ROE
ET AL. v. WADE, DISTRICT ATTORNEY OF
No.
70-18
SUPREME
COURT OF THE UNITED STATES
410
December
13, 1971, Argued
January
22, 1973, Decided
SUBSEQUENT HISTORY: Reargued October 11, 1972.
Rehearing denied by Roe v. Wade, 410
Related proceeding at McCorvey v. Hill, 2003 U.S. Dist.
LEXIS 12986 (N.D. Tex., June 19, 2003)
PRIOR HISTORY: APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS.
Roe v. Wade, 314 F.
Supp. 1217, 1970
DISPOSITION: 314 F.Supp. 1217, affirmed in part and
reversed in part.
SUMMARY:
An unmarried pregnant
woman who wished to terminate her pregnancy by abortion instituted an action in
the United States District Court for the Northern District of Texas, seeking a
declaratory judgment that the Texas criminal abortion statutes, which
prohibited abortions except with respect to those procured or attempted by
medical advice for the purpose of saving the life of the mother, were
unconstitutional. She also sought an injunction against their continued
enforcement. A physician, who alleged that he had been previously arrested for
violations of the
On appeal, the United
States Supreme Court reversed the District Court's judgment as to the
physician-intervenor, dismissing his complaint in intervention, but affirmed
the District Court's judgment in all other respects. In an opinion by Blackmun,
J., expressing the views of seven members of the court, it was held that (1)
the pregnant, unmarried woman had standing to sue, (2) the complaint of the
childless, married couple presented no actual justiciable case or controversy,
and had been properly dismissed, (3) states have legitimate interests in seeing
to it that abortions are performed under circumstances that insure maximum
safety for the patient, (4) the right to privacy encompasses a woman's decision
whether or not to terminate her pregnancy, (5) a woman's right to terminate her
pregnancy is not absolute, and may to some extent be limited by the state's
legitimate interests in safeguarding the woman's health, in maintaining proper
medical standards, and in protecting potential human life, (6) the unborn are
not included within the definition of "person" as used in the
Fourteenth Amendment, (7) prior to the end of the first trimester of pregnancy,
the state may not interfere with or regulate an attending physician's decision,
reached in consultation with his patient, that the patient's pregnancy should
be terminated, (8) from and after the end of the first trimester, and until the
point in time when the fetus becomes viable, the state may regulate the
abortion procedure only to the extent that such regulation relates to the
preservation and protection of maternal health, (9) from and after the point in
time when the fetus becomes viable, the state may prohibit abortions
altogether, except those necessary to preserve the life or health of the
mother, and (10) the state may proscribe the performance of all abortions except
those performed by physicians currently licensed by the state; and expressing
the view of six members of the court, it was held that the physician's
complaint should be dismissed and he should be remitted to his remedies in the
pending state court proceedings.
Burger, Ch. J.,
concurring, agreed that under the Fourteenth Amendment, the Texas criminal
abortion statutes impermissibly limited the performance of abortions necessary
to protect the health of pregnant women, but added that he would allow a state
to require the certification of two physicians to support an abortion, saying
that such a procedure would not be unduly burdensome.
Douglas, J.,
concurring in the court's opinion except as to the dismissal of the physician's
complaint, agreed that endangering the life of a woman or seriously and
permanently injuring her health are standards too narrow for the right of
privacy that is at stake.
Stewart, J.,
concurring, agreed that the
White, J., joined by
Rehnquist, J., dissented, saying that nothing in the language or history of the
Constitution supported the court's judgment, and that the court had simply
fashioned and announced a new constitutional right for pregnant mothers and,
with scarcely any reason or authority for its action, had invested that right
with sufficient substance to override most existing state abortion statutes,
whereas the issue of abortion should actually have been left with the people
and the political processes they have devised to govern their affairs.
Rehnquist, J.,
dissented, saying that (1) the record, which did not indicate that the
appellant was in her first trimester of pregnancy at some time during the
pendency of her lawsuit, did not establish the appellant's standing to litigate
the issues involved, (2) even if it did, the court, eschewing the Fourteenth
Amendment's history, had mistakenly relied on the "compelling state
interest" test, (3) the decision to break the term of pregnancy into three
distinct terms partook of judicial legislation, (4) the fact that a majority of
the states have had abortion statutes for at least a century indicated that a
right to an abortion was not so rooted in the traditions and consciences of the
people as to be ranked "fundamental," and (5) the statute should have
been declared unconstitutional, if at all, only as applied to the appellant's
particular fact situation rather than in toto.
LAWYERS' EDITION HEADNOTES:
[***LEdHN1]
APPEAL AND ERROR §327
RULES OF COURT §3
petition for
certiorari -- granting declaratory but not injunctive relief -- review --
Headnote:[1]
It is preferable if a
defendant, pursuant to Rule 20, United States Supreme Court Rules--which
provides that a writ of certiorari to review a case pending in a United States
Court of Appeals, before judgment is given in such court, will be granted only
upon a showing that the case is of such imperative public importance as to
justify deviating from normal appellate procedure--presents to the Supreme
Court a petition for certiorari before judgment in the Court of Appeals with
respect to the granting of a plaintiff's prayer for declaratory relief, since
28 USCS 1253, which authorizes direct appeals from decisions of three-judge
District Courts, does not authorize an appeal to the Supreme Court from a grant
or denial of declaratory relief alone; nevertheless, review by the Supreme
Court of both the injunctive and the declaratory aspects of such a case is not
foreclosed where the case is properly before the Supreme Court on appeal under
28 USCS 1253 from a specific denial of injunctive relief by the three-judge
District Court, and where the arguments as to both the declaratory and
injunctive aspects of the case are necessarily identical.
