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A comparative analysis of the doctrinal consequences of interpretive disagreement for implied constitutional rights.

III. THE UNITED STATES IMPLIED RIGHT TO AN ABORTION

As with the Australian implied freedom of political communication, a woman's right to an abortion has been implied from the U.S. Constitution by the Supreme Court. (111) Like the Australian implied freedom, the implied right to an abortion has been the subject of intense disagreement as to the legitimacy of the majority's interpretive methodology in recognizing the initial implication. (112) Of course, unlike the interpretive debate over Australian implied freedom, the question of interpretive legitimacy in relation to Roe is largely fueled by extra-legal factors, namely intensely held views on the moral status of the fetus and the right of women to reproductive autonomy. (113) The moral character of the implied rights debate in the United States has energized significant political debate over the implied right and a natural reaction to the claim in this Article, that the Supreme Court's revisions in relation to the implied right to an abortion stem directly from the interpretive controversy about Roe, is that the interpretive arguments merely function as a cipher for these external, value-laden concerns.

However, this critique has its limits: scholars have strongly criticized the interpretive approach in Roe, (114) and further, it is the interpretive controversy that provides the opponents to the implied right with a potent, respectable, and ostensibly apolitical constitutional argument. (115) For example, Justice Scalia, a leading critic of Roe, openly values the right of the unborn fetus (at any stage of in utero development) over the rights of the mother, (116) yet his attack on Roe is not grounded in religion or morality, but rather in the interpretive techniques that the Roe majority did (or did not) employ in grounding the implied right. (117) Whether or not the interpretive disagreement is informed by other concerns, then, it is the interpretive criticisms that the U.S. Supreme Court, like Australia's High Court, has purported to address. (118)

While the constitutional contexts of Australia and the United States are clearly different, (119) with rights occupying a far stronger constitutional position in the latter, (120) the distortions in the development of the Australian implied freedom, namely the influence of judicial self-consciousness about the vulnerability of the right and the lack of contextual support for doctrinal development, are also evident in the development of the U.S. implied abortion right. As with the implied freedom, the interpretive disagreement over the implied fight centers on the privileging of the interpretive methodologies of textualism and originalism, and in both legal cultures, it is these arguments that largely fuel the interpretive disagreement over implied rights. (121)

A. Recognizing the Implied Right

The implied right to an abortion was first recognized in the 1973 case Roe v. Wade and its companion case of Doe v. Bolton. Importantly, however, the foundation for the Roe decision was established in the 1965 decision of Griswold v. Connecticut, where the Supreme Court held that Connecticut legislative restrictions on the use of contraceptives by married couples violated a "right of privacy older than the Bill of Rights." (122) The Court held that various provisions of the Constitution, including the First, Fourth, Fifth, and Ninth Amendments, created "zones of privacy," (123) and privacy was a "fundamental personal right." (124) In its decision in Eisenstadt v. Baird (125) seven years later, the Court extended this holding to unmarried couples, stating that, "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." (126)

1. The Majority Decision in Roe

A seven justice majority, Chief Justice Burger, and Justices Douglas, Brennan, Stewart, Marshall, Blackmun, and Powell, (127) noted that the Court's previous decisions implying a right of privacy from the provisions of the Constitution protected "fundamental" rights "implicit in the concept of ordered liberty." (128) Undertaking a detailed examination of the history of abortion laws, the Court argued that restrictive abortion laws were a relatively recent phenomenon introduced not to save potential lives, but to protect women's health, an interest that "has largely disappeared." (129) For the Court, the physical and psychological burdens of pregnancy are so great that the right of privacy, whether founded in the concept of personal liberty in the Due Process Clause of the Fourteenth Amendment, or the Ninth Amendment, which reserves rights to the people, was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." (130)

The Court held that while the right of personal privacy protecting a woman's right to an abortion is fundamental, this right is not absolute, (131) and access to abortion can be restricted where there is a compelling state interest. (132) Although declining to make a ruling on when life begins, (133) or find that a fetus was a "person" for constitutional purposes, (134) the Court held that the state has interests in the following: first, the health of the mother, which becomes compelling in the second trimester (until this point, the Court held, an abortion was no more dangerous than carrying a pregnancy to term); (135) and second, in the preservation of potential life, which the Court held only becomes compelling at the end of second trimester, when the fetus reaches viability--at which point the Court determined the fetus has the "capability of a meaningful life outside the mother's womb." (136)

B. Interpretive Disagreement

Roe remains one of the most criticized decisions of the Supreme Court, (137) with the majority justices attacked for both the interpretive methodology they employed and the moral consequences of the decision. As discussed in this section, three broad categories of interpretive criticism were raised against the majority decision in Roe. First, critics argued that the implication was not grounded in the interpretive orthodoxy of constitutional text and history. Second, that there was a preferable locale, either the Equal Protection Clause or the First Amendment, for the grounding of the fight to an abortion. Third, assuming that the fight to an abortion was a sound implication to draw from the Constitution, the presumption of judicial protection, rather than legislative protection, was ill-conceived. (138)

1. Interpretive Disagreement: Implications and Interpretive Orthodoxy

The key criticism of the Roe decision is that it is not grounded in interpretive orthodoxy. This critique generally manifests in one of three forms.

a. Objection to Implications Generally

The first form of the disagreement with Roe that relies on interpretive orthodoxy is an objection to any theory of implied rights more generally. That is, these commentators object not only to the specific implication in Roe but also to the more general theory of drawing rights-based implications from a written constitution. This objection argues generally that the Constitution enumerates a series of rights, and there is no authority for judges to stray beyond these expressly articulated rights; to allow this would be to "abandon all hope of limiting judicial power." (139) This argument considers judge-made law to be constitutionally suspect when it has "little or no cognizable roots in the language or design of the Constitution" (140) and often relies on the historical distinction between America's adoption of a written Constitution, in direct contrast to English constitutionalism and unwritten law. (141) For these critics, it is both interpretively and democratically objectionable that the judiciary assumes responsibility for issues not expressly articulated in the written Constitution.

b. Objections to the Privacy Implication

The second form of the disagreement with Roe based on interpretive orthodoxy, while accepting that rights implications can be drawn from the Constitution, is an objection to the implication of privacy from the Due Process Clause. This critique of Roe rests on the premise that neither a strict textualist reading of the Constitution nor constitutional history supports the implication of any general privacy right. (142) Similar to the first form of the argument based on interpretive orthodoxy, the opponents of an implied right of privacy contend that "when the Constitution sought to protect private rights it specified them; that it explicitly protects some elements of privacy, but not others, suggests that it did not mean to protect those not mentioned." (143) In spite of the weight of precedent, (144) the claim is that these cases do not establish a general right of privacy, rather, they were indicative of specific privacy interests that had secure grounding in the constitutional text and history. (145)

c. Objections to the Extension of the Privacy Implication to Abortion

The third form of the orthodox interpretive disagreement with Roe argues that while there may in fact be a generalized right of privacy emanating from the Constitution, it cannot extend to an implied right to an abortion because sexual privacy is not mentioned in the Constitution, nor does the constitutional text or history in any form suggest an original intent to protect a right to an abortion. These critics draw on the Court's own supporting argument in Roe, that a right will only be implied if it is "so rooted in the traditions and conscience of our people as to be ranked as fundamental," (146) or "implicit in the concept of ordered liberty," (147) and contend that while this argument can support various other aspects of "privacy," it cannot support a fight to an abortion. The commentators argue that abortion rights are not deeply rooted in the traditions of the United States, (148) as they were not recognized by the drafters of the Constitution, (149) and have been consistently restricted (demonstrating that abortion rights are not implicit in the concept of well-ordered liberty), (150) notwithstanding the Court's questionable historical analysis in Roe. (151) One particular distinction made is that a right to an abortion is "inherently different" from the preceding privacy cases because a "pregnant woman cannot be isolated in her privacy." (152)

2. Interpretive Disagreement. Locale of the Right

The second key criticism of the Court's decision in Roe is that the Court incorrectly based the implied right to an abortion in the Due Process Clause's concept of privacy, instead of locating it in the arguably more secure Equal Protection Clause of the Fourteenth Amendment. (153) For these critics, giving substantive effect to the ostensibly procedural Due Process Clause has always been a contentious exercise for the Court. (154) Therefore, the abortion right would be on a more secure footing if premised instead on the textually enshrined constitutional ideal of political equality and full citizenship. (155)

For these critics, it is axiomatic that an abortion right be grounded in equal protection jurisprudence: only women become pregnant, and therefore only women may need an abortion. Women therefore form a discrete class against whom discrimination is perpetuated when the right to an abortion is denied, and any denial of an abortion right forces women to become involuntary "incubators" (156) and perpetuates traditional, constitutionally barred gender roles. (157) Anita L. Allen, a leading proponent of this argument, claims that "[a] constitutional jurisprudence of abortion that expressly draws on the Fourteenth Amendment's language of 'liberty' and 'equal protection' would meld with the reality that many of the root concerns behind privacy arguments are not different from, or in opposition to, the root concerns of the gender equality arguments." (158) For these critics, grounding the implication in the Equal Protection Clause would securely situate the abortion right in the text and originalist intent of the Constitution and enable the implied right to develop responsively to the concern of those who may have the right.

3. Interpretive Disagreement: Legitimacy and Judicial Overreach

The third interpretive argument commonly raised by critics of Roe is that, even assuming that the Court was justified in implying a right to an abortion from the Constitution, the assessment of when that right could be overridden should have been left to the state legislatures. The Court in Roe specified that for a state to prohibit abortion, it must serve a compelling state interest and specified the two interests that it considered would satisfy this test: the life of the mother, and the protection of the fetus. (159)

However, these interests were not compelling over the entirety of the pregnancy; rather, the two interests become compelling incrementally. Neither interest is compelling in the first trimester, and, therefore, the state is unable to proscribe or regulate abortion in the first trimester. (160) The health of the mother becomes compelling in the second trimester. (161) The interest in protecting the fetus becomes compelling only in the third trimester, after the fetus reached viability, and, consequently, this interest permits a state to generally prohibit third-trimester abortions). (162) Underlying the Court's trimester approach is the implicit assumption that personhood begins at viability, not conception. (163)

For some critics of Roe, the Court's viability and trimester approach reads like "a set of hospital rules and regulations," (164) and, in essence, is an unprincipled, unjustified, and undemocratic assumption of control over what is a legislative decision. The outlining of a "kind of legislative code ... that will satisfy the Constitution" (165) second-guesses legislative balances, and the Court asked "itself a question the Constitution has not made the Court's business." (166) These critics also make the orthodox interpretive charge that there was no basis for the trimester test in either the text of the U.S. Constitution or its history; thus, the Roe Court assumed responsibility for an essentially legislative decision, and, thereby overstepped the bounds of democratic legitimacy, as the right to set boundaries regarding societal values is a legislative, not a judicial function.

C. Doctrinal Advance and Retreat

1. Maintaining the Core of Roe in the Face of Disagreement

Following Roe, a significant number of states rewrote their abortion laws, ostensibly to comply with the Court's decision. Many cases swiftly arose challenging these laws as contradictory to the Court's ruling in Roe. (167) From the first post-Roe case of Planned Parenthood v. Danforth, (168) the interpretive disagreement between the justices was apparent, and in marked contrast to Australia where even opponents of the implied freedom have felt bound to apply Lange, (169) from its inception the implied abortion right has faced enemies within the Supreme Court who have chipped away at various aspects of the doctrine. (170) However, in contrast to the intrajudicial interpretive disagreement following the initial implication of the implied freedom in ACTV, the opposing justices in the immediate post-Roe cases did not attack the core of the decision of, either the grounding of the implication in the Fourteenth Amendment Due Process Clause or the trimester framework. Rather, the opposing justices held strongly to the precise words of the decision in Roe and opposed the application of the doctrine to various state abortion-curbing laws. In Danforth, for example, while a majority of the Court actively upheld the letter and spirit of the Roe doctrine, striking down a Missouri statute that required a woman to obtain her husband's consent prior to having an abortion, (171) the dissenting justices argued that even accepting Roe, "[t]he task of policing [Roe] limitation[s] on state police power is and will be a difficult and continuing venture in substantive due process," (172) subsequently holding that limitations on abortion do not "conflict[] with the statement in Roe." (173)

The dissenter's method of attacking the application of Roe rather than the core of the doctrine successfully swayed some of the majority in a number of cases, including a series of cases upholding restrictions on the use of federal funding for abortions (174) and a number of cases requiting parental or judicial consent in the case of minors. (175) In the face of these decisions, the majority took a protective approach to the core of Roe, conscious of the continued disagreement both on and off the bench over the validity of the initial implication. The upholding of the core can be seen in, for example, City of Akron v. Akron Center for Reproductive Health, (176) where a 6-3 majority struck down a law compelling preabortion counseling, requiring a 24-hour waiting period, and requiring all abortions to be performed in a hospital. The majority's self-consciousness about the initial implication was evident, with the opening page of Justice Stewart's opinion for the Court specifying that "arguments continue to be made ... that we erred in interpreting the Constitution.... Nonetheless, the doctrine of stare decisis, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law." (177) That the Court chose to state the importance of stare decisis is indicative of both the self-consciousness of the justices about the initial implication, as well as the paucity of the interpretive resources on which the Court had to rely in restating the validity of the initial implication.

A change in Court personnel resulted in heightened interpretive disagreement over the implication, and a shift in the nature of the argumentation of the dissenters. Rather than simply attacking the application of the Roe doctrine, the dissenters began to attack core features of the doctrine. Justice O'Connor, appointed in 1981, wrote the dissenting opinion in City of Akron and argued that the "trimester or 'three-stage' approach adopted by the Court in Roe, and, in a modified form, employed by the Court to analyze the regulations in these cases, cannot be supported as a legitimate or useful framework for accommodating the woman's right and the State's interests." (178) The dissenters, then, put the majority on notice that they were willing to attack at least part of the Roe implication.

