BLACKMUN, J.,
Opinion of the Court
SUPREME COURT
OF THE UNITED STATES
410 U.S. 113
Roe v. Wade
APPEAL FROM
THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS
No.
70-18 Argued:
December 13, 1971
– Decided: January 22,
1973
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 to complicate and not to
simplify the problem.
Our task, of course, is to
resolve the issue by constitutional
measurement, free of emotion and of
predilection. We seek earnestly to do this,
and, because we do, we
[p117] 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.
[n1] These make it a crime to
"procure an abortion," as therein
[p118] 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.
[n2]
[p119]
Texas first enacted a
criminal abortion statute in 1854. Texas
Laws 1854, c. 49, § 1, set forth in 3 H.
Gammel, Laws of Texas 1502 (1898). This was
soon modified into language that has
remained substantially unchanged to the
present time. See Texas Penal Code of
1857, c. 7, Arts. 531-536; G. Paschal, Laws
of Texas, Arts. 2192-2197 (1866); Texas
Rev.Stat., c. 8, Arts. 536-541 (1879); Texas
Rev.Crim.Stat., Arts. 1071-1076 (1911). The
final article in each of these compilations
provided the same exception, as does the
present Article 1196, for an abortion by
"medical advice for the purpose of saving
the life of the mother."
[n3]
[p120]
II
Jane Roe,
[n4] 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.
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.
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
[p121] that two
such prosecutions were pending against him.
He described conditions of patients who came
to him seeking abortions, and he claimed
that for many cases he, as a physician, was
unable to determine whether they fell within
or outside the exception recognized by
Article 1196. He alleged that, as a
consequence, the statutes were vague and
uncertain, in violation of the
Fourteenth Amendment, and that
they violated his own and his patients'
rights to privacy in the doctor-patient
relationship and his own right to practice
medicine, rights he claimed were guaranteed
by the First, Fourth, Fifth, Ninth, and
Fourteenth Amendments.
John and Mary Doe,
[n5] 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."
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,
[p122] 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
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)
[p123]
It might have been preferable
if the defendant, pursuant to our Rule 20,
had presented to us a petition for
certiorari before judgment in the Court of
Appeals with respect to the granting of the
plaintiffs' prayer for declaratory relief.
Our decisions in Mitchell v. Donovan,
398 U.S. 427 (1970), and Gunn
v. University Committee,
399 U.S. 383 (1970), are to the
effect that § 1253 does not authorize an
appeal to this Court from the grant or
denial of declaratory relief alone. We
conclude, nevertheless, that those decisions
do not foreclose our review of both the
injunctive and the declaratory aspects of a
case of this kind when it is properly here,
as this one is, on appeal under 1253 from
specific denial of injunctive relief, and
the arguments as to both aspects are
necessarily identical. See Carter v. Jury
Comm'n,
396 U.S. 320 (1970); Florida
Lime Growers v. Jacobsen,
362 U.S. 73, 80-81 (1960). It
would be destructive of time and energy for
all concerned were we to rule otherwise.
Cf. Doe v. Bolton, post, p. 179.
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?
[p124]
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.
Viewing Roe's case as of the
time of its filing and thereafter until as
late a May, there can be little dispute that
it then presented a case or controversy and
that, wholly apart from the class aspects,
she, as a pregnant single woman thwarted by
the Texas criminal abortion laws, had
standing to challenge those statutes.
Abele v. Markle, 452 F.2d 1121, 1125
(CA2 1971); Crossen v. Breckenridge,
446 F.2d 833, 838-839 (CA6 1971); Poe v.
Menghini, 339 F.Supp. 986, 990-991
(Kan.1972). See Truax v. Raich,
239 U.S. 33 (1915). Indeed, we do
not read the appellee's brief as really
asserting anything to the contrary. The
"logical nexus between the status asserted
and the claim sought to be adjudicated,"
Flast v. Cohen, 392 U.S. at 102, and the
necessary degree of contentiousness,
Golden v. Zwickler,
394 U.S. 103 (1969), are both
present.
