*1 OF ATTORNEY WADE, ROE DISTRICT et al. DALLAS COUNTY Reargued October Argued No. 70-18. December January 22, 1973 1972 Decided *2 Court, J., opinion in which delivered the Blackmun, J., and Stewart, Marshall, C. Burgee, Douglas, BrennaN, 207, Douglas, J., JJ., joined. Burger, J., post, p. C. Powell, concurring opinions. J., post, p. 167, post, p. filed Stewart, joined, dissenting opinion, J., J., in which Rehnquist, filed a White, post, J., dissenting opinion, p. 171. post, p. filed a Rehnquist, appellants. Weddington reargued the cause Sarah Boy Bruner, Lucas, Fred With briefs were her on the Roy Jr., Norman Dorsen. Merrill, L. Attorney Flowers,
Robert General C. Assistant reargument. argued appellee on' the Texas, cause for Jay Floyd, Attorney .argued the cause General; Assistant *3 appellee argument. original them on for on the With Attorney Martin, General, the brief were C. Crawford Attorney White, Nola General, First Assistant Alfred Henry Attorney Walker, General, Executive Assistant Wade, and John B. Tolled.* by Gary Nelson, Attorney
*Briefs K. of amici curiae were filed Arizona, Killian, Attorney General of Robert K. Connect- General of icut, Hancock, Attorney Kentucky, Ed A. H. W. General of Clarence Romney, Meyer, Attorney Nebraska, B. of and Vernon General by Joseph Witherspoon, Jr., Attorney Utah; P. for the General of Rice Attorneys; by Charles E. Association of Texas Diocesan Eugene by Life; for Americans for J. McMahon for United Ryan al.; by Women for the et for the Ameri- Unborn Carol College al.; by Dennis Gynecologists can of Obstetricians and et Horan, Frazel, Jr., Crisham, J. Jerome A. M. Thomas and Physicians, Dolores V. Horan for Certain Professors and Fellows of College by Gynecology; the American of Obstetrics F. and Harriet Nancy Pilpel, Wechsler, F. S. and Frederic Nathan for Planned Par- America, Inc., al.; by enthood Federation of et Alan F. Charles for Legal Program al.; the National on Health Problems et of the Poor by Thompson by Assn.; Marttie L. for State Aid Communities opinion delivered Blackmun
Mr. Justice Court. companion, Georgia and its appeal federal
This Texas chal- constitutional Bolton, p. present post, Doe v. The Texas legislation. state criminal lenges to of those that typical are under attack here statutes many approximately been in effect States have have statutes, contrast, century. Georgia to an product that, legislative cast and are a modern of recent the influences least, obviously reflects extent and knowledge medical advancing attitudinal change, an issue. techniques, thinking and of new about old of the sensi- acknowledge We. forthwith our awareness controversy, and nature the abortion tive emotional physicians, even vigorous opposing views, among deep and absolute seemingly and of convictions that inspires. subject philosophy, experiences, One’s one’s exposure one’s to the raw of human one’s edges existence, family attitudes life religious training, toward one’s values, and their and the moral standards one establishes observe, likely and seeks to are all to influence and to color one’s and conclusions about abortion. thinking
In addition, population pollution, poverty, growth, complicate racial tend to sim- overtones not to plify problem. task,
Our consti- course, is resolve the issue measurement, predilection. tutional free of emotion and of *4 earnestly We seek to do- we and, do, because we this, Scanlan, L. Flynn, Byrn Martin J. and Robert M. for the Alfred Right by National Committee; to Life Helen L. Buttenwieser for by Zarky the American al.; Ethical Union et Norma G. University by Nancy American ah; Association of Women et Lawyers Stearns for New al; by Women et the California Com- Legalize al.; mittee to Abortion et and Robert E. Dunne for Robert L. Sassone. place some inquired into, opinion
have and history emphasis medical-legal medical upon, history what that about attitudes reveals man’s toward procedure over the centuries. We abortion bear mind, too, Mr. Holmes’ admonition now- Justice his York, vindicated dissent in Lochner v. New 198 U. S. (1905): is made for people of funda- “[The Constitution] mentally differing views, and the of our accident finding opinions certain natural and familiar or novel and even shocking to conclude ought our judgment upon question whether statutes embodying them conflict with the Constitution the United States.”
I The Texas statutes concern us here Arts. are 1191-1194 and 1196 State’s Penal Code.1 These make a crime “procure it an abortion,” as therein
1 “Article 1191. Abortion any person
“If designedly shall pregnant administer to a woman knowingly or procure to be any administered her drug with consent medicine, or any or shall use towards her violence or means what- externally ever internally applied, thereby procure abor- an tion, he shall be confined penitentiary in the not less than two nor years; more than five if it be consent, done without her punish- ment By shall be doubled. 'abortion’ is meant that the life embryo fetus or destroyed shall be in the woman’s womb or that a premature birth thereof be caused. “Art. 1192. Furnishing the means “Whoever furnishes procuring the means for an knowing the purpose intended guilty is as an accomplice. “Art. Attempt at abortion “If the means used shall produce fail to an abortion, the offender guilty nevertheless attempt an produce abortion, provided it be shown that such means were produce calculated to result, *5 “an except respect with defined, attempt one, or to medical advice for attempted by or procured abortion life of purpose saving the mother.” Similar majority are in of the States.2 statutes existence and shall be fined not less than one hundred nor more than one thousand dollars. producing 1194. Murder in
“Art. by pro- “If the death of the mother is occasioned an abortion so attempt duced an to effect the same it is murder.” By “Art. 1196. medical advice
“Nothing chapter applies procured in this to an abortion or at- tempted by purpose saving medical advice for the the life of the mother.” foregoing Articles, together 1195, compose Chapter with Art. here, 1195, of Title 15 of the Penal Code. Article not attacked
reads:
Destroying
“Art. 1195.
unborn child
during parturition
destroy
“Whoever shall
of the mother
vitality or
being
a child in a state of
born and
life
before actual
birth,
alive,
which child would
have been
otherwise
born
shall be
penitentiary
confined in the
years.”
life
or for
than five
less
(1956);
2 Ariz. Rev. Stat. Ann.
13-211
Conn. Pub. Act
1No.
§
(May
special session) (in
Leg.
(1972)),
4 Conn.
Serv. 677
53-29,
(1968)
(or
child) ;
Conn. Gen. Stat. Rev.
53-30
unborn
§§
(1948);
Stat.,
38,
Idaho Code
18-601
Ill. Rev.
c.
§
§23-1
(1971);
(1971);
(1971);
Ind. Code
35-1-58-1
Iowa Code
701.1
§
§
Ky.
(1962);
(6)
Rev. Stat.
La. Rev.
37:1285
Stat.
§436.020
§
(loss
(1964)
license)
(but
(Supp. 1972)
medical
see
14:87
§
containing
exception
no
for the life of the mother under the criminal
statute);
Ann.,
17,
(1964);
Me. Rev. Stat.
Tit.
Mass. Gen.
§
Ann.,
272,
(1970)
Laws
(using
“unlawfully,”
c.
the term
con
§
strued to
Kudish life,
exclude an abortion to save the mother’s
Registration,
Bd.
98,
(1969));
356 Mass.
“It is also judgment insisted motion arrest of that the stat- ute is sufficiently unconstitutional and void in that it does not define or describe the offense of respect abortion. We do not concur question.” to State, Jackson v. R. Tex. Cr. S. W. recently The same again court has held that the State’s abortion unconstitutionally vague Thompson statutes are not or overbroad. (Ct. App. 1971), appeal docketed, State Crim. Tex. No. 71-1200. The court held compelling that “the State of Texas has a protect life”; interest to designed protect fetal that Art. 1191 “is life”; statutes, fetal that particularly Texas homicide Art. 1205 Code, are protect person by Penal intended to “in a existence thereby implicitly actual birth” and recognize other human life that by is not “in birth”; existence actual that the definition of human life legislature is for the courts; and not the that 1196 “is Art. upheld more definite than the District of Columbia statute in [United (402 States Vuitch” 62); v.] U. S. and that Texas “is statute
h—IHH Dallas m residing who was a woman single Roe,4 Jane in March action this federal Texas, instituted County, She county. Attorney of the District against Texas criminal declaratory judgment sought face, on their unconstitutional statutes were from en defendant restraining injunction and an the statutes. forcing pregnant; unmarried she was alleged
Roe by abor- an pregnancy her that she wished terminate physician, licensed competent, “performed tion unable was that she conditions”; clinical safe, under *7 life did her because in Texas a abortion get “legal” to of her continuation by the be threatened appear not to to to travel afford could and she not pregnancy; that a legal abortion to jurisdiction order secure another stat- Texas that the claimed safe conditions. She under they that unconstitutionally vague and utes were by the protected privacy, personal her abridged right of Amend- and Fourteenth Ninth, First, Fourth, Fifth, pur- Roe complaint an amendment to her By ments. and other women” of herself all ported to sue “on behalf similarly situated. sought a Hallford, physician, licensed Hubert
James In action. Roe’s and was leave to intervene granted pre- he had been arrested complaint alleged he that his and abortion statutes viously for of the Texas violations con- physician’s abortion vague and overbroad.” A not indefinite or viction affirmed. was any Thompson, as to observed that issue In n. court the proof exemption of Art. 1196 burden of under “is 168-169, State, before us.” But see Veevers v. Cr. R. Tex. Vuitch, (1962). United States 161, 166-167 354 S. 2d Cf. W. U. S. 69-71 pseudonym. is a The name him. against pending were prosecutions two such
that him came to who patients conditions He described many cases that claimed and he abortions, seeking whether to determine unable was physician, a he, as by recognized exception or outside fell within they consequence, as a that, alleged He Article 1196. in violation uncertain, vague were statutes own his they violated and that Amendment, Fourteenth doctor-patient privacy to rights patients’ and his medicine, practice right own to relationship and his Fourth, by First, guaranteed claimed were rights he Amendments. and Fourteenth Fifth, Ninth, com- filed a couple, married Mary a Doe,5 John named the They also Roe. panion complaint that constitu- like Attorney defendant, claimed District injunc- declaratory and sought deprivations, and tional a they childless were alleged The Does tive relief. from a “neural- suffering was that Mrs. Doe couple; her had “advised disorder; physician that her chemical” her condition until time as such pregnancy to avoid pregnancy materially improved” (although has to her serious risk” present time would not “a present she had dis- advice, medical pursuant life); that, if she pills; control use of birth continued want to terminate she would pregnant, should become by competent, performed an pregnancy *8 By conditions. safe, under clinical physician licensed purported Does complaint, an to amendment their similarly couples all to sue “on behalf themselves and situated.” together and heard
The two actions were consolidated The by duly district court. three-judge convened single presented pregnant situations of the suits thus couple, pregnant, with the wife not woman, the childless pseudonyms. names are These all practicing joining licensed physician, and the Upon attack the Texas criminal abortion statutes. on filing affidavits, motions were made for dismissal summary and for judgment. court held that Roe class, Hallford, and members of her and Dr. had stand- presented ing justiciable to sue and controversies, but that the Does had allege failed to facts sufficient to present state a controversy and did not have standing. It concluded that, respect with the requests to for a declaratory judgment, abstention was not warranted. On the merits, the District Court held the “fun- right of single damental women and persons married to choose whether to protected have children is the Ninth Amendment, through the Fourteenth Amend- ment,” and that the Texas criminal abortion statutes were on void their face they because were both un- constitutionally vague and constituted an overbroad in- fringement 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 stat- utes void, and dismissed the application for injunctive relief. 314 F. Supp. 1217, (ND Tex. 1970).
The plaintiffs Roe and Doe and the intervenor Hall- ford, pursuant 28 U. S. C. § have appealed to this Court from part of the District Court’s judg- ment denying the injunction. The defendant District Attorney purported has pursuant cross-appeal, to the same statute, from the grant court’s of declaratory relief to Roe and Hallford. Both sides also have taken pro- tective 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 de- cision jurisdiction on to the on hearing the merits. 402 U. S. 941 (1971).