By 1986, a self-conscious Supreme Court began to be swayed by the interpretive arguments of the Roe dissenters, and it was only by a narrow 5-4 majority that the Court invalidated a set of Pennsylvania restrictions on access to abortion in Thornburgh v. American College of Obstetricians and Gynecologists. (179) Justice Blackmun's opinion for the Court strongly defended the Roe doctrine and the initial implication, stating that "the constitutional principles that led this Court to its decisions in 1973 still provide the compelling reason for recognizing the constitutional dimensions of a woman's right to decide whether to end her pregnancy." (180) Justice Blackmun further asserted:
 Constitutional rights do not always have easily ascertainable
 boundaries, and controversy over the meaning of our Nation's most
 majestic guarantees frequently has been turbulent. As judges,
 however, we are sworn to uphold the law even when its content
 gives rise to bitter dispute.... [D]isagreements ... do not ...
 relieve us of our duty to apply the Constitution faithfully. (181)


The dissenters attributed the defensive nature of the majority's opinion to sensitivity over the inexhaustible criticism over the initial implication:
 The decision today appears symptomatic of the Court's own
 insecurity over its handiwork in Roe v. Wade and the cases
 following that decision. Aware that in Roe it essentially created
 something out of nothing and that there are many in this country
 who hold that decision to be basically illegitimate, the Court
 responds defensively. Perceiving, in a statute implementing the
 State's legitimate policy of preferring childbirth to abortion, a
 threat to or criticism of the decision in Roe v. Wade, the majority
 indiscriminately strikes down statutory provisions that in no way
 contravene the right recognized in Roe. (182)


While City of Akron may have put the Roe majority on notice that the interpretive attack was about to shift from the application to the core of the implication, Thornburgh was the first case in which all dissenters attacked the initial implication itself. Chief Justice Burger's dissent argued that "[t]he soundness of our holdings must be tested by the decisions that purport to follow them. If ... today's holding really mean[s] what [it] seem[s] to say, I agree we should reexamine Roe." (183) Similarly, Justices White and Rehnquist stated that "the time has come to recognize that Roe v. Wade ... 'departs from a proper understanding' of the Constitution and [should be overruled]." (184) The justices argued that the text of the U.S. Constitution contains no reference to abortion, pregnancy, or reproduction more generally, (185) and even if abortion could be considered "liberty" under the Due Process Clause, it was not so fundamental that "restrictions upon it call into play anything more than the most minimal judicial scrutiny." (186) Justice O'Connor's dissent was equally virulent, focusing on the standard of review and the "outmoded trimester framework" established in Roe as she did in Akron. (187) The dissenting justices, then, appeared ready to attack both the grounding of the implication on orthodox interpretational grounds, as well as the standard of review at the core of the Roe decision.

2. Doctrinal Retreat: Webster v. Reproductive Health Services

The Roe opponents finally gained an interpretive majority in the 1989 decision in Webster v. Reproductive Health Services, (188) where a majority of justices, while avoiding overruling Roe outfight, explicitly rejected the applicability of Roe's trimester test, which would have dictated the level of judicial scrutiny and related presumptions of constitutionality or unconstitutionality and, instead, adopted Justice O'Connor's "undue burden" test. However, disagreement remained amongst the new majority as to the validity of the initial implication. Although various justices were prepared to overrule Roe, (189) Chief Justice Rehnquist's opinion for the Court specified that the facts of Webster differed from Roe such that the case "affords us no occasion to revisit the holding of Roe." (190) The resulting opinions contributed to what was a fractured and jumbled interpretive approach, with no common interpretive ground amongst the majority and a strong dissent from the minority. (191)

Although the core implication itself remained, (192) the Roe doctrine was modified, with the Chief Justice in dicta explicitly rejecting the trimester framework as "hardly consistent with the notion of a Constitution cast in general terms, as ours is, and usually speaking in general principles, as ours does." (193) Rehnquist revisited his dissent in Thornburgh and, relying on interpretive orthodoxy, held that the "key elements of the Roe framework--trimesters and viability--are not found in the text of the Constitution or in any place else one would expect to find a constitutional principle." (194)

The strong criticism of Roe's strict scrutiny standard signaled a stronger interpretive disagreement among the justices. Claims that a fundamental right has been infringed are always assessed against a strict-scrutiny standard. (195) Thus, when the Court's rejected of the strict-scrutiny standard in the abortion context, it signaled a rejection of the Roe Court's assessment that the right to an abortion was a fundamental liberty. The result of Webster was to both weaken the implication of a right to abortion generally, as well as to signal a retreat from the Roe Court's more expansive interpretive approach to a constitutional jurisprudence less reliant on implication and more reliant on constitutional text and history.

3. Interpretive Resolution? The Casey Compromise

As a solution to the interpretive controversy, Planned Parenthood of Southeastern Pennsylvania v. Casey (196) was a resounding failure. Casey involved a Pennsylvania statute that imposed significant restrictions on abortions through informed consent, parental consent, spousal notification, and record-keeping requirements; importantly, Casey presented the Court with an opportunity to directly overrule Roe and clarify the interpretive disagreement that had plagued the implied fight since its initial implication. (197) The justices originally agreed in conference to overrule Roe 5-4, (198) with Chief Justice Rehnquist's draft majority opinion going to the core of the interpretive disagreement and expunging the implication of a right to an abortion as derived from the implied right of privacy from the Constitution. Rehnquist followed his approach in Webster and argued that nothing in the text or history of the Constitution indicated that the document extended so far. (199) Justice Blackmun's dissent upheld and defended Roe in its entirety.

Three justices were uncomfortable with the approaches of Chief Justice Rehnquist and Justice Blackman and sought to effectuate a compromise. These justices, Justices O'Connor, Kennedy and Souter, authored a joint opinion which declined to overrule Roe, instead upholding the "central fight recognized by Roe." (200) Notwithstanding the noted strength of the arguments against the constitutional foundations of the initial implication, (201) the joint opinion held that the principle of stare decisis mandated the upholding of the core of the Roe implication. (202) However, the joint opinion attacked the standard of review that Roe had set down as constitutionally required, and explicitly abandoned Roe's trimester framework, claiming it was a rigid, non-essential holding of Roe, and instead favoring Justice O'Connor's "undue burden" test. (203)

Despite upholding the core implication of a right to an abortion and the broad and sweeping language stating the importance of reproductive freedom for women's privacy, autonomy, and equality, the joint opinion marked a significant retreat from the doctrine set down in Roe. While emphasizing the "essential holding" of Roe, (204) that the Due Process Clause of the U.S. Constitution impliedly protects a woman's fundamental right to an abortion pre-viability, the joint opinion held that although the state cannot proscribe abortion pre-viability, it has a sufficient interest in protecting the health of the mother and the potentiality of human life to regulate abortion so long as the state does not place an "undue burden" on a woman's right to an abortion. (205) The opinion also reiterated that a state may proscribe post-viability abortion completely so long as there is an exception for the health of the mother. (206) Under this ruling, the joint opinion upheld all but the spousal notification provisions in the Pennsylvania legislation, arguing that only the notification provision was an undue burden on a right to an abortion, as it placed a "substantial obstacle in the path of a woman seeking an abortion." (207)

The Casey decision, then, does not reflect a unified interpretive approach. Like the unanimous decision of the High Court in Lange, the joint opinion reaffirmed Roe; and like the decision in Lange, the opinion in Casey substantially modified, if not weakened, the initial implication of the right. (208) However, unlike Lange, where the reinterpretation of the implied freedom was unanimous, in Casey the interpretive disagreement among the Supreme Court justices was obvious, and although Chief Justice Rehnquist, joined by Justices White, Scalia, and Thomas, concurred in the core aspects of the joint judgment, (209) his opinion explicitly criticized the initial implication as lacking in orthodox interpretive methodology and stated that on this basis Roe should be overturned. (210) Justices Blackmun and Stevens, while concurring with the upholding of the "essential holding" of Roe, dissented from the excising of the trimester framework and adoption of the undue burden standard, arguing that the new standard was manipulable, thus undermining the need for strict scrutiny of the fundamental right to an abortion. (211) Justice Scalia, in a separate opinion, savaged the undue burden test on the same interpretive grounds that motivated the joint justices to retreat from the trimester framework--that it lacked foundation in the Constitution: "The ultimately standardless nature of the 'undue burden' inquiry is a reflection of the underlying fact that the concept has no principled or coherent legal basis." (212)

D. Interpretive Disagreement and Its Consequences Post-Casey (213)

Although Casey is now widely accepted as authoritative, it remains the subject of strong interpretive disagreement. (214) There is a very real fear that new appointees to the Court will facilitate the reconsideration and expungement of the Roe implied right entirely. (215) The Casey compromise has failed to act as the interpretive bridge that the joint opinion writers envisaged. While the joint opinion managed to prevent reconsideration of Roe in the short-term, the attempt to accommodate different interpretive views has created an unstable jurisprudence that exposes both Casey and Roe to the ongoing danger of reconsideration.

This situates the implied abortion right jurisprudence in a very different position than the Australian implied freedom. Whereas in Australia it is the Lange Court's unanimous commitment to text and structure and the resulting paucity of interpretive resources that has affected the development of the implied freedom, in the United States the Casey Court's lack of commitment to the grounding of the implication as well as the self-conscious modifications of the relevant standard of review--against which restrictive legislation will be judged--has had the consequence of fracturing any development of the implied right. Continuing doubts over the grounding of the implied right and the instability of the protective standard have led to stagnation, manipulation, and a fragmented abortion right jurisprudence.

1. The Continuing Doubt Over the Grounding of the Right and Its Consequences

Although the authors of Casey's joint opinion reaffirmed the Roe Court's holding that the "liberty" in the Fourteenth Amendment's Due Process Clause was the basis for the implied right, it seriously undermined this determination and the consequent security of the right in two ways: by over-reliance on stare decisis, and by undergirding the liberty justification with an equal protection rationale.

a. Over-Reliance on Stare Decisis

First, the joint opinion openly expressed doubts as to how they would have decided the issue de novo, stating that it was only the added force of the doctrine of stare decisis and a need for institutional integrity that compelled the Court to uphold the implication from the Due Process Clause. (216) The concern, of course, is that the three determinative justices in Casey did not state whether, as a matter of constitutional interpretation, Roe was correct or incorrect as a matter of principle. This uncritical adherence to precedent highlights the doubts over the textual and historical foundations of the implied right, and, consequently, results in a dearth of interpretive resources by which the right can be developed in subsequent cases. With no interpretive "touchstone" to refer to, the right necessarily becomes stagnant and, indeed, manipulable to each individual justice's predilections as to the appropriate grounding of the implication. Further, the stare decisis rationale has left the Court open to the criticism that it has threatened its own legitimacy by failing to carefully consider a matter that is practically impossible to remedy through legislative action. (217)

b. Equal Protection Rationale

Second, although recognizing that the right is derived from the "liberty" of the Due Process Clause, the Court referred specifically to the effect of abortion laws on the status of women, arguing that, "[a]n entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions." (218) As David Strauss has argued, the joint opinion, as well as the separate opinions of Justices Stevens and Blackmun, referred to the status of women as a justification for the perpetuation of the right to an abortion. (219) That is, while the justices specified that the implication was grounded in individual liberty and reproductive autonomy (i.e. the Due Process Clause), their rationale (albeit unformed and unclear) for the implication was a concern for the position of women and a concern that the political process would subordinate women (i.e., Equal Protection Clause concerns). As with the reliance on stare decisis, the unprincipled and unjustified rationalization for upholding the initial implication leaves the implication, in its current form, subject to judicial manipulation and peculiarly vulnerable to reconsideration; it is simply not possible for the right to develop coherently while its underlying raison d'etre is consistently undermined and challenged.

c. Consequences

The consequence of the Casey Court's inability to clearly affirm the liberty grounding of the implied fight or to clearly re-situate the right in the Equal Protection Clause has left the right stagnant and susceptible to manipulation. Without a firm grounding, defenders of the fight to an abortion are naturally self-conscious about the basis of the right, and they are left defending the initial implication by whatever means they can. This makes it impossible for the fight to cultivate the clear and developed jurisprudence necessary to respond to various claims of unconstitutionality. Further, opponents of the abortion right are able to constantly question and reassess the basis for the implication, thereby preventing any significant permanent development in the abortion jurisprudence more generally.

This tension is evident in the two key post-Casey cases of Stenberg v. Carhart (220) and Gonzales v. Carhart, (221) where the intra-Court dispute as to the foundation of the implied fight continued. In Stenberg, for example, while the majority opinion of Justice Breyer specified that the Court would not revisit the legal principles establishing the implied right set down in Casey, Justice Kennedy's dissenting opinion implicitly attacked the basis of the right. Justice Kennedy, who co-authored the joint opinion in Casey, stated:
 When the Court reaffirmed the essential holding of Roe, a central
 premise was that the States retain a critical and legitimate role
 in legislating on the subject of abortion .... The political
 processes of the State are not to be foreclosed from enacting laws
 to promote the life of the unborn and to ensure respect for all
 human life and its potential. (222)


For Justice Kennedy, while there may exist a right to an abortion in the Constitution, it appears that he does not consider that right to be fundamental in the sense of other rights derived from the "liberty" of the Due Process Clause. The unsettled nature of the initial implied right has enabled Justice Kennedy and the other dissenting justices to continue to challenge the very existence of the right, rather than simply challenging the application of the right to specific circumstances. The Roe opponents in Stenberg thus avoided dissent on questions of application, and thereby forced a subsequent defense of the implication in Roe by those justices supporting the implication. The anti-Roe justices in Stenberg also avoided doctrinal discussions that could have been employed in later cases to develop the right itself.

The interpretive tension over the grounding of the implied right was also noticeable in Gonzales, where the minority opinion of Justice Ginsburg was highly responsive to claims that the implication was contrary to interpretive orthodoxy. Noting the general uncertainty over the continued existence of the implied right to abortion, "Casey's principles, confirming the continuing vitality of the 'essential holding of Roe,' are merely 'assume[d]' for the moment ... rather than 'retained' or 'reaffirmed,'" (223) Justice Ginsburg proceeded to defend the constitutional right to an abortion. However, Justice Ginsburg's dissent departed from the traditional "liberty" defense of the implication and instead seemed to reinterpret the basis for the implication on an equal protection footing. She stated, picking up on the comments in Casey, that the implied right was not founded in "some generalized notion of privacy; rather [it] center[s] on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature." (224) Ginsburg, then, is seemingly recasting the basis for the implication in the hope of finding a more secure locale for the right to an abortion.

The Casey joint opinion argued that "[l]iberty finds no refuge in a jurisprudence of doubt," (225) yet the "compromise" of relying on precedent rather than reaffirming the basis for the implied right by principled argument has simply perpetuated doubts over the grounding of the implication. No constitutional doctrine can develop consistently when faced with continuous doubts over its existence and validity. Not only are supporting justices continually forced to opine in a protectionist manner, but the doubts leave supporting justices self-conscious about developing the doctrine by reference to the rationale of the initial implication. The result is a lack of interpretive resources to which justices may refer in developing the right in response to the particular case before them. The reliance on stare decisis in Casey only served to heighten and perpetuate these difficulties. While the focus remains on the basis of the implication, the right itself can never develop in a coherent and consistent manner.

2. The Protective Framework and Standards of Review: Uncertainty and Outcomes

The protective frame of the implied right to an abortion has been continuously and consistently attacked and revised. The uncertainty surrounding both the applicable standard of review, as well as the identification of viability as the crucial point by which to measure acceptable state regulation, has had serious consequences for the development of the implied right.

a. The Undue Burden Test

A fundamental difficulty with the implied abortion right is the lack of textual context or traditional understandings to which the Court can refer in developing the protective framework of the right. Indeed, one of the most problematic aspects of the Roe decision was the establishment of the trimester framework--depending upon the stage of the pregnancy--as the determining factor in analyzing the level of permissible regulation of the abortion right. (226) Not only had the trimester framework faced strong interpretive criticism that it was quasi-legislative and unrooted in the text or historical foundations of the Constitution, it had also proved unsatisfactory in practice and was never consistently applied. (227)

The Casey joint opinion sought to respond to these interpretive criticisms by substituting an "undue burden" standard of review for the trimester-based strict scrutiny standard of set forth in Roe. (228) The Casey joint opinion argued that Roe's trimester framework had "misconceive[d] the nature of the pregnant woman's interest" pre-viability by construing the right as too absolute. (229) Despite Justice O'Connor's pre-Casey argument that the undue burden test should apply throughout the entirety of the pregnancy, (230) the Casey joint opinion held that the standard would apply only to regulations restricting abortions pre-viability; post-viability the state could regulate to proscribe abortion completely. (231)

As to where the "undue burden" test derived from and how it would apply, the joint justices offered no guidance, stating only that "[n]ot all government intrusion is of necessity unwarranted" (232) and that only where the state regulation "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus" is there an undue burden on the right to an abortion. (233) The only elucidation of the joint opinion on what a "substantial obstacle" is was itself uninformative: "In our considered judgment, an undue burden is an unconstitutional burden." (234)

While the doctrinal shift to an undue burden test was intended to be responsive to orthodox interpretive critiques of the trimester framework, the new undue burden standard has itself been criticized as lacking a constitutional foundation, and for the difficulty of its application-in-fact. (235) In a vicious attack on the undue burden standard, Justice Scalia charged that the standard was a "verbal shell game [to] conceal raw judicial policy choices," (236) and that it is "inherently manipulable and will prove hopelessly unworkable in practice." (237) Chief Justice Rehnquist ominously warned that "it is a standard which is not built to last." (238) The same orthodox interpretive concerns that led to the overturning of the trimester framework, then, are equally applicable to the undue burden standard.

The undue burden test is as equally ungrounded in text or history as was the trimester framework and, since Casey, has itself faced criticism for its lack of content. The consequences for the doctrinal development of the implied right have been significant. With an unclear and ungrounded standard of review, it is not plausible that a consistent jurisprudence will emerge from the Court. Furthermore, the manipulability of the standard opens the Court to criticism that the implied right is or is not applied in accordance with the moral preferences of the justices, rather than well-reasoned and well-grounded doctrine. The vulnerability of the standard is particularly visible in the decisions of Stenberg and Gonzales.

i. Stenberg v. Carhart

In Stenberg, (239) a majority of justices criticized the undue burden standard, although no alternative standard of review emerged. (240) Further, the justices' application, and indeed modification, of the Casey standard indicates the incredible malleability of the undue burden test. Without any rationalization, the majority stated that a Nebraska law banning partial birth abortions constituted an undue burden on the right to an abortion because it did not contain an exception for the health of the mother. (241)

The application of a health exception requirement to pre-viability regulation represents a significant development on Casey, which did not impose a health exception requirement pre-viability even though it required such an exception in post-viability cases. (242) By crafting an exception to the Casey rule, the Court has essentially modified the undue burden standard, giving itself considerably more scope to strike down regulations than under an unadulterated undue burden standard. (243) However, the majority failed to acknowledge that their reasoning represents even an evolution of Casey, instead preferring to maintain that a pre-viability health exception is implicit within the Casey decision. (244) Made up of supporters of a woman's right to an abortion, the majority in Stenberg took a protective approach. Unable to openly question the basis of the judgment they sought to transform, the justices instead manipulated the standard of review, thereby impeding any principled development of the implied right.

ii. Gonzales v. Carhart

In the latest abortion decision, the Court appears to have retreated not only from the Stenberg expansion of Casey but also from the standard outlined in Casey itself. Although the Court purported to apply the undue burden standard, the standard of review for abortion restrictions appears to have been demoted from the highest level of review, the strict scrutiny standard to the lowest level of review, the rational basis test, without any explanation or explication of rationale. The majority opinion written by Justice Kennedy stated that "[w]here [the state] has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession." (245) In applying the newly demoted standard to Nebraska's prohibition of partial birth abortions, the Court asserted:
 Considerations of marginal safety, including the balance of risks,
 are within the legislative competence when the regulation is
 rational and in pursuit of legitimate ends. When standard medical
 options are available, mere convenience does not suffice to
 displace them; and if some procedures have different risks than
 others, it does not follow that the State is altogether barred from
 imposing reasonable regulations. (246)


The protective frame of the abortion right, then, has significantly contracted under the undue burden standard, which purported to act as a strict scrutiny standard. Justice Scalia's warning in Casey has proved correct: the failure of the joint opinion in Casey to ground the framework of the right in the constitutional text or history has resulted in a test that is both manipulable and unprincipled. The lack of interpretive resources guiding the development of the undue burden standard has meant that application of the test to specific abortion prohibitions has been patchy and inconsistent. As noted above, this was the critique leveled at the Roe majority's trimester framework. However, the consequences for the implied right have proven significantly more dire for the rights-holders than under the trimester framework: the right to an abortion has shifted from a fundamental right accorded strict scrutiny, to one that may be regulated with little constitutional restriction.

b. Viability

In addition to the instability inherent in the undue burden test, the Casey compromise, and consequently the implied fight itself, appears shaky as a result of the joint opinion establishing viability as the "critical fact." (247) The most destabilizing element of viability is the lack of a strong legal justification for nominating it as the point at which the state may restrict access to abortion. (248) A potential life is no more or less potential on either side of viability, yet the Court maintains that the state's interest is controlled by that distinction. (249) As the Court has noted, "legislatures may draw lines which appear arbitrary without the necessity of offering a justification. But courts may not. We must justify the lines we draw." (250) Viability cannot, of course, be justified by reference to constitutional terms or traditions. (251) Indeed, the only justification for making this division that the Court has advanced is the somewhat tautological observation that viability marks "the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb." (252)

Moreover, the Court has always recognized that viability is difficult to determine and incapable of rigid definition. (253) However, it held in Casey that "[l]iberty must not be extinguished for want of a line that is clear." (254) The Court has also acknowledged that improvements in technology will continue to shrink the period between conception and viability, though it maintains that this will not affect its reasoning. (255) It is questionable whether this prediction is correct: just how much can the window during which a woman is free to obtain an abortion shrink before the right becomes meaningless? (256)

Without a convincing justification, without the possibility of definitive determination, and without any hope that it will cease its corrosive march towards the moment of conception, viability will inevitably need to be reconsidered by the Court. (257) That reconsideration, or its avoidance, cannot but significantly destabilize the development of a coherent and comprehensive abortion rights jurisprudence.

E. Preliminary Conclusions

Judicial self-consciousness has pervaded the development of the abortion right implied by Roe, most specifically in the attempt in Casey to restrict the protection of the right and thereby head-off the incessant criticism of the initial implication. The consequences of this disagreement-response cycle have been significant. With respect to the abortion jurisprudence itself, the instincts of Roe supporters have led them to support more protective views of the implied right, for example, regarding parental notice and consent. (258) The problem is, of course, that with the supporters of an abortion right so focused on retaining and defending the right to an abortion, there is little scope for the development of a coherent jurisprudence, and there is a tendency for the supporters to be hostile to any state regulation. Justice White described this phenomenon in Thornburgh, where he stated:
 The decision today appears symptomatic of the Court's own
 insecurity over its handiwork in Roe v. Wade and the cases
 following that decision. Aware that in Roe it essentially created
 something out of nothing and that there are many in this country
 who hold that decision to be basically illegitimate, the Court
 responds defensively. Perceiving, in a statute implementing the
 State's legitimate policy of preferring childbirth to abortion, a
 threat to or criticism of the decision in Roe v. Wade, the majority
 indiscriminately strikes down statutory provisions that in no way
 contravene the right recognized in Roe. (259)


That this phenomenon is linked to the defense of Roe is evidenced by the fact that when the abortion right itself has not been threatened, the Roe supporters on the Court have been willing to uphold, for example, laws regarding fetuses as persons and fetal murder. (260) The joint opinion in Casey noted that the Court's expansive defense of the initial implication has actually served the contradictory purpose of casting doubt over Roe. (261) However, the justices' approach in the joint opinion to the interpretive disagreement surrounding Roe was not the same as that of the High Court in Lange, where the grounding of the fight was recast on a more secure doctrinal footing. The joint justices in Casey sought to protect the initial implication by narrowing the potential application of the right to various state regulations of abortion. That is, by increasing the scope of potential state interests, the Casey joint justices were acting to protect the heart of the implied right of abortion itself. The protective compromise, however, has backfired; whether consciously or not, the modified standard of review has proved malleable and weak, and it has enabled anti-Roe justices to whittle down the right from something fundamental to something less. So long as the interpretive disagreement continues, affording justices from both sides the opportunity to attack doctrinal developments, the implied fight will never develop a sustainable or coherent jurisprudence.

IV. DOCTRINAL CONSEQUENCES AND BROADER RAMIFICATIONS

A. Linking Consequences to Implications

This Article demonstrates that the development of both the U.S. implied fight to an abortion and the Australian implied freedom of political communication have been adversely affected by the interpretive controversy surrounding their initial implication. Of course, controversy accompanies judicial determination of the limits of any rights; indeed, controversy is inherent within the nature of rights themselves whether express or implied. One could argue that, contrary to the analysis in this Article, implied rights are no more peculiarly vulnerable to interpretive disagreement and the subsequent doctrinal consequences than express rights.

Even if it were empirically possible to test such an argument, the relative intensity of the disagreement is far less important for the argument in this Article than the effects of that disagreement. Implied rights do suffer from unique problems that demonstrably stem from their origins as implications, and any interpretation of implied fights is likely to be vulnerable to revisions simply because various aspects of text, context, and historical understanding will be advanced as reason to doubt that interpretation. (262) As a result, there will always exist a certain self-consciousness about the vulnerability of the initial implication and the existence of the right. And, at least in the context of the implied abortion right and implied freedom, which both have doubtful textual and historical origins, a paucity of interpretive resources are available to guide the development of a given implication. It is these factors, which are unique to implied rights, that combine to affect the development of implied rights.

1. Judicial Self-Consciousness

In both the United States and Australia, judicial self-consciousness about the initial implication has had significant consequences for the development of the implied fight and implied freedom respectively. In Australia, the High Court's initial implication from broad concepts, unrooted in the text or the traditional history of the framer's intent, received scathing criticism from within the Court itself and from commentators. In a direct response to these criticisms, the Court reformulated the basis of the implied freedom, anchoring it in the text and structure of the Constitution, and thereby bringing it within more traditionally accepted methods of constitutional argument. However, while text and structure have acted as a clear interpretive solution for the grounding of the implication, judicial self-consciousness still pervades the High Court when interpreting the implied freedom. As a consequence of the interpretive disagreement over the initial implication, the justices are reluctant to move beyond the confines of the text and employ extra-constitutional ideas and values necessary to develop various aspects of the implied freedom, such as the coverage of "political communication" and the relevant standard of review.

In the United States, judicial self-consciousness in the Supreme Court has manifested in a very different manner, although with equally significant consequences for the development of the implied right to abortion. Following the interpretive disagreement to the initial implication, rather than developing a unified response either reinforcing the Due Process Clause grounding of the implication or reformulating the basis of the implication in the Equal Protection Clause, the Court fractured. The proponents of the implication aggressively protected and, where possible, expanded the scope of the right. The critics, however, responded by attacking, first the application of the right, and subsequently, core aspects of the implication itself. Self-consciousness prompted the attempted interpretive resolution in Casey; however, the resolution itself was fraught with the same difficulties as the initial implication, that is the failure to ground the right and the protective frame in text and history.

Consequently, in both jurisdictions, the Australian High Court and U.S. Supreme Court were driven to respond to the interpretive disagreement over the initial implication. However, neither court has successfully answered the most significant arguments against the initial implication--that the implications cannot be sufficiently grounded in the text, context, or orthodox historical understanding so as to alleviate the disagreement as to the existence of the implied rights. These arguments are perpetual, and suggest that implied rights will always be accompanied by unresolved disagreement over their existence. Because of the inevitable self-consciousness over disagreement as to implied rights, one preliminary conclusion is that implications are an especially weak form of rights protection, as it appears the judiciary can never fully disengage from the initial interpretive controversy, which necessarily stagnates the development of the right itself. This is so whether the implication survives subsequent judicial scrutiny by a bare majority, as in Casey, or has unanimous support, as in Lange.

