I was asked to publish the following article at the Savvy Street. I agreed, but I wanted to revise it a bit. The revised version is entitled The Ninth Amendment, Self-Ownership, and Abortion Rights.
The Supreme Court has noted that abortion is not mentioned in the U. S. Constitution. It is not. Neither is it mentioned explicitly that every individual owns his or her own life. Yet those rights acknowledged explicitly in the Constitution in the First and Second Amendments would seem to have a basis in an assumption that every individual owns his or her own life. The right to self-ownership is surely one of the rights that was meant to be protected by the Ninth Amendment. "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
The Ninth Amendment is the most important amendment in the Bill of Rights philosophically because it recognizes that an individual's rights are not just a grant of government. It recognizes, as did the Declaration of Independence, that all men are "endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness --" It is the Ninth Amendment that recognizes the sovereignty of the individual in accordance with our philosophy of government spelled out in The Declaration of Independence.
Tragically, those who seek to expand the powers of government far beyond its enumerated powers in the Constitution, have never wanted to acknowledge the sovereignty of the individual. His broad rights to self-ownership, to freedom of conscience, and to freedom of association have been subject to frequent violation by government too eager to control the lives of its citizens. The central role of the Declaration of Independence and of the Ninth Amendment have both been denied. This means that many government overreaches that should have been held unconstitutional on the basis of the Ninth Amendment have not been so thwarted. The Ninth Amendment has been almost totally ignored. This has led to many very contorted rulings by the federal courts trying to find some protection of rights that many Americans believe they have somewhere in the Constitution. Justice Clarence Thomas has been notable for his lone attempts to point this problem out.
It has been noted by many that the Justice Alito argument that abortion is not mentioned in the Constitution and therefore is not a right recognized by the Constitution, opens the door for making a similar argument against a right to same-sex marriages, the use of contraceptives, and interracial marriages. Based on the Alito argument, each of these rights might be returned to the states for legislation limiting or protecting them. These rights, as is the case with an abortion right, must have their proper basis in the right to self-ownership and freedom of association, both of which should be seen as protected by the Ninth Amendment.
The abortion rights decision by the Supreme Court has greatly angered many people, most of whom have consistently voted for the Democratic Party, though a sizeable fraction of Republicans also believe in abortion rights. The Democratic Party has been most vociferous in its denial of the right to self-ownership in all contexts but one and in its denial of the protections of the Ninth Amendment. The existence of an abortion right must start with a woman's ownership of her own body.
One of the best examples of the Democratic Party interfering with the right to self-ownership was the enactment of Obamacare. Every Democrat Senator and 87% of the Democrats in the House of Representatives voted for Obamacare. They spent an incredible amount of political capital on this highly unpopular legislation. While there were other reasons why many Democrats wanted this control over the maintenance of every American's mind and body, many wanted and understood that they were really asserting a principle that no one owned their own mind and body exclusively. They asserted that there was a collective ownership of every person's mind and body, which gave the collective, acting through the government, the right to dictate how every American would maintain his or her own mind and body. The principle of collective ownership of our minds and bodies was explicitly noted in the first income tax return Obamacare applied to that designated the tax penalty line Shared Collective Responsibility. I made the argument at the time that this assertion of collective ownership was the real issue with Obamacare, but almost no one supported me in this.
So now many women are furious that their abortion rights may be limited by the state they or other women live in. They insist that they own their own bodies and should have the right to decide for themselves whether they will have an abortion or not. Unfortunately, it does not dawn on them that if there is a right to self-ownership, then it applies far more broadly than just to abortion issues. It surely also applies to the right that every individual, man or woman, has to determine how they will use and maintain their bodies. It applied to Obamacare and many other examples of government limits on our board sovereign individual rights to self-ownership, including the ownership of our labor and our freedom of contract. But no, selective assertion of a broad principle is all they care about. Because of that failure to think in terms of principles, the Supreme Court now has no basis to assert any national abortion right. The matter has been turned over to the states to decide.
I believe a woman has an abortion right, but its boundary is limited by that time when the development of a fetus makes it a human being protected from murder, or by when it is capable of independent life. I am not asserting where that boundary is. That is a thorny problem. Perhaps that is a problem best left to the states and the more local beliefs of the people who live in those states. However, wherever those decisions are made, if a woman has an abortion right, it is critically dependent upon her right to self-ownership. Women who want to assert this right, ought to assert the right to self-ownership for every individual, man or woman, in all the contexts to which it applies. If they do this, government will be far more limited than it is today and everyone but a few invidious special interests will benefit immensely.