|||SUPREME COURT OF THE UNITED STATES
410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201
|||January 22, 1973
|||DOE ET AL.
BOLTON, ATTORNEY GENERAL OF GEORGIA, ET AL.
|||APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
|||Margie Pitts Hames reargued the cause for appellants. With her on the
briefs were Reber F. Boult, Jr., Charles Morgan, Jr., Elizabeth Roediger
Rindskopf, and Tobiane Schwartz.
|||Dorothy T. Beasley reargued the cause for appellees. With her on the brief
were Arthur K. Bolton, Attorney General of Georgia, Harold N. Hill, Jr.,
Executive Assistant Attorney General, Courtney Wilder Stanton, Assistant
Attorney General, Joel Feldman, Henry L. Bowden, and Ralph H. Witt.*
|||Blackmun, J., delivered the opinion of the Court, in which Burger, C.
J., and Douglas, Brennan, Stewart, Marshall, and Powell, JJ., joined. Burger,
C. J., post, p. 207, and Douglas, J., post, p. 209, filed Concurring opinions.
White, J., filed a Dissenting opinion, in which Rehnquist, J., joined, post,
p. 221. Rehnquist, J., filed a Dissenting opinion, post, p. 223.
|||The opinion of the court was delivered by: Blackmun
|||Georgia law proscribes an abortion except as performed by a duly licensed
Georgia physician when necessary in "his best clinical judgment" because
continued pregnancy would endanger a pregnant woman's life or injure her
health; the fetus would likely be born with a serious defect; or the pregnancy
resulted from rape. § 26-1202 (a) of Ga. Criminal Code. In addition
to a requirement that the patient be a Georgia resident and certain other
requirements, the statutory scheme poses three procedural conditions in
§ 26-1202 (b): (1) that the abortion be performed in a hospital accredited
by the Joint Commission on Accreditation of Hospitals (JCAH); (2) that the
procedure be approved by the hospital staff abortion committee; and (3)
that the performing physician's judgment be confirmed by independent examinations
of the patient by two other licensed physicians. Appellant Doe, an indigent
married Georgia citizen, who was denied an abortion after eight weeks of
pregnancy for failure to meet any of the § 26-1202 (a) conditions,
sought declaratory and injunctive relief, contending that the Georgia laws
were unconstitutional. Others joining in the complaint included Georgia-licensed
physicians (who claimed that the Georgia statutes "chilled and deterred"
their practices), registered nurses, clergymen, and social workers. Though
holding that all the plaintiffs had standing, the District Court ruled that
only Doe presented a justiciable controversy. In Doe's case the court gave
declaratory, but not injunctive, relief, invalidating as an infringement
of privacy and personal liberty the limitation to the three situations specified
in § 26-1202 (a) and certain other provisions but holding that the
State's interest in health protection and the existence of a " potential
of independent human existence" justified regulation through § 26-1202
(b) of the "manner of performance as well as the quality of the final decision
to abort." The appellants, claiming entitlement to broader relief, directly
appealed to this Court. Held :
|||1. Doe's case presents a live, justiciable controversy and she has standing
to sue, Roe v. Wade, ante, p. 113, as do the physician-appellants (who,
unlike the physician in Wade, were not charged with abortion violations),
and it is therefore unnecessary to resolve the issue of the other appellants'
standing. Pp. 187-189.
|||2. A woman's constitutional right to an abortion is not absolute. Roe
v. Wade, supra. P. 189.
|||3. The requirement that a physician's decision to perform an abortion
must rest upon "his best clinical judgment" of its necessity is not unconstitutionally
vague, since that judgment may be made in the light of all the attendant
circumstances. United States v. Vuitch, 402 U.S. 62, 71-72. Pp. 191-192.
|||4. The three procedural conditions in § 26-1202 (b) violate the Fourteenth
Amendment. Pp. 192-200.
|||(a) The JCAH-accreditation requirement is invalid, since the State has
not shown that only hospitals (let alone those with JCAH accreditation)
meet its interest in fully protecting the patient; and a hospital requirement
failing to exclude the first trimester of pregnancy would be invalid on
that ground alone, see Roe v. Wade, supra. Pp. 193-195.
|||(b) The interposition of a hospital committee on abortion, a procedure
not applicable as a matter of state to other surgical situations, is unduly
restrictive of the patient's rights, which are already safeguarded by her
personal physician. Pp. 195-198.
|||(c) Required acquiescence by two copractitioners also has no rational
connection with a patient's needs and unduly infringes on her physician's
right to practice. Pp. 198-200.
|||5. The Georgia residence requirement violates the Privileges and Immunities
Clause by denying protection to persons who enter Georgia for medical services
there. P. 200.
|||6. Appellants' equal protection argument centering on the three procedural
conditions in § 26-1202 (b), invalidated on other grounds, is without
merit. Pp. 200-201.
|||7. No ruling is made on the question of injunctive relief. Cf. Roe v.
Wade, supra. P. 201.
|||MR. JUSTICE BLACKMUN delivered the opinion of the Court.
|||In this appeal, the criminal abortion statutes recently enacted in Georgia
are challenged on constitutional grounds. The statutes are §§
26-1201 through 26-1203 of the State's Criminal Code, formulated by Georgia
Laws, 1968 Session, pp. 1249, 1277-1280. In Roe v. Wade, ante, p. 113, we
today have struck down, as constitutionally defective, the Texas criminal
abortion statutes that are representative of provisions long in effect in
a majority of our States. The Georgia legislation, however, is different
and merits separate consideration.
|||The statutes in question are reproduced as Appendix A, post, p. 202. *fn1
As the appellants acknowledge, *fn2
the 1968 statutes are patterned upon the American Law Institute's Model
Penal Code, § 230.3 (Proposed Official Draft, 1962), reproduced as
Appendix B, post, p. 205. The ALI proposal has served as the model for recent
legislation in approximately one-fourth of our States. *fn3
The new Georgia provisions replaced statutory law that had been in effect
for more than 90 years. Georgia Laws 1876, No. 130, § 2, at 113. *fn4
The predecessor statute paralleled the Texas legislation considered in Roe
v. Wade, supra, and made all abortions criminal except those necessary "to
preserve the life" of the pregnant woman. The new statutes have not been
tested on constitutional grounds in the Georgia state courts.
|||Section 26-1201, with a referenced exception, makes abortion a crime,
and § 26-1203 provides that a person convicted of that crime shall
be punished by imprisonment for not less than one nor more than 10 years.
Section 26-1202 (a) states the exception and removes from § 1201's
definition of criminal abortion, and thus makes noncriminal, an abortion
"performed by a physician duly licensed" in Georgia when, "based upon his
best clinical judgment . . . an abortion is necessary because:
|||"(1) A continuation of the pregnancy would endanger the life of the pregnant
woman or would seriously and permanently injure her health; or
|||"(2) The fetus would very likely be born with a grave, permanent, and
irremediable mental or physical defect; or
|||"(3) The pregnancy resulted from forcible or statutory rape." *fn5
|||Section 26-1202 also requires, by numbered subdivisions of its subsection
(b), that, for an abortion to be authorized or performed as a non-criminal
procedure, additional conditions must be fulfilled. These are (1) and (2)
residence of the woman in Georgia; (3) reduction to writing of the performing
physician's medical judgment that an abortion is justified for one or more
of the reasons specified by § 26-1202 (a), with written concurrence
in that judgment by at least two other Georgia-licensed physicians, based
upon their separate personal medical examinations of the woman; (4) performance
of the abortion in a hospital licensed by the State Board of Health and
also accredited by the Joint Commission on Accreditation of Hospitals; (5)
advance approval by an abortion committee of not less than three members
of the hospital's staff; (6) certifications in a rape situation; and (7),
(8), and (9) maintenance and confidentiality of records. There is a provision
(subsection (c)) for judicial determination of the legality of a proposed
abortion on petition of the judicial circuit law officer or of a close relative,
as therein defined, of the unborn child, and for expeditious hearing of
that petition. There is also a provision (subsection (e)) giving a hospital
the right not to admit an abortion patient and giving any physician and
any hospital employee or staff member the right, on moral or religious grounds,
not to participate in the procedure.
|||On April 16, 1970, Mary Doe, *fn6
23 other individuals (nine described as Georgia-licensed physicians, seven
as nurses registered in the State, five as clergymen, and two as social
workers), and two nonprofit Georgia corporations that advocate abortion
reform instituted this federal action in the Northern District of Georgia
against the State's attorney general, the district attorney of Fulton County,
and the chief of police of the city of Atlanta. The plaintiffs sought a
declaratory judgment that the Georgia abortion statutes were unconstitutional
in their entirety. They also sought injunctive relief restraining the defendants
and their successors from enforcing the statutes.
|||Mary Doe alleged:
|||(1) She was a 22-year-old Georgia citizen, married, and nine weeks pregnant.
