[cgk]

The Dissent

MR. JUSTICE REHNQUIST, dissenting.

Roe v. Wade

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

MR. JUSTICE STEWART, concurring.

MR. JUSTICE REHNQUIST, dissenting.

The Court's opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with those parts of it that invalidate the Texas statute in question, and therefore dissent.

I

The Court's opinion decides that a State may impose virtually no restriction on the performance of abortions during the first trimester of pregnancy. Our previous decisions indicate that a necessary predicate for such an opinion is a plaintiff who was in her first trimester of pregnancy at some time during the pendency of her lawsuit. While a party may vindicate his own constitutional rights, he may not seek vindication for the rights of others. Moose Lodge v. Irvis, 407 U.S. 163 (1972); Sierra Club v. Morton, 405 U.S. 727 (1972). The Court's statement of facts in this case makes clear, however, that the record in no way indicates the presence of such a plaintiff. We know only that plaintiff Roe at the time of filing her complaint was a pregnant woman; for aught that appears in this record, she may have been in her last trimester of pregnancy as of the date the complaint was filed.

Nothing in the Court's opinion indicates that Texas might not constitutionally apply its proscription of abortion as written to a woman in that stage of pregnancy. Nonetheless, the Court uses her 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." Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885). See also Ashwander v. TVA, 297 U.S. 288, 345 (1936) (Brandeis, J., concurring).

II

Even if there were a plaintiff in this case capable of litigating the issue which the Court decides, I would reach a conclusion opposite to that reached by the Court. I have difficulty in concluding, as the Court does, that the right of "privacy" is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not "private" in the ordinary usage of that word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967).

If the Court means by the term "privacy" no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of "liberty" protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of MR. JUSTICE STEWART in his concurring opinion that the "liberty," against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. 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. Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra. But the 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 Court eschews the history of the Fourteenth Amendment in its reliance on the "compelling state interest" test. See Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 179 (1972) (dissenting opinion). But the Court adds a new wrinkle to this test by transposing it from the legal considerations associated with the Equal Protection Clause of the Fourteenth Amendment to this case arising under the Due Process Clause of the Fourteenth Amendment. Unless I misapprehend the consequences of this transplanting of the "compelling state interest test," the Court's opinion will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it.

While the Court's opinion quotes from the dissent of Mr. Justice Holmes in Lochner v. New York, 198 U.S. 45, 74 (1905), the result it reaches is more closely attuned to the majority opinion of Mr. Justice Peckham in that case. As in Lochner and similar cases applying substantive due process standards to economic and social welfare legislation, the adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be "compelling." 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.

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 20, §§ 14, 16. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. 1 While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. 2 Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and "has remained substantially unchanged to the present time." Ante, at 119.

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.

III

Even if one were to agree that the case that the Court decides were here, and that the enunciation of the substantive constitutional law in the Court's opinion were proper, the actual disposition of the case by the Court is still difficult to justify. The Texas statute is struck down in toto, even though the Court apparently concedes that at later periods of pregnancy Texas might impose these selfsame statutory limitations on abortion. My understanding of past practice is that a statute found to be invalid as applied to a particular plaintiff, but not unconstitutional as a whole, is not simply "struck down" but is, instead, declared unconstitutional as applied to the fact situation before the Court. Yick Wo v. Hopkins, 118 U.S. 356 (1886); Street v. New York, 394 U.S. 576 (1969).

For all of the foregoing reasons, I respectfully dissent.

---- Begin EndNotes ----

1 Jurisdictions having enacted abortion laws prior to the adoption of the Fourteenth Amendment in 1868:

1. Alabama -- Ala. Acts, c. 6, § 2 (1840).

2. Arizona -- Howell Code, c. 10, § 45 (1865).

3. Arkansas -- Ark. Rev. Stat., c. 44, div. III, Art. II, § 6 (1838).

4. California -- Cal. Sess. Laws, c. 99, § 45, p. 233 (1849-1850).

5. Colorado (Terr.) -- Colo. Gen. Laws of Terr. of Colo., 1st Sess., § 42, pp. 296-297 (1861).

6. Connecticut -- Conn. Stat., Tit. 20, §§ 14, 16 (1821). By 1868, this statute had been replaced by another abortion law. Conn. Pub. Acts, c. 71, §§ 1, 2, p. 65 (1860).

7. Florida -- Fla. Acts 1st Sess., c. 1637, subc. 3, §§ 10, 11, subc. 8, §§ 9, 10, 11 (1868), as amended, now Fla. Stat. Ann. §§ 782.09, 782.10, 797.01, 797.02, 782.16 (1965).

