After I wrote this blog post, I realized it’s really about how laws evolve. Citations and sources for much of the material in this blog post are in this book.
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During the 1788 debates about whether to add a Bill of Rights, some people worried that including a Bill of Rights would give rise to the dangerous implication that the only rights a person has are those listed in the Constitution. Because a Bill of Rights could not be comprehensive, they were afraid that the government would find ways to trample any rights not specifically listed.
James Madison talked about these concerns in a speech to the House of Representatives on June 8, 1789:
So Madison wrote the Ninth Amendment, which says:
As Madison’s contemporary Roger Sherman said, “The people have certain natural rights which are retained by them when they enter into society.” The Ninth Amendment protects those rights.
The problem is that nobody knows what those rights are.
The Right to Privacy: Access to Abortion and Methods of Birth Control
Before the 19th century, abortion and disseminating information about birth control were common and generally not illegal. Then came Anthony Comstock.
Comstock, born in 1844 in Connecticut, was an “anti-vice” activist dedicated to upholding what he called Christian morality. He believed there was too much sexual freedom in America. Among other things, he was opposed to any form of birth control, which he claimed encouraged sex outside of marriage.
Nineteenth-century women who were experiencing “women troubles” could scan advertisements in local newspapers and find women’s health information. These ads offered information on how to prevent pregnancies or end unwanted pregnancies. Women could order additional information through the mail.
Comstock considered such advertisements and mailings obscene and immoral so, in 1878, he pressured Congress to pass a federal law called “Act of the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.” The law, which came to be known as the Comstock Act, made disseminating information about contraceptives punishable by up to five years of imprisonment with hard labor.
Margaret Sanger, born in 1879 in New York, was one of eleven children. She wrote in her autobiography that her mother was “perpetually pregnant.” Sanger trained as a nurse and worked on New York’s Lower East Side. Using contraceptives, she limited the number of her own children to three, but many of her patients “wore themselves out with continuous childbirth.” Because they didn’t have access to safe contraceptives or safe abortions, they shared home remedies. Women—including some of Sanger’s patients—died from self-induced abortions.
One woman who Sanger cared for nearly died after a difficult birth. The woman knew another pregnancy would kill her, so she asked the doctor if there was some way she could prevent another pregnancy. The doctor said, “You want to have your cake and eat it too, do you? Well, it can’t be done.” He advised her to tell her husband to sleep on the roof.
Three months later, Sanger’s telephone rang. The woman’s husband called to tell Sanger that his wife was pregnant again. Evidently he hadn’t wanted to sleep on the roof. Sanger rushed to their house to find the woman dying, surrounded by her young children. She slipped into a coma and Sanger was unable to save her.
After Sanger watched another desperate young woman die from a self-induced abortion, she took action. She spread information about birth control by writing a column in a socialist newspaper helping women understand how they could prevent pregnancies.
She was soon arrested and charged with violating the Comstock Act. The prosecutor who charged her said that her crime in disseminating information on birth control was the moral and legal equivalent of throwing bombs and committing murder.
To avoid a trial and conviction, she fled to Canada, where she continued writing about the need to educate women about birth control. Eventually, she returned to the United States to stand trial. She defended herself by saying that no woman could call herself free unless she could control her own reproduction and decide when—and if—she became a mother.
She was found guilty and sentenced to 30 days in the Queens County Penitentiary. The judge who sentenced her remarked that no woman had “the right to copulate with a feeling of security that there will be no resulting conception.” In other words, if a woman wasn’t willing to die in childbirth, she shouldn’t have sex. (As if women always had a choice in the matter, particularly in the 19th century when women generally had no choice but to get married.)
Sanger was offered a more lenient sentence if she promised not to break the law again. She refused, saying, “I cannot respect the law as it exists today.” After being released from prison, with an outpouring of public opinion supporting her, she was able to continue her work. Among other things, she opened a controversial birth control clinic that grew into today’s Planned Parenthood.
Griswold v. Connecticut (1965)
Estelle Griswold, who operated a Planned Parenthood clinic in Connecticut and C. Lee Buxton, a gynecologist at the Yale School of Medicine, were arrested in 1961 and charged with violating a Connecticut law against disseminating contraceptives. They were found guilty and appealed. Their case went to the United States Supreme Court.
The Supreme Court—while emphasizing that the patients seeking birth control were married—found that the Constitution implied a “right to privacy.” The Court acknowledged that the Constitution doesn’t explicitly contain a right to privacy, but held that the First, Third, Fourth, and Ninth Amendments created a “penumbra” or “zones” establishing the right to privacy:
- The First Amendment implied a right to privacy by saying people could associate with whomever they pleased;
- the Third Amendment implied a right to privacy by prohibiting the government from forcing people to allow soldiers to stay in their homes;
- the Fourth Amendment rules against search and seizure similarly created zones where the government could not reach;
- the Fifth Amendment right to remain silent similarly implied a right to privacy in one’s thoughts and opinions.