She had three living children. The two older ones had been placed in a foster
home because of Doe's poverty and inability to care for them. The youngest,
born July 19, 1969, had been placed for adoption. Her husband had recently
abandoned her and she was forced to live with her indigent parents and their
eight children. She and her husband, however, had become reconciled. He
was a construction worker employed only sporadically. She had been a mental
patient at the State Hospital. She had been advised that an abortion could
be performed on her with less danger to her health than if she gave birth
to the child she was carrying. She would be unable to care for or support
the new child.
|||(2) On March 25, 1970, she applied to the Abortion Committee of Grady
Memorial Hospital, Atlanta, for a therapeutic abortion under § 26-1202.
Her application was denied 16 days later, on April 10, when she was eight
weeks pregnant, on the ground that her situation was not one described in
§ 26-1202 (a). *fn7
|||(3) Because her application was denied, she was forced either to relinquish
"her right to decide when and how many children she will bear" or to seek
an abortion that was illegal under the Georgia statutes. This invaded her
rights of privacy and liberty in matters related to family, marriage, and
sex, and deprived her of the right to choose whether to bear children. This
was a violation of rights guaranteed her by the First, Fourth, Fifth, Ninth,
and Fourteenth Amendments. The statutes also denied her equal protection
and procedural due process and, because they were unconstitutionally vague,
deterred hospitals and doctors from performing abortions. She sued "on her
own behalf and on behalf of all others similarly situated."
|||The other plaintiffs alleged that the Georgia statutes "chilled and deterred"
them from practicing their respective professions and deprived them of rights
guaranteed by the First, Fourth, and Fourteenth Amendments. These plaintiffs
also purported to sue on their own behalf and on behalf of others similarly
|||A three-Judge district court was convened. An offer of proof as to Doe's
identity was made, but the court deemed it unnecessary to receive that proof.
The case was then tried on the pleadings and interrogatories.
|||The District Court, per curiam, 319 F.Supp. 1048 (ND Ga. 1970), held that
all the plaintiffs had standing but that only Doe presented a justiciable
controversy. On the merits, the court concluded that the limitation in the
Georgia statute of the "number of reasons for which an abortion may be sought,"
id., at 1056, improperly restricted Doe's rights of privacy articulated
in Griswold v. Connecticut, 381 U.S. 479 (1965), and of "personal liberty,"
both of which it thought "broad enough to include the decision to abort
a pregnancy," 319 F.Supp., at 1055. As a consequence, the court held invalid
those portions of §§ 26-1202 (a) and (b)(3) limiting legal abortions
to the three situations specified; § 26-1202 (b)(6) relating to certifications
in a rape situation; and § 26-1202 (c) authorizing a court test. Declaratory
relief was granted accordingly. The court, however, held that Georgia's
interest in protection of health, and the existence of a " potential of
independent human existence" (emphasis in original), id., at 1055, justified
state regulation of "the manner of performance as well as the quality of
the final decision to abort," id., at 1056, and it refused to strike down
the other provisions of the statutes. It denied the request for an injunction,
id., at 1057.
|||Claiming that they were entitled to an injunction and to broader relief,
the plaintiffs took a direct appeal pursuant to 28 U. S. C. § 1253.
We postponed decision on jurisdiction to the hearing on the merits. 402
U.S. 941 (1971). The defendants also purported to appeal, pursuant to §
1253, but their appeal was dismissed for want of jurisdiction. 402 U.S.
936 (1971). We are advised by the appellees, Brief 42, that an alternative
appeal on their part is pending in the United States Court of Appeals for
the Fifth Circuit. The extent, therefore, to which the District Court decision
was adverse to the defendants, that is, the extent to which portions of
the Georgia statutes were held to be unconstitutional, technically is not
now before us. *fn8 Swarb v. Lennox,
405 U.S. 191, 201 (1972).
|||Our decision in Roe v. Wade, ante, p. 113, establishes (1) that, despite
her pseudonym, we may accept as true, for this case, Mary Doe's existence
and her pregnant state on April 16, 1970; (2) that the constitutional issue
is substantial; (3) that the interim termination of Doe's and all other
Georgia pregnancies in existence in 1970 has not rendered the case moot;
and (4) that Doe presents a justiciable controversy and has standing to
maintain the action.
|||Inasmuch as Doe and her class are recognized, the question whether the
other appellants -- physicians, nurses, clergymen, social workers, and corporations
-- present a justiciable controversy and have standing is perhaps a matter
of no great consequence. We conclude, however, that the physician-appellants,
who are Georgia-licensed doctors consulted by pregnant women, also present
a justiciable controversy and do have standing despite the fact that the
record does not disclose that any one of them has been prosecuted, or threatened
with prosecution, for violation of the State's abortion statutes. The physician
is the one against whom these criminal statutes directly operate in the
event he procures an abortion that does not meet the statutory exceptions
and conditions. The physician-appellants, therefore, assert a sufficiently
direct threat of personal detriment. They should not be required to await
and undergo a criminal prosecution as the sole means of seeking relief.
Crossen v. Breckenridge, 446 F.2d 833, 839-840 (CA6 1971); Poe v. Menghini,
339 F.Supp. 986, 990-991 (Kan. 1972).
|||In holding that the physicians, while theoretically possessed of standing,
did not present a justiciable controversy, the District Court seems to have
relied primarily on Poe v. Ullman, 367 U.S. 497 (1961). There, a sharply
divided Court dismissed an appeal from a state court on the ground that
it presented no real controversy justifying the adjudication of a constitutional
issue. But the challenged Connecticut statute, deemed to prohibit the giving
of medical advice on the use of contraceptives, had been enacted in 1879,
and, apparently with a single exception, no one had ever been prosecuted
under it. Georgia's statute, in contrast, is recent and not moribund. Furthermore,
it is the successor to another Georgia abortion statute under which, we
are told, *fn9 physicians were
prosecuted. The present case, therefore, is closer to Epperson v. Arkansas,
393 U.S. 97 (1968), where the Court recognized the right of a school teacher,
though not yet charged criminally, to challenge her State's anti-evolution
statute. See also Griswold v. Connecticut, 381 U.S., at 481.
|||The parallel claims of the nurse, clergy, social worker, and corporation-appellants
are another step removed and as to them, the Georgia statutes operate less
directly. Not being licensed physicians, the nurses and the others are in
no position to render medical advice. They would be reached by the abortion
statutes only in their capacity as accessories or as counselor-conspirators.
We conclude that we need not pass upon the status of these additional appellants
in this suit, for the issues are sufficiently and adequately presented by
Doe and the physician-appellants, and nothing is gained or lost by the presence
or absence of the nurses, the clergymen, the social workers, and the corporations.
See Roe v. Wade, ante, at 127.
|||The appellants attack on several grounds those portions of the Georgia
abortion statutes that remain after the District Court decision: undue restriction
of a right to personal and marital privacy; vagueness; deprivation of substantive
and procedural due process; improper restriction to Georgia residents; and
denial of equal protection.
|||A. Roe v. Wade, supra, sets forth our Conclusion that a pregnant woman
does not have an absolute constitutional right to an abortion on her demand.
What is said there is applicable here and need not be repeated.
|||B. The appellants go on to argue, however, that the present Georgia statutes
must be viewed historically, that is, from the fact that prior to the 1968
Act an abortion in Georgia was not criminal if performed to "preserve the
life" of the mother. It is suggested that the present statute, as well,
has this emphasis on the mother's rights, not on those of the fetus. Appellants
contend that it is thus clear that Georgia has given little, and certainly
not first, consideration to the unborn child. Yet, it is the unborn child's
rights that Georgia asserts in justification of the statute. Appellants
assert that this justification cannot be advanced at this late date.
|||Appellants then argue that the statutes do not adequately protect the
woman's right. This is so because it would be physically and emotionally
damaging to Doe to bring a child into her poor, "fatherless" *fn10
family, and because advances in medicine and medical techniques have made
it safer for a woman to have a medically induced abortion than for her to
bear a child. Thus, "a statute that requires a woman to carry an unwanted
pregnancy to term infringes not only on a fundamental right of privacy but
on the right to life itself." Brief 27.
|||The appellants recognize that a century ago medical knowledge was not
so advanced as it is today, that the techniques of antisepsis were not known,
and that any abortion procedure was dangerous for the woman. To restrict
the legality of the abortion to the situation where it was deemed necessary,
in medical judgment, for the preservation of the woman's life was only a
natural Conclusion in the exercise of the legislative judgment of that time.
