Supreme Court Overturns Roe v. Wade
The leaked draft is now the law of the land.
Nina Totenberg, NPR (“Supreme Court overturns Roe v. Wade“):
The U.S. Supreme Court has overturned the constitutional right to an abortion, reversing Roe v. Wade, the court’s five-decade-old decision that guaranteed a woman’s right to obtain an abortion.
“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority,” the court’s conservatives wrote in their majority opinion. The Court overrules those decisions and returns that authority to the people and their elected representatives.”
The three liberals dissented.
Justice Samuel Alito wrote the opinion of the case, in which Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett joined.
Justices Thomas and Kavanaugh filed concurring opinions. Chief Justice John Roberts filed an concurring opinion.
Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented.
“With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent,” they wrote.
Adam Liptak, NYT (“After a leak, the Supreme Court details its final decision on abortion.“):
The Supreme Court on Friday overruled Roe v. Wade, eliminating the constitutional right to abortion after almost 50 years in a decision that will transform American life, reshape the nation’s politics and lead to all but total bans on the procedure in about half of the states.
The ruling will test the legitimacy of the court and vindicate a decades-long Republican project of installing conservative justices prepared to reject the precedent, which had been repeatedly reaffirmed by earlier courts. It will also be one of the signal legacies of President Donald J. Trump, who vowed to name justices who would overrule Roe. All three of his appointees were in the majority in the 6-to-3 ruling.
Robert Barnes, Ann E. Marimow and John Wagner, WaPo (“Supreme Court overturns Roe v. Wade, ending constitutional protection for abortion“):
The Supreme Court on Friday overturned the fundamental right to abortion established nearly 50 years ago in Roe v. Wade, a stunning reversal that leaves states free to drastically reduce or even outlaw a procedure that abortion rights groups said is key to women’s equality and independence.
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division,” Justice Samuel A. Alito Jr. wrote. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The vote was 6 to 3 to uphold a restrictive Mississippi law. Chief Justice John G. Roberts Jr., though, criticized his conservative colleagues for taking the additional step of overturn Roe and Planned Parenthood v. Casey, which had reaffirmed the right to abortion.
The decision in Dobbs v. Jackson Women’s Health was the most anticipated of the court’s term, with political tension surrounding the fight over abortion rights erupting in May with the leak of a draft opinion indicating a majority of justices intended to end the long-standing precedent.
Given both the leak and the recent trajectory, none of this comes as a surprise. That Roberts both concurred in upholding an egregiously intrusive law and yet wanted to hold out the fig leaf of not overturning the theoretical Constitutional protection for abortion does induce some eye-rolling.
Granting that times have changed but Roberts has been less effective a Chief than his two immediate predecessors. Allowing such a monumental decision to be reached but yet doing so in a mishmash of concurring opinions further weakens the Court as an institution.
Welcome to Malta.
Make no mistake. This is not the last word or the last attack.
@SKI: I don’t think any of those rights are directly grounded in the Constitution. They are, however, enshrined in Federal law under the authority granted Congress under the 14th Amendment.
And let this be a lesson to all the Dems who ridiculed all those evangelicals and Catholics who backed Donald Trump despite his flagrant and obvious departures from the moral lifestyle they’ve long claimed to value. Were they hypocrites? Absolutely. But one thing they weren’t was stupid. They knew exactly what they were doing, and they did it exactly right in terms of reaching the goals they sought.
And don’t anyone tell me about how a lot of those conservative voters didn’t really want to see abortion outlawed, how it was all grift for the rubes, and how they’re like the dog that caught the car. Please. This is the way policy goals are reached. We could learn a thing or two from that, and it does us no good to get distracted by hypocrisy-shaming.
An extreme, deadly, and dangerous ruling from an illegitimate, radical, theocratic Supreme Court that, wrongly, insists states have a right to deny citizens “the right to be let alone” — in contravention to liberties codified and clarified by the 9th and 14th Amendments.
Judges have no business imposing their extremist religious views on an unwilling public, to enslave women with forced birth.
Americans better vote for Democrats like their freedom depends on it. Because it does. Republicans are too far right and too extreme to be trusted with power.