The First through Fifth Amendments are only tangentially related to privacy. It was the Ninth Amendment that pulled together the argument that the right to privacy is an unenumerated Constitutional right. The Court held that among the rights included in the right to privacy was the right of a married couple to decide whether to use contraceptives. (Again, notice the “married” part.)
The 14th Amendment Equal Protection Clause v. The 9th Amendment Right to Privacy
In 1962, Sherri Finkbine, host of the Phoenix, AZ version of a franchised children’s television show, Romper Room, became pregnant with her fifth child while taking thalidomide, a drug that, if taken during pregnancy, causes a condition known as phocomelia. Among other things, the limbs of the fetus do not form. Finkbine’s doctor strongly recommended that she obtain an abortion. She scheduled an abortion even though Arizona law permitted abortions only if the life of the mother was in danger.
The district attorney threatened to prosecute the hospital and any staff who participated in the procedure. The hospital therefore cancelled Finkbine’s abortion. Finkbine’s doctor requested a court order to proceed with the abortion. The order was denied.
When the public learned that Finkbine was trying to get an abortion, she began receiving death threats. The FBI stepped in to offer protection. Initially, the Finkbines tried to travel to Japan to secure an abortion, but the Japanese would not issue a visa, so they flew to Sweden. Swedish law required Finkbine to appear before a panel that considered the social, medical, and spiritual consequences of an abortion. The panel approved her abortion. The doctor who performed the abortion reported that the fetus had no legs, only one arm, and genitalia that were growing abnormally.
As a result of the abortion, Finkbine was fired from her job as the host of Romper Room and her husband was fired from his job as a high school teacher.
Ruth Bader Ginsburg, who later became a leading advocate for women’s rights, was then in Sweden doing research for a book on comparative civil procedure. She watched as the drama unfolded. Later she said the obvious conclusion was that if a woman had the money and freedom to travel she could have a safe abortion. Criminalizing abortion, therefore, fell only on those women who could not afford to travel.
Ginsburg’s career as an activist lawyer began when she was teaching law at Rutgers and a group of female students asked her to offer a course on women and the law. To put together the course, she spent the better part of a month in the library, reading every federal case and article about gender equality published since the birth of the nation. She later quipped that the task was easily done in a month because there were so few.
Among the laws she found was this one: “The husband is the head of the family. He may choose any reasonable place or mode of living and his wife must conform thereto”—a law derived from Napoleon’s code. She found a law from 1927 requiring all cars to be registered in the name of a man. A property law textbook published in 1968 declared that “land, like woman, was meant to be possessed.” She found this statement by Supreme Court Justice Bradwell:
“Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life . . . The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”
Putting together this course, she felt her anger rising. “How have people been putting such arbitrary distinctions,” she wondered. “How have I been putting up with them?”
As one of the best known and most successful women’s rights lawyers of the era (Ginsburg argued almost all the major sex discrimination cases before the United States Supreme Court) Ginsburg concluded that the implied right to privacy in the Ninth Amendment was the wrong approach to reproductive rights. She thought it was too contrived and not solid enough to bear the weight of sex and gender equality. She believed that women’s equality would be best achieved through the Equal Protection Clause of the Fourteenth Amendment, which stated that:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The law guaranteed equal protection to all persons. Laws effective reproductive rights treated women unequally and, as she once quipped, “The last time I checked, women were people.”
Because the judges Ginsburg arguing before were men, and because they generally held what you might charitably call old-fashioned ideas about women, she selected cases and clients to make her point: Laws that discriminate on the basis of gender and sex cannot be equal.
One of her clients, for example, was Charles Moritz, a single man who’d never married. In 1968, when his mother was eighty-nine, she was confined to a wheelchair, suffering from arthritis, lapse of memory, arteriosclerosis, impaired hearing, and other disabilities. To provide for her care, Charles hired a caretaker.
Had Charles been a woman or a divorced man, the tax code would have permitted him to deduct the expenses of caring for his mother. The deduction was known as the babysitter deduction. As a single man, the deduction was unavailable. The tax deduction, if granted, was worth only $600, so the cost of a lawyer would have eaten up anything he might have been awarded by the court—assuming he won—so he represented himself in tax court. Given the wording of the statute, he had little chance of winning, but he brought his case anyway because it struck him as unreasonable and unfair. He wrote his own legal brief, which Ruth described as the “soul of simplicity.” He wrote, “If I had been a dutiful daughter, I would get this deduction for the care of my mother. I am a dutiful son, and I don’t get the deduction. That makes no sense.”
