# Is abortion really a Constitutional issue? **URL:** \ **Category:** Great Debates\ **Created:** [November 28, 2004, 12:21pm UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986 "2004-11-28T12:21:07Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [November 28, 2004, 12:21pm UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/1 "2004-11-28T12:21:07Z")
Or more to the point, should it be? It seems to me that strictly speaking abortion is not covered currently in the Constitution, nor it the right to privacy - though there is the unreasonable search and seizure. Now this is not to diminish the the issue itself, nor the passion on both sides, just to determine if the SCOTUS should ever have taken the case or was it a clear cut case of judicial abuse? Should it have been a state only issue? And a side issue, are there issues so pressing that the SCOTUS should ‘make things up’ that are not in the Constitution to decide a certain way? ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [November 28, 2004, 1:31pm UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/2 "2004-11-28T13:31:37Z")
Eating isn’t covered by the Constitution either. If your rights come from there, you’re in trouble. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [November 28, 2004, 7:32pm UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/3 "2004-11-28T19:32:44Z")
I think if you want the best explanation for why abortion is a constitutional right, you should look at [PLANNED PARENTHOOD OF SOUTHEASTERN PA. v. CASEY](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=505&invol=833). It’s the 5-4 decision back in 1992 upholding Roe vs Wade. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [November 28, 2004, 7:40pm UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/4 "2004-11-28T19:40:52Z")
Another thing to consider is this: Once you give the state control over reproduction, what’s to stop them from forcing women to have abortions as part of a state mandated eugenics program? The right to control over ones body works both ways. ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [November 28, 2004, 8:48pm UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/5 "2004-11-28T20:48:31Z")
> [@](#): > > Another thing to consider is this: Once you give the state control over reproduction, what’s to stop them from forcing women to have abortions as part of a state mandated eugenics program? The right to control over ones body works both ways. It’s an interesting point to consider, but the ‘right to control one’s body’ is a arguable point w/ abortion as there are 2 bodies to consider. And again is this a reason enough to assume it’s actually in the Constitution? > [@](#): > > I think if you want the best explanation for why abortion is a constitutional right, you should look at PLANNED PARENTHOOD OF SOUTHEASTERN PA. v. CASEY. It’s the 5-4 decision back in 1992 upholding Roe vs Wade Waiting for it to load. > [@](#): > > Eating isn’t covered by the Constitution either. If your rights come from there, you’re in trouble. 😕 There are many things I can do which in not in the Constitution, I really don’t get your point, on perhaps you don’t get mine. Just because something is not Constitutionally protected does not make it illegal. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [November 28, 2004, 9:50pm UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/6 "2004-11-28T21:50:30Z")
**kanicbird:** _[…] the ‘right to control one’s body’ is a arguable point w/ abortion as there are 2 bodies to consider._ But if the body of the fetus isn’t considered a human person, then it doesn’t count; only the woman’s body and her right to control it is an issue. IANAL, but AFAICT, this is why the constitutional status of the right to choose an abortion, according to _Roe v. Wade_, **changes during the course of pregnancy**. The fetus during prenatal development gradually acquires more of the status and rights of a person. So during the third trimester (and, I think, part of the second) of pregnancy, a woman is **not** considered to have a constitutionally protected right to **choose** an abortion (although abortions to preserve a woman’s life or health are still permitted). Decisions about control over reproduction have been considered to fall within the constitutional “right to privacy” at least since _Griswold v. Connecticut_ in 1965 declared it unconstitutional to legally restrict access to birth control. ISTM that if the right to use birth control is constitutionally protected, it only makes sense that the right to choose an (early-term) abortion is too. (Unless you’re using the “fetus is a fully human person from the instant of conception” argument, which the Court in _Roe v. Wade_ and _PPSEPA v. Casey_ rejected.) ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [November 29, 2004, 2:02am UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/7 "2004-11-29T02:02:17Z")
Let’s go back to something basic. The Constitution does not _create_ rights — it secures them. Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 29, 2004, 2:17am UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/8 "2004-11-29T02:17:20Z")
The 9th Amendment is not the source of any constitutional right. Really. [Look it up](http://caselaw.lp.findlaw.com/data/constitution/amendment09/). As to the OP: Is too. Oh, “Is not,” you say. Well I can dispense with that argument. “Is too,” I say. Ha! There’s no escaping it now! ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [November 29, 2004, 2:25am UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/9 "2004-11-29T02:25:06Z")