[***LEdHN2]
DECLARATORY JUDGMENTS §8
state criminal
abortion laws -- pregnant woman -- challenge --
Headnote:[2A][2B]
A justiciable case or
controversy is presented by an action for a declaratory judgment, challenging
the constitutionality of a state's criminal abortion laws, which action is
brought by a pregnant single woman whose desire to have an abortion has been
thwarted by such laws.
[***LEdHN3]
STATUTES §26
state criminal
abortion statute -- pregnant woman -- standing to challenge --
Headnote:[3A][3B]
A pregnant single
woman, thwarted by her state's criminal abortion laws from obtaining an
abortion which she desired, has standing to challenge those laws, since the
logical nexus between her asserted status and the claim she seeks to have
adjudicated, and the necessary degree of contentiousness, are both present to
insure that the dispute will be presented in an adversary context and in a form
historically viewed as capable of judicial resolution.
[***LEdHN4]
APPEAL AND ERROR §1656
COURTS §762
mootness -- appellate
or certiorari review --
Headnote:[4A][4B]
With regard to the
question of a case's mootness, 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.
[***LEdHN5]
APPEAL AND ERROR §1662
COURTS §763
litigation --
pregnancy as significant fact -- nonmootness --
Headnote:[5A][5B]
With regard to the
question of a case's mootness, where 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; and
therefore pregnancy, coming as it often does more than once to the same woman
and being always with us if man is to survive, provides a classic justification
for nonmootness, because otherwise, if termination of a pregnancy would make a
case moot, pregnancy litigation would seldom survive much beyond the trial
stage, and appellate review would be effectively denied.
[***LEdHN6]
COURTS §680
pending state
criminal proceedings -- raising federal question --
Headnote:[6]
Absent harassment and
bad faith, a defendant in a pending state criminal case cannot affirmatively
challenge in a federal court the state statutes under which the state is
prosecuting him.
[***LEdHN7]
STATUTES §26
physician -- state
criminal abortion statute -- standing to challenge --
Headnote:[7]
A physician who, as a
plaintiff-intervenor in a suit brought in a federal court by a pregnant single
woman challenging a state's criminal abortion laws, alleges that he has been
arrested for violating such laws and that he stands charged by indictment with
violating such laws, has no standing to seek, in a federal court, declaratory
and injunctive relief with respect to the state statutes under which he stands
charged in criminal prosecutions simultaneously pending in a state court; and
any attempt on the physician's part to distinguish his status as a present
state defendant from his status as a "potential future defendant" so
as to assert only the latter status for purposes of determining his standing to
sue in a federal court has no merit.
[***LEdHN8]
APPEAL AND ERROR §1682
challenge to abortion
laws -- intervention by physician -- remitting to state court --
Headnote:[8]
The complaint in
intervention of a physician who, as a plaintiff- intervenor in a suit brought
in a Federal District Court by a pregnant single woman challenging a state's
criminal abortion laws, alleges, on appeal to the United States Supreme Court,
that he has been arrested for violating such laws and that he stands charged by
indictment with violating such laws, is to be dismissed, and the physician is
to be remitted to his defenses in the state criminal proceedings against him
where he makes no allegation of any substantial and immediate threat to any
federally protected right that cannot be asserted in the state courts in his
defense against the state prosecutions.
[***LEdHN9]
COURTS §236.5
childless married
couple -- state abortion laws -- standing to challenge --
Headnote:[9]
In a suit challenging
a state's criminal abortion laws, the bare allegation by a childless married
couple, the woman not being pregnant, that they presently have no desire to
have children because of their having received medical advice that the woman
should avoid pregnancy and because of other personal reasons, but that they
fear the prospect of becoming parents, and if pregnancy ensues, they would wish
to terminate it by abortion, is too speculative in character and too indirect
in injury to be sufficient to present an actual case or controversy justiciable
in the federal courts.
[***LEdHN10]
APPEAL AND ERROR §1682
STATUTES §26
childless married
couple -- state's criminal abortion laws -- dismissal of complaint --
Headnote:[10]
A childless married
couple, the woman not being pregnant, who presently have no desire to have
children because of their having received medical advice that the woman should
avoid pregnancy and because of other personal reasons, who fear the prospect of
becoming parents, and who would wish to terminate by abortion any pregnancy
which might ensue, but who assert on appeal an inability to obtain an abortion
legally in the state in which they reside because of their state's criminal
abortion laws, are not appropriate plaintiffs in litigation brought by a
pregnant single woman to test the validity of the same state's abortion laws,
and their complaint should be dismissed.
