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The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale Law Journal 920 (1973)


In Roe v. Wade, decided January 22, 1973, the Supreme Court–Justice Blackmun speaking for everyone but Justices White and Rehnquist–held unconstitutional Texas's (and virtually every other state's) criminal abortion statute. The broad outlines of its argument are not difficult to make out:

1. The right to privacy, though not explicitly mentioned in the Constitution, is protected by the Due Process Clause of the Fourteenth Amendment.

2. This right "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

3. This right to an abortion is "fundamental" and can therefore be regulated only on the basis of a "compelling" state interest."

4. The state does have two "important and legitimate" interests here, the first in protecting maternal health, the second in protecting the life (or potential life) of the fetus. But neither can be counted "compelling" throughout the entire pregnancy: Each matures with the unborn child.

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