"Although lifestyle freedoms are not expressly safeguarded, we believe that the spirit of the Constitution operates to protect them," wrote Wilkinson and White. "We are aware of the historic dangers that attend judicial departure from specific constitutional mandates. Judging by inference from constitutional provisions, or from the Constitution as a whole, has plunged the Court into difficulties in the past. Notwithstanding textual and institutional difficulties, judicial recognition of lifestyle freedoms as due process liberties better serves the basic purposes of the Constitution than dismissal of them."
Wilkinson, to be sure, expressly disagreed with his co-author's analysis of whether the "spirit of the Constitution" might harbor a right to homosexual activity. "Mr. Wilkinson would uphold the state's interest in the preservation of the traditional family," the authors wrote, "Mr. White would desire stronger empirical proof that the state interest is truly put in jeopardy by homosexual practices among consenting adults."
But Wilkinson's and White's joint analysis of abortion is eye-opening. "The right to procreate also suggests a right not to procreate," they wrote. "Only in Roe v. Wade, however, did the right not to procreate gain firm recognition as a lifestyle decision. In upholding the right to abortion, the Court recognized that an unwanted child might create a 'distressful life and future,' with psychological, physical and financial burdens for the woman concerned. Although Roe has been severely criticized, the decision is not an illogical extension of the Court's earlier decisions in matters of intimate association. Indeed, if procreation is labeled a constitutional right, it may imply a full freedom of negative choice, in the same sense that marriage implies a full choice not to marry, voting not to vote and travel to remain at home. For the constitutional right of procreation can hardly be fundamental if one is compelled to exercise it."
Where does Wilkinson stand on Roe today? Some conservatives might optimistically point to his 1998 concurrence upholding Virginia's parental notification law. But it doesn't criticize Roe. Virginia's law, Wilkinson wrote, "imposes only the mildest form of regulation upon the fundamental constitutional right to terminate an unwanted pregnancy. ... If the Act were a consent statute or otherwise imposed more onerous burdens on the abortion right, we would have a very different case."
If the list of those President Bush would risk with "deistic power" is long enough to include Judge Wilkinson, it needs to be shorter.