Solution and Answer Guide: Jennings, Twomey, and Greene, Anderson’s Business Law & The Legal Environment, 25e, 2027, 9798214055763; Chapter 1: The Nature
and Sources of Law
Solution and Answer Guide
JENNINGS, TWOMEY, AND GREENE, ANDERSON’S BUSINESS LAW & THE LEGAL ENVIRONMENT ,
25E, 2027, 9798214055763; CHAPTER 1: THE NATURE AND SOURCES OF LAW
TABLE OF CONTENTS
Review Question Solutions...........................................................................................1
Review Case Solutions................................................................................................10
REVIEW QUESTION SOLUTIONS
1. The Family Educational Rights and Privacy Act (FERPA) protects students’ rights to keep their academic
records private. What duties are imposed and upon whom because of this protection of rights? Discuss the
relationship between rights and duties.
Solution:
The right is the student’s and is one that allows students to have their grades remain private. The schools
have a duty to ensure grades are not released to third parties without permission of the student.
2. List the sources of law.
Solution:
Statutory law, such as ordinances, case law, precedent, common law, uniform state laws, constitutions,
administrative regulations, and treaties.
3. Jazwares’ Squishmallows (part toy and part plush pillow) gained popularity during COVID as a quasi-
comfort pet. Jazwares has filed 36 lawsuits against several copycat producers of similar pillow-toys.
Jazwares’ biggest suit so far involves Build-A-Bear’s Skoosherz. Skoosherz are plush pillows with a shape
similar to Squishmallows but having human faces. What areas of law are involved in Jazwares’ suits? What
remedies could Jazwares obtain?
Solution:
Federal copyright law would apply. There are property rights being protected. Like the example of the
Louboutin red-sole shoes, the real remedy needed is an injunction to stop the production of toys that are a
copy of a copyrighted design.
4. Classify the following laws as substantive or procedural:
a. A law that requires public schools to hold a hearing before a student is expelled.
b. A law that establishes a maximum interest rate for credit transactions of 24%.
c. A law that provides employee leave for the birth or adoption of a child for up to 12 weeks.
d. A law that requires the county assessor to send four notices of taxes due and owing before a lien can be
filed (attached) to the property.
Solution:
a. Procedural
b. Substantive
© 2027 Cengage Learning, Inc. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly 1
accessible website, in whole or in part.
,Solution and Answer Guide: Jennings, Twomey, and Greene, Anderson’s Business Law & The Legal Environment, 25e, 2027, 9798214055763; Chapter 1: The Nature
and Sources of Law
c. Substantive
d. Procedural
5. What do uniform laws accomplish? Why do states adopt them? Give an example of a uniform law.
Solution:
Law is not uniform throughout the United States because of a historical accident: the United States was
never a single nation. As of now, there are 50 state governments and a federal government within the area
we call the United States. This means that 51 political bodies have the freedom to make their own law
(provided constitutional rights are not violated). As a practical matter, this has not resulted in 51 different
sets of rules of law because the common law has tended to dominate the legal system of most communities.
As stated in the text, the uniform laws have been a “nationalizing” force. It is likely that among areas that
are truly “in business,” there will be greater uniformity in the near future. In contrast, as to other matters
where the need for uniformity is not as great, we can expect local variations in the law, encouraged by local
economic and cultural differences. The Uniform Commercial Code and Uniform Partnership Act are
examples of uniform laws.
6. Cindy Nathan is a student at West University. While she was in her 9:00 A.M. anthropology class, campus
security entered her dorm room and searched all areas, including her closet and drawers. When Cindy
returned to her room and discovered what had happened, she complained to the dorm’s senior resident. The
senior resident said that this was the university’s property and that Cindy had no right of privacy. Is the
senior resident’s statement correct? Is there a right of privacy in a dorm room?
Solution:
Several issues should be raised:
a. Terms and conditions of dorm residency
b. Access issues and safety issues
There can be a right of privacy in a dorm room subject to disclosed university policies, processes, and
procedures. Just as landlords have access for emergencies, the university could have some limited access
without breaching privacy.
