"Thus, although the logic of Roe v. Wade leaves much to be desired, the result affirms themes central to a major tradition of American constitutionalism. The effect of that decision is to deny the individual states the right to consider, in shaping their abortion policies, the community's interest in protecting the fetus. In effect, the Court was saying that the question of whether a woman has the right to procure an abortion is not an issue to be effectively considered in the public realm. Thus, oddly enough, free speech cannot be used here to influence the development of public policy. The decision seems perfectly consistent with Madisonian liberalism: the constitutional order is to serve the individual and his interest. In the Supreme Court's Weltanschauung, society is not viewed as fundamentally communitarian in nature. Just as the apportionment cases see the individual voter as an autonomous political agent, Roe v. Wade sees the human person as an autonomous moral agent. A woman is thus entitled to separate herself from the community while the community is rendered powerless to act in its common defense for the purpose of safeguarding shared values. It is the Fourteenth Amendment concept of "liberty" that is given overwhelming significance in Roe v. Wade, to the virtual exclusion of countervailing considerations that might have been deemed to inhere in the related concepts of "person" and "life." As one writer noted: "The basic assumption of the whole [American] system is very clear: no partial community may impose its substantive vision of the good life on the whole community. On the level of the whole, our unity is formal, not substantive. ' 86 In another sense, however, the Supreme Court did underscore the importance of unity, although not the unity or a community glued together by a moral consensus. In the Court's view, this moral consensus does not exist, and the Court is probably correct here. It appears that Justice Blackmun's dreary recitation of the history of moral and philosophical thinking about abortion was actually intended to illustrate this lack of consensus. What other reason could there have been for his long prologue to the merits of the case? Surely it provided no theological or scientific basis for dividing pregnancy into three periods and formulating different constitutional rules pertaining to each. The Court's interest seemed to lie in the promotion of social peace-a policy of "live and let live"-best achieved through the constitutional right of privacy."
Roe v. Wade

January 1, 1970

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Original Language: English

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pp.282-283

https://en.wikiquote.org/wiki/Roe_v._Wade