But somehow, some people only feel the need to mention it when they don't like the result.
Where is the right to privacy in the Constitution, btw? Sounds like the whole thing is legislating from the bench! Maybe we should bring back Lochner-style scrutiny of minimum wage laws under a newly-discovered "right to earn a living"?
People inevitably making this argument was actually the primary argument against adopting a Bill of Rights at all, and the Ninth Amendment was the compromise solution to have some enumerated rights while hoping to negate this exact argument.
That's internally consistent. Roe V. Wade was the bench legislation in this case.
The citizenship rights in the constitution were not written or otherwise intended to provide a right to abortions.
Even the concept of privacy the decision was based on is inferred only from the statement "deprive any person of life, liberty, or property, without due process of law."
While this case is held up as being the legislating from the bench case, it's really not. We don't generally pass laws that make something legal, except as exceptions to other laws. Saying that government access to a person's medical records is protected by the constitution is exactly the function of SCOTUS.
> Casual observers of the Supreme Court who came to the Law School to hear Justice Ruth Bader Ginsburg speak about Roe v. Wade likely expected a simple message from the longtime defender of reproductive and women’s rights: Roe was a good decision.
> Those more acquainted with Ginsburg and her thoughtful, nuanced approach to difficult legal questions were not surprised, however, to hear her say just the opposite, that Roe was a faulty decision. For Ginsburg, the landmark 1973 Supreme Court decision that affirmed a woman’s right to an abortion was too far-reaching and too sweeping, and it gave anti-abortion rights activists a very tangible target to rally against in the four decades since.
> “My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” Ginsburg said. She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights.
https://www.law.uchicago.edu/news/justice-ruth-bader-ginsbur...
The right to abortion is guaranteed by the right to be free from "unreasonable search and seizure." That is literally the best ever example of squinting REALLY hard at the constitution and trying to make something fit. Roe was 100% making a legal argument for abortion to be regulated at the federal level using the most twisted pretzel logic imaginable.
No, its just a typo, Roe rested on the Due Process Clause of the 14th Amendment, not any provision of the 4th. “A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.” (It in passing mentions other previous cases relating to privacy rights which found aspects of them other places in the Constitution, including, among many others, the combination of the Fourth and Fifth Amendments in Terry v. Ohio, but no part of the rule articulated in Roe purported to be interpreting the Fourth Amendment, only the 14th.)
It makes sense therefore that there was no non-enumerated right to abortion, and states did have the right to ban it.
The 1973 decision was most definitively legislating from behind the bench.
It will probably only be banned after both the right and the left get burned by this type of legislating enough times.
Most sources I can find suggest none.
Eg:
Abortion has existed in North America since the European colonization of the Americas, was a fairly common practice, and was not always illegal or controversial.
Until the 19th century, abortion was legal under common law, and only after quickening it was not allowed.
Though it is considered taboo in Christian traditions, until the mid-19th century, “the Catholic Church implicitly accepted early abortions prior to ensoulment,” she explained. “Not until 1869, at about the same time that abortion became politicized in this country, did the church condemn abortion; in 1895, it condemned therapeutic abortion,” meaning procedures to save a woman’s life.
Legal scholar Sheldon Gelman has argued that the U.S. Constitution (1789) imported the tenets of the English Magna Carta (1215), which includes the basis of the right to bodily integrity including abortion.
Connecticut was the first state to regulate abortion in 1821; it outlawed abortion after quickening and forbade the use of poisons to induce one post-quickening.
There are opposing legal philosophies on how to interpret amendments 9 and 10, which say that people have rights and the government has powers. The question is always how to resolve when the two are in conflict.
Current SCOTUS majority holds an extremist view that when government exercises an unenumerated power, it essentially cancels the existence of an unenumerated right. That's why they look for historical laws that support their desired outcomes. Until recently, this was a fringe idea because it means the state governments get dibs on your unenumerated rights.
You're entitled to your opinion on this approach, but don't expect everyone to take that reasoning seriously.