410 U.S. 113
ROE ET AL. v. WADE, DISTRICT
ATTORNEY OF DALLAS COUNTY
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
TEXAS
No. 70-18.
Argued December 13, 1971 Reargued October 11, 1972
Decided January 22, 1973
A pregnant single woman (Roe) brought a class action challenging the
constitutionality of the Texas criminal abortion laws, which proscribe
procuring or attempting an abortion except on medical advice for the purpose of
saving the mother's life. A licensed physician (Hallford), who had two state
abortion prosecutions pending against him, was permitted to intervene. A childless
married couple (the Does), the wife not being pregnant, separately attacked the
laws, basing alleged injury on the future possibilities of contraceptive
failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's
health. A three-judge District Court, which consolidated the actions, held that
Roe and Hallford, and members of their classes, had standing to sue and
presented justiciable controversies. Ruling that declaratory, though not
injunctive, relief was warranted, the court declared the abortion statutes void
as vague and overbroadly infringing those plaintiffs' Ninth and Fourteenth
Amendment rights. The court ruled the Does' complaint not justiciable.
Appellants directly appealed to this Court on the injunctive rulings, and appellee
cross-appealed from the District Court's grant of declaratory relief to Roe and
Hallford. Held:
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 [410 U.S. 113, 114]
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
U.S. 66 . Pp. 125-127.
(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 [410
U.S. 113, 115] that the Texas criminal abortion statutes are
unconstitutional. P. 166.
314 F. Supp. 1217, affirmed in part and reversed in part.
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.
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. *
[410 U.S. 113, 116]
[ Footnote * ]
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 [410 U.S. 113, 116] 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.
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 [410 U.S. 113, 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."
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 [410 U.S. 113, 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 [410 U.S. 113, 119]
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." 3
[410 U.S. 113, 120]
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.
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 [410 U.S. 113, 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 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."
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, [410 U.S. 113, 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 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). [410 U.S.
113, 123]
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.
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? [410 U.S. 113, 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.
Viewing Roe's case as of the time of its filing and thereafter until as late
as May, there can be little dispute that it then presented a case or
controversy and that, wholly apart from the class aspects, she, as a pregnant
single woman thwarted by the Texas criminal abortion laws, had standing to
challenge those statutes. Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971);
Crossen v. Breckenridge, 446 F.2d 833, 838-839 (CA6 1971); Poe v. Menghini, 339
F. Supp. 986, 990-991 (Kan. 1972). See Truax v. Raich, 239
U.S. 33 (1915). Indeed, we do not read the appellee's brief as really
asserting anything to the contrary. The "logical nexus between the status
asserted and the claim sought to be adjudicated," Flast v. Cohen, 392
U.S., at 102 , and the necessary degree of contentiousness, Golden v.
Zwickler, 394
U.S. 103 (1969), are both present.
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. [410
U.S. 113, 125]
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. [410 U.S. 113, 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.
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. [410 U.S. 113, 127] Harris,
401
U.S. 37 (1971); Boyle v. Landry, 401
U.S. 77 (1971); Perez v. Ledesma, 401
U.S. 82 (1971); and Byrne v. Karalexis, 401
U.S. 216 (1971). See also Dombrowski v. Pfister, 380
U.S. 479 (1965). We note, in passing, that Younger and its companion cases
were decided after the three-judge District Court decision in this case.
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 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 [410
U.S. 113, 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.
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); [410 U.S.
113, 129] 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.
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.
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. [410 U.S. 113, 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
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 [410 U.S. 113, 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 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
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," [410 U.S. 113,
132] and "[i]n no other stratum of Greek opinion were such
views held or proposed in the same spirit of uncompromising austerity." 17
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
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 [410 U.S. 113, 133]
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. 22 This was "mediate
animation." Although [410
U.S. 113, 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.
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
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 [410 U.S. 113, 135] passage,
Coke took the position that abortion of a woman "quick with childe"
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 [410 U.S. 113, 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.
