“The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.”Moore v. City of East Cleveland, 431 U.S. 494, 544 (1977) (White, J., dissenting). See also Dronenburg v. Zech, 741 F.2d 1388, 1396-97 (D.C. Cir. 1984) (refusing to recognize a right of privacy protecting private consensual homosexual activity).
3.
410 U.S. 113 (1973).
4.
Dean John Hart Ely of Stanford Law School, one of the leading scholars of constitutional law and the Supreme Court, found the jurisprudence of Roe v. Wade “frightening:” “What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure.” Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale L.J. 920, 935-36 (1973). Dean Ely is not alone in his condemnation of Roe v. Wade. As a leading law school textbook on the subject of law and medicine points out, the reaction of legal scholars to Roe v. Wade “has been overwhelmingly negative, a fact which is especially impressive because some of the critics share the Court's policy preference reading abortion.” WadlingtonW., WaltzJ., & DworkinR.Cases and Materials on Law and Medicine726 (1980).
5.
See Due v. Button, 410 U.S. 179, 222 (White, J., dissenting).
6.
PlessJ. E.“The Story of Baby Doe.”N. Eng. J. Med., 1983, 309: 664.
7.
ByrneP.A., O'ReillyS., ByrneP.A., O'ReillyS., & QuayP.M., QuayP.M.“Brain Death — An Opposing Viewpoint.”JAMA, 1979, 242: 1985–1990.
8.
ByrneP.A., O'ReillyS., QuayP.M., & SalsichP.W.“Brain Death — The Patient, The Physician, and Society.”Ganzaga Law Review, 1982-83, 18: 429–516.
9.
Minneapolis Tribune, “Rip Van Winkle” Mack, April 25, 1982, p. 1.
