Rehnquist's dissent in Roe v. Wade:
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 law-suit. 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 [410 U.S. 113, 172] 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 [410 U.S. 113, 173] 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. [410 U.S. 113, 174]
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. 22, 14, 16. By the time of the adoption of the Fourteenth [410 U.S. 113,
175] 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 [410 U.S. 113, 176] 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 [410 U.S. 113, 177] 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 [410 U.S. 113, 178] 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.
[Footnote 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). [410 U.S.
113, 176] 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).
[Footnote 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). [410 U.S. 113, 177] 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). [410 U.S. 113,
179] |