2. Paucity of Interpretive Resources

In addition to judicial self-consciousness, the development of implied rights are hindered by a paucity of accepted interpretive resources by which developments may be supported. This is evident in both jurisdictions. In the United States, the Supreme Court has developed and modified key elements of the implied right, such as viability, standards of review, the health exception, without ever linking those factors to the initial implication or to any text or history undergirding the initial implication. Conscious of avoiding any reconsideration of the initial implication, and aware that the implication itself is open to attack on orthodox interpretive grounds, the Court has simply avoided any significant delineation of the interpretive methodology employed to develop the implied right.

Similarly, in Australia, although the High Court has clearly located the implied freedom in the text of the Australian Constitution, the unrelenting adherence to text alone has deprived the Court of the interpretive tools necessary to develop the implied freedom in a clear and principled manner. While interpretations of the Australian Constitution will be most secure when supported by textual provisions, text alone is an insecure basis for the recognition and development of a constitutional right. In short, whether the implication is located in the text or in the ether, the lack of interpretive resources to which the courts can refer necessarily impedes any coherent development of implied rights, resulting in a manipulable, unprincipled, and fragmented jurisprudence.

B. Broader Ramifications

Following ACTV, some commentators anticipated that implied constitutional rights would give Australia "everything a written Bill of Rights could give us." (263) The argument was that implied constitutional rights not only acted as an effective substitute for express constitutional rights but also were preferable to express rights because implied rights would be unlimited by text, (264) and therefore any debate over rights would focus on the substantive values of the right rather than the technical meaning of the words. (265) The failure of these arguments as a matter of prediction is indicative of the deeper problem of interpretive disagreement more generally.

Implications are, and will continue to be, an especially weak form of rights protection because, as outlined above, (266) there will always be significant interpretive arguments that count against any implication. That is, it is the contested nature of constitutional interpretation itself that fuels the disagreement about implied rights, and the unrelenting doubts over the textual and historical foundations of the implications will inevitably have a continuing effect on the content of the fights, and, subsequently, on the effectiveness of the right as a protective mechanism. The history of both the implied freedom of political communication and the implied abortion right demonstrates that the post-implication interpretive disagreement has peculiarly significant effects on the content of and protection afforded by the fight, suggesting that where the existence of a fight is subject to attack, that right will inevitably be a weak form of rights protection. This at least suggests that these fights-distortions are a factor that should be considered when assessing the utility of implied rights as a means of protecting fundamental values.

CONCLUSION

In arguing that interpretive disagreement has significant doctrinal consequences for implied fundamental rights, this Article has sought to contribute to the ongoing debate across constitutional democracies as to how fundamental rights are best protected. In this context, the significant disadvantage of reliance on implied rights is that rights implications will generally rest upon contested methods of constitutional interpretation, either generally or specifically in application. Both the Australian implied freedom of political communication and the U.S. implied abortion fight demonstrate that the subsequent debate over the implication itself, the consequent judicial self-consciousness over that initial implication, and the paucity of interpretive resources with which doctrinal developments could be supported, have an adverse effect on the development of implied fights. In both jurisdictions, despite different judicial reactions to the initial interpretive controversy, the jurisprudence that has emerged from the implied fight and freedom has been manipulable, unprincipled and fragmented.

As a matter of constitutional theory, whether the demonstrated weakness of implied rights is undesirable is only a concern if stronger constitutional fights are preferred. In Australia, where the culture of fights is especially weak, it may be that this form of fights protection is acceptable. However, in the strongly fights-protective culture of the United States, it may be that modifications need to be made to assumptions about the effectiveness of implied fights as a form of strong rights protection specifically, and the viability of pursuing fights protection through interpretive devices and judicially created rules more generally.

(1.) Roe v. Wade, 410 U.S. 113 (1973). See also the companion case of Doe v. Bolton, 410 U.S. 179 (1973).

(2.) Austl. Cap. Television Pty Ltd. v Commonwealth (1992), 177 CLR 106 (Austl.) [A CTV]. See also the companion case of Nationwide News Party Ltd. v Wills (I 992) 177 CLR 1 (Austl.).

(3.) See infra notes 38-56, and 113, 137-52 and accompanying text.

(4.) Printz v. United States, 521 U.S. 898, 977 (1997) (Breyer, J., dissenting). On the value of comparative studies more generally, see Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 YALE L.J. 1225, 1228 (1999).

(5.) Albeit under markedly different circumstances. On the American constitutional founding, see AMERICAN LEGAL HISTORY (Kermit L. Hall et al. eds., 2005). On the Australian constitutional founding, see JOHN WILLIAMS, THE AUSTRALIAN CONSTITUTION: A DOCUMENTARY HISTORY (2005).

(6.) See WILLIAMS, supra note 5.

(7.) Although, in neither constitution is the power of judicial review or the concept of judicial supremacy expressly articulated. See U.S. CONST. art. Ill; AUSTRALIAN CONSTITUTION, Ch. Ill. The power was declared by Chief Justice John Marshall in the seminal U.S. case of Marbury v. Madison, 5 U.S. 137 (1803). Marbury was cited as support for the notion of judicial review in the Australian context in Australian Communist Party v Commonwealth (1951), 83 CLR 1, 262 (Austl.), where Justice Fullagar stated "in our system the principle of Marbury v. Madison . . . is accepted as axiomatic." However, it should be noted that the High Court had been exercising the power of judicial review long before the Communist Party declaration. See generally BRIAN GALLIGAN, POLITICS OF THE HIGH COURT (1987) (discussing how politics may affect judicial decisions).

(8.) See, e.g., Sir Anthony Mason, The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience, 16 FED. L. REV. 1, 6-8 (1986); Gerald N. Rosenberg & John M. Williams, Do Not Go Gently Into that Good Right: The First Amendment in the High Court of Australia, 1997 SUP. CT. REV. 439,443 (1997); L.F. CRISP, AUSTRALIAN NATIONAL GOVERNMENT 75-78 (5th ed. 1983).

(9.) See Rosenberg & Williams, supra note 8, at 449.

(10.) U.S. CONST. amends. I-X.

(11.) See generally TOM CAMPBELL ET AL., PROTECTING RIGHTS WITHOUT A BILL OF RIGHTS: INSTITUTIONAL PERFORMANCE AND REFORM IN AUSTRALIA (2006) (discussing Australia's exceptionalism).

(12.) On "express rights" under the Australian Constitution, see, for example, HILARY CHARLESWORTH, WRITING IN RIGHTS 30-31 (2002); LESLIE ZINES, THE HIGH COURT AND THE CONSTITUTION 410 (4th ed. 1997); GEORGE WILLIAMS, HUMAN RIGHTS UNDER THE AUSTRALIAN CONSTITUTION (1999); George Winterton, Constitutionally Entrenched Common Law Rights: Sacrificing Means to Ends?, in INTERPRETING CONSTITUTIONS: THEORIES, PRINCIPLES, AND INSTITUTIONS 121 (Charles Sampford & Kim Preston eds., 1996).

(13.) Other provisions that are often considered "express rights" are Section 92 (guaranteeing that interstate trade and commerce is "absolutely free"), and Section51(xiiiA) (preventing civil conscription of medical practitioners).

(14.) For critiques of the express rights, see, for example, PETER BAILEY, HUMAN RIGHTS: AUSTRALIA IN AN INTERNATIONAL CONTEXT (1990); CHARLESWORTH, supra note 12, at 30-31; WILLIAMS, supra note 12, at 245; ZINES, supra note 12, at 410.

(15.) See Kruger v. Commonwealth (1997), 190 CLR 1, 132 (Austl.) (Gaudron, J.); see also WILLIAMS, supra note 12, at 127-28; Adrienne Stone, Australia's Constitutional Rights and the Problem of Interpretive Disagreement, 27 SYDNEY L. REV. 29, 32 (2005) [hereinafter Stone, Interpretive Disagreement].

(16.) John Rawls argues that even when reasonable people debate issues such as constitutional interpretation in good faith, the "burdens of judgment," including the unique formative experiences of their individual lives, can lead them to different conclusions. As a consequence, he claims that "reasonable pluralism" is an "inevitable outcome of free human reason" and a "permanent feature of the public culture of democracy." JOHN RAWLS, POLITICAL LIBERALISM 36-37, 54-57 (1993); see also JEREMY WALDRON, LAW AND DISAGREEMENT 12, 90--91,263 (1999).

(17.) "The Constitution contains no injunction as to how it is to be interpreted." McGinty v. W. Austl. (1986), 186 CLR 140, 230 (Austl.) (McHugh, J).

(18.) Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747 (1999); Robert F. Nagel, Disagreement and Interpretation, 56 LAW & CONTEMP. PROBS. 11 (1993); Richard A. Posner, Legal Reasoning from the Top Down and from the Bottom Up: The Question of Unenumerated Constitutional Rights, 59 U. CHI. L. REV. 433 (1992); Stone, Interpretive Disagreement, supra note 15, at 41; David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 880-85 (1996). See generally INTERPRETING CONSTITUTIONS: THEORIES, PRINCIPLES, AND INSTITUTIONS (Charles Sampford & Kim Preston eds., 1996).

(19.) AUSTRALIAN CONSTITUTION S 51 (xxxi).

(20.) See Simon Evans, Constitutional Property Rights in Australia: Reconciling Individual Rights and the Common Good, in PROTECTING RIGHTS WITHOUT A BILL OF RIGHTS: INSTITUTIONAL PERFORMANCE AND REFORM IN AUSTRALIA 197 (Tom Campbell et al. eds., 2006).

(21.) Stone, Interpretive Disagreement, supra note 15, at 41.

(22.) Id.

(23.) Id.

(24.) Austl. Cap. Television Pty Ltd. v Commonwealth (1992), 177 CLR 106 (Austl.) [ACTV]. For a detailed outline of the case, see Dean Bell et al., Note, Implying Guarantees of Freedom into the Constitution: Nationwide News and Australian Capital Television, 16 SYDNEY L. REV. 288 (1994). For scholarly reactions to the decisions see the articles contained in, Symposium, Constitutional Rights for Australia?, 16 SYDNEY L. REV. 141 (1994).

(25.) Nationwide News Party Ltd. v Wills (1992), 177 CLR 1 (Austl.).

(26.) See James Stellios, Using Federalism to Protect Political Communication." Implications from Federal Representative Government, 31 MELB. U. L. REV. 239 (2007) [hereinafter Stellios, Using Federalism].

(27.) AUSTRALIAN CONSTITUTION S 7, 24. Section 7 reads: "The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate." AUSTRALIAN CONSTITUTION S 7. Section 24 reads: "The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of senators. The number of members chosen in the several States shall be in proportion to the respective members of their people...." AUSTRALIAN CONSTITUTION S 24. The provision continues to specify the method of selection of representatives, until Parliament provides otherwise.

(28.) AUSTRALIAN CONSTITUTION S 128 (specifying that the Constitution may be amended upon agreement of a majority of people in the majority of states at referendum).

(29.) Nationwide News, 177 CLR at 70 73 (Deane, J., and Toohey, J.); ACTV, 177 CLR at 137 (Mason, C.J.), 209 10 (Gaudron, J.). Note that Chief Justice Mason, with Justices Toohey, Gaudron, and McHugh, drew a distinction between "representative government" and "representative democracy." ACTV, 177 CLR at 130, 199. This distinction is not important for the purposes of this Article. See Adrienne Stone, The Limits of Constitutional Text and Structure." Standards of Review and the Freedom of Political Communication, 23 MELB. U. L. REV. 668, 672 n.17 (1999) [hereinafter Stone, Limits].

(30.) Nationwide News, 177 CLR at 72 (Deane, J. and Toohey, J.); ACTV, 177 CLR at 138-40 (Mason, C.J.), 211 12 (Gaudron, J.).

(31.) See, e.g., Brian Galligan & F.L. Morton, Australian Exceptionalism: Rights Protection Without a Bill of Rights, in PROTECTING RIGHTS WITHOUT A BILL OF RIGHTS: INSTITUTIONAL PERFORMANCE AND REFORM IN AUSTRALIA 17 (Tom Campbell et al. eds., 2006); Jeffrey Goldsworthy, Introduction, in PROTECTING RIGHTS WITHOUT A BILL OF RIGHTS: INSTITUTIONAL PERFORMANCE AND REFORM IN AUSTRALIA 1 (Tom Campbell et al. eds., 2006).

(32.) Leeth v Commonwealth (1992) 174 CLR 455, 486 (Austl.) (Deane, J., and Toohey, J.). See generally Justice John Toohey, A Government of Laws, and Not of Men?, 4 PUB. L. REV. 158, 169-70 (1993); George Winterton, Constitutionally Entrenched Common Law Rights. Sacrificing Means to Ends?, in INTERPRETING CONSTITUTIONS: THEORIES, PRINCIPLES, AND INSTITUTIONS 121 (Charles Sampford & Kim Preston eds., 1996); Leslie Zincs, Courts Unmaking the Law, in COURTS IN A REPRESENTATIVE DEMOCRACY 125, 130-34 (Australian Institute of Judicial Administration ed., 1995); Leslie Zincs, The Sovereignty of the People, in POWER, PARLIAMENT AND THE PEOPLE 91, 104 (Michael Coper and George Williams eds., 1997).

(33.) Nationwide News Party Ltd. v Wills (1992), 177 CLR 1, 71 (Austl.) (Dearie, J., and Toohey, J.); Austl. Cap. Television Pty Ltd. v Commonwealth (1992), 177 CLR 106, 137-38 (Austl.) [ACTV] (Mason, C.J.); Theophanous v Herald & Weekly Times Ltd. (1994), 182 CLR 104, 173 (Austl.) (Deane, J.); McGinty v W. Austl. (1996), 186 CLR 140, 199 (Austl.) (Toohey, J.). See generally George Winterton, Popular Sovereignty and Constitutional Continuity, 26 FED. L. REV. 1 (1998).

(34.) This is a distinctly U.S. view of the democratic relationship and, based on the history of the framing of the Australian Constitution, is not sustainable. See, e.g., Leighton McDonald, The Denizens of Democracy: The High Court and the "Free Speech "' Cases, 5 PUB. L. REV. 160 (1994); Paul Finn, A Sovereign People, a Public Trust, in ESSAYS ON LAW AND GOVERNMENT: PRINCIPLES AND VALUES 1 (Vol. 1, Paul Finn ed., 1995); Stellios, Using Federalism, supra note 26 (manuscript at 4, on file with author); Harley G.A. Wright, Sovereignty of the People--The New Constitutional Grundnorm, 26 FED. L. REV. 165, 168 (1998).

