Bench Memos

NRO’s home for judicial news and analysis.

Re: Durbin’s Questions


My recollection of Justice Harlan’s statement in Poe v. Ullman wasn’t exact, but I think it suffices to establish that Harlan would not have thought that recognition of a constitutional right of married persons to use contraceptives naturally led to a right to abortion:

“The right of privacy most manifestly is not an absolute. Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry, however privately practiced. So much has been explicitly recognized in acknowledging the State’s rightful concern for its people’s moral welfare. But not to discriminate between what is involved in this case and either the traditional offenses against good morals or crimes which, though they may be committed anywhere, happen to have been committed or concealed in the home, would entirely misconceive the argument that is being made.”


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