123 hH pur defendant, if the preferable been have might It petition to us a presented 20, Rule had suant to our with Appeals in the Court judgment before certiorari for de prayer plaintiffs’ of the respect granting Donovan, Mitchell v. claratory Our decisions relief. Committee, University Gunn v. 427 and (1970), 398 U. S. does effect that 1253 (1970), § to the 383 are 399 U. S. grant from the appeal to this Court not authorize an never conclude, declaratory relief alone. We denial of review foreclose our decisions do not theless, that those declaratory aspects of a injunctive and of both is, one on properly here, it is as this this kind when case of injunctive specific from denial under 1253 appeal § necessarily are aspects as to both arguments and the relief, Comm’n, Jury Carter v. U. S. identical. See Jacobsen, Lime Growers v. 362 U. Florida S. en be of time and It would destructive 80-81 to rule otherwise. Cf. concerned were we for all ergy Bolton, post, p. 179. Doe v.
IV justiciability, confronted with issues We are next Does Roe and the estab- abstention. Have standing, con- “personal lished that stake the outcome (1962), Baker troversy,” Carr, 369 U. S. adjudicated be dispute sought insures that “the in a presented in an context adversary will be judicial form resolu- historically capable viewed as Cohen, tion,” (1968), Flast v. U. S. 83, Morton, And (1972) Sierra Club v. ? 405 U. S. charges what effect pendency did the of criminal abortion pro- against upon Dr. Hallford in court have state him priety of the relief to federal court’s granting a plaintiff-intervenor?
A. Jane Roe. Despite the use of no pseudonym, is suggestion made that Roe is a person. fictitious For purposes of her case, accept we as as true, and estab- lished, her existence; her pregnant as of incep- state, tion of suit in her March 1970 and as late May as of that year when she filed an alias affidavit with the District Court; and her inability obtain a to legal abor- tion in Texas.
Viewing Roe’s case as of the time of its
filing
thereafter until as late as May,
there can be little
dispute that it
presented
then
a case or controversy and
wholly
that,
apart
from the class aspects, she, as a
pregnant single woman
thwarted
the Texas criminal
had
laws,
to
standing
challenge those statutes.
Abele v. Markle,
The appellee notes, however, that the record does not disclose that Roe was pregnant at the time of the District Court on hearing May 22, 1970,6 or on the fol-
lowing 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. appellee The twice states in his brief that hearing before District Court was July held on 1970. Brief Appellee for 13. The entries, docket App. 2, and the transcript, App. 76, reveal this an be error. July appears date to be the time of the re porter’s transcription. App. See con actual an that cases is in federal rule
The usual certiorari appellate stages exist must troversy initiated. is action date at the simply review, ; (1950) 36S. Inc., 340 U. Munsingwear, v. States United Committee Medical v. SEC Zwickler, supra; Golden U. S. Rights, 404 Human fact significant ais pregnancy here, when, But gestation human 266-day the normal litigation, term come will pregnancy short is so period If complete. process appellate the usual before litigation pregnancy moot, case *11 makes termination and stage, the trial beyond much will survive seldom law Our denied. effectively be will review appellate more comes often Pregnancy rigid. that not be should popu general in the and woman, same to once than us. with always be will it survive, to if man is lation, a conclusion for justification a classic provides Pregnancy repetition, of “capable be truly could It nonmootness. v.Co. Terminal Southern evading review.” yet Pacific Ogilvie, v. Moore (1911). See ICC, 219 U. S. Anne, 393 v. Princess Carroll 814, 816 S.U. Grant W. T. States (1968); United 175, 178-179 U. S. Co., 632-633 345 U. S. that Jane Court the District with agree therefore,
We, she that litigation, undertake to standing Roe had ter- that and controversy, justiciable presented her not rendered has pregnancy of her mination moot. case different. position doctor’s The Dr.
B. Hallford. plaintiff-intervenor, litigation He entered Roe’s he: complaint in his alleging violating arrested has been past “[I]n time present at the Laws and Abortion Texas said violating with indictment charged stands Dallas District Court in the Criminal laws vs. Texas (1) The State to-wit: County, Texas James H. Hallford, No. C-69-5307-IH, (2) State of Texas vs. James H. Hallford, No. C-69- 2524-H. In both cases the defendant is charged with abortion . . . .”
In application his for leave to intervene, the doctor made like representations as to the abortion charges pending in the state court. representations These were also repeated in the affidavit he executed and filed in support of his motion for summary judgment.
Dr. Hallford is, therefore, the position of seeking, in a federal court, declaratory injunctive relief with respect to the same statutes under which he stands charged in prosecutions criminal 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 any substantial immediate threat any federally protected right cannot be asserted in his defense against the prose- state cutions. Neither is any there allegation of harassment prosecution. bad-faith In order escape the rule articulated in the cases cited in the next paragraph of this opinion that, absent harassment and bad faith, a *12 defendant in a pending state criminal case cannot affirma- tively challenge in federal court the statutes under which the State is prosecuting him, Dr. Hallford seeks to distinguish his status present as a state defendant from his status a “potential as 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,
C. in their standing Does’ case, issue in her ing are they claims assert The significance. has little case they attack Roe, those essentially the same briefly the Does’ note we Nevertheless, statutes. same posture. married as a childless them present pleadings
Their no have pregnant, who being woman not couple, of their hav- because time at this children have to desire avoid Doe should Mrs. medical advice received ing But personal reasons.” highly for “other pregnancy, becoming prospect may face the they . . . they “fear any, follow result, if would different consider what need not We His class. com behalf of a on were intervention Hallford’s if Dr. suit and assert a class purport does not plaint in intervention he allegation that any apart from an class reference no makes necessarily guess at the mean similarly must situated” others “and goes some to intervene for leave application His ing of Art. pro adequately does plaintiff Roe further, it asserts that what are people who class of “and doctor the interest tect . ." patients . . are . . . people who . class . . physicians [and] Despite the however, complaint. is not the application, leave *13 1225, we contrary, Supp., F. at statement to District Court’s complaint. Hallford of a class suit perceive essentials fail parents.” And if pregnancy ensues, they “would want terminate” it an abortion. They assert inability an to obtain an abortion legally Texas and, consequently, the prospect of obtaining an illegal abortion there or going outside Texas to place some where procedure be could legally obtained and competently.
We have plaintiffs thus couple married who have, as their asserted immediate present injury, only an alleged “detrimental effect upon marital hap- [their] piness” they because are forced to “the choice of refrain- ing from normal sexual or relations of endangering Mary Doe’s through possible health pregnancy.” Their claim is that sometime in the future Mrs. Doe might become pregnant because of possible failure of contraceptive measures, at time in the future she might want an abortion that might then be illegal under the Texas statutes. very
This
phrasing of the Does’ position reveals its
speculative character. Their alleged injury rests on pos-
sible future contraceptive failure, possible future preg-
nancy, possible future unpreparedness
for parenthood,
possible
future impairment of health. Any one or
more of these
possibilities
several
may not
take place
and all may not
In
combine.
the Does’ estimation, these
possibilities might have some real or imagined impact
upon their
happiness.
marital
But we are
prepared
to say that the bare allegation of so indirect
injury
an
sufficient
to present an actual
case
controversy.
Younger Harris,
The Does dismissed properly was complaint Their litigation. this that dismissal. we affirm Court, and by District the y attack on the Texas appellant’s thrust of The principal to said right, invade a they improperly that statutes is to ter to choose pregnant woman, the possessed by be this would discover Appellant her pregnancy. minate in “liberty” embodied personal concept in the right in Clause; or Due Process Amendment’s the Fourteenth privacy said and sexual personal, marital, familial, penumbras, or its Rights Bill of the protected be Connecticut, Eisen 381 U. S. Griswold v. see Baird, (1972); id., at stadt 405 U. S. (White, reserved rights those result); among in or J., concurring Con Griswold v. Amendment, by the Ninth people to the necticut, J., concurring). (Goldberg, at 486 S., 381 U. briefly to claim, we feel it desirable addressing Before for history abortion, aspects, in survey, several then to history may afford us, as insight such and interests behind purposes the state examine criminal abortion laws.
VI appreciated that re- perhaps generally It is not majority laws effect in strictive criminal abortion relatively Those today vintage. are of recent States attempt laws, abortion its generally proscribing any except necessary when time during pregnancy preserve are not of ancient pregnant woman’s life, they or even derive origin. Instead, of common-law statutory part, from most changes effected, century. the latter half of the 19th Ancient These are capable precise attitudes. determination. We are told that at the time of Persian Empire were abortifacients known that criminal severely were punished.8 abortions We are told, also however, practiced was Greek times as well as Era,9 Roman and that “it was resorted to without scruple.”10 The often Ephesian, Soranos, greatest described of the ancient gynecologists, *15 appears to have been generally to opposed pre- Rome’s vailing free-abortion practices. He necessary found it to think first of the life of the mother, and he resorted to abortion when, upon this he felt standard, proce- the dure advisable.11 and Greek Roman law afforded little protection the to unborn. If prosecuted abortion was in some places, it seems to have been based a concept on of a violation of the father’s to right his offspring. religion did Ancient not bar abortion.12 2. The Hippocratic What Oath. then of the famous Oath that has stood long so 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 8 Castiglioni, A. History A (2d of Medicine 84 1947), ed. E. Krumbliaar, (hereinafter translator and editor Castiglioni). 9 Ricci, J. Genealogy The of Gynaecology 52, 84, 113, (2d 149 ed. 1950) (hereinafter Ricci); Lader, (1966) L. (here Abortion 75-77 Lader); inafter Niswander, K. Medical Abortion in Practices States, United in 37, (D. Abortion and the Law 38-40 Smith ed. 1967); Williams, G. Sanctity The of Life Criminal Law 148 (1957) (hereinafter Williams); Noonan, J. An Almost Absolute History, Value in Morality The (J. of Abortion 3-7 Noonan 1970) (hereinafter ed. Noonan); Quay, Justifiable Abortion —Med Legal ical and (pt. 2), Foundations Geo. L. J. 406-422 (1961) (hereinafter Quay). Edelstein, L. Hippocratic (1943) Oath (hereinafter Edelstein). Castiglioni But see 12; 113-114, Edelstein Ricci 118-119; Noonan 5. 12Edelstein 13-14. greatest and the “wisest Medicine, Father of as the important “most art,” his of practitioner who antiquity,” of personality complete medical most and who his time, the medical schools dominated past? knowledge medical of the typified the sum par- to the according somewhat The Oath varies content any translation but translation, ticular anyone if deadly medicine to “I give will is clear: no manner and in like any counsel; nor such asked, suggest abor- produce to pessary I to a woman give will not any- deadly drug “I give will neither tion,” suggestion I make a if nor will body asked for it, an to a woman give I will not Similarly, effect. this remedy.”15 abortive any not mentioned the Oath is
Although Bolton, post, in Doe v. principal briefs in this case or of strict development p. represents apex it endures to and its influence concepts medicine, ethical authority Hippocrates dis day. Why did not the Rome? practice in time and that of suade abortion his *16 16The theory: provides Dr. Edelstein us with The late only day; in Hippocrates' was not uncontested even Oath upon philosophers school of frowned Pythagorean on the thinkers, related act of Most Greek suicide. prior at least via abortion, other commended hand, bility. 461; Aristotle, Politics, Plato, Republic, V, See however, For the it was VII, Pythagoreans, 1335b 25. embryo ani dogma. a matter of For them the was conception, mate from the moment of and abortion The abortion clause living being. meant destruction of a “echoes Oath, therefore, Pythagorean doctrines,” 13Castiglioni 148.
