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An Exercise in Raw Judicial Power

As we observe the sad forty-second anniversary of Roe v. Wade, the Supreme Court decision that overturned all state laws banning abortions and effectively served as a judicial death warrant for tens of millions of innocents, I think it is appropriate to pay tribute to the two dissenting Justices, Byron White, a Democrat, and William Rehnquist, a Republican.  Here are the texts of their dissents:

MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins, dissenting.

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 adviser 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 [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. 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 [410 U.S. 223] 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.

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. 1b 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.2b 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.

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Donald R. McClarey

Cradle Catholic. Active in the pro-life movement since 1973. Father of three and happily married for 35 years. Small town lawyer and amateur historian. Former president of the board of directors of the local crisis pregnancy center for a decade.

15 Comments

  1. “pregnancies that pose no danger whatsoever to the life or health of the mother”
    Any law that allows an abortion to be performed to preserve the life or health of the mother will prove unworkable. This was the position in Scotland before the Abortion Act 1967.
    In practice,
    (1) an unqualified abortionist was always prosecuted
    (2) the Crown Office would not challenge the clinical judgment of a salaried consultant or registrar, still less a professor, in a public hospital performing an abortion on an NHS patient; gratuity was seen as a sufficient guarantee of good faith.
    (3) an abortion performed by a doctor in private practice would be investigated by senior practitioners, nominated by the Crown Office, with indications of good faith including consultation with colleagues, such as a general practitioner, a gynaecologist, a psychiatrist; admission to hospital or a recognised nursing home; observance of normal professional etiquette, such as a consultant being called in only by the patient’s general practitioner; reasonable fees being charged and the keeping of proper records.
    How doctors chose to interpret the law varied enormously. According to the Scotsman (23 December 1966), one pregnancy in 50 was terminated in Aberdeen, compared to one in 3,750 in Glasgow. The difference resulted from the rival interpretations and clinical practice of the two Regius Professors of Midwifery, Dugald Baird at the University of Aberdeen and Ian Donald at the University of Glasgow, both of whom voiced their rival views in public. What was abundantly clear is that the Lord Advocate and the Crown Office had no intention of testing the limits of the law in the courts.
    Many saw the 1967 act as clarifying, rather than changing, the law and introducing additional safeguards (two doctors, licensed facilities) rather than expanding it. Many Christians in both houses, voted for the bill, believing it provided the greatest measure of restriction and regulation that Parliament would approve.

  2. This is appropriate here because the U. S. Catholic Conference needs to read it.
    .
    Jesus wept tears over Jerusalem. Jesus wept tears of Joy over the heavenly Jerusalem coming down from heaven. Jesus wept tears of Joy for His Father.
    .
    THE NEW AGE, THE NEW SECULAR ORDER emblazon on the U.S. dollar is the Heavenly Jerusalem coming down from the sky. Jesus wept over Jerusalem. Jesus wept tears of joy over the Heavenly Jerusalem coming down from heaven.
    .
    The righteous brother of the parable of the Prodigal Son refused to weep tears of joy at his father’s command to: ”Rejoice, your brother was dead but now he is alive.” Old righteous brother begrudged his father his tears of joy and his rejoicing and his father’s tears of joy and his father’s rejoicing. Righteous brother refused to bring gladness to his father’s heart. Even then, the father reminded the righteous son that “all that I have, is yours.”
    .
    Would it not have been great, if the righteous brother had brought his friends to the prodigal’s party to make merry with his father as is commanded in Deuteronomy 14: 22-29 about tithing: “and there before the Lord, your God, you shall partake of it and make merry with your family”? Instead he, (there is no other word, but the word I cannot write here) complained about not having enough, not enough heart to ask his father for his friends’ banquet, not enough heart to request to literally throw a party for his friends.
    .
    Deut.14: 28-29 continues, and this is particularly interesting because this passage impinges of the illegal alien. The words of God, Himself: “At the end of every third year you shall bring out all of the tithes of your produce for that year and deposit them in community store, that the Levite, who has no share in the heritage with you, and also the ALIEN, the orphan and the widow WHO BELONG to your community, may come and eat their fill; so that the Lord, your God may bless you in all you undertake.”
    .
    The individual conscience of the citizen CHOOSES to bring out his tithe, every third year, to donate to the community stores. Read food bank. It is not nice to fool Mother Nature, nor try to cheat God. The individual conscience of the man cannot cheat God without forfeiting his life and his immortal soul.
    Obama tries to square himself with God for abortion and legal sodomy by extorting tithe offerings from his fellow citizens without their valid consent or their willingness of conscience. He, then, donates his contraband to the poor, and blows his horn, adorns himself with crowns and gets the democratic party favors.
    .
    Getting back to the new Heavenly Jerusalem descending from God, (as Obama has tried to depict himself). cannot happen in the absence of Truth and Justice.
    .
    I was listening to Malachi Martin R.I.P. Malachi Martin was an exorcist for several decades. Martin said that coming into the presence of evil modifies the soul of even a good person. The soul of the evildoer is modified and the soul of the innocent person is modified. Martin called coming into the presence of an evildoer “dangerous”; an open door to Satan and Lucifer.
    .
    The government is demanding that the innocent proprietors of businesses suffer the entrance of evildoers into their midst as “the price of citizenship.” The state does not own the innocence, nor the soul, nor the sovereignty, nor the personhood, nor the informed consent, nor the CITIZENSHIP, nor the life of the citizen, any citizen.
    .
    For the state to impose regulations demanding that an innocent soul be “modified” by an evildoer is separation of church and state violated. The citizen constitutes and forms the government.
    .
    “Do not weep for me, but for your children”. If Jesus knew about the New World Order”, it was not new.
    .
    “A putative mother” is a very real mother, since the newly begotten child makes a mother of the woman. If the woman was not a mother, she would be a woman without a child. The woman hauled her child into court and demanded his extinction without “due process of law”, literally annihilating the Court.
    .
    The death of the mother is predicated on her imminent death, not a prognosis.
    .
    Snowflake babies, those frozen embryos adopted and gestated are citizens with sovereign personhood even as they are created and destroyed. Science, DNA, IVF and ABORTION, the destruction of humanity, have proven that a sovereign human being comes into existence at fertilization of the egg by human sperm. Enough with the ignorance, denial and tyranny.
    .
    I am sorry this is not better.