The conservatives at some of the sites I read were lying and saying the red states would not totally outlaw abortion and would allow rational exceptions. Just went through the list and essentially all of the states with trigger laws or laws waiting to be passed either allow no exceptions or dont allow exceptions for one of the big three, health of mother, rape, incest.
The obvious and rational remedy would be to pass a law guaranteeing abortion for a reasonable minimum period, with exceptions past that point for rape, incest, and health reasons, and clearly stating the various states can add to these rights but not diminish them.
Of course,a s soon as I said “law” it’s obvious not a single Republican senator would favor it, even if a majority of their constituents would.
And it’s no use bringing up the notion of eliminating the filibuster because Synema and Manchin.
When all civil, legal options are closed, people tend to resort to less civilized means. Add the resentment against a tyranny of the minority, and such other means become unavoidable.
@Kathy: Additionally, we need to realize something: The GOP is now going to shift to trying to pass a federal abortion ban the next time they have the trifecta.
@James Joyner: With all due respect, James, we have already seen, over and over again, that you don’t know enough about law to have a reliable opinion on whether something is or is not Constitutional or how SCOTUS and the Courts actually work. I don’t care whether you think the rights to privacy and autonomy is or not enshrined and protected under the Constitution. For more than 50 years, we have had such rights and some were just thrown away and the rest threatened by a Christianist Court that lacks democratic legitimacy.
We can walk and chew gum simultaneously. Especially since the Bible says life begins at first breath, and does not mention abortion except to describe how to do it.
Opposition to abortion in religious dogma is really about controlling women. Yes, the phony fake Christian needs to be called out. Every day.
So? Unless it is EXPLICTLY spelled out in the Constitution – and not even then – this SCOTUS has shown they do not give a damn about precedent, law or rights. They are ruling based on ideology, not legal principles. What *THEY* want and now they want it in their twisted political ramblings, not any sort of reasoned manner.
For so long people poo-pooed that Roe would be overturned. “It’s settled law!” “Precedent matters!” Well here we are. Contraception is next, as well as SSM and other rights they don’t like. We’d be utter fools to trust that “grounded in the Constitution” is any sort of protection anymore when several Justices have flat out said what they want gone and are just waiting for the chance.
Because they’re scared of what the 2022 and 2024 elections will look like once Americans realize conservatives do not believe privacy is inherent to freedom and believe women are little better than chattel slaves.
You know what is EXPLICITLY spelled out in the Constitution?
“Amendment IX — The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
They’re panicking. Dog finally caught the bus and is in danger of being run over. I had someone trying to tell me miscarriages and etopics would still be handled since “they’re not abortions” so it would still be legal to preform the procedure.
This didn’t ban intent. It banned the physical actions that are needed to save lives in various scenarios. All those folks who want to pretend a shit ton of women are going to die in the next week because of this don’t want to accept they’re the true murderers. This isn’t a moral judgement just affecting “bad” women that need punishment – it’s going to kill your family and friends who have a medical crisis that was survivable yesterday and now isn’t. Deep down they get that and know we’ll be seeing a flood of stories soon.
They wanted this to be be the clean theocracy moral victory without any consequences. Too bad mf-ers, right before elections there is going to be a story a day about some poor mother who left behind her kids due to an ectopic pregnancy death. Elections are in 138 days – 19 weeks. That’s halfway through an potential unwanted pregnancy that a LOT of angry women will have an opinion on.
@Kathy: “The obvious and rational remedy would be to pass a law guaranteeing abortion for a reasonable minimum period, with exceptions past that point for rape, incest, and health reasons, and clearly stating the various states can add to these rights but not diminish them.”
Why would SCOTUS not overturn this even faster ?
I’m genuinely curious as to how the Supreme Court is going to act when Jewish religious organizations sue on the grounds that their religion, Judaism, not only allows abortion, but encourages it to save the “life, health, or WELFARE” of the mother.” On purely religious liberty grounds, based on the Hobby Lobby decision, I see a disconnect with the current overturning of Roe.
“Hypocrisy” isn’t in even in play. I read somewhere recently that Republicans actually are very consistent within the tenet of “Nobody should be able to tell me what to do which includes making other people do what I want to them to do.” This way to policy goals is simply not available to Democrats. We find authoritarianism a bridge too far.
It’s not that voters said “it’s settled law”. It’s that Gorsuch and Kavanaugh, at the least, said this to Senators during confirmation. They are filthy liars, and deserve no place on the Court.