[***LEdHN11]
ABORTION §1
protection of
pregnant women -- state's interest --
Headnote:[11]
In view of modern
medical techniques which have rendered abortions in early pregnancies
relatively safe, and which have lowered mortality rates for women undergoing
early abortions, where the procedure is legal, to rates as low as, or lower
than, the mortality rates for normal childbirth, states, which formerly were
justified in enacting criminal abortion laws to protect pregnant women and to
restrain them from submitting to procedures which placed their lives in serious
jeopardy, no longer have an interest in protecting women from what were
formerly inherently hazardous procedures, except in those instances when it
would be equally dangerous for women to forgo them.
[***LEdHN12]
ABORTION §1
state's legitimate
interest -- patient's safety --
Headnote:[12]
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.
[***LEdHN13]
ABORTION §1
regulation of
physicians and facilities -- state's interest --
Headnote:[13]
The state's
legitimate interest in seeing to it that abortions are performed under
circumstances that insure maximum safety for patients extends 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.
[***LEdHN14]
ABORTION §1
risk -- state's
interest --
Headnote:[14]
Because the risk to a
woman undergoing an abortion increases as her pregnancy continues, 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.
[***LEdHN15]
CONSTITUTIONAL LAW §101
right of privacy --
origins --
Headnote:[15]
Although the
Constitution does not explicitly mention any right of privacy, the United
States Supreme Court recognizes that a right of personal privacy, or a
guarantee of certain areas or zones of privacy, does exist under the Constitution,
and that the roots of that right may be found in the First Amendment, in the
Fourth and Fifth Amendments, in the penumbras of the Bill of Rights, in the
Ninth Amendment, and in the concept of liberty guaranteed by the first section
of the Fourteenth Amendment.
[***LEdHN16]
CONSTITUTIONAL LAW §525
right to privacy --
personal and fundamental rights --
Headnote:[16]
Only personal rights
that can be deemed "fundamental" or "implicit in the concept of
ordered liberty" are included in the guarantee of a right of personal
privacy.
[***LEdHN17]
CONSTITUTIONAL LAW §525
right to privacy --
activities protected --
Headnote:[17]
The right to privacy
to some extent extends to activities relating to marriage, procreation,
contraception, family relationships, and child rearing and education.
[***LEdHN18]
CONSTITUTIONAL LAW §525
right to privacy --
termination of pregnancy --
Headnote:[18]
The right to privacy,
founded upon the Fourteenth Amendment's concept of personal liberty and
restrictions upon state action, is broad enough to encompass a woman's decision
whether or not to terminate her pregnancy.
[***LEdHN19]
CONSTITUTIONAL LAW §526
right to terminate
pregnancy -- not absolute --
Headnote:[19]
A woman's right to
terminate her pregnancy is not absolute, and she is not entitled to terminate
her pregnancy at whatever time, in whatever way, and for whatever reason she
alone chooses.
[***LEdHN20]
CONSTITUTIONAL LAW §526
termination of
pregnancy -- regulation -- state's interest --
Headnote:[20]
A state has a valid,
though limited, interest in regulating a woman's decision to have an abortion,
and it has an interest, limited but sufficiently strong enough, to support some
limitation upon a woman's sole determination to terminate her pregnancy.
[***LEdHN21]
CONSTITUTIONAL LAW §101
right to privacy --
state regulation --
Headnote:[21]
Some state regulation
in areas protected by the right to privacy is appropriate.
[***LEdHN22]
ABORTION §1
safeguarding health
and potential life -- abortion -- state regulation --
Headnote:[22A][22B]
A state may properly
assert important interests in safeguarding health, in maintaining medical
standards, and in protecting potential life; and at some point in pregnancy,
these respective interests become sufficiently compelling to sustain regulation
of the factors that govern a woman's decision to have an abortion.
[***LEdHN23]
CONSTITUTIONAL LAW §101
right to privacy --
nature --
Headnote:[23]
The right to privacy
is not absolute.
[***LEdHN24]
CONSTITUTIONAL LAW §101
one's own body --
limitations on use --
Headnote:[24]
The United States
Supreme Court does not recognize the existence of an unlimited right to do with
one's body as one pleases.
[***LEdHN25]
CONSTITUTIONAL LAW §101
fundamental rights --
limitations -- compelling state interest --
Headnote:[25]
Where
"fundamental rights" are involved, any regulation limiting these
rights may be justified only by a "compelling state interest," and
legislative enactments regulating such rights must be narrowly drawn so as to
express only the legitimate state interests at stake.
[***LEdHN26]
CONSTITUTIONAL LAW §521
person as including
unborn --
Headnote:[26]
As used in the
Fourteenth Amendment to the United States Constitution, the word
"person" does not include the unborn.
[***LEdHN27]
ABORTION §1
right to privacy --
health of mother -- state regulation --
Headnote:[27]
Because a pregnant
woman cannot be isolated in her privacy, carrying, as she does, an embryo and
later a fetus, it is reasonable and appropriate for a state to decide that, at
some point in time, another interest, such as the health of the mother or the
interest in potential human life, becomes significantly involved, that the
woman's right to privacy is no longer sole, and that any right to privacy which
she possesses must be accordingly measured against such other interests.
