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| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | No. 70-18 |
| [3] | 1973.SCT.287 <http://www.versuslaw.com>,
410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 |
| [4] | January 22, 1973 |
| [5] | ROE ET AL. v. WADE, DISTRICT ATTORNEY OF DALLAS COUNTY |
| [6] | APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF TEXAS. |
| [7] | Sarah Weddington reargued the cause for appellants. With her on the briefs
were Roy Lucas, Fred Bruner, Roy L. Merrill, Jr., and Norman Dorsen. |
| [8] | Robert C. Flowers, Assistant Attorney General of Texas, argued the cause
for appellee on the reargument. Jay Floyd, Assistant Attorney General, argued
the cause for appellee on the original argument. With them on the brief
were Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney
General, Alfred Walker, Executive Assistant Attorney General, Henry Wade,
and John B. Tolle.* |
| [9] | 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, Douglas, J., post, p. 209, and Stewart, J., post, p.
167, 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. 171. |
| [10] | The opinion of the court was delivered by: Blackmun |
| [11] | A pregnant single woman (Roe) brought a class action challenging the constitutionality
of the Texas criminal abortion laws, which proscribe procuring or attempting
an abortion except on medical advice for the purpose of saving the mother's
life. A licensed physician (Hallford), who had two state abortion prosecutions
pending against him, was permitted to intervene. A childless married couple
(the Does), the wife not being pregnant, separately attacked the laws, basing
alleged injury on the future possibilities of contraceptive failure, pregnancy,
unpreparedness for parenthood, and impairment of the wife's health. A three-Judge
District Court, which consolidated the actions, held that Roe and Hallford,
and members of their classes, had standing to sue and presented justiciable
controversies. Ruling that declaratory, though not injunctive, relief was
warranted, the court declared the abortion statutes void as vague and overbroadly
infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The
court ruled the Does' complaint not justiciable. Appellants directly appealed
to this Court on the injunctive rulings, and appellee cross-appealed from
the District Court's grant of declaratory relief to Roe and Hallford. Held
: |
| [12] | 1. While 28 U. S. C. § 1253 authorizes no direct appeal to this Court
from the grant or denial of declaratory relief alone, review is not foreclosed
when the case is properly before the Court on appeal from specific denial
of injunctive relief and the arguments as to both injunctive and declaratory
relief are necessarily identical. P. 123. |
| [13] | 2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129. |
| [14] | (a) Contrary to appellee's contention, the natural termination of Roe's
pregnancy did not moot her suit. Litigation involving pregnancy, which is
"capable of repetition, yet evading review," is an exception to the usual
federal rule that an actual controversy must exist at review stages and
not simply when the action is initiated. Pp. 124-125. |
| [15] | (b) The District Court correctly refused injunctive, but erred in granting
declaratory, relief to Hallford, who alleged no federally protected right
not assertable as a defense against the good-faith state prosecutions pending
against him. Samuels v. Mackell, 401 U.S. 66. Pp. 125-127. |
| [16] | (c) The Does' complaint, based as it is on contingencies, any one or more
of which may not occur, is too speculative to present an actual case or
controversy. Pp. 127-129. |
| [17] | 3. State criminal abortion laws, like those involved here, that except
from criminality only a life-saving procedure on the mother's behalf without
regard to the stage of her pregnancy and other interests involved violate
the Due Process Clause of the Fourteenth Amendment, which protects against
state action the right to privacy, including a woman's qualified right to
terminate her pregnancy. Though the State cannot override that right, it
has legitimate interests in protecting both the pregnant woman's health
and the potentiality of human life, each of which interests grows and reaches
a "compelling" point at various stages of the woman's approach to term.
Pp. 147-164. |
| [18] | (a) 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. Pp. 163, 164. |
| [19] | (b) For the stage subsequent to approximately the end of the first trimester,
the State, in promoting its interest in the health of the mother, may, if
it chooses, regulate the abortion procedure in ways that are reasonably
related to maternal health. Pp. 163, 164. |
| [20] | (c) For the stage subsequent to viability the State, in promoting its
interest in the potentiality of human life, may, if it chooses, regulate,
and even proscribe, abortion except where necessary, in appropriate medical
judgment, for the preservation of the life or health of the mother. Pp.
163-164; 164-165. |
| [21] | 4. The State may define the term "physician" to mean only a physician
currently licensed by the State, and may proscribe any abortion by a person
who is not a physician as so defined. P. 165. |
| [22] | 5. It is unnecessary to decide the injunctive relief issue since the Texas
authorities will doubtless fully recognize the Court's ruling that the Texas
criminal abortion statutes are unconstitutional. P. 166. |
| [23] | MR. JUSTICE BLACKMUN delivered the opinion of the Court. |
| [24] | This Texas federal appeal and its Georgia companion, Doe v. Bolton, post,
p. 179, present constitutional challenges to state criminal abortion legislation.
The Texas statutes under attack here are typical of those that have been
in effect in many States for approximately a century. The Georgia statutes,
in contrast, have a modern cast and are a legislative product that, to an
extent at least, obviously reflects the influences of recent attitudinal
change, of advancing medical knowledge and techniques, and of new thinking
about an old issue. |
| [25] | We forthwith acknowledge our awareness of the sensitive and emotional
nature of the abortion controversy, of the vigorous opposing views, even
among physicians, and of the deep and seemingly absolute convictions that
the subject inspires. One's philosophy, one's experiences, one's exposure
to the raw edges of human existence, one's religious training, one's attitudes
toward life and family and their values, and the moral standards one establishes
and seeks to observe, are all likely to influence and to color one's thinking
and Conclusions about abortion. |
| [26] | In addition, population growth, pollution, poverty, and racial overtones
tend to complicate and not to simplify the problem. |
| [27] | Our task, of course, is to resolve the issue by constitutional measurement,
free of emotion and of predilection. We seek earnestly to do this, and,
because we do, we have inquired into, and in this opinion place some emphasis
upon, medical and medical-legal history and what that history reveals about
man's attitudes toward the abortion procedure over the centuries. We bear
in mind, too, Mr. Justice Holmes' admonition in his now-vindicated Dissent
in Lochner v. New York, 198 U.S. 45, 76 (1905): |
| [28] | "[The Constitution] is made for people of fundamentally differing views,
and the accident of our finding certain opinions natural and familiar or
novel and even shocking ought not to conclude our judgment upon the question
whether statutes embodying them conflict with the Constitution of the United
States." |
| [29] | I |
| [30] | The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of
the State's Penal Code. *fn1 These
make it a crime to "procure an abortion," as therein defined, or to attempt
one, except with respect to "an abortion procured or attempted by medical
advice for the purpose of saving the life of the mother." Similar statutes
are in existence in a majority of the States. *fn2 |
| [31] | Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854,
c. 49, § 1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This
was soon modified into language that has remained substantially unchanged
to the present time. See Texas Penal Code of 1857, c. 7, Arts. 531-536;
G. Paschal, Laws of Texas, Arts. 2192-2197 (1866); Texas Rev. Stat., c.
8, Arts. 536-541 (1879); Texas Rev. Crim. Stat., Arts. 1071-1076 (1911).
The final article in each of these compilations provided the same exception,
as does the present Article 1196, for an abortion by "medical advice for
the purpose of saving the life of the mother." *fn3 |
| [32] | II |
| [33] | Jane Roe, *fn4 a single woman
who was residing in Dallas County, Texas, instituted this federal action
in March 1970 against the District Attorney of the county. She sought a
declaratory judgment that the Texas criminal abortion statutes were unconstitutional
on their face, and an injunction restraining the defendant from enforcing
the statutes. |
| [34] | Roe alleged that she was unmarried and pregnant; that she wished to terminate
her pregnancy by an abortion "performed by a competent, licensed physician,
under safe, clinical conditions"; that she was unable to get a "legal" abortion
in Texas because her life did not appear to be threatened by the continuation
of her pregnancy; and that she could not afford to travel to another jurisdiction
in order to secure a legal abortion under safe conditions. She claimed that
the Texas statutes were unconstitutionally vague and that they abridged
her right of personal privacy, protected by the First, Fourth, Fifth, Ninth,
and Fourteenth Amendments. By an amendment to her complaint Roe purported
to sue "on behalf of herself and all other women" similarly situated. |
| [35] | James Hubert Hallford, a licensed physician, sought and was granted leave
to intervene in Roe's action. In his complaint he alleged that he had been
arrested previously for violations of the Texas abortion statutes and that
two such prosecutions were pending against him. He described conditions
of patients who came to him seeking abortions, and he claimed that for many
cases he, as a physician, was unable to determine whether they fell within
or outside the exception recognized by Article 1196. He alleged that, as
a consequence, the statutes were vague and uncertain, in violation of the
Fourteenth Amendment, and that they violated his own and his patients' rights
to privacy in the doctor-patient relationship and his own right to practice
medicine, rights he claimed were guaranteed by the First, Fourth, Fifth,
Ninth, and Fourteenth Amendments. |
| [36] | John and Mary Doe, *fn5 a married
couple, filed a companion complaint to that of Roe. They also named the
District Attorney as defendant, claimed like constitutional deprivations,
and sought declaratory and injunctive relief. The Does alleged that they
were a childless couple; that Mrs. Doe was suffering from a "neural-chemical"
disorder; that her physician had "advised her to avoid pregnancy until such
time as her condition has materially improved" (although a pregnancy at
the present time would not present "a serious risk" to her life); that,
pursuant to medical advice, she had discontinued use of birth control pills;
and that if she should become pregnant, she would want to terminate the
pregnancy by an abortion performed by a competent, licensed physician under
safe, clinical conditions. By an amendment to their complaint, the Does
purported to sue "on behalf of themselves and all couples similarly situated." |
| [37] | The two actions were consolidated and heard together by a duly convened
three-Judge district court. The suits thus presented the situations of the
pregnant single woman, the childless couple, with the wife not pregnant,
and the licensed practicing physician, all joining in the attack on the
Texas criminal abortion statutes. Upon the filing of affidavits, motions
were made for dismissal and for summary judgment. The court held that Roe
and members of her class, and Dr. Hallford, had standing to sue and presented
justiciable controversies, but that the Does had failed to allege facts
sufficient to state a present controversy and did not have standing. It
concluded that, with respect to the requests for a declaratory judgment,
abstention was not warranted. On the merits, the District Court held that
the "fundamental right of single women and married persons to choose whether
to have children is protected by the Ninth Amendment, through the Fourteenth
Amendment," and that the Texas criminal abortion statutes were void on their
face because they were both unconstitutionally vague and constituted an
overbroad infringement of the plaintiffs' Ninth Amendment rights. The court
then held that abstention was warranted with respect to the requests for
an injunction. It therefore dismissed the Does' complaint, declared the
abortion statutes void, and dismissed the application for injunctive relief.
314 F.Supp. 1217, 1225 (ND Tex. 1970). |
| [38] | The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28
U. S. C. § 1253, have appealed to this Court from that part of the
District Court's judgment denying the injunction. The defendant District
Attorney has purported to cross-appeal, pursuant to the same statute, from
the court's grant of declaratory relief to Roe and Hallford. Both sides
also have taken protective appeals to the United States Court of Appeals
for the Fifth Circuit. That court ordered the appeals held in abeyance pending
decision here. We postponed decision on jurisdiction to the hearing on the
merits. 402 U.S. 941 (1971).III |
| [39] | It might have been preferable if the defendant, pursuant to our Rule 20,
had presented to us a petition for certiorari before judgment in the Court
of Appeals with respect to the granting of the plaintiffs' prayer for declaratory
relief. Our decisions in Mitchell v. Donovan, 398 U.S. 427 (1970), and Gunn
v. University Committee, 399 U.S. 383 (1970), are to the effect that §
1253 does not authorize an appeal to this Court from the grant or denial
of declaratory relief alone. We conclude, nevertheless, that those decisions
do not foreclose our review of both the injunctive and the declaratory aspects
of a case of this kind when it is properly here, as this one is, on appeal
under § 1253 from specific denial of injunctive relief, and the arguments
as to both aspects are necessarily identical. See Carter v. Jury Comm'n,
396 U.S. 320 (1970); Florida Lime Growers v. Jacobsen, 362 U.S. 73, 80-81
(1960). It would be destructive of time and energy for all concerned were
we to rule otherwise. Cf. Doe v. Bolton, post, p. 179. |
| [40] | IV |
| [41] | We are next confronted with issues of justiciability, standing, and abstention.
Have Roe and the Does established that "personal stake in the outcome of
the controversy," Baker v. Carr, 369 U.S. 186, 204 (1962), that insures
that "the dispute sought to be adjudicated will be presented in an adversary
context and in a form historically viewed as capable of judicial resolution,"
Flast v. Cohen, 392 U.S. 83, 101 (1968), and Sierra Club v. Morton, 405
U.S. 727, 732 (1972)? And what effect did the pendency of criminal abortion
charges against Dr. Hallford in state court have upon the propriety of the
federal court's granting relief to him as a plaintiff-intervenor? A. Jane
Roe. Despite the use of the pseudonym, no suggestion is made that Roe is
a fictitious person. For purposes of her case, we accept as true, and as
established, her existence; her pregnant state, as of the inception of her
suit in March 1970 and as late as May 21 of that year when she filed an
alias affidavit with the District Court; and her inability to obtain a legal
abortion in Texas. |
| [42] | Viewing Roe's case as of the time of its filing and thereafter until as
late as May, there can be little dispute that it then presented a case or
controversy and that, wholly apart from the class aspects, she, as a pregnant
single woman thwarted by the Texas criminal abortion laws, had standing
to challenge those statutes. Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971);
Crossen v. Breckenridge, 446 F.2d 833, 838-839 (CA6 1971); Poe v. Menghini,
339 F.Supp. 986, 990-991 (Kan. 1972). See Truax v. Raich, 239 U.S. 33 (1915).
Indeed, we do not read the appellee's brief as really asserting anything
to the contrary. The "logical nexus between the status asserted and the
claim sought to be adjudicated," Flast v. Cohen, 392 U.S., at 102, and the
necessary degree of contentiousness, Golden v. Zwickler, 394 U.S. 103 (1969),
are both present. |
| [43] | The appellee notes, however, that the record does not disclose that Roe
was pregnant at the time of the District Court hearing on May 22, 1970,
*fn6 or on the following June 17
when the court's opinion and judgment were filed. And he suggests that Roe's
case must now be moot because she and all other members of her class are
no longer subject to any 1970 pregnancy. |
| [44] | The usual rule in federal cases is that an actual controversy must exist
at stages of appellate or certiorari review, and not simply at the date
the action is initiated. United States v. Munsingwear, Inc., 340 U.S. 36
(1950); Golden v. Zwickler, supra; SEC v. Medical Committee for Human Rights,
404 U.S. 403 (1972). |
| [45] | But when, as here, pregnancy is a significant fact in the litigation,
the normal 266-day human gestation period is so short that the pregnancy
will come to term before the usual appellate process is complete. If that
termination makes a case moot, pregnancy litigation seldom will survive
much beyond the trial stage, and appellate review will be effectively denied.
