The Wages of Crying Wolf: A Comment on Roe v. Wade

Abstract

In this famous article published shortly after Roe v. Wade, Ely—a supporter of abortion rights—argues that the Supreme Court's decision is constitutionally indefensible. Ely contends that the right to privacy, whether derived from the Due Process Clause or from penumbral guarantees, cannot justify the scope of the right recognized in Roe. Ely's critique focuses not on the policy merits of abortion rights but on the institutional question of whether the Court had legitimate constitutional authority to impose its judgment on the political branches. The article became one of the most widely cited critiques of Roe and influenced debates about judicial review for decades.

Key Findings

• Roe v. Wade is not defensible on standard constitutional interpretation grounds
• The right to privacy does not logically extend to cover the abortion decision
• Courts should be especially cautious about invoking substantive due process
• The legitimacy of judicial review depends on the application of principled, neutral criteria

Related Statutes

• U.S. Constitution, Fourteenth Amendment

Related Cases

• Roe v. Wade (1973)
• Griswold v. Connecticut (1965)
• Dobbs v. Jackson Women's Health Organization (2022)