U.S. Supreme Court
ROE v. WADE, 410 U.S. 113 (1973)
410 U.S. 113
ROE ET AL. v. WADE, DISTRICT ATTORNEY OF DALLAS COUNTY
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
Argued December 13, 1971 Reargued October 11, 1972
Decided January 22, 1973
A pregnant single woman (Roe) brought a class action challenging the constitutionality
of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion
except on medical advice for the purpose of saving the mother's life. A licensed physician
(Hallford), who had two state abortion prosecutions pending against him, was permitted to
intervene. A childless married couple (the Does), the wife not being pregnant, separately
attacked the laws, basing alleged injury on the future possibilities of contraceptive
failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health. A
three-judge District Court, which consolidated the actions, held that Roe and Hallford,
and members of their classes, had standing to sue and presented justiciable controversies.
Ruling that declaratory, though not injunctive, relief was warranted, the court declared
the abortion statutes void as vague and overbroadly infringing those plaintiffs' Ninth and
Fourteenth Amendment rights. The court ruled the Does' complaint not justiciable.
Appellants directly appealed to this Court on the injunctive rulings, and appellee
cross-appealed from the District Court's grant of declaratory relief to Roe and Hallford.
- 1. While 28 U.S.C. 1253 authorizes no direct appeal to this Court from the grant or
denial of declaratory relief alone, review is not foreclosed when the case is properly
before the Court on appeal from specific denial of injunctive relief and the arguments as
to both injunctive and declaratory relief are necessarily identical. P. 123.
- 2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129.
- (a) Contrary to appellee's contention, the natural termination of Roe's pregnancy did
not moot her suit. Litigation involving pregnancy, which is "capable of repetition,
yet evading review," is an exception to the usual federal rule that an actual
controversy [410 U.S. 113, 114]
must exist at review stages and not simply when the action is initiated. Pp. 124-125.
- (b) The District Court correctly refused injunctive, but erred in granting declaratory,
relief to Hallford, who alleged no federally protected right not assertable as a defense
against the good-faith state prosecutions pending against him. Samuels v.
Mackell, 401 U.S. 66.
- (c) The Does' complaint, based as it is on contingencies, any one or more of which may
not occur, is too speculative to present an actual case or controversy. Pp. 127-129.
- 3. State criminal abortion laws, like those involved here, that except from criminality
only a life-saving procedure on the mother's behalf without regard to the stage of her
pregnancy and other interests involved violate the Due Process Clause of the Fourteenth
Amendment, which protects against state action the right to privacy, including a woman's
qualified right to terminate her pregnancy. Though the State cannot override that right,
it has legitimate interests in protecting both the pregnant woman's health and the
potentiality of human life, each of which interests grows and reaches a
"compelling" point at various stages of the woman's approach to term. Pp.
- (a) For the stage prior to approximately the end of the first trimester, the abortion
decision and its effectuation must be left to the medical judgment of the pregnant woman's
attending physician. Pp. 163, 164.
- (b) For the stage subsequent to approximately the end of the first trimester, the State,
in promoting its interest in the health of the mother, may, if it chooses, regulate the
abortion procedure in ways that are reasonably related to maternal health. Pp. 163, 164.
- (c) For the stage subsequent to viability the State, in promoting its interest in the
potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion
except where necessary, in appropriate medical judgment, for the preservation of the life
or health of the mother. Pp. 163-164; 164-165.
- 4. The State may define the term "physician" to mean only a physician
currently licensed by the State, and may proscribe any abortion by a person who is not a
physician as so defined. P. 165.
- 5. It is unnecessary to decide the injunctive relief issue since the Texas authorities
will doubtless fully recognize the Court's ruling [410 U.S. 113, 115] that the Texas criminal abortion statutes are
unconstitutional. P. 166.
314 F. Supp. 1217, affirmed in part and reversed in part.
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and DOUGLAS,
BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. BURGER, C. J., post, p. 207, DOUGLAS,
J., post, p. 209, and STEWART, J., post, p. 167, filed concurring opinions. WHITE, J.,
filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 221. REHNQUIST, J.,
filed a dissenting opinion, post, p. 171.
Sarah Weddington reargued the cause for appellants. With her on the briefs were Roy
Lucas, Fred Bruner, Roy L. Merrill, Jr., and Norman Dorsen.
Robert C. Flowers, Assistant Attorney General of Texas, argued the cause for appellee
on the reargument. Jay Floyd, Assistant Attorney General, argued the cause for appellee on
the original argument. With them on the brief were Crawford C. Martin, Attorney General,
Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney
General, Henry Wade, and John B. Tolle.* [410 U.S. 113, 116]
[Footnote *] Briefs of amici curiae were
filed by Gary K. Nelson, Attorney General of Arizona, Robert K. Killian, Attorney General
of Connecticut, Ed W. Hancock, Attorney General of Kentucky, Clarence A. H. Meyer,
Attorney General of Nebraska, and Vernon B. Romney, Attorney General of Utah; by Joseph P.
Witherspoon, Jr., for the Association of Texas Diocesan Attorneys; by Charles E. Rice for
Americans United for Life; by Eugene J. McMahon for Women for the Unborn et al.; by Carol
Ryan for the American College of Obstetricians and Gynecologists et al.; by Dennis J.
Horan, Jerome A. Frazel, Jr., Thomas M. Crisham, and Dolores V. Horan for Certain
Physicians, Professors and Fellows of the American College of Obstetrics and Gynecology;
by Harriet F. Pilpel, Nancy F. Wechsler, and Frederic S. Nathan for Planned Parenthood
Federation of America, Inc., et al.; by Alan F. Charles for the National Legal Program on
Health Problems of the Poor et al.; by Marttie L. Thompson for State Communities Aid
Assn.; by [410 U.S. 113, 116]
Alfred L. Scanlan, Martin J. Flynn, and Robert M. Byrn for the National Right to Life
Committee; by Helen L. Buttenwieser for the American Ethical Union et al.; by Norma G.
Zarky for the American Association of University Women et al.; by Nancy Stearns for New
Women Lawyers et al.; by the California Committee to Legalize Abortion et al.; and by
Robert E. Dunne for Robert L. Sassone.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 179,
present constitutional challenges to state criminal abortion legislation. The Texas
statutes under attack here are typical of those that have been in effect in many States
for approximately a century. The Georgia statutes, in contrast, have a modern cast and are
a legislative product that, to an extent at least, obviously reflects the influences of
recent attitudinal change, of advancing medical knowledge and techniques, and of new
thinking about an old issue.
We forthwith acknowledge our awareness of the sensitive and emotional nature of the
abortion controversy, of the vigorous opposing views, even among physicians, and of the
deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's
experiences, one's exposure to the raw edges of human existence, one's religious training,
one's attitudes toward life and family and their values, and the moral standards one
establishes and seeks to observe, are all likely to influence and to color one's thinking
and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to
complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional measurement, free of
emotion and of predilection. We seek earnestly to do this, and, because we do, we [410 U.S. 113, 117] have inquired
into, and in this opinion place some emphasis upon, medical and medical-legal history and
what that history reveals about man's attitudes toward the abortion procedure over the
centuries. We bear in mind, too, Mr. Justice Holmes' admonition in his now-vindicated
dissent in Lochner v. New York, 198 U.S. 45, 76
- "[The Constitution] is made for people of fundamentally differing views, and the
accident of our finding certain opinions natural and familiar or novel and even shocking
ought not to conclude our judgment upon the question whether statutes embodying them
conflict with the Constitution of the United States."
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's
Penal Code.1 These make it a crime to
"procure an abortion," as therein [410
U.S. 113, 118] defined, or to attempt one, except with respect to "an
abortion procured or attempted by medical advice for the purpose of saving the life of the
mother." Similar statutes are in existence in a majority of the States.2 [410
U.S. 113, 119]
Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49, 1, set
forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon modified into language that
has remained substantially unchanged to the present time. See Texas Penal Code of 1857, c.
7, Arts. 531-536; G. Paschal, Laws of Texas, Arts. 2192-2197 (1866); Texas Rev. Stat., c.
8, Arts. 536-541 (1879); Texas Rev. Crim. Stat., Arts. 1071-1076 (1911). The final article
in each of these compilations provided the same exception, as does the present Article
1196, for an abortion by "medical advice for the purpose of saving the life of the
mother."3 [410 U.S. 113, 120]
Jane Roe,4 a single woman who was residing
in Dallas County, Texas, instituted this federal action in March 1970 against the District
Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion
statutes were unconstitutional on their face, and an injunction restraining the defendant
from enforcing the statutes.
Roe alleged that she was unmarried and pregnant; that she wished to terminate her
pregnancy by an abortion "performed by a competent, licensed physician, under safe,
clinical conditions"; that she was unable to get a "legal" abortion in
Texas because her life did not appear to be threatened by the continuation of her
pregnancy; and that she could not afford to travel to another jurisdiction in order to
secure a legal abortion under safe conditions. She claimed that the Texas statutes were
unconstitutionally vague and that they abridged her right of personal privacy, protected
by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her
complaint Roe purported to sue "on behalf of herself and all other women"
James Hubert Hallford, a licensed physician, sought and was granted leave to intervene
in Roe's action. In his complaint he alleged that he had been arrested previously for
violations of the Texas abortion statutes and [410
U.S. 113, 121] that two such prosecutions were pending against him. He
described conditions of patients who came to him seeking abortions, and he claimed that
for many cases he, as a physician, was unable to determine whether they fell within or
outside the exception recognized by Article 1196. He alleged that, as a consequence, the
statutes were vague and uncertain, in violation of the Fourteenth Amendment, and that they
violated his own and his patients' rights to privacy in the doctor-patient relationship
and his own right to practice medicine, rights he claimed were guaranteed by the First,
Fourth, Fifth, Ninth, and Fourteenth Amendments.
John and Mary Doe,5 a married couple, filed
a companion complaint to that of Roe. They also named the District Attorney as defendant,
claimed like constitutional deprivations, and sought declaratory and injunctive relief.
The Does alleged that they were a childless couple; that Mrs. Doe was suffering from a
"neural-chemical" disorder; that her physician had "advised her to avoid
pregnancy until such time as her condition has materially improved" (although a
pregnancy at the present time would not present "a serious risk" to her life);
that, pursuant to medical advice, she had discontinued use of birth control pills; and
that if she should become pregnant, she would want to terminate the pregnancy by an
abortion performed by a competent, licensed physician under safe, clinical conditions. By
an amendment to their complaint, the Does purported to sue "on behalf of themselves
and all couples similarly situated."
