Byron White was appointed to the U.S. Supreme
Court as Associate Justice in 1962, and served on the Court until
he retired in 1993. He died in 2002. Justice White wrote a widely
quoted dissent in Doe v. Bolton, in which Justice
Abortion Decisions: "An exercise of raw judicial
A prominent critic of Roe v. Wade and Doe v.
Bolton, Justice White not only dissented from the 1973
decisions but later made repeated attempts to overrule them.
According to his biographer, White's personal views on abortion
seem to have been ambivalent.  On the other hand, his Roe dissent
suggests that he was alarmed by the Court's disregard for the life
of the unborn. "The Court, for the most part, sustains this
position: during the period prior to the time the fetus becomes
viable, the Constitution of the United States values the
convenience, whim, or caprice of the putative mother more than the
life or potential life of the fetus . . ."
Whatever his own opinions on abortion may have been, there is no
doubt that he regarded the Court's action as entirely unjustifiable
from a legal perspective:
I find nothing in
the language or history of the Constitution to support the Court's
judgment. The Court simply fashions and announces a new
constitutional right for pregnant mothers [410 U.S. 222] and, with
scarcely any reason or authority for its action, invests that right
with sufficient substance to override most existing state abortion
statutes. . . . As an exercise of raw judicial power, the Court
perhaps has authority to do what it does today; but, in my view,
its judgment is an improvident and extravagant exercise of the
power of judicial review that the Constitution extends to this
the Constitutional Foundations of Roe and Doe:
This was a view he adhered to throughout his time on the Court.
He later told a friend that Roe was the only illegitimate
decision the Court had made during his tenure: "In every other
case, there was something in the Constitution you could point to
for support. There, nothing." White dissented in many other cases, of
course, but Roe clearly stood out in his mind as
completely unjustifiable. Nearly twenty years later, in Planned
Parenthood v. Casey, he voted to overturn Roe despite
the fact that the decision was by then a long-standing precedent.
This was an unusual move: White, like nearly all judges, tended to
defer to decisions eventually even if he had initially disagreed
with them. The fact that he made an exception with regard to
Roe shows how strongly he objected to the Court's verdict
in that case. His biographer makes note of this fact: "Unlike all
other areas, in which several years of reaffirmation settled
doctrine and dictated his acceptance of a line of authority even
where he had dissented at first, abortion was an exception. An
illegitimate decision was entitled to no respect."
Dissent in Thornburgh: Overturn Roe-Return the
Issue to the People
This is borne out by White's dissent in Thornburgh v.
American College of Obstetricians and Gynecologists, written
thirteen years after (1986). In this decision, in an opinion
authored by Justice Harry Blackmun, the Court struck down various
state abortion regulations, reiterating Roe's claim that
abortion is a fundamental constitutional right.
In his dissent White acknowledges the importance of stare
decisis: the principle that the Court should uphold its prior
decisions for the sake of the law's consistency and integrity.
"[W]hen governing legal standards are open to revision in every
case, deciding cases becomes a mere exercise of judicial will, with
arbitrary and unpredictable results." Stare decisis is
thus essential to the judicial process.
It is also essential, however, that the Court retain an ability
to set aside prior decisions in certain circumstances:
specifically, when a prior decision has overturned laws that
represent the will of the people, and has overturned these laws by
finding principles in the Constitution that are not there:
find in the Constitution principles or values that cannot fairly be
read into that document usurp the people's authority, for such
decisions represent choices that the people have never made, and
that they cannot disavow through corrective legislation. For this
reason it is essential that this Court maintain the power to
restore authority to its proper possessors by correcting
constitutional decisions that, on consideration, are found to be
White then cites examples in which the Court had overruled its
prior decisions, despite stare decisis concerns. History
has shown, moreover, that the Court was right to do so; and even
Blackmun had recently acknowledged the necessity of overruling bad
decisions that "depart from a proper understanding of the
"In my view," says White, "the time has come to recognize that
Roe v. Wade, no less than the cases overruled by the Court
in the decisions I have just cited, 'departs from a proper
understanding of the Constitution,' and to overrule it." White
argues this by first noting that there is clearly nothing in the
text of the Constitution itself that refers to abortion or even to
reproduction generally speaking; moreover, it is "highly doubtful"
that the Constitution's authors intended to protect a right to
abortion. In Roe the Court had acknowledged as much, but
claimed that the Due Process Clause of the Fourteenth Amendment
(which forbids the deprivation of life, liberty or property without
due process of the law) protected individuals from state laws that
infringed on their liberties in certain circumstances. It ruled
that abortion was a fundamental liberty that states could not
restrict without a compelling interest.
