At the heart of Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health Organization, which overturns Roe v. Wade (1973) and eliminates the constitutional right to abortion, is Alito’s objection that “the Constitution makes no mention of abortion.” For Alito and the many legal conservatives who think like him, unenumerated constitutional rights are inherently suspect. When a court recognizes an unenumerated right, these conservatives say, that court is almost certainly guilty of judicial activism.
But this conservative mindset is at odds with constitutional text and history, both of which make clear that unenumerated rights are entitled to the same respect as the small handful of rights that the Constitution specifically lists.
Remember that when the Constitution was first ratified, it did not yet contain its famous first 10 amendments, otherwise known as the Bill of Rights. Those amendments arrived a few years later. They were added in response to the fierce criticism leveled against the Constitution by the Anti-Federalists, who opposed ratification on several grounds, one of which was that the document lacked a bill of rights, and therefore, in their view, left a number of key rights unprotected (because unmentioned).
The Federalists, who labored on behalf of the Constitution’s ratification, rejected this argument. Why? Because, explained James Wilson, one of the leading figures at the Philadelphia Constitutional Convention, “if we attempt an enumeration, everything that is not enumerated is presumed to be given.” And the consequence of that, Wilson told the Pennsylvania Ratification Convention, “is, that an imperfect enumeration would throw all implied power into the scale of the government; and the rights of the people would be rendered incomplete.”
James Iredell, a future justice of the U.S. Supreme Court, made the same argument at the North Carolina Ratification Convention. “It would not only be useless, but dangerous, to enumerate a number of rights which are not intended to be given up,” he said. That is “because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation.” Furthermore, Iredell added, “it would be impossible to enumerate every one. Let anyone make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.”
James Madison, one of the principal architects of the new Constitution, closely followed this debate. On June 8, 1789, he gave a speech to Congress proposing the group of amendments that would ultimately become the Bill of Rights. While doing so, he directly addressed the Anti-Federalist/Federalist debate. “It has been observed also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration,” he said, “and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure.” Madison acknowledged that “this is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; But, I conceive, that may be guarded against. I have attempted it.”
Madison’s attempt became enshrined in the Constitution as the Ninth Amendment. Here is what it says: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” In short, unenumerated rights get the same respect as enumerated ones.
Today, most legal conservatives purport to be constitutional originalists. What that means for the legal debate over abortion is that any purported originalist must face the question of whether abortion rights may be considered to be among the unenumerated rights “retained by the people” that Madison’s Ninth Amendment was specifically written and ratified to protect. Alito’s opinion in Dobbs v. Jackson Women’s Health Organization entirely fails to grapple with this necessary question.
Here is my answer to the question: Founding era history strongly supports the view that abortion rights, at least during the early stages of pregnancy, do fall within the orbit of Madison’s Ninth Amendment. “When the United States was founded and for many subsequent decades, Americans relied on the English common law,” explained an amicus brief filed in Dobbs by the American Historical Association and the Organization of American Historians. “The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called ‘quickening,’ which could occur as late as the 25th week of pregnancy.”
William Blackstone’s widely read Commentaries on the Laws of England, first published in 1765, made this exact point: Life “begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.” Under the common law, Blackstone explained, legal penalties for abortion only occurred “if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb.”
Blackstone’s work was a major influence on America’s founding generation. The founders read Blackstone and they well understood that abortion was legal during the early stages of pregnancy under the common law. What is more, because every state at the time of the founding followed the common law as described by Blackstone, no state originally possessed the lawful power to prohibit abortion before quickening. We might call this the original understanding of the regulatory powers of the states.
That same original understanding extends to the Ninth Amendment. Because the states followed the common law at the founding, the American people originally understood that lawmakers lacked the lawful power to prohibit women from ending an unwanted pregnancy during its early stages. The freedom to end an unwanted pregnancy before quickening thus falls within the original meaning and understanding of a right “retained by the people.”