As we discuss the potential repercussions of the decision in Dobbs vs. Jackson Women’s Health Organization — the one where Justice Alito is apparently willing to overturn Roe v. Wade — I just want to point out to the legal nerds among us that Roe was probably decided under the wrong provision of the Constitution. I would argue that it should have been decided under the (largely) forgotten Ninth Amendment.

So, how did we get here?

First of all the Ninth and Tenth Amendments are the last two amendments that were added in the Bill of Rights (the 10 amendments to the Constitution that were enacted a few years after the Constitution’s 1788 ratification). 

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

The Ninth Amendment

And

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Tenth Amendment

Now, these two amendments could be considered to be an expression of natural law: that there are certain rights, often very personal rights related to the family, that don’t need to be enumerated. Questions of sexuality, marriage or procreation would definitely come under this umbrella.

Of course, the text of the Ninth and Tenth Amendments together create some confusion. If the Ninth reserves unenumerated rights in the people, why does the Tenth delegate unenumerated rights to the states or the people.

It doesn’t really matter. 

For various historical reasons, the Ninth and Tenth amendments were never used in this way. Instead the Supreme Court resorted to something known as “substantive due process.”

Substantive due process is an oxymoron. If it’s substantive, it’s not due process. And yet the Court distinguishes between exactly that, “substantive” and “procedural” due process.

• Procedural Due Process is exactly what you would think it would be: questions of whether certain procedures that guarantee fairness — such as the right to cross-examine adverse witnesses in a court of law — have been followed.
• Substantive Due Process, on the other hand, is really about establishing substantive rights that have not been enumerated anywhere (and thus are kind of like “natural law” rights).

This concept was really first articulated in a case known as Griswold v. Connecticut. In that case the state of Connecticut had passed a series of Comstock laws that restricted the kind of birth control that married couples could use.

Wait a minute.

In 1965 Connecticut restricted the kinds of birth control that married couples could use?

Sure did.

Why?

Three words: the Catholic Church.

(And people wonder why I have problems with the Catholic Church.)

In any case, the Court in the Griswold case struck down the statutes criminalizing the use of certain contraceptives by married couples, reasoning that they violated the right to marital privacy (an unenumerated right in the Constitution). The same logic was used two years later when the Court struck down the antimiscegenation laws of Loving v. Virginia (laws that prohibited interracial marriage also vioalted the “unenumerated right” of citizens to marry the person of their choice. The same reasoning animated the Supreme Court’s 2015 decision on gay marriage in Obergefell v. Hodges).

Interestingly, Justice Arthur Goldberg wrote a concurring opinion in Griswold in which he cited to the Ninth Amendment in support of the ruling. As it should have been.

So, in 1973, when Roe v. Wade made its way up to the Supreme Court, the Court used “substantive due process” to establish the rights of women to choose whether to abort or not (balanced against the State’s right to protect public health). Because of the public health concerns, the Court limited the right to the period where the fetus had not yet achieved “viability.”

It’s Justice Alito’s evisceration of substantive due process in his draft Dobbs opinion that has so many legal scholars worried. If he can dismiss substantive due process in the abortion case, then why can’t it be dismissed in cases permitting gay, or even interracial marriage?

That’s why legal scholars are worried.

And maybe you should be worried too.