Our law should not be that rigid. Pregnancy often comes more than once to
the same woman, and in the general population, if man is to survive, it
will always be with us. Pregnancy provides a classic justification for a
Conclusion of nonmootness. It truly could be "capable of repetition, yet
evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515
(1911). See Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Carroll v. Princess
Anne, 393 U.S. 175, 178-179 (1968); United States v. W. T. Grant Co., 345
U.S. 629, 632-633 (1953). |
| [46] | We, therefore, agree with the District Court that Jane Roe had standing
to undertake this litigation, that she presented a justiciable controversy,
and that the termination of her 1970 pregnancy has not rendered her case
moot. |
| [47] | B. Dr. Hallford. The doctor's position is different. He entered Roe's
litigation as a plaintiff-intervenor, alleging in his complaint that he: |
| [48] | "In the past has been arrested for violating the Texas Abortion Laws and
at the present time stands charged by indictment with violating said laws
in the Criminal District Court of Dallas County, Texas to-wit: (1) The State
of Texas vs. James H. Hallford, No. C-69-5307-IH, and (2) The State of Texas
vs. James H. Hallford, No. C-69-2524-H. In both cases the defendant is charged
with abortion . . . ." |
| [49] | In his application for leave to intervene, the doctor made like representations
as to the abortion charges pending in the state court. These representations
were also repeated in the affidavit he executed and filed in support of
his motion for summary judgment. |
| [50] | Dr. Hallford is, therefore, in the position of seeking, in a federal court,
declaratory and injunctive relief with respect to the same statutes under
which he stands charged in criminal prosecutions simultaneously pending
in state court. Although he stated that he has been arrested in the past
for violating the State's abortion laws, he makes no allegation of any substantial
and immediate threat to any federally protected right that cannot be asserted
in his defense against the state prosecutions. Neither is there any allegation
of harassment or bad-faith prosecution. In order to escape the rule articulated
in the cases cited in the next paragraph of this opinion that, absent harassment
and bad faith, a defendant in a pending state criminal case cannot affirmatively
challenge in federal court the statutes under which the State is prosecuting
him, Dr. Hallford seeks to distinguish his status as a present state defendant
from his status as a "potential future defendant" and to assert only the
latter for standing purposes here. |
| [51] | We see no merit in that distinction. Our decision in Samuels v. Mackell,
401 U.S. 66 (1971), compels the Conclusion that the District Court erred
when it granted declaratory relief to Dr. Hallford instead of refraining
from so doing. The court, of course, was correct in refusing to grant injunctive
relief to the doctor. The reasons supportive of that action, however, are
those expressed in Samuels v. Mackell, supra, and in Younger v. Harris,
401 U.S. 37 (1971); Boyle v. Landry, 401 U.S. 77 (1971); Perez v. Ledesma,
401 U.S. 82 (1971); and Byrne v. Karalexis, 401 U.S. 216 (1971). See also
Dombrowski v. Pfister, 380 U.S. 479 (1965). We note, in passing, that Younger
and its companion cases were decided after the three-Judge District Court
decision in this case. |
| [52] | Dr. Hallford's complaint in intervention, therefore, is to be dismissed.
*fn7 He is remitted to his defenses
in the state criminal proceedings against him. We reverse the judgment of
the District Court insofar as it granted Dr. Hallford relief and failed
to dismiss his complaint in intervention. |
| [53] | C. The Does. In view of our ruling as to Roe's standing in her case, the
issue of the Does' standing in their case has little significance. The claims
they assert are essentially the same as those of Roe, and they attack the
same statutes. Nevertheless, we briefly note the Does' posture. |
| [54] | Their pleadings present them as a childless married couple, the woman
not being pregnant, who have no desire to have children at this time because
of their having received medical advice that Mrs. Doe should avoid pregnancy,
and for "other highly personal reasons." But they "fear . . . they may face
the prospect of becoming parents." And if pregnancy ensues, they "would
want to terminate" it by an abortion. They assert an inability to obtain
an abortion legally in Texas and, consequently, the prospect of obtaining
an illegal abortion there or of going outside Texas to some place where
the procedure could be obtained legally and competently. |
| [55] | We thus have as plaintiffs a married couple who have, as their asserted
immediate and present injury, only an alleged "detrimental effect upon marital
happiness" because they are forced to "the choice of refraining from normal
sexual relations or of endangering Mary Doe's health through a possible
pregnancy." Their claim is that sometime in the future Mrs. Doe might become
pregnant because of possible failure of contraceptive measures, and at that
time in the future she might want an abortion that might then be illegal
under the Texas statutes. |
| [56] | This very phrasing of the Does' position reveals its speculative character.
Their alleged injury rests on possible future contraceptive failure, possible
future pregnancy, possible future unpreparedness for parenthood, and possible
future impairment of health. Any one or more of these several possibilities
may not take place and all may not combine. In the Does' estimation, these
possibilities might have some real or imagined impact upon their marital
happiness. But we are not prepared to say that the bare allegation of so
indirect an injury is sufficient to present an actual case or controversy.
Younger v. Harris, 401 U.S., at 41-42; Golden v. Zwickler, 394 U.S., at
109-110; Abele v. Markle, 452 F.2d, at 1124-1125; Crossen v. Breckenridge,
446 F.2d, at 839. The Does' claim falls far short of those resolved otherwise
in the cases that the Does urge upon us, namely, Investment Co. Institute
v. Camp, 401 U.S. 617 (1971); Data Processing Service v. Camp, 397 U.S.
150 (1970); and Epperson v. Arkansas, 393 U.S. 97 (1968). See also Truax
v. Raich, 239 U.S. 33 (1915). |
| [57] | The Does therefore are not appropriate plaintiffs in this litigation.
Their complaint was properly dismissed by the District Court, and we affirm
that dismissal. |
| [58] | V |
| [59] | The principal thrust of appellant's attack on the Texas statutes is that
they improperly invade a right, said to be possessed by the pregnant woman,
to choose to terminate her pregnancy. Appellant would discover this right
in the concept of personal "liberty" embodied in the Fourteenth Amendment's
Due Process Clause; or in personal, marital, familial, and sexual privacy
said to be protected by the Bill of Rights or its penumbras, see Griswold
v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972);
id., at 460 (WHITE, J., Concurring in result); or among those rights reserved
to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S.,
at 486 (Goldberg, J., Concurring). Before addressing this claim, we feel
it desirable briefly to survey, in several aspects, the history of abortion,
for such insight as that history may afford us, and then to examine the
state purposes and interests behind the criminal abortion laws. |
| [60] | VI |
| [61] | It perhaps is not generally appreciated that the restrictive criminal
abortion laws in effect in a majority of States today are of relatively
recent vintage. Those laws, generally proscribing abortion or its attempt
at any time during pregnancy except when necessary to preserve the pregnant
woman's life, are not of ancient or even of common-law origin. Instead,
they derive from statutory changes effected, for the most part, in the latter
half of the 19th century. |
| [62] | 1. Ancient attitudes. These are not capable of precise determination.
We are told that at the time of the Persian Empire abortifacients were known
and that criminal abortions were severely punished. *fn8
We are also told, however, that abortion was practiced in Greek times as
well as in the Roman Era, *fn9
and that "it was resorted to without scruple." *fn10
The Ephesian, Soranos, often described as the greatest of the ancient gynecologists,
appears to have been generally opposed to Rome's prevailing free-abortion
practices. He found it necessary to think first of the life of the mother,
and he resorted to abortion when, upon this standard, he felt the procedure
advisable. *fn11 Greek and Roman
law afforded little protection to the unborn. If abortion was prosecuted
in some places, it seems to have been based on a concept of a violation
of the father's right to his offspring. Ancient religion did not bar abortion.
*fn12 |
| [63] | 2. The Hippocratic Oath. What then of the famous Oath that has stood so
long as the ethical guide of the medical profession and that bears the name
of the great Greek (460(?)-377(?) B. C.), who has been described as the
Father of Medicine, the "wisest and the greatest practitioner of his art,"
and the "most important and most complete medical personality of antiquity,"
who dominated the medical schools of his time, and who typified the sum
of the medical knowledge of the past? *fn13
The Oath varies somewhat according to the particular translation, but in
any translation the content is clear: "I will give no deadly medicine to
anyone if asked, nor suggest any such counsel; and in like manner I will
not give to a woman a pessary to produce abortion," *fn14
or "I will neither give a deadly drug to anybody if asked for it, nor will
I make a suggestion to this effect. Similarly, I will not give to a woman
an abortive remedy." *fn15 |
| [64] | Although the Oath is not mentioned in any of the principal briefs in this
case or in Doe v. Bolton, post, p. 179, it represents the apex of the development
of strict ethical concepts in medicine, and its influence endures to this
day. Why did not the authority of Hippocrates dissuade abortion practice
in his time and that of Rome? The late Dr. Edelstein provides us with a
theory: *fn16 The Oath was not
uncontested even in Hippocrates' day; only the Pythagorean school of philosophers
frowned upon the related act of suicide. Most Greek thinkers, on the other
hand, commended abortion, at least prior to viability. See Plato, Republic,
V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however,
it was a matter of dogma. For them the embryo was animate from the moment
of conception, and abortion meant destruction of a living being. The abortion
clause of the Oath, therefore, "echoes Pythagorean doctrines," and "in no
other stratum of Greek opinion were such views held or proposed in the same
spirit of uncompromising austerity." *fn17 |
| [65] | Dr. Edelstein then concludes that the Oath originated in a group representing
only a small segment of Greek opinion and that it certainly was not accepted
by all ancient physicians. He points out that medical writings down to Galen
(A. D. 130-200) "give evidence of the violation of almost every one of its
injunctions." *fn18 But with
the end of antiquity a decided change took place. Resistance against suicide
and against abortion became common. The Oath came to be popular. The emerging
teachings of Christianity were in agreement with the Pythagorean ethic.
The Oath "became the nucleus of all medical ethics" and "was applauded as
the embodiment of truth." Thus, suggests Dr. Edelstein, it is "a Pythagorean
manifesto and not the expression of an absolute standard of medical conduct."
*fn19 |
| [66] | This, it seems to us, is a satisfactory and acceptable explanation of
the Hippocratic Oath's apparent rigidity. It enables us to understand, in
historical context, a long-accepted and revered statement of medical ethics. |
| [67] | 3. The common law. It is undisputed that at common law, abortion performed
before "quickening" -- the first recognizable movement of the fetus in utero,
appearing usually from the 16th to the 18th week of pregnancy *fn20
-- was not an indictable offense. *fn21
The absence of a common-law crime for pre-quickening abortion appears to
have developed from a confluence of earlier philosophical, theological,
and civil and canon law concepts of when life begins. These disciplines
variously approached the question in terms of the point at which the embryo
or fetus became "formed" or recognizably human, or in terms of when a "person"
came into being, that is, infused with a "soul" or "animated." A loose consensus
evolved in early English law that these events occurred at some point between
conception and live birth. *fn22
This was "mediate animation." Although Christian theology and the canon
law came to fix the point of animation at 40 days for a male and 80 days
for a female, a view that persisted until the 19th century, there was otherwise
little agreement about the precise time of formation or animation. There
was agreement, however, that prior to this point the fetus was to be regarded
as part of the mother, and its destruction, therefore, was not homicide.
Due to continued uncertainty about the precise time when animation occurred,
to the lack of any empirical basis for the 40-80-day view, and perhaps to
Aquinas' definition of movement as one of the two first principles of life,
Bracton focused upon quickening as the critical point. The significance
of quickening was echoed by later common-law scholars and found its way
into the received common law in this country. |
| [68] | Whether abortion of a quick fetus was a felony at common law, or even
a lesser crime, is still disputed. Bracton, writing early in the 13th century,
thought it homicide. *fn23 But
the later and predominant view, following the great common-law scholars,
has been that it was, at most, a lesser offense. In a frequently cited passage,
Coke took the position that abortion of a woman "quick with child" is "a
great misprision, and no murder." *fn24
Blackstone followed, saying that while abortion after quickening had once
been considered manslaughter (though not murder), "modern law" took a less
severe view. *fn25 A recent review
of the common-law precedents argues, however, that those precedents contradict
Coke and that even post-quickening abortion was never established as a common-law
crime. *fn26 This is of some
importance because while most American courts ruled, in holding or dictum,
that abortion of an unquickened fetus was not criminal under their received
common law, *fn27 others followed
Coke in stating that abortion of a quick fetus was a "misprision," a term
they translated to mean "misdemeanor." *fn28
That their reliance on Coke on this aspect of the law was uncritical and,
apparently in all the reported cases, dictum (due probably to the paucity
of common-law prosecutions for post-quickening abortion), makes it now appear
doubtful that abortion was ever firmly established as a common-law crime
even with respect to the destruction of a quick fetus. |
| [69] | 4. The English statutory law. England's first criminal abortion statute,
Lord Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion
of a quick fetus, § 1, a capital crime, but in § 2 it provided
lesser penalties for the felony of abortion before quickening, and thus
preserved the "quickening" distinction. This contrast was continued in the
general revision of 1828, 9 Geo. 4, c. 31, § 13. It disappeared, however,
together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85, §
6, and did not reappear in the Offenses Against the Person Act of 1861,
24 & 25 Vict., c. 100, § 59, that formed the core of English anti-abortion
law until the liberalizing reforms of 1967. In 1929, the Infant Life (Preservation)
Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was upon the destruction
of "the life of a child capable of being born alive." It made a willful
act performed with the necessary intent a felony. It contained a proviso
that one was not to be found guilty of the offense "unless it is proved
that the act which caused the death of the child was not done in good faith
for the purpose only of preserving the life of the mother." |
| [70] | A seemingly notable development in the English law was the case of Rex
v. Bourne, [1939] 1 K. B. 687. This case apparently answered in the affirmative
the question whether an abortion necessary to preserve the life of the pregnant
woman was excepted from the criminal penalties of the 1861 Act. In his instructions
to the jury, Judge Macnaghten referred to the 1929 Act, and observed that
that Act related to "the case where a child is killed by a wilful act at
the time when it is being delivered in the ordinary course of nature." Id.,
at 691. He concluded that the 1861 Act's use of the word "unlawfully," imported
the same meaning expressed by the specific proviso in the 1929 Act, even
though there was no mention of preserving the mother's life in the 1861
Act. He then construed the phrase "preserving the life of the mother" broadly,
that is, "in a reasonable sense," to include a serious and permanent threat
to the mother's health, and instructed the jury to acquit Dr. Bourne if
it found he had acted in a good-faith belief that the abortion was necessary
for this purpose. Id., at 693-694. The jury did acquit. |
| [71] | Recently, Parliament enacted a new abortion law. This is the Abortion
Act of 1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician
to perform an abortion where two other licensed physicians agree (a) "that
the continuance of the pregnancy would involve risk to the life of the pregnant
woman, or of injury to the physical or mental health of the pregnant woman
or any existing children of her family, greater than if the pregnancy were
terminated," or (b) "that there is a substantial risk that if the child
were born it would suffer from such physical or mental abnormalities as
to be seriously handicapped." The Act also provides that, in making this
determination, "account may be taken of the pregnant woman's actual or reasonably
foreseeable environment." It also permits a physician, without the concurrence
of others, to terminate a pregnancy where he is of the good-faith opinion
that the abortion "is immediately necessary to save the life or to prevent
grave permanent injury to the physical or mental health of the pregnant
woman." |
| [72] | 5. The American law. In this country, the law in effect in all but a few
States until mid-19th century was the pre-existing English common law. Connecticut,
the first State to enact abortion legislation, adopted in 1821 that part
of Lord Ellenborough's Act that related to a woman "quick with child." *fn29
The death penalty was not imposed. Abortion before quickening was made a
crime in that State only in 1860. *fn30
In 1828, New York enacted legislation *fn31
that, in two respects, was to serve as a model for early anti-abortion statutes.