The court told Moritz that it had no choice but to enforce the code as written, so Charles Moritz was denied his deduction.
Ginsburg and her husband, a tax lawyer, handled his appeal pro bono. She did the constitutional work, he took care of the tax part. In Ginsburg’s view, the case was perfect because she didn’t need to ask for much. The court needed only to repair an under-inclusive piece of legislation, changing a “good daughters” benefit to “good sons and good daughters.” It was not a case that would rock many boats, but it would make a point.
She was an incrementalist who believed that courts should tread lightly, making only necessary changes called for by the facts, thus giving the public a chance to weigh in. This was, in her view, more democratic and prevented the Court from acting like high kings sending down disrupting laws like thunderbolts.
She also knew that public opinion was largely on the side of reproductive freedom. The civil rights and women’s rights movements were in full swing. People were becoming aware that the law treated men and women differently in ways that were unjust. As a result, by the late 1960s, abortion laws were slowly changing all across the country. For example, states, one at a time, were removing criminal sanctions against doctors who performed abortions. The American Law Institute issued a Model Penal Code suggesting that all criminal sanctions be removed for performing abortions, at any stage of pregnancy, if the mother’s physical or mental health was at risk.
While these were small changes, the trend was obvious.
Moreover, at the time, Republicans were more likely than Democrats to favor decriminalizing abortion so the issue was not divisive or political. Ginsburg thought women would be better served by keeping court rulings low-key and allowing the changes to happen gradually, following public opinion.
She and her husband won. Moritz got his tax deduction.
The Case of Susan Struck
Susan Struck was born in Louisville, Kentucky, in 1944. Women at the time generally had a choice of three job occupations: Teacher, secretary, or nurse. Struck craved adventure, so became a nurse and, at the age of 23, joined the Air Force. The recruiter warned her that she would be discharged if she got pregnant. She later said that was “the dumbest thing I ever heard.”
After basic training, She was sent to Vietnam. She loved being an Air Force nurse. She bought a Camaro, drank beer, smoked, and frequented parties. She later recalled attending a party at the Phu Cat Air Force Base, where she was immediately swarmed by men plying her with pickup lines. Her favorite aircraft was the F-4, so it wasn’t surprising that the man she fell for was an F-4 pilot. When he asked her for a date, she responded with, “Where should we go? The ammo dump?”
When Struck learned she was pregnant, her commanding officer gave her a choice: Get an abortion or leave the Air Force.
Abortion, at that time, was legal in the armed services. Struck refused an abortion on the grounds that she was Catholic — although, as she admitted, a lapsed Catholic. She wanted to give her child up for adoption and remain in the Air Force.
According to Air Force regulations, when an officer became pregnant, a board of officers was convened to hear the case. On October 6, 1970, Struck appeared before the board and asked if she could use her accumulated leave to have the baby, arrange for the adoption, and then return. The board refused her request. A few weeks later, on October 26, the secretary of the Air Force reviewed the findings of the board and ordered Struck to be discharged effective October 28, 1970.
With the help of the ACLU in Washington state, Struck took her case to court. Colonel Max B. Bralliar, commanding officer of the Minot Air Force Base, testified that Struck “demonstrated excellent ability in the performance of the managerial aspects of the work units and an excellent knowledge and application of nursing care principles,” and that she was highly dedicated with a “professionally correct and mature attitude.”
Meanwhile, Struck returned home to have her baby and arrange for the adoption. She gave birth to a girl, who she called L.B., which stood for “Little Baby-san” or, if she was in a different sort of mood, “Little Bastard.” She selected the adoptive parents, Julie and Art, who agreed to Struck’s terms: the baby would be raised Catholic, and Struck would be allowed to visit. On December 10, 1970, the adoption was finalized. Julie and Art named the baby Tanya Marie.
On June 4, 1971, the district court ruled against her, so she appealed to the U.S. Court of Appeals for the Ninth Circuit. Five months later, the Ninth Circuit affirmed the district court’s order. She filed a petition for rehearing, but was again denied. One of the judges dissented for two reasons: first, men with temporary periods of disability were not discharged, and second, he found it irrational that only the natural mother, not the natural father, was declared unfit for service after the birth of a child. With the dissent, the ruling was 2-1 against Struck.
Susan Struck wanted to take her case to the Supreme Court. Because Ginsburg was then the director of the ACLU’s newly-formed Women’s Rights Project, Struck’s case found its way to Ginsburg’s desk.