The two actions were consolidated and heard together by a duly convened three-judge
district court. The suits thus presented the situations of the pregnant single woman, the
childless couple, with the wife not pregnant, [410
U.S. 113, 122] and the licensed practicing physician, all joining in the attack
on the Texas criminal abortion statutes. Upon the filing of affidavits, motions were made
for dismissal and for summary judgment. The court held that Roe and members of her class,
and Dr. Hallford, had standing to sue and presented justiciable controversies, but that
the Does had failed to allege facts sufficient to state a present controversy and did not
have standing. It concluded that, with respect to the requests for a declaratory judgment,
abstention was not warranted. On the merits, the District Court held that the
"fundamental right of single women and married persons to choose whether to have
children is protected by the Ninth Amendment, through the Fourteenth Amendment," and
that the Texas criminal abortion statutes were void on their face because they were both
unconstitutionally vague and constituted an overbroad infringement of the plaintiffs'
Ninth Amendment rights. The court then held that abstention was warranted with respect to
the requests for an injunction. It therefore dismissed the Does' complaint, declared the
abortion statutes void, and dismissed the application for injunctive relief. 314 F. Supp.
1217, 1225 (ND Tex. 1970).
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C. 1253,
have appealed to this Court from that part of the District Court's judgment denying the
injunction. The defendant District Attorney has purported to cross-appeal, pursuant to the
same statute, from the court's grant of declaratory relief to Roe and Hallford. Both sides
also have taken protective appeals to the United States Court of Appeals for the Fifth
Circuit. That court ordered the appeals held in abeyance pending decision here. We
postponed decision on jurisdiction to the hearing on the merits. 402 U.S. 941
(1971). [410 U.S. 113, 123]
It might have been preferable if the defendant, pursuant to our Rule 20, had presented
to us a petition for certiorari before judgment in the Court of Appeals with respect to
the granting of the plaintiffs' prayer for declaratory relief. Our decisions in Mitchell
v. Donovan, 398 U.S. 427
(1970), and Gunn v. University Committee, 399 U.S. 383
(1970), are to the effect that 1253 does not authorize an appeal to this Court from the
grant or denial of declaratory relief alone. We conclude, nevertheless, that those
decisions do not foreclose our review of both the injunctive and the declaratory aspects
of a case of this kind when it is properly here, as this one is, on appeal under 1253 from
specific denial of injunctive relief, and the arguments as to both aspects are necessarily
identical. See Carter v. Jury Comm'n, 396 U.S. 320
(1970); Florida Lime Growers v. Jacobsen, 362 U.S.
73, 80-81 (1960). It would be destructive of time and energy for all concerned were we
to rule otherwise. Cf. Doe v. Bolton, post, p. 179.
We are next confronted with issues of justiciability, standing, and abstention. Have
Roe and the Does established that "personal stake in the outcome of the
controversy," Baker v. Carr, 369 U.S.
186, 204 (1962), that insures that "the dispute sought to be adjudicated will be
presented in an adversary context and in a form historically viewed as capable of judicial
resolution," Flast v. Cohen, 392 U.S.
83, 101 (1968), and Sierra Club v. Morton, 405 U.S.
727, 732 (1972)? And what effect did the pendency of criminal abortion charges against
Dr. Hallford in state court have upon the propriety of the federal court's granting relief
to him as a plaintiff-intervenor? [410 U.S.
A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe is a
fictitious person. For purposes of her case, we accept as true, and as established, her
existence; her pregnant state, as of the inception of her suit in March 1970 and as late
as May 21 of that year when she filed an alias affidavit with the District Court; and her
inability to obtain a legal abortion in Texas.
Viewing Roe's case as of the time of its filing and thereafter until as late as May,
there can be little dispute that it then presented a case or controversy and that, wholly
apart from the class aspects, she, as a pregnant single woman thwarted by the Texas
criminal abortion laws, had standing to challenge those statutes. Abele v. Markle, 452
F.2d 1121, 1125 (CA2 1971); Crossen v. Breckenridge, 446 F.2d 833, 838-839 (CA6 1971); Poe
v. Menghini, 339 F. Supp. 986, 990-991 (Kan. 1972). See Truax v. Raich, 239 U.S. 33 (1915).
Indeed, we do not read the appellee's brief as really asserting anything to the contrary.
The "logical nexus between the status asserted and the claim sought to be
adjudicated," Flast v. Cohen, 392
U.S., at 102, and the necessary degree of contentiousness, Golden v. Zwickler, 394 U.S. 103
(1969), are both present.
The appellee notes, however, that the record does not disclose that Roe was pregnant at
the time of the District Court hearing on May 22, 1970,6 or on the following June 17 when the court's opinion and judgment were
filed. And he suggests that Roe's case must now be moot because she and all other members
of her class are no longer subject to any 1970 pregnancy. [410 U.S. 113, 125]
The usual rule in federal cases is that an actual controversy must exist at stages of
appellate or certiorari review, and not simply at the date the action is initiated. United
States v. Munsingwear, Inc., 340 U.S. 36
(1950); Golden v. Zwickler, supra; SEC v. Medical Committee for Human Rights, 404 U.S. 403
But when, as here, pregnancy is a significant fact in the litigation, the normal
266-day human gestation period is so short that the pregnancy will come to term before the
usual appellate process is complete. If that termination makes a case moot, pregnancy
litigation seldom will survive much beyond the trial stage, and appellate review will be
effectively denied. Our law should not be that rigid. Pregnancy often comes more than once
to the same woman, and in the general population, if man is to survive, it will always be
with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It
truly could be "capable of repetition, yet evading review." Southern Pacific
Terminal Co. v. ICC, 219
U.S. 498, 515 (1911). See Moore v. Ogilvie, 394 U.S.
814, 816 (1969); Carroll v. Princess Anne, 393 U.S.
175, 178-179 (1968); United States v. W. T. Grant Co., 345 U.S.
629, 632-633 (1953).
We, therefore, agree with the District Court that Jane Roe had standing to undertake
this litigation, that she presented a justiciable controversy, and that the termination of
her 1970 pregnancy has not rendered her case moot.
B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation as a
plaintiff-intervenor, alleging in his complaint that he:
- "[I]n the past has been arrested for violating the Texas Abortion Laws and at the
present time stands charged by indictment with violating said laws in the Criminal
District Court of Dallas County, Texas to-wit: (1) The State of Texas vs. [410 U.S. 113, 126] James H. Hallford, No.
C-69-5307-IH, and (2) The State of Texas vs. James H. Hallford, No. C-69-2524-H. In both
cases the defendant is charged with abortion . . . ."
In his application for leave to intervene, the doctor made like representations as to
the abortion charges pending in the state court. These representations were also repeated
in the affidavit he executed and filed in support of his motion for summary judgment.
Dr. Hallford is, therefore, in the position of seeking, in a federal court, declaratory
and injunctive relief with respect to the same statutes under which he stands charged in
criminal prosecutions simultaneously pending in state court. Although he stated that he
has been arrested in the past for violating the State's abortion laws, he makes no
allegation of any substantial and immediate threat to any federally protected right that
cannot be asserted in his defense against the state prosecutions. Neither is there any
allegation of harassment or bad-faith prosecution. In order to escape the rule articulated
in the cases cited in the next paragraph of this opinion that, absent harassment and bad
faith, a defendant in a pending state criminal case cannot affirmatively challenge in
federal court the statutes under which the State is prosecuting him, Dr. Hallford seeks to
distinguish his status as a present state defendant from his status as a "potential
future defendant" and to assert only the latter for standing purposes here.
We see no merit in that distinction. Our decision in Samuels v. Mackell, 401 U.S. 66
(1971), compels the conclusion that the District Court erred when it granted declaratory
relief to Dr. Hallford instead of refraining from so doing. The court, of course, was
correct in refusing to grant injunctive relief to the doctor. The reasons supportive of
that action, however, are those expressed in Samuels v. Mackell, supra, and in Younger v. [410 U.S. 113, 127] Harris,
401 U.S. 37
(1971); Boyle v. Landry, 401 U.S. 77
(1971); Perez v. Ledesma, 401 U.S. 82
(1971); and Byrne v. Karalexis, 401 U.S. 216
(1971). See also Dombrowski v. Pfister, 380 U.S. 479
(1965). We note, in passing, that Younger and its companion cases were decided after the
three-judge District Court decision in this case.
Dr. Hallford's complaint in intervention, therefore, is to be dismissed.7 He is remitted to his defenses in the state
criminal proceedings against him. We reverse the judgment of the District Court insofar as
it granted Dr. Hallford relief and failed to dismiss his complaint in intervention.
C. The Does. In view of our ruling as to Roe's standing in her case, the issue of the
Does' standing in their case has little significance. The claims they assert are
essentially the same as those of Roe, and they attack the same statutes. Nevertheless, we
briefly note the Does' posture.
Their pleadings present them as a childless married couple, the woman not being
pregnant, who have no desire to have children at this time because of their having
received medical advice that Mrs. Doe should avoid pregnancy, and for "other highly
personal reasons." But they "fear . . . they may face the prospect of becoming [410 U.S. 113, 128] parents."
And if pregnancy ensues, they "would want to terminate" it by an abortion. They
assert an inability to obtain an abortion legally in Texas and, consequently, the prospect
of obtaining an illegal abortion there or of going outside Texas to some place where the
procedure could be obtained legally and competently.
We thus have as plaintiffs a married couple who have, as their asserted immediate and
present injury, only an alleged "detrimental effect upon [their] marital
happiness" because they are forced to "the choice of refraining from normal
sexual relations or of endangering Mary Doe's health through a possible pregnancy."
Their claim is that sometime in the future Mrs. Doe might become pregnant because of
possible failure of contraceptive measures, and at that time in the future she might want
an abortion that might then be illegal under the Texas statutes.
This very phrasing of the Does' position reveals its speculative character. Their
alleged injury rests on possible future contraceptive failure, possible future pregnancy,
possible future unpreparedness for parenthood, and possible future impairment of health.
Any one or more of these several possibilities may not take place and all may not combine.
In the Does' estimation, these possibilities might have some real or imagined impact upon
their marital happiness. But we are not prepared to say that the bare allegation of so
indirect an injury is sufficient to present an actual case or controversy. Younger v.
Harris, 401 U.S.,
at 41-42; Golden v. Zwickler, 394
U.S., at 109-110; Abele v. Markle, 452 F.2d, at 1124-1125; Crossen v. Breckenridge,
446 F.2d, at 839. The Does' claim falls far short of those resolved otherwise in the cases
that the Does urge upon us, namely, Investment Co. Institute v. Camp, 401 U.S. 617
(1971); Data Processing Service v. Camp, 397 U.S. 150
(1970); [410 U.S. 113, 129] and
Epperson v. Arkansas, 393 U.S. 97
(1968). See also Truax v. Raich, 239 U.S. 33 (1915).
The Does therefore are not appropriate plaintiffs in this litigation. Their complaint
was properly dismissed by the District Court, and we affirm that dismissal.
