My Conlaw understanding has faded and I had a horrible ConLaw prof, but a few things stuck with me. First, that there is no “right to abortion” in the constitution. There is no “right to privacy” but the interpretation of a “living” consitution enables the courts to protect certain areas of life that the founders couldn’t envision in the 1700s. Or perhaps they were so basic they didn’t think they needed mentioning? Either way, we now have to interpret the written words of the document. Literalists will never give up saying “it’s not in the Constitution,” but how can a bunch of male slave owners in the 1700s have accounted for the unfolding of history without intending for the Constition to grow and adapt over time?
The right to privacy (the basis of the attenuated right to abortion) is based in the concept of “fundamental rights”. These were first set forth (in western law making) in the Magna Carta–a document that the founders were well versed in and some of the federalist papers show that they conversed in the language of the magna carta about certain fundamental rights. [go look it up]
A nice summary of how the founders were influenced by the last attempt to express the freedoms of the people is found here: http://www.archives.gov/exhibits/featured_documents/magna_carta/
The expression of certain fundamental or inalienable rights is the underpinning of the “penumbra of rights” that is relied upon to get to all the privacy issues, or at least the more imporatant cases that don’t turn on some factual anomaly.
The Supreme Court chose to base its decision on the Fourteenth Amendment. Roe v. Wade was decided primarily on the Due Process Clause of the Fourteenth Amendment to the United States Constitution. A criminal statute prohibiting abortion that did not take into account the state of pregnancy or other interests than the life of the mother was deemed a violation of Due Process.
