Dissent in Roe v. Wade
410 U.S. 113 (1973) (1973) · Supreme Court of the United States
Roe v. Wade held that the constitutional right to privacy encompasses a woman's decision to have an abortion, establishing a trimester framework for balancing that right against the state's interests in maternal health and potential life. The case was one of the most controversial and consequential decisions in Supreme Court history, shaping American politics for nearly fifty years until it was overruled by Dobbs v. Jackson Women's Health Organization in 2022.
What was the dissent in Roe v. Wade?
Justice White dissented, arguing that the Court was engaging in raw judicial power by imposing its own values on the states in an area where the Constitution is silent. Justice Rehnquist also dissented, arguing that the right to privacy was not broad enough to include the abortion decision and that the proper standard of review was rational basis, not strict scrutiny.
Case Overview
Facts
Jane Roe, a pseudonym for Norma McCorvey, was an unmarried pregnant woman in Texas who wished to obtain an abortion. Texas law prohibited abortion except to save the life of the mother. Roe filed a federal lawsuit challenging the Texas statute as unconstitutional, arguing that it violated her right to privacy under the Due Process Clause of the Fourteenth Amendment.
Majority Holding
The Court held 7-2 that the right to privacy, whether founded in the Fourteenth Amendment's concept of personal liberty or in the Ninth Amendment's reservation of rights, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. However, this right is not absolute and must be balanced against the state's important interests in safeguarding health and protecting potential life. The Court established a trimester framework to govern the permissible scope of state regulation.
Majority Reasoning
Justice Blackmun's majority opinion traced the history of abortion regulation and found that the right to privacy established in Griswold was broad enough to encompass the abortion decision. The Court balanced this right against two compelling state interests: protecting maternal health and protecting potential life. The trimester framework provided that in the first trimester, the abortion decision must be left to the woman and her physician; in the second trimester, the state may regulate abortion in ways reasonably related to maternal health; and in the third trimester, after viability, the state may regulate or prohibit abortion except where necessary to preserve the life or health of the mother.
The Dissenting Opinion
Justice White dissented, arguing that the Court was engaging in raw judicial power by imposing its own values on the states in an area where the Constitution is silent. Justice Rehnquist also dissented, arguing that the right to privacy was not broad enough to include the abortion decision and that the proper standard of review was rational basis, not strict scrutiny.
Key Quotes
“This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”
“We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.”
“The attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated.”
Impact and Legacy
Roe v. Wade became one of the most politically significant decisions in American history, galvanizing both the pro-choice and pro-life movements and becoming a litmus test for judicial nominations. The trimester framework was modified by Planned Parenthood v. Casey in 1992 and the case was ultimately overruled by Dobbs v. Jackson Women's Health Organization in 2022. Nevertheless, Roe's influence on privacy doctrine, substantive due process, and American political culture remains profound.
Exam Relevance
Roe is tested in substantive due process questions, particularly regarding unenumerated rights, the level of scrutiny applicable to abortion regulations, and the nature of judicial reasoning. Since Dobbs overruled Roe, professors now test students on the competing approaches to identifying fundamental rights and the significance of stare decisis in constitutional adjudication.
Study Tips
- Understand the trimester framework and how it was later replaced by Casey's undue burden standard.
- Be prepared to discuss the methodological debate over how courts should identify unenumerated fundamental rights.
- Know the relationship between Roe, Casey, and Dobbs as a doctrinal arc.
- Consider the arguments for and against treating abortion as a privacy right versus a liberty or equality right.
Read the Full Case Analysis
View the complete brief for Roe v. Wade including full reasoning, doctrine, and study resources.
More Constitutional Law Dissents
United States v. Lopez
514 U.S. 549 (1995) (1995)
Justice Breyer, joined by Justices Stevens, Souter, and Ginsburg, dissented, arguing that gun-related violence near schools substantially affects interstate commerce through its impact on education, workforce productivity, and the national economy. The dissent contended that the majority's approach was inconsistent with the Court's post-New Deal Commerce Clause precedents and improperly limited Congress's rational basis for finding a commercial nexus.
United States v. Morrison
529 U.S. 598 (2000) (2000)
Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, dissented, arguing that the majority's economic/noneconomic distinction was unworkable and that Congress's extensive factual findings of substantial effects on interstate commerce should have been given deference. The dissent contended that the majority was returning to the pre-New Deal era of judicial second-guessing of congressional economic judgments.
Gonzales v. Raich
545 U.S. 1 (2005) (2005)
Justice O'Connor, joined by Chief Justice Rehnquist and Justice Thomas, dissented, arguing that the majority's reasoning effectively returned to a pre-Lopez framework with no meaningful limits on Commerce Clause power. O'Connor contended that if homegrown marijuana for personal medical use is economic activity subject to aggregation, then it is difficult to imagine any activity that Congress cannot regulate.
National Federation of Independent Business v. Sebelius
567 U.S. 519 (2012) (2012)
The joint dissent of Justices Scalia, Kennedy, Thomas, and Alito would have struck down the entire ACA, arguing that the individual mandate was neither a valid exercise of the commerce power nor the taxing power, and that it was not severable from the rest of the Act. Justice Ginsburg, joined by Justices Sotomayor, Breyer, and Kagan, concurred in the judgment on the mandate but dissented on the Commerce Clause analysis, arguing the mandate was a valid exercise of the commerce power.
Lochner v. New York
198 U.S. 45 (1905) (1905)
Justice Holmes wrote a famous dissent arguing that the Fourteenth Amendment does not enact Herbert Spencer's Social Statics and that the Constitution permits states to regulate economic matters as long as a reasonable person could regard the law as a rational response to a perceived problem. Justice Harlan also dissented, arguing the evidence supported the legislature's judgment that bakery work posed genuine health risks.
West Coast Hotel Co. v. Parrish
300 U.S. 379 (1937) (1937)
Justice Sutherland, joined by Justices Van Devanter, McReynolds, and Butler, dissented, maintaining that the minimum wage law unconstitutionally impaired the freedom of contract and that the meaning of the Constitution does not change with the shifting of economic winds.