(Cite as: 410 U.S. 113, 93 S.Ct. 705)
Jane ROE,
et al., Appellants,
v.
Henry WADE.
No. 70‑18.
Supreme
Court of the United States
Argued Dec.
13, 1971.
Reargued
Oct. 11, 1972.
Decided
Jan. 22, 1973.
Rehearing
Denied Feb. 26, 1973.
See 410
U.S. 959, 93 S.Ct. 1409.
Action was
brought for a declaratory and injunctive relief respecting Texas criminal
abortion laws which were claimed to be unconstitutional. A three‑judge
United States District Court for the Northern District of Texas, 314 F.Supp.
1217, entered judgment declaring laws unconstitutional and an appeal was taken.
The Supreme Court, Mr. Justice Blackmun, held that the Texas criminal abortion
statutes prohibiting abortions at any stage of pregnancy except to save the
life of the mother are unconstitutional; that 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, subsequent to
approximately the end of the first trimester the state may regulate abortion
procedure in ways reasonably related to maternal health, and at the stage
subsequent to viability the state may regulate and even proscribe abortion
except where necessary in appropriate medical judgment for preservation of life
or health of mother.
Affirmed
in part and reversed in part.
Mr. Chief
Justice Burger, Mr. Justice Douglas and Mr. Justice Stewart filed concurring
opinions. See 93 S.Ct. 755 & 756.
Mr.
Justice White filed a dissenting opinion in which Mr. Justice Rehnquist joined.
See 93 S.Ct. 762.
Mr.
Justice Rehnquist filed a dissenting opinion.
[1] FEDERAL COURTS k477
170Bk477
Formerly 106k385(7)
Supreme Court was not foreclosed from review of
both the injunctive and declaratory aspects of case attacking constitutionality
of Texas criminal abortion statutes where case was properly before Supreme
Court on direct appeal from decision of three‑judge district court
specifically denying injunctive relief and the arguments as to both aspects
were necessarily identical. 28 U.S.C.A. § 1253.
[2] CONSTITUTIONAL LAW k42.1(3)
92k42.1(3)
With respect to single, pregnant female who
alleged that she was unable to obtain a legal abortion in Texas, when viewed as
of the time of filing of case and for several months thereafter, she had
standing to challenge constitutionality of Texas criminal abortion laws, even
though record did not disclose that she was pregnant at time of district court
hearing or when the opinion and judgment were filed, and she presented a
justiciable controversy; the termination of her pregnancy did not render case
moot. Vernon's Ann.Tex.P.C. arts. 1191‑1194, 1196.
[2] CONSTITUTIONAL LAW k46(1)
92k46(1)
With respect to single, pregnant female who
alleged that she was unable to obtain a legal abortion in Texas, when viewed as
of the time of filing of case and for several months thereafter, she had
standing to challenge constitutionality of Texas criminal abortion laws, even
though record did not disclose that she was pregnant at time of district court
hearing or when the opinion and judgment were filed, and she presented a
justiciable controversy; the termination of her pregnancy did not render case
moot. Vernon's Ann.Tex.P.C. arts. 1191‑1194, 1196.
[3] FEDERAL COURTS k452
170Bk452
Formerly 106k383(1)
Usual rule in federal cases is that an actual
controversy must exist at stages of appellate or certiorari review and not
simply at date action is initiated.
[3] FEDERAL COURTS k478
170Bk478
Formerly 106k385(1)
Usual rule in federal cases is that an actual
controversy must exist at stages of appellate or certiorari review and not
simply at date action is initiated.
[4] ACTION k6
13k6
Where pregnancy of plaintiff was a significant
fact in litigation and the normal human gestation period was so short that
pregnancy would come to term before usual appellate process was complete and
pregnancy often came more than once to the same woman, fact of that pregnancy
provided a classic justification for conclusion of nonmootness because of
termination.
[5] FEDERAL CIVIL PROCEDURE k331
170Ak331
Texas physician, against whom there were pending
indictments charging him with violations of Texas abortion laws who made no
allegation of any substantial and immediate threat to any federally protected
right that could not be asserted in his defense against state prosecutions and
who had not alleged any harassment or bad faith prosecution, did not have
standing to intervene in suit seeking declaratory and injunctive relief with
respect to Texas abortion statutes which were claimed to be unconstitutional. Vernon's
Ann.Tex.P.C. arts. 1191‑1194, 1196.
[6] COURTS k508(7)
106k508(7)
Absent harassment and bad faith, defendant in
pending state criminal case cannot affirmatively challenge in federal court the
statutes under which state is prosecuting him.
[7] FEDERAL CIVIL PROCEDURE k321
170Ak321
Application for leave to intervene making certain
assertions relating to a class of people was insufficient to establish party's
desire to intervene on behalf of class, where the complaint failed to set forth
the essentials of class suit.
[8] CONSTITUTIONAL LAW k42.1(3)
92k42.1(3)
Childless married couple alleging that they had no
desire to have children at the particular time because of medical advice that
the wife should avoid pregnancy and for other highly personal reasons and
asserting an inability to obtain a legal abortion in Texas were not, because of
the highly speculative character of their position, appropriate plaintiffs in
federal district court suit challenging validity of Texas criminal abortion
statutes. Vernon's Ann.Tex.P.C. arts. 1191‑1194, 1196.
[9] CONSTITUTIONAL LAW k82(7)
92k82(7)
Formerly 92k82
Right of personal privacy or a guarantee of
certain areas or zones of privacy does exist under Constitution, and only
personal rights that can be deemed fundamental or implicit in the concept of
ordered liberty are included in this guarantee of personal privacy; the right
has some extension to activities relating to marriage. U.S.C.A.Const. Amends.
1, 4, 5, 9, 14, 14, § 1.
[10] CONSTITUTIONAL LAW k82(10)
92k82(10)
Formerly 92k82
Constitutional right of privacy is broad enough to
encompass woman's decision whether or not to terminate her pregnancy, but the
woman's right to terminate pregnancy is not absolute since state may properly
assert important interests in safeguarding health, in maintaining medical
standards and in protecting potential life, and at some point in pregnancy
these respective interests become sufficiently compelling to sustain regulation
of factors that govern the abortion decision. U.S.C.A.Const. Amends. 9, 14.
[11] CONSTITUTIONAL LAW k82(1)
92k82(1)
Formerly 92k82
Where certain fundamental rights are involved,
regulation limiting these rights may be justified only by a compelling state
interest and the legislative enactments must be narrowly drawn to express only
legitimate state interests at stake.
[12] CONSTITUTIONAL LAW k210(1)
92k210(1)
Formerly 92k210
Word "person" as used in the Fourteenth
Amendment does not include the unborn. U.S.C.A.Const. Amend. 14.
See publication Words and Phrases for other
judicial constructions and definitions.
[12] CONSTITUTIONAL LAW k252
92k252
Word "person" as used in the Fourteenth
Amendment does not include the unborn. U.S.C.A.Const. Amend. 14.
See publication Words and Phrases for other
judicial constructions and definitions.
[13] ABORTION AND BIRTH CONTROL k0.5
4k0.5
Formerly 4k0.50, 4k1
Prior to approximately the end of the first
trimester of pregnancy the attending physician in consultation with his patient
is free to determine, without regulation by state, that in his medical judgment
the patient's pregnancy should be terminated, and if that decision is reached
such judgment may be effectuated by an abortion without interference by the
state.
[14] ABORTION AND BIRTH CONTROL k0.5
4k0.5
Formerly 4k0.50, 4k1
From and after approximately the end of the first
trimester of pregnancy a state may regulate abortion procedure to extent that
the regulation reasonably relates to preservation and protection of maternal
health.
[15] ABORTION AND BIRTH CONTROL k0.5
4k0.5
Formerly 4k0.50, 4k1
If state is interested in protecting fetal life
after viability it may go so far as to proscribe abortion during that period
except when necessary to preserve the life or the health of the mother.
[16] ABORTION AND BIRTH CONTROL k1.30
4k1.30
Formerly 4k1
State criminal abortion laws like Texas statutes
making it a crime to procure or attempt an abortion except an abortion on
medical advice for purpose of saving life of the mother regardless of stage of
pregnancy violate due process clause of Fourteenth Amendment protecting right
to privacy against state action. U.S.C.A.Const. Amend. 14; Vernon's
Ann.Tex.P.C. arts. 1191‑1194, 1196.
[16] CONSTITUTIONAL LAW k258(3.1)
92k258(3.1)
Formerly 92k258(3)
State criminal abortion laws like Texas statutes
making it a crime to procure or attempt an abortion except an abortion on
medical advice for purpose of saving life of the mother regardless of stage of
pregnancy violate due process clause of Fourteenth Amendment protecting right
to privacy against state action. U.S.C.A.Const. Amend. 14; Vernon's
Ann.Tex.P.C. arts. 1191‑1194, 1196.
[17] ABORTION AND BIRTH CONTROL k0.5
4k0.5
Formerly 4k0.50, 4k1
State in regulating abortion procedures may define
"physician" as a physician currently licensed by State and may
proscribe any abortion by a person who is not a physician as so defined.
[18] STATUTES k64(6)
361k64(6)
Conclusion that Texas criminal abortion statute
proscribing all abortions except to save life of mother is unconstitutional
meant that the abortion statutes as a unit must fall, and the exception could
not be struck down separately for then the state would be left with statute
proscribing all abortion procedures no matter how medically urgent the case. Vernon's
Ann.Tex.P.C. arts. 1191‑1194, 1196.
**707 *113
Syllabus [FN*]
FN* The syllabus constitutes no part of the
opinion of the Court but has been prepared by the Reporter of Decisions for the
convenience of the reader. See United States v. Detroit Timber & Lumber
Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
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. s 1253 authorizes no direct appeal to this Court from the grant or
denial of declaratory relief alone, review is not foreclose 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. Pp. 711‑712.
2. Roe has
standing to sue; the Does and Hallford do not. Pp. 712‑715.
(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 *114 must exist at review stages and not simply when the
action is initiated. Pp. 712‑713.
(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, 91 S.Ct. 764, 27 L.Ed.2d 688. Pp. 713‑714.
**708 (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.
714‑715.
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. 726‑732.
(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. 731‑732.
(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. 731‑732.
(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. 732‑733.
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. Pp. 732‑733.
5. It is
unnecessary to decide the injunctive relief issue since the Texas authorities
will doubtless fully recognize the Court's ruling *115 that the Texas criminal
abortion statutes are unconstitutional. P. 733.
314
F.Supp. 1217, affirmed in part and reversed in part.
Sarah R.
Weddington, Austin, Tex., for appellants.
Robert C.
Flowers, Asst. Atty. Gen. of Texas, Austin, Tex., for appellee on reargument.
Jay Floyd,
Asst. Atty. Gen., Austin, Tex., for appellee on original argument.
*116 Mr.
Justice BLACKMUN delivered the opinion of the Court.
This Texas
federal appeal and its Georgia companion, Doe v. Bolton, 410 U.S. 179, 93 S.Ct.
739, 35 L.Ed.2d 201, present constitutional challenges to state criminal
abortion legislation. The Texas statutes under attack here are typical of those
that have been in effect in many States for approximately a century. The
Georgia statutes, in contrast, have a modern cast and are a legislative product
that, to an extent at least, obviously reflects the influences of recent
attitudinal change, of advancing medical knowledge and techniques, and of new
thinking about an old issue.
We
forthwith acknowledge our awareness of the sensitive and emotional nature of
the abortion controversy, of the vigorous opposing views, even among
physicians, and of the deep and seemingly absolute convictions that the subject
inspires. One's philosophy, one's experiences, one's exposure to the raw edges
of human existence, one's religious training, one's attitudes toward life and
family and their values, and the moral standards one establishes and seeks to
observe, are all likely to influence and to color one's thinking and
conclusions about abortion.
In
addition, population growth, pollution, poverty, and racial overtones tend
**709 to complicate and not to simplify the problem.
Our task,
of course, is to resolve the issue by constitutional measurement, free of
emotion and of predilection. We seek earnestly to do this, and, because we do,
we *117 have inquired into, and in this opinion place some emphasis upon,
medical and medical‑legal history and what that history reveals about
man's attitudes toward the abortion procedure over the centuries. We bear in
mind, too, Mr. Justice Holmes' admonition in his now‑vindicated dissent
in Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 547, 49 L.Ed. 937
(1905):
'(The Constitution) is made for people of
fundamentally differing views, and the accident of our finding certain opinions
natural and familiar, or novel, and even shocking, ought not to conclude our
judgment upon the question whether statutes embodying them conflict with the
Constitution of the United States.'