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 [410
U.S. 113, 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 [410 U.S. 113, 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 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 [410 U.S. 113, 139] had
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.
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 [410 U.S. 113, 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
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 [410
U.S. 113, 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, [410 U.S. 113, 142] and to
its life as yet denies all protection." Id., at 75-76.
The Committee then offered, and the Association adopted,
resolutions protesting "against such unwarrantable destruction of human
life," calling upon state legislatures to revise their abortion laws, and
requesting the cooperation of state medical societies "in pressing the
subject." Id., at 28, 78.
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 [410 U.S. 113, 143] 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. 38 Proceedings
[410 U.S. 113, 144] of
the AMA House of Delegates 220 (June 1970). The AMA Judicial Council rendered a
complementary opinion. 39
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 [410 U.S. 113, 145] health
departments, medical societies, or other nonprofit organizations.
"b. An important function of
counselling 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, [410 U.S.
113, 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 [410 U.S. 113, 147] Conference
has appended an enlightening Prefatory Note. 41
Three reasons have been advanced to explain historically the enactment of
criminal abortion laws in the 19th century and to justify their continued
existence. [410 U.S. 113, 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.
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 [410
U.S. 113, 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.
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. 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. [410 U.S. 113, 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.
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. [410 U.S. 113, 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 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
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 [410 U.S. 113, 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.
It is with these interests, and the weight to be attached to them, that this
case is concerned.
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 [410 U.S. 113, 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
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 [410 U.S.
113, 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
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, [410 U.S. 113, 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 (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 [410
U.S. 113, 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 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.
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, [410 U.S. 113, 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 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; 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
[410 U.S. 113, 158]
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 [410
U.S. 113, 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 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. [410 U.S. 113, 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 [410 U.S.
113, 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 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
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 [410
U.S. 113, 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.
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 [410 U.S. 113, 163] 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 [410 U.S. 113, 164]
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.
To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, 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, 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 [410 U.S. 113, 165] 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. 67
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 [410 U.S. 113, 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.
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 [410 U.S. 113, 167]
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.]
[ Footnote
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 [410
U.S. 113, 118] 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."
[ Footnote 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, [410 U.S. 113, 119] 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).
[ Footnote 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 [410 U.S. 113, 120] 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).
[ Footnote 4 ] The
name is a pseudonym.
[ Footnote 5 ] These
names are pseudonyms.
[ Footnote 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.
[ Footnote 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.
[ Footnote 8 ] A.
Castiglioni, A History of Medicine 84 (2d ed. 1947), E. Krumbhaar, translator
and editor (hereinafter Castiglioni).
[ Footnote 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).
[ Footnote 10 ] L.
Edelstein, The Hippocratic Oath 10 (1943) (hereinafter Edelstein). But see
Castiglioni 227.
[ Footnote 11 ]
Edelstein 12; Ricci 113-114, 118-119; Noonan 5.
[ Footnote 12 ]
Edelstein 13-14.
[ Footnote 13 ]
Castiglioni 148.
[ Footnote 14 ]
Id., at 154.
[ Footnote 15 ]
Edelstein 3.
[ Footnote 16 ]
Id., at 12, 15-18.
[ Footnote 17 ]
Id., at 18; Lader 76.
[ Footnote 18 ]
Edelstein 63.
[ Footnote 19 ]
Id., at 64.
[ Footnote 20 ]
Dorland's Illustrated Medical Dictionary 1261 (24th ed. 1965).
[ Footnote 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 [410 U.S. 113, 133] 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.
[ Footnote 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, [410 U.S. 113, 134] 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).
[ Footnote 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).
[ Footnote 24 ] E.
Coke, Institutes III *50.
[ Footnote 25 ] 1
W. Blackstone, Commentaries *129-130.
[ Footnote 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."
[ Footnote 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. [410 U.S. 113, 136]
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).
[ Footnote 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).
[ Footnote 29 ]
Conn. Stat., Tit. 20, 14 (1821).
