Justice Byron White
Dissent from Roe v. Wade and Doe v. Bolton and their Progeny


Byron White was appointed to the U.S. Supreme Court as Associate Justice in 1962, and served on the Court until he retired in 1993. He died in 2002. Justice White wrote a widely quoted dissent in Doe v. Bolton, in which Justice Rehnquist concurred.

The Abortion Decisions: "An exercise of raw judicial power"

A prominent critic of Roe v. Wade and Doe v. Bolton, Justice White not only dissented from the 1973 decisions but later made repeated attempts to overrule them. According to his biographer, White's personal views on abortion seem to have been ambivalent. [1] On the other hand, his Roe dissent suggests that he was alarmed by the Court's disregard for the life of the unborn. "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 . . ."[2]

Whatever his own opinions on abortion may have been, there is no doubt that he regarded the Court's action as entirely unjustifiable from a legal perspective:

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. . . . 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.[3]

On the Constitutional Foundations of Roe and Doe: "There, nothing"

This was a view he adhered to throughout his time on the Court. He later told a friend that Roe was the only illegitimate decision the Court had made during his tenure: "In every other case, there was something in the Constitution you could point to for support. There, nothing."[4] White dissented in many other cases, of course, but Roe clearly stood out in his mind as completely unjustifiable. Nearly twenty years later, in Planned Parenthood v. Casey, he voted to overturn Roe despite the fact that the decision was by then a long-standing precedent. This was an unusual move: White, like nearly all judges, tended to defer to decisions eventually even if he had initially disagreed with them. The fact that he made an exception with regard to Roe shows how strongly he objected to the Court's verdict in that case. His biographer makes note of this fact: "Unlike all other areas, in which several years of reaffirmation settled doctrine and dictated his acceptance of a line of authority even where he had dissented at first, abortion was an exception. An illegitimate decision was entitled to no respect."[5]

The Dissent in Thornburgh: Overturn Roe-Return the Issue to the People

This is borne out by White's dissent in Thornburgh v. American College of Obstetricians and Gynecologists, written thirteen years after (1986). In this decision, in an opinion authored by Justice Harry Blackmun, the Court struck down various state abortion regulations, reiterating Roe's claim that abortion is a fundamental constitutional right.

In his dissent White acknowledges the importance of stare decisis: the principle that the Court should uphold its prior decisions for the sake of the law's consistency and integrity. "[W]hen governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results." Stare decisis is thus essential to the judicial process.

It is also essential, however, that the Court retain an ability to set aside prior decisions in certain circumstances: specifically, when a prior decision has overturned laws that represent the will of the people, and has overturned these laws by finding principles in the Constitution that are not there:

[D]ecisions that find in the Constitution principles or values that cannot fairly be read into that document usurp the people's authority, for such decisions represent choices that the people have never made, and that they cannot disavow through corrective legislation. For this reason it is essential that this Court maintain the power to restore authority to its proper possessors by correcting constitutional decisions that, on consideration, are found to be mistaken.

White then cites examples in which the Court had overruled its prior decisions, despite stare decisis concerns. History has shown, moreover, that the Court was right to do so; and even Blackmun had recently acknowledged the necessity of overruling bad decisions that "depart from a proper understanding of the Constitution."

"In my view," says White, "the time has come to recognize that Roe v. Wade, no less than the cases overruled by the Court in the decisions I have just cited, 'departs from a proper understanding of the Constitution,' and to overrule it." White argues this by first noting that there is clearly nothing in the text of the Constitution itself that refers to abortion or even to reproduction generally speaking; moreover, it is "highly doubtful" that the Constitution's authors intended to protect a right to abortion. In Roe the Court had acknowledged as much, but claimed that the Due Process Clause of the Fourteenth Amendment (which forbids the deprivation of life, liberty or property without due process of the law) protected individuals from state laws that infringed on their liberties in certain circumstances. It ruled that abortion was a fundamental liberty that states could not restrict without a compelling interest.

White finds this ruling flawed. While individual liberty is indeed protected under the Due Process Clause, this protection is generally very limited: state laws can usually restrict liberty as long as they are rational. [For instance, my liberty to drive on the left side of the road is restricted by state laws across the nation; these traffic laws certainly do not violate the Due Process Clause.] Only when fundamental rights are at issue is a stricter standard applied: states may not infringe on fundamental rights without a truly compelling reason. In White's opinion, contrary to the Court's in Roe, the liberty to abort is not fundamental; therefore states can restrict abortion.

The question, of course, is how to distinguish a "fundamental" right or liberty from a "non-fundamental" one. White notes that rights found explicitly in the Constitution are clearly fundamental; in protecting these rights against intrusive state laws the Court is on firm ground. However,

[w]hen the Court ventures further and defines as "fundamental" liberties that are nowhere mentioned in the Constitution . . . it must, of necessity, act with more caution, lest it open itself to the accusation that, in the name of identifying constitutional principles to which the people have consented in framing their Constitution, the Court has done nothing more than impose its own value upon the people.

In order to protect against this possibility, the Court in the past has classed as fundamental only those rights that are "implicit in the concept of ordered liberty" such that liberty could not exist without them. At other times the Court has claimed that rights "deeply rooted in the nation's history and tradition" should also be considered fundamental. These approaches allowed the Court to go beyond the text of the Constitution to protect unenumerated rights, but placed limits on how far this process could be taken.

Neither of these approaches justify Roe, says White. It is clear, even from the Court's own opinion in Roe, that abortion is not "deeply rooted in our nation's history and tradition." Nor is abortion "implicit in the concept of ordered liberty:" a free and democratic society does not presuppose any particular set of rules regarding abortion.

And again, the fact that many men and women of good will and high commitment to constitutional government place themselves on both sides of the abortion controversy strengthens my own conviction that the values animating the Constitution do not compel recognition of the abortion liberty as fundamental. In so denominating that liberty, the Court engages not in constitutional interpretation, but in the unrestrained imposition of its own extraconstitutional value preferences.

The Court made another serious error in Roe as well, says White: it not only claimed that abortion was a fundamental right, but also claimed that the state's interest in protecting unborn life was not "compelling" until viability, and therefore ruled that states could not restrict abortion until after viability. White finds the distinction between pre- and post-viability irrelevant: the state's interest in protecting life arises from its desire to protect those who will be citizens if they are not killed in the womb. This interest is equally substantial whether the fetus is viable or not.

White concludes that the abortion issue should be returned to the states and the people themselves:

Abortion is a hotly contested moral and political issue. Such issues, in our society, are to be resolved by the will of the people, either as expressed through legislation or through the general principles they have already incorporated into the Constitution they have adopted. Roe v. Wade implies that the people have already resolved the debate by weaving into the Constitution the values and principles that answer the issue. As I have argued, I believe it is clear that the people have never-not in 1787, 1791, 1868, or at any time since-done any such thing. I would return the issue to the people by overruling Roe v. Wade.

[1] See Dennis Hutchinson, The Man Who Once Was Whizzer White (New York: The Free Press, 1998), 368.

[2] Doe v. Bolton 410 U.S. 179 (1973), 221-23.

[3] Ibid.

[4] The Man Who Once Was Whizzer White , 368.

[5] Ibid., 369.

EndRoe.org Copyright © 2018 NCHLA