1787 – Constitution gets written
(Yay-y-y-y-y)
(Celebration!!)
1791 – Objection:
We can’t ratify this!!
Some gawdawful authoritarian jerk is gonna say
we don’t have some basic right we forgot to directly list.
And it’s impractical to list everything!
NO NO NO!!!
1791 – Answer:
No problem. We’ll add an amendment that says any rights we don’t mention are still protected rights.
1791 – Solution:
10th Amendment – Unenumerated rights are protected
(Yay-y-y-y-y-y)
1868 – 14th Amendment:
Slavery is ended
(Yay-y-y-y-y)
(Celebration!!)
States are covered too. They have to respect rights.
(Including 10th Amendment)
1973 – Supreme Court:
Unenumerated (unmentioned) rights are protected
Right to abortion is an unenumerated right
Quote: “unduly restrictive state regulation of abortion is unconstitutional”
(Yay-y-y-y-y)
(Celebration!!)
2022 – Samuel Alito on not protecting abortion rights:
Forget all that!!
It isn’t listed, so it isn’t a right.
Quote: “The Constitution makes no reference to abortion.”
Note:
To be fair, Justice Alito did mention historical rights, to the extent of saying the right to abortion is not among them. He sprinkled a repetition throughout his opinion.
His reasoning was that abortion was not considered a right in 1791 because there was no specific decision among courts in the colonies saying there was.
History disagrees with that reasoning:
Terminations of pregnancy were commonly practiced…many of the earliest court cases involved women who became pregnant before marriage and wished to avoid the shame associated with an illegitimate pregnancy.
In fact:
During the colonial period, control over reproduction, similar to most family matters, remained a private concern.
The reason there were no court decisions on abortion before 1791 is that nobody thought to challenge that right until much later.
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