14Id., at 154. 3. Edelstein 16Id., at 15-18. “[i’jn opinion and no other stratum of were such Greek proposed spirit views held or in the same of uncom austerity.” promising originated Dr. Edelstein then concludes that the Oath group in a representing only segment a small of Greek opinion and that all certainly accepted it was not ancient physicians. points He out that medical writings (A. down to D. 130-200) “give Galen evidence of the violation of almost every injunctions.” one its But with the end of' antiquity change place. a decided took Resistance against against suicide abortion became common. popular. The Oath came to emerg be The ing teachings Christianity were with agreement Pythagorean ethic. The Oath “became the nucleus of all medical applauded ethics” and “was as the embodi ment of truth.” Thus, Dr. “a suggests it is Edelstein, Pythagorean expression manifesto of an absolute standard of medical conduct.” it
This, seems to us, is a satisfactory acceptable explanation of Hippocratic Oath's apparent rigidity. It us to enables understand, context, historical a long- accepted and revered statement of medical ethics. common law. It is undisputed that at com mon law, performed “quickening”— before the first recognizable movement of útero, fetus usually appearing from the 16th to the 18th week of pregnancy 20—was not an indictable offense.21 The ab 17Id., 18; Lader 76.
18Edelstein 63.
19Id., at 64. 20Dorland's Illustrated Dictionary (24th Medical 1965). ed. Coke, 21 E. *50; Institutes III Hawkins, 1 W. Pleas of the *17 Crown, (4th c. 1762); ed. Blackstone, W. § Commentaries *129-130; Hale, M. (1st Pleas of the 1847). Crown 433 Amer. ed. For discussions of quickening role of the concept in English com- law, mon 78; see Lader 223-226; Noonan Means, The Law of New abor pre-quickening crime for common-law sence of- a from a confluence developed to have appears tion and civil and canon philosophical, theological, earlier disciplines These concepts begins. law of when life point of the variously approached question terms “formed” or rec or became embryo at which the fetus “person” of when a came terms ognizably human, or “animated.” is, into infused with a “soul” being, early law that these English A loose consensus evolved conception point events occurred at some between Although live birth.22 This was “mediate animation.” Foetus, Concerning 1664-1968: York Abortion and the Status Constitutionality 1), (pt. N. Y. L. F. A Case of Cessation of (1968) (hereinafter I); Stern, Means Abortion: Reform and 418-428 Stern); Law, (1968) (hereinafter 59 J. Crim. & L. C. P. S. 430-432; Quay Williams 152. 22Early philosophers embryo did believed that or fetus not days concep begin become formed and to live until at least 40 after male, days See, example, tion for a and 80 to 90 for a female. Aristotle, 7.3.583b; 2.3.736, 2.5.741; Hip Hist. Anim. Gen. Anim. Puer., pocrates, thinking Lib. de Nat. No. 10. Aristotle’s derived three-stage animal, from his theory vegetable, of life: rational. The vegetable stage “animation,” conception, was reached at the animal at theory, together the rational soon after live with birth. This view, day accepted by early came be Christian thinkers. 40/80 theological writings Augus- The debate was reflected of St. tine, embryo inanimatus, yet who made distinction between embryo soul, may with endowed animatus. He have drawn upon point, however, expressed Exodus 21:22. At one he the view powers point during develop- human cannot determine fetal ment change Augustine, Origine at which the occurs. See De critical (Pub. 44.527). Reany, Animae 4.4 Law See also W. Creation of Soul, Huser, the Human c. and 83-86 The Crime of Abor- (Catholic America, tion in Canon Law 15 Law Univ. of Canon 162, Washington, C., 1942). Studies No. D.
Galen, embryology, accepted in three treatises related to the think- ing Quay Later, Augustine of Aristotle and his followers. 426-427. incorporated by Decretum, on pub- abortion was Gratian into Magistri 2.32.2.10, lished about 1140. Decretum Gratiani 2.32.2.7 *18 134
Christian and theology the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view persisted that until the 19th cen ' tury, there was otherwise little agreement about precise time of formation or animation. There was agreement, however, that prior to point this the fetus was to be regarded part of the mother, and its de struction, therefore, was not homicide. Due to con tinued uncertainty about precise time when anima tion occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas' defini tion of movement as one of the two first principles of life, Bracton upon focused quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found way its into the received common law in country.
Whether abortion of a quick fetus was a felony at common law, even a lesser crime, is disputed. still Bracton, writing early in the 13th century, thought it homicide.23 But the later and predominant view, fol- lowing the great common-law scholars, has been that it was, at most, a lesser offense. In a frequently cited in 1 Corpus Juris Canonici (A. 1123 Friedburg, 1879). 2d ed. This Decretal and the Decretals recognized followed were as the definitive body of canon law until the new Code of 1917. For discussions of the treatment, canon-law I, see Means pp. 411- 412; 20-26; Noonan Quay 426-430; see also Noonan, J. Contracep- tion: A History of Its Treatment Theologians Catholic and Canonists 18-29 23Bracton position took the that abortion by poison blow or was homicide “if the foetus be already formed animated, par ticularly if it be animated.” II. Bracton, De Legibus et Con- Angliae suetudinibus (T. Twiss 1879), ed. or, as a later translation puts it, “if the already foetus is formed or quickened, especially if it quickened,” Bracton, H. On the Laws and England Customs of (S. 1968). Thorne ed. Quay See 431; see also Fleta 60-61 (Book 1, 23) (Selden c. Society 1955). ed. woman of a that abortion position took the Coke passage, no misprision, “a great childe” is “quick with abor- while saying followed, Blackstone murder.” man- been considered had once quickening tion after took law” “modern murder), (though slaughter *19 common-law A review recent view.25 less severe con- precedents that those however, precedents argues, abortion post-quickening that tradict Coke even This crime.26 as a common-law never established was American most while because importance is of some of an that ruled, holding dictum, courts received criminal under their was not unquickened fetus abor- that stating followed Coke law,27 common others 24 Coke, III *50. E. Institutes Blackstone, *129-130.
25 1 Commentaries W. 26 Penumbral Freedom: Is a Means, Abortional The Phoenix of the Nineteenth- Arise from Right About to or Ninth-Amendment Fourteenth-Century Common-Law Century of a Legislative Ashes II). (hereinafter (1971) Means Liberty?, 17 N. Y. F. 335 L. marginally precedents cited principal examines-the two The author dictum, contrary the treatment by Coke, to his traces both He concludes that cases earlier commentators. these and other case in an abortion Coke, participated as an advocate who himself even intentionally law. The author 1601, may misstated the have abortion, coupled strong feelings against suggests a reason: Coke’s jurisdiction (secular) assert common-law with his determination to traditionally an exclu had been penalties an that to assess offense 78-79, who Lader sively crime. See also ecclesiastical or canon-law ap was law ever that the common *20 with the death penalty, 7 4 1837, Will. & 1 Viet., c. 85, 6,§ and did not reappear in the Against Offenses the Person Act of 24 1861, & 25 Viet., c. 100, 59,§ that formed the core of English anti-abortion until law the liberalizing reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, 34, c. came into being. emphasis Its was upon the destruction of “the life of a capable child of being born alive.” It made a willful performed act with the necessary intent a felony. It proviso contained a that one was not to be 527, 532, 144, 25 So. (1898); 145 Alcorn, State v. 599, 7 606, Idaho 1014, 64 P. (1901); 1016 State, v. Edwards 251, 79 252, Neb. 112 611, N. W. (1907); 612 Gray State, v. 221, 77 224, Tex. Cr. R. 337, 178 S. (1915); W. 338 Miller v. Bennett, 162, 169, 190 Va. 56 217, S. E. 2d (1949). 221 Contra, Mills Commonwealth, v. 13 Pa. 631, (1850); 633 State v. Slagle, 630, (1880). 83 N. C. 632 28 State, See Smith v. 48, 33 Me. (1851); 55 People, v. Evans 49 N. Y. State, Lamb v. 524, 533, Md. A. 208 the that proved it is “unless offense of the guilty
found done was child of the death caused the which act life the only preserving of purpose for the faith in good mother.” of the law English in the development notable seemingly
A was the case Rex Bourne, [1939] 1 K. B. 687. This question affirmative the the answered apparently case life the preserve necessary to an abortion whether criminal from the excepted was woman pregnant the to the instructions In his Act. the 1861 penalties Act, to the referred Macnaghten Judge jury, where “the case a to related Act that that observed it is time when act at by a wilful killed child is Id:, of nature.” ordinary course in the delivered being of the 1861 Act’s use that He concluded 691. ex- meaning the same imported “unlawfully,” word even Act, in the proviso specific pressed mother’s preserving mention was no though there phrase construed He then 1861 Act. life is, broadly, the mother” life of “preserving the per- serious to include sense,” “in a reasonable instructed health, and mother’s threat manent to had acted found if it he Bourne jury acquit Dr. necessary was the abortion belief in a good-faith acquit. jury did Id., at 693-694. purpose. for this law. new abortion enacted Recently, Parliament & 16 Eliz. c. Act of Abortion This is the an perform physician a licensed permits The Act (a) agree physicians two licensed where other involve would pregnancy “that the continuance *21 injury or of woman, pregnant life of risk the the to woman pregnant health the physical or mental to the than if family, greater of her any existing or children there is (b) or terminated,” were “that pregnancy would were born the child it a substantial risk that if as or abnormalities physical from such mental suffer 138 seriously
to be handicapped.” provides The Act also that, making this determination, may “account be taken of pregnant reasonably woman’s actual or foreseeable permits environment.” It also physician, without the concurrence of to a preg- terminate others, nancy where he is of the opinion that good-faith abortion immediately “is necessary to or save life prevent to permanent grave injury physical mental health of the pregnant woman.” American law. In this country, law effect in all but a few century States mid-19th until was the pre-existing English common law. Connecticut, first State to enact abortion legislation, adopted 1821 that part of Lord Act Ellenborough’s that related to a woman “quick with child.”29 The death penalty was imposed. Abortion before quickening was made a crime only that State in I860.30 In 1828, New York 31 enacted legislation that, in two respects, was to serve as a model early anti-abortion statutes. First, while barring destruction of an unquickened as well fetus a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept therapeutic by pro- viding that an abortion was excused if it “shall have been necessary preserve life of such mother, or shall have been advised physicians two to be nec- essary for purpose.” such By 1840, when Texas had received the common law,32 only eight American States 29 Stat., 20, Conn. (1821). Tit. 14§ 30 Acts, Conn. Pub. 71, (1860). c. 1§ Stat., N. pt. 4, Y. 1, Rev. 2, c. Tit. 9, p. 661, Art. § 6, §21, p. (1829). Tit. 20, 1840, Act of Jan. set forth in Gammel, § H. Laws of see Grigsby Reib, Texas 177-178 597, 600, Tex. S. W.
139 until It was not abortion.33 with dealing had statutes began legislation that Between the States after the War of these law. Most the common replace generally quick- after severely abortion dealt with initial statutes Most quickening. lenient with it before but were ening abortions. completed punished attempts equally with abor- exception for an included the many While statutes to be neces- by physicians one or more thought tion soon sary provision that to save the mother’s life, pro- the typical required the law disappeared and actually necessary purpose. be cedure century the 19th the middle and late Gradually, statutory from the disappeared quickening distinction of the offense and degree law of most and the States 1950’s, the end of the penalties By were increased. how jurisdictions abortion, banned large majority pre performed, ever and whenever done to save or unless life The Alabama exceptions, serve the of mother.34 permitted of abortion to Columbia, the District per mother’s health.35 Three preserve States “unlawfully” performed were mitted abortions that or that were not “without lawful justification,” leaving interpretation courts.36 In those standards
33 early Quay statutes are discussed in 435-438. See also 85-88; 85-86; Lader Stern and Means II 375-376. 34 Criminal abortion in effect in the States as of statutes to gether statutory development important judicial with historical statutes, quoted Quay interpretations state are cited and Comment, Survey Statutory A 447-520. See of the Present Case Problems, Law on Abortion: The and the 1972 Contradictions 177, 179, classifying listing II. statutes and Ill. L. F. abortion only necessary permitting preserve States as if to save or the mother’s life. Code, (1958); (1967). Ala. D. C. Ann. 22-201 Tit. Code § § Ann., (1970); Laws Stat. Ann. Mass. Gen. c. N. J. § Ann., 18, §§4718, 2A:87-1 Pa. Stat. Tit. § past several years, however, a trend liberaliza toward tion of abortion statutes has resulted adoption, about one-third States, laws, less most stringent *23 patterned after ALI them Model Penal Code, 230.3,37 Appendix § set forth as B to the in opinion Bolton, post, Doe p. 205.