The principal thrust of appellant's attack on the Texas statutes is that they
improperly invade a right, said to be possessed by the pregnant woman, to choose to
terminate her pregnancy. Appellant would discover this right in the concept of personal
"liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in
personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights
or its penumbras, see Griswold v. Connecticut, 381 U.S. 479
(1965); Eisenstadt v. Baird, 405 U.S. 438
(1972); id., at 460 (WHITE, J., concurring in result); or among those rights reserved to
the people by the Ninth Amendment, Griswold v. Connecticut, 381
U.S., at 486 (Goldberg, J., concurring). Before addressing this claim, we feel it
desirable briefly to survey, in several aspects, the history of abortion, for such insight
as that history may afford us, and then to examine the state purposes and interests behind
the criminal abortion laws.
It perhaps is not generally appreciated that the restrictive criminal abortion laws in
effect in a majority of States today are of relatively recent vintage. Those laws,
generally proscribing abortion or its attempt at any time during pregnancy except when
necessary to preserve the pregnant woman's life, are not of ancient or even of common-law
origin. Instead, they derive from statutory changes effected, for the most part, in the
latter half of the 19th century. [410 U.S.
1. Ancient attitudes. These are not capable of precise determination. We are told that
at the time of the Persian Empire abortifacients were known and that criminal abortions
were severely punished.8 We are also told,
however, that abortion was practiced in Greek times as well as in the Roman Era,9 and that "it was resorted to without
scruple."10 The Ephesian, Soranos,
often described as the greatest of the ancient gynecologists, appears to have been
generally opposed to Rome's prevailing free-abortion practices. He found it necessary to
think first of the life of the mother, and he resorted to abortion when, upon this
standard, he felt the procedure advisable.11
Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted
in some places, it seems to have been based on a concept of a violation of the father's
right to his offspring. Ancient religion did not bar abortion.12
2. The Hippocratic Oath. What then of the famous Oath that has stood so long as the
ethical guide of the medical profession and that bears the name of the great Greek
(460(?)-377(?) B. C.), who has been described [410
U.S. 113, 131] as the Father of Medicine, the "wisest and the greatest
practitioner of his art," and the "most important and most complete medical
personality of antiquity," who dominated the medical schools of his time, and who
typified the sum of the medical knowledge of the past?13 The Oath varies somewhat according to the particular translation, but in
any translation the content is clear: "I will give no deadly medicine to anyone if
asked, nor suggest any such counsel; and in like manner I will not give to a woman a
pessary to produce abortion,"14 or
"I will neither give a deadly drug to anybody if asked for it, nor will I make a
suggestion to this effect. Similarly, I will not give to a woman an abortive remedy."15
Although the Oath is not mentioned in any of the principal briefs in this case or in
Doe v. Bolton, post, p. 179, it represents the apex of the development of strict ethical
concepts in medicine, and its influence endures to this day. Why did not the authority of
Hippocrates dissuade abortion practice in his time and that of Rome? The late Dr.
Edelstein provides us with a theory:16 The
Oath was not uncontested even in Hippocrates' day; only the Pythagorean school of
philosophers frowned upon the related act of suicide. Most Greek thinkers, on the other
hand, commended abortion, at least prior to viability. See Plato, Republic, V, 461;
Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however, it was a matter of
dogma. For them the embryo was animate from the moment of conception, and abortion meant
destruction of a living being. The abortion clause of the Oath, therefore, "echoes
Pythagorean doctrines," [410 U.S. 113,
132] and "[i]n no other stratum of Greek opinion were such views held or
proposed in the same spirit of uncompromising austerity."17
Dr. Edelstein then concludes that the Oath originated in a group representing only a
small segment of Greek opinion and that it certainly was not accepted by all ancient
physicians. He points out that medical writings down to Galen (A. D. 130-200) "give
evidence of the violation of almost every one of its injunctions."18 But with the end of antiquity a decided
change took place. Resistance against suicide and against abortion became common. The Oath
came to be popular. The emerging teachings of Christianity were in agreement with the
Pythagorean ethic. The Oath "became the nucleus of all medical ethics" and
"was applauded as the embodiment of truth." Thus, suggests Dr. Edelstein, it is
"a Pythagorean manifesto and not the expression of an absolute standard of medical
This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic
Oath's apparent rigidity. It enables us to understand, in historical context, a
long-accepted and revered statement of medical ethics.
3. The common law. It is undisputed that at common law, abortion performed before
"quickening" - the first recognizable movement of the fetus in utero, appearing
usually from the 16th to the 18th week of pregnancy20 - was not an indictable offense.21 The absence [410 U.S. 113,
133] of a common-law crime for pre-quickening abortion appears to have
developed from a confluence of earlier philosophical, theological, and civil and canon law
concepts of when life begins. These disciplines variously approached the question in terms
of the point at which the embryo or fetus became "formed" or recognizably human,
or in terms of when a "person" came into being, that is, infused with a
"soul" or "animated." A loose consensus evolved in early English law
that these events occurred at some point between conception and live birth.22 This was "mediate animation."
Although [410 U.S. 113, 134]
Christian theology and the canon law came to fix the point of animation at 40 days for a
male and 80 days for a female, a view that persisted until the 19th century, there was
otherwise little agreement about the precise time of formation or animation. There was
agreement, however, that prior to this point the fetus was to be regarded as part of the
mother, and its destruction, therefore, was not homicide. Due to continued uncertainty
about the precise time when animation occurred, to the lack of any empirical basis for the
40-80-day view, and perhaps to Aquinas' definition of movement as one of the two first
principles of life, Bracton focused upon quickening as the critical point. The
significance of quickening was echoed by later common-law scholars and found its way into
the received common law in this country.
Whether abortion of a quick fetus was a felony at common law, or even a lesser crime,
is still disputed. Bracton, writing early in the 13th century, thought it homicide.23 But the later and predominant view,
following the great common-law scholars, has been that it was, at most, a lesser offense.
In a frequently cited [410 U.S. 113, 135]
passage, Coke took the position that abortion of a woman "quick with childe" is
"a great misprision, and no murder."24
Blackstone followed, saying that while abortion after quickening had once been considered
manslaughter (though not murder), "modern law" took a less severe view.25 A recent review of the common-law precedents
argues, however, that those precedents contradict Coke and that even post-quickening
abortion was never established as a common-law crime.26 This is of some importance because while most American courts ruled, in
holding or dictum, that abortion of an unquickened fetus was not criminal under their
received common law,27 others followed Coke
in stating that abortion [410 U.S. 113, 136]
of a quick fetus was a "misprision," a term they translated to mean
"misdemeanor."28 That their
reliance on Coke on this aspect of the law was uncritical and, apparently in all the
reported cases, dictum (due probably to the paucity of common-law prosecutions for
post-quickening abortion), makes it now appear doubtful that abortion was ever firmly
established as a common-law crime even with respect to the destruction of a quick fetus.
4. The English statutory law. England's first criminal abortion statute, Lord
Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick fetus, 1,
a capital crime, but in 2 it provided lesser penalties for the felony of abortion before
quickening, and thus preserved the "quickening" distinction. This contrast was
continued in the general revision of 1828, 9 Geo. 4, c. 31, 13. It disappeared, however,
together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85. 6, and did not
reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, 59,
that formed the core of English anti-abortion law until the liberalizing reforms of 1967.
In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into being.
Its emphasis was upon the destruction of "the life of a child capable of being born
alive." It made a willful act performed with the necessary intent a felony. It
contained a proviso that one was not to be [410
U.S. 113, 137] found guilty of the offense "unless it is proved that the
act which caused the death of the child was not done in good faith for the purpose only of
preserving the life of the mother."
A seemingly notable development in the English law was the case of Rex v. Bourne, 1939.
1 K. B. 687. This case apparently answered in the affirmative the question whether an
abortion necessary to preserve the life of the pregnant woman was excepted from the
criminal penalties of the 1861 Act. In his instructions to the jury, Judge Macnaghten
referred to the 1929 Act, and observed that that Act related to "the case where a
child is killed by a wilful act at the time when it is being delivered in the ordinary
course of nature." Id., at 691. He concluded that the 1861 Act's use of the word
"unlawfully," imported the same meaning expressed by the specific proviso in the
1929 Act, even though there was no mention of preserving the mother's life in the 1861
Act. He then construed the phrase "preserving the life of the mother" broadly,
that is, "in a reasonable sense," to include a serious and permanent threat to
the mother's health, and instructed the jury to acquit Dr. Bourne if it found he had acted
in a good-faith belief that the abortion was necessary for this purpose. Id., at 693-694.
The jury did acquit.
Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15
& 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an abortion where
two other licensed physicians agree (a) "that the continuance of the pregnancy would
involve risk to the life of the pregnant woman, or of injury to the physical or mental
health of the pregnant woman or any existing children of her family, greater than if the
pregnancy were terminated," or (b) "that there is a substantial risk that if the
child were born it would suffer from such physical or mental abnormalities as [410 U.S. 113, 138] to be seriously
handicapped." The Act also provides that, in making this determination, "account
may be taken of the pregnant woman's actual or reasonably foreseeable environment."
It also permits a physician, without the concurrence of others, to terminate a pregnancy
where he is of the good-faith opinion that the abortion "is immediately necessary to
save the life or to prevent grave permanent injury to the physical or mental health of the
5. The American law. In this country, the law in effect in all but a few States until
mid-19th century was the pre-existing English common law. Connecticut, the first State to
enact abortion legislation, adopted in 1821 that part of Lord Ellenborough's Act that
related to a woman "quick with child."29
The death penalty was not imposed. Abortion before quickening was made a crime in that
State only in 1860.30 In 1828, New York
enacted legislation31 that, in two respects,
was to serve as a model for early anti-abortion statutes. First, while barring destruction
of an unquickened fetus as well as a quick fetus, it made the former only a misdemeanor,
but the latter second-degree manslaughter. Second, it incorporated a concept of
therapeutic abortion by providing that an abortion was excused if it "shall have been
necessary to preserve the life of such mother, or shall have been advised by two
physicians to be necessary for such purpose." By 1840, when Texas had received the
common law,32 only eight American States [410 U.S. 113, 139] had statutes
dealing with abortion.33 It was not until
after the War Between the States that legislation began generally to replace the common
law. Most of these initial statutes dealt severely with abortion after quickening but were
lenient with it before quickening. Most punished attempts equally with completed
abortions. While many statutes included the exception for an abortion thought by one or
more physicians to be necessary to save the mother's life, that provision soon disappeared
and the typical law required that the procedure actually be necessary for that purpose.
Gradually, in the middle and late 19th century the quickening distinction disappeared
from the statutory law of most States and the degree of the offense and the penalties were
increased. By the end of the 1950's, a large majority of the jurisdictions banned
abortion, however and whenever performed, unless done to save or preserve the life of the
mother.34 The exceptions, Alabama and the
District of Columbia, permitted abortion to preserve the mother's health.35 Three States permitted abortions that were
not "unlawfully" performed or that were not "without lawful
justification," leaving interpretation of those standards to the courts.36 In [410 U.S. 113, 140] the past several years, however, a trend toward
liberalization of abortion statutes has resulted in adoption, by about one-third of the
States, of less stringent laws, most of them patterned after the ALI Model Penal Code,
230.3,37 set forth as Appendix B to the
opinion in Doe v. Bolton, post, p. 205.