8. Georgia -- Ga. Pen. Code, 4th Div., § 20 (1833).

9. Kingdom of Hawaii -- Hawaii Pen. Code, c. 12, §§ 1, 2, 3 (1850).

10. Idaho (Terr.) -- Idaho (Terr.) Laws, Crimes and Punishments §§ 33, 34, 42, pp. 441, 443 (1863).

11. Illinois -- Ill. Rev. Criminal Code §§ 40, 41, 46, pp. 130, 131 (1827). By 1868, this statute had been replaced by a subsequent enactment. Ill. Pub. Laws §§ 1, 2, 3, p. 89 (1867).

12. Indiana -- Ind. Rev. Stat. §§ 1, 3, p. 224 (1838). By 1868 this statute had been superseded by a subsequent enactment. Ind. Laws, c. LXXXI, § 2 (1859).

13. Iowa (Terr.) -- Iowa (Terr.) Stat., 1st Legis., 1st Sess., § 18, p. 145 (1838). By 1868, this statute had been superseded by a subsequent enactment. Iowa (Terr.) Rev. Stat., c. 49, §§ 10, 13 (1843).

14. Kansas (Terr.) -- Kan. (Terr.) Stat., c. 48, §§ 9, 10, 39 (1855). By 1868, this statute had been superseded by a subsequent enactment. Kan. (Terr.) Laws, c. 28, §§ 9, 10, 37 (1859).

15. Louisiana -- La. Rev. Stat., Crimes and Offenses § 24, p. 138 (1856).

16. Maine -- Me. Rev. Stat., c. 160, §§ 11, 12, 13, 14 (1840).

17. Maryland -- Md. Laws, c. 179, § 2, p. 315 (1868).

18. Massachusetts -- Mass. Acts & Resolves, c. 27 (1845).

19. Michigan -- Mich. Rev. Stat., c. 153, §§ 32, 33, 34, p. 662 (1846).

20. Minnesota (Terr.) -- Minn. (Terr.) Rev. Stat., c. 100, §§ 10, 11, p. 493 (1851).

21. Mississippi -- Miss. Code, c. 64, §§ 8, 9, p. 958 (1848).

22. Missouri -- Mo. Rev. Stat., Art. II, §§ 9, 10, 36, pp. 168, 172 (1835).

23. Montana (Terr.) -- Mont. (Terr.) Laws, Criminal Practice Acts § 41, p. 184 (1864).

24. Nevada (Terr.) -- Nev. (Terr.) Laws, c. 28, § 42, p. 63 (1861).

25. New Hampshire -- N. H. Laws, c. 743, § 1, p. 708 (1848).

26. New Jersey -- N. J. Laws, p. 266 (1849).

27. New York -- N. Y. Rev. Stat., pt. 4, c. 1, Tit. 2, §§ 8, 9, pp. 12-13 (1828). By 1868, this statute had been superseded. N. Y. Laws, c. 260, §§ 1-6, pp. 285-286 (1845); N. Y. Laws, c. 22, § 1, p. 19 (1846).

28. Ohio -- Ohio Gen. Stat. §§ 111 (1), 112 (2), p. 252 (1841).

29. Oregon -- Ore. Gen. Laws, Crim. Code, c. 43, § 509, p. 528 (1845-1864).

30. Pennsylvania -- Pa. Laws No. 374, §§ 87, 88, 89 (1860).

31. Texas -- Tex. Gen. Stat. Dig., c. VII, Arts. 531-536, p. 524 (Oldham & White 1859).

32. Vermont -- Vt. Acts No. 33, § 1 (1846). By 1868, this statute had been amended. Vt. Acts No. 57, §§ 1, 3 (1867).

33. Virginia -- Va. Acts, Tit. II, c. 3, § 9, p. 96 (1848).

34. Washington (Terr.) -- Wash. (Terr.) Stats., c. II, §§ 37, 38, p. 81 (1854).

35. West Virginia -- See Va. Acts., Tit. II, c. 3, § 9, p. 96 (1848); W. Va. Const., Art. XI, par. 8 (1863).

36. Wisconsin -- Wis. Rev. Stat., c. 133, §§ 10, 11 (1849). By 1868, this statute had been superseded. Wis. Rev. Stat., c. 164, §§ 10, 11; c. 169, §§ 58, 59 (1858).