7. Professor Lucas Phelps sent the following e-mail to Professor Marlin Jones: “I recently read the opinion
piece you wrote for the Sacramento Bee on affirmative action. Your opinion is incorrect, your reasoning
and analysis are poor, and I am embarrassed that you are a member of the faculty here at Cal State
Yolinda.” Professor Jones forwarded the note from Professor Phelps to the provost of the university and
asked that Professor Phelps be disciplined for using the university e-mail system for harassment purposes.
Professor Phelps objected when the provost contacted him: “He had no right to forward that e-mail to you.
That was private correspondence. And you have no right of access to my e-mail. I have privacy rights.” Do
you agree with Professor Phelps? Was there a breach of privacy?
Solution:
Professor Phelps is wrong. His musings on his employer’s e-mail system are not private. There is no
expectation of privacy and anything written can be reviewed by his employer.
8. Under what circumstances would a court disregard precedent?
Solution:
Courts could disregard precedent when facts differ, circumstances change and social mores differ. Cases
are examined for similarities as well as distinguishing factors. Courts don’t follow precedent when
differences exist. This question provides an opportunity to discuss the Dobbs v. Jackson Women’s Health
© 2027 Cengage Learning, Inc. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly 2
accessible website, in whole or in part.
,Solution and Answer Guide: Jennings, Twomey, and Greene, Anderson’s Business Law & The Legal Environment, 25e, 2027, 9798214055763; Chapter 1: The Nature
and Sources of Law
Organization, 597 U.S. 215 (2022) when the U.S. Supreme Court overturned Roe v. Wade, 410 U.S. 113,
Planned Parenthood of Southeastern Pennsylvania v. Casey—the precedents on the right to an abortion.
Mississippi passed a statute that prohibited abortions after the 15-week gestational period. Dobbs
challenged the constitutionality of the statute, given U.S. Supreme Court precedent that held the
Constitution protected the right to an abortion. In reversing the precedent, the court held no such right
exists in the Constitution and the issue of abortion was returned to the states for the people to decide the
legality of and parameters for an abortion.
The court’s summary is reproduced in part below and provides an analysis of why the court was reversing
its own precedent.
Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority
to regulate abortion is returned to the people and their elected representatives.
(a) The critical question is whether the Constitution, properly understood, confers a right to obtain an
abortion. Casey’s controlling opinion skipped over that question and reaffirmed Roe solely on the basis
of stare decisis. A proper application of stare decisis, however, requires an assessment of the strength
of the grounds on which Roe was based. The Court therefore turns to the question that the Casey
plurality did not consider.
(1) First, the Court reviews the standard that the Court’s cases have used to determine whether the
Fourteenth Amendment’s reference to “liberty” protects a particular right. The Constitution makes
no express reference to a right to obtain an abortion, but several constitutional provisions have
been offered as potential homes for an implicit constitutional right. Roe held that the abortion right
is part of a right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth
Amendments. The Casey Court grounded its decision solely on the theory that the right to obtain
an abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause.
Others have suggested that support can be found in the Fourteenth Amendment’s Equal Protection
Clause, but that theory is squarely foreclosed by the Court’s precedents, which establish that a
State’s regulation of abortion is not a sex-based classification and is thus not subject to the
heightened scrutiny that applies to such classifications. See Geduldig v. Aiello, 417 U.S. 484, 496,
n. 20, 94 S.Ct. 2485, 41 L.Ed.2d 256; Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263,
273–274, 113 S.Ct. 753, 122 L.Ed.2d 34. Rather, regulations and prohibitions of abortion are
governed by the same standard of review as other health and safety measures.
(2) Next, the Court examines whether the right to obtain an abortion is rooted in the Nation’s history
and tradition and whether it is an essential component of “ordered liberty.” The Court finds that
the right to abortion is not deeply rooted in the Nation’s history and tradition. The underlying
theory on which Casey rested—that the Fourteenth Amendment’s Due Process Clause provides
substantive, as well as procedural, protection for “liberty”—has long been controversial. The
Court’s decisions have held that the Due Process Clause protects two categories of substantive
rights—those rights guaranteed by the first eight Amendments to the Constitution and those rights
deemed fundamental that are not mentioned anywhere in the Constitution. In deciding whether a
right falls into either of these categories, the question is whether the right is “deeply rooted in [our]
history and tradition” and whether it is essential to this Nation’s “scheme of ordered liberty.”