It is apparent thus that at common at the time law, adoption of our Constitution, throughout major portion of the 19th century, was viewed with less disfavor than under most American statutes in currently effect. Phrasing it another way, enjoyed a woman a substantially broader to right ter- minate a pregnancy than she in today. does most States At least with respect to early stage of pregnancy, very possibly without such a limitation, oppor-
37 adopted Fourteen States have some form of the ALI statute. Ark. See Stat. Ann. 41-303 to (Supp. 1971); 41-310 §§ Calif. Health Safety & Code (Supp. 1972); 25950-25955.5 §§ Colo. Rev. (Cum. Stat. Ann. Supp. to 1967); 40-2-53 §§40-2-50 Del. Code Ann., 24, (Supp. Tit. 1972); 1790-1793 §§ Florida Law of Apr. 13, 1972, 72-196, c. Serv., pp. 380-382; Fla. Sess. Law Ga. Code (1972); to 26-1203 §§26-1201 Kan. Stat. Ann. §21-3407 (Supp. 1971); Code, Md. Ann. (1971); Art. 137-139 Miss. §§ Code (Supp. Ann. 1972); N. M. Stat. Ann. 40A-5-1 § §§ (1972); to 40A-5-3 (Supp. 1971); N. C. Gen. Stat. 14^45.1 § Ore. Rev. (1971); Stat. 435.405 to 435.495 C. 16- S. Code Ann. §§ §§ (1962 82 to 16-89 Supp. 1971); Va. Code Ann. 18.1-62 to §§ (Supp. 1972). 18.1-62.3 Mr. Justice Clark described some of these having way.” States as Religion, “led Morality, A and Abortion: Appraisal, Loyola (L. Constitutional A.) U. L. Rev. By the end of four repealed pen- other States had criminal performed alties for early abortions in pregnancy by a licensed physician, subject procedural requirements. to stated and health Alaska Stat. 11.15.060 (Supp. § Haw. Rev. Stat. §453-16 1971); N. 125.05, Y. Penal (Supp. 1973); Code subd. § 1972— Rev. Wash. Code 1972). (Supp. to 9.02.080 precise The §§9.02.060 status of criminal abortion in laws some States is made unclear recent in decisions state and striking federal existing courts down laws, state part. whole or in country in this present was to make this choice tunity law con- Even century. later, 19th well into the an abortion punitively time to treat less tinued for some procured early pregnancy. Medical Association. American position
6. country in in this prevalent mood The anti-abortion pro- by the medical century was shared the late 19th may have profession the attitude of the Indeed, fession. stringent role the enactment of played significant period. legislation during criminal abortion ap- was on Abortion An AMA Committee Criminal Trans, report, pointed May presented It its Twelfth (1859), to the of the Am. Med. Assn. 73-78 the Com- report That observed Meeting. Annual criminal abor- appointed investigate had been mittee It suppression.” tion general “with view its *24 it three deplored frequency and its listed abortion “this demoralization”: general causes of popu- wide-spread “The is a first of these causes crime— lar the character of the ignorance of true even mothers that belief, among themselves, period of quickening. foetus is not alive till after the the fact agents “The second of alluded to is sup- profession frequently themselves are posed careless foetal life .... frightful third
“The reason extent crime found in the defects of our grave laws, independ- both common and regards statute, birth, ent and actual of the child before existence as a which are suffi- living being. These errors, prevent conviction, cient are most instances only based, upon exploded mistaken and based, medical dogmas. strange inconsistency, With fully acknowledges law the foetus in útero and its purposes; personally inherent for civil while rights, criminally and as it affected, it, fails to recognize yet and to its life as protection.” Id,., denies all at 75-76.
The Committee then offered, and the Association adopted, resolutions protesting “against such unwarrant- able of human destruction life,” calling upon-state legis- latures to their revise laws, requesting cooperation of state medical “in societies pressing subject.” Id., at 28, 78.
In 1871 a long and report vivid was by submitted Committee on Criminal Abortion. It ended with the observation, “We had to deal with human life. In a matter of importance less we could entertain no com- promise. An honest judge on the bench would call things their proper names. We could do no less.” Trans, of the Am. Assn. Med. prof- It fered resolutions, adopted by the id., Association, 38-39, recommending, among other it things, “be unprofessional unlawful and for any physician to induce premature abortion- or labor, without the concurrent opinion of at least one respectable consulting physician, and then always with a view safety to the of the child— if that be possible,” and calling “the attention of the clergy of all denominations to the perverted views of morality entertained aby large class of aye, females — and men on also, this important question.”
Except periodic condemnation of the criminal abor- tionist, no further formal AMA action took place until In that year, the Committee on Human Repro- *25 duction urged the adoption of a stated policy of oppo- sition to induced abortion, except when there is “doc- umented 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 de- ficiency,” or that a pregnancy “resulting from legally established statutory or forcible rape or may incest con- stitute a threat to the mental or physical health of the because of their physicians other “chosen
patient,” two examined competence have recognized professional pro- writing,” in and the patient and have concurred by cedure performed hospital “is accredited Hospitals.” of The Joint Commission on Accreditation state by physicians medical to providing of information legislatures legislation regard- their consideration of ing therapeutic abortion was “to be considered consistent with principles of ethics the American Medical by the adopted Association.” This recommendation was of Delegates. House of the AMA House Proceedings (June 1967). Delegates 40-51 In 1970, variety pro- after the introduction of a posed resolutions, report and of a from its Board of Trustees, a “polarization reference noted committee the medical profession issue”; on controversial divi- sion among those who had a difference of testified; opinion among councils and “the .committees; AMA remarkable shift in testimony” in six felt to be months, “by influenced rapid changes state laws judicial decisions which tend to make abortion more freely available;” and a “that will feeling this trend continue.” On June the House of 25, 1970, Delegates adopted preambles and most of the proposed resolutions by the reference committee. preambles emphasized “the best interests of the patient,” “sound clinical judg- ment,” and “informed patient consent,” contrast acquiescence “mere patient's demand.” The reso- lutions asserted that abortion is a medical procedure that should performed be by a physician licensed in an hospital accredited only after consultation with two physicians other and in conformity with state law, and no party procedure to the should be required to violate personally held moral principles.38 Proceedings 38“Whereas, Abortion, any like other procedure, medical should performed contrary be when to the best patient interests of the *26 The (June 1970). Delegates of House AMA of complementary a rendered Council Judicial AMA opinion.39 Health Asso- Public American position of of the Board the Executive In October
ciation. These for Abortion Services. adopted Standards APHA in number: were five be must referral simple and Rapid
“a. public local and through state available readily pa- requires for the due' consideration practice good medical since demand; acquiescence patient’s to not mere and welfare tient’s which, to- judgment, sound clinical “Whereas, of The standards ac- determinative patient consent should be informed gether with case; be it therefore merits of each individual cording should “RESOLVED, procedure medical abortion is a That surgeon an only by duly physician and licensed performed be only two other acting after consultation with hospital accredited professional competency and because of their physicians chosen good practice the Medi- medical with standards conformance State; and be it further Act of his Practice cal personnel “RESOLVED, physician professional That no or other any good perform act his med- compelled to which violates shall be personnel physician, hospital, hospital nor judgment. Neither ical required any personally-held perform act violative of shall be good practice In circumstances medical re- principles. moral these quires only professional personnel physician that the or other with- long with draw from the case so withdrawal is consistent as Proceedings good practice.” of the AMA House of Dele- medical gates (June 1970). Principles prohibit “The Ethics of the AMA do not Medical performing performed in physician from an abortion that is ac good practice cordance with medical and under circumstances that community practices. do violate the laws of the in which he abortions, any procedure, “In matter of other medical as alleged the Judicial Council becomes whenever involved vio- there Principles of Medical lation Ethics established Delegates.” House or other non- medical societies,
health departments, *27 profit organizations. should counseling important An function
“b. provision of abor- simplify expedite be to obtaining delay it services; tion should services. these man- Psychiatric not be “c. consultation should medical datory. specialized in the case of other As psychiatric should be services, sought consultation for definite indications and not on routine basis. A appropri-
“d. wide individuals from range ately sympathetic highly trained, volunteers physicians may skilled qualify as abortion counselors. “e. be Contraception sterilization should and/or patient.” discussed with each abortion Recom- mended for Standards Abortion 61 Am. Services, J. Pub. Health 396 (1971).
Among pertinent factors to life health risks asso- ciated with abortion were three that “are recognized important”:
“a. the skill of physician, “b. the environment in which the abortion is and above performed, all “c. the by duration of as determined pregnancy, uterine size history.” and confirmed menstrual Id., at 397.
It was said well-equipped hospital” that “a offers more protection “to cope with unforeseen difficulties than an office or clinic without such resources. . . . factor of gestational is of age importance.” overriding Thus, it was recommended that in abortions the second early trimester and abortions in presence of existing complications medical performed be in- hospitals as patient procedures. For pregnancies in the first tri- hospital overnight with or without mester, abortion in the practice.” An abortion stay probably “is safest acceptable an an facility, however, extramural alter- to admit “provided arrangements native exist advance patients promptly complications develop.” if unforeseen facility Standards an abortion were listed. It was present performed by said that at be abortions should physicians or osteopaths practice who licensed to are “adequate Id., who have training.” position
8. The the American Bar Association. At its meeting ABA February 1972 the House of Dele- gates with 17 approved, opposing votes, Uniform Abortion Act that had been approved drafted and *28 by preceding August the Conference of Commissioners on Uniform State Laws. 58 A. B. A. J. 380 We set forth the in full Act the margin.40 The “UNIFORM ABORTION ACT Defined; When “Section [Abortion Authorized.'] 1. “(a) ‘Abortion’ means the termination of pregnancy human with an intention produce other than to a live birth or to remove a dead fetus. “(b) may An performed abortion be only this if state it is
performed: believe state, in this state Health] ment, agency, upon a medical pair would be nancy [or “(2) within “(1) by the after herself [and would employ (i) or physical [20] born clinic, a substantial risk there is a operated by the physician or upon endanger [20] or weeks of the abortion is with by or] or political the advice of a weeks after the commencement mental health of grave physician only licensed to government the life of the the United hospital approved by performed if subdivision of physical practicing medicine physician practice States, of the United or physician; [in mother or would mental mother, the medicine either;] continuance of has reasonable cause to physician’s state, the defect, (ii) States or [Department [or [or or that the child by or osteopathy] osteopathy] gravely any office or in pregnancy or (iii) a female depart- of this preg- im- Conference appended has an enlightening Prefatory- Note.41
VII Three explain reasons have been advanced to histor- ically the enactment of criminal laws in century 19th justify and to their continued existence. pregnancy incest, rape resulted from or or illicit intercourse with girl age years], under the of 16 [Penalty.] Any person 2. performs procures who or “Section an abortion other guilty than authorized [felony] this Act is of a and, upon thereof, may conviction pay be sentenced to a fine not exceeding [$1,000] imprisonment or to penitentiary] the state [in exceeding years], or both. [5 [Uniformity Interpretation.] 3. This Act shall be “Section construed general its purpose effectuate to make uniform the law respect with subject to the among this Act those states which enact it. “Section 4. may This Act [Short be cited the Uniform Titled
Abortion Act. [Severability.2 5. any provision If “Section of this Act or the application any person thereof to invalid, or is held circumstance invalidity does provisions not affect other applications or this Act given which can be effect provision without the invalid application, and to provisions this end the of this Act are severable. [Repeal.] following parts acts and “Section of acts are repealed: “(1) *29 “(2)
“(3) Taking [Time “Section This Act shall take Effect.] effect-.” 41“This Act is largely upon based the New York abortion act fol lowing a review of the more recent laws on in abortion several states upon recognition of a liberal subject. more trend in on laws this Recognition given was also to the in several decisions state and fed eral courts which show a further trend toward liberalization of laws, especially during the pregnancy. first trimester “Recognizing that a problems number of York, in appeared New shorter period time for ‘unlimited’ abortions was advisable. The occasionally that argued It has been these laws were product discourage a Victorian social concern to Texas, illicit sexual does not advance however, conduct. justification appears in the and it present case, no or seri- argument court commentator has taken ously.42 appellants moreover, and amici contend, proper purpose suggest that this is not at all state if it the Texas statutes are overbroad that, were, protecting it since the law fails between distinguish to married and unwed mothers.
A second reason is concerned with abortion as a med- procedure. ical When most criminal abortion laws were procedure first enacted, was a hazardous one for the woman.43 This was particularly prior true to the period permit time was bracketed to the various to states insert a figure keeping more in with might the different conditions that exist Likewise, among language limiting place the states. or places may performed which abortions be was also bracketed to among addition, account for different conditions the states. In limi- on abortions period placed tations after the initial 'unlimited’ were may adopt any brackets so individual states all or of these reasons, place upon or further restrictions abortions after the initial period. any
“This Act does not provision relating contain to medical re- view prohibitions against committees or imposed upon sanctions personnel refusing medical participate in abortions because of religious reasons, or other provisions, similar or the like. Such while related, directly pertain when, do not where, by whom abor- may performed; however, tions be the Act is not drafted to exclude provision such a wishing a state to enact the same.” 42See, example, Kugler, YWCA v. Supp. 1048, 342 F. (N. 1972); Markle, J. Abele v. Supp. 800, (Conn. 342 F. 805-806 1972) (Newman, J., concurring result), appeal docketed, No. 72-56; Walsingham State, (Ervin, J., v. 250 So. 2d con curring) (Fla. 1971); Gedicke, State 43 N. J. L. Means II 381-382. Haagensen Lloyd, See C. & W. A Hundred Years of Medicine
149 development of antisepsis. Antiseptic techniques, course, were based on discoveries Lister, and Pasteur, others in first announced 1867, but were not generally accepted employed until about the turn of the cen- tury. mortality Abortion was high. Even after 1900, and perhaps until as as the development late of antibiotics in the 1940’s, standard modern techniques such as dila- tion and curettage not nearly were so safe they as are today. Thus, it has been argued that a State’s real concern enacting a criminal abortion law was protect the pregnant woman, is, restrain her from to a submitting procedure that placed her life in serious jeopardy.
Modern medical techniques have altered this situa Appellants tion. and various amici refer to medical data indicating that abortion in early pregnancy, is, prior to the end of the first trimester, although not risk, without its relatively now safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be low as or lower than the rates normal childbirth.44 Consequently, any interest the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, largely has disappeared. Of course, important state interests the areas of health and medical standards do remain. 44Potts, Postconceptive Fertility, Control of 8 Int'l J. of G. & O. 957, (1970) (England Wales); Mortality, Abortion 20 Mor bidity Mortality (June 12, 1971) (U. Dept, HEW, S. Public Service) (New Health City); Tietze, York United States: Therapeutic Abortions, 1963-1968, Family Studies Planning Tietze, Mortality with Contraception and Induced Abor tion, 45 Family Studies Planning 6 (1969) (Japan, Czechoslovakia, Hungary); Tietze Lehfeldt, & Legal Abortion in Eastern Europe, J. A. M. A. (April 1961). Other sources are dis cussed in Lader 17-23.
The has a interest to it that legitimate seeing State any procedure, per other is abortion, like medical safety formed circumstances that insure maximum under obviously patient. for the This interest at extends performing physician least to and his to the staff, the availability facilities of after-care, to involved, adequate provision to for any complication or emer gency might prevalence arise. The of mor high tality rates at illegal “abortion mills” rather strengthens, than the State’s con weakens, regulating interest ditions under which abortions performed. are More over, the risk to the woman increases as pregnancy her continues. Thus, the State retains a definite interest in protecting safety the woman’s own health and when an proposed abortion is at a late of stage pregnancy.
The third reason is the phrase interest —some State’s init of duty prenatal terms protecting life. Some —in of the argument justification for this theory rests on the that a human new life is present moment of from the conception.45 The State’s interest general obliga- tion to protect life then it extends, is argued, pre- to natal life. Only when the life of the pregnant mother herself is at stake, against balanced the life she carries within should the her, embryo interest or fetus not prevail. Logically, course, legitimate state in- terest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing State’s interest, recognition may given be to the rigid less claim that as long as at potential least life involved, State may assert beyond interests protection pregnant woman alone. 45See Brief of Amicus Right National Committee; to Life R.
Drinan, Inviolability The Right Born, to Be in Abortion and (D. the Law 107 1967); Smith Louisell, ed. Abortion, The Prac tice of Medicine and the Due Law, Process of 16 U. L.C. A. L. Rev. Noonan 1. Parties state abortion challenging sharply laws have disputed some purpose courts the contention that a enacted, protect prenatal these when was to laws, history life.46 to the Pointing absence of legislative support they claim that contention, most state laws solely were designed protect the woman. Because medical advances have lessened this least concern, with respect to early abortion in they argue pregnancy, that with respect to such abortions the can no laws justified be longer by any state interest. There is some scholarly support for purpose.47 this view of *32 original few upon state courts called in interpret their laws the early late 19th and 20th centuries did focus on the State’s in interest protecting the woman’s health rather than in preserving the embryo Proponents and fetus.48 of point this view out in many States, that including Texas,49 by judicial statute interpretation, preg or nant woman herself could prosecuted not be for self- abortion or for in cooperating performed an abortion upon her They adoption another.50 claim that of the “quickening” distinction through received common 46See, g., Markle, e. Abele v. (Conn. Supp. 1972), 342 F. 800 appeal docketed, No. 72-56. 47See in discussions Means I and Means II. 48See, g., e. Murphy, State v. 112, (1858). 27 N. 114 J. L. 49 State, Watson v. 237, 9 Moore v. App. (1880); Tex. 244-245 State, 552, 37 561, Tex. Cr. 287, (1897); R. 40 S. Shaw 290 W. State, v. 337, 339, 73 Tex. Cr. 930, (1914); R. 165 S. W. 931 State, Fondren 552, v. 74 557, Tex. 411, Cr. R. 414 169 S. W. (1914); Gray State, 221, 229, 337, v. 77 Tex. Cr. R. 178 S. W. 341 (1915). There immunity is no in Texas the father who is not State, mother. Hammett v. married to the 635, 84 Tex. Cr. R. Thompson (1919); 209 S. W. 661 v. State (Ct. App. Crim. Tex. 1971), appeal docketed, No. 71-1200. 50 State, See Smith Vince, In Me., 55; v. re 33 at 443, 2 N. J. 450, 141, 67 A. 2d A short discussion of the modem law on this issue is in contained the Comment to the ALI’s Model 207.11, Penal Code (Tent. at 158 and 9, 1959). nn. 35-37 § Draft No. tacitly greater recognizes and state statutes
law
impliedly
in late abortion
inherent
hazards
health
conception.
begins
life
theory that
repudiates
at-
to be
weight
interests, with
It
these
case is concerned.
them,
tached to
VIII
any right
mention
explicitly
does
The Constitution
back
however, going
decisions,
In
line of
privacy.
Botsford,
R. Co. v.
as far as Union
perhaps
Pacific
recognized
the Court has
250,
(1891),
U. S.
of certain areas
guarantee
or a
personal
right
privacy,
under the Constitution.
does exist
privacy,
zones
or individual
Justices
contexts,
In
Court
varying
right
the roots of that
indeed, found at least
have,
Georgia,
Stanley v.
394 U. S.
Amendment,
the First
Amendments,
Fourth and Fifth
557, 564
Ohio,
Katz
United
Terry
(1968),
v.
392 U.
8-9
S.
v.
States,
States,
Boyd
v. United
(1967),
389 U. S.
States,
Olmstead
United
U. S.
12 (1967);
Skinner v.
procreation,
This liberty concept personal Fourteenth Amendment’s as is, it or, as we feel action, state upon restrictions and Amend- Ninth the determined, Court District broad is people, to rights reservation ment’s not or whether decision encompass a woman’s to enough The detriment pregnancy. her terminate to by deny- woman pregnant upon the impose would State and Specific apparent. is altogether choice ing this early preg- even medically diagnosable harm direct off- additional Maternity, be involved. nancy may and life a distressful upon the woman may force spring, Mental be imminent. may harm Psychological future. care. There by child may be taxed health physical with associated concerned, for all distress, is also bring- problem is the child, and there the unwanted psychologically already family unable, into a a child ing as in this cases, In other care for to it. otherwise, stigma continuing difficulties additional one, are All these involved. may motherhood be of unwed neces- physician responsible her woman and factors in consultation. sarily consider will appellant and these, elements such On the basis is absolute right woman’s amici argue some pregnancy her. terminate she entitled and that reason way,-and for whatever time, in whatever whatever agree. Appel- do this we With chooses. she alone valid either has no interest that Texas arguments lant’s inter- or no decision, regulating at all any upon limitation support strong enough est determination, are unpersuasive. sole the woman’s *34 154
Court’s decisions recognizing right privacy also some acknowledge that state regulation pro- areas by right tected is appropriate. As noted above, may properly State important assert interests in safe- guarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, respective these interests become sufficiently compelling to sustain regulation the factors that govern the abor- tion privacy decision. The right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted amici some that one has an unlimited right to do with body one’s one pleases bears a relationship close right of privacy pre- viously articulated in the Court’s decisions. The Court has refused recognize an unlimited right of this kind past. Jacobson v. Massachusetts, 197 U. 11S. (1905) (vaccination); Buck Bell, v. 274 U. S. (1927) (sterilization).
We, therefore, conclude that the right personal pri- vacy includes the abortion decision, but this right unqualified and must be considered against impor- tant state interests regulation.
We note that those federal and state courts that have recently considered abortion law challenges have reached the same conclusion. A majority, addition to the District Court in the present case, have held state laws unconstitutional, least in part, because vague- ness or because of overbreadth and abridgment of rights. Markle, Abele v. 342 F. Supp. (Conn. 1972), ap- peal docketed, No. 72-56; Abele Markle, v. 351 F. Supp. (Conn. 1972), appeal docketed, No. 72-730; Doe v. Bolton, 319 Supp. F. (ND Ga. 1970), appeal de- cided today, post, p. 179; Doe Scott, 321 F. Supp. (ND Ill. 1971), appeal docketed, No. 70-105; Poe v. Menghini, 339 F. Supp. (Kan. 1972); YWCA v. Kugler, 342 Supp. F. (NJ 1972); Babbitzv. McCann,
155 400 dismissed, 1970), appeal Wis. (ED 293 Supp. 310 F. P. 954, 2d 458 Belous, 71 Cal. People v. 1 (1970); U. S. cert, State (1970); 915 397 U. S. denied, (1969), 194 2d 1972). (Fla. 2d 431 Barquet, 262 v. So. v. Crossen statutes. state have sustained
Others Ky. 1972), (ED General, Supp. F. 587 Attorney 344 Louisiana State v. Rosen 72-256; No. docketed, appeal (ED 1217 Examiners, Supp. F. 318 Medical Board of Ed- Corkey v. 70-42; docketed, No. 1970), appeal La. dock- appeal 1971), (WDNC wards, 1248 Supp. 322 F. 741 Supp. F. Brown, Steinberg v. 321 71-92; No. eted, 1971), appeal (Utah Rampton Doe v. 1970); (ND Ohio State,-Ind.-, Cheaney v. 71-5666; No. docketed, State, 2d 876 v. 257 So. Spears (1972); N. 2d 265 285 E. 201 Munson, D. 663, v. 86 S. State (Miss. 1972); 72-631. appeal docketed, No. 2d 123 (1972), N. W. courts most these divided, are Although results based, however privacy, right that have agreed to cover the abortion enough decision; is broad subject to some not absolute and nonetheless, is right, interests the state point at some and that limitations; pre- standards, medical protection health, as to with agree dominant. We natal become life, approach. involved, are rights” certain “fundamental
Where may these limiting rights regulation held that Court has Kramer interest,” state only by “compelling justified be District, (1969); 621, 627 Free School S. v. Union U. (1969), Sher Thompson, 618, v. 394 U. S. Shapiro (1963), and Verner, 398, bert v. U. S. ex drawn to narrowly enactments must be legislative Gris at stake. only state interests press legitimate Aptheker Connecticut, 485; at S., wold v. 381 U. Cant State, U. S. Secretary (1940); see Connecticut, 307-308 well v. 310 U. S. Baird, Eisenstadt v. 405 U. S., 463-464 (White, J., concurring result).
