Beyond the Supremes: How the Ninth Amendment Could Affect Abortion Rights

Abortion politics have been a constant in Americans' political life since the Supreme Court's 1973 ruling in Roe v. Wade.  That 7-2 decision held that a fundamental right to privacy under the 14^th Amendment protects a woman's right to have an abortion.

But the leaked draft majority opinion that indicates there are (possibly) enough votes to overturn Roe and send the abortion question back to the states has taken the politics of the debate to a new level.

How that unfolds is a question for another time – namely, after the court issues its decision.

In the meantime, there's a statement in the draft, written by George W. Bush appointee Samuel Alito, that, rightly, has gotten a lot of attention:

The Court must overturn Roe, Alito argues, because “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision . . . including the Due Process Clause of the Fourteenth Amendment.”

According to Alito's reasoning, Roe was “remarkably loose in its treatment of the constitutional text.” Alito notes that Roe rests not on any single constitutional provision, but on five: the First, Fourth, Fifth, Ninth and 14th Amendments.

Alito spent a lot of time dismantling the Roe decision on its interpretation of the 14^th Amendment. But like so many other federal jurists, Alito glides past the Ninth Amendment. This “forgotten” amendment reads simply:

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

Seems simple enough, right? It simply wasn't practical to list each and every individual right protected in the new Constitution – the fix: Mr. Madison's Ninth Amendment.

Except, as Georgetown University Law Profs. Randy Barnett and Louis Michael Seidman write, Madison's fix was anything but:

Since its enactment, scholars and judges have argued about both the Ninth Amendment's meaning and its legal effect, and the courts have rarely relied upon it.  During his failed confirmation hearing to become a Supreme Court justice in 1987, Robert Bork analogized the Amendment to an “inkblot,” which hid the constitutional text that was under it. Just as judges should not guess what was under an inkblot, he argued, so too they should not guess at the Ninth Amendment's meaning.

Which is perfectly in character with F.A. Hayek's critique of the conservative's outlook on society:

“I find that the most objectionable feature of the conservative attitude is its propensity to reject well-substantiated new knowledge because it dislikes some of the consequences which seem to follow from it—or, to put it bluntly, its obscurantism.”

That's both a great shame and a great harm – particularly if one believes the Ninth Amendment covers items like an individual right to privacy (which extends to a host of issues well beyond just abortion).

As Prof. Barnett has argued:

…the Ninth Amendment mandates the “equal protection” of enumerated and unenumerated rights:  unenumerated rights should be judicially protected to the same extent that enumerated rights are protected. To implement this requirement, Barnett proposes a rule of construction—the “presumption of liberty”—to protect all the retained rights of the people by placing the onus on legislatures to justify their restrictions on liberty as both necessary and proper, without judges needing to specifically identify the retained individual rights.

The three words “presumption of liberty” are what Alito and other judges, right and left, often overlook. It's not just because some may have a blinkered and incurious Bork-like view of the Ninth Amendment. But because, at bottom, all of them tend to expand the state's power at the expense of the individual.

But the debate we should be having beyond Roe v. Wade, abortion and the politics of both, is on how to properly, effectively and consistently use the power inherent in the Ninth Amendment – power that Barnett says makes the Ninth a “meaningful check on federal power and a significant guarantee of individual liberty.”

The opinions expressed in this article are those of the author and do not necessarily reflect the positions of American Liberty News.