It is—and that’s the problem.
The Nation, By Katha Pollitt, July 2
Would abortion rights be more secure today had Roe v. Wade been decided on the basis of women’s right to equality rather than privacy? Many smart people have thought so.
You can see why this is a tempting argument. Roe has been relentlessly attacked as confused, illogical, and poorly written, relying on a concept of privacy that is found nowhere in the Constitution (in Griswold v. Connecticut, the 1965 decision that struck down a state ban on birth-control use by married couples, Justice William O. Douglas famously located the right to privacy in the “penumbras” and “emanations” of various provisions, such as the Fifth Amendment’s guarantee against self-incrimination). To conservatives, Roe is the very definition of judicial overreach. Wouldn’t it be a good thing if abortion rights could be reconstructed on more solid ground?
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