A penumbra is a partially shaded area, in particular “that of the shadow cast by the moon on the earth in a solar eclipse, or by the earth on the moon in a lunar eclipse, resulting in an area that experiences only a partial eclipse” (OED). The word comes from Latin pen- (“almost”) and umbra (“shadow”); that pen- is the same “almost” we see in penultimate: the almost-last thing in a series.
But I’m not here to talk about astronomy or Latin or second-to-last things. I’m here to talk about abortion, the US Supreme Court, the US Constitution, and a thrilling theatrical performance I urge you to see.
Earth’s umbra (central shadow) and penumbra (extended shadow) during a lunar eclipse. Via NASA.gov.
The other shoe—a heavy-soled boot—dropped on June 24. In a 6–3 decision the US Supreme Court overturned the landmark 1973 Roe v. Wade decision, which had granted a federal right to abortion, and left it up to each state to establish its own guidelines, or outright bans. As Linda Greenhouse put it in a scathing New York Times op-ed: “[N]ever before had the court rescinded an individual right and left it up to the states whether to respect what had once been anchored in the Constitution.” Greenhouse called out the majority opinion for its “arrogance” and “unapologetic nature.”
The three dissenting Justices—Kagan, Breyer, and Sotomayor—were even more pointed: “As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare.”
Here’s why the decision has me thinking about “penumbra.”
Last week I watched What the Constitution Means to Me, a play written and performed by Heidi Schreck. And then I watched it again. (It’s streaming on Amazon Prime.) I’d originally seen the play in New York, in 2019, and hadn’t been able to stop thinking about it. I’ll probably watch it at least a couple more times.
In the play, most of which is a monologue, Schreck—a brilliant actor—recalls her winning streak in the American Legion Oratorical Contest, in which teens give speeches about, yes, what the US Constitution means to them. But Schreck goes further, bringing in sometimes-hilarious, often-harrowing details from her own life and the lives of her female relatives, and asking how the Constitution respects and protects those lives. (Short answer: It doesn’t.) Many countries’ constitutions, Schreck says, guarantee positive rights such as gender equality or access to housing or healthcare. Not the US Constitution. As far as “we, the people” go, our Constitution mostly enshrines “negative rights”: it prohibits certain government actions. The primary positive right it grants citizens is, as we know, the right to “keep and bear arms” everywhere, all the time, hidden or displayed, in unlimited quantities. (See last week’s other depressing SCOTUS opinion in New York State Rifle & Pistol Association v. Bruen.)
But then there’s the Ninth Amendment—“the most magical and mysterious amendment of them all,” as Schreck puts it.
The Ninth Amendment reads, in full: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
“Others retained by the people.” That leaves a lot of room for interpretation, doesn’t it.
When the great Supreme Court Justice William O. Douglas talked about this amendment, he used the word “penumbra.” What is a penumbra? Well … here I am standing in the light. And there you are, sitting in darkness. And, uh, this space between us, tis space right here of partial illumination, this shadowy space right here—this is a penumbra.
People laughed at Douglas for calling it this, but I like it. I think it’s a helpful way to think about the Constitution and also maybe about our lives. I mean, here we are, stuck between what we can see and what we can’t. We are trapped in a penumbra.
What Douglas was referring to was all the rights derived by implication from the Constitution and the Bill of Rights. He wasn’t the first jurist to regard the Ninth Amendment in this penumbral sense—the concept had been floating around in judicial circles since the 19th century—but he was the first to take it out of the shadows, so to speak, in the majority opinion he wrote in Griswold v. Connecticut, the 1965 case that acknowledged a “right to privacy” for married couples who wanted to use contraception. (Griswold is among the settled law that Justice Clarence Thomas pointed to in his concurring opinion. He’d like the Supreme Court to take another look at the case, and probably reverse the decision.)
Roe v. Wade is “a case that is all about penumbras,” Heidi Schreck tells us. Roe was grounded in the 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 ... in the Ninth Amendment's reservation of rights to the people,” as Justice Harry Blackmun put it in the majority opinion.
Last week’s decision in Dobbs rejects the penumbra, rejects any interpretation of the Constitution that wouldn’t have been recognized when it was originally written. Of course there is no mention of abortion in the Constitution. As Schreck points out, there’s also no mention of brushing your teeth. And there’s no mention at all of women. Not even once.
Trapped in a penumbra? More like consigned to darkness.