First, while barring destruction of an unquickened fetus as well as a quick
fetus, it made the former only a misdemeanor, but the latter second-degree
manslaughter. Second, it incorporated a concept of therapeutic abortion
by providing that an abortion was excused if it "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." By 1840, when Texas had received the
common law, *fn32 only eight
American States had statutes dealing with abortion. *fn33
It was not until after the War Between the States that legislation began
generally to replace the common law. Most of these initial statutes dealt
severely with abortion after quickening but were lenient with it before
quickening. Most punished attempts equally with completed abortions. While
many statutes included the exception for an abortion thought by one or more
physicians to be necessary to save the mother's life, that provision soon
disappeared and the typical law required that the procedure actually be
necessary for that purpose. |
| [73] | Gradually, in the middle and late 19th century the quickening distinction
disappeared from the statutory law of most States and the degree of the
offense and the penalties were increased. By the end of the 1950's, a large
majority of the jurisdictions banned abortion, however and whenever performed,
unless done to save or preserve the life of the mother. *fn34
The exceptions, Alabama and the District of Columbia, permitted abortion
to preserve the mother's health. *fn35
Three States permitted abortions that were not "unlawfully" performed or
that were not "without lawful justification," leaving interpretation of
those standards to the courts. *fn36
In the past several years, however, a trend toward liberalization of abortion
statutes has resulted in adoption, by about one-third of the States, of
less stringent laws, most of them patterned after the ALI Model Penal Code,
§ 230.3, *fn37 set forth
as Appendix B to the opinion in Doe v. Bolton, post, p. 205. |
| [74] | It is thus apparent that at common law, at the time of the adoption of
our Constitution, and throughout the major portion of the 19th century,
abortion was viewed with less disfavor than under most American statutes
currently in effect. Phrasing it another way, a woman enjoyed a substantially
broader right to terminate a pregnancy than she does in most States today.
At least with respect to the early stage of pregnancy, and very possibly
without such a limitation, the opportunity to make this choice was present
in this country well into the 19th century. Even later, the law continued
for some time to treat less punitively an abortion procured in early pregnancy. |
| [75] | 6. The position of the American Medical Association. The anti-abortion
mood prevalent in this country in the late 19th century was shared by the
medical profession. Indeed, the attitude of the profession may have played
a significant role in the enactment of stringent criminal abortion legislation
during that period. |
| [76] | An AMA Committee on Criminal Abortion was appointed in May 1857. It presented
its report, 12 Trans. of the Am. Med. Assn. 73-78 (1859), to the Twelfth
Annual Meeting. That report observed that the Committee had been appointed
to investigate criminal abortion "with a view to its general suppression."
It deplored abortion and its frequency and it listed three causes of "this
general demoralization": |
| [77] | "The first of these causes is a wide-spread popular ignorance of the true
character of the crime -- a belief, even among mothers themselves, that
the foetus is not alive till after the period of quickening. |
| [78] | "The second of the agents alluded to is the fact that the profession themselves
are frequently supposed careless of foetal life . . . . |
| [79] | "The third reason of the frightful extent of this crime is found in the
grave defects of our laws, both common and statute, as regards the independent
and actual existence of the child before birth, as a living being. These
errors, which are sufficient in most instances to prevent conviction, are
based, and only based, upon mistaken and exploded medical dogmas. With strange
inconsistency, the law fully acknowledges the foetus in utero and its inherent
rights, for civil purposes; while personally and as criminally affected,
it fails to recognize it, and to its life as yet denies all protection."
Id., at 75-76. The Committee then offered, and the Association adopted,
resolutions protesting "against such unwarrantable destruction of human
life," calling upon state legislatures to revise their abortion laws, and
requesting the cooperation of state medical societies "in pressing the subject."
Id., at 28, 78. |
| [80] | In 1871 a long and vivid report was submitted by the Committee on Criminal
Abortion. It ended with the observation, "We had to deal with human life.
In a matter of less importance we could entertain no compromise. An honest
Judge on the bench would call things by their proper names. We could do
no less." 22 Trans. of the Am. Med. Assn. 258 (1871). It proffered resolutions,
adopted by the Association, id., at 38-39, recommending, among other things,
that it "be unlawful and unprofessional for any physician to induce abortion
or premature labor, without the concurrent opinion of at least one respectable
consulting physician, and then always with a view to the safety of the child
-- if that be possible," and calling "the attention of the clergy of all
denominations to the perverted views of morality entertained by a large
class of females -- aye, and men also, on this important question." |
| [81] | Except for periodic condemnation of the criminal abortionist, no further
formal AMA action took place until 1967. In that year, the Committee on
Human Reproduction urged the adoption of a stated policy of opposition to
induced abortion, except when there is "documented medical evidence" of
a threat to the health or life of the mother, or that the child "may be
born with incapacitating physical deformity or mental deficiency," or that
a pregnancy "resulting from legally established statutory or forcible rape
or incest may constitute a threat to the mental or physical health of the
patient," two other physicians "chosen because of their recognized professional
competence have examined the patient and have concurred in writing, " and
the procedure "is performed in a hospital accredited by the Joint Commission
on Accreditation of Hospitals." The providing of medical information by
physicians to state legislatures in their consideration of legislation regarding
therapeutic abortion was "to be considered consistent with the principles
of ethics of the American Medical Association." This recommendation was
adopted by the House of Delegates. Proceedings of the AMA House of Delegates
40-51 (June 1967). |
| [82] | In 1970, after the introduction of a variety of proposed resolutions,
and of a report from its Board of Trustees, a reference committee noted
"polarization of the medical profession on this controversial issue"; division
among those who had testified; a difference of opinion among AMA councils
and committees; "the remarkable shift in testimony" in six months, felt
to be influenced "by the rapid changes in state laws and by the judicial
decisions which tend to make abortion more freely available;" and a feeling
"that this trend will continue." On June 25, 1970, the House of Delegates
adopted preambles and most of the resolutions proposed by the reference
committee. The preambles emphasized "the best interests of the patient,"
"sound clinical judgment," and "informed patient consent," in contrast to
"mere acquiescence to the patient's demand." The resolutions asserted that
abortion is a medical procedure that should be performed by a licensed physician
in an accredited hospital only after consultation with two other physicians
and in conformity with state law, and that no party to the procedure should
be required to violate personally held moral principles. *fn38
Proceedings of the AMA House of Delegates 220 (June 1970). The AMA Judicial
Council rendered a complementary opinion. *fn39 |
| [83] | 7. The position of the American Public Health Association. In October
1970, the Executive Board of the APHA adopted Standards for Abortion Services.
These were five in number: |
| [84] | "a. Rapid and simple abortion referral must be readily available through
state and local public health departments, medical societies, or other nonprofit
organizations. |
| [85] | "b. An important function of counseling should be to simplify and expedite
the provision of abortion services; it should not delay the obtaining of
these services. |
| [86] | " c. Psychiatric consultation should not be mandatory. As in the case
of other specialized medical services, psychiatric consultation should be
sought for definite indications and not on a routine basis. |
| [87] | "d. A wide range of individuals from appropriately trained, sympathetic
volunteers to highly skilled physicians may qualify as abortion counselors. |
| [88] | "e. Contraception and/or sterilization should be discussed with each abortion
patient." Recommended Standards for Abortion Services, 61 Am. J. Pub. Health
396 (1971). |
| [89] | Among factors pertinent to life and health risks associated with abortion
were three that "are recognized as important": |
| [90] | "a. the skill of the physician, |
| [91] | "b. the environment in which the abortion is performed, and above all |
| [92] | " c. the duration of pregnancy, as determined by uterine size and confirmed
by menstrual history." Id., at 397. |
| [93] | It was said that "a well-equipped hospital" offers more protection "to
cope with unforeseen difficulties than an office or clinic without such
resources. . . . The factor of gestational age is of overriding importance."
Thus, it was recommended that abortions in the second trimester and early
abortions in the presence of existing medical complications be performed
in hospitals as inpatient procedures. For pregnancies in the first trimester,
abortion in the hospital with or without overnight stay "is probably the
safest practice." An abortion in an extramural facility, however, is an
acceptable alternative "provided arrangements exist in advance to admit
patients promptly if unforeseen complications develop." Standards for an
abortion facility were listed. It was said that at present abortions should
be performed by physicians or osteopaths who are licensed to practice and
who have "adequate training." Id., at 398. |
| [94] | 8. The position of the American Bar Association. At its meeting in February
1972 the ABA House of Delegates approved, with 17 opposing votes, the Uniform
Abortion Act that had been drafted and approved the preceding August by
the Conference of Commissioners on Uniform State Laws. 58 A. B. A. J. 380
(1972). We set forth the Act in full in the margin. *fn40
The Conference has appended an enlightening Prefatory Note. *fn41 |
| [95] | VII |
| [96] | Three reasons have been advanced to explain historically the enactment
of criminal abortion laws in the 19th century and to justify their continued
existence. |
| [97] | It has been argued occasionally that these laws were the product of a
Victorian social concern to discourage illicit sexual conduct. Texas, however,
does not advance this justification in the present case, and it appears
that no court or commentator has taken the argument seriously. *fn42
The appellants and amici contend, moreover, that this is not a proper state
purpose at all and suggest that, if it were, the Texas statutes are overbroad
in protecting it since the law fails to distinguish between married and
unwed mothers. |
| [98] | A second reason is concerned with abortion as a medical procedure. When
most criminal abortion laws were first enacted, the procedure was a hazardous
one for the woman. *fn43 This
was particularly true prior to the development of antisepsis. Antiseptic
techniques, of course, were based on discoveries by Lister, Pasteur, and
others first announced in 1867, but were not generally accepted and employed
until about the turn of the century. Abortion mortality was high. Even after
1900, and perhaps until as late as the development of antibiotics in the
1940's, standard modern techniques such as dilation and curettage were not
nearly so safe as they are today. Thus, it has been argued that a State's
real concern in enacting a criminal abortion law was to protect the pregnant
woman, that is, to restrain her from submitting to a procedure that placed
her life in serious jeopardy. |
| [99] | Modern medical techniques have altered this situation. Appellants and
various amici refer to medical data indicating that abortion in early pregnancy,
that is, prior to the end of the first trimester, although not without its
risk, is now relatively safe. Mortality rates for women undergoing early
abortions, where the procedure is legal, appear to be as low as or lower
than the rates for normal childbirth. *fn44
Consequently, any interest of the State in protecting the woman from an
inherently hazardous procedure, except when it would be equally dangerous
for her to forgo it, has largely disappeared. Of course, important state
interests in the areas of health and medical standards do remain. The State
has a legitimate interest in seeing to it that abortion, like any other
medical procedure, is performed under circumstances that insure maximum
safety for the patient. This interest obviously extends at least to the
performing physician and his staff, to the facilities involved, to the availability
of after-care, and to adequate provision for any complication or emergency
that might arise. The prevalence of high mortality rates at illegal "abortion
mills" strengthens, rather than weakens, the State's interest in regulating
the conditions under which abortions are performed. Moreover, the risk to
the woman increases as her pregnancy continues. Thus, the State retains
a definite interest in protecting the woman's own health and safety when
an abortion is proposed at a late stage of pregnancy. |
| [100] | The third reason is the State's interest -- some phrase it in terms of
duty -- in protecting prenatal life. Some of the argument for this justification
rests on the theory that a new human life is present from the moment of
conception. *fn45 The State's
interest and general obligation to protect life then extends, it is argued,
to prenatal life. Only when the life of the pregnant mother herself is at
stake, balanced against the life she carries within her, should the interest
of the embryo or fetus not prevail. Logically, of course, a legitimate state
interest in this area need not stand or fall on acceptance of the belief
that life begins at conception or at some other point prior to live birth.
In assessing the State's interest, recognition may be given to the less
rigid claim that as long as at least potential life is involved, the State
may assert interests beyond the protection of the pregnant woman alone. |
| [101] | Parties challenging state abortion laws have sharply disputed in some
courts the contention that a purpose of these laws, when enacted, was to
protect prenatal life. *fn46
Pointing to the absence of legislative history to support the contention,
they claim that most state laws were designed solely to protect the woman.
