Roe, Privacy, & the Constitution

One aspect of the Planned Parenthood speeches that didn’t make it into my TAPPED coverage was discussion of Roe”s place in constitutional law. Of course, the major critique of Roe heard from abortion rights supporters is that because the ruling is based on an individual’s right to privacy–her ability to make medical decisions without intervention from the state–it will always be under attack, since privacy is not an explicitly guaranteed right in the Constitution.

But the Constitution does allow citizens to refuse to quarter soliders. That’s an implicit right to privacy, isn’t it? The Supreme Court has also overturned sodomy bans based on the right to privacy.

Without being asked about this last night, Hillary said, "Privacy is assumed in everything that the constitution stands for. How can you have freedom of speech and freedom of conscience if you don’t have a right to privacy?”

Obama mentioned that when he taught con law at the University of Chicago, he discussed Roe not in the context of abortion politics or privacy law, but as a key ruling on civil rights.

I’m no law expert, but I liked the legal justifications both candidates relied upon.

One thought on “Roe, Privacy, & the Constitution

  1. Klein's Tiny Left Nut

    A very interesting angle to look at on this issue is the concurrence of Justice Goldberg in the Griswold decision. Griswold is the underpinning for Roe and is the case which held that married couples (at least) have a constitutional privacy right to use contraception despite a state law making it illegal (in Connecticut if you can imagine). This is not ancient history, but rather a case from a little over 40 years ago.

    Anyway, Justice Goldberg focused on the Ninth Amendment to the Constitution as the basis for a right of privacy. The Ninth Amendment basically states that the enumeration of rights in the rest of the Bill of Rights should not be read as limiting the rights of the people to those specific rights and that the people retain all rights that belonged to them not limited by the Constitution. The Ninth Amendment was adopted specifically because of fears that having a list of rights in the Constitution would ultimately viewed as limiting rights. (For dead white guys, those founding fathers were prescient.) Goldberg makes use of this in what I think is a pretty compelling way, although it is the type of argument that can also be used to make some pretty open ended claims.


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