@EddieInCA: You spoke too late. It’s already happening.
I was at an abortion-rights rally a few weeks ago, and an Orthodox Jewish woman spoke (eschewing the microphones because it was a Saturday), highlighting just this issue. It’s not exactly the standard “women’s right to her body” approach to the issue, but it is an illustration of how the ruling violates even some relatively conservative religious doctrines.
Right now some conservative male is pleased by this and doesn’t think it will affect him. He’s never had a pregnancy scare with any women so he’ll be fine, right? Turns out all the woman he’s been seeing have taken care of things without his input so he never knew about the close calls. By election night, he’ll be a father or father-to-be against his will and resentful AF about the next 18 years of his life.
GOP just lost his vote as well as all the guys like him now “trapped” in a life they didn’t want and didn’t have to worry about yesterday.
Right now some conservative female is pleased by this as she’s a chaste, God-fearing woman and not a liburl sl^t. This won’t affect her and now the babies will be saved!! Except in a few weeks, she’s be peeing on a stick and crying about how this is not happening and what does she do now?? Maybe the father doesn’t want it, maybe she doesn’t want it, maybe she was attacked and this is just another violation – doesn’t matter, she’s out of options. Even if she gives the child away, paying for the pregnancy (dr visits ain’t cheap!) isn’t possible. There’s going to be little help as she’s now just one of a number of women flooding centers to find formulas, diapers, free care or even just support. She’ll be lost in the tide.
GOP just lost her vote – she’ll be too busy deal with the situation to stand in line for hours. She won’t be alone as tons of conservative women in red states will suddenly not have time on election day to go vote for who did this to them.
Count in all the single issue voters who just got what they wanted so why bother to show up and the GOP is worried as hell. They wanted this AFTER the election was done but SCOTUS could care less.
@KM: I will repeat something I’ve been saying for a while now: SCOTUS has just codified the right to abortion for rich people.
I wonder if they realize that this decision will result in more black and brown babies being born.
@Kylopod: Yeah, the reason Alito’s opinion says “Roe is different from all these other decisions” (I understand Thomas wrote a concurrence where he said “no it isn’t”) is religious. He thinks a fetus has a soul. He also knows he can’t write that in the opinion. Which makes it a hot mess.
So suing on grounds of religious freedom is dead perfect. It puts the religious issue in the foreground, which Alito was desperate to avoid.
Yeah, I’d agree with that. Also, I think part of the asymmetry comes from the fact that so much of Republican “policy” involves taking things away. It’s always easier to knock something down than it is to protect it or add to it.
@Jay L Gischer: I actually read the Roe decision some years ago, and I remember it mentioning the variety of doctrinal views within different religions, including Judaism.
(I’ve heard that Mormonism also has some flexibility on this issue compared with the Catholic Church, though I’m not sure of the specifics. I wonder how the decision will play in Utah.)
Abortion was never male vs. female, it was never about ‘the patriarchy,’ and it was stupid for feminist organizations to frame it that way. Hopefully now a less lawyer-driven, less Washington-focused, more grassroots pro-choice can spring up.
@Kylopod: if they have a passport ready. Pence already pushing nationwide ban
Will you stand up and protect me when the Republicans and the radicals on the Court forcibly divorce my partner and I?
Will you stand up and protect me when they come to take my children away because I’m Trans.
Will you stand up and help me smuggle Estrogen across the border when the Court rules that I’m not entitled to live saving medicine.
Will you bail me out of jail when I’m arrested for violating “anti-crossdressing” laws?
Will you help me bury my daughter or friends when an ectopic pregnancy kills them?
Or will you sit comfortable thinking these things don’t effect you so your safe?
That. And legal until “quickening” under British Common Law and in many states at the time of ratification of the Constitution. And the biblical method wasn’t commonly used by ancient Hebrews. They practiced infanticide.
And this isn’t the worst. Wait and see what these Federalist Bozos will do to what they see as the regulatory state.
Well, the law of untended consequences is about to kick in.