Because medical advances have lessened this concern, at least with respect
to abortion in early pregnancy, they argue that with respect to such abortions
the laws can no longer be justified by any state interest. There is some
scholarly support for this view of original purpose. *fn47
The few state courts called upon to interpret their laws in the late 19th
and early 20th centuries did focus on the State's interest in protecting
the woman's health rather than in preserving the embryo and fetus. *fn48
Proponents of this view point out that in many States, including Texas,
*fn49 by statute or judicial
interpretation, the pregnant woman herself could not be prosecuted for self-abortion
or for cooperating in an abortion performed upon her by another. *fn50
They claim that adoption of the "quickening" distinction through received
common law and state statutes tacitly recognizes the greater health hazards
inherent in late abortion and impliedly repudiates the theory that life
begins at conception. |
| [102] | It is with these interests, and the weight to be attached to them, that
this case is concerned. |
| [103] | VIII |
| [104] | The Constitution does not explicitly mention any right of privacy. In
a line of decisions, however, going back perhaps as far as Union Pacific
R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that
a right of personal privacy, or a guarantee of certain areas or zones of
privacy, does exist under the Constitution. In varying contexts, the Court
or individual Justices have, indeed, found at least the roots of that right
in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in
the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968),
Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States,
116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928)
(Brandeis, J., Dissenting); in the penumbras of the Bill of Rights, Griswold
v. Connecticut, 381 U.S., at 484-485; in the Ninth Amendment, id., at 486
(Goldberg, J., Concurring); or in the concept of liberty guaranteed by the
first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S.
390, 399 (1923). These decisions make it clear that only personal rights
that can be deemed "fundamental" or "implicit in the concept of ordered
liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in
this guarantee of personal privacy. They also make it clear that the right
has some extension to activities relating to marriage, Loving v. Virginia,
388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542
(1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454; id., at
460, 463-465 (WHITE, J., Concurring in result); family relationships, Prince
v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education,
Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska,
supra. |
| [105] | This right of privacy, whether it be founded in the Fourteenth Amendment's
concept of personal liberty and restrictions upon state action, as we feel
it is, or, as the District Court determined, in the Ninth Amendment's reservation
of rights to the people, is broad enough to encompass a woman's decision
whether or not to terminate her pregnancy. The detriment that the State
would impose upon the pregnant woman by denying this choice altogether is
apparent. Specific and direct harm medically diagnosable even in early pregnancy
may be involved. Maternity, or additional offspring, may force upon the
woman a distressful life and future. Psychological harm may be imminent.
Mental and physical health may be taxed by child care. There is also the
distress, for all concerned, associated with the unwanted child, and there
is the problem of bringing a child into a family already unable, psychologically
and otherwise, to care for it. In other cases, as in this one, the additional
difficulties and continuing stigma of unwed motherhood may be involved.
All these are factors the woman and her responsible physician necessarily
will consider in consultation. |
| [106] | On the basis of elements such as these, appellant and some amici argue
that the woman's right is absolute and that she is entitled to terminate
her pregnancy at whatever time, in whatever way, and for whatever reason
she alone chooses. With this we do not agree. Appellant's arguments that
Texas either has no valid interest at all in regulating the abortion decision,
or no interest strong enough to support any limitation upon the woman's
sole determination, are unpersuasive. The Court's decisions recognizing
a right of privacy also acknowledge that some state regulation in areas
protected by that right is appropriate. As noted above, a State may properly
assert important interests in safeguarding health, in maintaining medical
standards, and in protecting potential life. At some point in pregnancy,
these respective interests become sufficiently compelling to sustain regulation
of the factors that govern the abortion decision. The privacy right involved,
therefore, cannot be said to be absolute. In fact, it is not clear to us
that the claim asserted by some amici that one has an unlimited right to
do with one's body as one pleases bears a close relationship to the right
of privacy previously articulated in the Court's decisions. The Court has
refused to recognize an unlimited right of this kind in the past. Jacobson
v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S.
200 (1927) (sterilization). |
| [107] | We, therefore, conclude that the right of personal privacy includes the
abortion decision, but that this right is not unqualified and must be considered
against important state interests in regulation. |
| [108] | We note that those federal and state courts that have recently considered
abortion law challenges have reached the same Conclusion. A majority, in
addition to the District Court in the present case, have held state laws
unconstitutional, at least in part, because of vagueness or because of overbreadth
and abridgment of rights. Abele v. Markle, 342 F.Supp. 800 (Conn. 1972),
appeal docketed, No. 72-56; Abele v. Markle, 351 F.Supp. 224 (Conn. 1972),
appeal docketed, No. 72-730; Doe v. Bolton, 319 F.Supp. 1048 (ND Ga. 1970),
appeal decided today, post, p. 179; Doe v. Scott, 321 F.Supp. 1385 (ND Ill.
1971), appeal docketed, No. 70-105; Poe v. Menghini, 339 F.Supp. 986 (Kan.
1972); YWCA v. Kugler, 342 F.Supp. 1048 (NJ 1972); Babbitz v. McCann, 310
F.Supp. 293 (ED Wis. 1970), appeal dismissed, 400 U.S. 1 (1970); People
v. Belous, 71 Cal. 2d 954, 458 P. 2d 194 (1969), cert. denied, 397 U.S.
915 (1970); State v. Barquet, 262 So. 2d 431 (Fla. 1972). |
| [109] | Others have sustained state statutes. Crossen v. Attorney General, 344
F.Supp. 587 (ED Ky. 1972), appeal docketed, No. 72-256; Rosen v. Louisiana
State Board of Medical Examiners, 318 F.Supp. 1217 (ED La. 1970), appeal
docketed, No. 70-42; Corkey v. Edwards, 322 F.Supp. 1248 (WDNC 1971), appeal
docketed, No. 71-92; Steinberg v. Brown, 321 F.Supp. 741 (ND Ohio 1970);
Doe v. Rampton (Utah 1971), appeal docketed, No. 71-5666; Cheaney v. State,
Ind. , 285 N. E. 2d 265 (1972); Spears v. State, 257 So. 2d 876 (Miss. 1972);
State v. Munson, 86 S. D. 663, 201 N. W. 2d 123 (1972), appeal docketed,
No. 72-631. |
| [110] | Although the results are divided, most of these courts have agreed that
the right of privacy, however based, is broad enough to cover the abortion
decision; that the right, nonetheless, is not absolute and is subject to
some limitations; and that at some point the state interests as to protection
of health, medical standards, and prenatal life, become dominant. We agree
with this approach. |
| [111] | Where certain "fundamental rights" are involved, the Court has held that
regulation limiting these rights may be justified only by a "compelling
state interest," Kramer v. Union Free School District, 395 U.S. 621, 627
(1969); Shapiro v. Thompson, 394 U.S. 618, 634 (1969), Sherbert v. Verner,
374 U.S. 398, 406 (1963), and that legislative enactments must be narrowly
drawn to express only the legitimate state interests at stake. Griswold
v. Connecticut, 381 U.S., at 485; Aptheker v. Secretary of State, 378 U.S.
500, 508 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307-308 (1940);
see Eisenstadt v. Baird, 405 U.S., at 460, 463-464 (WHITE, J., Concurring
in result). |
| [112] | In the recent abortion cases, cited above, courts have recognized these
principles. Those striking down state laws have generally scrutinized the
State's interests in protecting health and potential life, and have concluded
that neither interest justified broad limitations on the reasons for which
a physician and his pregnant patient might decide that she should have an
abortion in the early stages of pregnancy. Courts sustaining state laws
have held that the State's determinations to protect health or prenatal
life are dominant and constitutionally justifiable. |
| [113] | IX |
| [114] | The District Court held that the appellee failed to meet his burden of
demonstrating that the Texas statute's infringement upon Roe's rights was
necessary to support a compelling state interest, and that, although the
appellee presented "several compelling justifications for state presence
in the area of abortions," the statutes outstripped these justifications
and swept "far beyond any areas of compelling state interest." 314 F.Supp.,
at 1222-1223. Appellant and appellee both contest that holding. Appellant,
as has been indicated, claims an absolute right that bars any state imposition
of criminal penalties in the area. Appellee argues that the State's determination
to recognize and protect prenatal life from and after conception constitutes
a compelling state interest. As noted above, we do not agree fully with
either formulation. |
| [115] | A. The appellee and certain amici argue that the fetus is a "person" within
the language and meaning of the Fourteenth Amendment. In support of this,
they outline at length and in detail the well-known facts of fetal development.
If this suggestion of personhood is established, the appellant's case, of
course, collapses, for the fetus' right to life would then be guaranteed
specifically by the Amendment. The appellant conceded as much on reargument.
*fn51 On the other hand, the
appellee conceded on reargument *fn52
that no case could be cited that holds that a fetus is a person within the
meaning of the Fourteenth Amendment. |
| [116] | The Constitution does not define "person" in so many words. Section 1
of the Fourteenth Amendment contains three references to "person." The first,
in defining "citizens," speaks of "persons born or naturalized in the United
States." The word also appears both in the Due Process Clause and in the
Equal Protection Clause. "Person" is used in other places in the Constitution:
in the listing of qualifications for Representatives and Senators, Art.
I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art.
I, § 2, cl. 3; *fn53 in
the Migration and Importation provision, Art. I, § 9, cl. 1; in the
Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art.
II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining
qualifications for the office of President, Art. II, § 1, cl. 5; in
the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded
Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments,
as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly
all these instances, the use of the word is such that it has application
only postnatally. None indicates, with any assurance, that it has any possible
pre-natal application. *fn54 |
| [117] | All this, together with our observation, (supra) , that throughout the
major portion of the 19th century prevailing legal abortion practices were
far freer than they are today, persuades us that the word "person," as used
in the Fourteenth Amendment, does not include the unborn. *fn55
This is in accord with the results reached in those few cases where the
issue has been squarely presented. McGarvey v. Magee-Womens Hospital, 340
F.Supp. 751 (WD Pa. 1972); Byrn v. New York City Health & Hospitals Corp.,
31 N. Y. 2d 194, 286 N. E. 2d 887 (1972), appeal docketed, No. 72-434; Abele
v. Markle, 351 F.Supp. 224 (Conn. 1972), appeal docketed, No. 72-730. Cf.
Cheaney v. State, Ind., at , 285 N. E. 2d, at 270; Montana v. Rogers, 278
F.2d 68, 72 (CA7 1960), aff'd sub nom. Montana v. Kennedy, 366 U.S. 308
(1961); Keeler v. Superior Court, 2 Cal. 3d 619, 470 P. 2d 617 (1970); State
v. Dickinson, 28 Ohio St. 2d 65, 275 N. E. 2d 599 (1971). Indeed, our decision
in United States v. Vuitch, 402 U.S. 62 (1971), inferentially is to the
same effect, for we there would not have indulged in statutory interpretation
favorable to abortion in specified circumstances if the necessary consequence
was the termination of life entitled to Fourteenth Amendment protection. |
| [118] | This Conclusion, however, does not of itself fully answer the contentions
raised by Texas, and we pass on to other considerations. |
| [119] | B. The pregnant woman cannot be isolated in her privacy. She carries an
embryo and, later, a fetus, if one accepts the medical definitions of the
developing young in the human uterus. See Dorland's Illustrated Medical
Dictionary 478-479, 547 (24th ed. 1965). The situation therefore is inherently
different from marital intimacy, or bedroom possession of obscene material,
or marriage, or procreation, or education, with which Eisenstadt and Griswold,
Stanley, Loving, Skinner, and Pierce and Meyer were respectively concerned.
As we have intimated above, it is reasonable and appropriate for a State
to decide that at some point in time another interest, that of health of
the mother or that of potential human life, becomes significantly involved.
The woman's privacy is no longer sole and any right of privacy she possesses
must be measured accordingly. |
| [120] | Texas urges that, apart from the Fourteenth Amendment, life begins at
conception and is present throughout pregnancy, and that, therefore, the
State has a compelling interest in protecting that life from and after conception.
We need not resolve the difficult question of when life begins. When those
trained in the respective disciplines of medicine, philosophy, and theology
are unable to arrive at any consensus, the judiciary, at this point in the
development of man's knowledge, is not in a position to speculate as to
the answer. |
| [121] | It should be sufficient to note briefly the wide divergence of thinking
on this most sensitive and difficult question. There has always been strong
support for the view that life does not begin until live birth. This was
the belief of the Stoics. *fn56
It appears to be the predominant, though not the unanimous, attitude of
the Jewish faith. *fn57 It may
be taken to represent also the position of a large segment of the Protestant
community, insofar as that can be ascertained; organized groups that have
taken a formal position on the abortion issue have generally regarded abortion
as a matter for the conscience of the individual and her family. *fn58
As we have noted, the common law found greater significance in quickening.
