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Abortion and Original Meaning, 24 Const. Commentary 291 (2007)


In his famous critique of Roe v. Wade, John Hart Ely remarked that if a principle that purportedly justifies a constitutional right "lacks connection with any value the Constitution marks as special, it is not a constitutional principle and the Court has no business imposing it." Criticisms of Roe have generally proceeded precisely on this ground: the right to sexual privacy is not specifically mentioned in the Constitution, and there is no evidence that the framers and adopters of the 1787 Constitution or of any later amendments expected or intended the Constitution to protect a woman's right to abortion. It has become a commonly held assumption among Roe's critics that there is no constitutional basis for abortion rights or for a right of "privacy"; the right is completely made up out of whole cloth and therefore supporters of abortion rights have cut themselves adrift from the Constitution's text, history and structure. Even some defenders of abortion rights have bought into these criticisms; they view Roe v. Wade and privacy jurisprudence as a compelling reason to accept a version of living constitutionalism that grows and changes with the times.

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