Reasoning From Precedent and the Right to Privacy

Christopher Hurtado —  February 18, 2010 — Leave a comment
Reasoning From Precedent and the Right to Privacy | Christopher Hurtado
Are the justices in the plurality successful in distinguishing the cases in which precedent should be followed from the cases in which precedent should be overruled? Why or why not? How do they draw the distinction?

In distinguishing the cases in which precedent should be followed from the cases in which precedent should be overruled, the justices in the plurality argue that precedent should be followed unless the rule has proved to be intolerable simply in defying practical workability; whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; or whether facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification.

How does MacKinnon’s approach differ from the Court’s in Roe v. Wade?

MacKinnon’s approach differs from the Court’s in Roe v. Wade in that her approach is not based on a right to privacy, but rather on the equal protection clause of the Fourteenth Amendment. She asserts that women are uniquely discriminated against in reproductive matters. She argues that since only a woman can have an abortion prohibiting her from doing so is sexual discrimination. She further argues that forced motherhood is akin to black African slavery in pre-Civil War America. Additionally, she contends that denial of medicaid funding for abortion is also violation of equal protection of law.

Christopher Hurtado

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Christopher Hurtado is President and CEO of Linguistic Solutions and Adjunct Instructor of Philosophy and Political Science at Utah Valley University. He holds a BA in Middle East Studies/Arabic and Philosophy and an MA in Nonproliferation and Terrorism Studies. He coauthored Vacation Spanish: A Survival Guide for Mexico, the Caribbean, Central & South America. He is married to children's book author and homeschool mom, Alysia Gonzalez. Together they have nine children. They are active in their church and in their community.

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