A State is not to be reproached, however, for a past judgmental determination
made in the light of then-existing medical knowledge. It is perhaps unfair
to argue, as the appellants do, that because the early focus was on the
preservation of the woman's life, the State's present professed interest
in the protection of embryonic and fetal life is to be downgraded. That
argument denies the State the right to readjust its views and emphases in
the light of the advanced knowledge and techniques of the day.
|||C. Appellants argue that § 26-1202 (a) of the Georgia statutes, as
it has been left by the District Court's decision, is unconstitutionally
vague. This argument centers on the proposition that, with the District
Court's having struck down the statutorily specified reasons, it still remains
a crime for a physician to perform an abortion except when, as § 26-1202
(a) reads, it is "based upon his best clinical judgment that an abortion
is necessary." The appellants contend that the word "necessary" does not
warn the physician of what conduct is proscribed; that the statute is wholly
without objective standards and is subject to diverse interpretation; and
that doctors will choose to err on the side of caution and will be arbitrary.
|||The net result of the District Court's decision is that the abortion determination,
so far as the physician is concerned, is made in the exercise of his professional,
that is, his "best clinical," judgment in the light of all the attendant
circumstances. He is not now restricted to the three situations originally
specified. Instead, he may range farther afield wherever his medical judgment,
properly and professionally exercised, so dictates and directs him.
|||The vagueness argument is set at rest by the decision in United States
v. Vuitch, 402 U.S. 62, 71-72 (1971), where the issue was raised with respect
to a District of Columbia statute making abortions criminal "unless the
same were done as necessary for the preservation of the mother's life or
health and under the direction of a competent licensed practitioner of medicine."
That statute has been construed to bear upon psychological as well as physical
well-being. This being so, the Court concluded that the term "health" presented
no problem of vagueness. "Indeed, whether a particular operation is necessary
for a patient's physical or mental health is a judgment that physicians
are obviously called upon to make routinely whenever surgery is considered."
Id., at 72. This Conclusion is equally applicable here. Whether, in the
words of the Georgia statute, "an abortion is necessary" is a professional
judgment that the Georgia physician will be called upon to make routinely.
|||We agree with the District Court, 319 F.Supp., at 1058, that the medical
judgment may be exercised in the light of all factors -- physical, emotional,
psychological, familial, and the woman's age -- relevant to the well-being
of the patient. All these factors may relate to health. This allows the
attending physician the room he needs to make his best medical judgment.
And it is room that operates for the benefit, not the disadvantage, of the
|||D. The appellants next argue that the District Court should have declared
unconstitutional three procedural demands of the Georgia statute: (1) that
the abortion be performed in a hospital accredited by the Joint Commission
on Accreditation of Hospitals: *fn11
(2) that the procedure be approved by the hospital staff abortion committee;
and (3) that the performing physician's judgment be confirmed by the independent
examinations of the patient by two other licensed physicians. The appellants
attack these provisions not only on the ground that they unduly restrict
the woman's right of privacy, but also on procedural due process and equal
protection grounds. The physician-appellants also argue that, by subjecting
a doctor's individual medical judgment to committee approval and to confirming
consultations, the statute impermissibly restricts the physician's right
to practice his profession and deprives him of due process.
|||1. JCAH accreditation. The Joint Commission on Accreditation of Hospitals
is an organization without governmental sponsorship or overtones. No question
whatever is raised concerning the integrity of the organization or the high
purpose of the accreditation process. *fn12
That process, however, has to do with hospital standards generally and has
no present particularized concern with abortion as a medical or surgical
procedure. *fn13 In Georgia,
there is no restriction on the performance of nonabortion surgery in a hospital
not yet accredited by the JCAH so long as other requirements imposed by
the State, such as licensing of the hospital and of the operating surgeon,
are met. See Georgia Code §§ 88-1901 (a) and 88-1905 (1971) and
84-907 (Supp. 1971). Furthermore, accreditation by the Commission is not
granted until a hospital has been in operation at least one year. The Model
Penal Code, § 230.3, Appendix B hereto, contains no requirement for
JCAH accreditation. And the Uniform Abortion Act (Final Draft, Aug. 1971),
*fn14 approved by the American
Bar Association in February 1972, contains no JCAH-accredited hospital specification.
*fn15 Some courts have held that
a JCAH-accreditation requirement is an overbroad infringement of fundamental
rights because it does not relate to the particular medical problems and
dangers of the abortion operation. E. g., Poe v. Menghini, 339 F.Supp.,
|||We hold that the JCAH-accreditation requirement does not withstand constitutional
scrutiny in the present context. It is a requirement that simply is not
"based on differences that are reasonably related to the purposes of the
Act in which it is found." Morey v. Doud, 354 U.S. 457, 465 (1957).
|||This is not to say that Georgia may not or should not, from and after
the end of the first trimester, adopt standards for licensing all facilities
where abortions may be performed so long as those standards are legitimately
related to the objective the State seeks to accomplish. The appellants contend
that such a relationship would be lacking even in a lesser requirement that
an abortion be performed in a licensed hospital, as opposed to a facility,
such as a clinic, that may be required by the State to possess all the staffing
and services necessary to perform an abortion safely (including those adequate
to handle serious complications or other emergency, or arrangements with
a nearby hospital to provide such services). Appellants and various amici
have presented us with a mass of data purporting to demonstrate that some
facilities other than hospitals are entirely adequate to perform abortions
if they possess these qualifications. The State, on the other hand, has
not presented persuasive data to show that only hospitals meet its acknowledged
interest in insuring the quality of the operation and the full protection
of the patient. We feel compelled to agree with appellants that the State
must show more than it has in order to prove that only the full resources
of a licensed hospital, rather than those of some other appropriately licensed
institution, satisfy these health interests. We hold that the hospital requirement
of the Georgia law, because it fails to exclude the first trimester of pregnancy,
see Roe v. Wade, ante, at 163, is also invalid. In so holding we naturally
express no opinion on the medical judgment involved in any particular case,
that is, whether the patient's situation is such that an abortion should
be performed in a hospital, rather than in some other facility.
|||2. Committee approval. The second aspect of the appellants' procedural
attack relates to the hospital abortion committee and to the pregnant woman's
asserted lack of access to that committee. Relying primarily on Goldberg
v. Kelly, 397 U.S. 254 (1970), concerning the termination of welfare benefits,
and Wisconsin v. Constantineau, 400 U.S. 433 (1971), concerning the posting
of an alcoholic's name, Doe first argues that she was denied due process
because she could not make a presentation to the committee. It is not clear
from the record, however, whether Doe's own consulting physician was or
was not a member of the committee or did or did not present her case, or,
indeed, whether she herself was or was not there. We see nothing in the
Georgia statute that explicitly denies access to the committee by or on
behalf of the woman. If the access point alone were involved, we would not
be persuaded to strike down the committee provision on the unsupported assumption
that access is not provided.
|||Appellants attack the discretion the statute leaves to the committee.
The most concrete argument they advance is their suggestion that it is still
a badge of infamy "in many minds" to bear an illegitimate child, and that
the Georgia system enables the committee members' personal views as to extramarital
sex relations, and punishment therefor, to govern their decisions. This
approach obviously is one founded on suspicion and one that discloses a
lack of confidence in the integrity of physicians. To say that physicians
will be guided in their hospital committee decisions by their predilections
on extramarital sex unduly narrows the issue to pregnancy outside marriage.
(Doe's own situation did not involve extramarital sex and its product.)
The appellants' suggestion is necessarily somewhat degrading to the conscientious
physician, particularly the obstetrician, whose professional activity is
concerned with the physical and mental welfare, the woes, the emotions,
and the concern of his female patients. He, perhaps more than anyone else,
is knowledgeable in this area of patient care, and he is aware of human
frailty, so-called "error," and needs. The good physician -- despite the
presence of rascals in the medical profession, as in all others, we trust
that most physicians are "good" -- will have sympathy and understanding
for the pregnant patient that probably are not exceeded by those who participate
in other areas of professional counseling.
|||It is perhaps worth noting that the abortion committee has a function
of its own. It is a committee of the hospital and it is composed of members
of the institution's medical staff. The membership usually is a changing
one. In this way, its work burden is shared and is more readily accepted.
The committee's function is protective. It enables the hospital appropriately
to be advised that its posture and activities are in accord with legal requirements.
It is to be remembered that the hospital is an entity and that it, too,
has legal rights and legal obligations.
|||Saying all this, however, does not settle the issue of the constitutional
propriety of the committee requirement. Viewing the Georgia statute as a
whole, we see no constitutionally justifiable pertinence in the structure
for the advance approval by the abortion committee. With regard to the protection
of potential life, the medical judgment is already completed prior to the
committee stage, and review by a committee once removed from diagnosis is
basically redundant. We are not cited to any other surgical procedure made
subject to committee approval as a matter of state . The woman's right to
receive medical care in accordance with her licensed physician's best judgment
and the physician's right to administer it are substantially limited by
this statutorily imposed overview. And the hospital itself is otherwise
fully protected. Under § 26-1202 (e), the hospital is free not to admit
a patient for an abortion. It is even free not to have an abortion committee.
Further, a physician or any other employee has the right to refrain, for
moral or religious reasons, from participating in the abortion procedure.
These provisions obviously are in the statute in order to afford appropriate
protection to the individual and to the denominational hospital. Section
26-1202 (e) affords adequate protection to the hospital, and little more
is provided by the committee prescribed by § 26-1202 (b)(5).
|||We conclude that the interposition of the hospital abortion committee
is unduly restrictive of the patient's rights and needs that, at this point,
have already been medically delineated and substantiated by her personal
physician. To ask more serves neither the hospital nor the State.
|||3. Two-doctor concurrence. The third aspect of the appellants' attack
centers on the "time and availability of adequate medical facilities and
personnel." It is said that the system imposes substantial and irrational
roadblocks and "is patently unsuited" to prompt determination of the abortion
decision. Time, of course, is critical in abortion. Risks during the first
trimester of pregnancy are admittedly lower than during later months.
|||The appellants purport to show by a local study *fn16
of Grady Memorial Hospital (serving indigent residents in Fulton and DeKalb
Counties) that the "mechanics of the system itself forced . . . discontinuance
of the abortion process" because the median time for the workup was 15 days.