[***LEdHN28]
ABORTION §1
theory of life --
state statute --
Headnote:[28]
A state, by adopting
one particular theory of life, may not override the rights of pregnant women to
terminate their pregnancies.
[***LEdHN29]
ABORTION §1
safeguarding health
-- pregnant women -- state's interest --
Headnote:[29]
With respect to a
state's important and legitimate interest in safeguarding the health of a
pregnant woman, the point at which its interest becomes compelling, in the
light of present medical knowledge, is at approximately the end of the first
trimester of pregnancy.
[***LEdHN30]
ABORTION §1
state regulation --
Headnote:[30A][30B]
From and after the
end of the first trimester of pregnancy, a state may regulate the abortion
procedure to the extent that the regulation reasonably relates to the
preservation and protection of maternal health.
[***LEdHN31]
ABORTION §1
first trimester of
pregnancy -- physician's judgment --
Headnote:[31A][31B]
Prior to the end of
the first trimester of pregnancy, an 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; and if such a
decision is reached, the physician's judgment may be effectuated by an abortion
free of interference by the state.
[***LEdHN32]
ABORTION §1
potential human life
-- protection -- state's interest --
Headnote:[32A][32B]
With respect to a
state's important and legitimate interest in potential human life, the point at
which its interest becomes compelling is at viability, because the fetus is
then presumably capable of meaningful life outside the mother's womb.
[***LEdHN33]
ABORTION §1
protection of fetal
life -- state regulation --
Headnote:[33A][33B]
State regulation
protective of fetal life after viability has both logical and biological
justifications; and if a state is interested in protecting fetal life after
viability, it may proscribe abortion during that period except when it is
necessary to preserve the life or health of the mother.
[***LEdHN34]
ABORTION §1
restrictions --
failure to distinguish degrees --
Headnote:[34]
A state statute which
restricts legal abortions to those "procured or attempted by medical
advice for the purpose of saving the life of the mother" sweeps too
broadly to withstand constitutional attack, because it makes no distinction between
abortions performed early in pregnancy and those performed later, and because
it limits the legal justification for the procedure to a single reason, namely,
"saving" the mother's life.
[***LEdHN35]
ABORTION §1
state statute --
violation of due process clause --
Headnote:[35]
A state criminal
abortion statute that excepts from criminality only a life saving procedure on
behalf of the mother, without regard to pregnancy stage and without recognition
of the other interests involved, violates the due process clause of the
Fourteenth Amendment.
[***LEdHN36]
ABORTION §1
statute defining
"physician" -- abortion statutes --
Headnote:[36]
In state statutes
regulating abortion, a 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.
SYLLABUS
A pregnant single
woman (Roe) brought a class action challenging the constitutionality of the
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.
2. Roe has standing
to sue; the Does and Hallford do not.
Pp. 123-129.
(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.
(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
(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.
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.
(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.
(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.
(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.
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.
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.
COUNSEL: Sarah Weddington reargued the cause for
appellants. With her on the briefs were
Roy Lucas, Fred Bruner, Roy L. Merrill, Jr., and Norman Dorsen.
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. *
*
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.
JUDGES: 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.
OPINION BY: BLACKMUN
OPINION
[*116]
[***156] [**708] MR. JUSTICE BLACKMUN delivered the opinion of
the Court.
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.
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.
In addition,
population growth, pollution, poverty, and racial overtones tend [**709]
to complicate and not to simplify the problem.
Our task, of course,
is to resolve the issue by constitutional measurement, [***157]
free of emotion and of predilection.
We seek earnestly to do this, and, because we do, we [*117]
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):
"[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."
I
The Texas statutes
that concern us here are Arts. 1191-1194
and 1196 of the State's Penal Code. 1
These make it a crime to "procure an abortion," as therein [*118]
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. 2
1
"Article 1191. Abortion
"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.
"Art. 1192. Furnishing the means
"Whoever furnishes the means for
procuring an abortion knowing the purpose intended is guilty as an accomplice.
"Art. 1193. Attempt at abortion
"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.
"Art. 1194. Murder in producing abortion
"If the death of the mother is
occasioned by an abortion so produced or by an attempt to effect the same it is
murder."
"Art. 1196. By medical advice
"Nothing in this chapter applies to
an abortion procured or attempted by medical advice for the purpose of saving
the life of the mother."
The foregoing Articles, together with
Art. 1195, compose Chapter 9 of Title 15 of the Penal Code. Article 1195, not attacked here, reads:
"Art. 1195. Destroying unborn child
"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."
2
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).
[*119]
Texas [***158] [**710]
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." 3
3
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,
"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).
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.
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).
[*120]
II
Jane Roe, 4 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.
4
The name is a pseudonym.
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.
[***159]
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
[*121] 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 [**711]
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.
John and Mary Doe, 5 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."
5
These names are pseudonyms.
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, [*122] 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).
The plaintiffs Roe
and Doe and the intervenor Hallford, pursuant to [***160]
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). [*123] III
[***LEdHR1] [1]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 [**712] (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.
IV
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?
[*124]
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.
[***LEdHR2A] [2A] [***LEdHR3A] [3A]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 [***161] (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.
