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Roe v . Wade

Roe v . Wade . Dissenting Opinion. Justice Rehnquist, Dissenting. Rehnquist points out that the court has not addressed the actual facts of the case but rather has used the case as a source for establishing a new and broad decision on abortion. Rehnquist.

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Roe v . Wade

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  1. Roe v. Wade Dissenting Opinion

  2. Justice Rehnquist, Dissenting • Rehnquist points out that the court has not addressed the actual facts of the case but rather has used the case as a source for establishing a new and broad decision on abortion.

  3. Rehnquist • “Nothing in the Court’s opinion indicates that Texas might not constitutionally apply its proscription of abortion as written to a woman in that stage of pregnancy [the actual stage Roe is in when she filed the lawsuit]. Nonetheless, the Court uses her complaint against Texas statute as a fulcrum for deciding that States may impose virtually no restrictions on medical abortions performed during the first trimester of pregnancy.”

  4. Rehnquist • “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.’”

  5. The Right of Privacy • Rehnquist does not agree that the concept of privacy is applicable in this case. He argues instead that the concept of liberty seems more appropriate than that of privacy for this case. • “I have difficulty in concluding, as the Court does, that the right of ‘privacy’ is involved in this case.”

  6. Interpreting the Constitution • Rehnquist accuses the Court of going beyond its function of interpreting the constitution, in this case the 14th Amendment. • He claims that the Court’s decisions and its dividing up the gestation period into three parts appears to be more like new legislation than a judicial decision.

  7. Interpreting the 14 Amendment • Rehnquist also argues that the the drafters of the 14thAmendment could not have had the Court’s interpretation in mind because many of the State abortion laws (Texas 1856) were developed and enacted BEFORE the passing of the Amendment (1868).

  8. False Assumption • Rehnquist argues that the Court’s perception that there is a universal acceptance of the right to abortion in the first trimester is misleading. • He notes that abortion remains a controversial issue and is not “rooted in tradition and consciousness of our people” as the Court suggests.

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