[[link removed]] Ms. Memo: This Week in Women's Rights
June 1, 2022
From the ongoing fight for abortion rights and access, to elections, to the drive for the Equal Rights Amendment, there are a multitude of battles to keep up with. In this weekly roundup, find the absolute need-to-know news for feminists.
Where Is Privacy in the U.S. Constitution? The Wide-Ranging Ramifications of a Roe Overturn [[link removed]]
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Activists rally outside of the U.S. Supreme Court on May 2, 2022, after an initial draft majority opinion indicated that the cases Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey should be overturned, which would end federal protection of abortion rights across the country. (Kevin Dietsch / Getty Images)
BY CIARA TORRES-SPELLISCY | The U.S. Constitution is a sparse 4,400 words. This parsimonious use of language has provided full employment for generations of American lawyers who can argue what gaps in the document mean. The terse Constitution has also allowed generations of justices on the Supreme Court to act as gap-fillers through the adjudication of cases and controversies. One of the words that does not show up among the Constitution’s 4,400 words: privacy.
The Supreme Court has filled that gap by inferring that people in America (not just citizens) have a constitutional right to privacy. There are a few places in the Constitutional text that the justices have located the right to privacy.
The most satisfying is in the Ninth Amendment, part of the Bill of Rights, which says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, the Ninth Amendment says just because a particular right is not mentioned in the text of the Constitution does not mean that people in America do not have it. Thus the Ninth Amendment is a catch-all protection for rights that are not specifically listed. Historically, the Supreme Court has been extremely hesitant to find new rights in the Ninth Amendment because this opens the justices to the criticism that they are just making up rights to suit their own prejudices or whims.
A second source of the right to privacy that justices have relied on for decades are the two due process clauses found in the Fifth Amendment and 14th Amendment. (The Fifth Amendment applies to the federal government, and the 14th applies to the 50 states.) The Supreme Court has used the due process clauses to articulate the protection of fundamental rights including the right to privacy. The 14th Amendment’s due process clause states: “nor shall any State deprive any person of life, liberty, or property, without due process of law…” This word liberty is the textual peg the Supreme Court has used to find the right to contract, the right to marry, the right to intimate relationships, the right to use contraception and the right to abortion. When the Supreme Court rules a right is fundamental using a due process clause, this is known as substantive due process—and reproductive freedoms have long been covered as substantive due process rights.
And a final source of the right to privacy is the shadow of the Bill of Rights. In a case called Griswold v. Connecticut from 1965, the Supreme Court was considering the constitutionality of a Connecticut law that made use of contraceptives by married couples a crime. Justice Douglas wrote in Griswold that privacy could be found in the emanations and penumbra of the Bill of Rights.
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Making ‘Impregnators’ Pay Their Fair Share [[link removed]] Building Protections for Reproductive Autonomy in State Constitutions [[link removed]]
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Racial Justice Tops the Agenda of Young AAPI Women Candidates [[link removed]] Black Mothers Are Dying. Here’s How We Stop It. [[link removed]]
What we're reading:
We know it's hard to keep up with everything going on in the world right now. That's why going forward, we'll provide a weekly roundup of the stories we think are important that Ms. may not have covered. Here's what we're reading this week:
*
“Opinion:
How
the
Right
to
Birth
Control
Could
Be
Undone”
—
The
New
York
Times
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"These
Period
Tracker
Apps
Say
They
Put
Privacy
First.
Here’s
What
We
Found.”
—
Consumer
Reports
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“Opinion:
Overturning
Roe
would
be
disastrous
for
the
U.S.
military”
—
The
Washington
Post
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[link removed] [[link removed]] Tune in for a new episode of Ms. magazine's podcast, On the Issues with Michele Goodwin on Apple Podcasts [[link removed]] + Spotify [[link removed]] .
In May, we learned in a leaked draft opinion that the Supreme Court is expected to overturn Roe v. Wade — profoundly dismantling abortion rights in the U.S. Released in conjunction with our Beyond Roe project, experts explore why abortion is essential to the health of our democracy and society — and why democracy is essential to abortion, particularly given the alarming rates of maternal mortality and morbidity in the U.S.
We hope you'll listen, subscribe, rate and review today!
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