Physicians and their scientific colleagues have regarded that event with
less interest and have tended to focus either upon conception, upon live
birth, or upon the interim point at which the fetus becomes "viable," that
is, potentially able to live outside the mother's womb, albeit with artificial
aid. *fn59 Viability is usually
placed at about seven months (28 weeks) but may occur earlier, even at 24
weeks. *fn60 The Aristotelian
theory of "mediate animation," that held sway throughout the Middle Ages
and the Renaissance in Europe, continued to be official Roman Catholic dogma
until the 19th century, despite opposition to this "ensoulment" theory from
those in the Church who would recognize the existence of life from the moment
of conception. *fn61 The latter
is now, of course, the official belief of the Catholic Church. As one brief
amicus discloses, this is a view strongly held by many non-Catholics as
well, and by many physicians. Substantial problems for precise definition
of this view are posed, however, by new embryological data that purport
to indicate that conception is a "process" over time, rather than an event,
and by new medical techniques such as menstrual extraction, the "morning-after"
pill, implantation of embryos, artificial insemination, and even artificial
wombs. *fn62 |
| [122] | In areas other than criminal abortion, the law has been reluctant to endorse
any theory that life, as we recognize it, begins before live birth or to
accord legal rights to the unborn except in narrowly defined situations
and except when the rights are contingent upon live birth. For example,
the traditional rule of tort law denied recovery for prenatal injuries even
though the child was born alive. *fn63
That rule has been changed in almost every jurisdiction. In most States,
recovery is said to be permitted only if the fetus was viable, or at least
quick, when the injuries were sustained, though few courts have squarely
so held. *fn64 In a recent development,
generally opposed by the commentators, some States permit the parents of
a stillborn child to maintain an action for wrongful death because of prenatal
injuries. *fn65 Such an action,
however, would appear to be one to vindicate the parents' interest and is
thus consistent with the view that the fetus, at most, represents only the
potentiality of life. Similarly, unborn children have been recognized as
acquiring rights or interests by way of inheritance or other devolution
of property, and have been represented by guardians ad litem. *fn66
Perfection of the interests involved, again, has generally been contingent
upon live birth. In short, the unborn have never been recognized in the
law as persons in the whole sense. |
| [123] | X |
| [124] | In view of all this, we do not agree that, by adopting one theory of life,
Texas may override the rights of the pregnant woman that are at stake. We
repeat, however, that the State does have an important and legitimate interest
in preserving and protecting the health of the pregnant woman, whether she
be a resident of the State or a nonresident who seeks medical consultation
and treatment there, and that it has still another important and legitimate
interest in protecting the potentiality of human life. These interests are
separate and distinct. Each grows in substantiality as the woman approaches
term and, at a point during pregnancy, each becomes "compelling." |
| [125] | With respect to the State's important and legitimate interest in the health
of the mother, the "compelling" point, in the light of present medical knowledge,
is at approximately the end of the first trimester. This is so because of
the now-established medical fact, referred to above at 149, that until the
end of the first trimester mortality in abortion may be less than mortality
in normal childbirth. It follows that, from and after this point, a State
may regulate the abortion procedure to the extent that the regulation reasonably
relates to the preservation and protection of maternal health. Examples
of permissible state regulation in this area are requirements as to the
qualifications of the person who is to perform the abortion; as to the licensure
of that person; as to the facility in which the procedure is to be performed,
that is, whether it must be a hospital or may be a clinic or some other
place of less-than-hospital status; as to the licensing of the facility;
and the like. |
| [126] | This means, on the other hand, that, for the period of pregnancy prior
to this "compelling" point, 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. If
that decision is reached, the judgment may be effectuated by an abortion
free of interference by the State. |
| [127] | With respect to the State's important and legitimate interest in potential
life, the "compelling" point is at viability. This is so because the fetus
then presumably has the capability of meaningful life outside the mother's
womb. State regulation protective of fetal life after viability thus has
both logical and biological justifications. If the State is interested in
protecting fetal life after viability, it may go so far as to proscribe
abortion during that period, except when it is necessary to preserve the
life or health of the mother. |
| [128] | Measured against these standards, Art. 1196 of the Texas Penal Code, in
restricting legal abortions to those "procured or attempted by medical advice
for the purpose of saving the life of the mother," sweeps too broadly. The
statute makes no distinction between abortions performed early in pregnancy
and those performed later, and it limits to a single reason, "saving" the
mother's life, the legal justification for the procedure. The statute, therefore,
cannot survive the constitutional attack made upon it here. |
| [129] | This Conclusion makes it unnecessary for us to consider the additional
challenge to the Texas statute asserted on grounds of vagueness. See United
States v. Vuitch, 402 U.S., at 67-72. |
| [130] | XI |
| [131] | To summarize and to repeat: |
| [132] | 1. A state criminal abortion statute of the current Texas type, that excepts
from criminality only a lifesaving procedure on behalf of the mother, without
regard to pregnancy stage and without recognition of the other interests
involved, is violative of the Due Process Clause of the Fourteenth Amendment. |
| [133] | (a) 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. |
| [134] | (b) For the stage subsequent to approximately the end of the first trimester,
the State, in promoting its interest in the health of the mother, may, if
it chooses, regulate the abortion procedure in ways that are reasonably
related to maternal health. |
| [135] | (c) For the stage subsequent to viability, the State in promoting its
interest in the potentiality of human life may, if it chooses, regulate,
and even proscribe, abortion except where it is necessary, in appropriate
medical judgment, for the preservation of the life or health of the mother. |
| [136] | 2. The State may define the term "physician," as it has been employed
in the preceding paragraphs of this Part XI of this opinion, to mean only
a physician currently licensed by the State, and may proscribe any abortion
by a person who is not a physician as so defined. |
| [137] | In Doe v. Bolton, post, p. 179, procedural requirements contained in one
of the modern abortion statutes are considered. That opinion and this one,
of course, are to be read together. *fn67 |
| [138] | This holding, we feel, is consistent with the relative weights of the
respective interests involved, with the lessons and examples of medical
and legal history, with the lenity of the common law, and with the demands
of the profound problems of the present day. The decision leaves the State
free to place increasing restrictions on abortion as the period of pregnancy
lengthens, so long as those restrictions are tailored to the recognized
state interests. The decision vindicates the right of the physician to administer
medical treatment according to his professional judgment up to the points
where important state interests provide compelling justifications for intervention.
Up to those points, the abortion decision in all its aspects is inherently,
and primarily, a medical decision, and basic responsibility for it must
rest with the physician. If an individual practitioner abuses the privilege
of exercising proper medical judgment, the usual remedies, judicial and
intra-professional, are available. |
| [139] | XII |
| [140] | Our Conclusion that Art. 1196 is unconstitutional means, of course, that
the Texas abortion statutes, as a unit, must fall. The exception of Art.
1196 cannot be struck down separately, for then the State would be left
with a statute proscribing all abortion procedures no matter how medically
urgent the case. |
| [141] | Although the District Court granted appellant Roe declaratory relief,
it stopped short of issuing an injunction against enforcement of the Texas
statutes. The Court has recognized that different considerations enter into
a federal court's decision as to declaratory relief, on the one hand, and
injunctive relief, on the other. Zwickler v. Koota, 389 U.S. 241, 252-255
(1967); Dombrowski v. Pfister, 380 U.S. 479 (1965). We are not dealing with
a statute that, on its face, appears to abridge free expression, an area
of particular concern under Dombrowski and refined in Younger v. Harris,
401 U.S., at 50. |
| [142] | We find it unnecessary to decide whether the District Court erred in withholding
injunctive relief, for we assume the Texas prosecutorial authorities will
give full credence to this decision that the present criminal abortion statutes
of that State are unconstitutional. |
| [143] | The judgment of the District Court as to intervenor Hallford is reversed,
and Dr. Hallford's complaint in intervention is dismissed. In all other
respects, the judgment of the District Court is affirmed. Costs are allowed
to the appellee. |
| [144] | [EDITOR'S NOTE: Additional opinions by Burger, Douglas, and White are
published within Doe v. Bolton, 410 U.S. 179.] |
| [145] | It is so ordered. |
| [146] | [For Concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 207.] |
| [147] | [For Concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 209.] |
| [148] | [For Dissenting opinion of MR. JUSTICE WHITE, see post, p. 221.] |
| [149] | contd |
| [150] | [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.] |
| [151] | JUSTICE STEWART, Concurring. |
| [152] | In 1963, this Court, in Ferguson v. Skrupa, 372 U.S. 726, purported to
sound the death knell for the doctrine of substantive due process, a doctrine
under which many state laws had in the past been held to violate the Fourteenth
Amendment. As Mr. Justice Black's opinion for the Court in Skrupa put it:
"We have returned to the original constitutional proposition that courts
do not substitute their social and economic beliefs for the judgment of
legislative bodies, who are elected to pass laws." Id., at 730. *fn1 |
| [153] | Barely two years later, in Griswold v. Connecticut, 381 U.S. 479, the
Court held a Connecticut birth control law unconstitutional. In view of
what had been so recently said in Skrupa, the Court's opinion in Griswold
understandably did its best to avoid reliance on the Due Process Clause
of the Fourteenth Amendment as the ground for decision. Yet, the Connecticut
law did not violate any provision of the Bill of Rights, nor any other specific
provision of the Constitution. *fn2
So it was clear to me then, and it is equally clear to me now, that the
Griswold decision can be rationally understood only as a holding that the
Connecticut statute substantively invaded the "liberty" that is protected
by the Due Process Clause of the Fourteenth Amendment. *fn3
As so understood, Griswold stands as one in a long line of pre- Skrupa cases
decided under the doctrine of substantive due process, and I now accept
it as such. |
| [154] | "In a Constitution for a free people, there can be no doubt that the meaning
of 'liberty' must be broad indeed." Board of Regents v. Roth, 408 U.S. 564,
572. The Constitution nowhere mentions a specific right of personal choice
in matters of marriage and family life, but the "liberty" protected by the
Due Process Clause of the Fourteenth Amendment covers more than those freedoms
explicitly named in the Bill of Rights. See Schware v. Board of Bar Examiners,
353 U.S. 232, 238-239; Pierce v. Society of Sisters, 268 U.S. 510, 534-535;
Meyer v. Nebraska, 262 U.S. 390, 399-400. Cf. Shapiro v. Thompson, 394 U.S.
618, 629-630; United States v. Guest, 383 U.S. 745, 757-758; Carrington
v. Rash, 380 U.S. 89, 96; Aptheker v. Secretary of State, 378 U.S. 500,
505; Kent v. Dulles, 357 U.S. 116, 127; Bolling v. Sharpe, 347 U.S. 497,
499-500; Truax v. Raich, 239 U.S. 33, 41. |
| [155] | As Mr. Justice Harlan once wrote: "The full scope of the liberty guaranteed
by the Due Process Clause cannot be found in or limited by the precise terms
of the specific guarantees elsewhere provided in the Constitution. This
'liberty' is not a series of isolated points pricked out in terms of the
taking of property; the freedom of speech, press, and religion; the right
to keep and bear arms; the freedom from unreasonable searches and seizures;
and so on. It is a rational continuum which, broadly speaking, includes
a freedom from all substantial arbitrary impositions and purposeless restraints
. . . and which also recognizes, what a reasonable and sensitive judgment
must, that certain interests require particularly careful scrutiny of the
state needs asserted to justify their abridgment." Poe v. Ullman, 367 U.S.
497, 543 (opinion Dissenting from dismissal of appeal) (citations omitted).
In the words of Mr. Justice Frankfurter, "Great concepts like . . . 'liberty'
. . . were purposely left to gather meaning from experience. For they relate
to the whole domain of social and economic fact, and the statesmen who founded
this Nation knew too well that only a stagnant society remains unchanged."
National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (dissenting
opinion). |
| [156] | Several decisions of this Court make clear that freedom of personal choice
in matters of marriage and family life is one of the liberties protected
by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia,
388 U.S. 1, 12; Griswold v. Connecticut, supra; Pierce v. Society of Sisters,
supra; Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U.S.
158, 166; Skinner v. Oklahoma, 316 U.S. 535, 541. As recently as last Term,
in Eisenstadt v. Baird, 405 U.S. 438, 453, we recognized "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." That right necessarily includes the right
of a woman to decide whether or not to terminate her pregnancy. "Certainly
the interests of a woman in giving of her physical and emotional self during
pregnancy and the interests that will be affected throughout her life by
the birth and raising of a child are of a far greater degree of significance
and personal intimacy than the right to send a child to private school protected
in Pierce v. Society of Sisters, 268 U.S. 510 (1925), or the right to teach
a foreign language protected in Meyer v. Nebraska, 262 U.S. 390 (1923)."
Abele v. Markle, 351 F.Supp. 224, 227 (Conn. 1972). |
| [157] | Clearly, therefore, the Court today is correct in holding that the right
asserted by Jane Roe is embraced within the personal liberty protected by
the Due Process Clause of the Fourteenth Amendment. |
| [158] | It is evident that the Texas abortion statute infringes that right directly.
Indeed, it is difficult to imagine a more complete abridgment of a constitutional
freedom than that worked by the inflexible criminal statute now in force
in Texas. The question then becomes whether the state interests advanced
to justify this abridgment can survive the "particularly careful scrutiny"
that the Fourteenth Amendment here requires. |
| [159] | The asserted state interests are protection of the health and safety of
the pregnant woman, and protection of the potential future human life within
her. These are legitimate objectives, amply sufficient to permit a State
to regulate abortions as it does other surgical procedures, and perhaps
sufficient to permit a State to regulate abortions more stringently or even
to prohibit them in the late stages of pregnancy. But such legislation is
not before us, and I think the Court today has thoroughly demonstrated that
these state interests cannot constitutionally support the broad abridgment
of personal liberty worked by the existing Texas law. Accordingly, I join
the Court's opinion holding that that law is invalid under the Due Process
Clause of the Fourteenth Amendment. |
| [160] | JUSTICE REHNQUIST, Dissenting. |
| [161] | The Court's opinion brings to the decision of this troubling question
both extensive historical fact and a wealth of legal scholarship. While
the opinion thus commands my respect, I find myself nonetheless in fundamental
disagreement with those parts of it that invalidate the Texas statute in
question, and therefore Dissent. |
| [162] | I |
| [163] | The Court's opinion decides that a State may impose virtually no restriction
on the performance of abortions during the first trimester of pregnancy.
Our previous decisions indicate that a necessary predicate for such an opinion
is a plaintiff who was in her first trimester of pregnancy at some time
during the pendency of her lawsuit. While a party may vindicate his own
constitutional rights, he may not seek vindication for the rights of others.
Moose Lodge v. Irvis, 407 U.S. 163 (1972); Sierra Club v. Morton, 405 U.S.
727 (1972). The Court's statement of facts in this case makes clear, however,
that the record in no way indicates the presence of such a plaintiff. We
know only that plaintiff Roe at the time of filing her complaint was a pregnant
woman; for aught that appears in this record, she may have been in her last
trimester of pregnancy as of the date the complaint was filed. |
| [164] | Nothing in the Court's opinion indicates that Texas might not constitutionally
apply its proscription of abortion as written to a woman in that stage of
pregnancy. Nonetheless, the Court uses her complaint against the Texas statute
as a fulcrum for deciding that States may impose virtually no restrictions
on medical abortions performed during the first trimester of pregnancy.
In deciding such a hypothetical lawsuit, the Court departs from the longstanding
admonition that it should never "formulate a rule of constitutional law
broader than is required by the precise facts to which it is to be applied."
Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration,
113 U.S. 33, 39 (1885). See also Ashwander v. TVA, 297 U.S. 288, 345 (1936)
(Brandeis, J., Concurring). |
| [165] | II |
| [166] | Even if there were a plaintiff in this case capable of litigating the
issue which the Court decides, I would reach a Conclusion opposite to that
reached by the Court. I have difficulty in concluding, as the Court does,
that the right of "privacy" is involved in this case. Texas, by the statute
here challenged, bars the performance of a medical abortion by a licensed
physician on a plaintiff such as Roe. A transaction resulting in an operation
such as this is not "private" in the ordinary usage of that word. Nor is
the "privacy" that the Court finds here even a distant relative of the freedom
from searches and seizures protected by the Fourth Amendment to the Constitution,
which the Court has referred to as embodying a right to privacy. Katz v.