2 Abortion laws in effect in 1868 and still applicable as of August 1970: 1. Arizona (1865).

2. Connecticut (1860).

3. Florida (1868).

4. Idaho (1863).

5. Indiana (1838).

6. Iowa (1843).

7. Maine (1840).

8. Massachusetts (1845).

9. Michigan (1846).

10. Minnesota (1851).

11. Missouri (1835).

12. Montana (1864).

13. Nevada (1861).

14. New Hampshire (1848).

15. New Jersey (1849).

16. Ohio (1841).

17. Pennsylvania (1860).

18. Texas (1859).

19. Vermont (1867).

20. West Virginia (1863).

21. Wisconsin (1858).

---

© 1995 - 2006, Touro Law Center

[cgk]

Pro-Life/Pro-Baby ping!

Please FReepmail me if you would like to be added to, or removed from, the Pro-Life/Pro-Baby ping list...

[cgk]

I respectfully submit that this thread should be left in Breaking News for the day, as today is the 33rd anniversary of this decision. This is the full text of the decision, and the dissent, of the case that to this day divides our country.

The Top 10 Greatest Quips from Ronald Reagan are in Breaking News at this time. Is this not equally important and worthy of discussion?

[ex-snook]

Sanctioning of women killing their own offspring does not bode well for Western Civilization.

[wita]

When the pro abortion justices stand before the judgment bar of God, will their pleas in their own behalf be nearly as wordy as we find in this thread. I'd say we are working on two generations of citizens. who were the answer to SS, and baby boomer retirement, but due to the necessity for manufactured female reproductive "rights" will never see the light of day. If you read Mark Steyn, you will know and understand the demographic implications of killing off two generations of your populace. It is a numbers game that we and every Christian, democratic nation on the face of the earth, are losing.

[Reagan Man]

Pro-life bump.

*************************************************

"Our nation-wide policy of abortion on demand through all nine months of pregnancy was neither voted for by our people, nor enacted by our legislators--not a single state had such unrestricted abortion before the Supreme Court decreed it to be national policy in 1973. [It was] an act of raw judicial power"...

"Make no mistake, abortion-on-demand is not a right granted by the Constitution. Nowhere do the plain words of the Constitution even hint at a "right" so sweeping as to permit abortion up to the time the child is ready to be born."

"We cannot diminish the value of one category of human life--the unborn--without diminishing the value of all human life."

"Abraham Lincoln recognized that we could not survive as a free land when some men could decide that others were not fit to be free and should therefore be slaves. Likewise, we cannot survive as a free nation when some men decide that others are not fit to live and should be abandoned to abortion or infanticide. My Administration is dedicated to the preservation of America as a free land, and there is no cause more important for preserving that freedom than affirming the transcendent right to life of all human beings, the right without which no other rights have any meaning."

- President Ronald Reagan : "Abortion and the Conscience of a Nation", 1983

[Mojave]

Great dissent. The court's majority ignored text, intent and history to impose their politically correct decision.

[SunnyD1182]

Wow. I had never actually looked at the details of the decision, but this thing reads more like a bill or some sort of declaration from God than anything else. You'd find stuff like this mentioned in Congress. What a totally arbitrary decision.

I also like how they declare that anti-abortion bills in the 19th century only existed to protect the mother, and that this revelation is reasoning enough to overturn said laws because the mother can now be protected. I thought they were supposed to decide the CONSTITUTIONALITY of the laws, not the PRACTICALITY. Maybe mothers were at less risk with abortion in the 1970s than the 1870s. Even so, who cares in the Constitutional scope? The fact that the anti-abortion legislations EXISTED in the first place- particularly so early in our country's existence, and without challenge- shows that anti-abortion legislation WAS seen as Constitutional, which should have been taken into consideration. It doesn't matter WHY a bill was enacted, it matters whether it is Constitutional. Policymakers are supposed to be considered with WHYs and HOWs, not judges.

Also interesting to note:

"With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother."

I cite the above passage because I think it's going to cause pro-choicers tremendous problems in the coming years as science improves. "Viability" is constantly being pushed up because of improvements in medicine and science, and mother's lives and health are at significantly less risk during pregnancy now. A case can eventually be made that states should have more power now to regulate abortion because "viability" and the "health/life" problem caused my pregnancy are significantly different from how they used to be.

Besides, if the court reasons that anti-abortion statutes should be banned because the mother's health/life is much less at risk by abortion procedures because of scientific improvements, then they should also reason that abortion is no longer necessary because the mother's health/life is much less at risk in most pregnancy situations nowadays because of scientific improvements.

But of course we're dealing with the Supreme Court here, so don't expect reason. And this comes from someone who really doesn't care whether abortion goes one way or another. Let the states decide as it used to be.