In the recent cases, cited above, courts have recognized principles. these Those striking down state generally laws have scrutinized the State’s interests potential health protecting have life, and concluded that neither justified interest broad limitations on the reasons for a physician which and his pregnant patient might decide that she should have an abortion in the *36 early stages pregnancy. Courts sustaining state laws have held that the State’s protect determinations to health or prenatal life are dominant and constitutionally justifiable.
IX The District Court held that appellee the failed to meet burden his of demonstrating that the Texas stat- ute’s infringement upon Roe’s rights was necessary to support a compelling state interest, and that, although the appellee presented “several compelling justifica- tions for state presence in the area of abortions,” the statutes outstripped justifications these swept and beyond “far any areas of compelling state interest.” 314 F. Supp., at Appellant 1222-1223. appellee and both contest that holding. Appellant, as has been in- dicated, claims an absolute right that any bars state imposition of penalties criminal in the area. Appel- lee argues that the State’s determination to recognize protect prenatal life from and after conception con- stitutes a compelling state interest. As noted above, we do agree not fully with either formulation.
A. The appellee and certain amici argue that the fetus a “person” within the language and meaning of the Fourteenth In Amendment. support of this, they outline length and in detail the well-known facts of fetal development. If this suggestion personhood is established, the appellant’s case, of course, collapses, spe- be guaranteed then life would right for the fetus’ conceded appellant The Amendment. by cifically appellee other hand, theOn reargument:51 much on cited be no case could reargument52 on conceded meaning of within the person is a a fetus holds that Amendment. the Fourteenth many in so “person” does define The Constitution con Amendment Fourteenth 1 of the words. Section defining in first, “person.” The tains three references in born or naturalized “persons speaks “citizens,” both appears word also States.” United Protection Equal Clause Process Due Con places in other “Person” is used Clause. Representa listing in the of qualifications stitution: in3; cl. 2, and I, § cl. Senators, § Art. tives and 53 in the 3; cl. 2,§ Clause, Art. Apportionment I, cl. 1; I, § Art. provision, Importation Migration Elec in the 8; cl. Clause, I, 9,§ Art. in the Emolument superseded 2, and the II, 1, cl. § Art. provisions, tors for the qualifications outlining provision cl. 3; *37 Extradition 5; cl. in the II, 1, President, § Art. office of Fugi superseded and the IV, § Art. cl. provisions, Twelfth, Fifth, and in the 3; tive Slave Clause 2 and 3 of Amendments, §§ as well as Twenty-second in nearly all these Amendment. But the Fourteenth applica has such that it of the word is stances, the use any with indicates, None only postnatally. tion application.54 pre-natal any possible has that it assurance, 51 Rearg. 20-21. Tr. of Oral 52 Rearg. 24. Tr. of Oral any under taking of census aware that are not We clause,'a ever been counted. fetus has Amend that a is entitled Fourteenth urges fetus Texas When in Texas person, it a dilemma. Neither faces protection as ment Despite broad prohibited. are all abortions any State other nor always exception contained exception exists. proscription, an this,
All
together with our observation, supra,
throughout
major portion
of the
century
19th
pre-
vailing
practices
abortion
legal
were far freer than they
today, persuades
are
us that
the word “person,” as used
in the Fourteenth
does not
Amendment,
include the
unborn.55 This is in accord with the results reached
in those few cases where the issue has
squarely
been
presented. McGarvey Magee-Womens
v.
Hospital, 340
(WD
Supp.
F.
Byrn
Pa. 1972);
New
v.
York City
Health & Hospitals Corp., 31
Y.N.
2d 194, 286
E.N.
2d 887 (1972), appeal docketed, No.
Abele
72-434;
v.
Markle,
F. Supp.
224 (Conn. 1972), appeal docketed,
No. 72-730. Cf. Cheaney v. State,-Ind.,
at-,
N. E. 2d, at 270; Montana
Rogers,
There are other inconsistencies between Fourteenth Amendment status and typical abortion already statute. It has pointed been out, 49, supra, n. that in Texas the woman principal or an accomplice respect with to an upon abortion her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, penalty for criminal specified abortion by Art. 1195 is significantly less than the maximum penalty for prescribed murder by Art. 1257 of the Texas Penal If Code. person, the fetus is a may penalties be different? 55Cf. the Wisconsin statute, defining “unborn child” to mean “a being human from the time of conception until it is born alive,” Wis. Stat. (6) 940.04 (1969), § and the new Connecticut stat *38 ute, Pub. (May Act 1No. special session), declaring it to be public policy the of the State legislative and the protect intent “to preserve and human life from the moment of conception.” our Indeed; E. 2d 599 N. 2d St. Ohio (1971), Vuitch, 402 U. S. States United in decision would there for we effect, same to the inferentially is favorable interpretation statutory indulged have not necessary if the circumstances specified to to Four- entitled of life termination was consequence protection. Amendment teenth fully itself not of does however, conclusion, This pass we and by Texas, raised contentions answer considerations. on other to in her isolated be cannot woman pregnant The
B. if fetus, later, a embryo and, carries an She ’privacy. developing of the definitions medical accepts one Illustrated Dorland’s See uterus. human young 1965). The ed. (24th Dictionary 478-479, Medical marital from different inherently is therefore situation or material, of obscene possession or bedroom intimacy, Eisen which with education, or procreation, marriage, Pierce Skinner, and Loving, Stanley, Griswold, stadt inti have weAs Meyer were respectively concerned. appropriate above, it reasonable mated another in time point that at some to decide State poten or that mother health interest, involved. significantly life, becomes human tial any right sole and longer is no privacy woman's accordingly. be measured must possesses privacy she Amend- Fourteenth apart from that, urges Texas present through- conception and is at ment, begins life has therefore, State and that, pregnancy, out from and life protecting that compelling interest ques- the difficult We need resolve conception. after in the those trained begins. life When of when tion and theol- philosophy, disciplines of respective medicine, judiciary, any consensus, to arrive at unable ogy are knowledge, development man’s in the point answer. speculate in a position is not *39 It should be briefly sufficient to note the wide diver gence thinking on this most sensitive and difficult question. always There has been strong support for the view that life does not begin live until birth. This was the belief of the appears Stoics.56 It pre be the dominant, though not the unanimous, attitude of the Jewish faith.57 It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken position a formal on the abortion issue have generally regarded abortion as a matter for the conscience of the individual family.58 and her 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 upon either upon conception, live birth, or upon the interim point at which the fetus becomes “viable,” that is, potentially able to live outside mother’s womb, albeit with artificial aid.59 Viability usually is placed at about seven (28 months weeks) may but earlier, occur even at 24 weeks.60 The Aristotelian theory of “mediate animation,” that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until 19th century, despite opposition to this “ensoulment” theory from those Church who would recognize the existence of life from 56 Edelstein 16. 97-99; Lader Feldman, D. Birth Control in Jewish Law 251- For stricter view, see I. Jakobovits, Jewish Views on Abortion, in Abortion and (D. the Law 124 Smith 1967). ed. 58Amicus Brief for the American Ethical Union et al. For the position of the National Council of Churches and of other denomina tions, see Lader 99-101. 59L. Heilman & J. Pritchard, Williams (14th Obstetrics ed. 1971); Dorland’s Illustrated Dictionary Medical (24th ed. 1965). 60Heilman & Pritchard, supra, n. at 493. now, of The latter conception.61 the moment As one Church. Catholic belief the official course, by held strongly a view this is discloses, brief amicus many physicians. well, many non-Catholics view of this definition precise problems Substantial pur data embryological by new however, posed, are time, over *40 “process” is a conception indicate port to techniques by new medical and event, than an rather pill, “morning-after” extraction, the menstrual such as even insemination, and embryos, artificial implantation wombs.62 artificial has the law abortion, criminal
In than areas other we theory life, as any endorse been reluctant legal accord birth or to before live it, begins recognize situations narrowly except in defined to the rights unborn live upon contingent are rights when the except of tort law rule traditional example, the birth. For the though injuries even recovery prenatal denied changed has been rule That child was born alive.63 recovery is said States, most In every jurisdiction. almost at viable, or least was only if the fetus permitted to be few sustained, though were injuries when quick, the 61 po Catholic development Roman of the discussions For Morality 409- Law, Choice, and sition, Callahan, Abortion: see D. (1970); 1. 447 Noonan 62 Child, 9 J. Biology Prenatal Brodie, and the New The See Biology Future and the Gorney, New (1970); The Family L. 397 Note, Law— (1968); Criminal Man, L. Rev. 273 15 U. C. A.L. Pre-Implantation Other “Morning-After Pill” Abortion —The (1967); Law, 46 Ore. Rev. L. and the Birth-Control Methods Rosenfeld, The (1968); A. Bomb 32 Taylor, Biological Time The G. Through Smith, Test Tube (1969); Second Genesis 138-139 Law, 67 Mich. L. Rev. Artificial Insemination Darkly: F. Law, U. Ill. L. and the Note, Insemination (1968); Artificial 1971); (4th ed. 335-338 Prosser, Law of Torts The W. Note, 1028-1031 James, Law Torts Harper & F. F. L. Rev. 173 Harv. In recent squarely development, courts have held.64 so generally opposed by commentators, per some States mit parents of a stillborn child to maintain an action for wrongful prenatal injuries.65 death because of Such an action, however, appear would to be one to vindicate parents’ interest and is thus consistent with the view that the most, represents only fetus, potential ity of life. Similarly, unborn children have been recog nized as acquiring rights way interests of inherit ance or other devolution of property, and have been represented by guardians ad litem.66 Perfection of the interests involved, again, generally has been contingent upon live birth. In short, unborn have never been recognized in the law persons in the whole sense.
X In view of all this, we do not agree that, by adopting one theory of life, may Texas rights override *41 pregnant woman that are at stake. repeat, We however, that the State does have important an and legitimate in interest preserving and the protecting health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and it that has still another important and legitimate interest in protecting potentiality the of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches 64See cases Prosser, supra, cited in 63, Annotation, n. 336-338; at Action for Death Child, of Unborn (1967). 15 A. L. R. 3d 992 65Prosser, supra, 63, 338; Note, n. Law and the Unborn Legal Logical Child: The Inconsistencies, 46 Notre Dame Law. 349, (1971). 354-360 66 Louisell, Abortion, The Practice of Medicine and the Due Law, Process of 233, U. C. L. A. L. (1969); Note, Rev. 235-238 L.
