Abortion, Marbury v. Madison, and What’s “Written in the Constitution”
Conservative critics of Roe v. Wade have long argued that it is wrong in part because the right to abortion is nowhere written in the Constitution. Thus, it’s no surprise that the issue came up in today’s oral argument in Dobbs v. Jackson Women’s Health Organization, the case that could lead to the overruling of Roe. Supreme Court Justice Sonia Sotomayor offered the following response, while questioning Mississippi Solicitor General Scott Stewart:
Justice Sonia Sotomayor turned to Mississippi’s arguments that Roe v. Wade should be overturned because abortion rights are not explicitly laid out in the text of the Constitution.
Sotomayor noted that several key decisions – such as Marbury v. Madison, which established the judicial review – are not in the Constitution, nor are decisions guaranteeing the right to birth control and same-sex marriage.
“I fear none of those things are written in the Constitution,” Sotomayor said. “They have all, like Marbury v. Madison, been discerned from the nature of the Constitution.”
Neither the initial argument, nor Sotomayor’s critique are as compelling as they might seem. It is true that a right to abortion is nowhere specifically mentioned in the Constitution. If it were, that would Roe and subsequent cases much easier to decide. But it doesn’t necessarily follow that there is no constitutional right to abortion.
Some parts of the Constitution establish very clear and specific rules, such as the each state gets two senators, and that the president must be at least 35 years old. But many others state broad, general principles that courts must then apply to specific cases. The Constitution doesn’t specifically establish a right to criticize the president in vitriolic terms. But it does include a general right protecting “freedom of speech,” which courts can then readily apply to protect people who put up signs saying things like “Fuck Biden” and “Biden sucks.”
Similarly, the case for a right to abortion comes down to whether that right comes within t
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