I
The Texas
statutes that concern us here are Arts. 1191‑1194 and 1196 of the State's
Penal Code, [FN1] Vernon's Ann.P.C. These make it a crime to 'procure an
abortion,' as therein *118 defined, or to attempt one, except with respect to
'an abortion procured or attempted by medical advice for the purpose of saving
the life of the mother.' Similar statutes are in existence in a majority of the
States. [FN2]
FN1. 'Article 1191. Abortion
'If any person shall designedly administer to a
pregnant woman or knowingly procure to be administered with her consent any drug
or medicine, or shall use towards her any violence or means whatever externally
or internally applied, and thereby procure an abortion, he shall be confined in
the penitentiary not less than two nor more than five years; if it be done
without her consent, the punishment shall be doubled. By 'abortion' is meant
that the life of the fetus or embryo shall be destroyed in the woman's womb or
that a premature birth thereof be caused.
'Art. 1192. Furnishing the means
'Whoever furnishes the means for procuring an
abortion knowing the purpose intended is guilty as an accomplice.
'Art. 1193. Attempt at abortion
'If the means used shall fail to produce an
abortion, the offender is nevertheless guilty of an attempt to produce
abortion, provided it be shown that such means were calculated to produce that
result, and shall be fined not less than one hundred nor more than one thousand
dollars.
'Art. 1194. Murder in producing abortion 'If the death of the mother is
occasioned by an abortion so produced or by an attempt to effect the same it is
murder.'
'Art. 1196. By medical advice
'Nothing in this chapter applies to an abortion
procured or attempted by medical advice for the purpose of saving the life of
the mother.'
The foregoing Articles, together with Art. 1195,
compose Chapter 9 of Title 15 of the Penal Code. Article 1195, not attacked
here, reads:
'Art. 1195. Destroying unborn child
'Whoever shall during parturition of the mother
destroy the vitality or life in a child in a state of being born and before
actual birth, which child would otherwise have been born alive, shall be
confined in the penitentiary for life or for not less than five years.'
FN2. Ariz.Rev.Stat.Ann. s 13‑211 (1956);
Conn.Pub.Act No. 1 (May 1972 special session) (in 4 Conn.Leg.Serv. 677 (1972)),
and Conn.Gen.Stat.Rev. ss 53‑29, 53‑30 (1968) (or unborn child);
Idaho Code s 18‑601 (1948); Ill.Rev.Stat., c. 38, s 21‑1 (1971);
Ind.Code s 35‑1‑58‑1 (1971); Iowa Code s 701.1 (1971);
Ky.Rev.Stat. s 436.020 (1962); LaRev.Stat. s 37:1285(6) (1964) (loss of medical
license) (but see s 14‑ 87 (Supp.1972) containing no exception for the
life of the mother under the criminal statute); Me.Rev.Stat.Ann., Tit. 17, s 51
(1964); Mass.Gen.Laws Ann., c. 272, s
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 s 750.14 (1948); Minn.Stat. s 617.18 (1971);
Mo.Rev.Stat. s 559.100 (1969); Mont.Rev.Codes Ann. s 94‑401 (1969);
Neb.Rev.Stat. s 28‑405 (1964); Nev.Rev.Stat. s 200.220 (1967);
N.H.Rev.Stat.Ann. s 585:13 (1955); N.J.Stat.Ann. s 2A:87‑1 (1969) (
'without lawful justification'); N.D.Cent.Code ss 12‑25‑01, 12‑25‑02
(1960); Ohio Rev.Code Ann. s 2901.16 (1953); Okla.Stat.Ann., Tit. 21, s 861
(1972‑1973 Supp.); Pa.Stat.Ann., Tit. 18, ss 4718, 4719 (1963)
('unlawful'); R.I.Gen.Laws Ann. s 11‑3‑1 (1969); S.D.Comp.Laws Ann.
s 22‑17‑1 (1967); Tenn.Code Ann. ss 39‑301, 39‑302
(1956); Utah Code Ann. ss 76‑2‑1, 76‑2‑2 (1953);
Vt.Stat.Ann., Tit. 13, s 101 (1958); W.Va.Code Ann. s 61‑2‑8
(1966); Wis.Stat. s 940.04 (1969); Wyo.Stat.Ann. ss 6‑77, 6‑78
(1957).
**710 *119
Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c.
49, s 1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon
modified into language that has remained substantially unchanged to the present
time. See Texas Penal Code of 1857, c. 7, Arts. 531‑536; G. Paschal, Laws
of Texas, Arts. 2192‑2197 (1866); Texas Rev.Stat., c. 8, Arts. 536‑541
(1879); Texas Rev.Crim.Stat., Arts. 1071‑1076 (1911). The final article
in each of these compilations provided the same exception, as does the present
Article 1196, for an abortion by 'medical advice for the purpose of saving the
life of the mother.' [FN3]
FN3. Long ago, a suggestion was made that the
Texas statutes were unconstitutionally vague because of definitional
deficiencies. The Texas Court of Criminal Appeals disposed of that suggestion
peremptorily, saying only,
'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 with
counsel 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, 493 S.W.2d 913 (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 Act. 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. 11196 'is more definite that the
District of Columbia statute upheld in (United States v.) Vuitch' (402 U.S. 62,
91 S.Ct. 1294, 28 L.Ed.2d 601); and that the Texas statute 'is not vague and
indefinite or overbroad.' A physician's abortion conviction was affirmed.
In 493 S.W.2d, at 920 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,
91 S.Ct. 1294, 1298‑1299, 28 L.Ed.2d 601 (1971).
*120 II
Jane Roe,
[FN4] a single woman who was residing in Dallas County, Texas, instituted this
federal action in March 1970 against the District Attorney of the county. She
sought a declaratory judgment that the Texas criminal abortion statutes were
unconstitutional on their face, and an injunction restraining the defendant
from enforcing the statutes.
FN4. The name is a pseudonym.
Roe
alleged that she was unmarried and pregnant; that she wished to terminate her
pregnancy by an abortion 'performed by a competent, licensed physician, under
safe, clinical conditions'; that she was unable to get a 'legal' abortion in
Texas because her life did not appear to be threatened by the continuation of
her pregnancy; and that she could not afford to travel to another jurisdiction
in order to secure a legal abortion under safe conditions. She claimed that the
Texas statutes were unconstitutionally vague and that they abridged her right
of personal privacy, protected by the First, Fourth, Fifth, Ninth, and
Fourteenth Amendments. By an amendment to her complaint Roe purported to sue
'on behalf of herself and all other women' similarly situated.
James
Hubert Hallford, a licensed physician, sought and was granted leave to
intervene in Roe's action. In his complaint he alleged that he had been
arrested previously for violations of the Texas abortion statutes and *121 that
two such prosecutions were pending against him. He described conditions of
patients who came to him seeking abortions, and he claimed that for many cases
he, as a physician, was unable to determine **711 whether they fell within or
outside the exception recognized by Article 1196. He alleged that, as a
consequence, the statutes were vague and uncertain, in violation of the
Fourteenth Amendment, and that they violated his own and his patients' rights
to privacy in the doctor‑patient relationship and his own right to
practice medicine, rights he claimed were guaranteed by the First, Fourth,
Fifth, Ninth, and Fourteenth Amendments.
John and
Mary Doe, [FN5] a married couple, filed a companion complaint to that of Roe.
They also named the District Attorney as defendant, claimed like constitutional
deprivations, and sought declaratory and injunctive relief. The Does alleged
that they were a childless couple; that Mrs. Doe was suffering from a 'neural‑chemical'
disorder; that her physician had 'advised her to avoid pregnancy until such
time as her condition has materially improved' (although a pregnancy at the
present time would not present 'a serious risk' to her life); that, pursuant to
medical advice, she had discontinued use of birth control pills; and that if
she should become pregnant, she would want to terminate the pregnancy by an
abortion performed by a competent, licensed physician under safe, clinical
conditions. By an amendment to their complaint, the Does purported to sue 'on
behalf of themselves and all couples similarly situated.'
FN5. These names are pseudonyms.
The two
actions were consolidated and heard together by a duly convened three‑
judge district court. The suits thus presented the situations of the pregnant
single woman, the childless couple, with the wife not pregnant, *122 and the
licensed practicing physician, all joining in the attack on the Texas criminal
abortion statutes. Upon the filing of affidavits, motionswere 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 where 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
(N.D.Tex.1970).
The
plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C. s
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, 91 S.Ct.
1610, 29 L.Ed. 108 (1971).
*123 III
[1] It
might have been preferable if the defendant, pursuant to our Rule 20, had
presented to us a petition for certiorari before judgment in the Court of
Appeals with respect to the granting of the plaintiffs' prayer for declaratory
relief. Our decisions in Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26
L.Ed.2d 378 (1970), and Gunn v. University **712 Committee, 399 U.S. 383, 90
S.Ct. 2013, 26 L.Ed.2d 684 (1970), are to the effect that s 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 property here, as this one is, on appeal under s 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, 90 S.Ct. 518,
24 L.Ed.2d 549 (1970); Florida Lime and Avocado Growers, Inc. v. Jacobsen, 362
U.S. 73; 80‑81, 80 S.Ct. 568, 573‑574, 4 L.Ed.2d 568 (1960). It would
be destructive of time and energy for all concerned were we to rule otherwise.
Cf. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201.
IV
We are
next confronted with issues of justiciability, standing, and abstention. Have
Roe and the Does established that 'personal stake in the outcome of the
controversy,' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d
663 (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, 88 S.Ct. 1942, 1953,
20 L.Ed.2d 947 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct.
1361, 1364, 31 L.Ed.2d 636 (1972)? And what effect did the pendency of criminal
abortion charges against Dr. Hallford in state court have upon the propriety of
the federal court's granting relief to him as a plaintiff‑intervenor?
*124 [2]
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, 8380‑839 (CA6 1971); Poe v. Menghini, 339
F.Supp. 986, 990‑991 (D.C.Kan. 1972). See Truax v. Raich, 239 U.S. 33, 36
S.Ct. 7, 60 L.Ed. 131 (1951). 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, 88 S.Ct., at 1953, and the necessary degree of contentiousness,
Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (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, [FN6] or on
the following June 17 when the court's opinion and judgment were filed. And he
suggests that Roe's case must now be moot because she and all other members of
her class are no longer subject to any 1970 pregnancy.
FN6. The appellee twice states in his brief that
the hearing before the District Court was held on July 22, 1970. Brief for
Appellee 13. The docket entries, App. 2, and the transcript, App. 76, reveal
this to be an error. The July date appears to be the time of the reporter's
transcription. See App. 77.
*125 [3]
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, 71 S.Ct. 104, 95
**713 L.Ed. 36 (1950); Golden v. Zwickler, supra; SEC v. Medical Committee for
Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972).
[4] 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, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911).
See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1
(1969); Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175,
178‑179, 89 S.Ct. 347, 350, 351, 21 L.Ed.2d 325 (1968); United States v.
W. T. Grant Co., 345 U.S. 629, 632‑633, 73 S.Ct. 894, 897‑898, 97
L.Ed. 1303 (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.
[5] 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. *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.
[6] 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, 91
S.Ct. 764, 27 L.Ed.2d 688 (1971), compels the conclusion that the District
Court erred when it granted declaratory relief to Dr. Hallford instead of
refraining from so doing. The court, of course, was correct in refusing to
grant injunctive relief to the doctor. The reasons supportive of that action,
however, are those expressed in Samuels v. Mackell, supra, and in Younger v.
*127 Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Boyle v. Landry,
401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Perez v. Ledesma, **714 401
U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); and Byrne v. Karalexis, 401 U.S.
216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971). See also Dombrowski v. Pfister, 380
U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). We note, in passing, that
Younger and its companion cases were decided after the three‑judge
District Court decision in this case.
[7] Dr.
Hallford's complaint in intervention, therefore, is to be dismissed. [FN7] He
is remitted to his defenses in the state criminalproceedings 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.
FN7. We need not consider what different result,
if any, would follow if Dr. Hallford's intervention were on behalf of a class.
His complaint in intervention does not purport to assert a class suit and makes
no reference to any class apart from an allegation that he 'and others
similarly situated' must necessarily guess at the meaning of Art. 1196. His
application for leave to intervene goes somewhat further, for it asserts that
plaintiff Roe does not adequately protect the interest of the doctor 'and the
class of people who are physicians . . . (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.
[8] C. The
Does. In view of our ruling as to Roe's standing in her case, the issue of the
Does' standing in their case has little significance. The claims they assert
are essentially the same as those of Roe, and they attack the same statutes.
Nevertheless, we briefly note the Does' posture.
Their
pleadings present them as a childless married couple, the woman not being
pregnant, who have no desire to have children at this time because of their
having received medical advice that Mrs. Doe should avoid pregnancy, and for
'other highly personal reasons.' But they 'fear . . . they may face the
prospect of becoming *128 parents.' And if pregnancy ensues, they 'would want
to terminate' it by an abortion. They assert an inability to obtain an abortion
legally in Texas and, consequently, the prospect of obtaining an illegal
abortion there or of going outside Texas to some place where the procedure
could be obtained legally and competently.
We thus
have as plaintiffs a married couple who have, as their asserted immediate and
present injury, only an alleged 'detrimental effect upon (their) marital
happiness' because they are forced to 'the choice of refraining from normal
sexual relations or of endangering Mary Doe's health through a possible
pregnancy.' Their claim is that sometime in the future Mrs. Doe might become
pregnant because of possible failure of contraceptive measures, and at that
time in the future she might want an abortion that might then be illegal under
the Texas statutes.
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, 91 S.Ct., at 749; Golden v.
Zwickler, 394 U.S., at 109‑110, 89 S.Ct., at 960; 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, 91 S.Ct.
1091, 28 L.Ed.2d 367 (1971); Association of Data Processing Service
Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, **715 25 L.Ed.2d 184
(1970); *129 and Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d
228 (1968). See also Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131
(1915).
The Does
therefore are not appropriate plaintiffs in this litigation. Their complaint
was properly dismissed by the District Court, and we affirm that dismissal.
V
The
principal thrust of appellant's attack on the Texas statutes is that they
improperly invade a right, said to be possessed by the pregnant woman, to
choose to terminate her pregnancy. Appellant would discover this right in the
concept of personal 'liberty' embodied in the Fourteenth Amendment's Due
Process Clause; or in personal marital, familial, and sexual privacy said to be
protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut,
381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405
U.S. 438 (1972); id., at 460, 92 S.Ct. 1029, at 1042, 31 L.Ed.2d 349 (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, 85 S.Ct., at 1682
(Goldberg, J., concurring). Before addressing this claim, we feel it desirable
briefly to survey, in several aspects, the history of abortion, for such
insight as that history may afford us, and then to examine the state purposes
and interests behind the criminal abortion laws.
VI
It perhaps
is not generally appreciated that the restrictive criminal abortion laws in
effect in a majority of States today are of relatively recent vintage. Those
laws, generally proscribing abortion or its attempt at any time during
pregnancy except when necessary to preserve the pregnant woman's life, are not
of ancient or even of common‑law origin. Instead, they derive from
statutory changes effected, for the most part, in the latter half of the 19th
century.
*130 1.
Ancient attitudes. These are not capable of precise determination. We are told
that at the time of the Persian Empire abortifacients were known and that
criminal abortions were severely punished. [FN8] We are also told, however,
that abortion was practiced in Greek times as well as in the Roman Era, [FN9]
and that 'it was resorted to without scruple.' [FN10] The Ephesian, Soranos,
often described as the greatest of the ancient gynecologists, appears to have
been generally opposed to Rome's prevailing free‑abortion practices. He
found it necessary to think first of the life of the mother, and he resorted to
abortion when, upon this standard, he felt the procedure advisable. [FN11]
Greek and Roman law afforded little protection to the unborn. If abortion was
prosecuted in some places, it seems to have been based on a concept of a
violation of the father's right to his offspring. Ancient religion did not bar
abortion. [FN12]
FN8. A Castiglioni, A. History of Medicine 84 (2d
ed. 1947), E. Krumbhaar, translator and editor (hereinafter Castiglioni).
FN9. J. Ricci, The Genealogy of Gynaecology 52,
84, 113, 149 (2d ed. 1950) (hereinafter Ricci); L. Lader, Abortion 75‑77
(1966) (hereinafter Lader); K. Niswander, Medical Abortion Practices in the
United States, in Abortion and the Law 37, 38‑40 (D. Smith ed. 1967); G.
Williams, The Sanctity of Life
and the 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).
FN10. L. Edelstein, The Hippocratic Oath 10 (1943)
(hereinafter Edelstein). But see Castiglioni 227.
FN11. Edelstein 12; Ricci 113‑114, 118‑119;
Noonan 5.
FN12. Edelstein 13‑14.
2. The
Hippocratic Oath. What then of the famous Oath that has stood so **716 long as
the ethical guide of the medical profession and that bears the name of the
great Greek (460(?)‑377(?) B.C.), who has been described *131 as the
Father of Medicine, the 'wisest and the greatest practitioner of his art,' and
the 'most important and most complete medical personality of antiquity,' who
dominated the medical schools of his time, and who typified the sum of the
medical knowledge of the past? [FN13] The Oath varies somewhat according to the
particular translation, but in any translation the content is clear: 'I will
give no deadly medicine to anyone if asked, nor suggest any such counsel; and
in like manner I will not give to a woman a pessary to produce abortion,'
[FN14] or 'I will neither give a deadly drug to anybody if asked for it, nor
will I make a suggestion to this effect. Similarly, I will not give to a woman
an abortive remedy.' [FN15]
FN13. Castiglioni 148.
FN14. Id., at 154.
FN15. Edelstein 3.
Although
the Oath is not mentioned in any of the principal briefs in this case or in Doe
v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, it represents the apex
of the development of strict ethical concepts in medicine, and its influence
endures to this day. Why did not the authority of Hippocrates dissuade abortion
practice in his time and that of Rome? The late Dr. Edelstein provides us with
a theory: [FN16] The Oath was not uncontested even in Hippocrates' day; only
the Pythagorean school of philosophers frowned upon the related act of suicide.
Most Greek thinkers, on the other hand, commended abortion, at least prior to
viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For
the Pythagoreans, however, it was a matter of dogma. For them the embryo was
animate from the moment of conception, and abortion meant destruction of a
living being. The abortion clause of the Oath, therefore, 'echoes Pythagorean
doctrines,' *132 and '(i)n no other stratum of Greek opinion were such views
held or proposed in the same spirit of uncompromising austerity.' [FN17]
FN16. Id., at 12, 15‑18.
FN17. Id., at 18; Lader 76.
Dr.
Edelstein then concludes that the Oath originated in a group representing only
a small segment of Greek opinion and that it certainly was not accepted by all
ancient physicians. He points out that medical writings down to Galen (A.D. 130‑200)
'give evidence of the violation of almost every one of its injunctions.' [FN18]
But with the end of antiquity a decided change took place. Resistance against
suicide and against abortion became common. The Oath came to be popular. The
emerging teachings of Christianity were in agreement with the Phthagorean
ethic. The Oath 'became the nucleus of all medical ethics' and 'was applauded
as the embodiment of truth.' Thus, suggests Dr. Edelstein, it is 'a Pythagorean
manifesto and not the expression of an absolute standard of medical conduct.'
[FN19]
FN18. Edelstein 63.
FN19. Id., at 64.
This, it
seems to us, is a satisfactory and acceptable explanation of the Hippocratic
Oath's apparent rigidity. It enables us to understand, in historical context, a
long‑accepted and reversed 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 [FN20]‑was
not an indictable offense. [FN21] The absence *133 of a **717 common‑law
crime for pre‑quickening abortion appears to have developed from a
confluence of earlier philosophical, theological, and civil and canon law
concepts of when life begins. These disciplines variously approached the
question in terms of the point at which the embryo or fetus became 'formed' or
recognizably human, or in terms of when a 'person' came into being, that is,
infused with a 'soul' or 'animated.' A loose concensus evolved in early English
law that these events occurred at some point between conception and live birth.
[FN22] This was 'mediate animation.' Although *134 Christian theology and the
canon law came to fix the point of animation at 40 days for a male and 80 days
for a female, a view that persisted until the 19th century, there was otherwise
little agreement about the precise time of formation or animation. There was
agreement, however, that prior to this point the fetus was to be regarded as
part of the mother, and its destruction, therefore, was not homicide. Due to
continued uncertainty about the precise time when animation occurred, to the
lack of any empirical basis for the 40‑80‑day view, and perhaps to
Aquinas' definition of movement as one of the two first principles of life,
Bracton focused upon quickening as the critical point. The significance of
quickening was echoed by later common‑law scholars and found its way into
the received common law in this country.
FN20. Dorland's Illustrated Medical Dictionary
1261 (24th ed. 1965).
FN21. E. Coke, Institutes III *50; 1 W. Hawkins,
Pleas of the Crown, c. 31, s 16 (4th ed. 1762); 1 W. Blackstone, Commentaries
*129‑130; M. Hale, Pleas of the Crown 433 (1st Amer. ed. 1847). For
discussions of the role of the quickening concept in English common law, see
Lader 78; Noonan 223‑226; Means, The Law of New York Concerning Abortion
and the Status of the Foetus, 1664‑ 1968: A Case of Cessation of
Constitutionality (pt. 1), 14 N.Y.L.F. 411, 418‑428 (1968) (hereinafter
Means I); Stern, Abortion: Reform and
the Law, 59 J.Crim.L.C. & P.S. 84 (1968) (hereinafter Stern); Quay 430‑
432; Williams 152.
FN22. Early philosophers believed that the embryo
or fetus did not become formed and begin to live until at least 40 days after
conception for a male, and 80 to 90 days for a female. See, for example,
Aristotle, Hist.Anim. 7.3.583b; Gen.Anim. 2.3.736, 2.5.741; Hippocrates, Lib.
de Nat.Puer., No. 10. Aristotle's thinking derived from his three‑stage
theory of life: vegetable, animal, rational. The vegetable stage was reached at
conception, the animal at 'animation,' and the rational soon after live birth.
This theory, together with the 40/80 day view, came to be accepted by early
Christian thinkers.
The theological debate was reflected in the
writings of St. Augustine, who made a distinction between embryo inanimatus,
not yet endowed with a soul, and embryo animatus. He may have drawn upon Exodus
21:22. At one point, however, he expressed the view that human powers cannot
determine the point during fetal development at which the critical change
occurs. See Augustine, De Origine Animae 4.4 (Pub.Law 44.527). See also W.
Reany, The Creation of the Human Soul, c. 2 and 83‑86 (1932); Huser, The
Crime of Abortion in Canon Law 15 (Catholic Univ. of America, Canon Law Studies
No. 162, Washington, D.C., 1942). Galen,
in three treatises related to embryology, accepted the thinking of Aristotle
and his followers. Quay 426‑427. Later, Augustine on abortion was
incorporated by Gratian into the Decretum, published about 1140. Decretum
Magistri Gratiani 2.32.2.7 to 2.32.2.10, in 1 Corpus Juris Canonici 1122, 1123
(A. Friedberg, 2d ed. 1879). This Decretal and the Decretals that followed were
recognized as the definitive body of canon law until the new Code of 1917.
For discussions of the canon‑law treatment,
see Means I, pp. 411‑412; Noonan 20‑26; Quay 426‑430; see
also J. Noonan, Contraception: A History of Its Treatment by the Catholic
Theologians and Canonists 18‑29 (1965).
Whether
abortion of a quick fetus was a felony at common law, or even a lesser crime,
is still disputed. Bracton, writing early in the 13th century, thought it
homicide. [FN23] But the later and predominant **718 view, following the great
common‑law scholars, has been that it was, at most, a lesser offense. In
a frequently cited *135 passage, Coke took the position that abortion of a
woman 'quick with childe' is 'a great misprision, and no murder.' [FN24]
Blackstone followed, saying that while abortion after quickening had once been
considered manslaughter (though not murder), 'modern law' took a less severe
view. [FN25] A recent review of the common‑law precedents argues,
however, that those precedents contradict Coke and that even post‑quickening
abortion was never established as a common‑law crime. [FN26] This is of
some importance because while most American courts ruled, in holding or dictum,
that abortion of an unquickened fetus was not criminal under their received
common law, [FN27] others followed Coke in stating that abortion *136 of a
quick fetus was a 'misprision,' a term they translated to mean 'misdemeanor.'
[FN28] That their reliance on Coke on this aspect of the law was uncritical
and, apparently in all the reported cases, dictum (due probably to the paucity
of common‑law prosecutions for post‑quickening abortion), makes it
now appear doubtful that abortion was ever firmly established as a common‑law
crime even with respect to the destruction of a quick fetus.
FN23. Bracton took the position that abortion by
blow or poison was homicide 'if the foetus be already formed and animated, and
particularly if it be animated.' 2 H. Bracton, De Legibus et Consuetudinibus
Angliae 279 (T. Twiss ed. 1879), or, as a later translation puts it, 'if the
foetus is already formed or quickened, especially if it is quickened,' 2 H.
Bracton, On the Laws and Customs of England 341 (S. Thorne ed. 1968). See Quay
431; see also 2 Fleta 60‑61 (Book 1, c. 23) (Selden Society ed. 1955).
FN24. E. Coke, Institutes III *50.
FN25. 1 W. Blackstone, Commentaries *129‑130.
FN26. Means, The Phoenix of Abortional Freedom: Is
a Penumbral or Ninth‑ Amendment Right About to Arise from the Nineteenth‑Century
Legislative Ashes of a Fourteenth‑Century Common‑Law Liberty?, 17
N.Y.L.F. 335 (1971) (hereinafter Means II). The author examines the two
principal precedents cited marginally by Coke, both contrary to his dictum, and
traces the treatment of these and other cases by earlier commentators. He
concludes that Coke, who himself participated as an advocate in an abortion
case in 1601, may have intentionally misstated the law. The author even
suggests a reason: Coke's strong feelings against abortion, coupled with his
determination to assert common‑law (secular) jurisdiction to assess
penalties for an offense that traditionally had been an exclusively
ecclesiastical or canon‑law crime. See also Lader 78‑79, who notes
that some scholars doubt that the common law ever was applied to abortion; that
the English ecclesiastical courts seem to have lost interest in the problem
after 1527; and that the preamble to the English legislation of 1803, 43 Geo.
3, c. 58, s 1, referred to in the text, infra, at 718, states that 'no adequate
means have been hitherto provided for the prevention and punishment of such
offenses.'
FN27. Commonwealth v. Bangs, 9 Mass. 387, 388
(1812); Commonwealth v. Parker, 50 Mass. (9 Metc.) 263, 265‑266 (1845);
State v. Cooper, 22 N.J.L. 52, 58 (1849); Abrams v. Foshee, 3 Iowa 274, 278‑280
(1856); Smith v. Gaffard, 31 Ala. 45, 51 (1857); Mitchell v. Commonwealth, 78
Ky. 204, 210 (1879); Eggart v. State, 40 Fla. 527, 532, 25 So. 144, 145 (1898);
State v. Alcorn, 7 Idaho 599, 606, 64 P. 1014, 1016 (1901); Edwards v. State,
79 Neb. 251, 252, 112 N.W. 611, 612 (1907); Gray v. State, 77 Tex.Cr.R. 221,
224, 178 S.W. 337, 338 (1915); Miller v. Bennett, 190 Va. 162, 169, 56 S.E.2d
217, 221 (1949). Contra, Mills v. Commonwealth, 13 Pa. 631, 633 (1850); State
v. Slagle, 83 N.C. 630, 632 (1880).
FN28. See Smith v. State, 33 Me. 48, 55 (1851);
Evans v. People, 49 N.Y. 86, 88 (1872); Lamb v. State, 67 Md. 524, 533, 10 A.
208 (1887).
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, s 1, a capital crime, but in s 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, s 13. It disappeared, however, together with the death penalty,
in 1837, 7 Will. 4 & 1 Vict., c. 85, s 6, and did not reappear in the
Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, s 59, that
formed the core of English anti‑abortion law until the liberalizing
reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo.
5, c. 34, came into being. Its emphasis was upon the destruction of 'the life
of **719 a child capable of being born alive.' It made a willful act performed
with the necessary intent a felony. It contained a proviso that one was not to
be *137 found guilty of the offense 'unless it is proved that the act which
caused the death of the child was not done in good faith for the purpose only
of preserving the life of the mother.'
A
seemingly notable development in the English law was the case of Rex v. Bourne,
(1939) 1 K.B. 687. This case apparently answered in the affirmative the
question whether an abortion necessary to preserve the life of the pregnant
woman was excepted from the criminal penalties of the 1861 Act. In his
instructions to the jury, Judge MacNaghten referred to the 1929 Act, and
observed that that Act related to 'the case where a child is killed by a
willful act at the time when it is being delivered in the ordinary course of
nature.' Id., at 691. He concluded that the 1861 Act's use of the word
'unlawfully,' imported the same meaning expressed by the specific proviso in
the 1929 Act, even though there was no mention of preserving the mother's life
in the 1861 Act. He then construed the phrase 'preserving the life of the
mother' broadly, that is, 'in a reasonable sense,' to include a serious and
permanent threat to the mother's health, and instructed the jury to acquit Dr.
Bourne if it found he had acted in a good‑faith belief that the abortion
was necessary for this purpose. Id., at 693‑694. The jury did acquit.
Recently,
Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15
& 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an
abortion where two other licensed physicians agree (a) 'that the continuance of
the pregnancy would involve risk to the life of the pregnant woman, or of
injury to the physical or mental health of the pregnant woman or any existing
children of her family, greater than if the pregnancy were terminated,' or (b)
'that there is a substantial risk that if the child were born it would suffer
from such physical or mental abnormalities as *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.' [FN29] The death penalty was not imposed. Abortion before quickening
was made a crime in that State only in 1860. [FN30] In 1828, New York enacted
legislation [FN31] that, in two respects, was to serve as a model for early
anti‑abortion statutes. First, while barring destruction of an unquickend
fetus as well as a quick fetus, it made the former only a misdemeanor, but the
latter second‑degree manslaughter. Second, it incorporated a concept of
therapeutic abortion by providing that an abortion was excused if it 'shall
have been necessary to preserve the life of such mother, or shall have been
advised by two physicians to be necessary for such purpose.' By 1840, when
Texas had received the common law, [FN32] only eight American States *139 had
**720 statutes dealing with abortion. [FN33] It was not until after the War
Between the States that legislation began generally to replace the common law.
Most of these initial statutes dealt severely with abortion after quickening
but were lenient with it before quickening. Most punished attempts equally with
completed abortions. While many statutes included the exception for an abortion
thought by one or more physicians to be necessary to save the mother's life,
that provision soon disappeared and the typical law required that the procedure
actually be necessary for that purpose.
FN29. Conn.Stat., Tit. 20, s 14 (1821).
FN30. Conn.Pub.Acts, c. 71, s 1 (1860).
FN31. N.Y.Rev.Stat., pt. 4, c. 1, Tit. 2, Art. 1,
s 9, p. 661, and Tit. 6, s 21, p. 694 (1829).
FN32. Act of Jan. 20, 1840, s 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).
FN33. The early statutes are discussed in Quay 435‑438.
See also Lader 85‑ 88; Stern 85‑86; and Means II 375‑376.
Gradually,
in the middle and late 19th century the quickening distinction disappeared from
the statutory law of most States and the degree of the offense and the
penalties were increased. By the end of the 1950's a large majority of the
jurisdictions banned abortion, however and whenever performed, unless done to
save or preserve the life of the mother. [FN34] The exceptions, Alabama and the
District of Columbia, permitted abortion to preserve the mother's health.
[FN35] Three States permitted abortions that were not 'unlawfully' performed or
that were not 'without lawful justification,' leaving interpretation of those
standards to the courts. [FN36] In *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, s 230.3, [FN37] set forth as Appendix
B to the opinion in Doe v. Bolton, 410 U.S. 205, 93 S.Ct. 754.
FN34. Criminal abortion statutes in effect in the
States as of 1961, together with historical statutory development and important
judicial interpretations of the state statutes, are cited and quoted in Quay
447‑ 520. See Comment, A Survey of the Present Statutory and Case Law on
Abortion: The Contradictions and the Problems, 1972 U.Ill.L.F. 177, 179,
classifying the abortion statutes and listing 25 States as permitting abortion
only if necessary to save or preserve the mother's life.
FN35. Ala.Code, Tit. 14, s 9 (1958); D.C.Code Ann.
s 22‑201 (1967).
FN36. Mass.Gen.Laws Ann., c. 272, s 19 (1970);
N.J.Stat.Ann. s 2A:87‑1 (1969); Pa.Stat.Ann., Tit. 18, ss 4718, 4719
(1963).
FN37. Fourteen States have adopted some form of
the ALI statute. See Ark.Stat.Ann. ss 41‑303 to 41‑310 (Supp.1971);
Calif. Health & Safety Code ss
25950‑25955.5 (Supp.1972); Colo.Rev.Stat.Ann. ss 40‑2‑50 to
40‑2‑53 (Cum.Supp.1967); Del.Code Ann., Tit. 24, ss 1790‑1793
(Supp.1972); Florida Law of Apr. 13, 1972, c. 72‑196, 1972 Fla.Sess.Law
Serv., pp. 380‑382; Ga.Code ss 26‑1201 to 26‑1203 (1972);
Kan.Stat.Ann. s 21‑3407 (Supp.1971); Md.Ann.Code, Art. 43, ss 137‑
139 (1971); Miss.Code Ann. s 2223 (Supp.1972); N.M.Stat.Ann. ss 40A‑ 5‑1
to 40A‑5‑3 (1972); N.C.Gen.Stat. s 14‑45.1 (Supp.1971);
Ore.Rev.Stat. ss 435.405 to 435.495 (1971); S.C.Code Ann. ss 16‑82 to 16‑89
(1962 and Supp.1971); Va.Code Ann. ss 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. s
11.15.060 (1970); Haw.Rev.Stat. s 453‑16 (Supp.1971); N.Y.Penal Code s
125.05, subd. 3 (Supp.1972‑1973); Wash.Rev.Code ss 9.02.060 to 9.02.080
(Supp.1972). The precise status of criminal abortion laws in some States is
made unclear by recent decisions in state and federal courts striking down
existing state laws, in whole or in part.
It is thus
apparent that at common law, at the time of the adoption of our Constitution,
and throughout the major portion of the 19th century, abortion was viewed with
less disfavor than under most American statutes currently in effect. Phrasing
it another way, a woman enjoyed a substantially broader right to terminate a
pregnancy than she does in most States today. At least with respect to the
early stage of pregnancy, **721 and very possibly without such a limitation,
the opportunity *141 to make this choice was present in this country well into
the 19th century. Even later, the law continued for some time to treat less
punitively an abortion procured in early pregnancy.
6. The
position of the American Medical Association. The anti‑abortion mood
prevalent in this country in the late 19th century was shared by the medical
profession. Indeed, the attitude of the profession may have played a
significant role in the enactment of stringent criminal abortion legislation
during that period.
An AMA
Committee on Criminal Abortion was appointed in May 1857. It presented its
report, 12 Trans. of the Am.Med.Assn. 73‑78 (1859), to the Twelfth Annual
Meeting. That report observed that the Committee had been appointed to
investigate criminal abortion 'with a view to its general suppression.' It
deplored abortion and its frequency and it listed three causes of 'this general
demoralization':
'The first of these causes is a wide‑spread
popular ignorance of the true character of the crime‑a belief, even among
mothers themselves, that the foetus is not alive till after the period of
quickening.
'The second of the agents alluded to is the fact
that the profession themselves are frequently supposed careless of foetal life.
. . .
'The third reason of the frightful extent of this
crime is found in the grave defects of our laws, both common and statute, as
regards the independent and actual existence of the child before birth, as a
living being. These errors, which are sufficient in most instances to prevent
conviction, are based, and only based, upon mistaken and exploded medical dogmas.
With strange inconsistency, the law fully acknowledges the foetus in utero and
its inherent rights, for civil purposes; while personally and as criminally
affected, it fails to recognize it, *142 and to its life as yet denies all
protection.' Id., at 75‑76.
The
Committee then offered, and the Association adopted, resolutions protesting
'against such unwarrantable destruction of human life,' calling upon state
legislatures to revise their abortion laws, and requesting the cooperation of
state medical societies 'in pressing the subject.' Id., at 28, 78.
In 1871 a
long and vivid report was submitted by the Committee on Criminal Abortion. It
ended with the observation, 'We had to deal with human life. In a matter of
less importance we could entertain no compromise. An honest judge on the bench
would call things by their proper names. We could do no less.' 22 Trans. of the
Am.Med.Assn. 258 (1871). It proffered resolutions, adopted by the Association,
id., at 38‑39, recommending, among other things, that it 'be unlawful and
unprofessional for any physician to induce abortion or premature labor, without
the concurrent opinion of at least one respectable consulting physician, and
then always with a view to the safety of the child‑if that be possible,'
and calling 'the attention of the clergy of all denominations to the perverted
views of morality entertained by a large class of females‑aye, and men
also, on this important question.'
Except for
periodic condemnation of the criminal abortionist, no further formal AMA action
took place until 1967. In that year, the Committee on Human Reproduction urged
the adoption of a stated policy of opposition to induced abortion, except when
there is 'documented medical evidence' of a threat to the health or life of the
mother, or that the child 'may be born with incapacitating physical deformity
or mental deficiency,' or that a pregnancy 'resulting from legally established
statutory or forcible rape or incest may constitute a threat to the mental or
physical health of the *143 patient,' two other physicians 'chosen because of
their recognized professional competency have examined the patient and have
concurred in writing,' **722 and the procedure 'is performed in a hospital
accredited by the Joint Commission on Accreditation of Hospitals.' The
providing of medical information by physicians to state legislatures in their
consideration of legislation regarding therapeutic abortion was 'to be
considered consistent with the principles of ethics of the American Medical
Association.' This recommendation was adopted by the House of Delegates.
Proceedings of the AMA House of Delegates 40‑51 (June 1967).
In 1970,
after the introduction of a variety of proposed resolutions, and of a report
from its Board of Trustees, a reference committee noted 'polarization of the
medical profession on this controversial issue'; division among those who had
testified; a difference of opinion among AMA councils and committees; 'the
remarkable shift in testimony' in six months, felt to be influenced 'by the
rapid changes in state laws and by the judicial decisions which tend to make
abortion more freely available;' and a feeling 'that this trend will continue.'
On June 25, 1970, the House of Delegates adopted preambles and most of the
resolutions proposed by the reference committee. The preambles emphasized 'the
best interests of the patient,' 'sound clinical judgment,' and 'informed
patient consent,' in contrast to 'mere acquiescence to the patient's demand.'
The resolutions asserted that abortion is a medical procedure that should be
performed by a licensed physician in an accredited hospital only after
consultation with two other physicians and in conformity with state law, and
that no party to the procedure should be required to violate personally held
moral principles. [FN38] Proceedings *144 of the AMA House of Delegates 220
(June 1970). The AMA Judicial Council rendered a complementary opinion. [FN39]
FN38. 'Whereas, Abortion, like any other medical
procedure, should not be performed when contrary to the best interests of the
patient since good medical practice requires due consideration for the
patient's welfare and not mere acquiescence to the patient's demand; and
'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).
FN39. 'The Principles of Medical Ethics of the AMA
do not prohibit a physician from performing an abortion that is performed in
accordance with good medical practice and under circumstances that do not
violate the laws of the community in which he practices.
'In the matter of abortions, as of any other
medical procedure, the Judicial Council becomes involved whenever there is
alleged violation of the Principles of Medical Ethics as established by the
House of Delegates.'
7. The
position of the American Public Health Association. In October 1970, the
Executive Board of the APHA adopted Standards for Abortion Services. These were
five in number:
'a. Rapid and simple abortion referral must be
readily available through state and local public *145 health departments, medical
societies, or other non‑profit organizations.
'b. An important function of counseling should be
to simplify and expedite the provision of abortion services; if should not
delay the obtaining of these services.
**723 'c. Psychiatric consultation should not be
mandatory. As in the case of other specialized medical services, psychiatric
consultation should be sought for definite indications and not on a routine
basis.
'd. A wide range of individuals from appropriately
trained, sympathetic volunteers to highly skilled physicians may qualify as
abortion counselors.
'e. Contraception and/or sterilization should be
discussed with each abortion patient.' Recommended Standards for Abortion
Services, 61 Am.J.Pub.Health 396 (1971).
Among
factors pertinent to life and health risks associated with abortion were three
that 'are recognized as important':
'a. the skill of the physician,
'b. the environment in which the abortion is
performed, and above all
'c. The duration of pregnancy, as determined by
uterine size and confirmed by menstrual history.' Id., at 397.
It was
said that 'a well‑equipped hospital' offers more protection 'to cope with
unforeseen difficulties than an office or clinic without such resources. . . .
The factor of gestational age is of overriding importance.' Thus, it was
recommended that abortions in the second trimester and early abortions in the
presence of existing medical complications be performed in hospitals as
inpatient procedures. For pregnancies in the first trimester, *146 abortion in
the hospital with or without overnight stay 'is probably the safest practice.'
An abortion in an extramural facility, however, is an acceptable alternative
'provided arrangements exist in advance to admit patients promptly if
unforeseen complications develop.' Standards for an abortion facility were
listed. It was said that at present abortions should be performed by physicians
or osteopaths who are licensed to practice and who have 'adequate training.'
Id., at 398.
8. The
position of the American Bar Association. At its meeting in February 1972 the
ABA House of Delegates approved, with 17 opposing votes, the Uniform Abortion
Act that had been drafted and approved the preceding August by the Conference
of Commissioners on Uniform State Laws. 58 A.B.A.J. 380 (1972). We set forth
the Act in full in the margin. [FN40] The *147 Conference **724 has appended an
enlightening Prefatory Note. [FN41]
FN40. 'UNIFORM ABORTION ACT
'Section 1. (Abortion Defined; When Authorized.)
'(a) 'Abortion' means the termination of human
pregnancy with an intention other than to produce a live birth or to remove a
dead fetus.
'(b) An abortion may be performed in this state
only if it is performed:
'(1) by a physician licensed to practice medicine
(or osteopathy) in this state or by a physician practicing medicine (or
osteopathy) in the employ of the government of the United States or of this
state, (and the abortion is performed
(in the physician's office or in a medical clinic, or) in a hospital approved
by the (Department of Health) or operated by the United States, this state, or
any department, agency, or political subdivision of either;) or by a female
upon herself upon the advice of the physician; and
'(2) within (20) weeks after the commencement of
the pregnancy (or after (20) weeks only if the physician has reasonable cause
to believe (i) there is a substantial risk that continuance of the pregnancy
would endanger the life of the mother or would gravely impair the physical or
mental health of the mother, (ii) that the child would be born with grave
physical or mental defect, or (iii) that the pregnancy resulted from rape or
incest, or illicit intercourse with a girl under the age of 16 years).
'Section 2. (Penalty.) Any person who performs or
procures an abortion other than authorized by this Act is guilty of a (felony)
and, upon conviction thereof, may be sentenced to pay a fine not exceeding
($1,000) or to imprisonment (in the state penitentiary) not exceeding (5
years), or both.
'Section 3. (Uniformity of Interpretation.) This
Act shall be construed to effectuate its general purpose to make uniform the
law with respect to the subject of this Act among those states which enact it.
'Section 4. (Short Title.) This Act may be cited
as the Uniform Abortion Act. 'Section
5. (Severability.) If any provision of this Act or the application thereof to
any person or circumstance is held invalid, the invalidity does not affect
other provisions or applications of this Act which can be given effect without
the invalid provision or application, and to this end the provision 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 ___.'
FN41. 'This Act is based largely upon the New York
abortion act following a reviewof the more recent laws on abortion in several
states and upon recognition of a more liberal trend in laws on this subject.
Recognition was given also to the several decisions in state and federal courts
which show a further trend toward liberalization of abortion laws, especially
during the first trimester of pregnancy.
'Recognizing that a number of problems appeared in
New York, a shorter time period for 'unlimited' abortions was advisable. The
time period was bracketed to permit the various states to insert a figure more
in keeping with the different conditions that might exist among the states.
Likewise, the language limiting
the place or places in which abortions may be performed was also bracketed to
account for different conditions among the states. In addition, limitations on
abortions after the initial 'unlimited' period were placed in brackets so that
individual states may adopt all or any of these reasons, or place further
restrictions upon abortions after the initial period.
'This Act does not contain any provision relating
to medical review committees or prohibitions against sanctions imposed upon
medical personnel refusing to participate in abortions because of religious or
other similar reasons, or the like. Such provisions, while related, do not
directly pertain to when, where, or by whom abortions may be performed;
however, the Act is not drafted to exclude such a provision by a state wishing
to enact the same.'
VII
Three
reasons have been advanced to explain historically the enactment of criminal
abortion laws in the 19th century and to justify their continued existence.
*148 It
has been argued occasionally that these laws were the product of a Victorian
social concern to discourage illicit sexual conduct. Texas, however, does not
advance this justification in the present case, and it appears that no court or
commentator has taken the argument seriously. [FN42] The appellants and amici
contend, moreover, that this is not a proper state purpose at all and suggest
that, if it were, the Texas statutes are overbroad in protecting it since the
law fails to distinguish between married and unwed mothers.
FN42. See, for example, YWCA v. Kugler, 342
F.Supp. 1048, 1074 (D.C.N.J.1972); Abele v. Markle, 342 F.Supp. 800, 805‑806
(D.C.Conn.1972) (Newman, J., concurring in result), appeal docketed, No. 72‑56;
Walsingham v. State, 250 So.2d 857, 863 (Ervin, J., concurring) (Fla. 1971);
State v. Gedicke, 43 N.J.L. 86, 90 (1881); Means II 381‑ 382.
A second
reason is concerned with abortion as a medical procedure. When most criminal
abortion laws were first enacted, the procedure was a hazardous one for the
woman. [FN43] This was particularly true prior to the *149 development of
antisepsis. Antiseptic techniques, of course, were based on discoveries by
Lister, Pasteur, and others first announced in 1867, but were not generally
accepted and employed until about the turn of the century. Abortion mortality
was high. Even after 1900, and perhaps until as late as the development of
antibiotics in the 1940's, standard modern techniques such as dilation and
curettage were not nearly so safe as they are today. Thus, it has been argued
that a State's real concern in enacting a criminal abortion law was to protect the
pregnant woman, that is, to restrain her from submitting to a procedure that
placed her life in serious jeopardy.
FN43. See C. Haagensen & W. Lloyd, A. Hundred
Years of Medicine 19 (1943).
**725
Modern medical techniques have altered this situation. Appellants and various
amici refer to medical data indicating that abortion in early pregnancy, that
is, prior to the end of the first trimester, although not without its risk, is
now relatively safe. Mortality rates for women undergoing early abortions, where
the procedure is legal, appear to be as low as or lower than the rates for
normal childbirth. [FN44] Consequently, any interest of the State in protecting
the woman from an inherently hazardous procedure, except when it would be
equally dangerous for her to forgo it, has largely disappeared. Of course,
important state interests in the areas of health and medical standards do
remain. *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,
FN44. Potts, Postconceptive Control of Fertility,
8 Int'l J. of G. & O. 957, 967 (1970) (England and Wales); Abortion
Mortality, 20 Morbidity and Mortality 208, 209 (June 12, 1971) (U.S. Dept. of
HEW, Public Health Service) (New York City); Tietze, United States: Therapeutic
Abortions, 1963‑1968, 59 Studies in Family Planning 5, 7 (1970); Tietze,
Mortality with Contraception and Induced Abortion, 45 Studies in Family
Planning 6 (1969) (Japan, Czechoslovakia, Hungary); Tietze & Lehfeldt,
Legal Abortion in Eastern Europe, 175 J.A.M.A. 1149, 1152 (April 1961). Other
sources are discussed in Lader 17‑23.
