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1974 Sup. Ct. Rev. 337 (1974)


It took the Supreme Court 105 years to discover that the Fourteenth Amendment guarantees a personal right of privacy that invalidates state statutes forbidding abortion except to save the mother's life. As Mr. Justice Rehnquist pointed out, in a dissent that no member of the Court attempted to answer, at least thirty-six states had such anti-abortion statutes when the Fourteenth Amendment was adopted. None was attacked on the ground that they offended the newly adopted amendment. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."

It was only in the recent past that a small but clamorous band began to agitate for abortion on demand. In Roe v. Wade, the Court has yielded to the pressure of this strident minority. Mr. Dooley once wrote that even the Supreme Court follows the election returns. Mr. Dooley to the contrary notwithstanding, in these cases-indefensible on any ground-the Court disregarded the election returns in the only states in which the abortion issue has recently been on the ballot. In 1972, in Michigan and North Dakota, crushing majorities voted against abortion. Moreover, in light of recent congressional action, it is hard to believe that what the Court has legislated would be passed by Congress or approved by a popular referendum. To be sure, the Court ought not to be a political weather vane. It owes allegiance to the Constitution, not to the electorate. Nevertheless, the will of the people, as expressed at the polls and by the legislatures they choose, is relevant. It is relevant because it demonstrates that the right to an abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental." And the Court acknowledged in Wade that "only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty' . . . are included in [the constitutional] guarantee of personal privacy" which the Court has created.



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