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Behind The Roe v. Wade Debate: What Does The Constitution Really Protect?

The Constitution doesn’t mention abortion. But we take it to implicitly cover a right to privacy.

Today, we take the U.S. Constitution to protect many rights that don’t explicitly appear in the original document. So how can the courts decide what’s protected and what’s not? Roe v. Wade’s Supreme Court opponents argue that the law should be overturned because the Constitution doesn’t explicitly protect a right to abortion.

As legal expert Bill Blum explains, though, plenty of legal norms don’t explicitly appear in the Constitution–including, for instance, the Supreme Court’s power to declare a law unconstitutional. At stake is what rights not mentioned in the Constitution are protected. And the overturning of Roe V. Wade, Blum argues, could lead to a slippery slope. “Once we get rid of Roe and abortion, we're going to be able to attack other Constitutional rights that aren't specifically set forth in the Constitution,” he says.

Also at stake is the right to privacy–that is, where the state’s jurisdiction ends and where individual freedom begins. That right doesn’t appear in the Constitution, either. But as Sharon Kyle, lawyer and co-founder of the LA Progressive, explains, it has to start somewhere. 

“I think that that boundary is clearly established in our own personal bodies,” Kyle says. “Whether it is implied throughout the Constitution, whether you're looking at the 14th amendment, whether you're looking at the amendments to protect our freedom, to make certain decisions about our bodies.”

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