United States, 389 U.S. 347 (1967). |
| [167] | If the Court means by the term "privacy" no more than that the claim of
a person to be free from unwanted state regulation of consensual transactions
may be a form of "liberty" protected by the Fourteenth Amendment, there
is no doubt that similar claims have been upheld in our earlier decisions
on the basis of that liberty. I agree with the statement of MR. JUSTICE
STEWART in his Concurring opinion that the "liberty," against deprivation
of which without due process the Fourteenth Amendment protects, embraces
more than the rights found in the Bill of Rights. But that liberty is not
guaranteed absolutely against deprivation, only against deprivation without
due process of law. The test traditionally applied in the area of social
and economic legislation is whether or not a law such as that challenged
has a rational relation to a valid state objective. Williamson v. Lee Optical
Co., 348 U.S. 483, 491 (1955). The Due Process Clause of the Fourteenth
Amendment undoubtedly does place a limit, albeit a broad one, on legislative
power to enact laws such as this. If the Texas statute were to prohibit
an abortion even where the mother's life is in jeopardy, I have little doubt
that such a statute would lack a rational relation to a valid state objective
under the test stated in Williamson, supra. But the Court's sweeping invalidation
of any restrictions on abortion during the first trimester is impossible
to justify under that standard, and the conscious weighing of competing
factors that the Court's opinion apparently substitutes for the established
test is far more appropriate to a legislative judgment than to a judicial
one. |
| [168] | The Court eschews the history of the Fourteenth Amendment in its reliance
on the "compelling state interest" test. See Weber v. Aetna Casualty & Surety
Co., 406 U.S. 164, 179 (1972) (dissenting opinion). But the Court adds a
new wrinkle to this test by transposing it from the legal considerations
associated with the Equal Protection Clause of the Fourteenth Amendment
to this case arising under the Due Process Clause of the Fourteenth Amendment.
Unless I misapprehend the consequences of this transplanting of the "compelling
state interest test," the Court's opinion will accomplish the seemingly
impossible feat of leaving this area of the law more confused than it found
it. |
| [169] | While the Court's opinion quotes from the Dissent of Mr. Justice Holmes
in Lochner v. New York, 198 U.S. 45, 74 (1905), the result it reaches is
more closely attuned to the majority opinion of Mr. Justice Peckham in that
case. As in Lochner and similar cases applying substantive due process standards
to economic and social welfare legislation, the adoption of the compelling
state interest standard will inevitably require this Court to examine the
legislative policies and pass on the wisdom of these policies in the very
process of deciding whether a particular state interest put forward may
or may not be "compelling." The decision here to break pregnancy into three
distinct terms and to outline the permissible restrictions the State may
impose in each one, for example, partakes more of judicial legislation than
it does of a determination of the intent of the drafters of the Fourteenth
Amendment. |
| [170] | The fact that a majority of the States reflecting, after all, the majority
sentiment in those States, have had restrictions on abortions for at least
a century is a strong indication, it seems to me, that the asserted right
to an abortion is not "so rooted in the traditions and conscience of our
people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U.S.
97, 105 (1934). Even today, when society's views on abortion are changing,
the very existence of the debate is evidence that the "right" to an abortion
is not so universally accepted as the appellant would have us believe. |
| [171] | To reach its result, the Court necessarily has had to find within the
scope of the Fourteenth Amendment a right that was apparently completely
unknown to the drafters of the Amendment. As early as 1821, the first state
law dealing directly with abortion was enacted by the Connecticut Legislature.
Conn. Stat., Tit. 20, §§ 14, 16. By the time of the adoption of
the Fourteenth Amendment in 1868, there were at least 36 laws enacted by
state or territorial legislatures limiting abortion. *fn1
While many States have amended or updated their laws, 21 of the laws on
the books in 1868 remain in effect today. *fn2
Indeed, the Texas statute struck down today was, as the majority notes,
first enacted in 1857 and "has remained substantially unchanged to the present
time." Ante, at 119. |
| [172] | There apparently was no question concerning the validity of this provision
or of any of the other state statutes when the Fourteenth Amendment was
adopted. The only Conclusion possible from this history is that the drafters
did not intend to have the Fourteenth Amendment withdraw from the States
the power to legislate with respect to this matter. |
| [173] | III |
| [174] | Even if one were to agree that the case that the Court decides were here,
and that the enunciation of the substantive constitutional law in the Court's
opinion were proper, the actual Disposition of the case by the Court is
still difficult to justify. The Texas statute is struck down in toto, even
though the Court apparently concedes that at later periods of pregnancy
Texas might impose these selfsame statutory limitations on abortion. My
understanding of past practice is that a statute found to be invalid as
applied to a particular plaintiff, but not unconstitutional as a whole,
is not simply "struck down" but is, instead, declared unconstitutional as
applied to the fact situation before the Court. Yick Wo v. Hopkins, 118
U.S. 356 (1886); Street v. New York, 394 U.S. 576 (1969). |
| [175] | For all of the foregoing reasons, I respectfully Dissent. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [176] | * Briefs of amici curiae were filed by Gary K. Nelson, Attorney General
of Arizona, Robert K. Killian, Attorney General of Connecticut, Ed W. Hancock,
Attorney General of Kentucky, Clarence A. H. Meyer, Attorney General of
Nebraska, and Vernon B. Romney, Attorney General of Utah; by Joseph P. Witherspoon,
Jr., for the Association of Texas Diocesan Attorneys; by Charles E. Rice
for Americans United for Life; by Eugene J. McMahon for Women for the Unborn
et al.; by Carol Ryan 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.; and by Robert E. Dunne for Robert
L. Sassone. |
| [177] | *fn1 "Article 1191. Abortion |
| [178] | "If any person shall designedly administer to a pregnant woman or knowingly
procure to be administered with her consent any drug or medicine, or shall
use towards her any violence or means whatever externally or internally
applied, and thereby procure an abortion, he shall be confined in the penitentiary
not less than two nor more than five years; if it be done without her consent,
the punishment shall be doubled. By 'abortion' is meant that the life of
the fetus or embryo shall be destroyed in the woman's womb or that a premature
birth thereof be caused. |
| [179] | "Art. 1192. Furnishing the means |
| [180] | "Whoever furnishes the means for procuring an abortion knowing the purpose
intended is guilty as an accomplice. |
| [181] | "Art. 1193. Attempt at abortion |
| [182] | "If the means used shall fail to produce an abortion, the offender is
nevertheless guilty of an attempt to produce abortion, provided it be shown
that such means were calculated to produce that result, and shall be fined
not less than one hundred nor more than one thousand dollars. |
| [183] | "Art. 1194. Murder in producing abortion |
| [184] | "If the death of the mother is occasioned by an abortion so produced or
by an attempt to effect the same it is murder." |
| [185] | "Art. 1196. By medical advice |
| [186] | "Nothing in this chapter applies to an abortion procured or attempted
by medical advice for the purpose of saving the life of the mother." |
| [187] | The foregoing Articles, together with Art. 1195, compose Chapter 9 of
Title 15 of the Penal Code. Article 1195, not attacked here, reads: |
| [188] | "Art. 1195. Destroying unborn child |
| [189] | "Whoever shall during parturition of the mother destroy the vitality or
life in a child in a state of being born and before actual birth, which
child would otherwise have been born alive, shall be confined in the penitentiary
for life or for not less than five years." |
| [190] | *fn2 Ariz. Rev. Stat. Ann. §
13-211 (1956); Conn. Pub. Act No. 1 (May 1972 special session) (in 4 Conn.
Leg. Serv. 677 (1972)), and Conn. Gen. Stat. Rev. §§ 53-29, 53-30
(1968) (or unborn child); Idaho Code § 18-601 (1948); Ill. Rev. Stat.,
c. 38, § 23-1 (1971); Ind. Code § 35-1-58-1 (1971); Iowa Code
§ 701.1 (1971); Ky. Rev. Stat. § 436.020 (1962); La. Rev. Stat.
§ 37:1285 (6) (1964) (loss of medical license) (but see § 14:87
(Supp. 1972) containing no exception for the life of the mother under the
criminal statute); Me. Rev. Stat. Ann., Tit. 17, § 51 (1964); Mass.
Gen. Laws Ann., c. 272, § 19 (1970) (using the term "unlawfully," construed
to exclude an abortion to save the mother's life, Kudish v. Bd. of Registration,
356 Mass. 98, 248 N. E. 2d 264 (1969)); Mich. Comp. Laws § 750.14 (1948);
Minn. Stat. § 617.18 (1971); Mo. Rev. Stat. § 559.100 (1969);
Mont. Rev. Codes Ann. § 94-401 (1969); Neb. Rev. Stat. § 28-405
(1964); Nev. Rev. Stat. § 200.220 (1967); N. H. Rev. Stat. Ann. §
585:13 (1955); N. J. Stat. Ann. § 2A:87-1 (1969) ("without lawful justification");
N. D. Cent. Code §§ 12-25-01, 12-25-02 (1960); Ohio Rev. Code
Ann. § 2901.16 (1953); Okla. Stat. Ann., Tit. 21, § 861 (1972-1973
Supp.); Pa. Stat. Ann., Tit. 18, §§ 4718, 4719 (1963) ("unlawful");
R. I. Gen. Laws Ann. § 11-3-1 (1969); S. D. Comp. Laws Ann. §
22-17-1 (1967); Tenn. Code Ann. §§ 39-301, 39-302 (1956); Utah
Code Ann. §§ 76-2-1, 76-2-2 (1953); Vt. Stat. Ann., Tit. 13, §
101 (1958); W. Va. Code Ann. § 61-2-8 (1966); Wis. Stat. § 940.04
(1969); Wyo. Stat. Ann. §§ 6-77, 6-78 (1957). |
| [191] | *fn3 Long ago, a suggestion was
made that the Texas statutes were unconstitutionally vague because of definitional
deficiencies. The Texas Court of Criminal Appeals disposed of that suggestion
peremptorily, saying only, |
| [192] | "It is also insisted in the motion in arrest of judgment that the statute
is unconstitutional and void in that it does not sufficiently define or
describe the offense of abortion. We do not concur in respect to this question."
Jackson v. State, 55 Tex. Cr. R. 79, 89, 115 S. W. 262, 268 (1908). |
| [193] | The same court recently has held again that the State's abortion statutes
are not unconstitutionally vague or overbroad. Thompson v. State (Ct. Crim.
App. Tex. 1971), appeal docketed, No. 71-1200. The court held that "the
State of Texas has a compelling interest to protect fetal life"; that Art.
1191 "is designed to protect fetal life"; that the Texas homicide statutes,
particularly Art. 1205 of the Penal Code, are intended to protect a person
"in existence by actual birth" and thereby implicitly recognize other human
life that is not "in existence by actual birth"; that the definition of
human life is for the legislature and not the courts; that Art. 1196 "is
more definite than the District of Columbia statute upheld in [ United States
v.] Vuitch " (402 U.S. 62); and that the Texas statute "is not vague and
indefinite or overbroad." A physician's abortion conviction was affirmed. |
| [194] | In Thompson, n. 2, the court observed that any issue as to the burden
of proof under the exemption of Art. 1196 "is not before us." But see Veevers
v. State, 172 Tex. Cr. R. 162, 168-169, 354 S. W. 2d 161, 166-167 (1962).
Cf. United States v. Vuitch, 402 U.S. 62, 69-71 (1971). |
| [195] | *fn4 The name is a pseudonym. |
| [196] | *fn5 These names are pseudonyms. |
| [197] | *fn6 The appellee twice states
in his brief that the hearing before the District Court was held on July
22, 1970. Brief for Appellee 13. The docket entries, App. 2, and the transcript,
App. 76, reveal this to be an error. The July date appears to be the time
of the reporter's transcription. See App. 77. |
| [198] | *fn7 We need not consider what
different result, if any, would follow if Dr. Hallford's intervention were
on behalf of a class. His complaint in intervention does not purport to
assert a class suit and makes no reference to any class apart from an allegation
that he "and others similarly situated" must necessarily guess at the meaning
of Art. 1196. His application for leave to intervene goes somewhat further,
for it asserts that plaintiff Roe does not adequately protect the interest
of the doctor "and the class of people who are physicians . . . the class
of people who are . . . patients . . . ." The leave application, however,
is not the complaint. Despite the District Court's statement to the contrary,
314 F.Supp., at 1225, we fail to perceive the essentials of a class suit
in the Hallford complaint. |
| [199] | *fn8 A. Castiglioni, A History
of Medicine 84 (2d ed. 1947), E. Krumbhaar, translator and editor (hereinafter
Castiglioni). |
| [200] | *fn9 J. Ricci, The Genealogy
of Gynaecology 52, 84, 113, 149 (2d ed. 1950) (hereinafter Ricci); L. Lader,
Abortion 75-77 (1966) (hereinafter Lader); K. Niswander, Medical Abortion
Practices in the United States, in Abortion and the Law 37, 38-40 (D. Smith
ed. 1967); G. Williams, The Sanctity of Life and the 148 (1957) (hereinafter
Williams); J. Noonan, An Almost Absolute Value in History, in The Morality
of Abortion 1, 3-7 (J. Noonan ed. 1970) (hereinafter Noonan); Quay, Justifiable
Abortion -- Medical and Legal Foundations (pt. 2), 49 Geo. L. J. 395, 406-422
(1961) (hereinafter Quay). |
| [201] | *fn10 L. Edelstein, The Hippocratic
Oath 10 (1943) (hereinafter Edelstein). But see Castiglioni 227. |
| [202] | *fn11 Edelstein 12; Ricci 113-114,
118-119; Noonan 5. |
| [203] | *fn12 Edelstein 13-14. |
| [204] | *fn13 Castiglioni 148. |
| [205] | *fn14 Id., at 154. |
| [206] | *fn15 Edelstein 3. |
| [207] | *fn16 Id., at 12, 15-18. |
| [208] | *fn17 Id., at 18; Lader 76. |
| [209] | *fn18 Edelstein 63. |
| [210] | *fn19 Id., at 64. |
| [211] | *fn20 Dorland's Illustrated
Medical Dictionary 1261 (24th ed. 1965). |
| [212] | *fn21 E. Coke, Institutes III
*50; 1 W. Hawkins, Pleas of the Crown, c. 31, § 16 (4th ed. 1762);
1 W. Blackstone, Commentaries *129-130; M. Hale, Pleas of the Crown 433
(1st Amer. ed. 1847). For Discussions of the role of the quickening concept
in English common law, see Lader 78; Noonan 223-226; Means, The Law of New
York Concerning Abortion and the Status of the Foetus, 1664-1968: A Case
of Cessation of Constitutionality (pt. 1), 14 N. Y. L. F. 411, 418-428 (1968)
(hereinafter Means I); Stern, Abortion: Reform and the Law, 59 J. Crim.
L. C. & P. S. 84 (1968) (hereinafter Stern); Quay 430-432; Williams 152. |
| [213] | *fn22 Early philosophers believed
that the embryo or fetus did not become formed and begin to live until at
least 40 days after conception for a male, and 80 to 90 days for a female.
