Writes Ira Stoll in Abortion Right Not in Constitution, Doesn’t Mean It Doesn’t Exist:
“The Supreme Court’s opinion in Roe v. Wade,410 U.S. 113 (1973) discovered a right to abortion in the Constitution within the “right to privacy.” That privacy right itself had been discovered in a case about birth control, Griswold v. Connecticut, 381 U.S. 479 (1965). Griswold’s declaration that the “specific guarantees in the Bill of Rights have penumbras, formed by emanations,” has been widely mocked.
To my mind, the gem within Griswold is Justice Arthur Goldberg’s concurrence. Goldberg, joined by Justice Brennan and Chief Justice Warren, focused not on penumbras or emanations but on the plain text of the Ninth Amendment.”
Stoll goes on to quote Justice Arthur Goldberg:
“The [Ninth] Amendment is almost entirely the work of James Madison. It was introduced in Congress by him, and passed the House and Senate with little or no debate and virtually no change in language. It was proffered to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights, and that the specific mention of certain rights would be interpreted as a denial that others were protected….the Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments, and an intent that the list of rights included there not be deemed exhaustive. …the fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family — a relation as old and as fundamental as our entire civilization — surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one [abortion], which are protected from abridgment by the Government, though not specifically mentioned in the Constitution.”
Stoll concludes correctly:
The mere fact that an abortion right isn’t mentioned in the Constitution doesn’t mean it doesn’t exist. The rights don’t come from the Constitution. The Constitution exists to protect the rights, including those it doesn’t explicitly mention.
Then why explicitly mention and enumerate rights?
“A problem with rights not written into law is that people may have widely varying views of them. Without legislative language, for example, one person’s idea of a right to an abortion may collide with another person’s view of a fetus or embryo having a ‘right to life.’