- When the Supreme Court overturned Roe versus Wade,
it did more than just allow states to ban abortion.
It showed how this court views rights not explicitly
listed in the Constitution.
JESS BRAVIN: It's really difficult
to exaggerate the importance of this decision.
The court has pulled a complete 180,
going from recognizing a constitutional right
and individual right, to saying 50 years
later, no, we were mistaken.
- Here's the legal reasoning behind that 180
and why even though the court's opinion made clear
it applies solely to abortion some legal experts
think the same methodology could be
used to revise other rulings.
The framers wrote the Bill of Rights, the amendments
to the Constitution, to, well, list the rights Americans have.
The right to free speech, to bear arms, to not
have soldiers in your house during peacetime.
You know them.
And at some point specifically, at the ninth one,
they wrapped it up by saying, this list isn't exhaustive
and there are other rights not named here that cannot be
denied or disparaged, or in 18th century terminology, the rights
not in the enumeration.
MARY ZIEGLER: So the Ninth Amendment
is there, essentially, to say that there are
on enumerated rights, that the list
in the Bill of Rights at the time
was not intended to be exclusive.
And so then the difficult part becomes figuring out what
those on enumerated rights are.
JESS BRAVIN: The Supreme Court has long seen
the right to privacy as one.
It established that right in cases involving raising
children, that parents have the right to teach them
another language or send them to private school,
and in cases involving having children,
that the government could not sterilize convicted criminals,
and in the landmark 1965 case Griswold versus Connecticut,
which was based on these earlier rulings that
overturned a Connecticut ban on contraception.
In the opinion, the Supreme Court
ruled that marital privacy, even though not mentioned explicitly
in the Constitution, is one of those unenumerated rights
protected by the Ninth Amendment.
And that right meant using birth control was a private decision
and couldn't be banned by the state.
MARY ZIEGLER: There was a lot of different kind
of ideas of privacy that flowed from Griswold.
- Cases that expanded the right to birth control,
the right to same-sex relations, and eventually marriage were
based on these cases that established privacy
as an unenumerated right.
MARY ZIEGLER: That was sort of a constellation
of privacy interests that arose in that way.
- The right to an abortion was one
of those that was established based on these rulings.
JESS BRAVIN: The phrase in Roe v. Wade,
it says that the right to privacy that was identified
in Griswold is broad enough to encompass the decision
to end an unwanted pregnancy.
MARY ZIEGLER: The Roe opinion mentioned that right could also
be found in another amendment, the 14th,
which says no one shall be deprived
of liberty without due process.
JESS BRAVIN: It says we believe that's based on the liberty
clause of the 14th Amendment.
Or the due process clause, another name for that clause.
Roe is from tradition that looks at these concepts of liberty
and equality very broadly.
It applies them very broadly to new circumstances
and to a society that is different than the society
that we had in the 18th century.
- But two of the justices thought that was
too broad of an interpretation.
JESS BRAVIN: The dissenters in 1973
said that the Constitution is silent on this matter.
It doesn't say anything about abortion one way or the other.
And this court has no business interfering
with the legislature's judgment about how
to regulate a pregnancy.
And that's pretty much the reasoning
that the court has adopted now.
- In overturning Roe, the court wrote that an unenumerated rate
should be deeply rooted in this nation's history and tradition
and ruled that the Constitution does
not confer a right to abortion.
JESS BRAVIN: The methodology is called originalism, where you
stick very closely to what you think
the authors of the passage understood it to mean,
what the public understood the passage to mean
at the time it was adopted.
- But some legal experts and civil rights activists are
concerned about how this methodology could be applied
to some of these other rulings involving privacy,
like in Griswold or in Obergefell versus Hodges,
which legalized same-sex marriage in 2015.
But the majority wrote that those cases do not destroy
potential life like abortion.
They even wrote nothing in this opinion
should be understood to cast doubt on precedents
that do not concern abortion.
But the dissenters argued that even if the majority's word is
trusted, that law has a way of evolving without regard
to original intentions.
And whatever today's majority might say,
one thing really does lead to another.
JESS BRAVIN: This broader approach
to applying the liberty concepts and equality
concepts of the Constitution, the current majority
of the Supreme Court is very skeptical of that.
And that doesn't mean that they are eager necessarily
to overrule those precedents.
There are different conditions and different facts
that apply to each of them.
But as a matter of principle, yes,
those would be on shaky ground.
The idea that they would be overruled wholesale the way
that Roe versus Wade has been overruled, a little harder
to imagine because the social acceptance is broader.
MARY ZIEGLER: The court is certainly saying
this is just about abortion.
But there's a breadcrumb trail the court
is leaving in the future if it wants
to go further than abortion.
And I don't think we can rule that out indefinitely.
- Experts like Ziegler say there's
no immediate prospect that these other rulings
would be reversed.
But the Supreme Court views unenumerated rights
much differently than previous courts.
And that may play out in future cases.