(35.) ACTV, 177 CLR at 227-35 (McHugh, J.), 158-59 (Brennan, J.). See generally Stone, Limits, supra note 29.

(36.) Id.

(37.) For general analysis of the decisions, see Stone, supra note 29.

(38.) This is most explicitly recognized by Justice Brennan in Nationwide News, 177 CLR 1, 48. See also id. at 94 (Gaudron. J.); ACTV 177 CLR 106, 210-12 (Gaudron, J.); Stephens v W. Austl. Newspapers Ltd. (1994), 182 CLR 211, 232 (Austl.) (Mason, C.J., Toohey, J., and Gaudron, J.); Cunliffe v Commonwealth (1994), 182 CLR 272, 298 (Austl.) (Mason, C.J.), 336 (Deane, J.); McGinty (1996), 186 CLR at 198 (Toohey, J.), 216 (Gaudron, J.). See the discussion in Brian Galligan, The Australian High Court's Role in Institutional Maintenance and Development, in INTERPRETING CONSTITUTIONS: THEORIES, PRINCIPLES AND INSTITUTIONS 184, 200 (Charles Sampford & Kim Preston eds., 1996); Sir Anthony Mason, The Interpretation of a Constitution in a Modern Liberal Democracy, in INTERPRETING CONSTITUTIONS: THEORIES, PRINCIPLES, AND INSTITUTIONS 13, 26-7 (Charles Sampford & Kim Preston eds., 1996); Cheryl Saunders, Democracy: Representation and Participation, in ESSAYS ON LAW AND GOVERNMENT: PRINCIPLES AND VALUES 51, 68-71 (Paul Finn ed., 1995), vol 1.

(39.) See, e.g., NICHOLAS ARONEY, FREEDOM OF SPEECH IN THE CONSTITUTION (1998); Nicholas Aroney, A Seductive Plausibility: Freedom of Speech in the Constitution, 18 U. QLD. L. REV. 249 (1995) [hereinafter Aroney, A Seductive Plausibility]; Tom Campbell, Democracy, Human Rights, and Positive Law, 16 SYDNEY L. REV. 195, 204-07 (1994); Stephen Donaghue, The Clamour of Silent Constitutional Principles, 24 FED. L. REV. 133 (1996); Jeffrey Goldsworthy, Implications in Language, Law and the Constitution, in FUTURE DIRECTIONS IN AUSTRALIAN CONSTITUTIONAL LAW 150 (Geoffrey Lindell ed., 1994); Jeffrey Goldsworthy, The High Court, Implied Rights, and Constitutional Change, 39 QUADRANT 46 (1995); Jeffrey Goldsworthy, Constitutional Implications and Freedom of Political Speech: A Reply to Stephen Donaghue, 23 MONASH U. L. REV. 362 (1997); Jeremy Kirk, Constitutional Implications (1): Nature, Legitimacy, Classification, Examples, 24 MELB. U. L. REV. 645 (2000); Jeremy Kirk, Constitutional Implications (II): Doctrines of Equality and Democracy, 25 MELB. U. L. REV. 24 (2001); Stone, Limits, supra note 29; Leslie Zines, A Judicially Created Bill of Rights?, 16 SYDNEY L. REV. 166, 177 (1994) [hereinafter Zines, A Judicially Created Bill of Rights?]. For an excellent overview of the theoretical aspects of the post-ACTV implication debate, see Laurence Claus, Implication and the Concept of a Constitution, 69 AUST. L.J. 887 (1995).

(40.) See, e.g., Aroney, A Seductive Plausibility, supra note 39. Campbell, supra note 39, at 204-07 (1994); Goldsworthy, supra note 39, at 150; Zines, A Judicially Created Bill of Rights?, supra note 39, at 177.

(41.) See, e.g., Stone, Limits, supra note 29; Adrienne Stone, Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication, 25 MELB. U. L. REV. 374 (2001) [hereinafter Stone, Rights]; Adrienne Stone, The Limits of Constitutional Text and Structure Revisited, 28 U.N.S.W.L.J. 842 (2005) [hereinafter Stone, Limits Revisited] (written as a response to a discussion of her ideas by Justice McHugh in Coleman v Power (2004) 220 CLR 1 (Austl.)); Winterton, supra note 12, at 121.

(42.) The term "interpretive orthodoxy" was coined by Jeffrey Goldsworthy in Australia: Devotion to Legalism, in INTERPRETING CONSTITUTIONS: A COMPARATIVE STUDY 106, 147 (Jeffrey Goldsworthy ed., 2006).

(43.) Notably, Justice Dawson did acknowledge that some level of protection for political speech was necessary, that is, Justice Dawson held that the terms of the Constitution enshrined a limited principle of representative government that ensured that elections to the Commonwealth Parliament involved a true choice by electors. See Austl. Cap. Television Pty Ltd. v Commonwealth (1992), 177 CLR 106, 177-202 (Austl.) [ACTV] (Dawson, J., dissenting).

(44.) Theophanous v Herald & Weekly Times Ltd. (1994), 182 CLR 104, 194 (Austl.)(Dawson, J., dissenting); see also Cunliffe, 182 CLR 272, 362 (Dawson, J., dissenting).

(45.) See Austl. Cap. Television Pry Ltd. v Commonwealth (1992), 177 CLR 106, 184 (Austl.) [ACTV] (Dawson, J., dissenting).

(46.) See, e.g., Cunliffe v Commonwealth (1994), 182 CLR 272, 298 at 361 (Dawson, J., dissenting); Austl. Broad. Corp. v Lenah Game Meats Pty Ltd. (2001) 208 CLR 199, 331-02 (Austl.) (Callinan, J.); Jeffrey Goldsworthy, The High Court, Implied Rights, and Constitutional Change, 39 QUADRANT 46 (1995).

(47.) Jeffrey Goldsworthy, Constitutional Implications and Freedom of Political Speech: A Reply to Stephen Donaghue 23 MONASH U. L. REV. 362, 372 (1997); see also Geoffrey Kennet, Implied Rights, in THE CAULDRON OF CONSTITUTIONAL CHANGE 89, 90 (Michael Coper & George Williams eds., 1997); Sir Anthony Mason, The Interpretation of a Constitution in a Modern Liberal Democracy, in INTERPRETING CONSTITUTIONS: THEORIES, PRINCIPLES, AND INSTITUTIONS 13, 28 (Charles Sampford & Kim Preston eds., 1996).

(48.) See also Kennet, supra note 47, at 90; Mason, supra note 47, at 28.

(49.) Cunliffe v Commonwealth (1994) 182 CLR 272, 362 (Austl.) (Dawson, J., dissenting).

(50.) Goldsworthy, supra note 45, at 48-49. Jeffrey Goldsworthy, Implications in Language, Law and the Constitution, in FUTURE DIRECTIONS IN AUSTRALIAN CONSTITUTIONAL LAW 150, 179-80 (Geoffrey Lindell ed., 1994) [hereinatter Goldsworthy, Implications].

(51.) Goldsworthy, supra note 45, at 49; Goldsworthy, Implications, supra note 50, at 180 (Geoffrey Lindell ed., 1994); see also Austl. Broad. Corp. v Lenah Game Meats Pty Ltd. (2001) 208 CLR 199, 331 n.603, 337-38, (Austl.) (Callinan, J.); David Wood, Judicial Invalidation of Legislation and Democratic Principles, in INTERPRETING CONSTITUTIONS: THEORIES, PRINCIPLES, AND INSTITUTIONS 169, 178 (Charles Sampford & Kim Preston eds., 1996).

(52.) See Goldsworthy, Implications, supra note 50, at 181; Stone, Limits, supra note 29.

(53.) Stephen Donaghue, The Clamour of Silent Constitutional Principles, 24 FED. L. REV. 133, 134 (1996). See generally Frank H. Easterbrook, Abstraction and Authority, 59 U. CHI. L. REV. 349, 374-78 (1992); William H. Rehnquist, The Notion of a Living Constitution, 54 TEX. L. REV. 693, 696, 698 (1976).

(54.) Although there was a period in Australian constitutional history where the High Court justices held the view that no implications could be made in interpreting the Constitution, implications have been a part of Australian constitutional interpretation since Federation. See, e.g., West v. Comm'r of Taxation (NSW) (1937), 56 CLR 657 (Austl.); Stephen Donaghue, The Clamour of Silent Constitutional Principles, 24 FED. L. REV. 133, 134 (1996). For examples of implications drawn from federalism see Melbourne Corp. v. Commonwealth (1947) 74 CLR 31 (Austl.), and Queensland Elect. Comm'n v. Commonwealth (1985) 159 CLR 192 (Austl.).

(55.) Austl. Cap. Television Pty Ltd. v Commonwealth (1992), 177 CLR 106, 185 (Austl.) [ACTV].

(56.) Id. at 181 (Dawson, J.); see also The King v Smithers (1912) 16 CLR 99, 113 (Isaacs, J.); Queensland Elect. Comm'n v Commonwealth (1985) 159 CLR 192, 231 (Austl.) (Brennan, J.); cf Commonwealth v Kreglinger & Fernau Ltd. (1926) 37 CLR 393, 411-412 (Austl.) (Isaacs, J.).

(57.) Cunliffe v Commonwealth (1993), 182 CLR 272, 395 (Austl.) (McHugh, J.); Theophanous (1994), 182 CLR 104, 195-204 (Austl.) (McHugh, J.); McGinty (1996), 186 CLR 140, 229-36 (Austl.) (McHugh, J.).

(58.) Theophanous, 182 CLR at 197 (McHugh, J.).

(59.) Jeffrey Goldsworthy, Australia: Devotion to Legalism, in INTERPRETING CONSTITUTIONS: A COMPARATIVE STUDY 106, 146 (Jeffrey Goldsworthy ed., 2006).

(60.) See, e.g., Cunliffe,182 CLR 272, 298 (Mason, C.J.); Theophanous, 182 CLR 104, 120-21 (Mason, C.J., Toohey, J., and Gaudron, J.), 147 (Brennan, J.), 163, 180 (Deane, J.); Stephens v W. Austl. Newspapers Ltd. (1994), 182 CLR 211, 232 (Austl.) (Mason, C.J., Toohey, J., and Gaudron, J.); Muldowney v S. Austl. (1996), 186 CLR 352, 373 (Austl.) (Toohey, J.).

(61.) McGinty v W. Austl. (1996) 186 CLR 140, 168-170 (Austl.) (Brennan, C.J.); id. at 182-84 (Dawson, J.), 199 (Toohey, J.), 231-32, 235-36 (McHugh, J.), 291 (Gummow, J.), cf. id. at 216 (Gaudron, J.). On the importance of McGinty, see Lange v Austl. Broad. Corp. (1997), 189 CLR 520, 566-67 (Austl.) (Brennan, C.J., Dawson, J., Toohey, J., Gaudron, J., McHugh, J., Gummow, J., Kirby, J.); David Wiseman, Implied Political Rights and Freedoms, in FEDERAL CONSTITUTIONAL LAW: A CONTEMPORARY VIEW 346 (Melissa Castan & Sarah Joseph eds., 2001). On the influence of Justice McHugh on the interpretive direction of the implied freedom, see Andrew Lynch, Dissent: The Rewards and Risks of Judicial Disagreement in the High Court of Australia, 27 MELB. U. L. R 724, 748 n.113 (2003), and Stone, Limits, supra note 29, at 673.

(62.) Theophanous, 182 CLR at 104; Stephens v W. Austl. Newspapers Ltd. (1994), 182 CLR 211 (Austl.).

(63.) Theophanous, 182 CLR 202. The reference to the "'Engineers' Case" refers to the 1920 case of Amalgamated Soc'y of Eng'rs v Adelaide Steamship Co. Ltd. (1920) 28 CLR 129 (Austl.), in which the Court asserted the dominance of textualism in constitutional interpretation, stating:
 It is ... the manifest duty of this Court to turn its earnest
 attention to the provisions of the Constitution itself. That
 instrument is the political compact of the whole of the people of
 Australia ... and it is the chief and special duty of this Court
 faithfully to expound and give effect to it according to its own
 terms, finding the intention from the words of the compact, and
 upholding it throughout precisely as framed.


Id. at 142.

(64.) See Stone, Limits, supra note 29, at 673.

(65.) McGinty v W. Austl. (1996), 186 CLR 140, 168-70 (Austl.) (Brennan, C.J.), 182-184 (Dawson, J.), 199 (Toohey, J.), 231-32, 235-36 (McHugh, J.), 291 (Gummow, J.); Stone, supra note 29, at 673.

(66.) McGinty, 186 CLR at 140 (Austl.) (rejecting the argument that the principle of representative democracy implied a right of equal or equal-sized electorates for the Western Australian State Parliament).

(67.) Id. at 171 (Brennan, C.J.) ("The principle of representative democracy ... can be no wider than--for it is synonymous with--what inheres in the text of the Constitution or in its structure."), 180-83 (Dawson, J.), 233 (McHugh, J.), 281-83 (Gummow, J.).

(68.) George Winterton, Constitutionally Entrenched Common Law Rights: Sacrificing Means to Ends?, in INTERPRETING CONSTITUTIONS: THEORIES, PRINCIPLES, AND INSTITUTIONS 121 (Charles Sampford & Kim Preston eds., 1996).

(69.) Lange v. Austl. Broad. Corp. (1997) 189 CLR 520 (Austl.).

(70.) Harley G.A. Wright, Sovereignty of the People--The New Constitutional Grundnorm, 26 FED. L. REV. 165, 175 (1998); Lange, 189 CLR at 557; see also Andrew Fraser, False Hopes: Implied Rights and Popular Sovereignty in the Australian Constitution, 16 SYDNEY L. REV. 213, 222-24 (1994); Stellios, Using Federalism, supra note 26, at 243 (2007); George Winterton, Constitutionally Entrenched Common Law Rights: Sacrificing Means to Ends?, in INTERPRETING CONSTITUTIONS: THEORIES, PRINCIPLES, AND INSTITUTIONS 121, 135-42 (Charles Sampford & Kim Preston eds., 1996).