The third
reason is the State's interest‑some phrase it in terms of duty‑in
protecting prenatal life. Some of the argument for this justification rests on
the theory that a new human life is present from the moment of conception. [FN45]
The State's interest and general obligation to protect life then extends, it is
argued, to prenatal life. Only when the life of the pregnant mother herself is
at stake, balanced against the life she carries within her, should the interest
of the embryo or fetus not prevail. Logically, of course, a legitimate state
interest in this area need not stand or fall on acceptance of the belief that
life begins at conception or at some other point prior to life 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.
FN45. See Brief of Amicus National Right to Life
Committee; R. Drinan, The Inviolability of the Right to Be Born, in Abortion
and the Law 107 (D. Smith ed. 1967); Louisell, Abortion, The Practice of
Medicine and the Due Process of Law, 16 U.C.L.A.L.Rev. 233 (1969); Noonan 1.
*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. [FN46] Pointing to the absence of legislative history to support
the contention, they claim that most state laws were designed solely to protect
the woman. Because medical advances have lessened this concern, at least with
respect to abortion in early pregnancy, they argue that with respect to such
abortions the laws can no longer be justified by any state interest. There is
some scholarly support for this view of original purpose. [FN47] The few state
courts **726 called upon to interpret their laws in the late 19th and early
20th centuries did focus on the State's interest in protecting the woman's
health rather than in preserving the embryo and fetus. [FN48] Proponents of
this view point out that in many States, including Texas, [FN49] by statute or
judicial interpretation, the pregnant woman herself could not be prosecuted for
self‑abortion or for cooperating in an abortion performed upon her by
another. [FN50] They claim that adoption of the 'quickening' distinction
through received common *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.
FN46. See, e.g., Abele v. Markle, 342 F.Supp. 800
(D.C.Conn.1972), appeal docketed, No. 72‑56.
FN47. See discussions in Means I and Means II.
FN48. See, e.g., State v. Murphy, 27 N.J.L. 112,
114 (1858).
FN49. Watson v. State, 9 Tex.App. 237, 244‑245
(1880); Moore v. State, 37 Tex.Cr.R. 552, 561, 40 S.W. 287, 290 (1897); Shaw v.
State, 73 Tex.Cr.R. 337, 339, 165
S.W. 930, 931 (1914); Fondren v. State, 74 Tex.Cr.R. 552, 557, 169 S.W. 411,
414 (1914); Gray v. State, 77 Tex.Cr.R. 221, 229, 178 S.W. 337, 341 (1915).
There is no immunity in Texas for the father who is not married to the mother.
Hammett v. State, 84 Tex.Cr.R. 635, 209 S.W. 661 (1919); Thompson v. State,
Tex.Cr.App., 493 S.W.2d 913 (1971), appeal pending.
FN50. See Smith v. State, 33 Me., at 55; In re
Vince, 2 N.J. 443, 450, 67 A.2d 141, 144 (1949). A short discussion of the
modern law on this issue is contained in the Comment to the ALI's Model Penal
Code s 207.11, at 158 and nn. 35‑37 (Tent.Draft No. 9, 1959).
It is with
these interests, and the weight to be attached to them, that this case is
concerned.
VIII
[9] 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, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (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, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); in the Fourth and Fifth
Amendments, Terry v. Ohio, 392 U.S. 1, 8‑9, 88 S.Ct. 1868, 1872‑1873,
20 L.Ed.2d 889 (1968), Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507,
510, 19 L.Ed.2d 576 (1967); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524,
29 L.Ed. 746 (1886), see Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct.
564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting);in the penumbras of
the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484‑ 485, 85
S.Ct., at 1681‑1682; in the Ninth Amendment, id., at 486, 85 S.Ct. at
1682 (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, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (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, 58 S.Ct.
149, 152, 82 L.Ed. 288 (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, 87 S.Ct.
1817, 1823, 18 L.Ed.2d 1010 (1967); procreation, Skinner v. Oklahoma, 316 U.S.
535, 541‑542, 62 S.Ct. 1110, 1113‑1114, 86 L.Ed. 1655 (1942);
contraception, Eisenstadt v. Baird, 405 U.S., at 453‑454, 92 S.Ct., at
1038‑ 1039; id., at 460, 463‑*153 465, 92 S.Ct. at 1042, 1043‑1044
(White, J., concurring in result); family relationships, Prince v.
Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); and
child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, **727
535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925), Meyer v. Nebraska, supra.
[10] 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 *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, 25 S.Ct. 358, 49
L.Ed. 643 (1905) (vaccination); Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71
L.Ed. 1000 (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 (D.C.Conn.1972), appeal docketed, No.
72‑56; Abele v. Markle, 351 F.Supp. 224 (D.C.Conn.1972), appeal docketed,
No. 72‑730; Doe v. Bolton, 319 F.Supp. 1048 (N.D.Ga.1970), appeal decided
today, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201; Doe v. Scott, 321 F.Supp.
1385 (N.D.Ill.1971), appeal docketed, No. 70‑105; Poe v. Menghini, 339
F.Supp. 986 (D.C.Kan.1972); YWCA v. Kugler, 342 F.Supp. 1048 (D.C.N.J.1972);
Babbitz v. McCann, *155 310 F.Supp. 293 (E.D.Wis.1970), appeal dismissed, 400
U.S. 1, 91 S.Ct. 12, 27 L.Ed.2d 1 (1970); People v. Belous, 71 Cal.2d 954, 80
Cal.Rptr. 354, 458 P.2d 194 (1969), cert. denied, 397 U.S. 915, 90 S.Ct. 920,
25 L.Ed.2d 96 (1970); State v. Barquet, 262 So.2d 431 (Fla.1972).
Others
have sustained state statutes. Crossen v. Attorney General, 344 F.Supp. **728
587 (E.D.Ky.1972), appeal docketed, No. 72‑256; Rosen v. Louisiana State
Board of Medical Examiners, 318 F.Supp. 1217 (E.D.La.1970), appeal docketed,
No. 70‑42; Corkey v. Edwards, 322 F.Supp. 1248 (W.D.N.C.1971), appeal
docketed, No. 71‑92; Steinberg v. Brown, 321 F.Supp. 741 (N.D.Ohio 1970);
Doe v. Rampton, 366 F.Supp. 189 (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, S.D., 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.
[11] 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, 89 S.Ct. 1886, 1890,
23 L.Ed.2d 583 (1969); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322,
1331, 22 L.Ed.2d 600 (1969); Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct.
1790, 1795, 10 L.Ed.2d 965 (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, 85 S.Ct., at 1682; Aptheker v. Secretary of
State, 378 U.S. 500, 508, 84 S.Ct. 1659, 1664, 12 L.Ed.2d 992 (1964); Cantwell
v. Connecticut, 310 U.S. 296, 307‑308, 60 S.Ct. 900, 904‑905, 84
L.Ed. 1213 (1940); see *156 Eisenstadt v. Baird, 405 U.S., at 460, 463‑464,
92 S.Ct., at 1042, 1043‑1044 (White, J., concurring in result).
In the
recent abortion cases, cited above, courts have recognized these principles.
Those striking down state laws have generally scrutinized the State's interests
in protecting health and potential life, and have concluded that neither
interest justified broad limitations on the reasons for which a physician and
his pregnant patient might decide that she should have an abortion in the early
stages of pregnancy. Courts sustaining state laws have held that the State's
determinations to protect health or prenatal life are dominant and
constitutionally justifiable.
IX
The
District Court held that the appellee failed to meet his burden of demonstrating
that the Texas statute's infringement upon Roe's rights was necessary to
support a compelling state interest, and that, although the appellee presented
'several compelling justifications for state presence in the area of
abortions,' the statutes outstripped these justifications and swept 'far beyond
any areas of compelling state interest.' 314 F.Supp., at 1222‑ 1223.
Appellant and appellee both contest that holding. Appellant, as has been
indicated, claims an absolute right that bars any state imposition of criminal
penalties in the area. Appellee argues that the State's determination to
recognize and protect prenatal life from and after conception constitutes a
compelling state interest. As noted above, we do not agree fully with either
formulation.
A. The
appellee and certain amici argue that the fetus is a 'person' within the
language and meaning of the Fourteenth Amendment. In support of this, they
outline at length and in detail the well‑known facts of fetal
development. If this suggestion of personhood is established, the appellant's
case, of course, collapses, *157 for the fetus' right to life would then be
guaranteed specifically by the Amendment. The appellant conceded as much on
reargument. [FN51] On the other hand, the appellee conceded on reargument
[FN52] that no case could be cited **729 that holds that a fetus is a person
within the meaning of the Fourteenth Amendment.
FN51. Tr. of Oral Rearg. 20‑21.
FN52. Tr. of Oral Rearg. 24.
The
Constitution does not define 'person' in so many words. Section 1 of the
Fourteenth Amendment contains three references to 'person.' The first, in
defining 'citizens,' speaks of 'persons born or naturalized in the United
States.' The word also appears both in the Due Process Clause and in the Equal
Protection Clause. 'Person' is used in other places in the Constitution: in the
listing of qualifications for Representatives and Senators, Art, I, s 2, cl. 2,
and s 3, cl. 3; in the Apportionment Clause, Art. I, s 2, cl. 3; [FN53] in the
Migration and Importation provision, Art. I, s 9, cl. 1; in the Emoulument
Clause, Art, I, s 9, cl. 8; in the Electros provisions, Art. II, s 1, cl. 2,
and the superseded cl. 3; in the provision outlining qualifications for the
office of President, Art. II, s 1, cl. 5; in the Extradition provisions, Art.
IV, s 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth,
Twelfth, and Twenty‑second Amendments, as well as in ss 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 prenatal application. [FN54]
FN53. We are not aware that in the taking of any
census under this clause, a fetus has ever been counted.
FN54. When Texas urges that a fetus is entitled to
Fourteenth Amendment protection as a person, it faces a dilemma. Neither in
Texas nor in any other State are all abortions prohibited. Despite broad
proscription, an exception always exists. The exception contained in Art. 1196,
for an abortion procured or attempted by medical advice for the purpose of
saving the life of the mother, is typical. But if the fetus is a person who is
not to be deprived of life without due
process of law, and if the mother's condition is the sole determinant, does not
the Texas exception appear to be out of line with the Amendment's command?
There are other inconsistencies between Fourteenth
Amendment status and the typical abortion statute. It has already been pointed
out, n. 49, supra, that in Texas the woman is not a principal or an accomplice
with respect to an abortion upon her. If the fetus is a person, why is the
woman not a principal or an accomplice? Further, the penalty for criminal
abortion specified by Art. 1195 is significantly less than the maximum penalty
for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a
person, may the penalties be different?
*158 [12]
All this, together with our observation, supra, that throughout the major
portion of the 19th century prevailing legal abortion practices were far freer
than they are today, persuades us that the word 'person,' as used in the
Fourteenth Amendment, does not include the unborn. [FN55] This is in accord
with the results reached in those few cases where the issue has been squarely
presented. McGarvey v. Magee‑Womens Hospital, 340 F.Supp. 751
(W.D.Pa.1972); Byrn v. New York City Health & Hospitals Corp., 31 N.Y.2d
194, 335 N.Y.S.2d 390, 286 N.E.2d 887 (1972), appeal docketed, No. 72‑434;
Abele v. Markle, 351 F.Supp. 224 (D.C.Conn.1972), appeal docketed, No. 72‑730.
Cf. Cheaney v. State, Ind., 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, 81 S.Ct. 1336,
6 L.Ed.2d 313 (1961); Keeler v. Superior Court, 2 Cal.3d 619, 87 Cal.Rptr. 481,
470 P.2d 617 (1970); State v. Dickinson, 28 *159 Ohio St.2d 65, 275 N.E.2d 599
(1971). Indeed, our decision in United States v. Vuitch, 402 U.S. 62, 91 S.Ct.
1294, 28 L.Ed.2d 601 (1971), inferentially is to the same effect, for we there
would not have indulged in statutory interpretation favorable to abortion in
specified circumstances if the necessary consequence was the **730 termination
of life entitled to Fourteenth Amendment protection.
FN55. Cf. the Wisconsin abortion statute, defining
'unborn child' to mean 'a human being from the time of conception until it is
born alive,' Wis.Stat. s 940.04(6) (1969), and the new Connecticut statute,
Pub. Act No. 1 (May 1972 Special Session), declaring it to be the public policy
of the State and the legislative intent 'to protect and preserve human life
from the moment of conception.'