Ginsburg thought Struck’s case was the perfect case to challenge abortion laws as unequal under the Fourteenth Amendment. The gender distinction in the Air Force policy made absolutely no sense. Once the baby was adopted and Struck was legally no longer a mother, there was no reason to deem her unfit for service.
Moreover, Struck’s case made two vital points: A woman should decide whether or not she would have an abortion, and abortion laws naturally discriminate on the basis of sex or gender. As Ginsburg said, nobody is for abortion. What people are for or against is a woman’s right to choose. For Ginsburg, the issue wasn’t about privacy. It was about autonomy. It was about a woman’s right to control her own life and her own body. Moreover, the facts would make the case unlikely to trigger a backlash.
Ginsburg planned to ask for a narrow ruling that would make the public aware of the issue without turning the abortion question into a hot political mess.
Roe v. Wade (1973)
To Ginsburg’s regret, as she was working on Struck’s case, another case–the case of Jane Roe–made it to the Supreme Court first.
Jane Roe, whose real name was Norma McCorvey, was unmarried, pregnant, and wanted an abortion, but Texas law made it a crime for a doctor to perform an abortion except to save the woman’s life. Roe’s lawyer argued that abortion rights were guaranteed under privacy rights contained in the Ninth and Fourteenth Amendments.
The 1973 Supreme Court decision in Roe v. Wade extended the right to privacy to the right to have access to an abortion.
Ginsburg believed the Court’s ruling was too broad. The Texas law being challenged was one of the harshest in the country, so the court could have—and in Ginburg’s view, should have—simply struck down the excessive portion of the Texas law. Instead, the Court issued a sweeping decision and as a result, the abortion laws of forty-six states that restricted abortions were instantly rendered unconstitutional, even the most liberal of them.
Given the sweeping the decision, like a thunderbolt from the high court, she feared that Roe v. Wade would create a “storm center,” turning the issue into a political one, mobilizing the pro-life movement, and giving it a single focus.
Indeed, this was what happened. The Republicans in the 1970s were in danger of losing electoral majorities because their economic policies were unpopular. One way the Republican Party expanded its base was by reversing its stance on abortion and hence inviting into the party Christian fundamentalists.
Roe v. Wade became a rallying cry that united a fierce opposition that then spent decades working to stack the Supreme Court with justices with the goal of overturning Roe v. Wade.
Ginsburg always believed that if she had gotten to the Supreme Court first with Susan Struck’s case, she could have framed the remedy she sought more narrowly. It would have taken a little longer to get to the same place: Legalized abortion everywhere, but incremental change, in her view, would not have triggered a backlash.
We will never know if she was right.
Dobbs v. Jackson Women’s Health Organization
The movement to overturn Roe v. Wade succeeded in 2022, when the Supreme Court, led by a conservative (some might say reactionary and regressive) majority, handed down another thunderbolt: In Dobbs v. Jackson Women’s Health Organization the Supreme Court overturned Roe v. Wade.
The Court, in issuing its ruling, dismissed the argument that the rights enumerated in the First, Third, Fourth, Fifth, and Ninth Amendments “have penumbras, formed by emanations” that create “zones of privacy.” Justice Thomas called the entire idea of zones and penumbras a “facial absurdity.”
The Court reframed the question from “Is the right to privacy implied by the Constitution?” to “Does the Constitution confer the right to an abortion?” The Court then said no because the Constitution makes no specific reference to abortion.
The majority knew Ginsburg and others had promoted the idea that reproductive rights were covered under the Equal Protection clause of the Fourteenth Amendment instead of an implied right to privacy, so the Court addressed the 14th Amendment argument. In one of the dumber bits of reasoning I’ve seen in a Supreme Court decision, the majority said that the right could not be found under the Fourteenth Amendment because such a holding was “squarely foreclosed” by Supreme Court precedent.
Wait, what? The majority was worried about precedent in a case that, in one fell swoop, overturned 49 years of precedent?
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Since the Court issued its decision in June of 2022, anger over Roe v. Wade being overturned has been driving people to the polls. As a result, since June 2022, whenever reproductive rights are on the ballot, Democrats win.
It is therefore vital that, during the next six months, Democrats keep voters focused on reproductive rights.
This brings me back to the Ninth Amendment. What the heck is it doing in the Constitution? No cases have been decided using only the Ninth Amendment. Nobody has ever identified an unenumerated Constitutional right that we have.
The presence of the Ninth Amendment raises something of a metaphysical question: if there are unenumerated rights, but nobody knows what they are, do we really have those rights? (Sort of like, if a tree falls in the forest, but nobody hears it, did it make a sound?)
There. I hope you’re taking notes for the constitutional law portion of the terikanefield.com bar exam.
What? There will be a test?
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