Iowa Rev. 999-1000 Note, The Law and the Unborn Child, 46 Notre Dame Law. 351-354 each becomes and, point during pregnancy, term at a “compelling.” important legitimate to the respect
With State’s “compelling” in the health of the the mother, interest present medical is at point, light knowledge, the approximately the end of trimester. This is so the first of the now-established medical referred to fact, because above at that until end of the trimester mor- the first tality may mortality in abortion be less than in normal childbirth, that, follows from and after point, ft may procedure the abortion regulate State to the extent reasonably regulation preserva- relates to protection tion and of maternal Examples health. permissible state regulation requirements this area are as to the qualifications person perform who is to abortion; to the licensure of that person; as to facility in procedure which the is to be performed, is, whether it hospital may must be a be a clinic place or some other of less-than-hospital status; as to the licensing of the facility; and the like. on means, the other hand, that, period
This for the pregnancy prior to this “compelling” point, attending physician, consultation his free patient, with is determine, by without regulation State, that, his medical judgment, patient’s pregnancy should be If terminated. that decision reached, the judgment may be by effectuated an abortion free of interference the State. respect
With to the important State’s and legitimate in potential interest life, the “compelling” point is at viability. This is so because the fetus then presumably *42 capability has the of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifica- If tions. the State is interested in protecting fetal life after it viability, may go so far proscribe as to abortion during period, except when it is necessary preserve the life or health of the mother.
Measured against these standards, Art. 1196 of the Penal Texas Code, restricting legal abortions to those “procured or attempted by medical advice for the pur- pose of saving the life of the mother,” sweeps broadly. too The statute makes no distinction between per- abortions early formed 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 upon made it here.
This conclusion makes it unnecessary for tous consider the additional challenge the Texas statute asserted on grounds of vagueness. See United Vuitch, States U. S., at 67-72.
XI To summarize and to repeat: 1. A state criminal abortion statute of the current Texas type, 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 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 *43 may, chooses, proscribe, if it and even abortion regulate, except necessary, appropriate where it is in medical judg- ment, preservation for the of the life of or health the mother. may
2. The State define it “physician,” the term has been in employed preceding paragraphs the of this XI opinion, only Part of this to mean cur- physician rently by licensed abor- State, may proscribe any person tion who not a physician is as so defined. Bolton, In Doe post, p. 179, procedural requirements contained one of the modern statutes are con- abortion opinion sidered. That one, and this are to be course, read together.67 feel,
This we holding, is with the relative consistent of the weights respective interests with the involved, lessons and examples of medical and legal history, with lenity law, common with demands the profound problems present day. of the The decision place leaves the free to State restrictions on increasing period abortion as the of pregnancy lengthens, long so as those restrictions are tailored to the recognized state interests. The decision vindicates the right phy- of the sician to administer medical treatment to his according professional up to judgment points important where opinion Bolton, Neither post, p. 179, nor in Doe v. wo do rights, any discuss the context, father’s if exist in the constitutional paternal abortion decision. No right has been asserted either cases, Georgia and the Texas and the statutes their on face take cognizance no of the father. We are aware that some statutes recognize the father Carolina, under certain circumstances. North example, for (Supp. 1971), N. C. requires Gen. Stat. 14-45.1 § permission written abortion from the husband when the minor, woman is, is a married years when she is less than 18 age, N. C. A. 489G. if the woman is an unmarried minor, permission required. written parents from the is needWe provisions not now decide whether of this kind are constitutional. justifications for inter- provide compelling state interests Up decision in all points, vention. to those aspects inherently, primarily, decision, its a medical *44 responsibility and basic for it must with the phy- rest If practitioner sician. an the privilege individual abuses of exercising proper medical judgment, the usual reme- dies, judicial and intra-professional, available. are
XII Our conclusion that Art. 1196 unconstitutional of means, course, that the Texas abortion as a statutes, unit, must fall. exception of Art. 1196 cannot be struck down separately, for then the State would be left with a statute proscribing all procedures no matter how medically urgent the case.
Although the District Court granted appellant Roe
declaratory relief,
stopped
it
of
injunc
short
an
issuing
tion against
enforcement
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,
injunctive
relief, on the other. Zwick
Koota,
ler v.
U. S.
252-255
Dombrow
Pfister,
ski v.
We find it unnecessary to decide whether the District Court erred in withholding injunctive relief, for we as- sume the Texas prosecutorial authorities will give full credence this decision that present criminal abor- tion statutes of that State are unconstitutional.
The judgment District Court as to intervenor Hallford is reversed, and Dr. Hallford’s complaint intervention is In dismissed. all other respects, the judg- are allowed Costs is affirmed. Court District ment of the appellee. ordered. It is so Justice of Mr. Chief opinion concurring [For post, p. 207.] see Burger, see Douglas, Mr. Justice opinion concurring
[For post, p. 209.] see White, Mr. Justice opinion dissenting
[For post, p. 221.] Stewart, concurring.
Mr. Justice Skrupa, U. S. Ferguson v. Court, In doctrine for the knell the death to sound purported many- under which doctrine process, a of substantive due to violate been held past had laws state opin- Black’s As Mr. Justice Amendment. Fourteenth *45 have returned it: “We Skrupa put Court ion for the do that courts proposition constitutional original to the for the beliefs and economic their social not substitute pass elected to who are bodies, legislative of judgment Id., at 730.1 laws.” Connecticut, 381 Griswold
Barely years later, v. two control birth held a Connecticut the Court 479, U. S. been so In view of had what law unconstitutional. Griswold Skrupa, opinion Court’s recently said on the Due avoid reliance understandably its best to did as of the Fourteenth Amendment Clause Process law did not Yet, the Connecticut for decision. ground any nor other of the Bill of any provision Rights, violate it clear So was provision of the Constitution.2 specific opinion, join Only failed the Court’s Justice Harlan to Mr. S., at 733. 372 U. “ right privacy, as such. of [The no constitutional There is against privacy certain protects individual Amendment Fourth] go further, and intrusion, protections governmental but its kinds of provisions of privacy all. Other nothing do with have to often to me equally now, it is clear that then, me rationally only be as decision can understood Griswold substantively in- that Connecticut statute holding a by “liberty” protected Due Process vaded Fourteenth so under- Amendment.3 As Clause Griswold as one in stood, long pre-Skrupa stands line of decided under the doctrine cases of substantive due I accept now it process, and such.
“In a Constitution for
free
be no
people, there can
'liberty’
of
meaning
doubt
must be broad in
Roth,
Regents
Board
deed.”
v.
564,
U. S.
572.
nowhere
specific
mentions a
right of
Constitution
personal choice in matters of marriage
family
life,
“liberty” protected by
but
the Due Process Clause
of the Fourteenth Amendment covers more than those
explicitly named in the
freedoms
Bill of Rights. See
Board
Examiners,
Schware v.
Bar
353 U.
232,
S.
238-
Society
Sisters,
Pierce
239;
v.
268 U.
510,
S.
534-535;
Nebraska,
Meyer v.
262 U. S.
Shapiro
399-400. Cf.
the Constitution privacy from other forms of governmental protection person’s general invasion. But the of a right privacy right to be people is, let alone other *46 —his — protection like the property very life, of his largely and of his left to the law of the individual States, States.” Katz v. United 389 347, (footnotes omitted). U. S. 350-351 3 Black, This was S., also clear to Mr. Justice 381 U. at 507 (dissenting opinion); Harlan, S., to Mr. Justice 381 U. at 499 (opinion concurring judgment); and to Mr. Justice White, S., (opinion concurring judgment). 381 U. 502 in the See also thorough thoughtful opinion dissenting Mr. Justice Harlan’s and appeal Ullman, 497, from dismissal of the in Poe v. 367 S. U. scope full wrote: Harlan once Mr. “[T]he As Justice Clause Due Process by liberty guaranteed of precise terms limited found in or cannot be Con- provided elsewhere specific guarantees points of ‘liberty’ is not a series isolated stitution. This property; taking in terms pricked out keep right religion; and speech, press, freedom of from unreasonable searches the freedom arms; and bear is a rational continuum and so on. and It seizures; from all includes a freedom broadly speaking, which, re- arbitrary purposeless impositions substantial a reasonable . . and which what recognizes, straints . also re- that certain interests judgment must, sensitive scrutiny of the state needs particularly careful quire Ullman, Poe their v. justify abridgment.” asserted to from (opinion dissenting dismissal 497, U. S. In of Mr. (citations omitted). the words appeal) ‘liberty’ . concepts “Great like . . . . . Frankfurter, Justice experience. left to from purposely gather meaning were they For relate to the whole domain of social and eco- nomic and the who founded this Nation fact, statesmen only society un- stagnant knew too well that remains National Mutual Co. Tidewater changed.” Ins. v. Trans- Co., 582, opinion). S. (dissenting U. fer Several decisions of this make Court clear free dom of choice in personal family matters of marriage life protected by is one of the the Due liberties Process Loving Clause of the Fourteenth Amendment. v. Vir ginia, Connecticut, Griswold 1, 12; supra; U. S. v. Sisters, Pierce Society supra; Meyer Nebraska, v. v. supra. Prince Massachusetts, See also v. 321 U. 158, S. Oklahoma, 166; Skinner v. U. S. 541. As re cently Baird, last in Eisenstadt Term, 405 U. S. individual, we “the recognized right of the married single, to be free from unwarranted governmental in trusion into fundamentally matters so affecting person *47 bear That beget whether to or a child.” as the decision necessarily of a woman to decide right includes right “Certainly her pregnancy. whether or not to terminate physical of a woman of her and giving the interests pregnancy and the interests that during emotional self by throughout be affected her life the birth and will a of a of raising greater degree signif- are far child intimacy than a personal right icance send private protected Society child school Pierce v. Sisters, (19250, S. 510 to teach right U. Meyer foreign language protected Nebraska, (1923).” Markle, Supp. 224, U. S. Abele v. 351 F. (Conn. 1972). today Clearly, therefore, the Court is correct in hold- ing right by asserted Jane Roe is embraced personal protected within the liberty by the Due Process Clause of the Fourteenth Amendment.
It is evident that abortion statute infringes Texas that right directly. Indeed, it is difficult to imagine complete more abridgment of a constitutional freedom than that by worked the inflexible criminal now statute in force in Texas. question then becomes whether the state interests advanced to justify this abridgment can survive the “particularly careful scrutiny” that Fourteenth requires. Amendment here
The asserted state protection interests are of the health safety of the pregnant woman, protection potential future human life within her. These are legitimate amply objectives, permit sufficient to a State to regulate abortions as it does other surgical proce- dures, and perhaps permit sufficient to a State to regu- late abortions more stringently or prohibit even to them in the late stages of pregnancy. But such legislation not before us, and I think today the Court thor- has oughly demonstrated that these state interests cannot constitutionally support the broad abridgment per- Ac- Texas law. existing liberty worked sonal *48 that that holding opinion Court’s join the I cordingly, of the Clause Process Due the under invalid law is Amendment. Fourteenth dissenting. Rehnquist,
Mr. Justice trou- of this decision to the brings opinion The Court’s a wealth fact historical both extensive bling question thus commands opinion While the scholarship. legal of dis- in fundamental nonetheless myself I find my respect, invalidate that of parts it with those agreement dissent. and therefore question, Texas statute I impose may that a State decides opinion The Court’s of abortions performance on the virtually no restriction previous Our pregnancy. of first trimester during an for such necessary predicate a indicate that decisions of trimester in her first was plaintiff who opinion is a law- of her pendency during time at some pregnancy own constitu- his may vindicate party aWhile suit. rights for the vindication may he seek tional rights, Irvis, 407 U. S. Lodge v. Moose of others. (1972). Morton, U. S. Club v.
