Roe v. Wade: The Power of a Law Review
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Roe v. Wade: The Power of a Law Review


There were plenty of articles leading up to
Roe versus Wade proposing ways to make abortion a constitutional right. There was a law professor named Roy Lucas
at the University of Alabama Law School. He published an article in the, uh, North
Carolina Law Review that advocated and sought judicial intervention with respect to the
abortion statutes. There were a group of legal scholars and a
group of lawyers who were absolutely persuaded that the process of reaching a sufficient
consensus that you could enact legislation was too slow. It was too important. We needed to move forward, and the best way
to do that is through the courts. Roy Lucas wrote a law review article proposing
that the courts could take the Griswold case and propel it onto the screen of outlawing
the criminal abortion laws. So Roy Lucas’ article came out, I believe,
in 1969 or 70, and that was just around the time that abortion litigation was starting. Roy Lucas was one of the chief architects
of this legislation through litigation in this area and urged that we move the debate
to the courts. The road to Roe v. Wade began with Griswold
versus Connecticut, a case in the mid-1960s. The issue in Griswold was the constitutionality
of a Connecticut statute making it a criminal offense to use a contraceptive. The statute had never been enforced and probably
never could be enforced because of the nature of it. But a group of Yale law professors brought
the case, one of whom was Thomas Emerson who was a famous First Amendment scholar. It ultimately reached the Supreme Court, and
Justice Douglas wrote the opinion, and he did so in a rather innovative way. He took a look at the First Amendment, which
is freedom of speech and the Fourth Amendment is the provision against unreasonable search
and seizure and the Fifth Amendment, which deals with the privilege against self-incrimination. And even though none of those had anything
to do with contraceptive use, he said in his opinion that, well, they’re emanations from
these provisions. There’s a penumbra, an area around them that
creates a general right of privacy, and the general right of privacy is enough to make
the Connecticut statute unconstitutional. Roy Lucas picked up on that, wrote a law review
article, and the article advocated using Griswold’s penumbral right to privacy as a basis for
striking down abortion statutes throughout the United States. His argument was the Supreme Court had announced
a right to privacy, had found a right to privacy for intensely personal, sex-related choices
in the Griswold case and that there was no reason why that couldn’t be extended to cover
the right to terminate a pregnancy, as well. It basically said unless women have the right
not to have children, they will not be free; they will not be economically stable. I mean, it never took into consideration the
idea that the state should welcome women with children. It did really pose children as if she thinks
it’s not valuable, then in deference to her, it’s not. And this is the answer to women’s cries for
freedom. So it was very blunt. Roy Lucas’ article was published in, in a
law review, and so it was, there was ability to circulate it. He had all the ideas in one place. I do think the particular law review article
brought it to the attention to more and more litigators. It was ahead of its time for saying let’s
take a leap on the privacy rationale and see if we can completely focus on a person’s private
decision making about something important and not consider at all the value of human
life before birth. The law review articles allow you to disseminate
the idea quickly and more broadly than you can when one particular lawyer has a strategy
and especially when they’re going through state courts because it’s a much slower process
to disseminate the strategy, and so it was a very effective way to do that. He was the first person to make that argument
public in that way, and his article got a lot of attention not from the general public,
but within the community of doctors and lawyers who were interested in the issue. He made a lot of headway. He set up a little nonprofit foundation called
the Madison Institute. He got some foundation money to kind of spread
the word, and he wrote what was essentially a model brief that people could use. In light of his article, he followed through,
and he brought the first abortion case to be heard by a federal court anywhere in the
country. He brought it in the southern district of
New York. And in fact, Sarah Weddington and Linda Coffee,
the two women who brought the Roe against Wade case in 1970, actually marked up Roy
Lucas’ brief and used quite a chunk of it in the original complaint that they filed
in the federal district court in Texas. To, to give him a tip of the hat, he’s a good
writer. Uh, and it is widely credited with really
putting together in one place the, uh, right of privacy rationale for legalizing abortion.

3 Comments

  • cohenlabe1

    I always had this question if the right to an abortion is based on the vapers of privacy that could be found in the constitution what about the privacy of the life of the fetus or could any deprivement of any ones liberty be taken away as long as it's done in 'private' ? Or if a small life isn't life enough what about animal cruelty done behind locked doors? Seriously

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