William Rehnquist on Abortion
Supreme Court Justice (nominated by Pres. Nixon 1972)
In minority on 7-2 vote on Roe v. Wade
Roe v. Wade, the abortion rights decision that still defines judicial liberalism, passed by a 7-2 vote in 1973, with three of the four Nixon nominees (Burger, Lewis F. Powell, and Harry A.
Blackmun) in the majority. Only Rehnquist, joined by Byron R. White, appointed by John F. Kennedy, dissented.
Source: The Nine, by Jeffrey Toobin, Chapter One
, Sep 9, 2008
"Living Constitution" is invitation to judicial lawmaking
Justice Rehnquist made his views known outside the courthouse, where he openly criticized liberal theories of constitutional law. For example, in a 1976 "Texas Law Review" article, he lampooned the idea of the "living Constitution," calling it an
invitation to judicial lawmaking. Judges, in Rehnquist's view, should not interfere with the representative process. They should allow democratic self-rule.
In 1986, when Reagan decided to appoint Rehnquist chief justice, the Rehnquist judicial tone
changed. While he continued to articulate certain core beliefs, most importantly his consistent view that Roe v Wade was wrongly decided and should be overruled, he was no longer speaking out, and seldom if ever in solitary dissent.
His lectures at law schools railing against judicial excesses likewise were now a thing of yesteryear. Instead of continuing the conservative fight, his long-standing interest in history came to the fore.
Source: First Among Equals, by Kenneth Starr, p. 16-17
, Oct 10, 2002
Roe v. Wade was wrongly decided & should be overturned.
Justice Rehnquist wrote the dissent on PLANNED PARENTHOOD v. CASEY on Jun 29, 1992:
At issue are five provisions of the Pennsylvania Abortion Control Act of 1982:
- requiring a 24-hour “informed consent” waiting period before the abortion is performed;
- mandating the consent of one parent for a minor to obtain an abortion, with a judicial bypass procedure;
- requiring notification of the husband;
- defining a “medical emergency” that will excuse compliance with the foregoing requirements;
- imposing reporting requirements on facilities providing abortion services.
Held:(Written by O’Connor, Kennedy, and Souter; joined in part by Stevens and Blackmun)
Liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned.
We are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed, in three parts:
- The right of the woman to choose to have an abortion before viability.
- The State may restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger the woman’s health.
- The State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.
Dissent:(Rehnquist, joined in part by White, Scalia, and Thomas)
The joint opinion, following its newly minted variation on stare decisis, retains the outer shell of Roe v. Wade, but beats a wholesale retreat from the substance of that case. We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases. We would adopt the approach of the plurality in Webster v. Reproductive Health Services (1989), and uphold the challenged provisions of the Pennsylvania statute in their entirety.
Source: Supreme Court case 92-1 argued on Apr 22, 1992
Page last updated: Feb 02, 2020