This
conclusion, however, does not of itself fully answer the contentions raised by
Texas, and we pass on to other considerations.
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.
*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. [FN56] It appears to be the predominant, though not the unanimous,
attitude of the Jewish faith. [FN57] It may be taken to represent also the
position of a large segment of the Protestant community, insofar as that can be
ascertained; organized groups that have taken a formal position on the abortion
issue have generally regarded abortion as a matter for the conscience of the
individual and her family. [FN58] As we have noted, the common law found
greater significance in quickening. Physicians and their scientific colleagues
have regarded that event with less interest and have tended to focus either
upon conception, upon live birth, or upon the interim point at which the fetus
becomes 'viable,' that is, potentially able to live outside the mother's womb,
albeit with artificial aid. [FN59] Viability is usually placed at about seven
months (28 weeks) but may occur earlier, even at 24 weeks. [FN60] The Aristotelian
theory of 'mediate animation,' that held sway throughout the Middle Ages and
the Renaissance in Europe, continued to be official Roman Catholic dogma until
the 19th century, despite opposition to this 'ensoulment' theory from those in
the Church who would recognize the existence of life from *161 the moment of
conception. [FN61] The latter is now, of course, the official belief of the
Catholic Church. As one brief amicus discloses, this is a view strongly held by
many non‑Catholics as well, and by many physicians. Substantial **731
problems for precise definition of this view are posed, however, by new
embryological data that purport to indicate that conception is a 'process' over
time, rather than an event, and by new medical techniques such as menstrual
extraction, the 'morning‑after' pill, implantation of embryos, artificial
insemination, and even artificial wombs. [FN62]
FN56. Edelstein 16.
FN57. Lader 97‑99; D. Feldman, Birth Control
in Jewish Law 251‑294 (1968). For a stricter view, see I. Jakobovits,
Jewish Views on Abortion, in Abortion and the Law 124 (D. Smith ed. 1967).
FN58. Amicus Brief for the American Ethical Union
et al. For the position of the National Council of Churches and of other
denominations, see Lader 99‑101.
FN59. L. Hellman & J. Pritchard, Williams
Obstetrics 493 (14th ed. 1971); Dorland's Illustrated Medical Dictionary 1689
(24th ed. 1965).
FN60. Hellman & Pritchard, supra, n. 59, at
493.
FN61. For discussions of the development of the
Roman Catholic position, see D.
Callahan, Abortion: Law, Choice, and Morality 409‑447 (1970); Noonan 1.
FN62. See Brodie, The New Biology and the Prenatal
Child, 9 J.Family L. 391, 397 (1970); Gorney, The New Biology and the Future of
Man, 15 U.C.L.A.L.Rev. 273 (1968); Note, 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.
In areas
other than criminal abortion, the law has been reluctant to endorse any theory
that life, as we recognize it, begins before life birth or to accord legal
rights to the unborn except in narrowly defined situations and except when the
rights are contingent upon life birth. For example, the traditional rule of
tort law denied recovery for prenatal injuries even though the child was born
alive. [FN63] That rule has been changed in almost every jurisdiction. In most
States, recovery is said to be permitted only if the fetus was viable, or at
least quick, when the injuries were sustained, though few *162 courts have
squarely so held. [FN64] In a recent development, generally opposed by the
commentators, some States permit the parents of a stillborn child to maintain
an action for wrongful death because of prenatal injuries. [FN65] Such an
action, however, would appear to be one to vindicate the parents' interest and
is thus consistent with the view that the fetus, at most, represents only the
potentiality of life. Similarly, unborn children have been recognized as
acquiring rights or interests by way of inheritance or other devolution of
property, and have been represented by guardians ad litem. [FN66] Perfection of
the interests involved, again, has generally been contingent upon live birth.
In short, the unborn have never been recognized in the law as persons in the
whole sense.
FN63. W. Prosser, The Law of Torts 33k‑338
(4th ed. 1971); 2 F. Harper & F. James, The Law of Torts 1028‑1031
(1956) ; Note, 63 Harv.L.Rev. 173 (1949).
FN64. See cases cited in Prosser, supra, n. 63, at
336‑338; Annotation, Action for Death of Unborn Child, 15 A.L.R.3d 992
(1967).
FN65. Prosser, supra, n. 63, at 338; Note, The Law
and the Unborn Child: The Legal and Logical Inconsistencies, 46 Notre Dame Law.
349, 354‑360 (1971).
FN66. Louisell, Abortion, The Practice of Medicine
and the Due Process of Law, 16 U.C.L.A.L.Rev. 233, 235‑238 (1969); Note,
56 Iowa L.Rev. 994, 999‑1000 (1971); Note, The Law and the Unborn Child,
46 Notre Dame Law. 349, 351‑354 (1971).
X
In view of
all this, we do not agree that, by adopting one theory of life, Texas may override
the rights of the pregnant woman that are at stake. We repeat, however, that
the State does have an important and legitimate interest in preserving and
protecting the health of the pregnant woman, whether she be a resident of the
State or a non‑resident who seeks medical consultation and treatment
there, and that it has still another important and legitimate interest in
protecting the potentiality of human life. These interests are separate and
distinct. Each grows in substantiality as the woman approaches *163 term and,
at a point during pregnancy, each becomes 'compelling.'
[13][14]
With respect to the State's important and legitimate interest in the health of
the mother, the 'compelling' point, in the light of present medical knowledge,
is at approximately the end of the first trimester. This is so because of the
now‑established medical **732 fact, referred to above at 725, 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.
[15] With
respect to the State's important and legitimate interest in potential life, the
'compelling' point is at viability. This is so because the fetus then
presumably has the capability of meaningful life outside the mother's womb.
State regulation protective of fetal life after viability thus has both logical
and biological justifications. If the State is interested in protecting fetal
life after viability, it may go so far as to proscribe abortion *164 during
that period, except when it is necessary to preserve the life or health of the
mother.
[16]
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, 91 S.Ct., at 1296‑1299.
XI
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 *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.
[17] 2.
The State may define the term 'physician,' as it has been employed in the
preceding paragraphs of this Part XI of this opinion, to mean only a physician
currently licensed by the **733 State, and may proscribe any abortion by a
person who is not a physician as so defined.
In Doe v.
Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, procedural requirements
contained in one of the modern abortion statutes are considered. That opinion
and this one, of course, are to be read together. [FN67]
FN67. Neither in this opinion nor in Doe v.
Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, 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. s 14‑45.1 (Supp.1971), requires written permission for the
abortion from the husband when the woman is a married minor, that is, when she
is less than 18 years of age, 41 N.C.A.G. 489 (1971); if the woman is an
unmarried minor, written permission from the parents is required. We need not
now decide whether provisions of this kind are constitutional.
This
holding, we feel, is consistent with the relative weights of the respective
interests involved, with the lessons and examples of medical and legal history,
with the lenity of the common law, and with the demands of the profound
problems of the present day. The decision leaves the State free to place
increasing restrictions on abortion as the period of pregnancy lengthens, so
long as those restrictions are tailored to the recognized state interests. The
decision vindicates the right of the physician to administer medical treatment
according to his professional judgment up to the points where important *166
state interests provide compelling justifications for intervention. Up to those
points, the abortion decision in all its aspects is inherently, and primarily,
a medical decision, and basic responsibility for it must rest with the
physician. If an individual practitioner abuses the privilege of exercising
proper medical judgment, the usual remedies, judicial and intra‑professional,
are available.
XII
[18] 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, 88 S.Ct. 391, 397‑399,
19 L.Ed.2d 444 (1967); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14
L.Ed.2d 22 (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, 91 S.Ct., at 753.
We find it
unnecessary to decide whether the District Court erred in withholding
injunctive relief, for we assume the Texas prosecutorial authorities will give
full credence to this decision that the present criminal abortion statutes of
that State are unconstitutional.
The
judgment of the District Court as to intervenor Hallford is reversed, and Dr.
Hallford's complaint in intervention is dismissed. In all other respects, the
judgment *167 of the District Court is affirmed. Costs are allowed to the
appellee.
It is so
ordered.
Affirmed
in part and reversed in part.
Mr.
Justice STEWART, concurring.
In 1963,
this Court, in Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 **734
L.Ed.2d 93, 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, 83
S.Ct., at 1031. [FN1]
FN1. Only Mr. Justice Harlan failed to join the
Court's opinion, 372 U.S., at 733, 83 S.Ct., at 1032.
Barely who
years later, in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14
L.Ed.2d 510, the Court held a Connecticut birth control law unconstitutional.
In view of what had been so recently said in Skrupa, the Court's opinion in
Griswold understandably did its best to avoid reliance on the Due Process
Clause of the Fourteenth Amendment as the ground for decision. Yet, the
Connecticut law did not violate any provision of the Bill of Rights, nor any
other specific provision of the Constitution. [FN2] So it was clear *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. [FN3] As so understood, Griswold stands as one in
a long line of pre‑Skrupa cases decided under the doctrine of substantive
due process, and I now accept it as such.
FN2. There is no constitutional right of privacy,
as such. '(The Fourth) Amendment protects individual privacy against certain
kinds of governmental intrusion, but its protections go further, and often have
nothing to do with privacy at all. Other provisions of the Constitution protect
personal privacy from other forms of governmental invasion. But the protection
of a person's general right to privacy‑his right to be let alone by other people‑is like the protection of his
property and of his very life, left largely to the law of the individual
States.' Katz v. United States, 389 U.S. 347, 350‑351, 88 S.Ct. 507, 510‑511,
19 L.Ed.2d 576 (footnotes omitted).
FN3. This was also clear to Mr. Justice Black, 381
U.S., at 507, (dissenting opinion); to Mr. Justice Harlan, 381 U.S., at 499, 85
S.Ct., at 1689 (opinion concurring in the judgment); and to Mr. Justice White,
381 U.S., at 502, 85 S.Ct., at 1691 (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, 81 S.Ct. 1752,
1765, 6 L.Ed.2d 989.
'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,
92 S.Ct. 2701, 2707, 33 L.Ed.2d 548. 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, 77 S.Ct. 752,
755‑ 756, 1 L.Ed.2d 796; Pierce v. Society of Sisters, 268 U.S. 510, 534‑535,
45 S.Ct. 571, 573‑574, 69 L.Ed. 1070; Meyer v. Nebraska, 262 U.S. 390,
399‑400, 43 S.Ct. 625, 626‑627, 67 L.Ed. 1042. Cf. Shapiro v.
Thompson, 394 U.S. 618, 629‑630, 89 S.Ct. 1322, 1328‑1329, 22
L.Ed.2d 600; United States v. Guest, 383 U.S. 745, 757‑758, 86 S.Ct.
1170, 1177‑1178, 16 L.Ed.2d 239; Carrington v. Rash, 380 U.S. 89, 96, 85
S.Ct. 775, 780, 13 L.Ed.2d 675; Aptheker v. Secretary of State, 378 U.S. 500,
505, 84 S.Ct. 1659, 1663, 12 L.Ed.2d 992; Kent v. Dulles, 357 U.S. 116, 127, 78
S.Ct. 1113, 1118, 2 L.Ed.2d 1204; Bolling v. Sharpe, 347 U.S. 497, 499‑500,
74 S.Ct. 693, 694‑695, 98 L.Ed. 884; Truax v. Raich, 239 U.S. 33, 41, 36
S.Ct. 7, 10, 60 L.Ed. 131.
*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 **735 terms
of the specific guarantees elsewhere provided in the Constitution. This
'liberty' is not a series of isolated points priced 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, 81 S.Ct. 1752,
1776, 6 L.Ed.2d 989 (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, 69 S.Ct. 1173, 1195, 93 L.Ed. 1556 (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,
87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010; Griswold v. Connecticut, supra; Pierce v.
Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v.
Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645; Skinner v.
Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655. As recently as
last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31
L.Ed.2d 349, we recognized 'the right of the individual, married or single, to
be free from unwarranted governmental intrusion into matters so fundamentally
affecting a person *170 as the decision whether to bear or beget a child.' That
right necessarily includes the right of a woman to decide whether or not to
terminate her pregnancy. 'Certainly the interests of a woman in giving of her
physical and emotional self during pregnancy and the interests that will be
affected throughout her life by the birth and raising of a child are of a far
greater degree of significance and personal intimacy than the right to send a
child to private school protected in Pierce v. Society of Sisters, 268 U.S.
