The Rehnquist Court (1986–2005)


Did the Rehnquist Court overrule Roe v. Wade?

No, to the consternation of many conservatives, the Burger Court’s 1973 opinion in Roe v. Wade has never been overruled. It remains arguably the most controversial decision of the past half-century. Even though the Rehnquist Court did not overrule Roe v. Wade, it did issue several rulings that have limited it to a certain extent. For example, in the 1989 decision Webster v. Reproductive Health Services, the Court upheld a Missouri law that declared that life began at conception and forbade the use of public funds for abortions. In her concurring opinion, Justice Sandra Day O’Connor urged the Court to follow the “undue burden” standard—a regulation impacting abortion law does not violate the Constitution unless it unduly burdens a woman’s right to receive an abortion.

In 1992, many believed that the Court would overrule Roe v. Wade outright with the additions of David Souter and Clarence Thomas to the Court. These two justices replaced the consistent liberal votes of William Brennan and Thurgood Marshall respectively. However, the Court surprised many observers with its 1992 decision in Planned Parenthood v. Casey, which upheld many aspects of Pennsylvania law dealing with abortions, including an informed consent requirement and a twenty-four hour waiting period. The Court did invalidate a provision that required a woman to tell her husband before obtaining an abortion. The Court also questioned Roe v. Wade’s trimester formulation, which divided a pregnancy into three periods called trimesters. However, in their plurality opinion, Justices Sandra Day O’Connor, David Souter, and Anthony Kennedy refused to flatly overrule Roe v. Wade. While they acknowledged that the undue burden standard would replace strict scrutiny as the legal standard, they also reaffirmed the central holding of the landmark case: “The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.”

O’Connor, Kennedy, and Souter were concerned that a decision overturning Roe v. Wade would politicize the Court, threaten stare decisis, and lead to questioning of the Court’s legitimacy. Justice Antonin Scalia authored a scathing dissent, calling the plurality opinion “outrageous” and comparing it to the Dred Scott decision.

The Court continued to issue decisions in the abortion area. In Stenberg v. Carhart (2000), the Court, by a narrow 5–4 vote, invalidated a Nebraska law prohibiting partial-birth abortions. The majority noted that the law failed to include a health exception for women who needed partial birth abortions to save their own health. Scalia once again dissented in strong language: “I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott.”

The abortion controversy is far from over for the Court. In April 2007, the Roberts Court issued a decision in Gonzales v. Carhart, narrowly upholding a federal law that prevented certain types of partial-birth abortions.


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