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CHAPTER 1 The Derivation of Roe v. Wade THE DECISION in Roe v. Wade rests largely on the claim that the Constitution gives a woman a fundamental right to terminate her pregnancy. This right was derived in two different ways from the text of the Constitution as that text has been interpreted in previous Supreme Court decisions. Justice Blackmun, writing for the Court, cites a line of precedents that establishes the existence of a fundamental, constitutional right of privacy. He maintains that a woman's right to terminate her pregnancy is one of these rights of privacy. But some of the precedents relied on by Blackmun are themselves poorly grounded in the Constitution, and even if a constitutional right of privacy is constitutionally well grounded, it cannot plausibly be extended to include a right to have an abortion. Justice Potter Stewart, concurring in the decision of the majority, offers a different justification. He appeals to a fundamental right to liberty guaranteed by the Fourteenth Amendment's Due Process Clause. Though better than Blackmun's, Stewart's rationale is also weak because it relies on a very general right to liberty. This use of general rights is dangerously close to an extreme Liberal view of constitutional interpretation. The present chapter explains both rationales and exposes their defects . The judicial precedents employed by Blackmun and Stewart are historically intertwined. I consider the precedents in chronological order and unweave tille strands of privacy and due process to clarify their use by Blackmun and Stewart in Roe v. Wade. I first explain the doctrine of substantive due process as it was originally applied in the economic sphere. Then I trace the transfer of its use 17 18 Chapter 1 from economic to personal contexts, especially those of family life. I discuss Griswold v. Connecticut next, concentrating on the privacy rationale given there for the right of married couples to use contraceptives . The section that follows explains why the privacy rationale is strained beyond recognition when applied to the right of unmarried people to have access to contraceptives. These same considerations apply to Roe 11. Wade, nullifying Justice Blackmun's contention that women have a privacy right to terminate their pregnancies. Instead of deriving a fundamental right from a right of privacy, Blackmun derives what he calls a right of privacy from what he has (on other grounds, one must suppose) already come to regard as a fundamental right. Section I then return to the doctrine of substantive due process because that is the only rationale mentioned by any of the justices that promises to tie abortion rights to the Constitution so as to make them constitutional rights. But appeals to substantive due process in any area of human activity are in principle antidemocratic, antiseparation of powers, and not susceptible of reliable limitation. They reflect an excessively Liberal view of constitutional interpretation. The next section reviews and rejects Laurence Tribe's arguments for substantive due process and the extreme Liberal view. I conclude that appeals to substantive due process should be replaced wherever possible by considerations that gain for a right more secure moorings in the Constitution. Later chapters are devoted to this task. Economic Substantive Due Process As I explained in the introductory chapter, the Constitution prescribes a system of representative democracy but limits its application in order to protect the rights of individuals against the tyranny of the majority. Among the provisions designed to protect individual rights is the Due Process Clause of the Fourteenth Amendment, which declares that "no state shall ... deprive any person of life, liberty, or property, without due process of law." As we have seen, this is interpreted to mean that legislation must be duly enacted by an appropriately authorized legislative body and that it must be rationally related to a legitimate public purpose. This is called procedural due process because the Court's primary concerns are with the procedures of the statute's enactment and with the formal relationship of the statute to work that is within the legislative province. Around the turn of the century, another meaning was given to the Derivation of Ro!~ v. Wade 19 Due Process Cla.use. Concentrating on the clause's guarantees regarding liberty and property, the Court began treating rights to property and to economic liberty as fundamental constitutional rights. State economic regulations (of working hours, working conditions, and so forth) were invalidated as unconstitutional. Since fundamental rights were at issue, the state statutf:S were presumed invalid, and the Supreme...


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