Sources & Extracts
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John Hart Ely's critical review of the Roe decision appeared
in The Yale Law Journal in April of 1973. While advocating
a liberalization of laws on abortion, Ely found the constitutional
argument in Roe faulty. These comments are taken from his
It [the Court] agrees, indeed it holds, that after the point of viability . . . the interest in protecting the fetus is compelling. Exactly why that is the magic moment is not made clear. . . . [T]he Court's defense seems to mistake a definition for a syllogism. . . .
With regard to why the state cannot consider this "important and legitimate interest" prior to viability the opinion is even less satisfactory. [Ely notes that Blackmun claimed that fetuses were not persons under the 14th amendment and that the word 'person' in the Constitution does not obviously include fetuses.] But in any event, the argument that fetuses lack constitutional rights is simply irrelevant. For it has never been held or even asserted that the state interest needed to justify coercing a person to refrain from an activity, whether or not that activity is constitutionally protected, must implicate either the life or the constitutional rights of another person.
[On the right of privacy Ely wrote:] What the Court does assert is that there is a general right of privacy granted special protection --that is, protection above and beyond the baseline requirement of "rationality"-- by the Fourteenth Amendment, and that right "is broad enough to encompass" the right to an abortion. . . .
[I]t seems to me entirely proper to infer a general right of privacy, so long as some care is taken in defining the sort of right the inference will support. . . .
Unfortunately, . . . the Court provides neither an alternative definition nor an account of why it thinks privacy is involved. It simply announces that the right to privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." . . .
What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure.
Reference: John Ely, The Yale Law Journal, Vol. 82, April, 1973, pp. 920-949. Text in brackets added.