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,
[n6] 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.
[p125]
The usual rule in federal
cases is that an actual controversy must
exist at stages of appellate or certiorari
review, and not simply at the date the
action is initiated. United States v.
Munsingwear, Inc.,
340 U.S. 36 (1950); Golden v.
Zwickler, supra; SEC v. Medical Committee
for Human Rights,
404 U.S. 403 (1972).
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).
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:
[I]n the past has been
arrested for violating the Texas Abortion
Laws and at the present time stands charged
by indictment with violating said laws in
the Criminal District Court of Dallas
County, Texas to-wit: (1) The State of Texas
vs. [p126] James
H. Hallford, No. C-69-5307-IH, and (2) The
State of Texas vs. James H. Hallford, No.
C-692524-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.
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. [p127]
Harris,
401 U.S. 37 (1971); Boyle v.
Landry,
401 U.S. 77 (1971); Perez v.
Ledesma,
401 U.S. 82 (1971); and Byrne
v. Karaleis,
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.
Dr. Hallford's complaint in
intervention, therefore, is to be dismissed.
[n7] He is remitted to his
defenses in the state criminal proceedings
against him. We reverse the judgment of the
District Court insofar as it granted Dr.
Hallford relief and failed to dismiss his
complaint in intervention.
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
[p128] 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.
This very phrasing of the
Does' position reveals its speculative
character. Their alleged injury rests on
possible future contraceptive failure,
possible future pregnancy, possible future
unpreparedness for parenthood, and possible
future impairment of health. Any one or more
of these several possibilities may not take
place, and all may not combine. In the Does'
estimation, these possibilities might have
some real or imagined impact upon their
marital happiness. But we are not prepared
to say that the bare allegation of so
indirect an injury is sufficient to present
an actual case or controversy. Younger v.
Harris, 401 U.S. at 41-42; Golden v.
Zwickler, 394 U.S. at 109-110; Abele
v. Markle, 452 F.2d at 1124-1125;
Crossen v. Breckenridge, 446 F.2d at
839. The Does' claim falls far short of
those resolved otherwise in the cases that
the Does urge upon us, namely, Investment
Co. Institute v. Camp,
401 U.S. 617 (1971); Data
Processing Service v. Camp,
397 U.S. 150 (1970);
[p129] and
Epperson v. Arkansas,
393 U.S. 97 (1968). See also
Truax v. Raich,
239 U.S. 33 (1915).
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
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.
[p130]
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.
[n8] We are also told,
however, that abortion was practiced in
Greek times as well as in the Roman Era,
[n9] and that "it was resorted
to without scruple."
[n10] 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.
[n11] 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.
[n12]
2. The Hippocratic Oath.
What then of the famous Oath that has stood
so long as the ethical guide of the medical
profession and that bears the name of the
great Greek (460(?)-377(?) B. C.), who has
been described [p131]
as the Father of Medicine, the "wisest and
the greatest practitioner of his art," and
the "most important and most complete
medical personality of antiquity," who
dominated the medical schools of his time,
and who typified the sum of the medical
knowledge of the past?
[n13] 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,
[n14]
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.
[n15]
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:
[n16] 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,"
[p132] and "[i]n
no other stratum of Greek opinion were such
views held or proposed in the same spirit of
uncompromising austerity."
[n17]
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."
[n18] 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."
[n19]
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
[n20]
– was not an indictable
offense.
[n21] The absence
[p133] of a
common law crime for pre-quickening abortion
appears to have developed from a confluence
of earlier philosophical, theological, and
civil and canon law concepts of when life
begins. These disciplines variously
approached the question in terms of the
point at which the embryo or fetus became
"formed" or recognizably human, or in terms
of when a "person" came into being, that is,
infused with a "soul" or "animated." A loose
consensus evolved in early English law that
these events occurred at some point between
conception and live birth.
[n22] This was "mediate
animation." Although
[p134] 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.
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.