[richmwill]

Having been born after the Court decision was made, I have always been curious- what was the media reaction to this when it happened? Was it an outrage? And, what was the reaction in society, nationwide? Was the gravity of the decision realized immediately in private homes?

[Mrs. Darla Ruth Schwerin]

Some people have simply left their brain in the freezer. You don't have to be a rocket scientist to realize our Founding Fathers would never have tolerated such a thing as BARBARIC as abortion. Come on people, just stop wasting time, lives, and money by entertaing this idiocy!

[P.O.E.]

Should be engraved on tombstones, if the poor things ever got at least that much respect.

[rwfromkansas]

President Bush will be phoning pro-lifers in D.c. right before he makes his speech on terror in Manhattan, Kan., a speech I get to attend since I managed to get press credentials for it despite just being my college newspaper editor.

I am excited. I have never seen Bush speak before in person.

In any event, I wonder what he will say to the pro-lifers tomorrow? Will he mention it in the speech or not? It is a big deal.

[advance_copy]

The Supreme Court forced abortion on demand in America, and that has been a travesty for 33 years. God bless those who march for life today.

[TheRobb7]

Ping for later study

[Tarkin]

You forgot to post these:

Doe v. Bolton

410 U.S. 179, 207

MR. CHIEF JUSTICE BURGER, concurring [This opinion applies also to No. 718, Roe v. Wade, ante p. 113.]

I agree that, under the Fourteenth Amendment to the Constitution, the abortion statutes of Georgia and Texas impermissibly limit the performance of abortions necessary to protect the health of pregnant women, using [p208] the term health in its broadest medical context. See United States v. Vuitch, 402 U.S. 62, 71-72 (1971). I am somewhat troubled that the Court has taken notice of various scientific and medical data in reaching its conclusion; however, I do not believe that the Court has exceeded the scope of judicial notice accepted in other contexts.

In oral argument, counsel for the State of Texas informed the Court that early abortion procedures were routinely permitted in certain exceptional cases, such as nonconsensual pregnancies resulting from rape and incest. In the face of a rigid and narrow statute, such as that of Texas, no one in these circumstances should be placed in a posture of dependence on a prosecutorial policy or prosecutorial discretion. Of course, States must have broad power, within the limits indicated in the opinions, to regulate the subject of abortions, but where the consequences of state intervention are so severe, uncertainty must be avoided as much as possible. For my part, I would be inclined to allow a State to require the certification of two physicians to support an abortion, but the Court holds otherwise. I do not believe that such a procedure is unduly burdensome, as are the complex steps of the Georgia statute, which require as many as six doctors and the use of a hospital certified by the JCAH.

I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand.

410 U.S. 179, 221

MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins, dissenting [This opinion applies also to No. 70-18, Roe v. Wade, ante p. 113.]

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons -- convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

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; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. 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 [p222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. 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 Court.

The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.

It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women [p223] whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U.S. 62 (1971), dictates reversal of the judgment of the District Court.

Likewise, because Georgia may constitutionally forbid abortions to putative mothers who, like the plaintiff in this case, do not fall within the reach of § 26-1202(a) of its criminal code, I have no occasion, and the District Court had none, to consider the constitutionality of the procedural requirements of the Georgia statute as applied to those pregnancies posing substantial hazards to either life or health. I would reverse the judgment of the District Court in the Georgia case.

There is also a rather long separate concurrence written by Douglas. You can find it here:

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0179_ZD.html

[nascar242005]

a whole generation that could have help make up the imbalance in the Social Security Roles. Think of the money they could have paid over the years in taxes, etc.

someone should turn this table on LIBS as they are the blame for the lack of contributors today in relation to the number of baby boomers.

[OB1kNOb]

Ronald Reagan (GOD bless him) said it best:

"I've noticed that everyone who is for abortion has already been born." —The New York Times, September 22, 1980

[TheBattman]

This is the first time I have taken the time to read the entire ruling. And even with a complete read, I just don't understand how the decision went the way it did.

In the "majority" opinion, conflicts and contradictions abound- from claiming that the Hippocratic oath forbids abortion, yet say that no early medicine had a problem with abortion to ignoring pre-existing law.

Satan won a major victory (despite our knowledge that he looses in the end). It's just a shame that so many innocent babies have had their lives ripped from them by abortionists and their conspirators.

[Screamname]

What gets me about the liberals and abortion, is why are they so eager for it? Do they regularly get knocked up without intending to get knocked up and abortion is a regular part of the schedule like a yearly vacation? Oh yes, I forgot..they are liberals.

[TBP]

Just about the worst decision in SCOTUS history. America's Holocaust.