The same study shows, however, that 27% of the candidates for abortion were
already 13 or more weeks pregnant at the time of application, that is, they
were at the end of or beyond the first trimester when they made their applications.
It is too much to say, as appellants do, that these particular persons "were
victims of a system over which they no control." If higher risk was incurred
because of abortions in the second rather than the first trimester, much
of that risk was due to delay in application, and not to the alleged cumbersomeness
of the system. We note, in passing, that appellant Doe had no delay problem
herself; the decision in her case was made well within the first trimester.
|||It should be manifest that our rejection of the accredited-hospital requirement
and, more important, of the abortion committee's advance approval eliminates
the major grounds of the attack based on the system's delay and the lack
of facilities. There remains, however, the required confirmation by two
Georgia-licensed physicians in addition to the recommendation of the pregnant
woman's own consultant (making under the statute, a total of six physicians
involved, including the three on the hospital's abortion committee). We
conclude that this provision, too, must fall.
|||The statute's emphasis, as has been repetitively noted, is on the attending
physician's "best clinical judgment that an abortion is necessary." That
should be sufficient. The reasons for the presence of the confirmation step
in the statute are perhaps apparent, but they are insufficient to withstand
constitutional challenge. Again, no other voluntary medical or surgical
procedure for which Georgia requires confirmation by two other physicians
has been cited to us. If a physician is licensed by the State, he is recognized
by the State as capable of exercising acceptable clinical judgment. If he
fails in this, professional censure and deprivation of his license are available
remedies. Required acquiescence by co-practitioners has no rational connection
with a patient's needs and unduly infringes on the physician's right to
practice. The attending physician will know when a consultation is advisable
-- the doubtful situation, the need for assurance when the medical decision
is a delicate one, and the like. Physicians have followed this routine historically
and know its usefulness and benefit for all concerned. It is still true
today that "reliance must be placed upon the assurance given by his license,
issued by an authority competent to Judge in that respect, that he [the
physician] possesses the requisite qualifications." Dent v. West Virginia,
129 U.S. 114, 122-123 (1889). See United States v. Vuitch, 402 U.S., at
|||E. The appellants attack the residency requirement of the Georgia law,
§§ 26-1202 (b)(1) and (b)(2), as violative of the right to travel
stressed in Shapiro v. Thompson, 394 U.S. 618, 629-631 (1969), and other
cases. A requirement of this kind, of course, could be deemed to have some
relationship to the availability of post-procedure medical care for the
|||Nevertheless, we do not uphold the constitutionality of the residence
requirement. It is not based on any policy of preserving state-supported
facilities for Georgia residents, for the bar also applies to private hospitals
and to privately retained physicians. There is no intimation, either, that
Georgia facilities are utilized to capacity in caring for Georgia residents.
Just as the Privileges and Immunities Clause, Const. Art. IV, § 2,
protects persons who enter other States to ply their trade, Ward v. Maryland,
12 Wall. 418, 430 (1871); Blake v. McClung, 172 U.S. 239, 248-256 (1898),
so must it protect persons who enter Georgia seeking the medical services
that are available there. See Toomer v. Witsell, 334 U.S. 385, 396-397 (1948).
A contrary holding would mean that a State could limit to its own residents
the general medical care available within its borders. This we could not
|||F. The last argument on this phase of the case is one that often is made,
namely, that the Georgia system is violative of equal protection because
it discriminates against the poor. The appellants do not urge that abortions
should be performed by persons other than licensed physicians, so we have
no argument that because the wealthy can better afford physicians, the poor
should have nonphysicians made available to them. The appellants acknowledged
that the procedures are "nondiscriminatory in . . . express terms" but they
suggest that they have produced invidious discriminations. The District
Court rejected this approach out of hand. 319 F.Supp., at 1056. It rests
primarily on the accreditation and approval and confirmation requirements,
discussed above, and on the assertion that most of Georgia's counties have
no accredited hospital. We have set aside the accreditation, approval, and
confirmation requirements, however, and with that, the discrimination argument
collapses in all significant aspects.
|||The appellants complain, finally, of the District Court's denial of injunctive
relief. A like claim was made in Roe v. Wade, ante, p. 113. We declined
decision there insofar as injunctive relief was concerned, and we decline
it here. We assume that Georgia's prosecutorial authorities will give full
recognition to the judgment of this Court.
|||In summary, we hold that the JCAH-accredited hospital provision and the
requirements as to approval by the hospital abortion committee, as to confirmation
by two independent physicians, and as to residence in Georgia are all violative
of the Fourteenth Amendment. Specifically, the following portions of §
26-1202 (b), remaining after the District Court's judgment, are invalid:
|||(1) Subsections (1) and (2).
|||(2) That portion of Subsection (3) following the words "such physician's
judgment is reduced to writing."
|||(3) Subsections (4) and (5).
|||The judgment of the District Court is modified accordingly and, as so
modified, is affirmed. Costs are allowed to the appellants.
|||APPENDIX A TO OPINION OF THE COURT
|||Criminal Code of Georgia
|||(The italicized portions are those held unconstitutional by the District
|||CHAPTER 26-12. ABORTION.
|||26-1201. Criminal Abortion. Except as otherwise provided in section 26-1202,
a person commits criminal abortion when he administers any medicine, drug
or other substance whatever to any woman or when he uses any instrument
or other means whatever upon any woman with intent to produce a miscarriage
|||26-1202. Exception. (a) Section 26-1201 shall not apply to an abortion
performed by a physician duly licensed to practice medicine and surgery
pursuant to Chapter 84-9 or 84-12 of the Code of Georgia of 1933, as amended,
based upon his best clinical judgment that an abortion is necessary because
|||(1) A continuation of the pregnancy would endanger the life of the pregnant
woman or would seriously and permanently injure her health; or
|||(2) The fetus would very likely be born with a grave, permanent, and irremediable
mental or physical defect; or
|||(3) The pregnancy resulted from forcible or statutory rape.
|||(b) No abortion is authorized or shall be performed under this section
unless each of the following conditions is met:
|||(1) The pregnant woman requesting the abortion certifies in writing under
oath and subject to the penalties of false swearing to the physician who
proposes to perform the abortion that she is a bona fide legal resident
of the State of Georgia.
|||(2) The physician certifies that he believes the woman is a bona fide
resident of this State and that he has no information which should lead
him to believe otherwise.
|||(3) Such physician's judgment is reduced to writing and concurred in by
at least two other physicians duly licensed to practice medicine and surgery
pursuant to Chapter 84-9 of the Code of Georgia of 1933, as amended, who
certify in writing that based upon their separate personal medical examinations
of the pregnant woman, the abortion is, in their judgment, necessary because
of one or more of the reasons enumerated above.
|||(4) Such abortion is performed in a hospital licensed by the State Board
of Health and accredited by the Joint Commission on Accreditation of Hospitals.
|||(5) The performance of the abortion has been approved in advance by a
committee of the medical staff of the hospital in which the operation is
to be performed. This committee must be one established and maintained in
accordance with the standards promulgated by the Joint Commission on the
Accreditation of Hospitals, and its approval must be by a majority vote
of a membership of not less than three members of the hospital's staff;
the physician proposing to perform the operation may not be counted as a
member of the committee for this purpose.
|||(6) If the proposed abortion is considered necessary because the woman
has been raped, the woman makes a written statement under oath, and subject
to the penalties of false swearing, of the date, time and place of the rape
and the name of the rapist, if known. There must be attached to this statement
a certified copy of any report of the rape made by any law enforcement officer
or agency and a statement by the solicitor general of the judicial circuit
where the rape occurred or allegedly occurred that, according to his best
information, there is probable cause to believe that the rape did occur.
|||(7) Such written opinions, statements, certificates, and concurrences
are maintained in the permanent files of such hospital and are available
at all reasonable times to the solicitor general of the judicial circuit
in which the hospital is located.
|||(8) A copy of such written opinions, statements, certificates, and concurrences
is filed with the Director of the State Department of Public Health within
10 days after such operation is performed.
|||(9) All written opinions, statements, certificates, and concurrences filed
and maintained pursuant to paragraphs (7) and (8) of this subsection shall
be confidential records and shall not be made available for public inspection
at any time.
