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I am a Civics and AP Government high school teacher. We are studying the courts now and famous or otherwise SCOTUS cases. Our question: what might have been the limits or influence of the 9th Amendment in the Dobbs v. Jackson case? It seems to a few of us (9th-12th high school students that the 9th Amendment 'should have' weighed heavily in the 'roots and traditions of our history argument', then what was the 9th for?) Also, one wonders about stare decisis and the same case?
The Ninth Amendment has had little direct influence on constitutional decision making, particularly in the Supreme Court. The exception that proves the rule is Justice Goldberg's concurring opinion in Griswold v. Connecticut, the case that held that married couples had a right to use birth control, where the justices indicated that the Ninth Amendment provided grounds for interpreting the due process clause of the Fourteenth Amendment as protecting some rights not specifically enumerated in the Bill of Rights. There was a bit of academic literature urging a greater role for the Ninth Amendment, but so far that literature has gone nowhere.
Unsurprisingly, you could make Ninth Amendment arguments on both sides of Dobbs (and I suspect you will find them in the amicus briefs). There is a history of legal bans on abortion that arguable protect the right to life of the unborn. There is also a history of tolerance for abortion reflecting this is a choice people get to make. The tension is best reflected in Civil War newspapers. At the same time states were nominally banning abortion, newspapers were running very thinly disguised advertisements for abortion services. In short, depending on your values and what parts of history you want to pick out, you can cite the Ninth Amendment for the position of your choice.