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, 6 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.
6
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.
[*125] [***LEdHR4A]
[4A]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 [**713]
(1950); Golden v. Zwickler, supra; SEC v. Medical
Committee for Human Rights, 404 U.S. 403 (1972).
[***LEdHR5A] [5A]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).
[***LEdHR2B] [2B] [***LEdHR3B] [3B] [***LEdHR4B] [4B]
[***LEdHR5B] [5B]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.
B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation as a
plaintiff-intervenor, alleging in his complaint that he:
"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
[***162] State of Texas vs. [*126]
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 . . . ."
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.
[***LEdHR6]
[6] [***LEdHR7] [7]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.
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. [*127] Harris, 401 U.S. 37 (1971); Boyle v. Landry, 401 U.S.
77 [**714] (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.
[***LEdHR8]
[8]Dr. Hallford's complaint in intervention, therefore, is to be dismissed.
7 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 [***163] and failed to dismiss his complaint in
intervention.
7
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 . . . [and] 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.
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.
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 [*128] 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.
We thus have as
plaintiffs a married couple who have, as their asserted immediate and present
injury, only an alleged "detrimental effect upon [their] 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.
[***LEdHR9]
[9]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
[**715] (1970); [*129]
and Epperson v. Arkansas,
393 U.S. 97 (1968). See also Truax
v. Raich, 239 U.S. 33 (1915).
[***LEdHR10] [10]The Does therefore are not appropriate
plaintiffs in this litigation. Their
complaint was properly dismissed by the District Court, and we affirm that
dismissal.
V
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
[***164] 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.
VI
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.
[*130]
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. 8 We are also told, however, that abortion
was practiced in Greek times as well as in the Roman Era, 9 and that "it was resorted to
without scruple." 10
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. 11 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. 12
8
A. Castiglioni, A History of
Medicine 84 (2d ed. 1947), E. Krumbhaar, translator and editor (hereinafter Castiglioni).
9
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
Criminal Law 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).
10
L. Edelstein, The Hippocratic Oath 10 (1943) (hereinafter
Edelstein). But see Castiglioni 227.
11
Edelstein 12; Ricci 113-114, 118-119; Noonan 5.
12
Edelstein 13-14.
2. The Hippocratic
Oath. What then of the famous Oath
that has stood so [**716] 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 [*131] 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 [***165]
sum of the medical knowledge of the past? 13 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," 14 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." 15
13
Castiglioni 148.
14
Id., at 154.
15
Edelstein 3.
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: 16 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,"
[*132] and "in no other
stratum of Greek opinion were such views held or proposed in the same spirit of
uncompromising austerity." 17
16
Id., at 12, 15-18.
17
Id., at 18; Lader 76.
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." 18 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." 19
18
Edelstein 63.
19
Id., at 64.
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.
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 20 -- was not an indictable offense. 21 The absence [*133]
[***166] of a [**717]
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. 22 This was "mediate animation."
Although [*134] 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.
20
Dorland's Illustrated Medical Dictionary 1261 (24th ed. 1965).
21
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.
22
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.
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).
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.
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).
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. 23 But
[***167] the later and
predominant [**718] view, following the great common-law
scholars, has been that it was, at most, a lesser offense. In a frequently cited [*135]
passage, Coke took the position that abortion of a woman "quick
with child" is "a great misprision, and no murder." 24 Blackstone followed, saying that while
abortion after quickening had once been considered manslaughter (though not
murder), "modern law" took a less severe view. 25 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. 26 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, 27 others followed Coke in stating that
abortion [*136] of a quick fetus was a
"misprision," a term they translated to mean "misdemeanor."
28 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.
23
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).
24
E. Coke, Institutes III *50.
25
1 W. Blackstone, Commentaries *129-130.
26
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."
27
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).
28
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).
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 [***168]
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 [**719]
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 [*137]
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."
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.
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 [*138] 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."
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 [***169]
woman "quick with child." 29 The death penalty was not imposed. Abortion before quickening was made a crime
in that State only in 1860. 30
In 1828, New York enacted legislation 31
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, 32 only eight American States [*139]
had [**720] statutes dealing with abortion. 33 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.
29
Conn. Stat., Tit. 20, § 14 (1821).
30
Conn. Pub. Acts, c. 71, § 1 (1860).
31
N. Y. Rev. Stat., pt. 4, c. 1, Tit. 2, Art. 1, § 9, p. 661, and Tit. 6,
§ 21, p. 694 (1829).
32
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).
33
The early statutes are discussed in Quay 435-438. See also Lader 85-88; Stern 85-88; and Means
II 375-376.
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. 34 The exceptions, Alabama and the District
of Columbia, permitted abortion to preserve the mother's health. 35 Three States permitted abortions that
were not "unlawfully" performed or that were not "without lawful
justification," leaving interpretation of those standards to the courts. 36 In
[*140] 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, 37 set forth as Appendix [***170]
B to the opinion in Doe v. Bolton, post, p. 205.
34
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.
35
Ala. Code, Tit. 14, § 9 (1958); D. C. Code Ann. § 22-201 (1967).