|||(c) Any solicitor general of the judicial circuit in which an abortion
is to be performed under this section, or any person who would be a relative
of the child within the second degree of consanguinity, may petition the
superior court of the county in which the abortion is to be performed for
a declaratory judgment whether the performance of such abortion would violate
any constitutional or other legal rights of the fetus. Such solicitor general
may also petition such court for the purpose of taking issue with compliance
with the requirements of this section. The physician who proposes to perform
the abortion and the pregnant woman shall be respondents. The petition shall
be heard expeditiously and if the court adJudges that such abortion would
violate the constitutional or other legal rights of the fetus, the court
shall so declare and shall restrain the physician from performing the abortion.
|||(d) If an abortion is performed in compliance with this section, the death
of the fetus shall not give rise to any claim for wrongful death.
|||(e) Nothing in this section shall require a hospital to admit any patient
under the provisions hereof for the purpose of performing an abortion, nor
shall any hospital be required to appoint a committee such as contemplated
under subsection (b) (5). A physician, or any other person who is a member
of or associated with the staff of a hospital, or any employee of a hospital
in which an abortion has been authorized, who shall state in writing an
objection to such abortion on moral or religious grounds shall not be required
to participate in the medical procedures which will result in the abortion,
and the refusal of any such person to participate therein shall not form
the basis of any claim for damages on account of such refusal or for any
disciplinary or recriminatory action against such person.
|||26-1203. Punishment. A person convicted of criminal abortion shall be
punished by imprisonment for not less than one nor more than 10 years.
|||APPENDIX B TO OPINION OF THE COURT
|||American Law Institute
|||MODEL PENAL CODE
|||Section 230.3. Abortion.
|||(1) Unjustified Abortion. A person who purposely and unjustifiably terminates
the pregnancy of another otherwise than by a live birth commits a felony
of the third degree or, where the pregnancy has continued beyond the twenty-sixth
week, a felony of the second degree.
|||(2) Justifiable Abortion. A licensed physician is justified in terminating
a pregnancy if he believes there is substantial risk that continuance of
the pregnancy would gravely impair the physical or mental health of the
mother or that the child would be born with grave physical or mental defect,
or that the pregnancy resulted from rape, incest, or other felonious intercourse.
All illicit intercourse with a girl below the age of 16 shall be deemed
felonious for purposes of this subsection. Justifiable abortions shall be
performed only in a licensed hospital except in case of emergency when hospital
facilities are unavailable. [Additional exceptions from the requirement
of hospitalization may be incorporated here to take account of situations
in sparsely settled areas where hospitals are not generally accessible.]
|||(3) Physicians' Certificates; Presumption from Non-Compliance. No abortion
shall be performed unless two physicians, one of whom may be the person
performing the abortion, shall have certified in writing the circumstances
which they believe to justify the abortion. Such certificate shall be submitted
before the abortion to the hospital where it is to be performed and, in
the case of abortion following felonious intercourse, to the prosecuting
attorney or the police. Failure to comply with any of the requirements of
this Subsection gives rise to a presumption that the abortion was unjustified.
|||(4) Self-Abortion. A woman whose pregnancy has continued beyond the twenty-sixth
week commits a felony of the third degree if she purposely terminates her
own pregnancy otherwise than by a live birth, or if she uses instruments,
drugs or violence upon herself for that purpose. Except as justified under
Subsection (2), a person who induces or knowingly aids a woman to use instruments,
drugs or violence upon herself for the purpose of terminating her pregnancy
otherwise than by a live birth commits a felony of the third degree whether
or not the pregnancy has continued beyond the twenty-sixth week.
|||(5) Pretended Abortion. A person commits a felony of the third degree
if, representing that it is his purpose to perform an abortion, he does
an act adapted to cause abortion in a pregnant woman although the woman
is in fact not pregnant, or the actor does not believe she is. A person
charged with unjustified abortion under Subsection (1) or an attempt to
commit that offense may be convicted thereof upon proof of conduct prohibited
by this Subsection.
|||(6) Distribution of Abortifacients. A person who sells, offers to sell,
possesses with intent to sell, advertises, or displays for sale anything
specially designed to terminate a pregnancy, or held out by the actor as
useful for that purpose, commits a misdemeanor, unless:
|||(a) the sale, offer or display is to a physician or druggist or to an
intermediary in a chain of distribution to physicians or druggists; or
|||(b) the sale is made upon prescription or order of a physician; or
|||(c) the possession is with intent to sell as authorized in paragraphs
(a) and (b); or
|||(d) the advertising is addressed to persons named in paragraph (a) and
confined to trade or professional channels not likely to reach the general
|||(7) Section Inapplicable to Prevention of Pregnancy. Nothing in this Section
shall be deemed applicable to the prescription, administration or distribution
of drugs or other substances for avoiding pregnancy, whether by preventing
implantation of a fertilized ovum or by any other method that operates before,
at or immediately after fertilization.
|||[EDITOR'S NOTE: The Concurring opinion of Mr. Justice Burger was published
separately at 93 S. Ct. 755.]
|||MR. CHIEF JUSTICE BURGER, Concurring*
|||[EDITOR'S NOTE: The page numbers of this document may appear to be out
of sequence; however, this pagination accurately reflects the pagination
of the original published document.]
|||I agree that, under the Fourteenth Amendment to the Constitution, the
abortion statutes of Georgia and Texas impermissibly limit the performance
of abortions necessary to protect the health of pregnant women, using the
term health in its broadest medical context. See United States v. Vuitch,
402 U.S. 62, 71-72 (1971). I am somewhat troubled that the Court has taken
notice of various scientific and medical data in reaching its Conclusion;
however, I do not believe that the Court has exceeded the scope of judicial
notice accepted in other contexts.
|||In oral argument, counsel for the State of Texas informed the Court that
early abortion procedures were routinely permitted in certain exceptional
cases, such as nonconsensual pregnancies resulting from rape and incest.
In the face of a rigid and narrow statute, such as that of Texas, no one
in these circumstances should be placed in a posture of dependence on a
prosecutorial policy or prosecutorial discretion. Of course, States must
have broad power, within the limits indicated in the opinions, to regulate
the subject of abortions, but where the consequences of state intervention
are so severe, uncertainty must be avoided as much as possible. For my part,
I would be inclined to allow a State to require the certification of two
physicians to support an abortion, but the Court holds otherwise. I do not
believe that such a procedure is unduly burdensome, as are the complex steps
of the Georgia statute, which require as many as six doctors and the use
of a hospital certified by the JCAH.
|||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.
|||[EDITOR'S NOTE: The Concurring opinion of Mr. Justice Douglas was published
separately at 93 S. Ct. 756.]
|||JUSTICE DOUGLAS, Concurring**
|||[EDITOR'S NOTE: The page numbers of this document may appear to be out
of sequence; however, this pagination accurately reflects the pagination
of the original published document.]
|||While I join the opinion of the Court, *fn1
I add a few words.
|||The questions presented in the present cases go far beyond the issues
of vagueness, which we considered in United States v. Vuitch, 402 U.S. 62.
They involve the right of privacy, one aspect of which we considered in
Griswold v. Connecticut, 381 U.S. 479, 484, when we held that various guarantees
in the Bill of Rights create zones of privacy. *fn2
|||The Griswold case involved a law forbidding the use of contraceptives.
We held that law as applied to married people unconstitutional:
|||"We deal with a right of privacy older than the Bill of Rights -- older
than our political parties, older than our school system. Marriage is a
coming together for better or for worse, hopefully enduring, and intimate
to the degree of being sacred." Id., at 486.
|||The District Court in Doe held that Griswold and related cases "establish
a Constitutional right to privacy broad enough to encompass the right of
a woman to terminate an unwanted pregnancy in its early stages, by obtaining
an abortion." 319 F.Supp. 1048, 1054.
|||The Supreme Court of California expressed the same view in People v. Belous,
*fn3 71 Cal. 2d 954, 963, 458 P.
2d 194, 199.
|||The Ninth Amendment obviously does not create federally enforceable rights.
It merely says, "The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people."
But a catalogue of these rights includes customary, traditional, and time-honored
rights, amenities, privileges, and immunities that come within the sweep
of "the Blessings of Liberty" mentioned in the preamble to the Constitution.
Many of them, in my view, come within the meaning of the term "liberty"
as used in the Fourteenth Amendment.
|||First is the autonomous control over the development and expression of
one's intellect, interests, tastes, and personality.
|||These are rights protected by the First Amendment and, in my view, they
are absolute, permitting of no exceptions. See Terminiello v. Chicago, 337
U.S. 1; Roth v. United States, 354 U.S. 476, 508 (dissent); Kingsley Pictures
Corp. v. Regents, 360 U.S. 684, 697 (concurring); New York Times Co. v.
Sullivan, 376 U.S. 254, 293 (Black, J., Concurring, in which I joined).
The Free Exercise Clause of the First Amendment is one facet of this constitutional
right. The right to remain silent as respects one's own beliefs, Watkins
v. United States, 354 U.S. 178, 196-199, is protected by the First and the
Fifth. The First Amendment grants the privacy of first-class mail, United
States v. Van Leeuwen, 397 U.S. 249, 253. All of these aspects of the right
of privacy are rights "retained by the people" in the meaning of the Ninth
|||Second is freedom of choice in the basic decisions of one's life respecting
marriage, divorce, procreation, contraception, and the education and upbringing
|||These rights, unlike those protected by the First Amendment, are subject
to some control by the police power. Thus, the Fourth Amendment speaks only
of "unreasonable searches and seizures" and of "probable cause." These rights
are "fundamental," and we have held that in order to support legislative
action the statute must be narrowly and precisely drawn and that a "compelling
state interest" must be shown in support of the limitation. E. g., Kramer
v. Union Free School District, 395 U.S. 621; Shapiro v. Thompson, 394 U.S.
