Imposing their will
Justice Samuel Alito has written that women have no “right” to abortion. He says a “right” is something written in the Constitution, or otherwise “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty.”
The Founding Fathers recognized they had not included all “rights,” and so the Ninth Amendment says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” So what other “rights” are there?
Plainly, requiring that a potential “right” has been “deeply rooted” is not realistic. Do you have a “right” to have a cellphone? Do you have a “right” to have your ears pierced or braces on your teeth?
Equally plainly we have a “right” to privacy. But Alito’s crabbed argument also asserts there is no “right” if people have disagreed. That cannot be correct. There is always disagreement. Why would Blackstone and Coke have written what they did if there were no disagreements? Alito too acknowledges such disagreements: “We begin with the common laws, under which abortion was a crime at least after quickening.” In other words, before “quickening” abortions were lawful in some states.
Today a great majority of Americans believe abortion is a “right.” Must we wait 100 years or more before Alito says the “right” may be protected? Most Americans alive today were born after Roe v. Wade and have spent their entire lives believing that case was correct.
Why may a disagreement with Roe by a minority of Americans — a disagreement founded by many on religious beliefs — deny the majority a 49-year-old “right”? And why should our top court turn away from considering the dispute? And why can’t we compromise as Roe did without having pro-lifers impose their will on all others?