It is thus apparent that at common law, at the time of the adoption of our
Constitution, and throughout the major portion of the 19th century, abortion was viewed
with less disfavor than under most American statutes currently in effect. Phrasing it
another way, a woman enjoyed a substantially broader right to terminate a pregnancy than
she does in most States today. At least with respect to the early stage of pregnancy, and
very possibly without such a limitation, the opportunity [410 U.S. 113, 141] to make this choice was present in
this country well into the 19th century. Even later, the law continued for some time to
treat less punitively an abortion procured in early pregnancy.
6. The position of the American Medical Association. The anti-abortion mood prevalent
in this country in the late 19th century was shared by the medical profession. Indeed, the
attitude of the profession may have played a significant role in the enactment of
stringent criminal abortion legislation during that period.
An AMA Committee on Criminal Abortion was appointed in May 1857. It presented its
report, 12 Trans. of the Am. Med. Assn. 73-78 (1859), to the Twelfth Annual Meeting. That
report observed that the Committee had been appointed to investigate criminal abortion
"with a view to its general suppression." It deplored abortion and its frequency
and it listed three causes of "this general demoralization":
- "The first of these causes is a wide-spread popular ignorance of the true character
of the crime - a belief, even among mothers themselves, that the foetus is not alive till
after the period of quickening.
- "The second of the agents alluded to is the fact that the profession themselves are
frequently supposed careless of foetal life . . . .
- "The third reason of the frightful extent of this crime is found in the grave
defects of our laws, both common and statute, as regards the independent and actual
existence of the child before birth, as a living being. These errors, which are sufficient
in most instances to prevent conviction, are based, and only based, upon mistaken and
exploded medical dogmas. With strange inconsistency, the law fully acknowledges the foetus
in utero and its inherent rights, for civil purposes; while personally and as criminally
affected, it fails to recognize it, [410 U.S.
113, 142] and to its life as yet denies all protection." Id., at 75-76.
The Committee then offered, and the Association adopted, resolutions protesting
"against such unwarrantable destruction of human life," calling upon state
legislatures to revise their abortion laws, and requesting the cooperation of state
medical societies "in pressing the subject." Id., at 28, 78.
In 1871 a long and vivid report was submitted by the Committee on Criminal Abortion. It
ended with the observation, "We had to deal with human life. In a matter of less
importance we could entertain no compromise. An honest judge on the bench would call
things by their proper names. We could do no less." 22 Trans. of the Am. Med. Assn.
258 (1871). It proffered resolutions, adopted by the Association, id., at 38-39,
recommending, among other things, that it "be unlawful and unprofessional for any
physician to induce abortion or premature labor, without the concurrent opinion of at
least one respectable consulting physician, and then always with a view to the safety of
the child - if that be possible," and calling "the attention of the clergy of
all denominations to the perverted views of morality entertained by a large class of
females - aye, and men also, on this important question."
Except for periodic condemnation of the criminal abortionist, no further formal AMA
action took place until 1967. In that year, the Committee on Human Reproduction urged the
adoption of a stated policy of opposition to induced abortion, except when there is
"documented medical evidence" of a threat to the health or life of the mother,
or that the child "may be born with incapacitating physical deformity or mental
deficiency," or that a pregnancy "resulting from legally established statutory
or forcible rape or incest may constitute a threat to the mental or physical health of the
[410 U.S. 113, 143] patient,"
two other physicians "chosen because of their recognized professional competence have
examined the patient and have concurred in writing," and the procedure "is
performed in a hospital accredited by the Joint Commission on Accreditation of
Hospitals." The providing of medical information by physicians to state legislatures
in their consideration of legislation regarding therapeutic abortion was "to be
considered consistent with the principles of ethics of the American Medical
Association." This recommendation was adopted by the House of Delegates. Proceedings
of the AMA House of Delegates 40-51 (June 1967).
In 1970, after the introduction of a variety of proposed resolutions, and of a report
from its Board of Trustees, a reference committee noted "polarization of the medical
profession on this controversial issue"; division among those who had testified; a
difference of opinion among AMA councils and committees; "the remarkable shift in
testimony" in six months, felt to be influenced "by the rapid changes in state
laws and by the judicial decisions which tend to make abortion more freely
available;" and a feeling "that this trend will continue." On June 25,
1970, the House of Delegates adopted preambles and most of the resolutions proposed by the
reference committee. The preambles emphasized "the best interests of the
patient," "sound clinical judgment," and "informed patient
consent," in contrast to "mere acquiescence to the patient's demand." The
resolutions asserted that abortion is a medical procedure that should be performed by a
licensed physician in an accredited hospital only after consultation with two other
physicians and in conformity with state law, and that no party to the procedure should be
required to violate personally held moral principles.38 Proceedings [410 U.S. 113,
144] of the AMA House of Delegates 220 (June 1970). The AMA Judicial Council
rendered a complementary opinion.39
7. The position of the American Public Health Association. In October 1970, the
Executive Board of the APHA adopted Standards for Abortion Services. These were five in
- "a. Rapid and simple abortion referral must be readily available through state and
local public [410 U.S. 113, 145]
health departments, medical societies, or other nonprofit organizations.
- "b. An important function of counselling should be to simplify and expedite the
provision of abortion services; it should not delay the obtaining of these services.
- "c. Psychiatric consultation should not be mandatory. As in the case of other
specialized medical services, psychiatric consultation should be sought for definite
indications and not on a routine basis.
- "d. A wide range of individuals from appropriately trained, sympathetic volunteers
to highly skilled physicians may qualify as abortion counselors.
- "e. Contraception and/or sterilization should be discussed with each abortion
patient." Recommended Standards for Abortion Services, 61 Am. J. Pub. Health 396
Among factors pertinent to life and health risks associated with abortion were three
that "are recognized as important":
- "a. the skill of the physician,
- "b. the environment in which the abortion is performed, and above all
- "c. the duration of pregnancy, as determined by uterine size and confirmed by
menstrual history." Id., at 397.
It was said that "a well-equipped hospital" offers more protection "to
cope with unforeseen difficulties than an office or clinic without such resources. . . .
The factor of gestational age is of overriding importance." Thus, it was recommended
that abortions in the second trimester and early abortions in the presence of existing
medical complications be performed in hospitals as inpatient procedures. For pregnancies
in the first trimester, [410 U.S. 113, 146]
abortion in the hospital with or without overnight stay "is probably the safest
practice." An abortion in an extramural facility, however, is an acceptable
alternative "provided arrangements exist in advance to admit patients promptly if
unforeseen complications develop." Standards for an abortion facility were listed. It
was said that at present abortions should be performed by physicians or osteopaths who are
licensed to practice and who have "adequate training." Id., at 398.
8. The position of the American Bar Association. At its meeting in February 1972 the
ABA House of Delegates approved, with 17 opposing votes, the Uniform Abortion Act that had
been drafted and approved the preceding August by the Conference of Commissioners on
Uniform State Laws. 58 A. B. A. J. 380 (1972). We set forth the Act in full in the margin.40 The [410 U.S. 113, 147] Conference has appended an enlightening Prefatory
Three reasons have been advanced to explain historically the enactment of criminal
abortion laws in the 19th century and to justify their continued existence. [410 U.S. 113, 148]
It has been argued occasionally that these laws were the product of a Victorian social
concern to discourage illicit sexual conduct. Texas, however, does not advance this
justification in the present case, and it appears that no court or commentator has taken
the argument seriously.42 The appellants and
amici contend, moreover, that this is not a proper state purpose at all and suggest that,
if it were, the Texas statutes are overbroad in protecting it since the law fails to
distinguish between married and unwed mothers.
A second reason is concerned with abortion as a medical procedure. When most criminal
abortion laws were first enacted, the procedure was a hazardous one for the woman.43 This was particularly true prior to the [410 U.S. 113, 149] development of
antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister,
Pasteur, and others first announced in 1867, but were not generally accepted and employed
until about the turn of the century. Abortion mortality was high. Even after 1900, and
perhaps until as late as the development of antibiotics in the 1940's, standard modern
techniques such as dilation and curettage were not nearly so safe as they are today. Thus,
it has been argued that a State's real concern in enacting a criminal abortion law was to
protect the pregnant woman, that is, to restrain her from submitting to a procedure that
placed her life in serious jeopardy.
Modern medical techniques have altered this situation. Appellants and various amici
refer to medical data indicating that abortion in early pregnancy, that is, prior to the
end of the first trimester, although not without its risk, is now relatively safe.
Mortality rates for women undergoing early abortions, where the procedure is legal, appear
to be as low as or lower than the rates for normal childbirth.44 Consequently, any interest of the State in
protecting the woman from an inherently hazardous procedure, except when it would be
equally dangerous for her to forgo it, has largely disappeared. Of course, important state
interests in the areas of health and medical standards do remain. [410 U.S. 113, 150] The State has a legitimate
interest in seeing to it that abortion, like any other medical procedure, is performed
under circumstances that insure maximum safety for the patient. This interest obviously
extends at least to the performing physician and his staff, to the facilities involved, to
the availability of after-care, and to adequate provision for any complication or
emergency that might arise. The prevalence of high mortality rates at illegal
"abortion mills" strengthens, rather than weakens, the State's interest in
regulating the conditions under which abortions are performed. Moreover, the risk to the
woman increases as her pregnancy continues. Thus, the State retains a definite interest in
protecting the woman's own health and safety when an abortion is proposed at a late stage
The third reason is the State's interest - some phrase it in terms of duty - in
protecting prenatal life. Some of the argument for this justification rests on the theory
that a new human life is present from the moment of conception.45 The State's interest and general obligation
to protect life then extends, it is argued, to prenatal life. Only when the life of the
pregnant mother herself is at stake, balanced against the life she carries within her,
should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate
state interest in this area need not stand or fall on acceptance of the belief that life
begins at conception or at some other point prior to live birth. In assessing the State's
interest, recognition may be given to the less rigid claim that as long as at least
potential life is involved, the State may assert interests beyond the protection of the
pregnant woman alone. [410 U.S. 113, 151]
Parties challenging state abortion laws have sharply disputed in some courts the
contention that a purpose of these laws, when enacted, was to protect prenatal life.46 Pointing to the absence of legislative
history to support the contention, they claim that most state laws were designed solely to
protect the woman. Because medical advances have lessened this concern, at least with
respect to abortion in early pregnancy, they argue that with respect to such abortions the
laws can no longer be justified by any state interest. There is some scholarly support for
this view of original purpose.47 The few
state courts called upon to interpret their laws in the late 19th and early 20th centuries
did focus on the State's interest in protecting the woman's health rather than in
preserving the embryo and fetus.48
Proponents of this view point out that in many States, including Texas,49 by statute or judicial interpretation, the
pregnant woman herself could not be prosecuted for self-abortion or for cooperating in an
abortion performed upon her by another.50
They claim that adoption of the "quickening" distinction through received common
[410 U.S. 113, 152] law and state
statutes tacitly recognizes the greater health hazards inherent in late abortion and
impliedly repudiates the theory that life begins at conception.
