Here's a fun assignment. Think of all of things you can do with yourself, then ask, do I have a constitutional right to do this? If it's not explicitly mentioned in the Constitution in unambiguous language, like the second amendment's unequivocal guarantee of your individual and unrestricted right to pack heat, then no, you don't have a right to it. The second part was kind of a joke. The first part not–you'll find that you have no explicit constitutional right to do most of the things you do. So the fact that something you do or can do is not explicitly mentioned in the constitution does not ipso facto mean it's not a guaranteed right. Or so I would think. Not so much George Will.
In Roe, the court said that the 14th Amendment guarantee of "due process" implies a general right of privacy, within which lurks a hitherto unnoticed abortion right that, although it is "fundamental," the Framers never mentioned. And this right somehow contains the trimester scheme of abortion regulations.
Since 1973 the court has been entangled in the legislative function of adumbrating an abortion code the details of which are, Wilkinson says, "not even remotely suggested by the text or history of the 14th Amendment." Parental consent? Spousal consent? Spousal notification? Parental notification? Waiting periods? Lack of funding for nontherapeutic abortions? Partial-birth abortion procedures? Zoning ordinances that exclude abortion facilities? The court has tried to tickle answers for these and other policy questions from the Constitution.
Last thing first. According to the Constitution, it's the judiciary's job to interpret the law. The Supreme Court interprets all laws in virtue of their consistency with the U.S. Constitution. That's its job. Second, did you think of any of the things you do which aren't explicitly mentioned as rights?
The Constitution makes it explicitly and unambiguously clear that a right does not have to be stated in the Constitution in order to exist:
Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
By the bye, the “No non-enumerated Rights” argument (which I would normally expect Will to defend, since he hangs with the right-wing crowd) is the one instance I know of a “real world” application of a syllogism.
Let “M”:= “is mentioned in the Constitution”
Let “P”:= “is a right to privacy”
Let “R”:=”is a right that exists”
and their various cognates.
Then the standard argument is given as
E M P (There is no right that is mentioned that is a right to privacy.)
E R P (There is no right that exists which is a right to privacy.)
Which is clearly an enthymeme. However, when we add in the suppressed premise we get:
E M P (There is no right that is mentioned in the C. that is a right to privacy.)
A R M (All rights that exist are mentioned in the C.)
E R P (There is no right that exists which is a right to privacy.)
This is obviously a valid Cellarent Syllogism. However, since the minor premise is explicitly repudiated by the IXth Ammendment, the conclusion is false.
And for accuracy in representing the actual argument with which he disagrees he should be taken to task. Perhaps it would be better to say that Roe v. Wade does not find the right to privacy in the constitution, but in a series of precedents which stretching over 100 years which together concur that there is a right to privacy embodied in the constitution even if not explicitly stated.
“The principal thrust of appellant’s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal “liberty” embodied in the Fourteenth Amendment’s Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id., at 460 (WHITE, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S., at 486 (Goldberg, J., concurring).
…
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454; id., at 460, 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.
This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
Yes, Colin, there is always the misrepresentation with George Will. And indeed Gary, the ninth–mentioned all over the place in the above quotation. Seems to me they’re saying one obviously has a right to privacy, and that such a right has long been recognized, and the fact that it’s not explicitly mentioned in the Constitution does not mean it doesn’t exist.