(71.) Stellios, Using Federalism, supra note 26, at 243; see also Lange, 189 CLR at 557-59.

(72.) Lange, 189 CLR at 566-67, 557.

(73.) Id. at 538. The Court relied on Section 1 (vesting Commonwealth legislative power to the Parliament), Sections 8 and 30 (electors for the Senate and House of Representatives, respectively, to vote only once), Section 25 (persons of any race disqualified from voting at elections not to be counted in determining Section 24 electorates), Section 28 (duration of the House of Representatives), and section 13 (setting the longest term for Senators at six years). AUSTRALIAN CONSTITUTION S 1, 8, 13, 24, 25, 28, 30.

(74.) Lange, 189 CLR at 558-59 (Austl.). The Court relied on Section 6 (requiring Parliament to sit at least once a year), Section 62 (executive power of the Queen to be exercised on the advice of ministers in cabinet), Section 49 (providing authority for each House of Parliament to summon witnesses or require document production), and Section 83 (requiring that money be appropriated from the treasury in accordance with the law). AUSTRALIAN CONSTITUTION S 6, 49, 62, 83.

(75.) Lange v. Austl. Broad. Corp. (1997), 189 CLR 520, 559 (Austl.).

(76.) Id. at 560-61. Although, as with any constitutional right, the protection accorded to these matters is not absolute and Lange specified a two-stage test by which the impugned law would be judged. Id. at 567. That is, the question of what kinds of communications are protected by the implied freedom is only the first stage of the enquiry. In the constitutional context, if it can be shown that the law said to burden the implied freedom is "reasonably appropriate and adapted to serve a legitimate end," Coleman v Power (2004), 220 CLR 1, 13 (Austl.), the communication will not be protected by the implied freedom. For discussion of the "reasonably appropriate and adapted" test, see Jeremy Kirk, Constitutional Guarantees, Characterisation and the Concept of Proportionality, 21 MELB. U. L. REV. 1 (1997); Stone, Limits, supra note 29.

(77.) Stone, Interpretive Disagreement, supra note 15, at 43; Adrienne Stone & Simon Evans, Freedom of Speech and Insult in the High Court of Australia, 4 INT'L J. CONST. LAW 677, 678 (2006) [hereinafter Stone & Evans, Freedom of Speech and Insult]. For an argument that the High Court is peculiarly responsive to academic criticism, see Michael Coper, The High Court and Free Speech: Visions of Democracy or Delusions of Grandeur?, 16 SYDNEY L. REV. 185, 194 (1994).

(78.) Excluding the new appointees, Justices Crennan and Keifel, Justice Callinan is alone in expressing doubts as to the legitimacy of the implication. See, e.g., Coleman, 220 CLR at 29-30 (Gleeson, C.J.), 43-44 (McHugh, J.), 78 (Gummow, J., and Hayne, J.), 82 (Kirby, J.), 108-09, 113-14 (Callinan, J.), 120 (Heydon, J,); Mulholland v. Austl. Electoral Comm'n (2004), 220 CLR 181, 200-01 (Austl.) (Gleeson, C.J.), 217-18 (McHugh, J.), 244-45 (Gummow, J., and Hayne, J.), 293-44 (Callinan, J.), 305-06 (Heydon, J.).

(79.) Stone, Limits Revisited, supra note 41, at 845.

(80.) Stone & Evans, Freedom of Speech and Insult, supra note 77, at 687-88 (2006).

(81.) Coleman v Power (2004), 220 CLR 1 (Austl.).

(82.) Id.

(83.) Coleman, 220 CLR at 30 (Gleeson, C.J.).

(84.) Id. at 54 (McHugh, J.)

(85.) APLA Ltd. v Legal Servs. Comm'r (NSW) [2005] 44 HCA 322 (Austl.) [APLA].

(86.) Id. [paragraph] 14 (Gleeson, C.J., and Heydon, J.).

(87.) Id. [paragraph][paragraph] 60-71 (McHugh, J.); cf Id. [paragraph][paragraph] 217-219 (Gummow, J.), [paragraph] 342 (Kirby, J.), [paragraph][paragraph] 377-382 (Hayne, J.), [paragraph][paragraph] 453, 457-461 (Callinan, J.). See generally Zoe Guest, The Judiciary and the Freedom of Political Communication: The Protection of Judgment on Australia's Judges, 17 PUB. L. REV. 5 (2006).

(88.) APLA, 44 HCA 322, [paragraph] 29 (Gleeson, C.J., and Heydon, J.).

(89.) Id. The irony of this justification is that this remains the key argument against the initial judicial implication and enforcement of the implied freedom.

(90.) Dan Meagher, What is 'Political Communication'? The Rationale and Scope of the Implied Freedom of Political Communication, 28 MELB. U. L. REV. 438 (2004) [hereinafter Meagher, What is 'Political Communication'?]; Zoe Guest, The Judiciary and the Freedom of Political Communication: The Protection of Judgment on Australia's Judges, 17 PUB. L. REV. 5 (2006); Stellios, Using Federalism, supra note 26; Stone, Limits, supra note 29; Stone, Rights, supra note 41; Stone, Interpretive Disagreement, supra note 15.

(91.) Stone, Interpretive Disagreement, supra note 15, at 43; see also Deborah Cass, Through the Looking Glass: The High Court and the Right to Speech, 4 PUB. L. REV. 229, 246 (1994) (arguing that ACTV failed to articulate a theory of free speech and that such a theory was necessary for future development of the implied freedom).

(92.) Stone, Interpretive Disagreement, supra note 15. Indeed, the Court must inevitably draw on some extra-constitutional principles, and attempting to suppress their influence merely prevents the full rationalization of explication of its reasoning. On this point, see, for example, Brian Horrigan, Paradigm Shifts in Interpretation: Reframing Legal and Constitutional Reasoning, in INTERPRETING CONSTITUTIONS: THEORIES, PRINCIPLES, AND INSTITUTIONS 31, 35-36 (Charles Sampford & Kim Preston eds., 1996); Jeremy Kirk, Constitutional Implications (II): Doctrines of Equality and Democracy, 25 MELB. U. L. REV. 24, 52 (2001); Stone & Evans, Freedom of Speech and Insult, supra note 77.

(93.) See Stellios, Using Federalism, supra note 26, at 243-45.

(94.) Jeffrey Goldsworthy, The High Court, Implied Rights, and Constitutional Change, 39 QUADRANT 46 (1995).

(95.) See Stone, Limits, supra note 29, at 696-99.

(96.) Stone, Limits, supra note 29; Stone, Limits Revisited, supra note 41. See also Meagher, What is 'Political Communication'?, supra note 103.

(97.) Levy v Victoria (1997), 189 CLR 579 (Austl.). See Stone, Limits, supra note 29, at 675-87.

(98.) For example, the Lange test was slightly modified by the majority in Coleman. Coleman v Power (2004) 220 CLR l, 30 (Austl.) (Gleeson, C.J.), 57, 61-62 (McHugh, J.). However, that modification was not applied by the other three judges in the subsequent case of APLA. APLA Ltd. v Legal Servs. Comm'r (NSW) [2005] 44 HCA 322 (Austl.) [APLA]. Additionally, some judges seem to prefer a form of words that differs from that adopted in Lange, as evidenced in argument during the heating of APLA. See Transcript of Proceedings, APLA (High Court of Australia, 6 October 2004).

(99.) See, e.g., Coleman, 220 CLR 1 (Austl). In Coleman, Chief Justice Gleeson stated that "the balance struck by the [legislature] is not unusual, and I am unable to conclude that the legislation, in its application to this case, is not suitable to the end of maintaining public order in a manner consistent with an appropriate balance of all the various tights, freedoms, and interests, which require consideration." Id. at 32 (emphasis added). Justice Callinan stated that a preferable formulation of the requirement that the legislation in question be "reasonably appropriate and adapted to achieving a legitimate object or end" was whether it was % reasonable implementation of a legitimate object." Id. at 110 (emphasis added). Justice Heydon noted that "[t]he question is not 'Is this provision the best?', but 'Is this provision a reasonably adequate attempt at solving the problem?'" Id. at 124 (emphasis added). While purporting to apply the Lange test, these formulations of the inquiry exhibit a greater willingness to defer to legislative judgments about the regulation of political communication. See also Stellios, Using Federalism, supra note 26; Stone & Evans, Freedom of Speech and Insult, supra note 77, at 679-80.

(100.) See Stone, Limits, supra note 29, at 671.

(101.) Lange v Austl. Broad Corp. (1997), 189 CLR 520, 560-61 (Opinion of the Court).

(102.) Stellios, Using Federalism, supra note 26, 262 (2007).

(103.) Dan Meagher, What is 'Political Communication'?, supra note 103.

(104.) See Stone, Limits, supra note 29.

(105.) Id.

(106.) Id.

(107.) See supra note 98 and accompanying text.

(108.) APLA Ltd. v Legal Servs. Comm'r (NSW) [2005] 44 HCA 322, [paragraph] 66 (Austl.) [APLA] (McHugh, J.).

(109.) Acknowledging that, Justice McHugh in APLA does recognize a broader category of communications that could be covered by the implied freedom. APLA, 44 HCA 322, [paragraph] 68 (McHugh, J.).

(110.) For a lengthy discussion, see Zoe Guest, The Judiciary and the Freedom of Political Communication: The Protection of Judgment on Australia's Judges, 17 PUB. L. REV. 5 (2006); see also Justice Ronald Sackville, Speech delivered at the 13th Lucinda Lecture, Monash University, How Fragile are the Courts? Freedom of Speech and Criticism of the Judiciary (Aug. 29, 2005).

(111.) Roe v. Wade, 410 U.S. 113 (1973).

(112.) See discussion infra Part III.B.1.

(113.) On the extra-legal factors founding disagreement about Roe even within the Supreme Court, see Jenny R. Kramer, Compliance with Supreme Court Jurisprudence in the Post Roe and Casey Era, 11 SETON HALL CONST. L.J. 529, 567 (2001). See also Geoffrey Stone, UNIVERSITY OF CHICAGO LAW SCHOOL FACULTY BLOG (Apr. 20, 2007, 15:01 CT), http://uchicagolaw.typepad.com/faculty/2007/04/ our_faithbased_.html#more.

(114.) See, e.g., Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C.L. REV. 375 (1984-1985); Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U.L. REV. 1185 (1992); Tyler Baker, Roe and Paris." Does Privacy Have a Principle? 26 STAN. L. REV. 1161 (1974); John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973); Richard Epstein, Substantive Due Process By Any Other Name: The Abortion Cases, 1973 SUP. CT. REV. 159 (1973); Richard Gregory Morgan, Roe v. Wade and the Lesson of the Pre-Roe Case Law, 77 MICH. L. REV. 1724 (1979); Lawrence Tribe, The Supreme Court 1972 Term--Forward: Toward a Model of Roles in the Due Process of Life and Law, 87 HARV. L. REV. 1 (1973). Cf. Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should be Overruled, 59 U. CHI. L. REV. 381 (1992).

(115.) David Strauss, Why Was Lochner Wrong? (2003) 70 U. CHI. L. REV. 373, 380. At a more abstract level, see Bobbitt, CONSTITUTIONAL INTERPRETATION 22, 41 (1991).

(116.) Stenberg v. Carhart, 530 U.S. 914, 955 (2000) (Scalia, J., dissenting).

(117.) Justice Scalia argues that abortion is not a liberty protected by the Constitution "because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 980 (1992) (Scalia, J., dissenting, joined by Rehnquist, C.J., White, J., and Thomas, J.).

(118.) Admittedly, this is a contentious claim. On the moral and religious motivations of the judicial decisions regarding abortion, see, for example, Geoffrey Stone, UNIVERSITY OF CHICAGO LAW SCHOOL FACULTY BLOG (Apr. 20, 2007, 15:01 CT), http://uchicagolaw.typepad.com/faculty/2007/04/ our_faithbased_.html#more.

(119.) Although, note that the two systems are often compared. See, e.g., Michael Dorf, Interpretive Holism and the Structural Method, or How Charles Black Might Have Thought About Campaign Finance Reform and Congressional Timidity, 92 GEO. L.J. 833, 842-43 (2004); Andrew Lynch, Dissent: The Rewards and Risks of Judicial Disagreement in the High Court of Australia, 27 MELB. U. L. REV. 724, 746-47, 757, 768 (2003). For an example of comparative work involving free speech, see, for example, William G. Buss, Alexander Meiklejohn, American Constitutional Law, and Australia's Implied Freedom of Political Communication, 34 FED. L. REV. 421 (2006); Gerald Rosenberg & John Williams, Do Not Go Gently into that Good Right: The First Amendment in the High Court of Australia, 1997 SUP. CT. REV. 439 (1997).

(120.) The Australian Constitution is "in textual and historical terms ... inhospitable to rights." Stone, Interpretive Disagreement, supra note 15, at 46 (2005); see also Sir Anthony Mason, The Interpretation of a Constitution in a Modern Liberal Democracy, in INTERPRETING CONSTITUTIONS: THEORIES, PRINCIPLES, AND INSTITUTIONS 13, 23 (Charles Sampford & Kim Preston eds., 1996).

(121.) See discussion Part III.B.1; Michael Dorf, Interpretive Holism and the Structural Method, or How Charles Black Might Have Thought About Campaign Finance Reform and Congressional Timidity, 92 GEO. L.J. 833, 839, 843 (2004); David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 878 (1996); see also John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973); Mark Tushnet, Returning With Interest: Observations on Some Putative Benefits of Studying Comparative Constitutional Law, 1 U. PA. J. CONST. L. 325, 335-36 (1998). See also the comments of Justice Scalia in Stenberg v. Carhart, 530 U.S. 918, 956 (2000) (Scalia, J., dissenting).

(122.) Griswold v. Connecticut, 381 U.S. 479, 486 (1965). The Griswold opinion noted a number of earlier cases where the Court had protected privacy and autonomy in family matters, including, for example, Skinner v. Oklahoma, 316 U.S. 535 (1942) (procreation), Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S. 390 (1923). The Court had also employed the Fourteenth Amendment to invalidate laws relating to marriage in Loving v. Virginia, 388 U.S. 1, 12 (1967).

