"[A]lthough no right to privacy was explicitly stated in the Constitution, it was implied form a number of the Amendments. They had ruled that Connecticut could not prohibit married couples from using birth-control devices. Abortion advocates wanted that constitutional right to privacy extended to abortion. Stewart thought that the abortion advocates’ argument was too drastic. He had dissented from the 1965 decision, and he was reluctant to renounce his position. It was simply unnecessary for the Court to create another new constitutionally based right. In a case the previous year (U.S. v. Vuitch), when the Court had upheld restrictions on abortion in the District of Columbia, Douglas had argued in dissent that a physician’s judgment on abortion was a professional judgment that should not be second-guessed. Maybe this was the approach. Stewart thought he could expand Douglas’s argument to show that some anti-abortion statutes inhibited a doctor’s ability to exercise his best judgment Since a state-licensed doctor was a professional, the la should not interfere with his judgment on behalf of his patient. On that theory, Stewart could vote to knock out the Georgia law-which required that abortions be approved by two doctors and a hospital committee-without creating an explicit constitutional right to abortion. But he did not want to be the one to raise this issue in conference. Douglas had presented this rationale the year before. Since he was the Justice most likely to point out any inconsistency by Stewart with his past positions, one of Stewart’s clerks went to Douglas’s chambers. Stewart was considering voting against the Georgia abortion law, he told one of Douglas’s clerks. If Douglas were to resurrect his reasoning, it might help."
Roe v. Wade

January 1, 1970

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