Alongside what one commentator has called the vandalism of the U.S. Constitution that occurred in Roe v. Wade and Doe v. Bolton came two clear-minded, accessible dissents that cut to the core of the multiplicity of errors issued forth from the Court 40 years ago this past Tuesday.

Justice William Rehnquist, who would go on to become the Chief Justice, and Justice Byron White, the two “no” votes in both cases, each handled one of the opinions in a dissent: Justice Rehnquist in Roe and Justice White in Doe.

Justice Rehnquist and Roe

Justice Rehnquist first notes that the majority in striking down a Texas statute banning abortion announced an unregulated right to abortion for women in the first trimester without ever determining whether the plaintiff in the case belonged to that class of individuals—she was simply labeled as “pregnant” in the complaint. In spite of this, the Court used her complaint as a vehicle for announcing a new constitutional right for a group of individuals to which she might not have belonged.

Justices Rehnquist and White

He then explains that he does not believe any right to privacy was involved in this instance, as an operation performed by a physician in this context is not private in the ordinary sense of the 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.”

While he agrees that the Constitution embodies liberties beyond those explicit in the Bill of Rights, there is nothing in Supreme Court jurisprudence to suggest that they are ever absolutely protected against deprivation, only against deprivation without due process of law. Under this standard, the sweeping right to abortion the Court announces is “impossible to justify,” and the weighing of factors that occurs in the majority opinion is “far more appropriate to a legislative judgment than to a judicial one.”

The Majority, he notes, extracts the “compelling state interest” test from Equal Protection jurisprudence and uses it in a substantive due process analysis, achieving the seemingly impossible feat of leaving that area of law more confused than it found it. It will invite the Court to pass on the wisdom of legislatures in determining whether their motives were “compelling.” The decision to break pregnancy into three terms and to outline what is permissible in each term, partakes more of judicial lawmaking than of determining the intent of the authors of the Fourteenth Amendment.

The right announced by the majority, he wrote, is a right that was apparently unknown to the drafters of the Fourteenth Amendment. Thirty-six laws in states or territories limited abortions when the Amendment passed (one dating back to 1821) and there was apparently no concern over these laws at the time.

Finally, Justice Rehnquist notes that the Court determines that some abortions may be blocked, yet it strikes down Texas’s statute in toto. The Court’s practice had been to strike down only the portion of the statute that was unconstitutional, leaving the rest in place. The Court did not do so here.

Justice White and Doe

Justice White’s dissent in Doe begins with a reminder of the question before the Court: whether any woman for “convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc.” is entitled to an abortion “for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health.” The Court, he writes, to a large degree sustains this position, that 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.” Therefore, the same Constitution guarantees the right to abortion against any state law or regulation that would compel some greater justification from the mother.

According to White, “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 right to abortion for pregnant mothers “with scarcely any reason or authority for its announcement,” and invests that right with sufficient authority to override most existing state abortion statutes. It disentitles the legislatures of all 50 states to weigh the matter on their own.

In what would be his most famous line from the dissent he writes, “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.”

Although the Court apparently values the convenience of women more than the lives of their children, he finds no constitutional warrant for imposing such an ordering of priorities on the states. “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.”

It is his view that the Texas statute is not constitutionally infirm, nor is the plaintiff, who asserts no health concern of her own, entitled to assert a right to abortion for women whose pregnancies implicate their health. He would uphold a Georgia statute also at issue as well.

To revisit these statutes is to get a refresher course in what we are up against in trying to defeat Roe. The failure was not just a moral failure; it was principally a willful failure of seven justices to apply the appropriate legal reasoning to the facts before them.

Fortunately, we have these two dissenters who from the beginning saw their way out of such faulty jurisprudence. Let us continue to pray that one day soon our current justices follow their lead.