36
Mass. Gen. Laws Ann., c. 272, § 19 (1970); N. J. Stat. Ann. § 2A:87-1
(1969); Pa. Stat. Ann., Tit. 18, §§ 4718, 4719 (1963).
37
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).
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.
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, [**721] and very possibly without such a limitation,
the opportunity [*141] 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.
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.
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":
"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.
"The second of
the agents alluded to is the fact that the profession themselves are frequently
supposed careless of foetal life . . . .
"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, [*142] and to its life as yet denies all protection."
Id., at 75-76. [***171] 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.
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."
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 [*143] patient," two other physicians
"chosen because of their recognized professional competence have examined
the patient and have concurred in writing,
[**722] " 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).
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 [***172] 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. 38 Proceedings [*144]
of the AMA House of Delegates 220 (June 1970). The AMA Judicial Council rendered a
complementary opinion. 39
38
"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
"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
"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
"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).
39
"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.
"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."
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:
"a. Rapid and
simple abortion referral must be readily available through state and local
public [*145] health departments, medical societies, or
other nonprofit organizations.
"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.
" [**723] 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.
"d. A wide range
of individuals from appropriately trained, sympathetic volunteers to highly
skilled physicians may qualify as abortion counselors.
"e.
Contraception and/or sterilization should be discussed with each abortion
patient." Recommended Standards for Abortion Services, 61 Am. J. Pub. Health
396 (1971).
Among factors
pertinent to life and health risks associated with abortion were three that
"are recognized as important":
"a. the skill of
the physician,
"b. the
environment in which the abortion is performed, and above all
" [***173] c. the duration of pregnancy, as determined
by uterine size and confirmed by menstrual history." Id., at 397.
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, [*146]
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.
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. 40
The [*147] Conference
[**724] has appended [***174]
an enlightening Prefatory Note. 41
40
"UNIFORM ABORTION ACT
"SECTION 1. [Abortion Defined;
When Authorized.]
"(a) 'Abortion' means the
termination of human pregnancy with an intention other than to produce a live
birth or to remove a dead fetus.
"(b) An abortion may be performed in
this state only if it is performed:
"(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
"(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].
"SECTION 2. [Penalty.] Any
person who performs or procures an abortion other than authorized by this Act
is guilty of a [felony] 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.
"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.
"SECTION 4. [Short Title.]
This Act may be cited as the Uniform Abortion Act.
"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.
"SECTION 6. [Repeal.] The
following acts and parts of acts are repealed:
"(1)
"(2)
"(3)
"SECTION 7. [Time of Taking Effect.]
This Act shall take effect -- -- -- -- -- -- ."
41
"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.
"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.
"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."
VII
Three reasons have
been advanced to explain historically the enactment of criminal abortion laws
in the 19th century and to justify their continued existence.
[*148]
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. 42
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.
42
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.
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. 43 This was particularly true prior to
the [*149] 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.
43
See C. Haagensen & W. Lloyd, A Hundred Years of Medicine 19 (1943).
[***LEdHR11]
[11] [***LEdHR12] [12]
[***LEdHR13] [13] [***LEdHR14] [14]Modern
[**725] 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 [***175]
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. 44
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. [*150] 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.
44
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.
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. 45
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.
45
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.
[*151]
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. 46
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 [***176]
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. 47 The few state courts
[**726] 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. 48 Proponents of this view point out that
in many States, including Texas, 49
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. 50 They claim that adoption of the
"quickening" distinction through received common [*152]
law and state statutes tacitly recognizes the greater health hazards
inherent in late abortion and impliedly repudiates the theory that life begins
at conception.
46
See, e. g., Abele
v. Markle, 342 F.Supp. 800 (Conn. 1972), appeal docketed, No. 72-56.
47
See discussions in Means I and Means II.
48
See, e. g., State
v. Murphy, 27 N. J. L. 112, 114 (1858).
49
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.
50
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).
It is with these
interests, and the weight to be attached to them, that this case is concerned.
VIII
[***LEdHR15] [15] [***LEdHR16] [16] [***LEdHR17] [17]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 [***177]
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 [*153] (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 [**727]
Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.
[***LEdHR18] [18]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.
[***LEdHR19]
[19] [***LEdHR20] [20]
[***LEdHR21] [21] [***LEdHR22A]
[22A] [***LEdHR23] [23]
[***LEdHR24] [24]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 [*154]
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).
We, therefore,
conclude that the right of personal privacy includes the abortion decision, but
that this right is not unqualified and must be
[***178] considered against
important state interests in regulation.
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,
[*155] 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).
Others have sustained
state statutes. Crossen v. Attorney
General, 344 F.Supp. 587
[**728] (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.
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.
[***LEdHR25] [25]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
[*156] Eisenstadt v. Baird,
405 U.S., at 460, 463-464 (WHITE, J., concurring in result).
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 [***179]
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.
IX
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.
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, [*157]
for the fetus' right to life would then be guaranteed specifically by
the Amendment. The appellant conceded as
much on reargument. 51 On the other hand, the appellee conceded
on reargument 52 that no case could be cited [**729]
that holds that a fetus is a person within the meaning of the Fourteenth
Amendment.
