Charlie Buttrey

May 4, 2022

When Roe v. Wade was decided, the majority of the Court held that “penumbras” from the Fourth Amendment included the right of a woman to decide for herself whether to terminate her pregnancy in the first trimester. It appears that Roe v. Wade is about to be overturned and, along with it, the notion that constitutional rights have “penumbras.”

But what about the Ninth Amendment?

Perhaps you weren’t paying attention in high school civics when the issue of the Ninth Amendment came up. It says, quite plainly, that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  In other words, merely because the Bill of Rights specifically sets forth certain constitutional rights does not mean that there are not other rights that are equally fundamental.

The Amendment was almost entirely the work of James Madison. He introduced it, and it passed the House and Senate with little debate and virtually no change in language. In presenting the proposed Amendment, Madison said:

“It has been objected also against a bill of rights that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow, by implication, that those rights which were not singled out were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system, but I conceive that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment].”

Why wouldn’t the Ninth Amendment come into play when evaluating governmental intrusion into the right of a person to make personal medical decisions?

Asking for a friend.

© 2020 Charlie Buttrey Law by Nomad Communications