Justice William Rehnquist
Dissent in Roe v. Wade

 

William Rehnquist was appointed Associate Justice of the U.S. Supreme Court in 1971, became Chief Justice in 1986, serving in that capacity until his death in 2005. He and Justice White were the only two Justices to dissent in Roe and Doe. In addition to writing his own dissent, Justice Rehnquist concurred in that authored by Justice White.

In his dissent, Justice Rehnquist objected to the majority's reasoning on several grounds.

Lack of Evidence of Legitimate Plaintiff

He first argued that there was no plaintiff in the case to whom the Court's ruling could apply. In order for the Court to rule that states could not regulate abortion during the first trimester, it required the presence of a plaintiff who was in her first trimester of pregnancy at some point during the time her case was being tried. There was no evidence that the plaintiff "Jane Roe" had done so while in her first trimester, thus the Court's ruling had no application to the actual case before it.

The Court uses ["Roe's"] complaint against the Texas statute as a fulcrum for deciding that States may impose virtually no restrictions on medical abortions performed during the first trimester of pregnancy. In deciding such a hypothetical lawsuit, the Court departs from the longstanding admonition that it should never "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied."

Abortion is Not a Private Act

Even if there were a legitimate plaintiff in the case, Rehnquist continued, "I would reach a conclusion opposite to that reached by the Court." The Court had identified a woman's "right to abortion" under the more general "right to privacy" that it had discovered in the Constitution in previous cases. However, said Rehnquist, the Texas stature prohibited a medical abortion performed by a licensed physician on some client. "A transaction such as this is hardly 'private' in the ordinary usage of the word."

Court Unclear on Where Right to Privacy is Found in the Constitution

Was it "private" in the constitutional usage of the word? The problem, of course, was that the Constitution never used the word at all. Roe's majority opinion, authored by Justice Harry Blackmun, was notably vague on the question as to where exactly the right to privacy could be located in the Constitution: it referred to various amendments but never indicated with any precision where the right could be found. (Previous "privacy" decisions, such as Griswold v. Connecticut, had likewise shown some confusion on this point.) Justice Potter Stewart's concurring opinion in Roe explicitly identified the "due process" clause of the Fourteenth Amendment as the basis for the right to privacy and the right to abortion. A long legal debate had raged (and still rages) regarding the meaning of this clause and how far it can be extended to strike down state laws. Stewart, for his part, clearly thought it extended far enough to guarantee a right to abortion. (Legal scholars tend to follow Stewart's opinion: they commonly interpret Roe as a due process case, despite the vagueness of the ruling itself.)

Due Process Rights: "Rational Relations," not" Strict Scrutiny," Test

For his part, Rehnquist stated that he agreed with Stewart that the due process clause protected liberties not explicitly mentioned in the Constitution. "But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective."

To understand Rehnquist's point, it's necessary to realize that the Court had (and has) different types of "tests" or "scrutiny" by which it examines the constitutionality of laws. The most stringent test is called "strict scrutiny." To pass this test and be considered constitutional, a law must be necessary to further a "compelling state interest" and must be "narrowly tailored" to further that interest. In the Court's history almost no laws that have been subjected to this level of scrutiny have passed. The least stringent test is called the "rational relations" test. To pass this level of scrutiny a law must merely have a rational relation to a valid state objective. Nearly all laws subjected to scrutiny pass this test.

In Roe, the court had subjected the Texas abortion laws to "strict scrutiny." The Court demanded that the state prove that its laws were necessary to further a compelling state interest. Texas had argued that it had a compelling interest in protecting the life of the unborn, but the Court ruled that this interest did not become compelling until the fetus became "viable." Thus, it concluded, states could not pass laws protecting the unborn prior to viability.

In his dissent Rehnquist argued that the Texas laws should not have been subjected to "strict scrutiny" but to the "rational relations" test. This was the test traditionally applied in due process cases, he wrote. And the Texas laws clearly passed the "rational relations" test: "[T]he Court's sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court's opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one."

The gist of the problem was this: the Court was claiming that abortion was a fundamental constitutional right. Laws that came in conflict with fundamental rights are traditionally subjected to strict scrutiny. But the court was also (apparently) claiming that abortion was a right according to the Fourteenth Amendment's "due process" clause. The Court was trying to locate abortion as a due process right, Rehnquist was arguing, but was using a level of scrutiny that had not been associated with such rights. Thus the Court had accomplished "the seemingly impossible feat of leaving this area of the law more confused than it had found it."

That was not all, however. Rehnquist saw another problem with the Court's adoption of the "compelling interest" test: it would inevitably lead to judges acting as legislators in an attempt to determine which state interests were "compelling" and which were not. The Roe decision itself, and especially its tortuous trimester scheme, was an excellent case in point: "The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment."

Due Process Clause Consistent with Abortion Laws

Moreover, he pointed out, the "right" that Blackmun and the rest of the majority claimed to discover was apparently unknown to the framers of the Fourteenth Amendment itself. At the time that Amendment was passed in 1868 there were laws against abortion in 36 states, including the very Texas law that the Court was now striking down. "There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."

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