See, for example, Aristotle, Hist. Anim. 7.3.583b; Gen. Anim. 2.3.736, 2.5.741;
Hippocrates, Lib. de Nat. Puer., No. 10. Aristotle's thinking derived from
his three-stage theory of life: vegetable, animal, rational. The vegetable
stage was reached at conception, the animal at "animation," and the rational
soon after live birth. This theory, together with the 40/80 day view, came
to be accepted by early Christian thinkers. |
| [214] | The theological debate was reflected in the writings of St. Augustine,
who made a distinction between embryo inanimatus, not yet endowed with a
soul, and embryo animatus. He may have drawn upon Exodus 21:22. At one point,
however, he expressed the view that human powers cannot determine the point
during fetal development at which the critical change occurs. See Augustine,
De Origine Animae 4.4 (Pub. Law 44.527). See also W. Reany, The Creation
of the Human Soul, c. 2 and 83-86 (1932); Huser, The Crime of Abortion in
Canon Law 15 (Catholic Univ. of America, Canon Law Studies No. 162, Washington,
D.C., 1942). |
| [215] | Galen, in three treatises related to embryology, accepted the thinking
of Aristotle and his followers. Quay 426-427. Later, Augustine on abortion
was incorporated by Gratian into the Decretum, published about 1140. Decretum
Magistri Gratiani 2.32.2.7 to 2.32.2.10, in 1 Corpus Juris Canonici 1122,
1123 (A. Friedburg, 2d ed. 1879). This Decretal and the Decretals that followed
were recognized as the definitive body of canon law until the new Code of
1917. |
| [216] | For Discussions of the canon-law treatment, see Means I, pp. 411-412;
Noonan 20-26; Quay 426-430; see also J. Noonan, Contraception: A History
of Its Treatment by the Catholic Theologians and Canonists 18-29 (1965). |
| [217] | *fn23 Bracton took the position
that abortion by blow or poison was homicide "if the foetus be already formed
and animated, and particularly if it be animated." 2 H. Bracton, De Legibus
et Consuetudinibus Angliae 279 (T. Twiss ed. 1879), or, as a later translation
puts it, "if the foetus is already formed or quickened, especially if it
is quickened," 2 H. Bracton, On the Laws and Customs of England 341 (S.
Thorne ed. 1968). See Quay 431; see also 2 Fleta 60-61 (Book 1, c. 23) (Selden
Society ed. 1955). |
| [218] | *fn24 E. Coke, Institutes III
*50. |
| [219] | *fn25 1 W. Blackstone, Commentaries
*129-130. |
| [220] | *fn26 Means, The Phoenix of
Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise
from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law
Liberty?, 17 N. Y. L. F. 335 (1971) (hereinafter Means II). The author examines
the two principal precedents cited marginally by Coke, both contrary to
his dictum, and traces the treatment of these and other cases by earlier
commentators. He concludes that Coke, who himself participated as an advocate
in an abortion case in 1601, may have intentionally misstated the law. The
author even suggests a reason: Coke's strong feelings against abortion,
coupled with his determination to assert common-law (secular) jurisdiction
to assess penalties for an offense that traditionally had been an exclusively
ecclesiastical or canon-law crime. See also Lader 78-79, who notes that
some scholars doubt that the common law ever was applied to abortion; that
the English ecclesiastical courts seem to have lost interest in the problem
after 1527; and that the preamble to the English legislation of 1803, 43
Geo. 3, c. 58, § 1, referred to in the text, (infra), at 136, states
that "no adequate means have been hitherto provided for the prevention and
punishment of such offenses." |
| [221] | *fn27 Commonwealth v. Bangs,
9 Mass. 387, 388 (1812); Commonwealth v. Parker, 50 Mass. (9 Metc.) 263,
265-266 (1845); State v. Cooper, 22 N. J. L. 52, 58 (1849); Abrams v. Foshee,
3 Iowa 274, 278-280 (1856); Smith v. Gaffard, 31 Ala. 45, 51 (1857); Mitchell
v. Commonwealth, 78 Ky. 204, 210 (1879); Eggart v. State, 40 Fla. 527, 532,
25 So. 144, 145 (1898); State v. Alcorn, 7 Idaho 599, 606, 64 P. 1014, 1016
(1901); Edwards v. State, 79 Neb. 251, 252, 112 N. W. 611, 612 (1907); Gray
v. State, 77 Tex. Cr. R. 221, 224, 178 S. W. 337, 338 (1915); Miller v.
Bennett, 190 Va. 162, 169, 56 S. E. 2d 217, 221 (1949). Contra, Mills v.
Commonwealth, 13 Pa. 631, 633 (1850); State v. Slagle, 83 N. C. 630, 632
(1880). |
| [222] | *fn28 See Smith v. State, 33
Me. 48, 55 (1851); Evans v. People, 49 N. Y. 86, 88 (1872); Lamb v. State,
67 Md. 524, 533, 10 A. 208 (1887). |
| [223] | *fn29 Conn. Stat., Tit. 20,
§ 14 (1821). |
| [224] | *fn30 Conn. Pub. Acts, c. 71,
§ 1 (1860). |
| [225] | *fn31 N. Y. Rev. Stat., pt.
4, c. 1, Tit. 2, Art. 1, § 9, p. 661, and Tit. 6, § 21, p. 694
(1829). |
| [226] | *fn32 Act of Jan. 20, 1840,
§ 1, set forth in 2 H. Gammel, Laws of Texas 177-178 (1898); see Grigsby
v. Reib, 105 Tex. 597, 600, 153 S. W. 1124, 1125 (1913). |
| [227] | *fn33 The early statutes are
discussed in Quay 435-438. See also Lader 85-88; Stern 85-88; and Means
II 375-376. |
| [228] | *fn34 Criminal abortion statutes
in effect in the States as of 1961, together with historical statutory development
and important judicial interpretations of the state statutes, are cited
and quoted in Quay 447-520. See Comment, A Survey of the Present Statutory
and Case Law on Abortion: The Contradictions and the Problems, 1972 U. Ill.
L. F. 177, 179, classifying the abortion statutes and listing 25 States
as permitting abortion only if necessary to save or preserve the mother's
life. |
| [229] | *fn35 Ala. Code, Tit. 14, §
9 (1958); D.C. Code Ann. § 22-201 (1967). |
| [230] | *fn36 Mass. Gen. Laws Ann.,
c. 272, § 19 (1970); N. J. Stat. Ann. § 2A:87-1 (1969); Pa. Stat.
Ann., Tit. 18, §§ 4718, 4719 (1963). |
| [231] | *fn37 Fourteen States have
adopted some form of the ALI statute. See 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); Del. Code Ann., Tit. 24, §§ 1790-1793 (Supp. 1972);
Florida Law of Apr. 13, 1972, c. 72-196, 1972 Fla. Sess. Law Serv., pp.
380-382; Ga. Code §§ 26-1201 to 26-1203 (1972); Kan. Stat. Ann.
§ 21-3407 (Supp. 1971); Md. Ann. Code, Art. 43, §§ 137-139
(1971); Miss. Code Ann. § 2223 (Supp. 1972); N. M. Stat. Ann. §§
40A-5-1 to 40A-5-3 (1972); N. C. Gen. Stat. § 14-45.1 (Supp. 1971);
Ore. Rev. Stat. §§ 435.405 to 435.495 (1971); S. C. Code Ann.
§§ 16-82 to 16-89 (1962 and Supp. 1971); Va. Code Ann. §§
18.1-62 to 18.1-62.3 (Supp. 1972). Mr. Justice Clark described some of these
States as having "led the way." Religion, Morality, and Abortion: A Constitutional
Appraisal, 2 Loyola U. (L. A.) L. Rev. 1, 11 (1969). |
| [232] | By the end of 1970, four other States had repealed criminal penalties
for abortions performed in early pregnancy by a licensed physician, subject
to stated procedural and health requirements. Alaska Stat. § 11.15.060
(1970); Haw. Rev. Stat. § 453-16 (Supp. 1971); N. Y. Penal Code §
125.05, subd. 3 (Supp. 1972-1973); Wash. Rev. Code §§ 9.02.060
to 9.02.080 (Supp. 1972). The precise status of criminal abortion laws in
some States is made unclear by recent decisions in state and federal courts
striking down existing state laws, in whole or in part. |
| [233] | *fn38 "Whereas, Abortion, like
any other medical procedure, should not be performed when contrary to the
best interests of the patient since good medical practice requires due consideration
for the patient's welfare and not mere acquiescence to the patient's demand;
and |
| [234] | "Whereas, The standards of sound clinical judgment, which, together with
informed patient consent should be determinative according to the merits
of each individual case; therefore be it |
| [235] | " RESOLVED, That abortion is a medical procedure and should be performed
only by a duly licensed physician and surgeon in an accredited hospital
acting only after consultation with two other physicians chosen because
of their professional competency and in conformance with standards of good
medical practice and the Medical Practice Act of his State; and be it further |
| [236] | " RESOLVED, That no physician or other professional personnel shall be
compelled to perform any act which violates his good medical judgment. Neither
physician, hospital, nor hospital personnel shall be required to perform
any act violative of personally-held moral principles. In these circumstances
good medical practice requires only that the physician or other professional
personnel withdraw from the case so long as the withdrawal is consistent
with good medical practice." Proceedings of the AMA House of Delegates 220
(June 1970). |
| [237] | *fn39 "The Principles of Medical
Ethics of the AMA do not prohibit a physician from performing an abortion
that is performed in accordance with good medical practice and under circumstances
that do not violate the laws of the community in which he practices. |
| [238] | "In the matter of abortions, as of any other medical procedure, the Judicial
Council becomes involved whenever there is alleged violation of the Principles
of Medical Ethics as established by the House of Delegates." |
| [239] | *fn40 "UNIFORM ABORTION ACT |
| [240] | "SECTION 1. [ Abortion Defined; When Authorized.] |
| [241] | "(a) 'Abortion' means the termination of human pregnancy with an intention
other than to produce a live birth or to remove a dead fetus. |
| [242] | "(b) An abortion may be performed in this state only if it is performed: |
| [243] | "(1) by a physician licensed to practice medicine [or osteopathy] in this
state or by a physician practicing medicine [or osteopathy] in the employ
of the government of the United States or of this state, [and the abortion
is performed [in the physician's office or in a medical clinic, or] in a
hospital approved by the [Department of Health] or operated by the United
States, this state, or any department, agency, or political subdivision
of either;] or by a female upon herself upon the advice of the physician;
and |
| [244] | "(2) within [20] weeks after the commencement of the pregnancy [or after
[20] weeks only if the physician has reasonable cause to believe (i) there
is a substantial risk that continuance of the pregnancy would endanger the
life of the mother or would gravely impair the physical or mental health
of the mother, (ii) that the child would be born with grave physical or
mental defect, or (iii) that the pregnancy resulted from rape or incest,
or illicit intercourse with a girl under the age of 16 years]. |
| [245] | "SECTION 2. [ Penalty.] Any person who performs or procures an abortion
other than authorized by this Act is guilty of a and, upon conviction thereof,
may be sentenced to pay a fine not exceeding [$1,000] or to imprisonment
[in the state penitentiary] not exceeding [5 years], or both. |
| [246] | "SECTION 3. [ Uniformity of Interpretation.] This Act shall be construed
to effectuate its general purpose to make uniform the law with respect to
the subject of this Act among those states which enact it. |
| [247] | "SECTION 4. [ Short Title.] This Act may be cited as the Uniform Abortion
Act. |
| [248] | "SECTION 5. [ Severability.] If any provision of this Act or the application
thereof to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of this Act which can be given
effect without the invalid provision or application, and to this end the
provisions of this Act are severable. |
| [249] | "SECTION 6. [ Repeal.] The following acts and parts of acts are repealed: |
| [250] | "(1) |
| [251] | "(2) |
| [252] | "(3) |
| [253] | "SECTION 7. [ Time of Taking Effect.] This Act shall take effect -- --
-- -- -- -- ." |
| [254] | *fn41 "This Act is based largely
upon the New York abortion act following a review of the more recent laws
on abortion in several states and upon recognition of a more liberal trend
in laws on this subject. Recognition was given also to the several decisions
in state and federal courts which show a further trend toward liberalization
of abortion laws, especially during the first trimester of pregnancy. |
| [255] | "Recognizing that a number of problems appeared in New York, a shorter
time period for 'unlimited' abortions was advisable. The time period was
bracketed to permit the various states to insert a figure more in keeping
with the different conditions that might exist among the states. Likewise,
the language limiting the place or places in which abortions may be performed
was also bracketed to account for different conditions among the states.
In addition, limitations on abortions after the initial 'unlimited' period
were placed in brackets so that individual states may adopt all or any of
these reasons, or place further restrictions upon abortions after the initial
period. |
| [256] | "This Act does not contain any provision relating to medical review committees
or prohibitions against sanctions imposed upon medical personnel refusing
to participate in abortions because of religious or other similar reasons,
or the like. Such provisions, while related, do not directly pertain to
when, where, or by whom abortions may be performed; however, the Act is
not drafted to exclude such a provision by a state wishing to enact the
same." |
| [257] | *fn42 See, for example, YWCA
v. Kugler, 342 F.Supp. 1048, 1074 (N. J. 1972); Abele v. Markle, 342 F.Supp.
800, 805-806 (Conn. 1972) (Newman, J., Concurring in result), appeal docketed,
No. 72-56; Walsingham v. State, 250 So. 2d 857, 863 (Ervin, J., Concurring)
(Fla. 1971); State v. Gedicke, 43 N. J. L. 86, 90 (1881); Means II 381-382. |
| [258] | *fn43 See C. Haagensen & W.
Lloyd, A Hundred Years of Medicine 19 (1943). |
| [259] | *fn44 Potts, Postconceptive
Control of Fertility, 8 Int'l J. of G. & O. 957, 967 (1970) (England and
Wales); Abortion Mortality, 20 Morbidity and Mortality 208, 209 (June 12,
1971) (U.S. Dept. of HEW, Public Health Service) (New York City); Tietze,
United States: Therapeutic Abortions, 1963-1968, 59 Studies in Family Planning
5, 7 (1970); Tietze, Mortality with Contraception and Induced Abortion,
45 Studies in Family Planning 6 (1969) (Japan, Czechoslovakia, Hungary);
Tietze & Lehfeldt, Legal Abortion in Eastern Europe, 175 J. A. M. A. 1149,
1152 (April 1961). Other sources are discussed in Lader 17-23. |
| [260] | *fn45 See Brief of Amicus National
Right to Life Committee; R. Drinan, The Inviolability of the Right to Be
Born, in Abortion and the Law 107 (D. Smith ed. 1967); Louisell, Abortion,
The Practice of Medicine and the Due Process of Law, 16 U. C. L. A. L. Rev.
