Remarkably, the three-judge district court panel in Roe v. Wade, taking Justice Goldberg’s lead from Griswold v. Connecticut, in one fell-swoop incorporated the 9th Amendment through the 14th Amendment, and found that the right to abortion was protected by the 9th Amendment’s. Here is what I supposed passed for constitutional analysis in 1970:
On the merits, plaintiffs argue as their principal contention7 that the Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couples of their right, secured by the Ninth Amendment,8 to choose whether to have children. We agree.
The essence of the interest sought to be protected here is the right of choice over events which, by their character and consequences, bear in a fundamental manner on the privacy of individuals. The manner by which such interests are secured by the Ninth Amendment is illustrated by the concurring opinion of Mr. Justice Goldberg in Griswold v. Connecticut, 381 U.S. 479, 492, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965):‘The Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and intent that the list of rights included there not be deemed exhaustive.’ * * * ‘The Ninth Amendment simply shows the intent of the Constitution’s authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments.’9Roe v. Wade, 314 F. Supp. 1217, 1221 (N.D. Tex. 1970) aff’d in part, rev’d in part, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).