Excerpts from Rehnquist opinions

updated 1:39 p.m. ET Sept. 4, 2005

Excerpts from opinions by Chief Justice William H. Rehnquist, who died late Saturday.

From his dissent in the 1973 Roe vs. Wade decision, which legalized abortion:
The Court’s opinion decides that a State may impose virtually no restriction on the performance of abortions during the first trimester of pregnancy. I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that 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. ... The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation. ... 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.

From Rostker vs. Goldberg in 1981, in upholding Congress’ decision to bar women from registering to be drafted into the military:
The existence of the combat restrictions clearly indicates the basis for Congress’ decision to exempt women from registration. The purpose of registration was to prepare for a draft of combat troops. Since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided not to register them.

Congress’ decision to authorize the registration of only men, therefore, does not violate the (Fifth Amendment’s) Due-Process Clause. The exemption of women from registration is not only sufficiently but closely related to Congress’ purpose in authorizing registration.

From Cruzan vs. Director, Missouri Department of Health in 1990, the first ruling in a “right-to-die” case:
We ... consider the question whether Cruzan has a right under the United States Constitution which would require the hospital to withdraw life-sustaining treatment from her.

At common law, even the touching of one person by another without consent and without legal justification was a battery. The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment.

We assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.

Not all incompetent patients will have loved ones available to serve as surrogate decision-makers. A state is entitled to guard against potential abuses ... where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state. Missouri has permissibly sought to advance these interests through the adoption of a “clear and convincing” standard of proof to govern such proceedings.

From Payne vs. Tennessee in 1991, which declared that juries in death penalty cases may take into account the victim’s character and the suffering of the victim’s relatives:
In this case we reconsider our holdings (in 1987 and 1989) that the Eighth Amendment bars the admission of victim impact evidence during the penalty phase of a capital trial.

We are now of the view that a state may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant.

The state has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.

From United States vs. Lopez in 1995, which overturned a federal law that banned possession of a gun within 1,000 feet of a school, on grounds that Congress lacked the authority to enact it:
In the Gun Free School Zones Act of 1990, Congress made it a federal offense “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.” The act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. We hold that the act exceeds the authority of Congress “[t]o regulate commerce ... among the several states ....”

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