Timbs v. Indiana, 586 U.S. ––––, ––––, 139 S.Ct. 682, 686, 203 L.Ed.2d 11 (internal quotation
marks omitted). The term “liberty” alone provides little guidance. Thus, historical inquiries are
essential whenever the Court is asked to recognize a new component of the “liberty” interest
protected by the Due Process Clause. In interpreting what is meant by “liberty,” the Court must
guard against the natural human tendency to confuse what the Fourteenth Amendment protects
with the Court’s own ardent views about the liberty that Americans should enjoy. For this reason,
the Court has been “reluctant” to recognize rights that are not mentioned in the Constitution.
Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261.
© 2027 Cengage Learning, Inc. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly 3
accessible website, in whole or in part.
,Solution and Answer Guide: Jennings, Twomey, and Greene, Anderson’s Business Law & The Legal Environment, 25e, 2027, 9798214055763; Chapter 1: The Nature
and Sources of Law
Guided by the history and tradition that map the essential components of the Nation’s concept of
ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an
abortion. Until the latter part of the 20th century, there was no support in American law for a
constitutional right to obtain an abortion. No state constitutional provision had recognized such a
right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had
any scholarly treatise. Indeed, abortion had long been a crime in every single State. At common
law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and
could have very serious consequences at all stages. American law followed the common law until
a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time
the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at
any stage of pregnancy. This consensus endured until the day Roe was decided. Roe either ignored
or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.
Respondents’ argument that this history does not matter flies in the face of the standard the Court
has applied in determining whether an asserted right that is nowhere mentioned in the Constitution
is nevertheless protected by the Fourteenth Amendment. The Solicitor General repeats Roe’s claim
that it is “doubtful ... abortion was ever firmly established as a common-law crime even with
respect to the destruction of a quick fetus,” 410 U.S. at 136, 93 S.Ct. 705, but the great common-
law authorities—Bracton, Coke, Hale, and Blackstone—all wrote that a post-quickening abortion
was a crime. Moreover, many authorities asserted that even a pre-quickening abortion was
“unlawful” and that, as a result, an abortionist was guilty of murder if the woman died from the
attempt. The Solicitor General suggests that history supports an abortion right because of the
common law’s failure to criminalize abortion before quickening, but the insistence on quickening
was not universal, see Mills v. Commonwealth, 13 Pa. 631, 633; State v. Slagle, 83 N.C. 630, 632,
and regardless, the fact that many States in the late 18th and early 19th century did not criminalize
pre-quickening abortions does not mean that anyone thought the States lacked the authority to do
so.
Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters
of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right.
Roe termed this a right to privacy, 410 U.S. at 154, 93 S.Ct. 705, and Casey described it as the
freedom to make “intimate and personal choices” that are “central to personal dignity and
autonomy,” 505 U.S. at 851, 112 S.Ct. 2791. Ordered liberty sets limits and defines the boundary
between competing interests. Roe and Casey each struck a particular balance between the interests
of a woman who wants an abortion and the interests of what they termed “potential life.” Roe, 410
U.S. at 150, 93 S.Ct. 705; Casey, 505 U.S. at 852, 112 S.Ct. 2791. But the people of the various
States may evaluate those interests differently. The Nation’s historical understanding of ordered
liberty does not prevent the people’s elected representatives from deciding how abortion should be
regulated.
(3) Finally, the Court considers whether a right to obtain an abortion is part of a broader entrenched
right that is supported by other precedents. The Court concludes the right to obtain an abortion
cannot be justified as a component of such a right. Attempts to justify abortion through appeals to
a broader right to autonomy and to define one’s “concept of existence” prove too much. Casey,
505 U.S. at 851, 112 S.Ct. 2791. Those criteria, at a high level of generality, could license
fundamental rights to illicit drug use, prostitution, and the like. What sharply distinguishes the
abortion right from the rights recognized in the cases on which Roe and Casey rely is something
that both those decisions acknowledged: Abortion is different because it destroys what Roe termed
“potential life” and what the law challenged in this case calls an “unborn human being.” None of
the other decisions cited by Roe and Casey involved the critical moral question posed by abortion.