51
Tr. of Oral Rearg. 20-21.
52
Tr. of Oral Rearg. 24.
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; 53 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. 54
53
We are not aware that in the taking of any census under this clause, a
fetus has ever been counted.
54
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?
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?
[*158]
[***180] [***LEdHR26] [26] 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. 55 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
[*159] 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 [**730]
termination of life entitled to Fourteenth Amendment protection.
55
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."
This conclusion,
however, does not of itself fully answer the contentions raised by Texas, and
we pass on to other considerations.
[***LEdHR27]
[27]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.
Texas urges that,
apart from the Fourteenth Amendment, life begins [***181]
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.
[*160]
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. 56 It appears to be the predominant, though
not the unanimous, attitude of the Jewish faith. 57 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. 58
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.
59 Viability is usually placed at about
seven months (28 weeks) but may occur earlier,
even at 24 weeks. 60
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 [*161] the moment of conception. 61 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
[**731] 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. 62
56
Edelstein 16.
57
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).
58
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.
59
L. Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed. 1971);
Dorland's Illustrated Medical Dictionary 1689 (24th ed. 1965).
60
Hellman & Pritchard, supra, n. 59, at 493.
61
For discussions of the development of the Roman Catholic position, see
D. Callahan, Abortion: Law, Choice, and Morality 409-447 (1970); Noonan 1.
62
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,
Criminal Law -- 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.
[***182]
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. 63
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 [*162] courts have squarely so held. 64 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. 65 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.
66 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.
63
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).
64
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).
65
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).
66
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).
X
[***LEdHR22B]
[22B] [***LEdHR28] [28]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 [*163]
term and, at a point during pregnancy, each becomes
"compelling."
[***LEdHR29]
[29] [***LEdHR30A] [30A]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 [**732]
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 [***183] 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.
[***LEdHR31A]
[31A]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.
[***LEdHR32A]
[32A] [***LEdHR33A] [33A]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
[*164] during that period, except
when it is necessary to preserve the life or health of the mother.
[***LEdHR34]
[34]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.
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.
XI
[***LEdHR30B]
[30B] [***LEdHR31B] [31B]
[***LEdHR32B] [32B] [***LEdHR33B] [33B] [***LEdHR35] [35] [***LEdHR36] [36]To summarize and to repeat:
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.
(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.
(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.
(c) For the stage
subsequent to viability, the State in promoting its interest in the
potentiality of human life [*165] may, if it chooses, regulate, and even
proscribe, abortion except where it is necessary, in appropriate medical judgment,
for the preservation [***184] of the life or health of the mother.
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 [**733] State, and may proscribe any abortion by a
person who is not a physician as so defined.
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. 67
67
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.
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
[*166] 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.
XII
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.
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.
[***185]
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.
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
[*167] of the District Court is
affirmed. Costs are allowed to the appellee.
[EDITOR'S NOTE:
Additional opinions by Burger, Douglas, and White are published within Doe v. Bolton, 410 U.S. 179.]
It is so ordered.
[For concurring
opinion of MR. CHIEF JUSTICE BURGER, see post, p. 207.]
[For concurring
opinion of MR. JUSTICE DOUGLAS, see post, p. 209.]
[For dissenting
opinion of MR. JUSTICE WHITE, see post, p. 221.]
CONCUR BY: STEWART
CONCUR
[***193contd]
[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.]
MR. JUSTICE STEWART, concurring.
In 1963, this Court,
in Ferguson v. Skrupa, 372
U.S. 726, [**734] 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. 1
1
Only Mr. Justice Harlan failed to join the Court's opinion, 372 U.S., at 733.
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.
2 So it was clear [*168]
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. 3 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.
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).
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.
"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; [***194] 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.
[*169]
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 [**735] 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).
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
[*170] 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 [***195] 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).
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.
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.
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 [**736] of personal
[*171] 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.
DISSENT BY: REHNQUIST
DISSENT
[***196]
MR. JUSTICE REHNQUIST, dissenting.
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.
I
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 [***197]
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.
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
[*172] 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).
II
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).
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 [*173]
Amendment protects, embraces more than the rights found in the Bill of
Rights. But that [**737]
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 [***198] 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.
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.
[*174]
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.
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.
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, [***199]
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 [*175] Amendment in 1868, there were at least 36
laws enacted by state or territorial legislatures limiting [**738]
abortion. 1 While many States have amended or
updated [*176] their laws, 21 of the laws on the books in
1868 [***200] remain in effect today. 2 Indeed,
the Texas statute [**739] struck down today was, as the majority notes,
first enacted in 1857 [*177] and "has remained substantially
unchanged to the present time." Ante, at 119.
1
Jurisdictions having enacted abortion laws prior to the adoption of the
Fourteenth Amendment in 1868:
1. Alabama -- Ala. Acts, c. 6, § 2
(1840).
2. Arizona -- Howell Code, c. 10, § 45
(1865).
3. Arkansas -- Ark. Rev. Stat., c. 44,
div. III, Art. II, § 6 (1838).
4. California -- Cal. Sess. Laws, c. 99,
§ 45, p. 233 (1849-1850).