Sierra how- clear, makes in this of facts case Court’s statement presence way indicates the record in no ever, that Roe only plaintiff know that a We plaintiff. such woman; pregnant a complaint her was filing the time of been may have record, in this she appears aught for com- date the as pregnancy last trimester her filed. plaint was Texas indicates that opinion in the Court’s
Nothing of abor- proscription constitutionally apply its might not pregnancy. stage in that tion as to woman written complaint against her uses Nonetheless, the Court may deciding States a fulcrum Texas statute impose virtually no restrictions on medical abortions performed during trimester of In pregnancy. first deciding such a hypothetical lawsuit, Court departs from the longstanding admonition that it should never “formulate rule of constitutional law broader than is required the precise facts to which it ap is to be plied.” Liverpool, New York & Philadelphia S. S. Co. v. Commissioners Emigration, 113 U. S.
See also Ashwander v. A,TV 297 U. S. (1936) (Brandeis, J., concurring).
II
Even if there were a plaintiff in this case capable of
litigating
issue which the Court
I
decides, would reach
*49
a conclusion opposite to that
by
reached
the Court.
I
have difficulty in concluding, as the Court does, that the
right of “privacy” is involved in this case.
Texas,
the statute here
bars
challenged,
performance
of a
medical abortion by a
physician
licensed
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 Con-
stitution, which the Court has referred to as embodying
a right to privacy. Katz v. United States,
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 upheld been in our earlier decisions on the basis of that liberty. I agree with the statement Justice Mr. Stewart his opinion concurring that the “liberty,” against dep- rivation of which without process due the Fourteenth protects, Amendment embraces more than the rights found in Bill of Rights. liberty But is not guaranteed absolutely against only deprivation, against deprivation without due process law. The test traditionally applied the area of and eco social nomic legislation is whether or not a law such as that challenged has a rational relation to a objec valid state tive. Co., Williamson v. Lee Optical U. S. (1955). The Due Process Clause of the Fourteenth undoubtedly Amendment place does a limit, albeit a broad on one, legislative power to enact laws If as this. such the Texas prohibit statute were to an abortion even where the mother’s life is in I jeopardy, have little doubt that a such statute would lack rational relation to a valid objective state under the Williamson, test stated in supra. But the Court’s sweeping' invalidation of any restrictions on abortion during the first trimester impossible justify under that standard, and the conscious weighing of competing factors opinion ap Court’s parently substitutes for the established test is far more appropriate to legislative judgment judicial than to a one.
The Court eschews the history of the Fourteenth Amendment its reliance on the in- “compelling state terest” test. See Weber v. Aetna Casualty Surety & *50 Co., 406 U. S. 179 (1972) opinion). (dissenting But the Court adds a new wrinkle to this test transposing it from legal considerations associated with the Equal Protection Clause of the Fourteenth Amendment to this case arising under the Due Process Clause of the Four- teenth Amendment. I Unless misapprehend the con- sequences of transplanting the “compelling state interest test,” the Court’s opinion will accomplish the seemingly impossible feat of leaving this area of the more law confused than it found it.
While the opinion Court’s quotes from the dissent of Mr. Justice Holmes in Lochner York, v. New 198 U. S. 45, 74 (1905), the result it reaches is closely more attuned to the majority opinion of Mr. Justice Peckham in that case. As in Lochner and similar cases applying sub- stantive process due standards economic and social welfare legislation, adoption of the compelling state interest standard will inevitably require this Court examine the legislative policies and pass on the wisdom policies these very process of deciding whether a particular state put interest may forward may be “compelling.” The decision here to break preg- nancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, partakes example, more 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
those States, have had re
strictions on abortions for at least a century is a strong
indication,
it seems to me,
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,
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 the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Legislature. Connecticut Conn. Stat., Tit. 22, §§ 16. By the time of the adoption of the Four-
175 36 laws were at least there 1868, Amendment teenth limiting legislatures abor- by or territorial enacted state updated many amended have States tion.1 While 1 adoption prior laws to the having abortion enacted Jurisdictions in 1868: Fourteenth Amendment 6, (1840). 2 Acts, c. 1. Alabama —Ala. § (1865). Code, 10, c. Arizona —Howell § 45 2. (1838). II, III, Stat., 44, Art. c. div. §6 Rev. Arkansas —Ark. 3. (1849-1850). p. Laws, 99, §45, 233 c. Sess. 4. California —Cal. Terr, Sess., Colo., 1st Laws (Terr.) Gen. 5. Colorado —Colo. (1861). pp. §42, 296-297 1868, By (1821). 20, 14, 16 Stat., Tit. Connecticut —Conn. 6. §§ Pub. law. Conn. by replaced another had been this statute 1, (1860). Acts, 71, 2, p. 65 c. §§ 8, 10, 11, 3, subc. 1637, Sess., subc. c. §§ Acts 1st 7. Florida —Fla. §§ 782.09, Ann. amended, Fla. Stat. (1868), now 9, 10, 11 §§ (1965). 797.01, 797.02, 782.10, 782.16 Div., (1833). Code, 4th Georgia Pen. 8. § 20 —Ga. (1850). 1, 2, 12, 3 Code, c. Kingdom Pen. §§ of Hawaii —Hawaii 9. Laws, and Punishments (Terr.) Crimes (Terr.) 10. Idaho —Idaho 441, (1863). 34, 42, pp. 33, 443 §§ 130, 131 46, pp. 40, 41, Code Rev. Criminal §§ 11. Illinois —Ill. subsequent by a replaced 1868, had been (1827). By this statute (1867). 1, 2, 3, p. 89 Ill. Pub. Laws enactment. §§ By (1838). 1868 3, 224 1, p. Rev. Stat. Indiana —Ind. §§ 12. Ind. subsequent enactment. by superseded had been this statute (1859). LXXXI, Laws, c. §2 18, p. Sess., Legis., Stat., 1st (Terr.)- (Terr.) § 1st 13. Iowa —Iowa by a sub- superseded 1868, had been By (1838). this statute (1843). 10, 49, Stat., (Terr.) Rev. c. sequent §§ Iowa enactment. (1855). 9, 10, 48, Stat., (Terr.) c. (Terr.) §§ 14. Kansas —Kan. subsequent enactment. superseded By 1868, had been statute 9, 10, (1859). 28, Laws, (Terr.) c. §§ Kan. 24, p. 138 Offenses Stat., Crimes § Rev. Louisiana —La. 15. (1856). 12, 13, (1840). 160, §§ 11, Stat., c. Rev. 16. Maine —Me. (1868). p. Laws, §2, c. Maryland 17. —Md. (1845). Resolves, 27 c. & Acts 18. Massachusetts —Mass. 34, p. 662 32,- Stat., c. Michigan §§ Rev. —Mich. *52 in 1868 remain their 21 of laws on books laws, today.2 Indeed, struck down effect Texas statute today was, majority notes, first enacted in 1857 as the Stat., 100, 10, (Terr.) (Terr.) 20. c. Minnesota Rev. §§ —Minn. 11, p. (1851). 493 Code, 64, 8, 9, p. (1848). Mississippi 21. c. 958 §§ —Miss. 10, 36, 168, Stat., II, 9, pp. 172 22. Rev. Art. Missouri —Mo. §§ (1835). (Terr.) (Terr.) Laws, Criminal Practice 23. Montana —Mont. §41, p. (1864). Acts 184 (1861). (Terr.) (Terr.) Laws, 28, p. § 42, 63 24. Nevada c. —Nev. (1848). Hampshire Laws, 743, 1, p. 25. New H. 708 c. § —N. Jersey Laws, p. (1849). 26. New 266 J.—N. 2, 8, 9, Stat., 4, 1, pp. pt. 27. Tit. New York —N. Y. Rev. c. §§ (1828). By 1868, superseded. N. 12-13 had been Y. statute 1, Laws, 260, Laws, 22, 1-6, pp. (1845); c. c. 285-286 N. Y. § §§ p. (1846). 19 (1841). (1), (2), p. 28. Ohio—Ohio Gen. 112 252 Stat. §§111 Oregon Laws, Code, 43, 509, p. 29. 528 Gen. Crim. c. § —Ore. (1845-1864). Pennsylvania 374, 88, (1860). 30. §§ 87, Laws No. 89 —Pa. 531-536, Dig., VII, p. 31. 524 Texas —Tex. Gen. Stat. c. Arts. (Oldham 1859). & White 1868, 33, (1846). By
32. 1 Vermont —Vt. Acts this statute No. § 57, (1867). been 1, had amended. Acts No. 3 Vt. §§ Virginia Acts, II, 3, p. (1848). §9, 33. Tit. c. —Va. Washington (Terr.) (Terr.) Stats., II, 37, 38, p. 34. c. §§ —Wash. (1854). Virginia Acts., II, 3, 9, p. 35. West Va. Tit. c. § —See Const., xi, par. (1863). W. Va. Art. Stat., 133, 10, (1849). By Wisconsin —Wis. Rev. c. §§ Stat., superseded. this statute had been Wis. Rev. c.
§§10, 11; (1858). §§58, c. 2Abortion applicable laws effect 1868 and still as of Au gust 1970: (1865).
1. Arizona (1860).
2. Connecticut (1868).
3. Florida (1863).
4. Idaho
5. Indiana substantially pres- to the unchanged remained “has Ante, time.” at 119.
ent concerning apparently question There was no any of the other state validity provision of this adopted. the Fourteenth Amendment was statutes when history possible conclusion from this only did Fourteenth the drafters intend have the power Amendment withdraw from the to legis- States late with respect to this matter.
)—H HH I—I if Even one were to agree the case that the Court here, decides were and that enunciation the sub- stantive opinion constitutional law the Court’s were proper, disposition the actual case the Court is justify. still difficult to The Texas is statute struck toto, down even though the apparently Court con- cedes that at periods later of pregnancy Texas might impose statutory these selfsame on limitations abortion. My past understanding practice is that a statute found (1843).
6. Iowa (1840).
7. Maine (1845).
8. Massachusetts Michigan (1846).
9. (1851).
10. Minnesota (1835).
11. Missouri (1864).
12. Montana (1861).
13. Nevada Hampshire (1848).
14. New (1849). Jersey
15. New (1841).
16. Ohio Pennsylvania (1860). (1859).
18. Texas (1867).
19. Vermont Virginia (1863).
20. West (1858).
21. Wisconsin not but plaintiff, applied particular as be invalid down” simply “struck whole, unconstitutional to the applied declared unconstitutional as is, instead, but Hopkins, Yick Wo v. Court. before the fact situation York, New Street 394 U. S. 118 U. S. respectfully I dissent. foregoing reasons, For all of the notes some scholars doubt have seem to abortion; English ecclesiastical courts plied to 1527; preamble to problem and that the in the after lost interest 58, 1, 1803, 3, referred to English legislation c. 43 Geo. § been adequate text, infra, 136, “no have states that means punishment of such offenses.” prevention and provided for the hitherto 27 (1812); Bangs, Common 387, 388 v. 9 Mass. Commonwealth (1845); Metc.) 263, State v. Parker, (9 265-266 wealth v. 50 Mass. 274, Foshee, (1849); 52, Abrams v. 3 Iowa Cooper, 22 L. N. J. (1857); Gaffard, 45, Mitchell (1856); Ala. Smith v. 278-280 Eggart State, 204, v. 40 Fla. Commonwealth, Ky. tion of a was quick “misprision,” they fetus a term to mean translated “misdemeanor.” That their reli- ance on on aspect Coke of the law uncritical was apparently in and, reported (due all the dictum cases, probably to paucity prosecutions common-law for post-quickening abortion), appear makes it now doubtful firmly that abortion ever was established as a common-law crime respect even with to the destruc- tion of a quick fetus. 4. English statutory law. first criminal England's abortion statute, Lord Ellenborough's Act, 3, 43 Geo. c. came in It made abortion of a fetus, quick capital § but crime, provided §in 2 it penal- lesser ties for felony of abortion before quickening, preserved thus the “quickening” distinction. This con- trast was continued in the general revision of 1828, 9 Geo. c. 31, 13.§ It disappeared, however, together