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Ely added even more criticisms of Roe:

  • The Court offered no general account of the right of privacy. It offered reasons to regard the right to abort as important for women, but it did not say why these reasons should give it status as a fundamental Constitutional right. (For Ely, the reasons offered would be relevant to legislative action.)
  • Because neither legal precedent nor the language nor the values underlying the Constitution implies a fundamental right to terminate pregnancy, the question belongs in the legislatures where both the good and the harm done by legalizing abortion can be debated and weighed.