5. Colorado (Terr.) -- Colo. Gen. Laws of
Terr. of Colo., 1st Sess., § 42, pp. 296-297 (1861).
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).
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).
8. Georgia -- Ga. Pen. Code, 4th Div., §
20 (1833).
9. Kingdom of Hawaii -- Hawaii Pen. Code, c. 12, §§ 1, 2, 3 (1850).
10. Idaho (Terr.) -- Idaho (Terr.) Laws,
Crimes and Punishments §§ 33, 34, 42, pp. 441, 443 (1863).
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).
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).
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).
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).
15. Louisiana -- La. Rev. Stat., Crimes
and Offenses § 24, p. 138 (1856).
16. Maine -- Me. Rev. Stat., c. 160, §§
11, 12, 13, 14 (1840).
17. Maryland -- Md. Laws, c. 179, § 2, p.
315 (1868).
18. Massachusetts -- Mass. Acts &
Resolves, c. 27 (1845).
19. Michigan -- Mich. Rev. Stat., c. 153,
§§ 32, 33, 34, p. 662 (1846).
20. Minnesota (Terr.) -- Minn. (Terr.)
Rev. Stat., c. 100, §§ 10, 11, p. 493 (1851).
21. Mississippi -- Miss. Code, c. 64, §§
8, 9, p. 958 (1848).
22. Missouri -- Mo. Rev. Stat., Art. II,
§§ 9, 10, 36, pp. 168, 172 (1835).
23. Montana (Terr.) -- Mont. (Terr.)
Laws, Criminal Practice Acts § 41, p. 184 (1864).
24. Nevada (Terr.) -- Nev. (Terr.) Laws,
c. 28, § 42, p. 63 (1861).
25. New Hampshire -- N. H. Laws, c. 743,
§ 1, p. 708 (1848).
26. New Jersey -- N. J. Laws, p. 266
(1849).
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).
28. Ohio -- Ohio Gen. Stat. §§ 111 (1),
112 (2), p. 252 (1841).
29. Oregon -- Ore. Gen. Laws, Crim. Code,
c. 43, § 509, p. 528 (1845-1864).
30. Pennsylvania -- Pa. Laws No. 374, §§
87, 88, 89 (1860).
31. Texas -- Tex. Gen. Stat. Dig., c.
VII, Arts. 531-536, p. 524 (Oldham & White 1859).
32. Vermont -- Vt. Acts No. 33, § 1
(1846). By 1868, this statute had been
amended. Vt. Acts No. 57, §§ 1, 3
(1867).
33. Virginia -- Va. Acts, Tit. II, c. 3, § 9, p. 96 (1848).
34. Washington (Terr.) -- Wash. (Terr.)
Stats., c. II, §§ 37, 38, p. 81 (1854).
35. West Virginia -- See Va. Acts., Tit.
II, c. 3, § 9, p. 96 (1848); W. Va. Const., Art. XI, par. 8 (1863).
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).
2
Abortion laws in effect in 1868 and still applicable as of August 1970:
1. Arizona (1865).
2. Connecticut (1860).
3. Florida (1868).
4. Idaho (1863).
5. Indiana (1838).
6. Iowa (1843).
7. Maine (1840).
8. Massachusetts (1845).
9. Michigan (1846).
10. Minnesota (1851).
11. Missouri (1835).
12. Montana (1864).
13. Nevada (1861).
14. New Hampshire (1848).
15. New Jersey (1849).
16. Ohio (1841).
17. Pennsylvania (1860).
18. Texas (1859).
19. Vermont (1867).
20. West Virginia (1863).
21. Wisconsin (1858).
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.
III
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 [*178]
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).
For all of the
foregoing reasons, I respectfully dissent.
REFERENCES
Validity, under Federal Constitution, of abortion laws
1 Am Jur 2d, Abortion 1- 36; 32 Am Jur 2d, Federal Practice
and Procedure 238; 42 Am Jur 2d, Injunctions 342- 344
1 Am Jur Pl & Pr Forms (Rev), Abortion, Form Nos. 1-6
2 Am Jur Trials 171, Investigating Particular Crimes 64
US L Ed Digest, Abortion 1; Appeal and Error 327, 428, 1208,
1656, 1662; Constitutional Law 101, 521, 525, 526; Courts 762, 763; Declaratory
Judgments 8; Rules of Court 3, 5; Statutes 26
ALR Digests, Abortion 1-3; Constitutional Law 145, 445, 452,
525, 715, 715.5, 751
L Ed Index to Anno, Abortion; Abstention Doctrine; Appeal
and Error; Constitutional Law; Declaratory Judgments; Due Process of Law;
Physicians and Surgeons; Police Power; Statutes
ALR Quick Index, Abortion; Appeal and Error; Constitutional
Law; Declaratory Judgments; Due Process of Law; Physicians and Surgeons; Police
Power; Statutes
Federal Quick Index, Abortion; Abstention Doctrine; Appeal
and Error; Constitutional Law; Declaratory Judgments; Due Process of Law;
Physicians and Surgeons; Police Power; Statutes
Annotation References:
Validity, under Federal Constitution, of abortion laws. 35 L Ed 2d 735.