White finds this ruling flawed. While individual liberty is
indeed protected under the Due Process Clause, this protection is
generally very limited: state laws can usually restrict liberty as
long as they are rational. [For instance, my liberty to
drive on the left side of the road is restricted by state laws
across the nation; these traffic laws certainly do not violate the
Due Process Clause.] Only when fundamental rights are at
issue is a stricter standard applied: states may not infringe on
fundamental rights without a truly compelling reason. In White's
opinion, contrary to the Court's in Roe, the liberty to
abort is not fundamental; therefore states can restrict
The question, of course, is how to distinguish a "fundamental"
right or liberty from a "non-fundamental" one. White notes that
rights found explicitly in the Constitution are clearly
fundamental; in protecting these rights against intrusive state
laws the Court is on firm ground. However,
[w]hen the Court
ventures further and defines as "fundamental" liberties that are
nowhere mentioned in the Constitution . . . it must, of necessity,
act with more caution, lest it open itself to the accusation that,
in the name of identifying constitutional principles to which the
people have consented in framing their Constitution, the Court has
done nothing more than impose its own value upon the people.
In order to protect against this possibility, the Court in the
past has classed as fundamental only those rights that are
"implicit in the concept of ordered liberty" such that liberty
could not exist without them. At other times the Court has claimed
that rights "deeply rooted in the nation's history and tradition"
should also be considered fundamental. These approaches allowed the
Court to go beyond the text of the Constitution to protect
unenumerated rights, but placed limits on how far this process
could be taken.
Neither of these approaches justify Roe, says White. It
is clear, even from the Court's own opinion in Roe, that
abortion is not "deeply rooted in our nation's history and
tradition." Nor is abortion "implicit in the concept of ordered
liberty:" a free and democratic society does not presuppose any
particular set of rules regarding abortion.
And again, the
fact that many men and women of good will and high commitment to
constitutional government place themselves on both sides of the
abortion controversy strengthens my own conviction that the values
animating the Constitution do not compel recognition of the
abortion liberty as fundamental. In so denominating that liberty,
the Court engages not in constitutional interpretation, but in the
unrestrained imposition of its own extraconstitutional value
The Court made another serious error in Roe as well,
says White: it not only claimed that abortion was a fundamental
right, but also claimed that the state's interest in protecting
unborn life was not "compelling" until viability, and therefore
ruled that states could not restrict abortion until after
viability. White finds the distinction between pre- and
post-viability irrelevant: the state's interest in protecting life
arises from its desire to protect those who will be citizens if
they are not killed in the womb. This interest is equally
substantial whether the fetus is viable or not.
White concludes that the abortion issue should be returned to
the states and the people themselves:
Abortion is a
hotly contested moral and political issue. Such issues, in our
society, are to be resolved by the will of the people, either as
expressed through legislation or through the general principles
they have already incorporated into the Constitution they have
adopted. Roe v. Wade implies that the people have already
resolved the debate by weaving into the Constitution the values and
principles that answer the issue. As I have argued, I believe it is
clear that the people have never-not in 1787, 1791, 1868, or at any
time since-done any such thing. I would return the issue to the
people by overruling Roe v. Wade.
 See Dennis Hutchinson,
The Man Who Once Was Whizzer White (New York: The Free
Press, 1998), 368.
 Doe v.
Bolton 410 U.S. 179 (1973), 221-23.
 The Man
Who Once Was Whizzer White , 368.