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Skywalk, the ninth amendment doesn't grant any federally enforceable rights whatsoever.

There was some concern during the debate over the Bill of Rights about subjects that were not addressed. The Bill of Rights was designed to guarantee that the federal government could not restrict our rights, and several rights were specifically listed (free speech, freedom of assembly, etc.). There was worry that the federal government might assume that they could restrict rights not listed, by claiming that they were only banned from restricting those rights actually cited in the Bill of Rights' text.

The ninth amendment was drafted to solve that problem. It says that the enumeration of certain rights does not deny the existence of other rights retained by the people. However, note that the language is negative. It says the government (which meant the federal government, as the Bill of Rights was never intended to apply to the states at all) can't DENY the existence of other rights, whatever they may be. But it in no way grants the federal government the power to determine what those rights are, and to impose them on the states. Those rights are left to the voters and the state governments they elect for hashing out in the political process.

This is why it took constitutional amendments to ban slavery and give women federally guaranteed voting rights. Justice John Marshall couldn't "interpret" the ninth amendment as guaranteeing a right not to be enslaved. Nor could Justice Holmes decades later find a "right of women to vote" in the ninth amendment. They couldn't do that because there is no, as in ZERO, federal judicial power in the ninth amendment vis a vis the states. The whole purpose of the amendment was to keep the federal government, including the courts, out of the states on any matter where the Constitution was silent.

It required the feds to respect, for example, both Wyoming's law granting women the vote, and New York's law denying them the vote. If you didn't like one of those laws, your options were to change the law within the state in question, or get two-thirds of both houses of Congress and three-fourths of the states to amend the Constitution. The suffragettes did both, working state by state, and also working toward the 19th amendment, which eventually passed.

"Liberal" activist judges, however, have taken it upon themselves on abortion, sodomy, and many other issues to simply declare that they "found" a right to do those things hidden somewhere in some vague privacy concept, or whatever, and are using raw judicial power to impose their agenda on the country.

And, by the way, I've seen a few posts claiming that this "privacy rights" stuff can be used to overturn IRS regulations or gun laws. Not a chance in the world of that happening, because the judges only strike down laws they disagree with under this concept. It isn't a principle that's applied across the board. It's the whim of the judges. And the judges who created this "privacy right" are lefties who adore the IRS and love gun control, so "privacy" will never be invoked against them. It will only be invoked against traditional morality since legal sodomy and abortion actually cause government to expand, as I've mentioned elsewhere.

Any new statute prohibiting anal sex would have to apply to different sex couples and same sex couples equally. In addition, it would have to state protection of public health as its legislative purpose. Only then could it escape the shredders of Ginsburg, Souter, Breyer, Stevens and Kennedy.

Sexual Transmission

Of the sexual transfer mechanisms, the highest probability of transfer is clearly that of unprotected anal sex. Anal sex between an HIV positive male and an uninfected partner, either female or male, can result in transmission of the virus once in every three to ten sexual acts (1/3 to 1/10). That rests in sharp contrast to the probability of transfer through unprotected vaginal sex from an HIV positive male to an uninfected female (1/75 to 1/300), or the opposite transmission from an HIV positive female to an uninfected male through unprotected vaginal sex (1/300 to (1/1000).

Oral sex is also a mechanism of transmission, but the small number of verified cases of such transmission, and the fact that oral sex is often accompanied by other forms of sexual activity, make it difficult to estimate a probability. There do exist verified cases of oral sex transmission, both heterosexual and homosexual; the probability is low, but quite real. A recent report indicates that persons with allergies, asthma, eczema, and allergic meningitis are more susceptible to orogenital transfer, presumably because of the excess of lymphocytes responding to allergy-induced inflammations in the mouth and throat.

Anal sex is a more likely mechanism of transmission than vaginal sex, primarily because that part of the body, unlike the vagina, is not evolutionary adapted for the physical activity of sexual intercourse. Simply put, the lower end of the large intestine (rectum) is a thin-walled tube that breaks easily, bleeds when it breaks, and has a major supply of lymphocytes and macrophages (including the CD4 group) waiting to be infected by HIV.

From the perspective of functional anatomy, unprotected anal intercourse is biologically stupid! It is an open invitation to serious damage of the rectum as well as to the easy transfer of any sexually transmitted disease such as gonorrhea, syphilis, herpes, papilloma and Hepatitis B. Hepatitis B (for which there is a vaccine) is more easily transmitted sexually than HIV, and results in the death of some 20%-25% of those who acquire an infection.

http://www.arcmesa.com/pdf/hivfun0100.pdf

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