(123.) Griswold, 381 U.S. at 484.

(124.) Id. at 494.

(125.) Eisenstadt v. Baird, 405 U.S. 438 (1972).

(126.) Id. at 453 (emphasis in original).

(127.) The opinion of the Court was authored by Justice Blackmun. Roe v. Wade, 410 U.S. 113, 116 (1973).

(128.) Id. at 152 (referring to the privacy right as derived in Griswold and Eisenstadt) (internal citations omitted).

(129.) Roe, 410 U.S. at 149, 135-36.

(130.) Id at 153. On the foundations of the fight to privacy, see supra notes 122-24 and accompanying text. See also Joel Feinberg, Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution?, 58 NOTRE DAME L. R. 445 (1983); Michael J. Perry, Substantive Due Process Revisited. Reflections on (and Beyond) Recent Cases, 71 NW. U. L. REV. 417 (1976); Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 744-52 (1989). Note that Justice Douglas, in his concurring opinion, strongly resisted the idea that the Ninth Amendment grounded any enforceable rights, indicating that the implication in Roe rests in the Fourteenth Amendment Due Process Clause.

(131.) Roe, 410 U.S. at 153, 155. This is the case with most constitutional rights: for the Australian implied freedom see, for example, the comments in Austl. Cap. Television Pty. Ltd. v Commonwealth (1992) 177 CLR 106, 142 (Austl.) (Mason, C.J.), 159 (Brennan, J.), 169 (Deane, J., and Toohey, J.), 217 (Gaudron, J.), 234 (McHugh, J.); Nationwide News (1992), 177 CLR 1, 76 (Austl.) (Deane, J., and Toohey, J.).

(132.) Roe, 410 U.S. at 155. On the "compelling interest" test, see, for example, the comments in Bates v. City of Little Rock, 361 U.S. 516, 524 (1960); Roe, 410 U.S. at 173 (Rehnquist, J., dissenting); Doe v. Bolton, 410 U.S. 179, 223 (1973) (Rehnquist, J., dissenting).

(133.) Roe v. Wade, 410 U.S. 113, 159 (1973).

(134.) Id. at 157-58.

(135.) Id. at 163.

(136.) Id.

(137.) See supra notes 113-14 and accompanying text; see also, Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577, 659 (1993). On the backlash created by Roe, see Robert Post & Reva Seigel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R-C.L.L. REV. 373 (2007).

(138.) Of course, there is significant overlap between these arguments.

(139.) Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should be Overruled, 59 U. CHI. L. REV. 381, 386 (1992) (commenting in the context of criticizing this view). An express fight would, of course, have greater democratic legitimacy. Supporting and opposing this view, see, for example, Poelker v. Doe, 432 U.S. 519, 523 (1977) (Brennan, J., dissenting, joined by Blackman, J., and Marshall, J.); City of Akron v. Akron Ctr. for Reprod. Health Inc., 462 U.S. 416, 465 (1983) (Connor, J., dissenting, joined by White, J., and Rehnquist, J.).

(140.) Bowers v. Hardwick, 478 U.S. 186, 194 (1986).

(141.) See, e.g., Vanhorne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 308 (C.C.D. Pa. 1795) ("[I]n England there is no written constitution, no fundamental law, nothing visible, nothing real, nothing certain, by which a statute can be tested. In America the case is widely different."). See also the seminal pronouncement in Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798) (Iredell, J., concurring). For an excellent outline of written versus unwritten law, both pre- and post-Roe, see Jed Rubenfeld, The New Unwritten Constitution, 51 DUKE L.J. 289 (2001).

(142.) See, e.g., Griswold v. Connecticut, 381 U.S. 479, 508 (1965) (Black, J., dissenting, joined by Stewart, J.), 530 (Stewart, J., dissenting); Eisenstadt v. Baird, 405 U.S. 438, 471-72 (1972) (Burger, C.J., dissenting); Schenck v. Pro-Choice Network of W. New York, 519 U.S. 357, 390 (1997) (Scalia, J., concurring and dissenting in part, joined by Kennedy, J., and Thomas, J.); Lawrence v. Texas, 539 U.S. 558, 605-06 (2003) (Thomas, J., dissenting).

(143.) Louis Henkin, Privacy and Autonomy, 74 COLUM. L. REV. 1410, 1422 (1974).

(144.) See, e.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65 (1973); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974); Hill v. Colorado, 530 U.S. 703, 716-17 (2000). Although note that the Court recently appears to be employing a concept of personal autonomy in preference to privacy. See, e.g., Lawrence v. Texas, 539 U.S. 558, 562, 574 (2003); see also, Martin Belsky, Privacy: The Rehnquist Court's Unmentionable "Right", 36 TULSA L.J. 43, 58 (2000).

(145.) See John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973). Cf. Philip B. Heymann & Douglas E. Barzelay, The Forest and the Trees: Roe v. Wade and its Critics, 53 B.U.L. REV. 765, 772 (1973) (arguing that the cases establish a sphere of interests called privacy, with the core of this sphere being the "right of the individual to make for himself ... the fundamental decisions that shape family life").

(146.) Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (cited with approval in Rochin v. California, 342 U.S. 165, 169 (1952)); see also Washington v. Glucksberg, 521 U.S. 702, 721 (1997); Kenyon Bunch, If Racial Desegregation, Then Same-Sex Marriage? Originalism and the Supreme Court's Fourteenth Amendment, 28 HARV. J.L. & PUB. POL'Y 781, 836-37 (2005).

(147.) Palko v. Connecticut, 302 U.S. 319, 325 (1934) (cited with approval in Rochin v. California, 342 U.S. 165, 169 (1952)); see also Bowers v. Hardwick, 478 U.S. 186, 191 (1986).

(148.) See, e.g., Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 793 (1986) (White, J., dissenting, joined by Rehnquist, J.); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 980 (1992) (1992) (Scalia, J., concurring and dissenting in part, joined by Rehnquist, C.J., White, J., and Thomas, J.). But compare Glucksberg, 521 U.S. 702, 727-28 (1997), where, in order to resist an expansion of the privacy right, Chief Justice Rehnquist, and Justices Scalia and Thomas, with what might be considered breath-taking hypocrisy, distinguished voluntary euthanasia from "deeply rooted" rights, including abortion.

(149.) Roe v. Wade, 410 U.S. 113, 174-77 (1973) (Rehnquist, J., dissenting).

(150.) Id.; see also Thornburgh, 476 U.S. at 793 (White, J., dissenting, joined by Rehnquist, J.). On the tradition of regulating abortion, see, for example, Kenyon Bunch, If Racial Desegregation, Then Same-Sex Marriage? Originalism and the Supreme Court's Fourteenth Amendment, 28 HARV. J.L. & PUB. POL'Y 781 (2005). See also early Supreme Court cases upholding laws prohibiting abortion, Hawker v. New York, 170 U.S. 189 (1898), and Hurwitz v. North, 271 U.S. 40 (1926), and the discussion of those cases in Roy Lucas, Forgotten Supreme Court Abortion Cases: Drs. Hawker & Hurwitz in the Dock and Defrocked, 30 PEPP. L. REV. 641 (2003).

(151.) See, e.g., John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 925 n.42 (1973); Norman Vieira, Roe and Doe: Substantive Due Process and the Right of Abortion, 25 HASTINGS L.J. 867, 873 (1974).

(152.) Roe, 410 U.S. 113, 159 (1973). See also Casey, 505 U.S. at 852; David Smolin, Fourteenth Amendment Unenumerated Rights Jurisprudence: An Essay in Response to Stenberg v. Carhart, 24 HARV. J.L. & PUB. POL'Y 815, 830 (2001).

(153.) Note, however, that Ronald Dworkin claims that it is preferable to locate the right in the First Amendment Free Exercise and Establishment clauses. See RONALD DWORKIN, LIFE'S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM (1994).

(154.) See, e.g., Richard Epstein, Substantive Due Process By Any Other Name: The Abortion Cases, 1973 SUP. CT. REV. 159 (1973); David Smolin, Fourteenth Amendment Unenumerated Rights Jurisprudence: An Essay in Response to Stenberg v. Carhart, 24 HARV. J.L. & PUB. POL'Y 815, 818 (2001). See also Moore v. City of East Cleveland, 431 U.S. 494, 544 (1977) (White, J., dissenting) ("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.").

(155.) See Anita L. Allen, The Proposed Equal Protection Fix for Abortion Law: Reflections on Citizenship, Gender, and the Constitution, 18 HARV. J.L. & PUB. POLICY 419 (1994-1995); Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291 (2007); Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375 (1985); Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261 (1992).

(156.) Donald H. Regan, Rewriting Roe v. Wade, 77 Mich. L. Rev. 1569 (1979).

(157.) See, e.g., CATHERINE MACKINNON, ROE V. WADE: A STUDY IN MALE IDEOLOGY IN ABORTION MORAL AND LEGAL PERSPECTIVES (1985); Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375 (1985); Cass Sunstein, Neutrality in Constitutional Law (with Special Reference to Pornography, Abortion, and Surrogacy), 92 COLUM. L. REV. 1 (1992).

(158.) Anita L. Allen, The Proposed Equal Protection Fix for Abortion Law: Reflections on Citizenship, Gender, and the Constitution, 18 HARV. J.L. & PUB. POLICY 419, 420 ( 1994-1995).

(159.) See supra notes 135-36 and accompanying text.

(160.) Roe v. Wade, 410 U.S. 113, 163 (1973).

(161.) Id.

(162.) Id. at 163-64. Note that viability is the point at which the fetus has the capacity to maintain life outside the uterus.

(163.) On this point, see Erwin Chemerinsky, Rationalizing the Abortion Debate: Legal Rhetoric and the Abortion Controversy, 31 BUFF. L. REV. 107, 124-25 (1982).

(164.) ARCHIBALD COX, THE ROLE OF THE SUPREME COURT IN AMERICAN GOVERNMENT 113 (1976).

(165.) Paul A. Freund, Storms over the Supreme Court, 69 A.B.A.J. 1474, 1480 (1983).

(166.) John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 943 (1973).

(167.) On this point, see GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 176 (1991).

(168.) Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 67-69 (1976).

(169.) See, e.g., Mulholland v Austl. Electoral Comm'n (2004) 220 CLR 181, 293 (Callinan, J.). Although, note that Justice Callinan's approach has been labeled "temporary acquiescence." Andrew Lynch, Dissent: The Rewards and Risks of Judicial Disagreement in the High Court of Australia, 27 MELB. U. L. REV. 724, 767 n.212 (2003).

(170.) Roe v. Wade, 410 U.S. 113, 174-177 (1973) (Rehnquist, J., dissenting); Doe v. Bolton, 410 U.S. 179, 221 (1973) (White, J., dissenting), 207 (Rehnquist, J., dissenting); City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 420 n.1 (1983).

(171.) Danforth, 428 U.S. at 67-69 (1976). In the case of minors, the law required a parent's consent. Id.; see also Bellotti v. Baird, 428 U.S. 132 (1979) (holding a similar Massachusetts law unconstitutional).

(172.) Danforth, 428 U.S. at 92 (White, J., concurring in part and dissenting in part).

(173.) Id. at 89 (Stewart, J., concurring).

(174.) See, e.g., Beal v. Doe, 432 U.S. 438 (1977); Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980).

(175.) See, e.g., H.L. v. Matheson, 450 U.S. 398 (1981); Hodgson v. Minnesota, 497 U.S. 417 (1990); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502 (1990).

(176.) City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416 (1983).

(177.) Id. at 419-20.

(178.) Id. at 453-54 (O'Connor, J., dissenting).

(179.) Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986).

(180.) Id. at 759.

(181.) Id. at 771-72.

(182.) Id. at 813-14 (White, J., dissenting, joined by Rehnquist, J.).

(183.) Id. at 785 (Burger, C.J., dissenting).

(184.) Id. at 788 (White, J., dissenting).

(185.) Id. at 789 (White, J., dissenting).

(186.) Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 790 (1986).(White, J., dissenting).

(187.) Id. at 828 (O'Connor, J., dissenting).

(188.) Webster v. Reprod. Health Servs., 492 U.S. 490 (1989).

(189.) JAN CRAWFORD GREENBERG, SUPREME CONFLICT: THE INSIDE STORY OF THE STRUGGLE FOR CONTROL OF THE UNITED STATES SUPREME COURT 80-81 (2007).

(190.) Webster, 492 U.S. at 521 (1989) (Opinion of the Court).

(191.) On the fractured nature of the decision, see, for example, A.I.L. Campbell, The Constitution and Abortion, 53 MOD. L. REV. 238 (1990); Walter Dellinger & Gene B. Sperling, Abortion and the Supreme Court: The Retreat from Roe v. Wade, 138 U. PA. L. REV. 83 (1989).

(192.) However, note Justice Scalia's attack on the implication more generally in his separate opinion. Webster, 492 U.S. at 532-37 (Scalia, J., concurring).

(193.) Id. at 518 (Opinion of the Court).

(194.) Id.

(195.) See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Kramer v. Union Free School District, 395 U.S. 621, 626-27 (1969); Shapiro v. Thomson, 394 U.S. 618, 634 (1969).

(196.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

(197.) Id. at 833, 877.

(198.) JAN CRAWFORD GREENBERG, SUPREME CONFLICT; THE INSIDE STORY OF THE STRUGGLE FOR CONTROL OF THE UNITED STATES SUPREME COURT 152 -4 (2007).

(199.) Id.

(200.) Casey, 505 U.S. at 878 (Opinion of the Court). Note that the Bush Administration explicitly asked the Court to overturn Roe. On this, and the Administration's deliberate attempt to stack the Court for this purpose, see generally JAN CRAWFORD GREENBERG, SUPREME CONFLICT; THE INSIDE STORY OF THE STRUGGLE FOR CONTROL OF THE UNITED STATES SUPREME COURT (2007).

(201.) Casey, 505 U.S. at 853.

(202.) Id. at 871 (Opinion of the Court) ("[T]he immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding.").

(203.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 877 (1992).

(204.) Id. at 833.

(205.) Id. at 878-79.

(206.) Id.

(207.) Id. at 878.