It is with these interests, and the weight to be attached to them, that this case is
The Constitution does not explicitly mention any right of privacy. In a line of
decisions, however, going back perhaps as far as Union Pacific R. Co. v.
Botsford, 141 U.S. 250, 251
(1891), the Court has recognized that a right of personal privacy, or a guarantee of
certain areas or zones of privacy, does exist under the Constitution. In varying contexts,
the Court or individual Justices have, indeed, found at least the roots of that right in
the First Amendment, Stanley v. Georgia, 394 U.S.
557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9
(1968), Katz v. United States, 389 U.S.
347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see
Olmstead v. United States, 277 U.S. 438, 478
(1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v.
U.S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or
in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see
Meyer v. Nebraska, 262
U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can
be deemed "fundamental" or "implicit in the concept of ordered
liberty," Palko v. Connecticut, 302 U.S.
319, 325 (1937), are included in this guarantee of personal privacy. They also make it
clear that the right has some extension to activities relating to marriage, Loving v.
U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S.
535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405
U.S., at 453-454; id., at 460, 463-465 [410
U.S. 113, 153] (WHITE, J., concurring in result); family relationships, Prince
v. Massachusetts, 321 U.S.
158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535
(1925), Meyer v. Nebraska, supra.
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of
personal liberty and restrictions upon state action, as we feel it is, or, as the District
Court determined, in the Ninth Amendment's reservation of rights to the people, is broad
enough to encompass a woman's decision whether or not to terminate her pregnancy. The
detriment that the State would impose upon the pregnant woman by denying this choice
altogether is apparent. Specific and direct harm medically diagnosable even in early
pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a
distressful life and future. Psychological harm may be imminent. Mental and physical
health may be taxed by child care. There is also the distress, for all concerned,
associated with the unwanted child, and there is the problem of bringing a child into a
family already unable, psychologically and otherwise, to care for it. In other cases, as
in this one, the additional difficulties and continuing stigma of unwed motherhood may be
involved. All these are factors the woman and her responsible physician necessarily will
consider in consultation.
On the basis of elements such as these, appellant and some amici argue that the woman's
right is absolute and that she is entitled to terminate her pregnancy at whatever time, in
whatever way, and for whatever reason she alone chooses. With this we do not agree.
Appellant's arguments that Texas either has no valid interest at all in regulating the
abortion decision, or no interest strong enough to support any limitation upon the woman's
sole determination, are unpersuasive. The [410
U.S. 113, 154] Court's decisions recognizing a right of privacy also
acknowledge that some state regulation in areas protected by that right is appropriate. As
noted above, a State may properly assert important interests in safeguarding health, in
maintaining medical standards, and in protecting potential life. At some point in
pregnancy, these respective interests become sufficiently compelling to sustain regulation
of the factors that govern the abortion decision. The privacy right involved, therefore,
cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by
some amici that one has an unlimited right to do with one's body as one pleases bears a
close relationship to the right of privacy previously articulated in the Court's
decisions. The Court has refused to recognize an unlimited right of this kind in the past.
Jacobson v. Massachusetts, 197
U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927)
We, therefore, conclude that the right of personal privacy includes the abortion
decision, but that this right is not unqualified and must be considered against important
state interests in regulation.
We note that those federal and state courts that have recently considered abortion law
challenges have reached the same conclusion. A majority, in addition to the District Court
in the present case, have held state laws unconstitutional, at least in part, because of
vagueness or because of overbreadth and abridgment of rights. Abele v. Markle, 342 F.
Supp. 800 (Conn. 1972), appeal docketed, No. 72-56; Abele v. Markle, 351 F. Supp. 224
(Conn. 1972), appeal docketed, No. 72-730; Doe v. Bolton, 319 F. Supp. 1048 (ND Ga. 1970),
appeal decided today, post, p. 179; Doe v. Scott, 321 F. Supp. 1385 (ND Ill. 1971), appeal
docketed, No. 70-105; Poe v. Menghini, 339 F. Supp. 986 (Kan. 1972); YWCA v. Kugler, 342
F. Supp. 1048 (NJ 1972); Babbitz v. McCann, [410
U.S. 113, 155] 310 F. Supp. 293 (ED Wis. 1970), appeal dismissed, 400 U.S. 1
(1970); People v. Belous, 71 Cal. 2d 954, 458 P.2d 194 (1969), cert. denied, 397 U.S. 915
(1970); State v. Barquet, 262 So.2d 431 (Fla. 1972).
Others have sustained state statutes. Crossen v. Attorney General, 344 F. Supp. 587 (ED
Ky. 1972), appeal docketed, No. 72-256; Rosen v. Louisiana State Board of Medical
Examiners, 318 F. Supp. 1217 (ED La. 1970), appeal docketed, No. 70-42; Corkey v. Edwards,
322 F. Supp. 1248 (WDNC 1971), appeal docketed, No. 71-92; Steinberg v. Brown, 321 F.
Supp. 741 (ND Ohio 1970); Doe v. Rampton (Utah 1971), appeal docketed, No. 71-5666;
Cheaney v. State, ___ Ind. ___, 285 N. E. 2d 265 (1972); Spears v. State, 257 So.2d 876
(Miss. 1972); State v. Munson, 86 S. D. 663, 201 N. W. 2d 123 (1972), appeal docketed, No.
Although the results are divided, most of these courts have agreed that the right of
privacy, however based, is broad enough to cover the abortion decision; that the right,
nonetheless, is not absolute and is subject to some limitations; and that at some point
the state interests as to protection of health, medical standards, and prenatal life,
become dominant. We agree with this approach.
Where certain "fundamental rights" are involved, the Court has held that
regulation limiting these rights may be justified only by a "compelling state
interest," Kramer v. Union Free School District, 395 U.S.
621, 627 (1969); Shapiro v. Thompson, 394 U.S.
618, 634 (1969), Sherbert v. Verner, 374 U.S.
398, 406 (1963), and that legislative enactments must be narrowly drawn to express
only the legitimate state interests at stake. Griswold v. Connecticut, 381
U.S., at 485; Aptheker v. Secretary of State, 378 U.S.
500, 508 (1964); Cantwell v. Connecticut, 310 U.S.
296, 307-308 (1940); see [410 U.S. 113,
156] Eisenstadt v. Baird, 405
U.S., at 460, 463-464 (WHITE, J., concurring in result).
In the recent abortion cases, cited above, courts have recognized these principles.
Those striking down state laws have generally scrutinized the State's interests in
protecting health and potential life, and have concluded that neither interest justified
broad limitations on the reasons for which a physician and his pregnant patient might
decide that she should have an abortion in the early stages of pregnancy. Courts
sustaining state laws have held that the State's determinations to protect health or
prenatal life are dominant and constitutionally justifiable.
The District Court held that the appellee failed to meet his burden of demonstrating
that the Texas statute's infringement upon Roe's rights was necessary to support a
compelling state interest, and that, although the appellee presented "several
compelling justifications for state presence in the area of abortions," the statutes
outstripped these justifications and swept "far beyond any areas of compelling state
interest." 314 F. Supp., at 1222-1223. Appellant and appellee both contest that
holding. Appellant, as has been indicated, claims an absolute right that bars any state
imposition of criminal penalties in the area. Appellee argues that the State's
determination to recognize and protect prenatal life from and after conception constitutes
a compelling state interest. As noted above, we do not agree fully with either
A. The appellee and certain amici argue that the fetus is a "person" within
the language and meaning of the Fourteenth Amendment. In support of this, they outline at
length and in detail the well-known facts of fetal development. If this suggestion of
personhood is established, the appellant's case, of course, collapses, [410 U.S. 113, 157] for the fetus' right to life would
then be guaranteed specifically by the Amendment. The appellant conceded as much on
reargument.51 On the other hand, the
appellee conceded on reargument52 that no
case could be cited that holds that a fetus is a person within the meaning of the
The Constitution does not define "person" in so many words. Section 1 of the
Fourteenth Amendment contains three references to "person." The first, in
defining "citizens," speaks of "persons born or naturalized in the United
States." The word also appears both in the Due Process Clause and in the Equal
Protection Clause. "Person" is used in other places in the Constitution: in the
listing of qualifications for Representatives and Senators, Art. I, 2, cl. 2, and 3, cl.
3; in the Apportionment Clause, Art. I, 2, cl. 3;53
in the Migration and Importation provision, Art. I, 9, cl. 1; in the Emolument Clause,
Art. I, 9, cl. 8; in the Electors provisions, Art. II, 1, cl. 2, and the superseded cl. 3;
in the provision outlining qualifications for the office of President, Art. II, 1, cl. 5;
in the Extradition provisions, Art. IV, 2, cl. 2, and the superseded Fugitive Slave Clause
3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in 2 and 3 of the
Fourteenth Amendment. But in nearly all these instances, the use of the word is such that
it has application only postnatally. None indicates, with any assurance, that it has any
possible pre-natal application.54 [410 U.S. 113, 158]
All this, together with our observation, supra, that throughout the major portion of
the 19th century prevailing legal abortion practices were far freer than they are today,
persuades us that the word "person," as used in the Fourteenth Amendment, does
not include the unborn.55 This is in accord
with the results reached in those few cases where the issue has been squarely presented.
McGarvey v. Magee-Womens Hospital, 340 F. Supp. 751 (WD Pa. 1972); Byrn v. New York City
Health & Hospitals Corp., 31 N. Y. 2d 194, 286 N. E. 2d 887 (1972), appeal docketed,
No. 72-434; Abele v. Markle, 351 F. Supp. 224 (Conn. 1972), appeal docketed, No. 72-730.
Cf. Cheaney v. State, ___ Ind., at ___, 285 N. E. 2d, at 270; Montana v. Rogers, 278 F.2d
68, 72 (CA7 1960), aff'd sub nom. Montana v. Kennedy, 366 U.S. 308
(1961); Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 617 (1970); State v. Dickinson,
28 [410 U.S. 113, 159] Ohio St. 2d
65, 275 N. E. 2d 599 (1971). Indeed, our decision in United States v. Vuitch, 402 U.S. 62
(1971), inferentially is to the same effect, for we there would not have indulged in
statutory interpretation favorable to abortion in specified circumstances if the necessary
consequence was the termination of life entitled to Fourteenth Amendment protection.
This conclusion, however, does not of itself fully answer the contentions raised by
Texas, and we pass on to other considerations.
B. The pregnant woman cannot be isolated in her privacy. She carries an embryo and,
later, a fetus, if one accepts the medical definitions of the developing young in the
human uterus. See Dorland's Illustrated Medical Dictionary 478-479, 547 (24th ed. 1965).
