Saturday, January 23, 2010

Roe vs. Wade Dissent

Hardly ever mentioned on the matter of Roe vs. Wade are the dissenting opinions that were filed by Justices White and Rehnquist. Of the two, Justice White's definitely had a lot more "oomph" to it as illustrated by the following excerpt:
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 woman 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 women 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.
Where Justice White is wrong, of course, is the assumption that only one's values can determine whether the unborn is a human life. It is only under such an assumption that the last sentence of the above excerpt can be made.


Mark in Spokane said...

Great to see you posting again! Great post here. I'm going to link to it on my own blog. Very good short analysis of the weak-spot in White's dissent. I am generally a fan of White, and I think it took a lot of courage for him to be one of the two dissenters in the case. But his view of the abortion issue deficient in just the way that you pointed out. Great post!

One reason, I imagine, that White took the approach he did is his own personal view of abortion. White was pro-legalized abortion and had stated to his law clerks that if he was a legislator, he would have voted for more liberal abortion laws. (That information comes from Dennis J. Hutchinson's biography of White, The Man Who Once Was Whizzer White -- Hutchinson was one of White's law clerks).

White viewed the question as an inherently political one, and thus one unsuited for judicial resolution (hence his "raw power" characterization of the Court's decision). He didn't view the ultimate question of abortion as one with a right or a wrong answer grounded in reason -- rather, it was a question that called for an inherently political response, which would lead to different outcomes in different states.

Roger said...

Appreciate the comments Mark, as well as the book reference about Justice White. I just might check it out.