"Three justices concurred in the majority opinion. Chief Justice Burger, displeased with the dissenting Justices' wide interpretation of the majority opinion, rejected the contention that the rule in the cases permits abortion on demand. Justice Douglas, hedging against a too-narrow interpretation of the rule and meeting Justice White's argument about the ordering of priorities between fetus and mother, found Georgia's statute constitutionally defective precisely "because it equates the value of embryonic life immediately after conception with the worth of life immediately before birth" and because the statute fails to include the psychological as well as the physical "health" of the woman as a permissible reason for the right of a woman to interrupt her pregnancy prior to viability. In Douglas' view, the right of a woman to procure an abortion was well within the marital privacy cases on contraception. The concurring opinion of Justice Stewart was a reluctant acceptance-a capitulation following his long resistance, beginning with the Connecticut Birth Control Case, to the doctrine of substantive due process-of the prevailing view that social policy is now subject to judicial review on substantive grounds. Rather than scouring the Constitution's hidden recesses for a nonexistent right of personal privacy, he squarely held on the basis of his reading of the precedents that the right of a woman to procure an abortion is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment."
January 1, 1970