How the Courts Have Gotten Abortion Wrong for Decades | Opinion

The Supreme Court, both when deciding Roe in 1973 and with their recent decision in Dobbs overruling it, has illustrated that liberal and conservative justices alike have badly misinterpreted the Constitution's purpose when it comes to our rights. The nature of the mistake in each decision is identical in that both courts sought to determine whether the right to an abortion was granted to Americans under the Constitution. However, the proper question should never be whether or not the Constitution grants American's a particular right as the Constitution doesn't grant rights to us at all.

Our Constitution was created in the wake of the failure of our first constitution, the Articles of Confederation. The primary reason for that failure largely stemmed from the fact that the federal government was far too weak to effectively govern. Not wanting to overcorrect by creating a government that was too powerful, our current Constitution was drafted to explicitly spell out what powers it has, with one clause giving it implied powers to only the extent required for it to carry out its enumerated powers. In short, the Constitution created a government of limited power, though greater in power than its predecessor.

This is why the Federalists believed that a Bill of Rights was unnecessary, as the federal government only possessed those powers specifically given to it in the Constitution. In their view, the government as designed was already unable to meaningfully interfere with the rights protected by the first several proposed amendments that were ultimately adopted. Some Federalists who objected to a Bill of Rights did so on the prescient grounds that it could lead to an interpretation that the rights spoken to might be seen as exhaustive, resulting in less personal liberty for citizens.

In reading the first 10 Amendments to the Constitution, it should be rather obvious that a more appropriate title would be to call them the Bill of Restrictions. The First Amendment is the prime example of this in that its first five words read "Congress shall make no law," plainly indicating that the overt intent thereof was to further bind the government, not to create any right. The Second Amendment builds on this interpretation by speaking to how the right to bear arms "shall not be infringed," again limiting the government rather than establishing a right's existence. Almost all aspects of the first eight Amendments follow suit in this exact manner, being systematically worded to limit the government in what it could do with its express and implied powers.

The Ninth Amendment, perhaps the most neglected part of the entire Constitution, establishes that speaking to the existence of any rights in the Constitution, such as was done in the eight preceding Amendments, cannot be used as a basis "to deny or disparage others retained by the people." In essence, whenever someone declares that a right isn't in the Constitution and therefore does not exist they are utilizing an inherently unconstitutional argument as per the Ninth Amendment.

The Supreme Court is shown
The Supreme Court is shown. MANDEL NGAN/AFP via Getty Images

This is exactly what occurred in the Dobbs decision when the court declared that the Constitution does not confer a right to an abortion via a right to privacy. The court's reasoning in this case effectively denied and disparaged a woman's rights to privacy and bodily autonomy. Roe was little better in this respect, allowing abortion only after reasserting earlier and similarly flawed case law which held that the Constitution created the right to privacy by subtly hinting at it through multiple amendments.

The court, in both Roe and Dobbs, erroneously utilized a framework of legal analysis that was entirely dependent on deciphering what rights the people did or did not have under the Constitution and in each instance the majority reached a different conclusion. However, as the plain reading of the Constitution indicates, the proper analysis of an issue for the court should never be whether the Constitution grants a right or not, it should only be to ask by what authority the government seeks to exercise its power to restrict the liberty of its citizens.

Reframing the question this way leads one to the last of the Bill of Rights, the Tenth Amendment. Long spoken to as the "states' rights" amendment, this is a gross oversimplification that forgets that the closing words thereof explicitly reference that "the people" are also a reservoir of all power not given explicitly to the federal government. No clarification is given in the Tenth Amendment as to which of these "reserved" powers go to the states and which go to the people.

One could credibly make the case that "police powers," the authority normally used by states to regulate matters of health for the public good, can be relied on to make the case that states may lawfully restrict access to abortion. However, can one truly believe that a free society is one in which state governments have power over the most imitate decisions that its citizens make?

That isn't to say that our rights can never be taken away, but doing so for important rights like that of privacy and bodily autonomy should necessitate a "compelling" government goal that demands the right in question to be infringed as little as possible in order for the goal to be achieved. When this "strict" standard is applied by courts, the government almost always loses and the people retain their rights unfettered.

Nicholas Creel is an assistant professor of business law at Georgia College and State University.

The views expressed in this article are the writer's own.