Mulhall column: The abyss’s gaze | PostIndependent.com
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Mulhall column: The abyss’s gaze

Late last month, the Supreme Court overturned Roe v. Wade.

The Constitution doesn’t mention a right to abortion. It doesn’t even use the word.

So how in 1973 did the Supreme Court find an abortion right in the US Constitution?



The short answer is, in the right to privacy.

Now, the A-students among us will quickly point out that just like the word “abortion,” the word “privacy” does not appear anywhere in the Constitution.



As reality sets in that this observation compounds the question’s difficulty, even the C-students’ brows wrinkle.

Maybe only a few of us mostly white, grammatically pronouned boomers see that for Bullwinkle to reach into the Constitution and pull one unmentioned right out of another, he’d better be a whole lot more gifted than everyone else.

So just where did Justice Blackmun find a right to privacy?

In court rulings.

Courts have ruled, as Blackmun pointed out, that people have privacy in marriage, procreation, contraception and other matters.

Then, Justice Blackmun tossed abortion on the heap of matters about which people have privacy, and voilà, an abortion right was born.

Whether you agree abortion is a right, Justice Blackmun anchored the privacy, and therefore abortion, on the Ninth and Fourteenth amendments.

“This right of privacy,” he wrote, “whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action… or… in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

The Fourteenth Amendment says, “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.”

Where life is concerned, however defined, the Fourteenth Amendment seems like a sticky wicket, but I’ll get to that later.

The Ninth Amendment is much shorter. It says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Of the two, the Ninth reads like the correct place to find room for a right not mentioned in the Constitution. It says just because the Bill of Rights mentions a right like free speech or bearing arms doesn’t mean other rights don’t exist.

It’s also worth noting that the Ninth Amendment does not grant Justices authority to identify rights, or to use a Justice-identified right to overturn state law.

While in the context of Roe Blackmun saw state law as a prohibitive agent, state law may be at least some of what the framers meant by “[rights] retained by the people.”

After the Dobbs opinion leak back in early May, I didn’t think much would change. At least in Colorado, that’s certainly true.

Anticipating the Supreme Court might overturn Roe, the Colorado Legislature passed the Reproductive Health Equity Act. Gov. Polis signed the Act into law on April 4, 2022.

The act doesn’t just ensure the continuation of the abortion right derived from Roe (as well as Planned Parenthood v Casey), it expands that right.

The act allows abortion at any stage of pregnancy, even though in Roe Justice Blackmun wrote, “[some argue] the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree.”

Colorado does.

Moreover, the Act makes it Colorado law that “a fertilized egg, embryo, or fetus does not have independent or derivative rights.” Some say prohibiting Colorado fetal personhood prevents future ballot initiatives like 2014’s Amendment 67.

But perhaps there’s a bit more to it, and this is where the Fourteenth Amendment comes back in.

In Roe, Blackmun said fetal personhood would invoke Fourteenth Amendment protection: “If this suggestion of personhood is established,” Blackmun wrote, “the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.” Limiting personhood to the born ensures that protection never extends to Colorado unborn.

Contrary to the concern that overturning Roe unravels federally guaranteed first-trimester abortion, Colorado’s political leaders have extended the guarantee until birth and codified the denial of fetal personhood.

In Colorado, not much has changed, really. The act reflects how many who have never known life without Roe now see.

Mitch Mulhall is a husband, father and longtime Roaring Fork Valley resident. His column appears monthly in the Post Independent and at PostIndependent.com.


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