Abstract
Only two Justices dissented in Roe, and their reasoning was simple: the Fourteenth Amendment simply does not protect a substantive right to privacy. As then Associate Justice William Rehnquist noted, to find a right to abortion in the Constitution, the “Court necessarily has had to find within the Scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.” In all likelihood, the Court believed that it was reaching a fair and just outcome. That, however, is precisely the problem. By focusing on the utility of the outcome, the Court disregarded the constitutional processes that are designed to check the Court’s power and promote a participatory democracy. More specifically, in doing so, the Court: (1) embraced the concept of “living constitutionalism;” (2) politicized the judicial branch; (3) laid the groundwork for an unenumerated and outcome-based rights jurisprudence; and (4) upset the careful balance between the state and federal government.Ultimately, Roe is the culprit that ushered in a new era of judicial review that should cause citizens across the political and ideological spectrum to dissent. The cases that followed in Roe’s wake, regardless of whether one celebrates the outcomes, were based on the “mystical aphorisms of the fortune cookie,” not any reasonable interpretation of the Constitution.
Published Version
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