Anyone who has young kids, sorry but things are about to get rough – prices on everything are going to skyrocket, shortages will everywhere and wait times for doctors, schools/daycare and anything kid related will be impossible for the next few years. Watch for crackdowns on using PTO and WFH from companies that now will have a huge portion of the workforce suddenly have kids; wait till insurance start pushing back on claims for all the maternity and child care issues that will pop up. Your boss isn’t gonna be cool with “have to take my kids to soccer so can I leave early” when 4 parents with newborns need the time instead.
Children will be abandoned in safe harbor locations and orphanages fill – conservatives act like they’ll all be adopted but it’s not gonna happen. Government services will strain suddenly we have a 1m new individuals that need to be accounted and provided for. Taxes are gonna have to go up or kids will start starving. Voters might not care when it’s other people’s kids but they’ll demand it for theirs!! Red states will have little choice no matter what they say as huge population increase demands resources. If you’re in a rural area with only one hospital, guess what – you likely aren’t giving birth that as space will now be at a premium (COVID’s still a thing!) and OB-GYNs will be in huge demand. This means many high-risk pregnancies that had a chance before will fail, causing unnecessary heartbreak and medical complications.
All this is just off the top of my head. How it will affect the workforce and interpersonal relationship is a post I think about after a nice glass of whiskey. Good God has the GOP screwed up royal with this…..
Let’s also be clear on something else. Under Dobbs, a right doesn’t exist unless it is explicitly perfectly spelled out in the Constitution. However, under Vega (I believe that’s the name), even if a right is spelled out, and the government violates that right, there is no recourse. You’re just fucked.
If anyone wants a sad laugh, I’m typing this from the Henry Hyde Courthouse.
A group protected by the law, but not bound by it.
@CSK: “I wonder if they realize that this decision will result in more black and brown babies being born.”
That’s why they made it legal for white men to carry guns wherever they want.
Oh, they didn’t actually specify that the right only applies to white men? Don’t worry, that’s what the cops are for.
@KM: actually, it’s going to be worse than that. Considering the amount of liability an OB-GYN now opens himself/herself to by anyone who want to accuse him/her of having “assisted” in an abortion, I suspect that places like Texas are going to undergo a great drop in the number of OB-GYNs, particularly in rural areas. With the expected effect on the health of women, pregnant women, and their would-be children.
(At some point the whole thing will go back to equilibrium, but sheesh are we going to have a mess until we get there.)
I think it might be interesting to see how companies that were contemplating moving corporate HQ or opening a major facility, to states such as TX, MS, or OK reconsider when they are faced with a possible revolt by female employees.
Joyner’s single biggest driving principle is defending the status quo purely for being the status quo. The only thing he will ever take a stand against is someone trying to change how the system works.
Guys, guys. I understand you’re upset here, but let’s not forget that the real problem is someone leaking the draft opinion.
Well, except one of the briefs if favor of striking down the law was filed by defense attorneys and civil rights orgs who pointed out that it was almost entirely enforced against black men.
Turning to abortion, SCOTUS has unleashed a can of worms. We’re going to have legislatures going over every single aspect of women’s health such as investigating miscarriages, monitoring fertility treatments and outlawing certain forms of contraception. It’s going to be a gigantic mess.
Also gotta love the GOP saying, “Well, leave it to the legislature” while they gerrymander the hell out of the country and try to disenfranchise Democrats. In related news, the PA governor’s race just became that much more important. Fruit loop J6 participant Mastriano wants to outlaw from conception with no exceptions. And then purge the voter rolls.
Dave Portnoy is a tool! Full stop. I disagree with much of what he stands for. He’s a “Libertarian” who has been pro-Trump and anti-woke, pushing a narrative that woke Dems are ruining the country.
But… this morning he went on an epic rant on twitter: https://www.mediaite.com/politics/pure-insanity-dave-portnoy-decries-overturning-of-roe-in-emergency-press-conference/
This needs to be the message. Republicans are dangerous.
Seen on FaceBook:
Please explain this, because I genuinely don’t understand how this can be the case when the 9th Amendment literally says not to do this.
Reading that Dave Portnoy thread I had this thought:
You know, I find the complaints about “wokeness” to be kind of weird. It’s like “Those crazy leftists are right on substance but they are SUCH nags about it!”
I mean, that’s pretty much what I think, but the naggers are A) Few in number, and B) easy to ignore. I would rather keep my focus on the substance.