> [@Walloon](#): > > Let’s go back to something basic. The Constitution does not _create_ rights — it secures them. Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Can we PLEASE, PLEASE, PLEASE stop this all-too-common but utterly fallacious reading of the ninth amendment? The ninth guarantees that rights secured in other places – federal statutes, state constitutions and statutes, etc. – cannot be evicerated by the argument that the enumeration of rights in the federal constitution is exclusive. It is not, and never has been, a source of positive legal rights. And whatever one believes about the degree of autonomy a woman should have to terminate a pregnancy – even if one believes it a metaphysical right that the state cannot take away – the constitution is utterly silent on the matter. Curtailing abortion rights may be evil, nefarious, bad public policy and a generally naughty thing for the state to do, but _it is not unconstitutional_. Well, actually, I take that back, sort of. Since the Supreme Court holds supreme judicial authority, their take on what is or isn’t constitutional is, as a practical matter, the final answer on that question. To clarify: the constitution does not forbid the state’s restricting abortion rights, and the current state of the law represents judicial policymaking rather than restrained judicial interpretation of the constitutional text. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [November 29, 2004, 2:26am UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/10 "2004-11-29T02:26:57Z")
> [@minty green](#): > > The 9th Amendment is not the source of any constitutional right. Who said it was? Not I. To the contrary, the Ninth Amendment simply acknowledges that rights exist outside of the Constitution, and that just because a certain right is not enumerated in the Constitution does not mean that right doesn’t exist. ---
**Author:** ![Zoe](https://avatars.discourse-cdn.com/v4/letter/z/a4c791/32.png) [@Zoe](https://boards.straightdope.com/u/Zoe)\ **Post date:** [November 29, 2004, 2:28am UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/11 "2004-11-29T02:28:08Z")
**Walloon** , with a two line post, you set everything upright and in its place and help me to feel a little better about my country. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 29, 2004, 2:28am UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/12 "2004-11-29T02:28:31Z")
> [@Dewey Cheatem Undhow](#): > > And whatever one believes about the degree of autonomy a woman should have to terminate a pregnancy – even if one believes it a metaphysical right that the state cannot take away – the constitution is utterly silent on the matter. [Poking the bear] I may be misremembering, but doesn’t it say something about “due process”? [/PTB] 😛 ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [November 29, 2004, 2:29am UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/13 "2004-11-29T02:29:28Z")
It’s certainly possible to argue that abortion should be a constitutionnal issue. Amongst other things, a constitution define rights, and it’s certainly of a major importance to know whom or what benefits from this right. For instance : The right of \*\* some creatures \*\* to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated would let said creatures wonder about whether or not they’re protected. If there’s a wide disagreement about what a “person” is, then most certainly including a definition of this word in a constitutionnal text isn’t absurd. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 29, 2004, 2:30am UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/14 "2004-11-29T02:30:22Z")
> [@Walloon](#): > > [T]he Ninth Amendment simply acknowledges that rights exist outside of the Constitution, and that just because a certain right is not enumerated in the Constitution does not mean that right doesn’t exist. Correct. So _if_ the right to an abortion does not reside in the U.S. Constitution, where does it come from, legally speaking? Note: Justice O’Connor and I both think it comes from the Due Process clause, but what do we know? ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [November 29, 2004, 2:32am UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/15 "2004-11-29T02:32:06Z")
Why, thank you, **Zoe**. My only regret is that I used a redundant preposition (“outside of”). 🙂 ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [November 29, 2004, 2:41am UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/16 "2004-11-29T02:41:21Z")
> [@minty green](#): > > Correct. So _if_ the right to an abortion does not reside in the U.S. Constitution, where does it come from, legally speaking? I made no claim one way or another, did I? I recommend the majority opinion of [_Roe v. Wade_](http://www.tourolaw.edu/patch/Roe/) to answer your question: > [@](#): > > State criminal abortion laws . . . violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy. . . . > > This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in _the Ninth Amendment’s reservation of rights to the people_, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 29, 2004, 3:04am UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/17 "2004-11-29T03:04:27Z")
So if it comes, as you and I agree, from the Due Process clause, why on earth would you lead with the 9th Amendment? Mere whimsy? ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [November 29, 2004, 3:09am UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/18 "2004-11-29T03:09:55Z")
Please see the italicized phrase in the quotation from _Roe v. Wade_. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 29, 2004, 3:14am UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/19 "2004-11-29T03:14:52Z")
Note that the Supreme Court (which is pretty much supreme in such matters) _rejected_ the lower court’s reasoning. But if you wish to argue from discarded legal positions, by all means do so. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 29, 2004, 3:23am UTC](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986/20 "2004-11-29T03:23:24Z")
Legally speaking, relevant case law finds the right to abortion in the Due Process clause. As to the logic of that finding… it’s been the subject of many heated posts from the folks hereabouts. Hey, **minty** – I’ve been trying to find a pair of cufflinks I lost last year… next time you’re looking, see if they’re in the Due Process clause, wouldja? Thanks much… [Next page](https://boards.straightdope.com/t/is-abortion-really-a-constitutional-issue/276986.md?page=2)