Thursday, May 19, 2022
The original constitutional location for the right to abortion was identified as the Ninth Amendment by the trial court in Roe v. Wade building on the lead opinions in Griswold. Worth another look.
Allison Kruschke, Finding a New Home for the Abortion Right Under the Ninth Amendment, 12 ConLawNOW 128 (2020).
This essay advocates locating the foundation of the constitutional right to an abortion in the Ninth Amendment. Using the Ninth Amendment to recognize the right to an abortion, this article argues, is a better path than using the Fourteenth Amendment because it takes the determination of whether an abortion is a protected right outside the moral realm. The analysis under the Fourteenth Amendment of whether a right is “deeply rooted in the tradition” of the United States inevitably stirs a debate about whether the public considers abortion morally acceptable. In recognizing the right to an abortion under the Ninth Amendment, no such analysis is necessary. The text of the Ninth Amendment allows the U.S. Supreme Court to recognize this protected right without an inquiry into historical tradition. Instead, the Court can use natural law principles, as contemplated by the Founders, to recognize that private conduct is worthy of constitutional protection and acknowledge that the Ninth Amendment affords these rights to the people.