(208.) See Lawrence v. Texas, 539 U.S. 558, 588, 595 (2003) (Scalia, J., dissenting, joined by Rehnquist, C.J., and Thomas, J.); see also Martin H. Belsky, Privacy: The Rehnquist Court's Unmentionable "Right", 36 TULSA L.J. 43, 47-50 (2000); Caitlin E. Borgmann, Winter Count: Taking Stock of Abortion Rights After Casey and Carhart, 31 FORDHAM URB. L.J. 675, 676 (2004); Hilary Guenther, The Development of the Undue Burden Standard in Stenberg v. Carhart: Will Proposed RU-486 Legislation Survive?, 35 IND. L. REV. 1021, 1021 (2002); Jenny R. Kramer, Fourteenth Amendment Due Process--Compliance with Supreme Court Jurisprudence in the Post Roe and Casey Era, 11 SETON HALL CONST. L.J. 529, 531 (2001); Suzanne E. Skov, Stenberg v. Carhart: The Abortion Debate Goes Technical, 14 J. CONTEMP. LEGAL ISSUES 235, 235 (2004).

(209.) That is, the upholding of the various Pennsylvania laws. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 979 (1992) (Rehnquist, C.J., joined by White, J., Sealia, J., and Thomas, J., concurring in part and dissenting in part).

(210.) Id. at 944 (Rehnquist, C.J., joined by White, J., Sealia, J., and Thomas, J., concurring in part and dissenting in part).

(211.) Id. at 930 (Blackmun, J., concurring in part and dissenting in part); id. at 914 (Stevens, J., concurring in part and dissenting in part).

(212.) Id. at 987 (Scalia, J., joined by Rehnquist, C.J., White, J., and Thomas, J., concurring in part and dissenting in part). For scholarly criticisms of the undue burden standard, see, for example, Caitlin E. Borgmann, Winter Count: Taking Stock of Abortion Rights After Casey and Carhart, 31 FORDHAM URB. L.J. 675 (2004); Elizabeth A. Cavendish, Casey Reflections, 10 AM. U. J. GENDER SOC. POL'Y & L. 305 (2002); Hilary Guenther, The Development of the Undue Burden Standard in Stenberg v. Carhart: Will Proposed RU-486 Legislation Survive?, 35 IND. L. REV. 1021 (2002); Sabina Zenkich, X Marks the Sport While Casey Strikes Out: Two Controversial Abortion Decisions, 23 GOLDEN GATE U. L. REV. 1001 (1993).

(213.) The phrase is not overly dramatic in the context of the debate. See Webster v. Reprod. Health Sews., 492 U.S. 490, 538 (1989) (Blackmun, J., joined by Brennan, J., and Marshall, J., concurring and dissenting in part) ("I fear for the future. I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided. I fear for the integrity of, and public esteem for, this Court."); Andrew A. Adams, Aborting Roe: Jane Roe Questions the Viability of Roe v. Wade, 9 TEX. REV. L. & POL. 325, 329 (2005) (labeling Roe an "abomination"); Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 NOTRE DAME L. REV. 995, 1001 (2003) (claiming that Casey is '"[t]he Worst' worse, even, than its nearest rivals, Dred Scott v. Sandford, Roe v. Wade, and Stenberg v. Carhart").

(214.) See, e.g., Witte v. United States, 515 U.S. 389, 406 (1995) (Scalia, J., concurring, joined by Thomas, J.); United States v. Virginia, 518 U.S. 515, 569 (1996) (Scalia, J., dissenting); Stenberg, 530 U.S. 918, 952 (Rehnquist, C.J., dissenting); id. at 955 (Scalia, J., dissenting); id. at 980 (Thomas, J., dissenting, joined by Rehnquist, C.J., and Scalia, J.); Tennessee v. Lane, 541 U.S. 509, 556 (2004) (Scalia, J., dissenting); see also McCorvey v. Hill, 385 F.3d 846, 852-53 (5th Cir. 2004) (Jones, J., concurring).

(215.) See generally JAN CRAWFORD GREENBERG, SUPREME CONFLICT: THE INSIDE STORY OF THE STRUGGLE FOR CONTROL OF THE UNITED STATES SUPREME COURT (2007).

(216.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854 (1992) (Opinion of the Court) ("Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.").

(217.) An additional point could be made that in the context of the Supreme Court's history of overruling key constitutional doctrines, the stare decisis argument is disingenuous. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954) (overruling Plessy v. Ferguson, 163 U.S. 537 (1896)); West Coast Hotel Co. v. Parrish, 300 U.S 379 (1937) (overruling Lochner v. New York, 198 U.S. 45 (1905)).

(218.) Referred to in David A. Strauss, Abortion, Toleration, and Moral Uncertainty, 1992 SUP. CT. REV. I, 3 (1992).

(219.) Id. at 1-3; see also Casey, 505 U.S. at 852 (Opinion of the Court); id. 926-28 (Blackmun, J., concurring in part and dissenting in part).

(220.) Stenberg v. Carhart 530 U.S. 914 (2000).

(221.) Gonzales v. Carhart, 550 U.S. 124 (2007).

(222.) Stenberg, 530 U.S. at 956-57 (2000) (Kennedy, J., dissenting, joined by Rehnquist, C.J.).

(223.) Gonzales, 550 U.S. at 187 (Ginsburg, J., dissenting).

(224.) Id. at 172.

(225.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 844 (1992).

(226.) Roe v. Wade, 410 U.S. 113, 164-65 (1973) (Opinion of the Court). On the problems created by the trimester framework, see Casey, 505 U.S. at 845 (Opinion of the Court).

(227.) See, e.g., Webster v. Reprod. Health Servs., 492 U.S. 490, 518 (1989) (Rehnquist, C.J., joined by White, J., and Kennedy, J.); City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 459 (1983) (O'Connor, J., dissenting) (claiming that the trimester framework has "no justification in law or logic"); see also Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C.L. REV. 375, 381-82 (1985).

(228.) Casey, 505 U.S. at 872-75, 878 (Opinion of the Court); cf. id. at 914 (Stevens, J., concurring and dissenting in part).

(229.) Id. at 873; see also Caitlin E. Borgmann, Winter Count: Taking Stock of Abortion Rights After Casey and Carhart, 31 FORDHAM URB. L.J. 675, 682 (2004).

(230.) See City of Akron, 462 U.S. 416, 452 (O'Connor, J., dissenting).

(231.) Casey, 505 U.S. at 860, 870-71; see also Washington v. Glucksberg, 521 U.S. 702, 784 (1997) (Souter, J., concurring in the judgment). There was some authority for this apparently novel test; see, e.g., Maher v. Roe, 432 U.S. 464, 473-74 (1997) (Opinion of the Court); id. at 489 (Brennan, J., dissenting, joined by Blackmun, J., and Marshall, J.); Bellotti v. Baird, 443 U.S. 622, 640, 648 (1979).

(232.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 875 (1992).

(233.) Id. at 877.

(234.) Id.

(235.) Id. at 964-65 (Rehnquist, C.J., concurring and dissenting in part, joined by White, J., Scalia, J. and Thomas, J.); id. at 985-93 (Scalia, J., concurring and dissenting in part, joined by Rehnquist, C.J., White, J., and Thomas, J.); Caitlin E. Borgmann, Winter Count: Taking Stock of Abortion Rights After Casey and Carhart, 31 FORDHAM URB. L.J. 675, 687-89 (2004). Some of these criticisms appear to have been borne out. See Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187, 218-19 (6th Cir. 1997) (Boggs, J., dissenting); Hilary Guenther, The Development of the Undue Burden Standard in Stenberg v. Carhart: Will Proposed RU-486 Legislation Survive?, 35 IND. L. REV. 1021, 1021 (2002).

(236.) Casey, 505 U.S. at 987 (Scalia, J., concurring in part and dissenting in part).

(237.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 986 (1992)

(238.) Id. at 965 (Rehnquist, C.J., concurring and dissenting in part, joined by White, J., Scalia, J., and Thomas, J.).

(239.) Stenberg v. Carhart, 530 U.S. 914 (2000).

(240.) See, e.g., Hilary Guenther, The Development of the Undue Burden Standard in Stenberg v. Carhart: Will Proposed RU-486 Legislation Survive?, 35 IND. L. REV. 1021, 1033-34 (2002).

(241.) Stenberg, 530 U.S. at 937-38 (Opinion of the Court); id. at 950 (O'Connor, J., concurring). This was a relatively uncontroversial holding. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 79 (1976).

(242.) There may be a limited suggestion in Casey that the health exception applies prior to viability, but the point is not decided. See Casey, 505 U.S. 833, 880 (1992) (O'Connor, J., Kennedy, J., and Souter, J.); cf. Stenberg, 530 U.S. 914, 1011-13 (2000) (Thomas, J., dissenting, joined by Rehnquist, C.J., and Scalia, J.). For additional commentary, see also Caitlin E. Borgmann, Winter Count: Taking Stock of Abortion Rights After Casey and Carhart, 31 FORDHAM URB. L.J. 675, 700 (2004); Hilary Guenther, The Development of the Undue Burden Standard in Stenberg v. Carhart: Will Proposed RU-486 Legislation Survive?, 35 IND. L. REV. 1021, 1028 (2002).

(243.) Stenberg, 530 U.S. at 1011 n.20 (Thomas, J., dissenting, joined by Rehnquist, C.J., and Scalia, J.); see also Aimee Gauthier, Stenberg v. Carhart: Have the States Lost Their Power to Regulate Abortion?, 36 NEW. ENG. L. REV. 625, 666 (2002).

(244.) Stenberg, 530 U.S. at 930.

(245.) Gonzales v. Carhart, 550 U.S. 124, 158 (2007) (Opinion of the Court) (emphasis added).

(246.) Id. at 166 (emphasis added).

(247.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 836, 860 (1992); see also Washington v. Glucksberg, 521 U.S. 702, 784 (1997) (Souter, J., concurring in judgment).

(248.) Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 794 (1986) (White, J., dissenting, joined by Rehnquist, J.); Casey, 505 U.S. 833, 989 n.5 (1992) (Scalia, J., concurring in part and dissenting in part, joined by Rehnquist, C.J., White, J., and Thomas, J.). For a suggestion that Justice Blackmun regarded viability as an arbitrary point while drafting the Roe opinion, see, for example, Roy Lucas, Forgotten Supreme Court Abortion Cases: Drs. Hawker & Hurwitz in the Dock and Defrocked 30 PEPP. L. REV. 641, 665 (2003).

(249.) See City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 461 (1983) (O'Connor, J., dissenting, joined by White, J., and Rehnquist, J.). See also Thornburgh, 476 U.S. 747, 795 (1986) (White, J., dissenting, joined by Rehnquist, J.).

(250.) Casey, 505 U.S. at 870.

(251.) If any such point was traditionally recognized, it was "quickening." See Roe v. Wade, 410 U.S. 113, 132-39 (1973).

(252.) Casey, 505 U.S. 833, 870 (Opinion of the Court); id. at 929 30 (Blackmun, J., concurring and dissenting in part); see also Roe, 410 U.S. 113, 163 (1973). For criticism of the failure to adequately justify the division, see PHILIP BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION 159 (1982), and John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 924 (1973). Note that the joint opinion did advance a rather unconvincing secondary justification for retaining viability, stating that "there is no line other than viability which is more workable." Casey, 505 U.S. at 870.

(253.) Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 64 (1976); Colautti v. Franklin, 439 U.S. 379, 387-88 (1979); Webster v. Reprod. Health Servs., 492 U.S. 490, 519-20 (Renhquist, C.J., joined by White, J., and Kennedy, J.); id. at 525 (O'Connor, J.); see also Bruce Ching, Inverting the Viability Test for Abortion Law, 22 WOMEN'S RTS. L. REP. 37, 44 (2000).

(254.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 869 (1992).

(255.) Id. at 860; see also Bruce Ching, Inverting the Viability Test for Abortion Law, 22 WOMEN'S RTS. L. REP. 37, 41 (2000).

(256.) Certainly, the following passage would need to be reconsidered: "The viability line also has, as a practical matter, an element of fairness. In some broad sense it might be said that a woman who fails to act before viability has consented to the State's intervention on behalf of the developing chiId." Casey, 505 U.S. at 870 (Opinion of the Court).

(257.) Bruce Ching, Inverting the Viability Test for Abortion Law, 22 WOMEN'S RTS. L. REP. 37, 45 (2000).

(258.) See supra notes 174-77 and accompanying text.

(259.) Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 813-14 (1986) (White, J., dissenting, joined by Rehnquist, J.).

(260.) See Richard Stith, Location and Life: How Stenberg v. Carhart Undercut Roe v. Wade, 9 WM. & MARY J. WOMEN & L. 255, 265-66 (2003).

(261.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 845 (1992) (Opinion of the Court).

(262.) See generally Stone, Interpretive Disagreement, supra note 15, at 44 (2005).

(263.) Michael Detmold, The New Constitutional Law, 16 SYDNEY L. REV. 228, 248 (1994).

(264.) This is listed as an argument put against an Australian bill of rights in GEORGE WILLIAMS, A BILL OF RIGHTS FOR AUSTRALIA? (2000).

(265.) CHARLES BLACK, STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW 13 (1969) (arguing that the structural method "frees us to talk sense" when compared with the textual method, which "in some cases, forces us to blur the focus and talk evasively").

(266.) See supra notes 24-56 and 139-80 and accompanying text.

ZOE ROBINSON, Assistant Professor of Law, DePaul University College of Law. J.D., The University of Chicago Law School; LL.B. (Hons), The Australian National University College of Law; B.A., The Australian National University; B.Mus. (Perf.), Queensland Conservatorium, Griffith University. The author is indebted to David Strauss, Tom Ginsburg, Adrienne Stone, and Benjamin May for helpful comments and discussions. A special thanks to the editors of the Washington University Global Studies Law Review for their excellent editing, especially Charlena Aumiller, whose comments and close editing improved the quality of this Article immensely.
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Title Annotation:III. The United States Implied Right to an Abortion through Conclusion, with footnotes, p. 118-150
Author:Robinson, Zoe
Publication:Washington University Global Studies Law Review
Date:Jan 1, 2012
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