I think most of the stuff you see these days is less persuasive than what is possible. I’ve been an evangelist for trans rights and trans people, and I’ve had success. I didn’t nag and shame people doing it, either.
To be fair, I think many are following what I would call “the logic of protest” which holds that the highest goal is to attract attention, and no kind of attention is bad.
But to get back to Dave Portnoy, if you think the naggers are wrong on the substance, then you really won’t like it.
If the courts functioned rationally, the lack of a majority opinion would leave a lot of the arguments that led to this to be useless as precedent, unless they were used in enough of the concurring opinions to be supported by the majority. I’m not sure that this will hold, but it is the straw that I am grasping at.
(I’m not going to claim Roberts was engaged in 14 dimensional chess, though, as the far likelier case is that Alito thinks he should be Chief Justice and is planning to smother Roberts the next time the political winds are favorable)
The Alito opinion is a fucking disaster for many groups — it provides a basis for rolling back rights for all manner of queer folk, minorities, women, and anyone else who isn’t a perfect example of pristine celibate white manhood.
Hopefully the fragmented decision shows the court isn’t willing to go there, but even if that is the case we are going to be having right wing appeals courts deciding based on the most severe reading of the most severe opinions in this case for decades.
Hopefully @Beth will not have to be smuggling estrogen across the border, and the rest of us can continue to enjoy birth control and buggery.
I mean this in the best of all possible ways — what could Dr. Joyner actually do that would qualify as “stand up and protect you” in this case? Or any individual, not to put Dr. Joyner on the spot.
I don’t feel like I have a lot off power to affect these things, and I know that I’m either affected, theoretically effected, or next on the chopping block.
It feels like all of this is ultimately decided on the stupidest reasons possible — Clinton’s emails, Beau Biden dying when he did (I’m positive that a boring, steady white man Democrat would have won in 2016, and Joe didn’t run because he was grieving), etc.
@EddieInCA: Portnoy…what a douche that guy is. He voted for Trump, yet in his rant makes no apology for helping set into motion exactly what he is complaining about. Does he not stop to think about that? All white male libertarians are just guys too afraid to say they are left of center. It’s a cop out so they don’t have to have uncomfortable conversations with their “liberals are pussies” shouting friends who follow any alpha male that gets them excited. Portnoy is probably decent to drink and talk sports and bullshit in general with, but is exactly the type of guy that should stay home on election day for the benefit of his country.
@Beth: he ought to care about you and your rights simply because you’re human, but if that’s not enough, I hope James remembers that he has daughters.
The super short (from memory version) is there isn’t any case law that actually says what the 9th means. Theoretically it could mean rights to abortion, gay sex, and space travel. But no one knows. The Alito Doctrine is basically the 9th amendment doesn’t exist and unless the Constitution specifically, perfectly says something is a right, it’s not. Further, even if it says something on point, unless it fits exactly within their approved history, it’s not a right.
First, he (and I’m going to let Dr. Joyner stand in for all Cis Straight White Men), he could try to feel a little of the fear that woman and LGBT people feel. We are clearly second class citizens now, with less control over our bodies and lives than him.
He can use his position to advocate for us, in his blog, in his teaching, with his money. He has power and safety most of us don’t have. He has power and safety that his wife and daughters don’t have.
He can also start to do some of the emotional labor. Across all my socials the only people fighting this are the women and enbys I know. The Cis men are silent.
I’m been pondering what the Democrats can do with 50 votes — it would have to be financial in nature to get through on the reconciliation path, and even there we have Sinema and Manchin and the less visible moderate/conservative Democrats.
Put the IRS in charge of collecting and paying child support, across the board.
Women wouldn’t have to haggle with reluctant or broke fathers, and the government would just pay without interruption and take it from the father’s wages. Father unemployed? That’s ok, we’ll get the money eventually, don’t worry, the IRS doesn’t forget.
The end of Roe leading to a certainty that if women are on the hook for raising the beast, the men are on the hook for paying for the damned thing. (I’m not big on kids… vile little larva)
That and named fathers have to either submit to a genetic test or are deemed to be the father. Personal responsibility and all that. And we need this before the Republicans go after birth control.
I have no idea if this would fly with the current 50 in the Senate. But Manchin’s objections to the child tax credit were that he wanted a work requirement, and this seems to mostly sidestep that.
