- Joined
- Jan 21, 2017
- Messages
- 8,518
- Reaction score
- 2,430
- Gender
- Male
- Political Leaning
- Moderate
PART 2
His first objection is that the plaintiff had no standing; this alone might be grounds for a new look at the issue.
His first objection is that the plaintiff had no standing; this alone might be grounds for a new look at the issue.
Rehnquist also disputes the idea of "privacy" as a basis for this decision.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 lawsuit. 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.
The justice has a far different view on "precedent". He finds that it resides with the long history of state abortion laws starting in 1821. (36 states had abortion laws before the Fourteenth Amendment was passed). He argues that the decision incorrectly defines the public attitude and invents rights never intended under the Fourteenth Amendment.I have difficulty in concluding, as the Court does, that the right of "privacy" is involved in this case. 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... 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... 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.
So he believes the Fourteenth Amendment was in no way intended to put abortion law under federal control. And finally, Justice Rehnquist, who went on to be Chief Justice, questions the application of the Roe decision.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.
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 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.
Last edited: