Although the Court's opinion in Roe has been subjected to substantial criticism, with its attention to the issue of viability coming under attack as an egregious instance of judicial legislation, any constitutional discussion of the abortion issue must begin with Roe itself. I do not propose to defend the jurisprudential analysis in Roe. Instead, my aim is to suggest that the majority's historical survey of the significance attributed by our culture to the moment of viability adumbrates the distinction between cultural and religious values that I propose in this essay. My argument proceeds as follows. Part I of this essay outlines the holding as well as the structure of the opinion in Roe v. Wade. Part II summarizes the weakness of any choice argument that rests entirely on the right to privacy. Finally, Part III identifies a major gap in fourteenth amendment jurisprudence and sketches an argument for choice1o based on the establishment clause of the first amendment.
David R. Dow,
The Establishment Clause Argument for Choice, 20 Golden Gate U. L. Rev.