[ Footnote 30 ]
Conn. Pub. Acts, c. 71, 1 (1860).
[ Footnote 31 ] N.
Y. Rev. Stat., pt. 4, c. 1, Tit. 2, Art. 1, 9, p. 661, and Tit. 6, 21, p. 694
(1829).
[ Footnote 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).
[ Footnote 33 ] The
early statutes are discussed in Quay 435-438. See also Lader 85-88; Stern
85-86; and Means II 375-376.
[ Footnote 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.
[ Footnote 35 ]
Ala. Code, Tit. 14, 9 (1958); D.C. Code Ann. 22-201 (1967).
[ Footnote 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).
[ Footnote 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.
[ Footnote 38 ]
"Whereas, Abortion, like any other medical procedure, should not be
performed when contrary to the best interests of the patient [410 U.S. 113, 144] 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).
[ Footnote 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."
[ Footnote 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 [410 U.S. 113, 147] 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 ________________."
[ Footnote 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 [410 U.S. 113,
148] 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."
[ Footnote 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.
[ Footnote 43 ] See
C. Haagensen & W. Lloyd, A Hundred Years of Medicine 19 (1943).
[ Footnote 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.
[ Footnote 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.
[ Footnote 46 ]
See, e. g., Abele v. Markle, 342 F. Supp. 800 (Conn. 1972), appeal docketed,
No. 72-56.
[ Footnote 47 ] See
discussions in Means I and Means II.
[ Footnote 48 ]
See, e. g., State v. Murphy, 27 N. J. L. 112, 114 (1858).
[ Footnote 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.
[ Footnote 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).
[ Footnote 51 ] Tr.
of Oral Rearg. 20-21.
[ Footnote 52 ] Tr.
of Oral Rearg. 24.
[ Footnote 53 ] We
are not aware that in the taking of any census under this clause, a fetus has
ever been counted.
[ Footnote 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 [410 U.S.
113, 158] 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?
[ Footnote 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."
[ Footnote 56 ]
Edelstein 16.
[ Footnote 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).
[ Footnote 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.
[ Footnote 59 ] L.
Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed. 1971); Dorland's
Illustrated Medical Dictionary 1689 (24th ed. 1965).
[ Footnote 60 ]
Hellman & Pritchard, supra, n. 59, at 493.
[ Footnote 61 ] For
discussions of the development of the Roman Catholic position, see D. Callahan,
Abortion: Law, Choice, and Morality 409-447 (1970); Noonan 1.
[ Footnote 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.
[ Footnote 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).
[ Footnote 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).
[ Footnote 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).
[ Footnote 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).
[ Footnote 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.
MR. JUSTICE STEWART, concurring.
In 1963, this Court, in Ferguson v. Skrupa, 372
U.S. 726 , purported to sound the death knell for the doctrine of
substantive due process, a doctrine under which many state laws had in the past
been held to violate the Fourteenth Amendment. As Mr. Justice Black's opinion
for the Court in Skrupa put it: "We have returned to the original
constitutional proposition that courts do not substitute their social and
economic beliefs for the judgment of legislative bodies, who are elected to
pass laws." Id., at 730. 1
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 [410 U.S. 113, 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.
