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Bench Memos

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This Day in Liberal Judicial Activism—December 13



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1971—The initial Supreme Court oral argument in Roe v. Wade takes place. The case ends up being carried over to the next term and re-argued in October 1972. In the meantime, the Court issues its ruling in Eisenstadt v. Baird, which extends a right to contraception to unmarried persons. (See This Day for March 22, 1972.) Justice Brennan smuggles into this passage in his majority opinion in Eisenstadt a couple extraneous words: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In his January 1973 majority opinion in Roe, Justice Blackmun quotes this passage immediately before declaring that “[t]hat right [of privacy] necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”



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