© 2027 Cengage Learning, Inc. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly 4
accessible website, in whole or in part.
and Sources of Law
Solution and Answer Guide
JENNINGS, TWOMEY, AND GREENE, ANDERSON’S BUSINESS LAW & THE LEGAL ENVIRONMENT ,
25E, 2027, 9798214055763; CHAPTER 1: THE NATURE AND SOURCES OF LAW
TABLE OF CONTENTS
Review Question Solutions...........................................................................................1
Review Case Solutions................................................................................................10
REVIEW QUESTION SOLUTIONS
1. The Family Educational Rights and Privacy Act (FERPA) protects students’ rights to keep their academic
records private. What duties are imposed and upon whom because of this protection of rights? Discuss the
relationship between rights and duties.
Solution:
The right is the student’s and is one that allows students to have their grades remain private. The schools
have a duty to ensure grades are not released to third parties without permission of the student.
2. List the sources of law.
Solution:
Statutory law, such as ordinances, case law, precedent, common law, uniform state laws, constitutions,
administrative regulations, and treaties.
3. Jazwares’ Squishmallows (part toy and part plush pillow) gained popularity during COVID as a quasi-
comfort pet. Jazwares has filed 36 lawsuits against several copycat producers of similar pillow-toys.
Jazwares’ biggest suit so far involves Build-A-Bear’s Skoosherz. Skoosherz are plush pillows with a shape
similar to Squishmallows but having human faces. What areas of law are involved in Jazwares’ suits? What
remedies could Jazwares obtain?
Solution:
Federal copyright law would apply. There are property rights being protected. Like the example of the
Louboutin red-sole shoes, the real remedy needed is an injunction to stop the production of toys that are a
copy of a copyrighted design.
4. Classify the following laws as substantive or procedural:
a. A law that requires public schools to hold a hearing before a student is expelled.
b. A law that establishes a maximum interest rate for credit transactions of 24%.
c. A law that provides employee leave for the birth or adoption of a child for up to 12 weeks.
d. A law that requires the county assessor to send four notices of taxes due and owing before a lien can be
filed (attached) to the property.
Solution:
a. Procedural
b. Substantive
© 2027 Cengage Learning, Inc. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly 1
accessible website, in whole or in part.
,Solution and Answer Guide: Jennings, Twomey, and Greene, Anderson’s Business Law & The Legal Environment, 25e, 2027, 9798214055763; Chapter 1: The Nature
and Sources of Law
c. Substantive
d. Procedural
5. What do uniform laws accomplish? Why do states adopt them? Give an example of a uniform law.
Solution:
Law is not uniform throughout the United States because of a historical accident: the United States was
never a single nation. As of now, there are 50 state governments and a federal government within the area
we call the United States. This means that 51 political bodies have the freedom to make their own law
(provided constitutional rights are not violated). As a practical matter, this has not resulted in 51 different
sets of rules of law because the common law has tended to dominate the legal system of most communities.
As stated in the text, the uniform laws have been a “nationalizing” force. It is likely that among areas that
are truly “in business,” there will be greater uniformity in the near future. In contrast, as to other matters
where the need for uniformity is not as great, we can expect local variations in the law, encouraged by local
economic and cultural differences. The Uniform Commercial Code and Uniform Partnership Act are
examples of uniform laws.
6. Cindy Nathan is a student at West University. While she was in her 9:00 A.M. anthropology class, campus
security entered her dorm room and searched all areas, including her closet and drawers. When Cindy
returned to her room and discovered what had happened, she complained to the dorm’s senior resident. The
senior resident said that this was the university’s property and that Cindy had no right of privacy. Is the
senior resident’s statement correct? Is there a right of privacy in a dorm room?
Solution:
Several issues should be raised:
a. Terms and conditions of dorm residency
b. Access issues and safety issues
There can be a right of privacy in a dorm room subject to disclosed university policies, processes, and
procedures. Just as landlords have access for emergencies, the university could have some limited access
without breaching privacy.
