito’s historical analysis, that Thomas Jefferson, Patrick Henry, and John Marshall shared this view. Note: John Marshall was the first Chief Justice. I wonder what his opinion would have been if the right to abortion came before the Court when he was Chief Justice?
It follows that if abortion was a right at the time the Constitution was adopted, then it was one of the unenumerated rights protected by the 9th Amendment.
Right now, or Monday at the latest, pro- choice groups should start challenging various state anti-abortion laws on the ground that they violate a women’s right to abortion, pursuant to the 9th Amendment.
Alito’s decision in Dobbs would have no effect on decisions reached on new cases filed pursuant to the 9th Amend.
District Court, and Circuit Court Judges would be free to rule that state laws that ban abortions in all cases are unconstitutional pursuant to the 9th Amendment. It will take years before lower Court cases finding strict state abortion laws unconstitutional reach the Supreme Court. By that time there will be a new cast of characters on the Court, especially if the Congress passes Legislation to expand the Court to 13 members, and the President signs the Legislation into law.
The 9th Amendment is quoted in the photo at the beginning of this diary.
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