In the previous posting in this series we noted that the 9th Amendment to the U.S. Constitution is, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The 10th Amendment is, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
In Roe v. Wade, the U.S. Supreme Court claimed because the fetus is not mentioned in the 14th Amendment, and because the framers of the 14th Amendment clearly did not have the fetus in mind when they drafted it, the fetus is not a person as that term is used in the 14th Amendment. This is very bad Constitutional law, especially in light of the 9th and 10th Amendments, to say nothing of the Declaration of Independence, all of which must be referenced if we are to understand the 14th Amendment and its alleged applicability in taking away the natural rights of the fetus.
Of the two, by far the most relevant in interpreting the 14th Amendment is the 9th Amendment. To argue that the fetus has no rights because the 14th Amendment does not mention the fetus, or because the framers of the 14th Amendment did not have the fetus in mind when they wrote it, directly contradicts the 9th Amendment. Constitutionally and consistently, the Supreme Court would have to argue that, because of the 9th Amendment, the mere fact that the fetus is not mentioned in the 14th Amendment means that the fetus must be presumed to be a human being and thus a person until and unless it can be proved otherwise — which the Court explicitly stated they were not prepared to do. This contradicts the principle in the 9th Amendment that enumerating specific rights is not to be taken as denying any rights not so specified.
We would otherwise have to conclude that the intent of the framers of the 14th Amendment was to revoke the 9th Amendment, and make possession of all rights (and thus personhood) dependent on the will of the State. This is clearly not the case, nor did the Supreme Court attempt to make that argument. The justices simply ignored the 9th and 10th Amendments in their decision. Under the 10th Amendment, of course, it is perfectly proper for any state to prohibit abortion, because a presumed right to an abortion is not specifically mentioned in the Constitution.
Thus, the Supreme Court contradicted itself in the same decision. First, the Court argued that the fetus does not retain the natural right to life. This is because the fetus is not specifically mentioned in the 14th Amendment. This violates the 9th Amendment, because the 9th Amendment protects all rights not specifically mentioned otherwise in the Constitution. The Court then maintained that the federal government in the person of the Supreme Court can overturn any and all state laws prohibiting or limiting abortion. This violates the 10th Amendment because the power to legalize abortion is not specifically mentioned anywhere in the Constitution as being vested in the federal government. The Court thereby figured out a way to have its cake and eat it, too, by the simple expedient of doing exactly the opposite of what the Constitution allows the Court to do.