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The E.Newspaper By Dr. Howdy, Ph.D. A.P.E., N.U.T.
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The Rehnquist Court And American Constitutionalism
Rehnquist's understanding of the Constitution and his opposition to the invention of new "rights" became clear in his dissent in the 1973 case, Roe v. Wade. In that infamous case, the Court's majority simply declared that a woman has an absolute right to an abortion in the first trimester of her pregnancy, and at least some right to an abortion in the next two trimesters. The majority's view, as represented in the opinion offered by Justice Harry Blackmun, declared that this right was rooted in a "right to privacy" supposedly found in the Fourteenth Amendment to the Constitution.
Rehnquist dismissed this claim. "To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment," Rehnquist observed. Following his judicial philosophy and committed to the actual text of the Constitution, Rehnquist believed that the Constitution guaranteed no such "right" to an abortion. Furthermore, he rejected the majority's argument that such a right would fall within the nation's heritage of expanded liberty.
"The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not 'so rooted in the traditions and conscience of our people as to be ranked as fundamental.' Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the 'right' to an abortion is not so universally accepted as the appellant would have us believe."