48 years later and Justice White’s famous dissent in Roe v. Wade remains must reading

“The Court simply fashions and announces a new constitutional right for pregnant mothers”

By Dave Andrusko

The following is a long excerpt from Justice Byron White’s searing dissent in Roe v. Wade. Along with Justice William Rehnquist, they were the only objectors in the 7-2 decision handed down January 22, 1973,

The popular catch phrase from his dissent is that Roe was “An exercise in raw judicial power.” But as you’ll read below, there was much more to Justice White’s dissent than a single memorable phrase.

In addition to being internally incoherent and cobbled together from sources hither and yon, Justice Blackmun’s Roe (and its companion case, Doe v. Bolton) was a textbook case of judicial muscle masquerading as a scholarly reflection on abortion.

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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 advisor willing to undertake the procedure. … 

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 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 disentitled 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. …