7. Professor Lucas Phelps sent the following e-mail to Professor Marlin Jones: “I recently read the opinion
piece you wrote for the Sacramento Bee on affirmative action. Your opinion is incorrect, your reasoning
and analysis are poor, and I am embarrassed that you are a member of the faculty here at Cal State
Yolinda.” Professor Jones forwarded the note from Professor Phelps to the provost of the university and
asked that Professor Phelps be disciplined for using the university e-mail system for harassment purposes.
Professor Phelps objected when the provost contacted him: “He had no right to forward that e-mail to you.
That was private correspondence. And you have no right of access to my e-mail. I have privacy rights.” Do
you agree with Professor Phelps? Was there a breach of privacy?
Solution:
Professor Phelps is wrong. His musings on his employer’s e-mail system are not private. There is no
expectation of privacy and anything written can be reviewed by his employer.
8. Under what circumstances would a court disregard precedent?
Solution:
Courts could disregard precedent when facts differ, circumstances change and social mores differ. Cases
are examined for similarities as well as distinguishing factors. Courts don’t follow precedent when
differences exist. This question provides an opportunity to discuss the Dobbs v. Jackson Women’s Health
© 2027 Cengage Learning, Inc. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly 2
accessible website, in whole or in part.
,Solution and Answer Guide: Jennings, Twomey, and Greene, Anderson’s Business Law & The Legal Environment, 25e, 2027, 9798214055763; Chapter 1: The Nature
and Sources of Law
Organization, 597 U.S. 215 (2022) when the U.S. Supreme Court overturned Roe v. Wade, 410 U.S. 113,
Planned Parenthood of Southeastern Pennsylvania v. Casey—the precedents on the right to an abortion.
Mississippi passed a statute that prohibited abortions after the 15-week gestational period. Dobbs
challenged the constitutionality of the statute, given U.S. Supreme Court precedent that held the
Constitution protected the right to an abortion. In reversing the precedent, the court held no such right
exists in the Constitution and the issue of abortion was returned to the states for the people to decide the
legality of and parameters for an abortion.
The court’s summary is reproduced in part below and provides an analysis of why the court was reversing
its own precedent.
Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority
to regulate abortion is returned to the people and their elected representatives.
(a) The critical question is whether the Constitution, properly understood, confers a right to obtain an
abortion. Casey’s controlling opinion skipped over that question and reaffirmed Roe solely on the basis
of stare decisis. A proper application of stare decisis, however, requires an assessment of the strength
of the grounds on which Roe was based. The Court therefore turns to the question that the Casey
plurality did not consider.
(1) First, the Court reviews the standard that the Court’s cases have used to determine whether the
Fourteenth Amendment’s reference to “liberty” protects a particular right. The Constitution makes
no express reference to a right to obtain an abortion, but several constitutional provisions have
been offered as potential homes for an implicit constitutional right. Roe held that the abortion right
is part of a right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth
Amendments. The Casey Court grounded its decision solely on the theory that the right to obtain
an abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause.
Others have suggested that support can be found in the Fourteenth Amendment’s Equal Protection
Clause, but that theory is squarely foreclosed by the Court’s precedents, which establish that a
State’s regulation of abortion is not a sex-based classification and is thus not subject to the
heightened scrutiny that applies to such classifications. See Geduldig v. Aiello, 417 U.S. 484, 496,
n. 20, 94 S.Ct. 2485, 41 L.Ed.2d 256; Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263,
273–274, 113 S.Ct. 753, 122 L.Ed.2d 34. Rather, regulations and prohibitions of abortion are
governed by the same standard of review as other health and safety measures.
(2) Next, the Court examines whether the right to obtain an abortion is rooted in the Nation’s history
and tradition and whether it is an essential component of “ordered liberty.” The Court finds that
the right to abortion is not deeply rooted in the Nation’s history and tradition. The underlying
theory on which Casey rested—that the Fourteenth Amendment’s Due Process Clause provides
substantive, as well as procedural, protection for “liberty”—has long been controversial. The
Court’s decisions have held that the Due Process Clause protects two categories of substantive
rights—those rights guaranteed by the first eight Amendments to the Constitution and those rights
deemed fundamental that are not mentioned anywhere in the Constitution. In deciding whether a
right falls into either of these categories, the question is whether the right is “deeply rooted in [our]
history and tradition” and whether it is essential to this Nation’s “scheme of ordered liberty.”