"In a Constitution for a free
people, there can be no doubt that the meaning of `liberty' must be broad
indeed." Board of Regents v. Roth, 408
U.S. 564, 572 . The Constitution nowhere mentions a specific right of
personal choice in matters of marriage and family life, but the
"liberty" protected by the Due Process Clause of the Fourteenth
Amendment covers more than those freedoms explicitly named in the Bill of
Rights. See Schware v. Board of Bar Examiners, 353
U.S. 232, 238 -239; Pierce v. Society of Sisters, 268
U.S. 510, 534 -535; Meyer v. Nebraska, 262
U.S. 390, 399 -400. Cf. Shapiro v. Thompson, 394
U.S. 618, 629 -630; United States v. Guest, 383
U.S. 745, 757 -758; Carrington v. Rash, 380
U.S. 89, 96 ; Aptheker v. Secretary of State, 378
U.S. 500, 505 ; Kent v. Dulles, 357
U.S. 116, 127 ; Bolling v. Sharpe, 347
U.S. 497, 499 -500; Truax v. Raich, 239
U.S. 33, 41 . [410 U.S. 113,
169]
As Mr. Justice Harlan once wrote: "[T]he full scope of
the liberty guaranteed by the Due Process Clause cannot be found in or limited
by the precise terms of the specific guarantees elsewhere provided in the
Constitution. This `liberty' is not a series of isolated points pricked out in
terms of the taking of property; the freedom of speech, press, and religion;
the right to keep and bear arms; the freedom from unreasonable searches and
seizures; and so on. It is a rational continuum which, broadly speaking,
includes a freedom from all substantial arbitrary impositions and purposeless
restraints . . . and which also recognizes, what a reasonable and sensitive
judgment must, that certain interests require particularly careful scrutiny of
the state needs asserted to justify their abridgment." Poe v. Ullman, 367
U.S. 497, 543 (opinion dissenting from dismissal of appeal) (citations
omitted). In the words of Mr. Justice Frankfurter, "Great concepts like .
. . `liberty' . . . were purposely left to gather meaning from experience. For
they relate to the whole domain of social and economic fact, and the statesmen
who founded this Nation knew too well that only a stagnant society remains
unchanged." National Mutual Ins. Co. v. Tidewater Transfer Co., 337
U.S. 582, 646 (dissenting opinion).
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 [410
U.S. 113, 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 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 of personal [410 U.S. 113, 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.
[ Footnote 1 ]
Only Mr. Justice Harlan failed to join the Court's opinion, 372
U.S., at 733 .
[ Footnote 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 [410
U.S. 113, 168] 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).
[ Footnote 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 .
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.
The Court's opinion decides that a State may impose virtually no restriction
on the performance of abortions during the first trimester of pregnancy. Our
previous decisions indicate that a necessary predicate for such an opinion is a
plaintiff who was in her first trimester of pregnancy at some time during the
pendency of her law-suit. 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 [410 U.S. 113, 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).
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 [410 U.S. 113, 173] Amendment protects,
embraces more than the rights found in the Bill of Rights. But that liberty is
not guaranteed absolutely against deprivation, only against deprivation without
due process of law. The test traditionally applied in the area of social and
economic legislation is whether or not a law such as that challenged has a
rational relation to a valid state objective. Williamson v. Lee Optical Co., 348
U.S. 483, 491 (1955). The Due Process Clause of the Fourteenth Amendment
undoubtedly does place a limit, albeit a broad one, on legislative power to
enact laws such as this. If the Texas statute were to prohibit an abortion even
where the mother's life is in jeopardy, I have little doubt that such a statute
would lack a rational relation to a valid state objective under the test stated
in Williamson, supra. But the Court's sweeping invalidation of any restrictions
on abortion during the first trimester is impossible to justify under that
standard, and the conscious weighing of competing factors that the Court's
opinion apparently substitutes for the established test is far more appropriate
to a legislative judgment than to a judicial one.
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. [410 U.S. 113, 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, the first state law dealing
directly with abortion was enacted by the Connecticut Legislature. Conn. Stat.,
Tit. 22, 14, 16. By the time of the adoption of the Fourteenth [410 U.S. 113, 175] Amendment
in 1868, there were at least 36 laws enacted by state or territorial legislatures
limiting abortion. 1 While
many States have amended or updated [410
U.S. 113, 176] their laws, 21 of the laws on the books in 1868
remain in effect today. 2 Indeed,
the Texas statute struck down today was, as the majority notes, first enacted
in 1857 [410 U.S. 113, 177]
and "has remained substantially unchanged to the present
time." Ante, at 119.
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.
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 [410
U.S. 113, 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.
[ Footnote 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). [410 U.S. 113, 176] 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).
[ Footnote 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). [410
U.S. 113, 177] 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). [410 U.S. 113, 179]