The situation therefore is inherently different from marital intimacy, or bedroom
possession of obscene material, or marriage, or procreation, or education, with which
Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively
concerned. As we have intimated above, it is reasonable and appropriate for a State to
decide that at some point in time another interest, that of health of the mother or that
of potential human life, becomes significantly involved. The woman's privacy is no longer
sole and any right of privacy she possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is
present throughout pregnancy, and that, therefore, the State has a compelling interest in
protecting that life from and after conception. We need not resolve the difficult question
of when life begins. When those trained in the respective disciplines of medicine,
philosophy, and theology are unable to arrive at any consensus, the judiciary, at this
point in the development of man's knowledge, is not in a position to speculate as to the
answer. [410 U.S. 113, 160]
It should be sufficient to note briefly the wide divergence of thinking on this most
sensitive and difficult question. There has always been strong support for the view that
life does not begin until live birth. This was the belief of the Stoics.56 It appears to be the predominant, though not
the unanimous, attitude of the Jewish faith.57
It may be taken to represent also the position of a large segment of the Protestant
community, insofar as that can be ascertained; organized groups that have taken a formal
position on the abortion issue have generally regarded abortion as a matter for the
conscience of the individual and her family.58
As we have noted, the common law found greater significance in quickening. Physicians and
their scientific colleagues have regarded that event with less interest and have tended to
focus either upon conception, upon live birth, or upon the interim point at which the
fetus becomes "viable," that is, potentially able to live outside the mother's
womb, albeit with artificial aid.59
Viability is usually placed at about seven months (28 weeks) but may occur earlier, even
at 24 weeks.60 The Aristotelian theory of
"mediate animation," that held sway throughout the Middle Ages and the
Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th
century, despite opposition to this "ensoulment" theory from those in the Church
who would recognize the existence of life from [410 U.S. 113, 161] the moment of conception.61 The latter is now, of course, the official
belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held
by many non-Catholics as well, and by many physicians. Substantial problems for precise
definition of this view are posed, however, by new embryological data that purport to
indicate that conception is a "process" over time, rather than an event, and by
new medical techniques such as menstrual extraction, the "morning-after" pill,
implantation of embryos, artificial insemination, and even artificial wombs.62
In areas other than criminal abortion, the law has been reluctant to endorse any theory
that life, as we recognize it, begins before live birth or to accord legal rights to the
unborn except in narrowly defined situations and except when the rights are contingent
upon live birth. For example, the traditional rule of tort law denied recovery for
prenatal injuries even though the child was born alive.63 That rule has been changed in almost every jurisdiction. In most States,
recovery is said to be permitted only if the fetus was viable, or at least quick, when the
injuries were sustained, though few [410 U.S.
113, 162] courts have squarely so held.64 In a recent development, generally opposed by the commentators, some
States permit the parents of a stillborn child to maintain an action for wrongful death
because of prenatal injuries.65 Such an
action, however, would appear to be one to vindicate the parents' interest and is thus
consistent with the view that the fetus, at most, represents only the potentiality of
life. Similarly, unborn children have been recognized as acquiring rights or interests by
way of inheritance or other devolution of property, and have been represented by guardians
ad litem.66 Perfection of the interests
involved, again, has generally been contingent upon live birth. In short, the unborn have
never been recognized in the law as persons in the whole sense.
In view of all this, we do not agree that, by adopting one theory of life, Texas may
override the rights of the pregnant woman that are at stake. We repeat, however, that the
State does have an important and legitimate interest in preserving and protecting the
health of the pregnant woman, whether she be a resident of the State or a nonresident who
seeks medical consultation and treatment there, and that it has still another important
and legitimate interest in protecting the potentiality of human life. These interests are
separate and distinct. Each grows in substantiality as the woman approaches [410 U.S. 113, 163] term and, at a point during
pregnancy, each becomes "compelling."
With respect to the State's important and legitimate interest in the health of the
mother, the "compelling" point, in the light of present medical knowledge, is at
approximately the end of the first trimester. This is so because of the now-established
medical fact, referred to above at 149, that until the end of the first trimester
mortality in abortion may be less than mortality in normal childbirth. It follows that,
from and after this point, a State may regulate the abortion procedure to the extent that
the regulation reasonably relates to the preservation and protection of maternal health.
Examples of permissible state regulation in this area are requirements as to the
qualifications of the person who is to perform the abortion; as to the licensure of that
person; as to the facility in which the procedure is to be performed, that is, whether it
must be a hospital or may be a clinic or some other place of less-than-hospital status; as
to the licensing of the facility; and the like.
This means, on the other hand, that, for the period of pregnancy prior to this
"compelling" point, the attending physician, in consultation with his patient,
is free to determine, without regulation by the State, that, in his medical judgment, the
patient's pregnancy should be terminated. If that decision is reached, the judgment may be
effectuated by an abortion free of interference by the State.
With respect to the State's important and legitimate interest in potential life, the
"compelling" point is at viability. This is so because the fetus then presumably
has the capability of meaningful life outside the mother's womb. State regulation
protective of fetal life after viability thus has both logical and biological
justifications. If the State is interested in protecting fetal life after viability, it
may go so far as to proscribe abortion [410
U.S. 113, 164] during that period, except when it is necessary to preserve the
life or health of the mother.
Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting
legal abortions to those "procured or attempted by medical advice for the purpose of
saving the life of the mother," sweeps too broadly. The statute makes no distinction
between abortions performed early in pregnancy and those performed later, and it limits to
a single reason, "saving" the mother's life, the legal justification for the
procedure. The statute, therefore, cannot survive the constitutional attack made upon it
This conclusion makes it unnecessary for us to consider the additional challenge to the
Texas statute asserted on grounds of vagueness. See United States v. Vuitch, 402 U.S.,
To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that excepts from
criminality only a life-saving procedure on behalf of the mother, without regard to
pregnancy stage and without recognition of the other interests involved, is violative of
the Due Process Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first trimester, the abortion
decision and its effectuation must be left to the medical judgment of the pregnant woman's
(b) For the stage subsequent to approximately the end of the first trimester, the
State, in promoting its interest in the health of the mother, may, if it chooses, regulate
the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the
potentiality of human life [410 U.S. 113,
165] may, if it chooses, regulate, and even proscribe, abortion except where it
is necessary, in appropriate medical judgment, for the preservation of the life or health
of the mother.
2. The State may define the term "physician," as it has been employed in the
preceding paragraphs of this Part XI of this opinion, to mean only a physician currently
licensed by the State, and may proscribe any abortion by a person who is not a physician
as so defined.
In Doe v. Bolton, post, p. 179, procedural requirements contained in one of the modern
abortion statutes are considered. That opinion and this one, of course, are to be read
This holding, we feel, is consistent with the relative weights of the respective
interests involved, with the lessons and examples of medical and legal history, with the
lenity of the common law, and with the demands of the profound problems of the present
day. The decision leaves the State free to place increasing restrictions on abortion as
the period of pregnancy lengthens, so long as those restrictions are tailored to the
recognized state interests. The decision vindicates the right of the physician to
administer medical treatment according to his professional judgment up to the points where
important [410 U.S. 113, 166]
state interests provide compelling justifications for intervention. Up to those points,
the abortion decision in all its aspects is inherently, and primarily, a medical decision,
and basic responsibility for it must rest with the physician. If an individual
practitioner abuses the privilege of exercising proper medical judgment, the usual
remedies, judicial and intra-professional, are available.
Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas
abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be struck down
separately, for then the State would be left with a statute proscribing all abortion
procedures no matter how medically urgent the case.
Although the District Court granted appellant Roe declaratory relief, it stopped short
of issuing an injunction against enforcement of the Texas statutes. The Court has
recognized that different considerations enter into a federal court's decision as to
declaratory relief, on the one hand, and injunctive relief, on the other. Zwickler v.
U.S. 241, 252-255 (1967); Dombrowski v. Pfister, 380 U.S. 479
(1965). We are not dealing with a statute that, on its face, appears to abridge free
expression, an area of particular concern under Dombrowski and refined in Younger v.
Harris, 401 U.S.,
We find it unnecessary to decide whether the District Court erred in withholding
injunctive relief, for we assume the Texas prosecutorial authorities will give full
credence to this decision that the present criminal abortion statutes of that State are
The judgment of the District Court as to intervenor Hallford is reversed, and Dr.
Hallford's complaint in intervention is dismissed. In all other respects, the judgment [410 U.S. 113, 167] of the District
Court is affirmed. Costs are allowed to the appellee.
[For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 207.]
[For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 209.]
[For dissenting opinion of MR. JUSTICE WHITE, see post, p. 221.]
[Footnote 1] "Article 1191. Abortion
- "If any person shall designedly administer to a pregnant woman or knowingly procure
to be administered with her consent any drug or medicine, or shall use towards her any
violence or means whatever externally or internally applied, and thereby procure an
abortion, he shall be confined in the penitentiary not less than two nor more than five
years; if it be done without her consent, the punishment shall be doubled. By `abortion'
is meant that the life of the fetus or embryo shall be destroyed in the woman's womb or
that a premature birth thereof be caused.
- "Art. 1192. Furnishing the means
- "Whoever furnishes the means for procuring an abortion knowing the purpose intended
is guilty as an accomplice.
- "Art. 1193. Attempt at abortion
- "If the means used shall fail to produce an abortion, the offender is nevertheless
guilty of an attempt to produce abortion, provided [410 U.S. 113, 118] it be shown that such means were calculated to
produce that result, and shall be fined not less than one hundred nor more than one
- "Art. 1194. Murder in producing abortion
- "If the death of the mother is occasioned by an abortion so produced or by an
attempt to effect the same it is murder."
- "Art. 1196. By medical advice
- "Nothing in this chapter applies to an abortion procured or attempted by medical
advice for the purpose of saving the life of the mother."
The foregoing Articles, together with Art. 1195, compose Chapter 9 of Title 15 of the
Penal Code. Article 1195, not attacked here, reads:
- "Art. 1195. Destroying unborn child
- "Whoever shall during parturition of the mother destroy the vitality or life in a
child in a state of being born and before actual birth, which child would otherwise have
been born alive, shall be confined in the penitentiary for life or for not less than five
[Footnote 2] Ariz. Rev. Stat. Ann. 13-211
(1956); Conn. Pub. Act No. 1 (May 1972 special session) (in 4 Conn. Leg. Serv. 677
(1972)), and Conn. Gen. Stat. Rev. 53-29, 53-30 (1968) (or unborn child); Idaho Code
18-601 (1948); Ill. Rev. Stat., c. 38, 23-1 (1971); Ind. Code 35-1-58-1 (1971); Iowa Code
701.1 (1971); Ky. Rev. Stat. 436.020 (1962); La. Rev. Stat. 37:1285 (6) (1964) (loss of
medical license) (but see 14:87 (Supp. 1972) containing no exception for the life of the
mother under the criminal statute); Me. Rev. Stat. Ann., Tit. 17, 51 (1964); Mass. Gen.
Laws Ann., c. 272, 19 (1970) (using the term "unlawfully," construed to exclude
an abortion to save the mother's life, Kudish v. Bd. of Registration, 356 Mass. 98, 248 N.
