Page 37 - Heavenly Signs III by Mel Gable

35

Texas. Blackmun continued work on his opinions in both cases over the summer recess, despite the fact that
there was no guarantee that he would be assigned to write the opinions again.
46
The Court issued its decision on January 22, 1973, with a 7-to-2 majority vote in favor of Roe. Burger and
Douglas' concurring opinions and White's dissenting opinion were issued along with the Court's opinion in Doe v.
Bolton which was announced on the same day as Roe v. Wade. The Court deemed abortion a fundamental right
under the United States Constitution, thereby subjecting all laws attempting to restrict it to the standard of strict
scrutiny.

The Court declined to adopt the district court's Ninth Amendment rationale, and instead asserted that the “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.” The Court asserted that the government had two
competing interests – protecting the mother's health and protecting the “potentiality of human life.” Following its
earlier logic, the Court stated that during the first trimester, when the procedure is safer than childbirth, the
decision to abort must be left to the mother and her physician. The State has the right to intervene prior to fetal
viability only to protect the health of the mother, and may regulate the procedure after viability so long as there is
47
always an exception for preserving maternal health.
Dissent Justices

Justices Byron R. White and William H. Rehnquist wrote emphatic dissenting opinions in this case. White wrote:

“I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and
announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right
with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50
States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the
one hand, against a spectrum of possible impacts on the woman, on the other hand. As an exercise of raw judicial power, the Court
perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power
of judicial review that the Constitution extends to this Court.”

White asserted that the Court “values the convenience of the pregnant mother more than the continued existence and development
of the life or potential life that she carries.” Despite White suggesting he “might agree” with the Court's values and
priorities, he wrote that he saw “no constitutional warrant for imposing such an order of priorities on the people and legislatures
of the States.”
48

Presidential Opinions

President Richard Nixon did not publicly comment about the decision. In private conversation later revealed as
part of the Nixon tapes, Nixon said “There are times when an abortion is necessary, I know that.” However, Nixon was
also concerned that greater access to abortions would foster “permissiveness,” and said that “it breaks the family.”
Generally, presidential opinion has been split between major party lines. The Roe decision was opposed by
Presidents Gerald Ford, Ronald Reagan, and George W. Bush. President George H.W. Bush also opposed Roe,
though he had supported abortion rights earlier in his career. Roe was also supported by President Bill Clinton.
President Barack Obama has taken the position that “Abortions should be legally available in accordance with Roe v.

46 Roe v. Wade, 314 F. Supp. 1217 (1970): "On the merits, plaintiffs argue as their principal contention that the Texas Abortion Laws must be
declared unconstitutional because they deprive single women and married couple of their rights secured by the Ninth Amendment to choose whether to have
children. We agree."
47 Chase, H. et al. Supplement to Edward S. Corwin's The Constitution and what it means today: Supreme Court decisions of 1973, 1974, and
1975, page 36 (Princeton University Press 1975).
48 Potts, Malcolm et al. Abortion, page 347 (1977).