It's amazing how people treat this decision as sacrosanct. In reality, it's an embarrassment to the Court.
https://www.nrlc.org/communications/resources/savagelatimes091405/"At the court’s private conference, the seven justices agreed that the Texas law was extreme and unconstitutional, according to the notes of several justices. Even Byron R. White, a critic of abortion, said doctors must be permitted to act when there were 'health problems.'
Blackmun voiced disdain for feminists who said women deserved control over their bodies. 'There is no absolute right to do with one’s body what you like,' he said. But he agreed that the Texas law was extreme and said it did 'not go far enough to protect doctors.'
The Georgia law was much better, the justices said, except for a requirement that three doctors approve an abortion.
Days later, the liberal justices were irked to receive a memo from Burger saying he had chosen Blackmun to write both opinions. With little guidance from colleagues, Blackmun and his clerks began research."
* * *
"On Nov. 21, two weeks after Nixon’s reelection, Blackmun sent around revised drafts of the majority opinions. The Roe opinion said that for the first three months of a pregnancy, states must 'leave the abortion decision to the best medical judgment of the pregnant woman’s attending physician.'
In a memo to his colleagues, however, he voiced uncertainty.
'This has proved for me to be both difficult and elusive…. You will observe that I have concluded that the end of the first trimester is critical,' he wrote, referring to a cutoff date for permitting abortions. 'This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.' The first trimester is the first three months of a pregnancy.
Brennan, Marshall and Powell wrote back to say that allowing abortions until 'viability' – when a fetus has developed enough to live outside the womb – at six months made more sense.
Douglas disagreed. 'I favor the first trimester, rather than viability,' he said. He was outvoted, however, and Blackmun said he would revise the opinion over the Christmas holidays. In his final draft, states were told they could not restrict abortions through the second trimester.
That change would become the focus of today’s legal and political battles. Opponents have especially condemned a procedure they call partial-birth abortion, which usually takes place in the fifth or sixth month of a pregnancy.
Blackmun’s opinion ends by saying: 'The decision vindicates the right of the physician to administer medical treatment according to his professional judgment…. The abortion decision in all its aspects is inherently, and primarily, a medical decision…. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.'
As some scholars later said, his opinion treated the pregnant woman as a bit player in a doctor’s drama."
They weren't concerned with a woman's rights, nor with the Constitution. Powell wanted to ensure women did not die from abortion, but Blackmun was worried about protecting his doctor buddies. And this wasn't a principled ruling, it was crafted to create a majority to reach the result they wanted.
People who act as if this is some enlightened statement about Constitutional law are blind. It is naked, raw power dressed up in a skin suit pretending to be Constitutional law.
