(crowd chanting)
- [Narrator] 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.
- It's really difficult to exaggerate the importance
of this decision.
The court has pulled a complete 180,
going from recognizing a constitutional right,
an individual right to saying 50 years later,
no, we were mistaken.
- [Narrator] 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.
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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.
- So the Ninth Amendment is there essentially
to say that there are unenumerated 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 unenumerated rights are.
- [Narrator] 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.
- There was a lot of different kind of ideas
of privacy that flowed form Griswold.
- [Narrator] 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] And that was sort of a constellation
of privacy interests that arose in that way.
- [Narrator] The right to an abortion was one
of those what was established based on these rulings.
- 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.
- [Narrator] The Roe opinion mentioned that right
could also be found in another amendment, the Fourteenth,
which says no one shall be deprived
of liberty without due process.
- It says we believe that's based on the liberty clause
of the Fourteenth Amendment
or the due process clause, another name for that clause.
Roe is from a tradition that looks at these concepts
of liberty, and equality very broadly.
Okay?
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.
- 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.
- [Narrator] In overturning Roe,
the court wrote that "an unenumerated right
should be deeply rooted
in this Nation's history and tradition."
And ruled that the Constitution
does not confer a right to abortion.
- 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.
- [Narrator] 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.
- 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.
- 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.
- [Narrator] Experts like Ziegler say
there's not immediate prospect
that these other rulings would be reversed.
But this Supreme Court views unenumerated rights
much differently than previous courts,
and that may play out in future cases.
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