The 1973 Supreme Court abortion decision Roe vs. Wade was
decided by a 7-2 margin, legalizing abortion throughout pregnancy. One of the
two dissenters from that decision was the current Chief Justice, William
Rehnquist, who has served on the Supreme Court since 1971, and as Chief Justice
since 1986.
His dissent from Roe is less than 1500 words, and points out
several of the many errors and weaknesses of what is, beyond doubt, the most
damaging decision the Court has ever issued. Justice Rehnquist objected both to
the conclusions of the majority and to the methods they used to reach those
conclusions.
The so-called "right to abortion" is not, he objected, what the
majority makes it out to be. The Court must be wrong to find any basis for this
right in the 14th Amendment to the Constitution, for the simple
reason, as he explains, that at least 36 laws enacted by state or territorial
legislatures were in force at the time that the 14th Amendment was
adopted in 1868. Moreover, some 21 of these laws were still in effect when
Roe vs. Wade was decided. How, then, could they be at odds with the 14th
Amendment? In the words of Justice Rehnquist,
"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."
The willingness of States to protect the unborn for a century before
Roe, and the intensity of the abortion debate itself, were clear signs to
Justice Rehnquist in 1973 that the existence of an abortion right was not so
clear cut as the appellant, and certainly as many advocacy groups, were
suggesting.
In his dissent, Justice Rehnquist mentions several times that the
Court is engaging in the kind of analysis and judgment that should be left to
legislatures. To be able to discern the difference is a critical skill for
anyone on our Federal courts to have. If the people are to have self-governance,
then the legislative process should be allowed to function through the
legislatures, and not be short-circuited by Court decisions that create
policy without the input of the people and their elected representatives. The
fact that Justice Rehnquist was not afraid to criticize the Roe court on
this point is yet another reason why his dissent is a valuable teaching tool in
many contexts.
Justice Rehnquist’s dissent raises a question about current
confirmation hearings for Federal judges and eventually for Supreme Court
Justices. Nominees who oppose Roe vs. Wade are routinely criticized
bitterly for that position. But if the Chief Justice of the United States
Supreme Court for the past 19 years has been a dissenter from Roe, why
can't a new federal judge also be? It is a respectable position, not only for
moral and religious reasons, but for legal and Constitutional ones as well.
Thank you, Justice Rehnquist, for taking and maintaining that position.