[n23] But the later and
predominant view, following the great common
law scholars, has been that it was, at most,
a lesser offense. In a frequently cited
[p135] passage,
Coke took the position that abortion of a
woman "quick with childe" is "a great
misprision, and no murder."
[n24] Blackstone followed,
saying that, while abortion after quickening
had once been considered manslaughter
(though not murder), "modern law" took a
less severe view.
[n25] 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.
[n26] 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,
[n27] others followed Coke in
stating that abortion
[p136] of a quick fetus was a
"misprision," a term they translated to mean
"misdemeanor."
[n28] 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.
4. The English statutory
law. England's first criminal abortion
statute, Lord Ellenborough's Act, 43 Geo. 3,
c. 58, came in 1803. It made abortion of a
quick fetus, § 1, a capital crime, but, in
§ 2, it provided lesser penalties for the
felony of abortion before quickening, and
thus preserved the "quickening" distinction.
This contrast was continued in the general
revision of 1828, 9 Geo. 4, c. 31, § 13. It
disappeared, however, together with the
death penalty, in 1837, 7 Will. 4 & 1 Vict.,
c. 85. § 6, and did not reappear in the
Offenses Against the Person Act of 1861, 24
& 25 Vict., c. 100, § 59, that formed the
core of English anti-abortion law until the
liberalizing reforms of 1967. In 1929, the
Infant Life (Preservation) Act, 19 & 20 Geo.
5, c. 34, came into being. Its emphasis was
upon the destruction of "the life of a child
capable of being born alive." It made a
willful act performed with the necessary
intent a felony. It contained a proviso that
one was not to be [p137]
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 willful 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 [p138]
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 preexisting English common law.
Connecticut, the first State to enact
abortion legislation, adopted in 1821 that
part of Lord Ellenborough's Act that related
to a woman "quick with child."
[n29] The death penalty was
not imposed. Abortion before quickening was
made a crime in that State only in 1860.
[n30] In 1828, New York
enacted legislation
[n31] 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,
[n32] only eight American
States [p139]
had statutes dealing with abortion.
[n33] 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. 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.
[n34] The exceptions, Alabama
and the District of Columbia, permitted
abortion to preserve the mother's health.
[n35] Three States permitted
abortions that were not "unlawfully"
performed or that were not "without lawful
justification," leaving interpretation of
those standards to the courts.
[n36] In
[p140] 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,
[n37] set forth as Appendix B
to the opinion in Doe v. Bolton, post,
p. 205.
It is thus apparent that, at
common law, at the time of the adoption of
our Constitution, and throughout the major
portion of the 19th century, abortion was
viewed with less disfavor than under most
American statutes currently in effect.
Phrasing it another way, a woman enjoyed a
substantially broader right to terminate a
pregnancy than she does in most States
today. At least with respect to the early
stage of pregnancy, and very possibly
without such a limitation, the opportunity
[p141] 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. 778 (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 widespread 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,
[p142] and to its life as yet
denies all protection.
Id.
at 776. 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.
268 (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
[p143] patient," two other
physicians "chosen because of their
recognized professional competence have
examined the patient and have concurred in
writing," and the procedure "is performed in
a hospital accredited by the Joint
Commission on Accreditation of Hospitals."
The providing of medical information by
physicians to state legislatures in their
consideration of legislation regarding
therapeutic abortion was "to be considered
consistent with the principles of ethics of
the American Medical Association." This
recommendation was adopted by the House of
Delegates. Proceedings of the AMA House of
Delegates 40-51 (June 1967).
In 1970, after the
introduction of a variety of proposed
resolutions and of a report from its Board
of Trustees, a reference committee noted
"polarization of the medical profession on
this controversial issue"; division among
those who had testified; a difference of
opinion among AMA councils and.committees;
"the remarkable shift in testimony" in six
months, felt to be influenced "by the rapid
changes in state laws and by the judicial
decisions which tend to make abortion more
freely available; " and a feeling "that this
trend will continue." On June 25, 1970, the
House of Delegates adopted preambles and
most of the resolutions proposed by the
reference committee. The preambles
emphasized "the best interests of the
patient," "sound clinical judgment," and
"informed patient consent," in contrast to
"mere acquiescence to the patient's demand."
