Abortion: A Mixed and Unsettled Legacy

Abstract:     
Not long after William Rehnquist joined the Court, he dissented in Roe v. Wade. He has continued to urge the Court to overrule Roe throughout his time on the Court. This paper, which will be published by Cambridge University Press in a forthcoming book entitled The Rehnquist Legacy, evaluates Rehnquist's legacy on abortion, and more generally substantive due process. Rehnquist's abortion opinions over the years are striking in how little they say about abortion per se or any governmental interest in fetal life - less than any other Justice who has opposed Roe. Rehnquist has based his opposition to Roe instead on an extremely narrow view of individual liberty protected against governmental intrusion and general hostility to the doctrine of substantive due process. Rehnquist obviously has not succeeded in overruling Roe. Originally in a minority of only two Justices in Roe, Rehnquist steadily gained support throughout the 1980's. But just when new appointments seemed to provide the necessary votes, the Court unexpectedly reaffirmed what it described as Roe's essential holding in its 1992 Casey decision. Less appreciated is the extent to which the Court has diminished judicial protection for reproductive liberty. Rehnquist wrote in Casey: Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality. Court appointments and decisions in the near future will determine Rehnquist's ultimate legacy on reproductive liberty, but for now it is best viewed as mixed and unsettled.

Number of Pages in PDF File: 25

Keywords: Abortion, reproductive rights, privacy, substantive due process, Rehnquist, Roe, Casey, constitutional interpretation, constitutional change, judicial selection

JEL Classification: K10, K19, K30, K39

Accepted Paper Series