E. 2d 264 (1969)); Mich. Comp. Laws 750.14 (1948); Minn. Stat. 617.18 (1971); Mo. Rev.
Stat. 559.100 (1969); Mont. Rev. Codes Ann. 94-401 (1969); Neb. Rev. Stat. 28-405 (1964);
Nev. Rev. Stat. 200.220 (1967); N. H. Rev. Stat. Ann. 585:13 (1955); N. J. Stat. Ann.
2A:87-1 (1969) ("without lawful justification"); N. D. Cent. Code 12-25-01,
12-25-02 (1960); Ohio Rev. Code Ann. 2901.16 (1953); Okla. Stat. Ann., Tit. 21, 861
(1972-1973 Supp.); Pa. Stat. Ann., Tit. 18, [410
U.S. 113, 119] 4718, 4719 (1963) ("unlawful"); R. I. Gen. Laws Ann.
11-3-1 (1969); S. D. Comp. Laws Ann. 22-17-1 (1967); Tenn. Code Ann. 39-301, 39-302
(1956); Utah Code Ann. 76-2-1, 76-2-2 (1953); Vt. Stat. Ann., Tit. 13, 101 (1958); W. Va.
Code Ann. 61-2-8 (1966); Wis. Stat. 940.04 (1969); Wyo. Stat. Ann. 6-77, 6-78 (1957).
[Footnote 3] Long ago, a suggestion was
made that the Texas statutes were unconstitutionally vague because of definitional
deficiencies. The Texas Court of Criminal Appeals disposed of that suggestion
peremptorily, saying only,
- "It is also insisted in the motion in arrest of judgment that the statute is
unconstitutional and void in that it does not sufficiently define or describe the offense
of abortion. We do not concur in respect to this question." Jackson v. State, 55 Tex.
Cr. R. 79, 89, 115 S. W. 262, 268 (1908).
The same court recently has held again that the State's abortion statutes are not
unconstitutionally vague or overbroad. Thompson v. State (Ct. Crim. App. Tex. 1971),
appeal docketed, No. 71-1200. The court held that "the State of Texas has a
compelling interest to protect fetal life"; that Art. 1191 "is designed to
protect fetal life"; that the Texas homicide statutes, particularly Art. 1205 of the
Penal Code, are intended to protect a person "in existence by actual birth" and
thereby implicitly recognize other human life that is not "in existence by actual
birth"; that the definition of human life is for the legislature and not the courts;
that Art. 1196 "is more definite than the District of Columbia statute upheld in
[United States v.] Vuitch" (402 U.S. 62);
and that the Texas statute "is [410 U.S.
113, 120] not vague and indefinite or overbroad." A physician's abortion
conviction was affirmed.
In Thompson, n. 2, the court observed that any issue as to the burden of proof under
the exemption of Art. 1196 "is not before us." But see Veevers v. State, 172
Tex. Cr. R. 162, 168-169, 354 S. W. 2d 161, 166-167 (1962). Cf. United States v.
Vuitch, 402 U.S.
62, 69-71 (1971).
[Footnote 4] The name is a pseudonym.
[Footnote 5] These names are pseudonyms.
[Footnote 6] The appellee twice states in
his brief that the hearing before the District Court was held on July 22, 1970. Brief for
Appellee 13. The docket entries, App. 2, and the transcript, App. 76, reveal this to be an
error. The July date appears to be the time of the reporter's transcription. See App. 77.
[Footnote 7] We need not consider what
different result, if any, would follow if Dr. Hallford's intervention were on behalf of a
class. His complaint in intervention does not purport to assert a class suit and makes no
reference to any class apart from an allegation that he "and others similarly
situated" must necessarily guess at the meaning of Art. 1196. His application for
leave to intervene goes somewhat further, for it asserts that plaintiff Roe does not
adequately protect the interest of the doctor "and the class of people who are
physicians . . . [and] the class of people who are . . . patients . . . ." The leave
application, however, is not the complaint. Despite the District Court's statement to the
contrary, 314 F. Supp., at 1225, we fail to perceive the essentials of a class suit in the
[Footnote 8] A. Castiglioni, A History of
Medicine 84 (2d ed. 1947), E. Krumbhaar, translator and editor (hereinafter Castiglioni).
[Footnote 9] J. Ricci, The Genealogy of
Gynaecology 52, 84, 113, 149 (2d ed. 1950) (hereinafter Ricci); L. Lader, Abortion 75-77
(1966) (hereinafter Lader); K. Niswander, Medical Abortion Practices in the United States,
in Abortion and the Law 37, 38-40 (D. Smith ed. 1967); G. Williams, The Sanctity of Life
and the Criminal Law 148 (1957) (hereinafter Williams); J. Noonan, An Almost Absolute
Value in History, in The Morality of Abortion 1, 3-7 (J. Noonan ed. 1970) (hereinafter
Noonan); Quay, Justifiable Abortion - Medical and Legal Foundations (pt. 2), 49 Geo. L. J.
395, 406-422 (1961) (hereinafter Quay).
[Footnote 10] L. Edelstein, The
Hippocratic Oath 10 (1943) (hereinafter Edelstein). But see Castiglioni 227.
[Footnote 11] Edelstein 12; Ricci
113-114, 118-119; Noonan 5.
[Footnote 12] Edelstein 13-14.
[Footnote 13] Castiglioni 148.
[Footnote 14] Id., at 154.
[Footnote 15] Edelstein 3.
[Footnote 16] Id., at 12, 15-18.
[Footnote 17] Id., at 18; Lader 76.
[Footnote 18] Edelstein 63.
[Footnote 19] Id., at 64.
[Footnote 20] Dorland's Illustrated
Medical Dictionary 1261 (24th ed. 1965).
[Footnote 21] E. Coke, Institutes III
*50; 1 W. Hawkins, Pleas of the Crown, c. 31, 16 (4th ed. 1762); 1 W. Blackstone,
Commentaries *129-130; M. Hale, Pleas of the Crown 433 (1st Amer. ed. 1847). For
discussions of the role of the quickening concept in English common law, see Lader 78;
Noonan 223-226; Means, The Law of New [410
U.S. 113, 133] York Concerning Abortion and the Status of the Foetus,
1664-1968: A Case of Cessation of Constitutionality (pt. 1), 14 N. Y. L. F. 411, 418-428
(1968) (hereinafter Means I); Stern, Abortion: Reform and the Law, 59 J. Crim. L. C. &
P. S. 84 (1968) (hereinafter Stern); Quay 430-432; Williams 152.
[Footnote 22] Early philosophers believed
that the embryo or fetus did not become formed and begin to live until at least 40 days
after conception for a male, and 80 to 90 days for a female. See, for example, Aristotle,
Hist. Anim. 7.3.583b; Gen. Anim. 2.3.736, 2.5.741; Hippocrates, Lib. de Nat. Puer., No.
10. Aristotle's thinking derived from his three-stage theory of life: vegetable, animal,
rational. The vegetable stage was reached at conception, the animal at
"animation," and the rational soon after live birth. This theory, together with
the 40/80 day view, came to be accepted by early Christian thinkers.
The theological debate was reflected in the writings of St. Augustine, who made a
distinction between embryo inanimatus, not yet endowed with a soul, and embryo animatus.
He may have drawn upon Exodus 21:22. At one point, however, he expressed the view that
human powers cannot determine the point during fetal development at which the critical
change occurs. See Augustine, De Origine Animae 4.4 (Pub. Law 44.527). See also W. Reany,
The Creation of the Human Soul, c. 2 and 83-86 (1932); Huser, The Crime of Abortion in
Canon Law 15 (Catholic Univ. of America, Canon Law Studies No. 162, Washington, D.C.,
Galen, in three treatises related to embryology, accepted the thinking of Aristotle and
his followers. Quay 426-427. Later, Augustine on abortion was incorporated by Gratian into
the Decretum, published about 1140. Decretum Magistri Gratiani 188.8.131.52 to 184.108.40.206, [410 U.S. 113, 134] in 1 Corpus Juris
Canonici 1122, 1123 (A. Friedburg, 2d ed. 1879). This Decretal and the Decretals that
followed were recognized as the definitive body of canon law until the new Code of 1917.
For discussions of the canon-law treatment, see Means I, pp. 411-412; Noonan 20-26;
Quay 426-430; see also J. Noonan, Contraception: A History of Its Treatment by the
Catholic Theologians and Canonists 18-29 (1965).
[Footnote 23] Bracton took the position
that abortion by blow or poison was homicide "if the foetus be already formed and
animated, and particularly if it be animated." 2 H. Bracton, De Legibus et
Consuetudinibus Angliae 279 (T. Twiss ed. 1879), or, as a later translation puts it,
"if the foetus is already formed or quickened, especially if it is quickened," 2
H. Bracton, On the Laws and Customs of England 341 (S. Thorne ed. 1968). See Quay 431; see
also 2 Fleta 60-61 (Book 1, c. 23) (Selden Society ed. 1955).
[Footnote 24] E. Coke, Institutes III
[Footnote 25] 1 W. Blackstone,
[Footnote 26] Means, The Phoenix of
Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise from the
Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?, 17 N. Y.
L. F. 335 (1971) (hereinafter Means II). The author examines the two principal precedents
cited marginally by Coke, both contrary to his dictum, and traces the treatment of these
and other cases by earlier commentators. He concludes that Coke, who himself participated
as an advocate in an abortion case in 1601, may have intentionally misstated the law. The
author even suggests a reason: Coke's strong feelings against abortion, coupled with his
determination to assert common-law (secular) jurisdiction to assess penalties for an
offense that traditionally had been an exclusively ecclesiastical or canon-law crime. See
also Lader 78-79, who notes that some scholars doubt that the common law ever was applied
to abortion; that the English ecclesiastical courts seem to have lost interest in the
problem after 1527; and that the preamble to the English legislation of 1803, 43 Geo. 3,
c. 58, 1, referred to in the text, infra, at 136, states that "no adequate means have
been hitherto provided for the prevention and punishment of such offenses."
[Footnote 27] Commonwealth v. Bangs, 9
Mass. 387, 388 (1812); Commonwealth v. Parker, 50 Mass. (9 Metc.) 263, 265-266 (1845);
State v. Cooper, 22 N. J. L. 52, 58 (1849); Abrams v. Foshee, 3 Iowa 274, 278-280 (1856);
Smith v. Gaffard, 31 Ala. 45, 51 (1857); Mitchell v. Commonwealth, 78 Ky. 204, 210 (1879);
Eggart v. State, 40 Fla. [410 U.S. 113, 136]
527, 532, 25 So. 144, 145 (1898); State v. Alcorn, 7 Idaho 599, 606, 64 P. 1014, 1016
(1901); Edwards v. State, 79 Neb. 251, 252, 112 N. W. 611, 612 (1907); Gray v. State, 77
Tex. Cr. R. 221, 224, 178 S. W. 337, 338 (1915); Miller v. Bennett, 190 Va. 162, 169, 56
S. E. 2d 217, 221 (1949). Contra, Mills v. Commonwealth, 13 Pa. 631, 633 (1850); State v.
Slagle, 83 N.C. 630, 632 (1880).
