Ninth Amendment (1791)
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Fourteenth Amendment (1866 / 1868)
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
- Privileges or Immunities Clause
- Due Process Clause
- Equal Protection Clause
- Incorporation Doctrine
- Substantive Due Process
- Penumbra of Rights
- Ordered Liberty
Roe v. Wade (1973)
“The debate concerns the most basic problem of our political system: how to resolve the tension inherent in our Constitution between a respect for majority rule and a commitment to individual liberty. Whenever the Court attempts to mediate between a claim of liberty denied (such as that made by Jane Roe) and a conflicting public interest (such as Texas’s desire to protect potential life), the Court poses a threat to majority rule and risks losing the popular respect on which its power ultimately rests. Whenever it abjures that mediating function, however, it risks sacrificing the individual liberties without which democracy cannot survive.” –Rosalind Rosenberg in Garraty, p. 378)
Norma McCorvey (1947-2017)
Dobbs v Jackson Women’s Health (2022)
“Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion. Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancyand was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.” –-Justice Samuel Alito, majority opinion, Dobbs v. Jackson Women’s Health Organization (2022)
“Of course, the majority opinion refers as well to some later and earlier history. On the one side of 1868, it goes back as far as the 13th (the 13th!) century. But that turns out to be wheel-spinning. First, it is not clear what relevance such early history should have, even to the majority. If the early history obviously supported abortion rights, the majority would no doubt say that only the views of the Fourteenth Amendment’s ratifiers are germane. Second—and embarrassingly for the majority—early law in fact does provide some support for abortion rights. Common-law authorities did not treat abortion as a crime before “quickening”—the point when the fetus moved in the womb.2 And early American law followed the common-law rule.3 So the criminal law of that early time might be taken as roughly consonant with Roe’s and Casey’s different treatment of early and late abortions.” –Justice Elena Kagan, dissenting opinion, Dobbs v. Jackson Women’s Health Organization (2022)
- Read the American Historical Association (AHA) friend-of-the-court brief filed on behalf of Jackson Women’s Health Organization in the Dobbs case in September 2021