233 (1969); Noonan 1. |
| [261] | *fn46 See, e. g., Abele v.
Markle, 342 F.Supp. 800 (Conn. 1972), appeal docketed, No. 72-56. |
| [262] | *fn47 See Discussions in Means
I and Means II. |
| [263] | *fn48 See, e. g., State v.
Murphy, 27 N. J. L. 112, 114 (1858). |
| [264] | *fn49 Watson v. State, 9 Tex.
App. 237, 244-245 (1880); Moore v. State, 37 Tex. Cr. R. 552, 561, 40 S.
W. 287, 290 (1897); Shaw v. State, 73 Tex. Cr. R. 337, 339, 165 S. W. 930,
931 (1914); Fondren v. State, 74 Tex. Cr. R. 552, 557, 169 S. W. 411, 414
(1914); Gray v. State, 77 Tex. Cr. R. 221, 229, 178 S. W. 337, 341 (1915).
There is no immunity in Texas for the father who is not married to the mother.
Hammett v. State, 84 Tex. Cr. R. 635, 209 S. W. 661 (1919); Thompson v.
State (Ct. Crim. App. Tex. 1971), appeal docketed, No. 71-1200. |
| [265] | *fn50 See Smith v. State, 33
Me., at 55; In re Vince, 2 N. J. 443, 450, 67 A. 2d 141, 144 (1949). A short
Discussion of the modern law on this issue is contained in the Comment to
the ALI's Model Penal Code § 207.11, at 158 and nn. 35-37 (Tent. Draft
No. 9, 1959). |
| [266] | *fn51 Tr. of Oral Rearg. 20-21. |
| [267] | *fn52 Tr. of Oral Rearg. 24. |
| [268] | *fn53 We are not aware that
in the taking of any census under this clause, a fetus has ever been counted. |
| [269] | *fn54 When Texas urges that
a fetus is entitled to Fourteenth Amendment protection as a person, it faces
a dilemma. Neither in Texas nor in any other State are all abortions prohibited.
Despite broad proscription, an exception always exists. The exception contained
in Art. 1196, for an abortion procured or attempted by medical advice for
the purpose of saving the life of the mother, is typical. But if the fetus
is a person who is not to be deprived of life without due process of law,
and if the mother's condition is the sole determinant, does not the Texas
exception appear to be out of line with the Amendment's command? |
| [270] | There are other inconsistencies between Fourteenth Amendment status and
the typical abortion statute. It has already been pointed out, n. 49, (supra)
, that in Texas the woman is not a principal or an accomplice with respect
to an abortion upon her. If the fetus is a person, why is the woman not
a principal or an accomplice? Further, the penalty for criminal abortion
specified by Art. 1195 is significantly less than the maximum penalty for
murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is
a person, may the penalties be different? |
| [271] | *fn55 Cf. the Wisconsin abortion
statute, defining "unborn child" to mean "a human being from the time of
conception until it is born alive," Wis. Stat. § 940.04 (6) (1969),
and the new Connecticut statute, Pub. Act No. 1 (May 1972 special session),
declaring it to be the public policy of the State and the legislative intent
"to protect and preserve human life from the moment of conception." |
| [272] | *fn56 Edelstein 16. |
| [273] | *fn57 Lader 97-99; D. Feldman,
Birth Control in Jewish Law 251-294 (1968). For a stricter view, see I.
Jakobovits, Jewish Views on Abortion, in Abortion and the Law 124 (D. Smith
ed. 1967). |
| [274] | *fn58 Amicus Brief for the
American Ethical Union et al. For the position of the National Council of
Churches and of other denominations, see Lader 99-101. |
| [275] | *fn59 L. Hellman & J. Pritchard,
Williams Obstetrics 493 (14th ed. 1971); Dorland's Illustrated Medical Dictionary
1689 (24th ed. 1965). |
| [276] | *fn60 Hellman & Pritchard,
(supra) , n. 59, at 493. |
| [277] | *fn61 For Discussions of the
development of the Roman Catholic position, see D. Callahan, Abortion: Law,
Choice, and Morality 409-447 (1970); Noonan 1. |
| [278] | *fn62 See Brodie, The New Biology
and the Prenatal Child, 9 J. Family L. 391, 397 (1970); Gorney, The New
Biology and the Future of Man, 15 U. C. L. A. L. Rev. 273 (1968); Note,
-- Abortion -- The "Morning-After Pill" and Other Pre-Implantation Birth-Control
Methods and the Law, 46 Ore. L. Rev. 211 (1967); G. Taylor, The Biological
Time Bomb 32 (1968); A. Rosenfeld, The Second Genesis 138-139 (1969); Smith,
Through a Test Tube Darkly: Artificial Insemination and the Law, 67 Mich.
L. Rev. 127 (1968); Note, Artificial Insemination and the Law, 1968 U. Ill.
L. F. 203. |
| [279] | *fn63 W. Prosser, The Law of
Torts 335-338 (4th ed. 1971); 2 F. Harper & F. James, The Law of Torts 1028-1031
(1956); Note, 63 Harv. L. Rev. 173 (1949). |
| [280] | *fn64 See cases cited in Prosser,
(supra) , n. 63, at 336-338; Annotation, Action for Death of Unborn Child,
15 A. L. R. 3d 992 (1967). |
| [281] | *fn65 Prosser, (supra) , n.
63, at 338; Note, The Law and the Unborn Child: The Legal and Logical Inconsistencies,
46 Notre Dame Law. 349, 354-360 (1971). |
| [282] | *fn66 Louisell, Abortion, The
Practice of Medicine and the Due Process of Law, 16 U. C. L. A. L. Rev.
233, 235-238 (1969); Note, 56 Iowa L. Rev. 994, 999-1000 (1971); Note, The
Law and the Unborn Child, 46 Notre Dame Law. 349, 351-354 (1971). |
| [283] | *fn67 Neither in this opinion
nor in Doe v. Bolton, post, p. 179, do we discuss the father's rights, if
any exist in the constitutional context, in the abortion decision. No paternal
right has been asserted in either of the cases, and the Texas and the Georgia
statutes on their face take no cognizance of the father. We are aware that
some statutes recognize the father under certain circumstances. North Carolina,
for example, N. C. Gen. Stat. § 14-45.1 (Supp. 1971), requires written
permission for the abortion from the husband when the woman is a married
minor, that is, when she is less than 18 years of age, 41 N. C. A. G. 489
(1971); if the woman is an unmarried minor, written permission from the
parents is required. We need not now decide whether provisions of this kind
are constitutional. |
| [284] | CONCURRING FOOTNOTES |
| [285] | 1 Only Mr. Justice Harlan failed to join the Court's opinion, 372 U.S.,
at 733. |
| [286] | 2 There is no constitutional right of privacy, as such. "[The Fourth]
Amendment protects individual privacy against certain kinds of governmental
intrusion, but its protections go further, and often have nothing to do
with privacy at all. Other provisions of the Constitution protect personal
privacy from other forms of governmental invasion. But the protection of
a person's general right to privacy -- his right to be let alone by other
people -- is, like the protection of his property and of his very life,
left largely to the law of the individual States." Katz v. United States,
389 U.S. 347, 350-351 (footnotes omitted). |
| [287] | 3 This was also clear to Mr. Justice Black, 381 U.S., at 507 (dissenting
opinion); to Mr. Justice Harlan, 381 U.S., at 499 (opinion Concurring in
the judgment); and to MR. JUSTICE WHITE, 381 U.S., at 502 (opinion Concurring
in the judgment). See also Mr. Justice Harlan's thorough and thoughtful
opinion Dissenting from dismissal of the appeal in Poe v. Ullman, 367 U.S.
497, 522. |
| [288] | 1 Jurisdictions having enacted abortion laws prior to the adoption of
the Fourteenth Amendment in 1868: |
| [289] | 1. Alabama -- Ala. Acts, c. 6, § 2 (1840). |
| [290] | 2. Arizona -- Howell Code, c. 10, § 45 (1865). |
| [291] | 3. Arkansas -- Ark. Rev. Stat., c. 44, div. III, Art. II, § 6 (1838). |
| [292] | 4. California -- Cal. Sess. Laws, c. 99, § 45, p. 233 (1849-1850). |
| [293] | 5. Colorado (Terr.) -- Colo. Gen. Laws of Terr. of Colo., 1st Sess., §
42, pp. 296-297 (1861). |
| [294] | 6. Connecticut -- Conn. Stat., Tit. 20, §§ 14, 16 (1821). By
1868, this statute had been replaced by another abortion law. Conn. Pub.
Acts, c. 71, §§ 1, 2, p. 65 (1860). |
| [295] | 7. Florida -- Fla. Acts 1st Sess., c. 1637, subc. 3, §§ 10,
11, subc. 8, §§ 9, 10, 11 (1868), as amended, now Fla. Stat. Ann.
§§ 782.09, 782.10, 797.01, 797.02, 782.16 (1965). |
| [296] | 8. Georgia -- Ga. Pen. Code, 4th Div., § 20 (1833). |
| [297] | 9. Kingdom of Hawaii -- Hawaii Pen. Code, c. 12, §§ 1, 2, 3
(1850). |
| [298] | 10. Idaho (Terr.) -- Idaho (Terr.) Laws, Crimes and Punishments §§
33, 34, 42, pp. 441, 443 (1863). |
| [299] | 11. Illinois -- Ill. Rev. Criminal Code §§ 40, 41, 46, pp. 130,
131 (1827). By 1868, this statute had been replaced by a subsequent enactment.
Ill. Pub. Laws §§ 1, 2, 3, p. 89 (1867). |
| [300] | 12. Indiana -- Ind. Rev. Stat. §§ 1, 3, p. 224 (1838). By 1868
this statute had been superseded by a subsequent enactment. Ind. Laws, c.
LXXXI, § 2 (1859). |
| [301] | 13. Iowa (Terr.) -- Iowa (Terr.) Stat., 1st Legis., 1st Sess., §
18, p. 145 (1838). By 1868, this statute had been superseded by a subsequent
enactment. Iowa (Terr.) Rev. Stat., c. 49, §§ 10, 13 (1843). |
| [302] | 14. Kansas (Terr.) -- Kan. (Terr.) Stat., c. 48, §§ 9, 10, 39
(1855). By 1868, this statute had been superseded by a subsequent enactment.
Kan. (Terr.) Laws, c. 28, §§ 9, 10, 37 (1859). |
| [303] | 15. Louisiana -- La. Rev. Stat., Crimes and Offenses § 24, p. 138
(1856). |
| [304] | 16. Maine -- Me. Rev. Stat., c. 160, §§ 11, 12, 13, 14 (1840). |
| [305] | 17. Maryland -- Md. Laws, c. 179, § 2, p. 315 (1868). |
| [306] | 18. Massachusetts -- Mass. Acts & Resolves, c. 27 (1845). |
| [307] | 19. Michigan -- Mich. Rev. Stat., c. 153, §§ 32, 33, 34, p.
662 (1846). |
| [308] | 20. Minnesota (Terr.) -- Minn. (Terr.) Rev. Stat., c. 100, §§
10, 11, p. 493 (1851). |
| [309] | 21. Mississippi -- Miss. Code, c. 64, §§ 8, 9, p. 958 (1848). |
| [310] | 22. Missouri -- Mo. Rev. Stat., Art. II, §§ 9, 10, 36, pp. 168,
172 (1835). |
| [311] | 23. Montana (Terr.) -- Mont. (Terr.) Laws, Criminal Practice Acts §
41, p. 184 (1864). |
| [312] | 24. Nevada (Terr.) -- Nev. (Terr.) Laws, c. 28, § 42, p. 63 (1861). |
| [313] | 25. New Hampshire -- N. H. Laws, c. 743, § 1, p. 708 (1848). |
| [314] | 26. New Jersey -- N. J. Laws, p. 266 (1849). |
| [315] | 27. New York -- N. Y. Rev. Stat., pt. 4, c. 1, Tit. 2, §§ 8,
9, pp. 12-13 (1828). By 1868, this statute had been superseded. N. Y. Laws,
c. 260, §§ 1-6, pp. 285-286 (1845); N. Y. Laws, c. 22, §
1, p. 19 (1846). |
| [316] | 28. Ohio -- Ohio Gen. Stat. §§ 111 (1), 112 (2), p. 252 (1841). |
| [317] | 29. Oregon -- Ore. Gen. Laws, Crim. Code, c. 43, § 509, p. 528 (1845-1864). |
| [318] | 30. Pennsylvania -- Pa. Laws No. 374, §§ 87, 88, 89 (1860). |
| [319] | 31. Texas -- Tex. Gen. Stat. Dig., c. VII, Arts. 531-536, p. 524 (Oldham
& White 1859). |
| [320] | 32. Vermont -- Vt. Acts No. 33, § 1 (1846). By 1868, this statute
had been amended. Vt. Acts No. 57, §§ 1, 3 (1867). |
| [321] | 33. Virginia -- Va. Acts, Tit. II, c. 3, § 9, p. 96 (1848). |
| [322] | 34. Washington (Terr.) -- Wash. (Terr.) Stats., c. II, §§ 37,
38, p. 81 (1854). |
| [323] | 35. West Virginia -- See Va. Acts., Tit. II, c. 3, § 9, p. 96 (1848);
W. Va. Const., Art. XI, par. 8 (1863). |
| [324] | 36. Wisconsin -- Wis. Rev. Stat., c. 133, §§ 10, 11 (1849).
By 1868, this statute had been superseded. Wis. Rev. Stat., c. 164, §§
10, 11; c. 169, §§ 58, 59 (1858). |
| [325] | 2 Abortion laws in effect in 1868 and still applicable as of August 1970: |
| [326] | 1. Arizona (1865). |
| [327] | 2. Connecticut (1860). |
| [328] | 3. Florida (1868). |
| [329] | 4. Idaho (1863). |
| [330] | 5. Indiana (1838). |
| [331] | 6. Iowa (1843). |
| [332] | 7. Maine (1840). |
| [333] | 8. Massachusetts (1845). |
| [334] | 9. Michigan (1846). |
| [335] | 10. Minnesota (1851). |
| [336] | 11. Missouri (1835). |
| [337] | 12. Montana (1864). |
| [338] | 13. Nevada (1861). |
| [339] | 14. New Hampshire (1848). |
| [340] | 15. New Jersey (1849). |
| [341] | 16. Ohio (1841). |
| [342] | 17. Pennsylvania (1860). |
| [343] | 18. Texas (1859). |
| [344] | 19. Vermont (1867). |
| [345] | 20. West Virginia (1863). |
| [346] | 21. Wisconsin (1858). |
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