618; Carrington v. Rash, 380 U.S. 89; Sherbert v. Verner, 374 U.S. 398;
NAACP v. Alabama, 357 U.S. 449.
|||The liberty to marry a person of one's own choosing, Loving v. Virginia,
388 U.S. 1; the right of procreation, Skinner v. Oklahoma, 316 U.S. 535;
the liberty to direct the education of one's children, Pierce v. Society
of Sisters, 268 U.S. 510, and the privacy of the marital relation, Griswold
v. Connecticut, supra, are in this category. *fn4
Only last Term in Eisenstadt v. Baird, 405 U.S. 438, another contraceptive
case, we expanded the concept of Griswold by saying:
|||"It is true that in Griswold the right of privacy in question inhered
in the marital relationship. Yet the marital couple is not an independent
entity with a mind and heart of its own, but an association of two individuals
each with a separate intellectual and emotional makeup. If the right of
privacy means anything, it is the right of the individual, married or single,
to be free from unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child." Id.,
|||This right of privacy was called by Mr. Justice Brandeis the right "to
be let alone." Olmstead v. United States, 277 U.S. 438, 478 (dissenting
opinion). That right includes the privilege of an individual to plan his
own affairs, for, "'outside areas of plainly harmful conduct, every American
is left to shape his own life as he thinks best, do what he pleases, go
where he pleases.'" Kent v. Dulles, 357 U.S. 116, 126.
|||Third is the freedom to care for one's health and person, freedom from
bodily restraint or compulsion, freedom to walk, stroll, or loaf.
|||These rights, though fundamental, are likewise subject to regulation on
a showing of "compelling state interest." We stated in Papachristou v. City
of Jacksonville, 405 U.S. 156, 164, that walking, strolling, and wandering
"are historically part of the amenities of life as we have known them."
As stated in Jacobson v. Massachusetts, 197 U.S. 11, 29:
|||"There is, of course, a sphere within which the individual may assert
the supremacy of his own will and rightfully dispute the authority of any
human government, especially of any free government existing under a written
constitution, to interfere with the exercise of that will."
|||In Union Pacific R. Co. v. Botsford, 141 U.S. 250, 252, the Court said,
"The inviolability of the person is as much invaded by a compulsory stripping
and exposure as by a blow."
|||In Terry v. Ohio, 392 U.S. 1, 8-9, the Court, in speaking of the Fourth
Amendment stated, "This inestimable right of personal security belongs as
much to the citizen on the streets of our cities as to the homeowner closeted
in his study to dispose of his secret affairs."
|||Katz v. United States, 389 U.S. 347, 350, emphasizes that the Fourth Amendment
"protects individual privacy against certain kinds of governmental intrusion."
|||In Meyer v. Nebraska, 262 U.S. 390, 399, the Court said:
|||"Without doubt, denotes not merely freedom from bodily restraint but also
the right of the individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to marry, establish a
home and bring up children, to worship God according to the dictates of
his own conscience, and generally to enjoy those privileges long recognized
at common law as essential to the orderly pursuit of happiness by free men."
|||The Georgia statute is at war with the clear message of these cases --
that a woman is free to make the basic decision whether to bear an unwanted
child. Elaborate argument is hardly necessary to demonstrate that childbirth
may deprive a woman of her preferred lifestyle and force upon her a radically
different and undesired future. For example, rejected applicants under the
Georgia statute are required to endure the discomforts of pregnancy; to
incur the pain, higher mortality rate, and aftereffects of childbirth; to
abandon educational plans; to sustain loss of income; to forgo the satisfactions
of careers; to tax further mental and physical health in providing child
care; and, in some cases, to bear the lifelong stigma of unwed motherhood,
a badge which may haunt, if not deter, later legitimate family relationships.
|||Such reasoning is, however, only the beginning of the problem. The State
has interests to protect. Vaccinations to prevent epidemics are one example,
as Jacobson, supra, holds. The Court held that compulsory sterilization
of imbeciles afflicted with hereditary forms of insanity or imbecility is
another. Buck v. Bell, 274 U.S. 200. Abortion affects another. While childbirth
endangers the lives of some women, voluntary abortion at any time and place
regardless of medical standards would impinge on a rightful concern of society.
The woman's health is part of that concern; as is the life of the fetus
after quickening. These concerns justify the State in treating the procedure
as a medical one.
|||One difficulty is that this statute as construed and applied apparently
does not give full sweep to the "psychological as well as physical well-being"
of women patients which saved the concept "health" from being void for vagueness
in United States v. Vuitch, 402 U.S., at 72. But, apart from that, Georgia's
enactment has a constitutional infirmity because, as stated by the District
Court, it "limits the number of reasons for which an abortion may be sought."
I agree with the holding of the District Court, "This the State may not
do, because such action unduly restricts a decision sheltered by the Constitutional
right to privacy." 319 F.Supp., at 1056.
|||The vicissitudes of life produce pregnancies which may be unwanted, or
which may impair "health" in the broad Vuitch sense of the term, or which
may imperil the life of the mother, or which in the full setting of the
case may create such suffering, dislocations, misery, or tragedy as to make
an early abortion the only civilized step to take. These hardships may be
properly embraced in the "health" factor of the mother as appraised by a
person of insight. Or they may be part of a broader medical judgment based
on what is "appropriate" in a given case, though perhaps not "necessary"
in a strict sense.
|||The "liberty" of the mother, though rooted as it is in the Constitution,
may be qualified by the State for the reasons we have stated. But where
fundamental personal rights and liberties are involved, the corrective legislation
must be "narrowly drawn to prevent the supposed evil," Cantwell v. Connecticut,
310 U.S. 296, 307, and not be dealt with in an "unlimited and indiscriminate"
manner. Shelton v. Tucker, 364 U.S. 479, 490. And see Talley v. California,
362 U.S. 60. Unless regulatory measures are so confined and are addressed
to the specific areas of compelling legislative concern, the police power
would become the great leveler of constitutional rights and liberties.
|||There is no doubt that the State may require abortions to be performed
by qualified medical personnel. The legitimate objective of preserving the
mother's health clearly supports such laws. Their impact upon the woman's
privacy is minimal. But the Georgia statute outlaws virtually all such operations
-- even in the earliest stages of pregnancy. In light of modern medical
evidence suggesting that an early abortion is safer healthwise than childbirth
itself, *fn5 it cannot be seriously
urged that so comprehensive a ban is aimed at protecting the woman's health.
Rather, this expansive proscription of all abortions along the temporal
spectrum can rest only on a public goal of preserving both embryonic and
|||The present statute has struck the balance between the woman's and the
State's interests wholly in favor of the latter. I am not prepared to hold
that a State may equate, as Georgia has done, all phases of maturation preceding
birth. We held in Griswold that the States may not preclude spouses from
attempting to avoid the joinder of sperm and egg. If this is true, it is
difficult to perceive any overriding public necessity which might attach
precisely at the moment of conception. As Mr. Justice Clark has said: *fn6
|||"To say that life is present at conception is to give recognition to the
potential, rather than the actual. The unfertilized egg has life, and if
fertilized, it takes on human proportions. But the law deals in reality,
not obscurity -- the known rather than the unknown. When sperm meets egg
life may eventually form, but quite often it does not. The law does not
deal in speculation. The phenomenon of life takes time to develop, and until
it is actually present, it cannot be destroyed. Its interruption prior to
formation would hardly be homicide, and as we have seen, society does not
regard it as such. The rites of Baptism are not performed and death certificates
are not required when a miscarriage occurs. No prosecutor has ever returned
a murder indictment charging the taking of the life of a fetus.  This
would not be the case if the fetus constituted human life."
|||In summary, the enactment is overbroad. It is not closely correlated to
the aim of preserving prenatal life. In fact, it permits its destruction
in several cases, including pregnancies resulting from sex acts in which
unmarried females are below the statutory age of consent. At the same time,
however, the measure broadly proscribes aborting other pregnancies which
may cause severe mental disorders. Additionally, the statute is overbroad
because it equates the value of embryonic life immediately after conception
with the worth of life immediately before birth.
|||Under the Georgia Act, the mother's physician is not the sole Judge as
to whether the abortion should be performed. Two other licensed physicians
must concur in his judgment. *fn8
Moreover, the abortion must be performed in a licensed hospital; *fn9
and the abortion must be approved in advance by a committee of the medical
staff of that hospital. *fn10
|||Physicians, who speak to us in Doe through an amicus brief, complain of
the Georgia Act's interference with their practice of their profession.
|||The right of privacy has no more conspicuous place than in the physician-patient
relationship, unless it be in the priest-penitent relationship.
|||It is one thing for a patient to agree that her physician may consult
with another physician about her case. It is quite a different matter for
the State compulsorily to impose on that physician-patient relationship
another layer or, as in this case, still a third layer of physicians. The
right of privacy -- the right to care for one's health and person and to
seek out a physician of one's own choice protected by the Fourteenth Amendment
-- becomes only a matter of theory, not a reality, when a multiple-physician-approval
system is mandated by the State.
|||The State licenses a physician. If he is derelict or faithless, the procedures
available to punish him or to deprive him of his license are well known.