The resolutions asserted that abortion is a
medical procedure that should be performed
by a licensed physician in an accredited
hospital only after consultation with two
other physicians and in conformity with
state law, and that no party to the
procedure should be required to violate
personally held moral principles.
[n38] Proceedings
[p144] of the
AMA House of Delegates 220 (June 1970). The
AMA Judicial Council rendered a
complementary opinion.
[n39]
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
[p145] 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.
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
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,
[p146] 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.
[n40] The
[p147] Opinion of the Court
Conference has appended an enlightening
Prefatory Note.
[n41]
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. [p148]
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.
[n42] 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.
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.
[n43] This was particularly
true prior to the [p149]
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.
Modern medical techniques
have altered this situation. Appellants and
various amici refer to medical data
indicating that abortion in early pregnancy,
that is, prior to the end of the first
trimester, although not without its risk, is
now relatively safe. Mortality rates for
women undergoing early abortions, where the
procedure is legal, appear to be as low as
or lower than the rates for normal
childbirth.
[n44] 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.
[p150] 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.
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.
[n45] 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.
[p151]
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.
[n46] Pointing to the absence
of legislative history to support the
contention, they claim that most state laws
were designed solely to protect the woman.
Because medical advances have lessened this
concern, at least with respect to abortion
in early pregnancy, they argue that with
respect to such abortions the laws can no
longer be justified by any state interest.
There is some scholarly support for this
view of original purpose.
[n47] The few state courts
called upon to interpret their laws in the
late 19th and early 20th centuries did focus
on the State's interest in protecting the
woman's health, rather than in preserving
the embryo and fetus.
[n48] Proponents of this view
point out that in many States, including
Texas,
[n49] 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.
[n50] They claim that adoption
of the "quickening" distinction through
received common [p152]
law and state statutes tacitly recognizes
the greater health hazards inherent in late
abortion and impliedly repudiates the theory
that life begins at conception.
It is with these interests,
and the eight to be attached to them, that
this case is concerned.
VIII
The Constitution does not
explicitly mention any right of privacy. In
a line of decisions, however, going back
perhaps as far as Union Pacific R. Co. v.
Botsford,
141 U.S. 250, 251 (1891), the
Court has recognized that a right of
personal privacy, or a guarantee of certain
areas or zones of privacy, does exist under
the Constitution. In varying contexts, the
Court or individual Justices have, indeed,
found at least the roots of that right in
the
First Amendment, Stanley v.
Georgia,
394 U.S. 557, 564 (1969); in the
Fourth and
Fifth Amendments, Terry v.
Ohio,
392 U.S. 1, 8-9 (1968), Katz
v. United States,
389 U.S. 347, 350 (1967), Boyd
v. United States,
116 U.S. 616 (1886), see
Olmstead v. United States,
277 U.S. 438, 478 (1928)
(Brandeis, J., dissenting); in the penumbras
of the Bill of Rights, Griswold v.
Connecticut, 381 U.S. at 484-485; in the
Ninth Amendment, id. at
486 (Goldberg, J., concurring); or in the
concept of liberty guaranteed by the first
section of the
Fourteenth Amendment, see
Meyer v. Nebraska,
262 U.S. 390, 399 (1923). These
decisions make it clear that only personal
rights that can be deemed "fundamental" or
"implicit in the concept of ordered
liberty," Palko v. Connecticut,
302 U.S. 319, 325 (1937), are
included in this guarantee of personal
privacy. They also make it clear that the
right has some extension to activities
relating to marriage, Loving v. Virginia,
388 U.S. 1, 12 (1967);
procreation, Skinner v. Oklahoma,
316 U.S. 535, 541-542 (1942);
contraception, Eisenstadt v. Baird,
405 U.S. at 453-454; id. at 460,
463-465 [p153]
(WHITE, J., concurring in result); family
relationships, Prince v. Massachusetts,
321 U.S. 158, 166 (1944); and
childrearing and education, Pierce v.
