Roe v. Wade: The Right of Privacy Revisited
![handle is hein.journals/ukalr21 and id is 537 raw text is: 1973]
ROE v. WADE: THE RIGHT OF PRIVACY REVISITED
Louise A. Wheeler*
Shirley L. Kovar**
On January 22, 1973, the United States Supreme Court in two cases, Roe
v. Wade1 and Doe v. Bolton,2 invalidated all state criminal abortion statutes.
The 7-2 decisions provoked a storm of outcry from both popular' and aca-
demic4 critics. They complained that the abortion decisions had no basis in
the Constitution or precedent in previous cases. Unfortunately, the opinions
themselves fail to yield a reasoned justification of the constitutional basis for
protection of the woman's interest in terminating her pregnancy. It is the
purpose of this Article to do so. In defense of the abortion decisions, we will
propose a model of the constitutional right of privacy, which suggests the
origin, the scope, and the content of that right. The model, though based on
the cases that led up to the abortion decisions, suggests a fully developed
theory of the right of privacy lacking in these previous decisions. We have
attempted to draw from each preceding case the underlying ground for de-
cision, and then to rationalize these previous cases and the abortion decisions
in a single theory that explains them all. Before proposing the model, how-
ever, the authors will examine the majority and concurring opinions and
then suggest a basis for the abortion opinions in the precedent cited by
the Court.
I. THE MAJORITY AND CONCURRING OPINIONS IN WADE AND BOLTON
A. Mr. Justice Blackmun
The theoretical basis of Justice Blackmun's majority opinions can be
summarized as follows: 1) There is a constitutional right of privacy. 2) Only
fundamental rights, those implicit in the concept of ordered liberty, are
included in this right of privacy! 3) The right has some extension to
*Associate Professor of Law, University of Kansas. A.B. 1968, J.D. 1971, Stanford University.
**Candidate for J.D. 1974, University of Kansas. B.A. 1967, Colorado Women's College, M.A.T.
1969, University of Kansas.
'93 S. Ct. 705 (1973).
93 S. Ct. 739 (1973).
'See, e.g., Abortion, THE NEw REPUBLIC, Feb. 10, 1973, at 9.
'Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973) [herein-
after cited as Ely].
a93 S. Ct. 705, 726 (1973). Significantly, Mr. Justice Blackmun limits the rights embraced by the
right of privacy to those implicit in the concept of ordered liberty, that is, fundamental. In doing
so he avoids an important issue of whether the woman's interest rises to the importance of a funda-
mental right.
The fundamental rights issue is important because a two-tiered approach has prevailed in the due
process area-as in the equal protection area-whereby challenged legislation usually need bear only a
rational relationship to a valid state interest in order to sustain the statute's validity; if a fundamental
right is implicated, however, a compelling state interest must be found to uphold the legislation.
See, e.g., United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938), and Karst, Invidious Dis-
cimination: Justice Douglas and the Return of the Natural-Law-Due-Process Formula, 16 U.C.L.A.L. REv.
716, 739 (1969). Compare Shapiro v. Thompson, 394 U.S. 618, 658 (1969) (Harlan, J., dissenting)
with Eisenstadt v. Baird, 405 U.S. 438, 447 n.7 (1972), cited in San Antonio Indep. School Dist. v.](ViewImageLocal?handle=hein.journals/ukalr21&div=28&collection=journals&method=preview&ext=.png&size=3)
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Roe v. Wade: The Right of Privacy Revisited
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