He is entitled to procedural due process before professional disciplinary
sanctions may be imposed. See In re Ruffalo, 390 U.S. 544. Crucial here,
however, is state-imposed control over the medical decision whether pregnancy
should be interrupted. The good-faith decision of the patient's chosen physician
is overridden and the final decision passed on to others in whose selection
the patient has no part. This is a total destruction of the right of privacy
between physician and patient and the intimacy of relation which that entails.
|||The right to seek advice on one's health and the right to place reliance
on the physician of one's choice are basic to Fourteenth Amendment values.
We deal with fundamental rights and liberties, which, as already noted,
can be contained or controlled only by discretely drawn legislation that
preserves the "liberty" and regulates only those phases of the problem of
compelling legislative concern. The imposition by the State of group controls
over the physician-patient relationship is not made on any medical procedure
apart from abortion, no matter how dangerous the medical step may be. The
oversight imposed on the physician and patient in abortion cases denies
them their "liberty," viz., their right of privacy, without any compelling,
discernible state interest.
|||Georgia has constitutional warrant in treating abortion as a medical problem.
To protect the woman's right of privacy, however, the control must be through
the physician of her choice and the standards set for his performance.
|||The protection of the fetus when it has acquired life is a legitimate
concern of the State. Georgia's law makes no rational, discernible decision
on that score. *fn11 For under
the Code, the developmental stage of the fetus is irrelevant when pregnancy
is the result of rape, when the fetus will very likely be born with a permanent
defect, or when a continuation of the pregnancy will endanger the life of
the mother or permanently injure her health. When life is present is a question
we do not try to resolve. While basically a question for medical experts,
as stated by Mr. Justice Clark, *fn12
it is, of course, caught up in matters of religion and morality.
|||In short, I agree with the Court that endangering the life of the woman
or seriously and permanently injuring her health are standards too narrow
for the right of privacy that is at stake.
|||I also agree that the superstructure of medical supervision which Georgia
has erected violates the patient's right of privacy inherent in her choice
of her own physician.
|||[EDITOR'S NOTE: The Dissenting opinion of Mr. Justice White was published
separately at 93 S. Ct. 762.]
|||JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins, Dissenting.*
|||[EDITOR'S NOTE: The page numbers of this document may appear to be out
of sequence; however, this pagination accurately reflects the pagination
of the original published document.]
|||At the heart of the controversy in these cases are those recurring pregnancies
that pose no danger whatsoever to the life or health of the mother but are,
nevertheless, unwanted for any one or more of a variety of reasons -- convenience,
family planning, economics, dislike of children, the embarrassment of illegitimacy,
etc. The common claim before us is that for any one of such reasons, or
for no reason at all, and without asserting or claiming any threat to life
or health, any woman is entitled to an abortion at her request if she is
able to find a medical advisor willing to undertake the procedure.
|||The Court for the most part sustains this position: During the period
prior to the time the fetus becomes viable, the Constitution of the United
States values the convenience, whim, or caprice of the putative mother more
than the life or potential life of the fetus; the Constitution, therefore,
guarantees the right to an abortion as against any state law or policy seeking
to protect the fetus from an abortion not prompted by more compelling reasons
of the mother.
|||With all due respect, I Dissent. 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 mothers 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 mother, 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.
|||The Court apparently values the convenience of the pregnant mother more
than the continued existence and development of the life or potential life
that she carries. Whether or not I might agree with that marshaling of values,
I can in no event join the Court's judgment because I find no constitutional
warrant for imposing such an order of priorities on the people and legislatures
of the States. In a sensitive area such as this, involving as it does issues
over which reasonable men may easily and heatedly differ, I cannot accept
the Court's exercise of its clear power of choice by interposing a constitutional
barrier to state efforts to protect human life and by investing mothers
and doctors with the constitutionally protected right to exterminate it.
This issue, for the most part, should be left with the people and to the
political processes the people have devised to govern their affairs.
|||It is my view, therefore, that the Texas statute is not constitutionally
infirm because it denies abortions to those who seek to serve only their
convenience rather than to protect their life or health. Nor is this plaintiff,
who claims no threat to her mental or physical health, entitled to assert
the possible rights of those women whose pregnancy assertedly implicates
their health. This, together with United States v. Vuitch, 402 U.S. 62 (1971),
dictates reversal of the judgment of the District Court.
|||Likewise, because Georgia may constitutionally forbid abortions to putative
mothers who, like the plaintiff in this case, do not fall within the reach
of § 26-1202 (a) of its criminal code, I have no occasion, and the
District Court had none, to consider the constitutionality of the procedural
requirements of the Georgia statute as applied to those pregnancies posing
substantial hazards to either life or health. I would reverse the judgment
of the District Court in the Georgia case. MR. JUSTICE REHNQUIST, Dissenting.
|||The holding in Roe v. Wade, ante, p. 113, that state abortion laws can
withstand constitutional scrutiny only if the State can demonstrate a compelling
state interest, apparently compels the Court's close scrutiny of the various
provisions in Georgia's abortion statute. Since, as indicated by my Dissent
in Wade, I view the compelling-state-interest standard as an inappropriate
measure of the constitutionality of state abortion laws, I respectfully
Dissent from the majority's holding.
|||* Briefs of amici curiae were filed by Roy Lucas for the American College
of Obstetricians and Gynecologists et al.; by Dennis J. Horan, Jerome A.
Frazel, Jr., Thomas M. Crisham, and Dolores V. Horan for Certain Physicians,
Professors and Fellows of the American College of Obstetrics and Gynecology;
by Harriet F. Pilpel, Nancy F. Wechsler, and Frederic S. Nathan for Planned
Parenthood Federation of America, Inc., et al.; by Alan F. Charles for the
National Legal Program on Health Problems of the Poor et al.; by Marttie
L. Thompson for State Communities Aid Assn.; by Alfred L. Scanlan, Martin
J. Flynn, and Robert M. Byrn for the National Right to Life Committee; by
Helen L. Buttenwieser for the American Ethical Union et al.; by Norma G.
Zarky for the American Association of University Women et al.; by Nancy
Stearns for New Women Lawyers et al.; by the California Committee to Legalize
Abortion et al.; by Robert E. Dunne for Robert L. Sassone; and by Ferdinand
Buckley pro se.
|||*fn1 The portions italicized
in Appendix A are those held unconstitutional by the District Court.
|||*fn2 Brief for Appellants 25
n. 5; Tr. of Oral Arg. 9.
|||*fn3 See Roe v. Wade, ante, p.
113, at 140 n. 37.
|||*fn4 The pertinent provisions
of the 1876 statute were:
|||"Section I. Be it enacted, etc., That from and after the passage of this
Act, the wilful killing of an unborn child, so far developed as to be ordinarily
called 'quick,' by any injury to the mother of such child, which would be
murder if it resulted in the death of such mother, shall be guilty of a
felony, and punishable by death or imprisonment for life, as the jury trying
the case may recommend.
|||"Sec. II. Be it further enacted, That every person who shall administer
to any woman pregnant with a child, any medicine, drug, or substance whatever,
or shall use or employ any instrument or other means, with intent thereby
to destroy such child, unless the same shall have been necessary to preserve
the life of such mother, or shall have been advised by two physicians to
be necessary for such purpose, shall, in case the death of such child or
mother be thereby produced, be declared guilty of an assault with intent
|||"Sec. III. Be it further enacted, That any person who shall wilfully administer
to any pregnant woman any medicine, drug or substance, or anything whatever,
or shall employ any instrument or means whatever, with intent thereby to
procure the miscarriage or abortion of any such woman, unless the same shall
have been necessary to preserve the life of such woman, or shall have been
advised by two physicians to be necessary for that purpose, shall, upon
conviction, be punished as prescribed in section 4310 of the Revised Code
|||It should be noted that the second section, in contrast to the first,
made no specific reference to quickening. The section was construed, however,
to possess this line of demarcation. Taylor v. State, 105 Ga. 846, 33 S.
