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On Dobbs and the Ninth Amendment

Below is a letter Reason. Please note that this letter is exclusively about Constitutional interpretation and implies nothing about my views on the morality of abortion, or about what I believe states should or should not do now that Dobbs has been decided. (Without implicating them, I thank Roger Meiners and Adam Pritchard for feedback on an earlier version of this letter.)


Long an admirer of Damon Root, I worry when I find myself disagreeing with him. But disagree I do with his conclusion that Justice Alito’s ruling in Dobbs “is an insult to the 9th amendment” (“Alito’s Abortion Ruling Overturning Roe Is an Insult to the 9th Amendment,” June 24).

Like Damon, I hold the 9th amendment in high regard and wish that it were used more often to safeguard Americans’ unenumerated rights. Further, I agree both with Damon’s account of the history of this sadly neglected amendment, as well as with his observation that, when the Bill of Rights was ratified, the common law recognized a right to abortion until “quickening.”

But I don’t see how a ruling – Dobbs – that returns to the states the power to restrict access to abortion runs afoul of the 9th amendment. That amendment reads in full: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This wording – along with the very history that Damon recounts – clearly indicates that the 9th amendment is meant to protect unenumerated rights from being violated by the national government, which is the government that’s created and governed by the Constitution. The 9th amendment neither applies to the states nor enlists the national government to protect unenumerated rights from being violated by state and local governments.

While the 9th amendment would protect the right to abortion before quickening from being violated by the national government, this amendment in no way constrains state and local governments.

Donald J. Boudreaux
Professor of Economics
Martha and Nelson Getchell Chair for the Study of Free Market Capitalism at the Mercatus Center
George Mason University
Fairfax, VA 22030