Timbs v. Indiana, 586 U.S. ––––, ––––, 139 S.Ct. 682, 686, 203 L.Ed.2d 11 (internal quotation
marks omitted). The term “liberty” alone provides little guidance. Thus, historical inquiries are
essential whenever the Court is asked to recognize a new component of the “liberty” interest
protected by the Due Process Clause. In interpreting what is meant by “liberty,” the Court must
guard against the natural human tendency to confuse what the Fourteenth Amendment protects
with the Court’s own ardent views about the liberty that Americans should enjoy. For this reason,
the Court has been “reluctant” to recognize rights that are not mentioned in the Constitution.
Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261.
© 2027 Cengage Learning, Inc. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly 3
accessible website, in whole or in part.
,Solution and Answer Guide: Jennings, Twomey, and Greene, Anderson’s Business Law & The Legal Environment, 25e, 2027, 9798214055763; Chapter 1: The Nature
and Sources of Law
Guided by the history and tradition that map the essential components of the Nation’s concept of
ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an
abortion. Until the latter part of the 20th century, there was no support in American law for a
constitutional right to obtain an abortion. No state constitutional provision had recognized such a
right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had
any scholarly treatise. Indeed, abortion had long been a crime in every single State. At common
law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and
could have very serious consequences at all stages. American law followed the common law until
a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time
the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at
any stage of pregnancy. This consensus endured until the day Roe was decided. Roe either ignored
or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.
Respondents’ argument that this history does not matter flies in the face of the standard the Court
has applied in determining whether an asserted right that is nowhere mentioned in the Constitution
is nevertheless protected by the Fourteenth Amendment. The Solicitor General repeats Roe’s claim
that it is “doubtful ... abortion was ever firmly established as a common-law crime even with
respect to the destruction of a quick fetus,” 410 U.S. at 136, 93 S.Ct. 705, but the great common-
law authorities—Bracton, Coke, Hale, and Blackstone—all wrote that a post-quickening abortion
was a crime. Moreover, many authorities asserted that even a pre-quickening abortion was
“unlawful” and that, as a result, an abortionist was guilty of murder if the woman died from the
attempt. The Solicitor General suggests that history supports an abortion right because of the
common law’s failure to criminalize abortion before quickening, but the insistence on quickening
was not universal, see Mills v. Commonwealth, 13 Pa. 631, 633; State v. Slagle, 83 N.C. 630, 632,
and regardless, the fact that many States in the late 18th and early 19th century did not criminalize
pre-quickening abortions does not mean that anyone thought the States lacked the authority to do
so.
Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters
of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right.
Roe termed this a right to privacy, 410 U.S. at 154, 93 S.Ct. 705, and Casey described it as the
freedom to make “intimate and personal choices” that are “central to personal dignity and
autonomy,” 505 U.S. at 851, 112 S.Ct. 2791. Ordered liberty sets limits and defines the boundary
between competing interests. Roe and Casey each struck a particular balance between the interests
of a woman who wants an abortion and the interests of what they termed “potential life.” Roe, 410
U.S. at 150, 93 S.Ct. 705; Casey, 505 U.S. at 852, 112 S.Ct. 2791. But the people of the various
States may evaluate those interests differently. The Nation’s historical understanding of ordered
liberty does not prevent the people’s elected representatives from deciding how abortion should be
regulated.
(3) Finally, the Court considers whether a right to obtain an abortion is part of a broader entrenched
right that is supported by other precedents. The Court concludes the right to obtain an abortion
cannot be justified as a component of such a right. Attempts to justify abortion through appeals to
a broader right to autonomy and to define one’s “concept of existence” prove too much. Casey,
505 U.S. at 851, 112 S.Ct. 2791. Those criteria, at a high level of generality, could license
fundamental rights to illicit drug use, prostitution, and the like. What sharply distinguishes the
abortion right from the rights recognized in the cases on which Roe and Casey rely is something
that both those decisions acknowledged: Abortion is different because it destroys what Roe termed
“potential life” and what the law challenged in this case calls an “unborn human being.” None of
the other decisions cited by Roe and Casey involved the critical moral question posed by abortion.
© 2027 Cengage Learning, Inc. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly 4
accessible website, in whole or in part.