(I kind of want fathers on the hook for 50% of the cost of medical care for the pregnancy and lost wages around that, and unable to sever a connection if the kid gets put up for adoption… but those seem like they wouldn’t go anywhere in the senate)
@Mister Bluster: if you turn your clock back 50 years, abortion will be legal soon.
@Jay L Gischer:
I’m sure you know the fear.
@James Joyner: “I don’t think any of those rights are directly grounded in the Constitution. They are, however, enshrined in Federal law under the authority granted Congress under the 14th Amendment.”
Well, no. And note that the GOP doesn’t look too highly on the 13th, 14th and 15th Amendments.
I’m not sure who cares (at least among people whose opinions might matter) or why it matters over the next 30 or 40 years.
@EddieInCA: “But… this morning he went on an epic rant on twitter: ”
Give him two weeks, and see what he says.
@Jen: “Please explain this, because I genuinely don’t understand how this can be the case when the 9th Amendment literally says not to do this.”
The GOP has the only six votes which matter.
@Jc: In addition, he’s sh*tting on Biden.
All of these guys are just Republicans who want to avoid blame.
“Amendment IX — The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
That was then; this is now. Critical Legal Theory provides the tools for arguing any point of law–Constitutional or otherwise. Beyond that, we’re fully engaged in an era where “Constitutionality” will be whatever SCOTUS declares and only those things.
@CSK: Not a problem. Eliminate WIC, TANF, and whatever other programs feed children. Problem solved.
@Just nutha ignint cracker:
Under the Alito doctrine, those rights retained by the people had to exist in 1788. If not, too bad, they don’t exist.
@Gustopher: White manhood doesn’t have to be celibate. Only womanhood.
@Beth: Exactly! Constitutionality is whatever argument attracts 6 Republican votes in SCOTUS. Whatever text is used to defend the losing proposition will be discounted because it is “flawed” in some way or another. Deconstruction in the service of despotism. Jacques Derrida would be so proud!
@Beth: If it makes you feel any better, my resident Tik Tok expert says the “under 25” Tik Tok crowd is pissed, even the conservative ones. They’re even more pissed at the potential rights that will be lost if Clarence Thomas really does go after birth control and LGBTQ folks having equal rights and the ability to marry. She’s showed me some of them, and even “Johnny in the cowboy hat with the wife-beater tank top” and his ilk think this is some bullllllshit.
It remains to be seen whether they’ll vote accordingly.
@Beth: Thank you for the explanation…still seems sketchy logic to me. “We haven’t used that room” is different than “that room doesn’t exist.”
This is so weird to me, they are just pretending that the 9th doesn’t exist.
@Gustopher:..turn your clock back 50 years…
I was still driving the Sleepytown Yellow Cab.
The Supreme Court in Eisenstadt v. Baird legalizes birth control for unmarried people.
Yippie! No more rubbers!
A lid of weed (1 oz) was $20.
Thirteen years later I got a vasectomy.
Time to pack the court.
@Mister Bluster: I concur. Rotating judges, no lifetime appointments, nobody knows which judges will be empaneled to hear which cases….I’m sure other, more “familiar with court practices” members of the commentariat can fill out more details. But this shit is bullllllshit. I want to go live in the timeline where RBG retired gracefully during the Obama years, and Hillary won.
“And note that the GOP doesn’t look too highly on the 13th, 14th and 15th Amendments.”
Or the 16th, 17th or 19th Amendments, either.
As a Jew, I think this lawsuit is horribly misguided. First, I don’t see the Court biting. Second, there is no canonical Jewish teaching; there are plenty of orthodox and even conservative rabbis would disagree with this. Third, striking down abortion laws because of Jews is … not going to be received well.
@Jen: I don’t think that it’s “the 9th Amendment doesn’t exist” as much as “the 9th doesn’t apply to this thing.” It’s a deconstructive thing. In the case of Roe, for example, the ground argument on the right when I was young was that a “right to privacy” was invented because even though a right to privacy is understood to exist it’s never been codified anywhere, ever, so it can’t be unconstitutionally impinged on. The 9th does not protect it because no one is saying you can’t have privacy, they’re saying you can’t have an abortion.
(Yes, that argument IS ridiculous. I can’t fix that, though.)