E. 190 (1899).
|||*fn5 In contrast with the ALI
model, the Georgia statute makes no specific reference to pregnancy resulting
from incest. We were assured by the State at reargument that this was because
the statute's reference to "rape" was intended to include incest. Tr. of
Oral Rearg. 32.
|||*fn6 Appellants by their complaint,
App. 7, allege that the name is a pseudonym.
|||*fn7 In answers to interrogatories,
Doe stated that her application for an abortion was approved at Georgia
Baptist Hospital on May 5, 1970, but that she was not approved as a charity
patient there and had no money to pay for an abortion. App. 64.
|||*fn8 What we decide today obviously
has implications for the issues raised in the defendants' appeal pending
in the Fifth Circuit.
|||*fn9 Tr. of Oral Arg. 21-22.
|||*fn10 Brief for Appellants
|||*fn11 We were advised at reargument,
Tr. of Oral Rearg. 10, that only 54 of Georgia's 159 counties have a JCAH-accredited
|||*fn12 Since its founding, JCAH
has pursued the "elusive goal" of defining the "optimal setting" for "quality
of service in hospitals." JCAH, Accreditation Manual for Hospitals, Foreword
(Dec. 1970). The Manual's Introduction states the organization's purpose
to establish standards and conduct accreditation programs that will afford
quality medical care "to give patients the optimal benefits that medical
science has to offer." This ambitious and admirable goal is illustrated
by JCAH's decision in 1966 "to raise and strengthen the standards from their
present level of minimum essential to the level of optimum achievable .
. . ." Some of these "optimum achievable" standards required are: disclosure
of hospital ownership and control; a dietetic service and written dietetic
policies; a written disaster plan for mass emergencies; a nuclear medical
services program; facilities for hematology, chemistry, microbiology, clinical
microscopy, and sero-immunology; a professional library and document delivery
service; a radiology program; a social services plan administered by a qualified
social worker; and a special care unit.
|||*fn13 "The Joint Commission
neither advocates nor opposes any particular position with respect to elective
abortions." Letter dated July 9, 1971, from John I. Brewer, M. D., Commissioner,
JCAH, to the Rockefeller Foundation. Brief for amici curiae, American College
of Obstetricians and Gynecologists et al., p. A-3.
|||*fn14 See Roe v. Wade, ante,
at 146-147, n. 40.
|||*fn15 Some state statutes do
not have the JCAH-accreditation requirement. Alaska Stat. § 11.15.060
(1970); Hawaii Rev. Stat. § 453-16 (Supp. 1971); N. Y. Penal Code §
125.05, subd. 3 (Supp. 1972-1973). Washington has the requirement but couples
it with the alternative of "a medical facility approved . . . by the state
board of health." Wash. Rev. Code § 9.02.070 (Supp. 1972). Florida's
new statute has a similar provision. Law of Apr. 13, 1972, c. 72-196, §
1 (2). Others contain the specification. Ark. Stat. Ann. §§ 41-303
to 41-310 (Supp. 1971); Calif. Health & Safety Code §§ 25950-25955.5
(Supp. 1972); Colo. Rev. Stat. Ann. §§ 40-2-50 to 40-2-53 (Cum.
Supp. 1967); Kan. Stat. Ann. § 21-3407 (Supp. 1971); Md. Ann. Code,
Art. 43, §§ 137-139 (1971). Cf. Del. Code Ann., Tit. 24, §§
1790-1793 (Supp. 1972), specifying "a nationally recognized medical or hospital
accreditation authority," § 1790 (a).
|||*fn16 L. Baker & M. Freeman,
Abortion Surveillance at Grady Memorial Hospital Center for Disease Control
(June and July 1971) (U.S. Dept. of HEW, Public Health Service).
|||* [This opinion applies also to No. 70-18, Roe v. Wade, ante, p. 113.]
|||** [This opinion applies also to No. 70-18, Roe v. Wade, ante, p. 113.]
|||1 I disagree with the dismissal of Dr. Hallford's complaint in intervention
in Roe v. Wade, ante, p. 113, because my disagreement with Younger v. Harris,
401 U.S. 37, revealed in my Dissent in that case, still persists and extends
to the progeny of that case.
|||2 There is no mention of privacy in our Bill of Rights but our decisions
have recognized it as one of the fundamental values those amendments were
designed to protect. The fountainhead case is Boyd v. United States, 116
U.S. 616, holding that a federal statute which authorized a court in tax
cases to require a taxpayer to produce his records or to concede the Government's
allegations offended the Fourth and Fifth Amendments. Mr. Justice Bradley,
for the Court, found that the measure unduly intruded into the "sanctity
of a man's home and the privacies of life." Id., at 630. Prior to Boyd,
in Kilbourn v. Thompson, 103 U.S. 168, 190, Mr. Justice Miller held for
the Court that neither House of Congress "possesses the general power of
making inquiry into the private affairs of the citizen." Of Kilbourn, Mr.
Justice Field later said, "This case will stand for all time as a bulwark
against the invasion of the right of the citizen to protection in his private
affairs against the unlimited scrutiny of investigation by a congressional
committee." In re Pacific Railway Comm'n, 32 F. 241, 253 (cited with approval
in Sinclair v. United States, 279 U.S. 263, 293). Mr. Justice Harlan, also
speaking for the Court, in ICC v. Brimson, 154 U.S. 447, 478, thought the
same was true of administrative inquiries, saying that the Constitution
did not permit a "general power of making inquiry into the private affairs
of the citizen." In a similar vein were Harriman v. ICC, 211 U.S. 407; United
States v. Louisville & Nashville R. Co., 236 U.S. 318, 335; and FTC v. American
Tobacco Co., 264 U.S. 298.
|||3 The California abortion statute, held unconstitutional in the Belous
case, made it a crime to perform or help perform an abortion "unless the
same is necessary to preserve [the mother's] life." 71 Cal. 2d, at 959,
458 P. 2d, at 197.
|||4 My Brother STEWART, writing in Roe v. Wade, supra, says that our decision
in Griswold reintroduced substantive due process that had been rejected
in Ferguson v. Skrupa, 372 U.S. 726. Skrupa involved legislation governing
a business enterprise; and the Court in that case, as had Mr. Justice Holmes
on earlier occasions, rejected the idea that "liberty" within the meaning
of the Due Process Clause of the Fourteenth Amendment was a vessel to be
filled with one's personal choices of values, whether drawn from the laissez
faire school, from the socialistic school, or from the technocrats. Griswold
involved legislation touching on the marital relation and involving the
conviction of a licensed physician for giving married people information
concerning contraception. There is nothing specific in the Bill of Rights
that covers that item. Nor is there anything in the Bill of Rights that
in terms protects the right of association or the privacy in one's association.
Yet we found those rights in the periphery of the First Amendment. NAACP
v. Alabama, 357 U.S. 449, 462. Other peripheral rights are the right to
educate one's children as one chooses, Pierce v. Society of Sisters, 268
U.S. 510, and the right to study the German language, Meyer v. Nebraska,
262 U.S. 390. These decisions, with all respect, have nothing to do with
substantive due process. One may think they are not peripheral to other
rights that are expressed in the Bill of Rights. But that is not enough
to bring into play the protection of substantive due process.
|||There are, of course, those who have believed that the reach of due process
in the Fourteenth Amendment included all of the Bill of Rights but went
further. Such was the view of Mr. Justice Murphy and Mr. Justice Rutledge.
See Adamson v. California, 332 U.S. 46, 123, 124 (dissenting opinion). Perhaps
they were right; but it is a bridge that neither I nor those who joined
the Court's opinion in Griswold crossed.
|||5 Many studies show that it is safer for a woman to have a medically induced
abortion than to bear a child. In the first 11 months of operation of the
New York abortion law, the mortality rate associated with such operations
was six per 100,000 operations. Abortion Mortality, 20 Morbidity and Mortality
208, 209 (June 1971) (U.S. Dept. of HEW, Public Health Service). On the
other hand, the maternal mortality rate associated with childbirths other
than abortions was 18 per 100,000 live births. Tietze, Mortality with Contraception
and Induced Abortion, 45 Studies in Family Planning 6 (1969). See also Tietze
& Lehfeldt, Legal Abortion in Eastern Europe, 175 J. A. M. A. 1149, 1152
(Apr. 1961); Kolblova, Legal Abortion in Czechoslovakia, 196 J. A. M. A.
371 (Apr. 1966); Mehland, Combating Illegal Abortion in the Socialist Countries
of Europe, 13 World Med. J. 84 (1966).
|||6 Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loyola
U. (L. A.) L. Rev. 1, 9-10 (1969).
|||7 In Keeler v. Superior Court, 2 Cal. 3d 619, 470 P. 2d 617, the California
Supreme Court held in 1970 that the California murder statute did not cover
the killing of an unborn fetus, even though the fetus be "viable," and that
it was beyond judicial power to extend the statute to the killing of an
unborn. It held that the child must be "born alive before a charge of homicide
can be sustained." Id., at 639, 470 P. 2d, at 630.
|||8 See Ga. Code Ann. § 26-1202 (b)(3).
|||9 See id., § 26-1202 (b)(4).
|||10 Id., § 26-1202 (b)(5).
|||11 See Rochat, Tyler, & Schoenbucher, An Epidemiological Analysis of Abortion
in Georgia, 61 Am. J. of Public Health 543 (1971).
|||12 (supra) , n. 6, at 10.
|||* [This opinion applies also to No. 70-18, Roe v. Wade, ante, p. 113.]
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