510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), or the right to teach a foreign
language protected in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed.
1042 (1923).' Abele v. Markle, 351 F.Supp. 224, 227 (D.C.Conn.1972).
Clearly,
therefore, the Court today is correct in holding that the right asserted by
Jane Roe is embraced within the personal liberty protected by the Due Process
Clause of the Fourteenth Amendment.
It is
evident that the Texas abortion statute infringes that right directly. Indeed,
it is difficult to imagine a more complete abridgment of a constitutional
freedom than that worked by the inflexible criminal statute now in force in
Texas. The question then becomes whether the state interests advanced to
justify this abridgment can survive the 'particularly careful scrutiny' that
the Fourteenth Amendment here requires.
The
asserted state interests are protection of the health and safety of the
pregnant woman, and protection of the potential future human life within her.
These are legitimate objectives, amply sufficient to permit a State to regulate
abortions as it does other surgical procedures, and perhaps sufficient to
permit a State to regulate abortions more stringently or even to prohibit them
in the late stages of pregnancy. But such legislation is not before us, and I
think the Court today has thoroughly demonstrated that these state interests
cannot constitutionally support the broad abridgment **736 of personal *171
liberty worked by the existing Texas law. Accordingly, I join the Court's
opinion holding that that law is invalid under the Due Process Clause of the
Fourteenth Amendment.
Mr.
Justice REHNQUIST, dissenting.
The
Court's opinion brings to the decision of this troubling question both
extensive historical fact and a wealth of legal scholarship. While the opinion
thus commands my respect, I find myself nonetheless in fundamental disagreement
with those parts of it that invalidate the Texas statute in question, and
therefore dissent.
I
The
Court's opinion decides that a State may impose virtually no restriction on the
performance of abortions during the first trimester of pregnancy. Our previous
decisions indicate that a necessary predicate for such an opinion is a
plaintiff who was in her first trimester of pregnancy at some time during the
pendency of her lawsuit. While a party may vindicate his own constitutional
rights, he may not seek vindication for the rights of others. Moose Lodge No.
107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Sierra Club
v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The Court's
statement of facts in this case makes clear, however, that the record in no way
indicates the presence of such a plaintiff. We know only that plaintiff Roe at
the time of filing her complaint was a pregnant woman; for aught that appears
in this record, she may have been in her last trimester of pregnancy as of the
date the complaint was filed.
Nothing in
the Court's opinion indicates that Texas might not constitutionally apply its
proscription of abortion as written to a woman in that stage of pregnancy.
Nonetheless, the Court uses her complaint against the Texas statute as a
fulcrum for deciding that States may *172 impose virtually no restrictions on
medical abortions performed during the first trimester of pregnancy. In
deciding such a hypothetical lawsuit, the Court departs from the longstanding
admonition that it should never 'formulate a rule of constitutional law broader
than is required by the precise facts to which it is to be applied.' Liverpool,
New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S.
33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885). See also Ashwander v. TVA, 297
U.S. 288, 345, 56 S.Ct. 466, 482, 80 L.Ed. 688 (1936) (Brandeis, J.,
concurring).
II
Even if
there were a plaintiff in this case capable of litigating the issue which the
Court decides, I would reach a conclusion opposite to that reached by the
Court. I have difficulty in concluding, as the Court does, that the right of
'privacy' is involved in this case. Texas, by the statute here challenged, bars
the performance of a medical abortion by a licensed physician on a plaintiff
such as Roe. A transaction resulting in an operation such as this is not
'private' in the ordinary usage of that word. Nor is the 'privacy' that the
Court finds here even a distant relative of the freedom from searches and
seizures protected by the Fourth Amendment to the Constitution, which the Court
has referred to as embodying a right to privacy. Katz v. United States, 389
U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
If the
Court means by the term 'privacy' no more than that the claim of a person to be
free from unwanted state regulation of consensual transactions may be a form of
'liberty' protected by the Fourteenth Amendment, there is no doubt that similar
claims have been upheld in our earlier decisions on the basis of that liberty.
I agree with the statement of Mr. Justice STEWART in his concurring opinion that
the 'liberty,' against deprivation of which without due process the Fourteenth
*173 Amendment protects, embraces more than the rights found in the Bill of
Rights. But that **737 liberty is not guaranteed absolutely against
deprivation, only against deprivation without due process of law. The test
traditionally applied in the area of social and economic legislation is whether
or not a law such as that challenged has a rational relation to a valid state
objective. Williamson v. Lee Optical Co., 348 U.S. 483, 491, 75 S.Ct. 461, 466,
99 L.Ed. 563 (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, 92 S.Ct. 1400, 1408, 31 L.Ed.2d 768 (1972) (dissenting
opinion). But the Court adds a new wrinkle to this test by transposing it from
the legal considerations associated with the Equal Protection Clause of the
Fourteenth Amendment to this case arising under the Due Process Clause of the Fourteenth
Amendment. Unless I misapprehend the consequences of this transplanting of the
'compelling state interest test,' the Court's opinion will accomplish the
seemingly impossible feat of leaving this area of the law more confused than it
found it.
*174 While
the Court's opinion quotes from the dissent of Mr. Justice Holmes in Lochner v.
New York, 198 U.S. 45, 74, 25 S.Ct. 539, 551, 49 L.Ed. 937 (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, 54 S.Ct. 330, 332,
78 L.Ed. 674 (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, ss 14, 16. By the time of the adoption of the Fourteenth*175 Amendment
in 1868, there were at least 36 laws enacted by state or territorial
legislatures limiting **738 abortion. [FN1] While many States have amended or
updated *176 their laws, 21 of the laws on the books in 1868 remain in effect
today. [FN2] Indeed, the Texas statute **739 struck down today was, as the
majority notes, first enacted in 1857 *177 and 'has remained substantially
unchanged to the present time.' Ante, at 710.
FN1. Jurisdictions having enacted abortion laws
prior to the adoption of the Fourteenth Amendment in 1868:
1. Alabama‑Ala.Acts, c. 6, s 2 (1840).
2. Arizona‑Howell Code, c. 10, s 45 (1865).
3. Arkansas‑Ark.Rev.Stat., c. 44, div. III,
Art. II, s 6 (1838).
4. California‑Cal.Sess.Laws, c. 99, s 45, p.
233 (1849‑1850).
5. Colorado (Terr.)‑Colo.Gen.Laws of Terr.
of Colo., 1st Sess., s 42, pp. 296‑297 (1861).
6. Connecticut‑Conn.Stat. Tit. 20, ss 14, 16
(1821). By 1868, this statute had been replaced by another abortion law.
Conn.Pub.Acts, c. 71, ss 1, 2, p. 65 (1860).
7. Florida‑Fla.Acts 1st Sess., c. 1637,
subs. 3, ss 10, 11, subc. 8, ss 9, 10, 11 (1868), as amended, now Fla.Stat.Ann.
ss 782.09, 782.10, 797.01, 797.02, 782.16 (1965).
8. Georgia‑Ga.Pen.Code, 4th Div., s 20
(1833).
9. Kingdom of Hawaii‑Hawaii Pen.Code, c. 12,
ss 1, 2, 3 (1850).
10. Idaho (Terr.)‑Idaho (Terr.) Laws, Crimes
and Punishments ss 33, 34, 42, pp. 441,
443 (1863).
11. Illinois‑Ill.Rev. Criminal Code ss 40,
41, 46, pp. 130, 131 (1827). By 1868, this statute had been replaced by a
subsequent enactment. Ill.Pub.Laws ss 1, 2, 3, p. 89 (1867).
12. Indiana‑Ind.Rev.Stat. ss 1, 3, p. 224
(1838). By 1868 this statute had been superseded by a subsequent enactment.
Ind.Laws, c. LXXXI, s 2 (1859).
13. Iowa (Terr.)‑Iowa (Terr.) Stat. 1st
Legis., 1st Sess., s 18, p. 145 (1838). By 1868, this statute had been
superseded by a subsequent enactment. Iowa (Terr.) Rev.Stat., c. 49, ss 10, 13
(1843).
14. Kansas (Terr.)‑Kan. (Terr.) Stat., c.
48, ss 9, 10, 39 (1855). By 1868, this statute had been superseded by a
subsequent enactment. Kan. (Terr.) Laws, c. 28, ss 9, 10, 37 (1859).
15. Louisiana‑La.Rev.Stat., Crimes and
Offenses s 24, p. 138 (1856).
16. Maine‑Me.Rev.Stat., c. 160, ss 11, 12,
13, 14 (1840).
17. Maryland‑Md.Laws, c. 179, s 2, p. 315
(1868).
18. Massachusetts‑Mass.Acts & Resolves,
c. 27 (1845).
19. Michigan‑Mich.Rev.Stat., c. 153, ss 32,
33, 34, p. 662 (1846).
20. Minnesota (Terr.)‑Minn. (Terr.)
Rev.Stat., c. 100, ss 10, 11, p. 493 (1851).
21. Mississippi‑Miss.Code, c. 64, ss 8, 9, p. 958 (1848).
22. Missouri‑Mo.Rev.Stat., Art. II, ss 9,
10, 36, pp. 168, 172 (1835).
23. Montana (Terr.)‑Mont. (Terr.) Laws,
CriminalPractice Acts s 41, p. 184 (1864).
24. Nevada (Terr.)‑Nev. (Terr.) Laws, c. 28,
s 42, p. 63 (1861).
25. New Hampshire‑N.H.Laws, c. 743, s 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, ss 8, 9, pp. 12‑13 (1828). By 1868, this statute had been superseded.
N.Y.Laws, c. 260, ss 1, 2, 3, 4, 5, 6, pp. 285‑286 (1845); N.Y.Laws, c.
22, s 1, p. 19 (1846).
28. Ohio‑Ohio Gen.Stat. ss 111(1), 112(2),
p. 252 (1841).
29. Oregon‑Ore.Gen.Laws, Crim.Code, c. 43, s
509, p. 528 (1845‑1964).
30. Pennsylvania‑Pa.Laws No. 374 ss 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, s 1 (1846). By
1868, this statute had been amended. Vt.Acts No. 57, ss 1, 3 (1867).
33. Virginia‑Va.Acts, Tit. II, c. 3, s 9, p.
96 (1848). 34. Washington (Terr.)‑Wash.
(Terr.) Stats., c. II, ss 37, 38, p. 81 (1854).
35. West Virginia‑Va.Acts, Tit. II, c. 3, s
9, p. 96 (1848).
36. Wisconsin‑Wis.Rev.Stat., c. 133, ss 10,
11 (1849). By 1868, this statute had been superseded. Wis.Rev.Stat., c. 164, ss
10, 11; c. 169, ss 58, 59 (1858).
FN2. Abortion laws in effect in 1868 and still
applicable as of August 1970:
1. Arizona (1865).
2. Connecticut (1860).
3. Florida (1868).
4. Idaho (1863).
5. Indiana (1838).
6. Iowa (1843).
7. Maine (1840).
8. Massachusetts (1845).
9. Michigan (1846).
10. Minnesota (1851).
11. Missouri (1835). 12. Montana (1864).
13. Nevada (1861).
14. New Hampshire (1848).
15. New Jersey (1849).
16. Ohio (1841).
17. Pennsylvania (1860).
18. Texas (1859).
19. Vermont (1867).
20. West Virginia (1848).
21. Wisconsin (1858).
There
apparently was no question concerning the validity of this provision or of any
of the other state statutes when the Fourteenth Amendment was adopted. The only
conclusion possible from this history is that the drafters did not intend to
have the Fourteenth Amendment withdraw from the States the power to legislate
with respect to this matter.
III
Even if
one were to agree that the case that the Court decides were here, and that the
enunciation of the substantive constitutional law in the Court's opinion were
proper, the actual disposition of the case by the Court is still difficult to
justify. The Texas statute is struck down in toto, even though the Court
apparently concedes that at later periods of pregnancy Texas might impose these
selfsame statutory limitations on abortion. My understanding of past practice
is that a statute found *178 to be invalid as applied to a particular
plaintiff, but not unconstitutional as a whole, is not simply 'struck down' but
is, instead, declared unconstitutional as applied to the fact situation before
the Court. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886);
Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed. 572 (1969).
For all of
the foregoing reasons, I respectfully dissent.