Editing Roe v. Wade (section)

==== Concurrences ====
Three justices from the majority filed [[concurring opinion]]s in the case. Justice Potter Stewart wrote a concurring opinion in which he said that even though the Constitution makes no mention of the right to choose to have an abortion without interference, he thought the Court's decision was a permissible interpretation of the doctrine of [[substantive due process]], which says that the [[Due Process Clause]]{{'s}} protection of liberty extends beyond simple procedures and protects certain fundamental rights.{{sfnp|Chemerinsky|2019|loc=§&nbsp;10.3.3.1, p. 888, note 47}}{{sfnp|Nowak|Rotunda|2012|loc=§&nbsp;18.29(b)(i)}} Justice William O. Douglas's concurring opinion described his view that although the Court was correct to find that the right to choose to have an abortion was a fundamental right, he thought it would have been better to derive it from the Ninth Amendment{{mdash}}which states that the fact that a [[Unenumerated rights|right is not specifically enumerated]] in the Constitution shall not be construed to mean that American people do not possess it{{mdash}}rather than through the Fourteenth Amendment's Due Process Clause.{{sfnp|Chemerinsky|2019|loc=§&nbsp;10.3.3.1, p. 888, note 47}}{{sfnp|Nowak|Rotunda|2012|loc=§&nbsp;18.29(b)(i)}}

Chief Justice Warren Burger wrote a concurrence in which he wrote that he thought it would be permissible to allow a state to require two physicians to certify an abortion before it could be performed.{{sfnp|Chemerinsky|2019|loc=§&nbsp;10.3.3.1, p. 888, note 47}} His concurrence also states:<ref name=burgerconcurring>[http://landmarkcases.c-span.org/pdf/Roe_Burger_Concurrence.pdf ''Roe v. Wade'', Mr. Chief Justice Burger, concurring] {{Webarchive|url=https://web.archive.org/web/20220508051032/http://landmarkcases.c-span.org/pdf/Roe_Burger_Concurrence.pdf |date=May 8, 2022 }}, ''Landmark Cases'', C-SPAN, January 22, 1973</ref><blockquote>I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand.</blockquote>

This has been interpreted as Chief Justice Burger thinking that medical standards and judgment would restrict the number of abortions. Instead of the law restricting abortions to limited circumstances as pre-''Roe'', now doctors would get to do the restricting.<ref>[https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=2012&context=clevstlrev Judges as Medical Decision Makers: Is the Cure Worse than the Disease] by Alan A. Stone, ''Cleveland State Law Review'', Volume 33, Issue 4, 1984, page 580 (page 3 of the pdf)</ref>

This understanding of ''Roe'' appears to be related to several statements in the majority opinion.<ref>[https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=2012&context=clevstlrev Judges as Medical Decision Makers: Is the Cure Worse than the Disease] by Alan A. Stone, ''Cleveland State Law Review'', Volume 33, Issue 4, 1984, pages 579–580 (pages 2–3 of the pdf)</ref> Justice Blackmun's majority opinion states, "the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient's pregnancy should be terminated."<ref>[https://supreme.justia.com/cases/federal/us/410/113/#tab-opinion-1950137 ''Roe'', 410 U.S.] at 163, ''justia.com''</ref> It also states, "For the stage, prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician."<ref>[https://supreme.justia.com/cases/federal/us/410/113/#tab-opinion-1950137 ''Roe'', 410 U.S.] at 164, ''justia.com''</ref> Six days prior to January 22, Justice Blackmun prepared "a transcript of what I shall say, and there should be at least some reason for the press not going all the way off the deep end."<ref name=gorlick/> The unissued news release stated:<ref name=savagelatimes/><ref name=gorlick>{{cite web|url=https://news.stanford.edu/news/2008/december3/rehnq-120308.html|title=Rehnquist papers offer peek inside Supreme Court|first=Adam|last=Gorlick|newspaper=Stanford Report|date=November 20, 2008}}</ref>
<blockquote>...{{nbsp}}the Court does not today hold that the Constitution compels abortion on demand. It does not today pronounce that a pregnant woman has an absolute right to abortion. It does, for the first trimester of pregnancy, cast the abortion decision and the responsibility for it upon the attending physician.</blockquote>

These statements appear to indicate that the justices voting in the majority thought that patients had personal physicians. Earlier in American history it was once common for people to have individual doctors, but the nature of doctor-patient relationship had already changed prior to ''Roe''.<ref>{{cite journal|url=https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=2012&context=clevstlrev|title=Judges as Medical Decision Makers: Is the Cure Worse than the Disease|first=Alan A.|last=Stone|journal=Cleveland State Law Review|volume=33|number=4|year=1984|pages=581–582}}</ref>