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OPINION | JOSHUA M. SILVERSTEIN: Not from thin air

Abortion rights’ constitutional basis by Joshua M. Silverstein Special to the Democrat-Gazette | May 20, 2022 at 3:00 a.m.

The recently leaked judicial opinion written by Justice Samuel Alito indicates that the U.S. Supreme Court is likely to overturn Roe v. Wade by the end of June.

Opponents of abortion rights would celebrate this outcome for many reasons. One is their belief that Roe is "egregiously wrong," to use the words of Justice Alito, because the right to abortion has no grounding in the Constitution's text.

But the claim that the Supreme Court invented this right out of whole cloth is wrong since there are multiple textual bases for abortion rights.

Roe v. Wade is part of a group of Supreme Court decisions that protect the constitutional right to privacy. But "privacy" is somewhat of a misnomer. A better name would be the right to reproductive autonomy and intimate association. Other Supreme Court privacy cases, for example, have ruled that married and unmarried couples possess the right to use contraceptives, that Americans are free to have sex with any consenting partner, and that the Constitution protects the right to marriage, including same-sex marriage.

Abortion rights are closely tied to contraceptive, sexual activity, and marriage rights. Thus, the most important question is not whether there is a textual basis for Roe v. Wade specifically; instead, it is whether there is a constitutional basis for the right to privacy generally.

The answer is yes.

To be sure, the right to privacy is not expressly identified in the Constitution the way freedom of speech and freedom of religion are in the First Amendment. But express identification is not the only way to create a legal right.

Sometimes rights are adopted via general language. To illustrate, the Ninth Amendment states that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This means that the United States Constitution protects rights other than those specifically listed in the Bill of Rights and earlier parts of the document.

Likewise, the 14th Amendment provides that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The phrase "privileges or immunities" is generic in nature. This part of the 14th Amendment thus shields a general category of rights from violation by state governments.

While lawyers have long debated the contours of the Ninth Amendment and the privileges or immunities clause, each quite plausibly encompasses the right to privacy. Few freedoms are more deeply rooted in our society than those of reproductive autonomy and intimate association. And during the debates concerning the adoption of the 14th Amendment, several members of Congress stated that the amendment secures aspects of privacy, including bodily integrity, whether to have children, and marriage.

Accordingly, if the Constitution safeguards any rights beyond those specifically identified--and it clearly does, given the language of the Ninth and 14th Amendments--privacy is one of the best candidates for such protection.

Legal rights can also be created by implication. For example, the Supreme Court has ruled that the freedom of political association is implied by the freedom of speech in the First Amendment. And it is well accepted that the structure or spirit of a legal document, such as a contract or will, can establish rights beyond those expressly listed in the document's text.

This explanation works for the right to privacy. In fact, the Supreme Court ruled in the first major privacy decision--Griswold v. Connecticut, the married couples contraceptive case--that the right to privacy is implied by many provisions of the Bill of Rights working together.

Privacy is not the only potential basis for the decision in Roe v. Wade. The 14th Amendment also provides that "[n]o state shall ... deny to any person ... the equal protection of the laws." The equal protection clause bars discrimination on the basis of sex unless the government has an important reason for treating men and women differently. If states can bar abortions, then men will have far greater control over their reproductive lives than women. Abortion bans thus may violate the right of women to equal protection.

I do not mean to suggest that the arguments above are clearly correct. In fact, there are serious responses to all of them.

To illustrate, a strong case can be made that the Ninth Amendment only restricts the powers of the federal government, not those of the states. Likewise, even if the Constitution does protect the right to privacy, abortion might be distinguishable from contraceptive use, sexual activity, and marriage because abortion affects a third party, namely the fetus.

My point is only that there are several plausible textual bases in the United States Constitution for abortion rights. Accordingly, while the legal validity of Roe v. Wade is debatable, the right to abortion was not constructed from nothing by the Supreme Court.


Joshua M. Silverstein is a professor of law at the University of Arkansas at Little Rock's William H. Bowen School of Law. The views in this op-ed, a version of which was previously published in the Chicago Tribune, are his own.


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