Justice Rehnquist's Dissent

 

Fr. Frank Pavone

 
  7/4/2005
 

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.

Long live the dissenters!

The full text of the Roe vs. Wade decision, including Justice Rehnquist’s dissent, can be found at www.priestsforlife.org/government/supremecourt/7301roevwade.htm