  3. “I am sorry this is not better”.
    Your not in the position to apologize since your synopsis and arguments are clear and eloquent. You make sense Mary. Your pro-life efforts make a difference. Just consider the babies born that wouldn’t of had a chance if you and other lifers we’re not visible or present to these women who had a change of heart.

    One day in Gods glory, He might just open a book for you. Don’t be surprised if he shows these souls to you. Each and every one, given a chance for life.

  4. Novus Ordo Seclorum= “A new order to/for the ages,” actually.

    It wouldn’t take much rewriting to apply White to the gay marriage case that will be before the court in a couple of months.

    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. 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.

  5. Ernst Schreiber: “Novus Ordo Seclorum= “A new order to/for the ages,” actually.”
    .and that would be to follow our conscience to vocation through freedom and the pursuit of Happiness.
    .
    I love Byron White. Byron White defended against Hugo Black the right to a relationship with almighty God in public square, prayer.
    .
    The one word I would change in his writing is the word: “constitutionally dissentitled.” to constitutionally disenfranchised. The word “disenfranchised” brings the weight of our civil rights to bear as “We, the people…” especially since the scientific proof of the newly begotten child as having constitutional civil rights to Life as our constitutional posterity from the very first moment of his existence.

  6. The Supreme Court was as wrong in the Roe v Wade decision of the late 20th century as it was in the Dred Scott decision in the mid 19th century. When the issue is important, the Justices sitting on the bench render the most unjust decisions possible. They fail to realize in this life that the Supreme Justice is NOT a disinterested spectator in the events of human affairs, but they will find out in the next. Yesterday a black man was not a human being and today a baby is not a human being. God sees this. The first time He allowed a bloody civil war to punish us. What will He allow today?

  7. Art Deco wrote, “your remarks are relevant exactly how?”
    As the dissenting justices both acknowledge abortion to be lawful in some circumstances, any attempt to restrict or regulate it wouldbe, in practice, have proved futile.
    Things would have been no different, if the majority had upheld the Texas statute, but subject to that limitation. The Scottish experience shows why.

  8. Robert Bork wrote a devasting critique of the case in clear language,exposing it as a complete sham.His book should be required reading for anyone going to DC to march.

  9. “Things would have been no different, if the majority had upheld the Texas statute,”

    Complete and total rubbish. The number of abortions exploded after Roe, the best estimates indicating a doubling in number.

    Additionally there is quite a difference between a country having a high murder rate and the same country legalizing murder.

  10. The very nature of liberty requires a free people to allow and accept behavior from others that is both repugnant and benighted.

  11. On the bright side, Roe v Wade was a 7-2 decision. Most decisions upholding abortion since then have been by the thinnest of margins, many only 5-4.

  12. Denver: “The very nature of liberty requires a free people to allow and accept behavior from others that is both repugnant and benighted.”
    .
    Snowflake babies, eggs fertilized, frozen and gestated have grown into “people”. (44,000 in U.K.) You say “a free people” must be given due process of law. “a free people” ought not be murdered.

Comments are closed.