Society of Sisters,
268 U.S. 510, 535 (1925),
Meyer v. Nebraska, supra.
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.
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
[p154] 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 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. Kuler, 342 F.Supp. 1048 (NJ
1972); Babbitz v. McCann,
[p155] 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 (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.
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 [p156]
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
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,
[p157] for the fetus' right to
life would then be guaranteed specifically
by the Amendment. The appellant conceded as
much on reargument.
[n51] On the other hand, the
appellee conceded on reargument
[n52] that no case could be
cited that holds that a fetus is a person
within the meaning of the
Fourteenth Amendment.
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;
[n53] 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
post-natally. None indicates, with any
assurance, that it has any possible
pre-natal application.
[n54]
[p158]
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.
[n55] 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
[p159] Ohio
St.2d 65, 275 N.E.2d 599 (1971). Indeed, our
decision in United States v. Vuitch,
402 U.S. 62 (1971), inferentially
is to the same effect, for we there would
not have indulged in statutory
interpretation favorable to abortion in
specified circumstances if the necessary
consequence was the termination of life
entitled to
Fourteenth Amendment protection.
This conclusion, however,
does not of itself fully answer the
contentions raised by Texas, and we pass on
to other considerations.
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
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.
[p160]
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.
[n56] It appears to be the
predominant, though not the unanimous,
attitude of the Jewish faith.
[n57] 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.
[n58] As we have noted, the
common law found greater significance in
quickening. Physician 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.
[n59] Viability is usually
placed at about seven months (28 weeks) but
may occur earlier, even at 24 weeks.
[n60] 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 [p161] the
moment of conception.
[n61] The latter is now, of
course, the official belief of the Catholic
Church. As one brief amicus
discloses, this is a view strongly held by
many non-Catholics as well, and by many
physicians. Substantial problems for precise
definition of this view are posed, however,
by new embryological data that purport to
indicate that conception is a "process" over
time, rather than an event, and by new
medical techniques such as menstrual
extraction, the "morning-after" pill,
implantation of embryos, artificial
insemination, and even artificial wombs.
[n62]
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.
[n63] 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
[p162] courts have squarely so held.
[n64] 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.
[n65] 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.
[n66] 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.
X
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
[p163] term and,
at a point during pregnancy, each becomes
"compelling."
With respect to the State's
important and legitimate interest in the
health of the mother, the "compelling"
point, in the light of present medical
knowledge, is at approximately the end of
the first trimester. This is so because of
the now-established medical fact, referred
to above at 149, that, until the end of the
first trimester mortality in abortion may be
less than mortality in normal childbirth. It
follows that, from and after this point, a
State may regulate the abortion procedure to
the extent that the regulation reasonably
relates to the preservation and protection
of maternal health. Examples of permissible
state regulation in this area are
requirements as to the qualifications of the
person who is to perform the abortion; as to
the licensure of that person; as to the
facility in which the procedure is to be
performed, that is, whether it must be a
hospital or may be a clinic or some other
place of less-than-hospital status; as to
the licensing of the facility; and the like.
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.
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 [p164]
during that period, except when it is
necessary to preserve the life or health of
the mother.
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
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
[p165] may, if
it chooses, regulate, and even proscribe,
abortion except where it is necessary, in
appropriate medical judgment, for the
preservation of the life or health of the
mother.
2. The State may define the
term "physician," as it has been employed in
the preceding paragraphs of this Part XI of
this opinion, to mean only a physician
currently licensed by the State, and may
proscribe any abortion by a person who is
not a physician as so defined.
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.
[n67]
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
[p166] 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.
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 [p167]
of the District Court is affirmed. Costs are
allowed to the appellee.
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.]
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.
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).
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).
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.
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).
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.
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
_________.
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.
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?
