I do not want judicial activism on any side. The role of COTUS is to rule on the legality of laws, not decide which laws shoud be upheld because it rpresents something that should be done.
COTUS says all things not enumerated in COTUS are relegated to te states.
If a judge made your contention it would be judicial activism in spades. It's not the role of a judge to simply declare on her own authority that part of the COTUS is a dead letter, unless there's a duly enacted amendment abolishing it. What the COTUS says 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."
Where the heck do you see an amendment abolishing those four little words at the end, "or to the people"?
Antiabortionists currently* want the power to determine whether a woman will carry a pregnancy to term to be reserved to the States respectively. Roe v. Wade instead reserves that power to the people.
When some specific power is not delegated to the United States, who the heck is supposed to determine whether that power is a power reserved to the States respectively, or a power reserved to the people, if not the SCOTUS? Roe v. Wade is clearly in compliance with the Tenth Amendment -- it transparently does not arrogate the disputed power to the United States.
I If I were on COTUS I would put my personal views and and say there in nothing in COTUS that gives a right to have an abortion, and until Ci ogress enacts national laws it is up to the states.
There's nothing in the COTUS that "gives" a right to anything. The COTUS recognizes certain rights; the COTUS puts us all on notice that we all have certain rights; the COTUS bans the government from violating certain rights; but our rights existed before the COTUS was enacted, and our rights are what they are whether the COTUS explicitly mentions them or not.
Obviously some people philosophically disagree with my contention on this point, but what of that? They can take their philosophy, insert it into their belly buttons, and intone "Aum". Because any judge who disputes my contention, who allows his personal viewpoint on that contention to affect his professional judgment, who fails to do his legal job and set his personal views aside, and who fails to act on the presumption that my contention is the law of the land, is engaging in judicial activism. The Ninth Amendment counts as part of the COTUS too.
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
(* If antiabortionists ever succeed in their current goal of getting that power reserved to the States respectively, they will, almost to a man, immediately lose interest in reserving it to the States, and start campaigning for federal laws restricting abortion even in the pro-abortion States.)
ETA: zorq said it first.