[Footnote 28] See Smith v. State, 33 Me.
48, 55 (1851); Evans v. People, 49 N. Y. 86, 88 (1872); Lamb v. State, 67 Md. 524, 533, 10
A. 208 (1887).
[Footnote 29] Conn. Stat., Tit. 20, 14
[Footnote 30] Conn. Pub. Acts, c. 71, 1
[Footnote 31] N. Y. Rev. Stat., pt. 4, c.
1, Tit. 2, Art. 1, 9, p. 661, and Tit. 6, 21, p. 694 (1829).
[Footnote 32] Act of Jan. 20, 1840, 1,
set forth in 2 H. Gammel, Laws of Texas 177-178 (1898); see Grigsby v. Reib, 105 Tex. 597,
600, 153 S. W. 1124, 1125 (1913).
[Footnote 33] The early statutes are
discussed in Quay 435-438. See also Lader 85-88; Stern 85-86; and Means II 375-376.
[Footnote 34] Criminal abortion statutes
in effect in the States as of 1961, together with historical statutory development and
important judicial interpretations of the state statutes, are cited and quoted in Quay
447-520. See Comment, A Survey of the Present Statutory and Case Law on Abortion: The
Contradictions and the Problems, 1972 U. Ill. L. F. 177, 179, classifying the abortion
statutes and listing 25 States as permitting abortion only if necessary to save or
preserve the mother's life.
[Footnote 35] Ala. Code, Tit. 14, 9
(1958); D.C. Code Ann. 22-201 (1967).
[Footnote 36] Mass. Gen. Laws Ann., c.
272, 19 (1970); N. J. Stat. Ann. 2A:87-1 (1969); Pa. Stat. Ann., Tit. 18, 4718, 4719
[Footnote 37] Fourteen States have
adopted some form of the ALI statute. See Ark. Stat. Ann. 41-303 to 41-310 (Supp. 1971);
Calif. Health & Safety Code 25950-25955.5 (Supp. 1972); Colo. Rev. Stat. Ann. 40-2-50
to 40-2-53 (Cum. Supp. 1967); Del. Code Ann., Tit. 24, 1790-1793 (Supp. 1972); Florida Law
of Apr. 13, 1972, c. 72-196, 1972 Fla. Sess. Law Serv., pp. 380-382; Ga. Code 26-1201 to
26-1203 (1972); Kan. Stat. Ann. 21-3407 (Supp. 1971); Md. Ann. Code, Art. 43, 137-139
(1971); Miss. Code Ann. 2223 (Supp. 1972); N. M. Stat. Ann. 40A-5-1 to 40A-5-3 (1972);
N.C. Gen. Stat. 14-45.1 (Supp. 1971); Ore. Rev. Stat. 435.405 to 435.495 (1971); S. C.
Code Ann. 16-82 to 16-89 (1962 and Supp. 1971); Va. Code Ann. 18.1-62 to 18.1-62.3 (Supp.
1972). Mr. Justice Clark described some of these States as having "led the way."
Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loyola U. (L. A.) L. Rev.
1, 11 (1969).
By the end of 1970, four other States had repealed criminal penalties for abortions
performed in early pregnancy by a licensed physician, subject to stated procedural and
health requirements. Alaska Stat. 11.15.060 (1970); Haw. Rev. Stat. 453-16 (Supp. 1971);
N. Y. Penal Code 125.05, subd. 3 (Supp. 1972-1973); Wash. Rev. Code 9.02.060 to 9.02.080
(Supp. 1972). The precise status of criminal abortion laws in some States is made unclear
by recent decisions in state and federal courts striking down existing state laws, in
whole or in part.
[Footnote 38] "Whereas, Abortion,
like any other medical procedure, should not be performed when contrary to the best
interests of the patient [410 U.S. 113, 144]
since good medical practice requires due consideration for the patient's welfare and not
mere acquiescence to the patient's demand; and
- "Whereas, The standards of sound clinical judgment, which, together with informed
patient consent should be determinative according to the merits of each individual case;
therefore be it
- "RESOLVED, That abortion is a medical procedure and should be performed only by a
duly licensed physician and surgeon in an accredited hospital acting only after
consultation with two other physicians chosen because of their professional competency and
in conformance with standards of good medical practice and the Medical Practice Act of his
State; and be it further
- "RESOLVED, That no physician or other professional personnel shall be compelled to
perform any act which violates his good medical judgment. Neither physician, hospital, nor
hospital personnel shall be required to perform any act violative of personally-held moral
principles. In these circumstances good medical practice requires only that the physician
or other professional personnel withdraw from the case so long as the withdrawal is
consistent with good medical practice." Proceedings of the AMA House of Delegates 220
[Footnote 39] "The Principles of
Medical Ethics of the AMA do not prohibit a physician from performing an abortion that is
performed in accordance with good medical practice and under circumstances that do not
violate the laws of the community in which he practices.
- "In the matter of abortions, as of any other medical procedure, the Judicial
Council becomes involved whenever there is alleged violation of the Principles of Medical
Ethics as established by the House of Delegates."
[Footnote 40] "UNIFORM ABORTION ACT
- "SECTION 1. [Abortion Defined; When Authorized.]
- "(a) `Abortion' means the termination of human pregnancy with an intention other
than to produce a live birth or to remove a dead fetus.
- "(b) An abortion may be performed in this state only if it is performed:
- "(1) by a physician licensed to practice medicine [or osteopathy] in this state or
by a physician practicing medicine [or osteopathy] in the employ of the government of the
United States or of this state, [and the abortion is performed [in the physician's office
or in a medical clinic, or] in a hospital approved by the [Department of Health] or
operated by the United States, this state, or any department, agency, or political
subdivision of either;] or by a female upon herself upon the advice of the physician; and
- "(2) within 20. weeks after the commencement of the pregnancy [or after 20. weeks
only if the physician has reasonable cause to believe (i) there is a substantial risk that
continuance of the pregnancy would endanger the life of the mother or would gravely impair
the physical or mental health of the mother, (ii) that the child would be born with grave
physical or mental defect, or (iii) that [410
U.S. 113, 147] the pregnancy resulted from rape or incest, or illicit
intercourse with a girl under the age of 16 years].
- "SECTION 2. [Penalty.] Any person who performs or procures an abortion other than
authorized by this Act is guilty of a [felony] and, upon conviction thereof, may be
sentenced to pay a fine not exceeding [$1,000] or to imprisonment [in the state
penitentiary] not exceeding [5 years], or both.
- "SECTION 3. [Uniformity of Interpretation.] This Act shall be construed to
effectuate its general purpose to make uniform the law with respect to the subject of this
Act among those states which enact it.
- "SECTION 4. [Short Title.] This Act may be cited as the Uniform Abortion Act.
- "SECTION 5. [Severability.] If any provision of this Act or the application thereof
to any person or circumstance is held invalid, the invalidity does not affect other
provisions or applications of this Act which can be given effect without the invalid
provision or application, and to this end the provisions of this Act are severable.
- "SECTION 6. [Repeal.] The following acts and parts of acts are repealed: "(1)
- "SECTION 7. [Time of Taking Effect.] This Act shall take effect
[Footnote 41] "This Act is based
largely upon the New York abortion act following a review of the more recent laws on
abortion in several states and upon recognition of a more liberal trend in laws on this
subject. Recognition was given also to the several decisions in state and federal courts
which show a further trend toward liberalization of abortion laws, especially during the
first trimester of pregnancy.
- "Recognizing that a number of problems appeared in New York, a shorter time period
for `unlimited' abortions was advisable. The [410
U.S. 113, 148] time period was bracketed to permit the various states to insert
a figure more in keeping with the different conditions that might exist among the states.
Likewise, the language limiting the place or places in which abortions may be performed
was also bracketed to account for different conditions among the states. In addition,
limitations on abortions after the initial `unlimited' period were placed in brackets so
that individual states may adopt all or any of these reasons, or place further
restrictions upon abortions after the initial period.
- "This Act does not contain any provision relating to medical review committees or
prohibitions against sanctions imposed upon medical personnel refusing to participate in
abortions because of religious or other similar reasons, or the like. Such provisions,
while related, do not directly pertain to when, where, or by whom abortions may be
performed; however, the Act is not drafted to exclude such a provision by a state wishing
to enact the same."
[Footnote 42] See, for example, YWCA v.
Kugler, 342 F. Supp. 1048, 1074 (N. J. 1972); Abele v. Markle, 342 F. Supp. 800, 805-806
(Conn. 1972) (Newman, J., concurring in result), appeal docketed, No. 72-56; Walsingham v.
State, 250 So.2d 857, 863 (Ervin, J., concurring) (Fla. 1971); State v. Gedicke, 43 N. J.
L. 86, 90 (1881); Means II 381-382.
[Footnote 43] See C. Haagensen & W.
Lloyd, A Hundred Years of Medicine 19 (1943).
[Footnote 44] Potts, Postconceptive
Control of Fertility, 8 Int'l J. of G. & O. 957, 967 (1970) (England and Wales);
Abortion Mortality, 20 Morbidity and Mortality 208, 209 (June 12, 1971) (U.S. Dept. of
HEW, Public Health Service) (New York City); Tietze, United States: Therapeutic Abortions,
1963-1968, 59 Studies in Family Planning 5, 7 (1970); Tietze, Mortality with Contraception
and Induced Abortion, 45 Studies in Family Planning 6 (1969) (Japan, Czechoslovakia,
Hungary); Tietze & Lehfeldt, Legal Abortion in Eastern Europe, 175 J. A. M. A. 1149,
1152 (April 1961). Other sources are discussed in Lader 17-23.
[Footnote 45] See Brief of Amicus
National Right to Life Committee; R. Drinan, The Inviolability of the Right to be Born, in
Abortion and the Law 107 (D. Smith ed. 1967); Louisell, Abortion, The Practice of Medicine
and the Due Process of Law, 16 U. C. L. A. L. Rev. 233 (1969); Noonan 1.
[Footnote 46] See, e. g., Abele v.
Markle, 342 F. Supp. 800 (Conn. 1972), appeal docketed, No. 72-56.
[Footnote 47] See discussions in Means I
and Means II.
[Footnote 48] See, e. g., State v.
Murphy, 27 N. J. L. 112, 114 (1858).
[Footnote 49] Watson v. State, 9 Tex.
App. 237, 244-245 (1880); Moore v. State, 37 Tex. Cr. R. 552, 561, 40 S. W. 287, 290
(1897); Shaw v. State, 73 Tex. Cr. R. 337, 339, 165 S. W. 930, 931 (1914); Fondren v.
State, 74 Tex. Cr. R. 552, 557, 169 S. W. 411, 414 (1914); Gray v. State, 77 Tex. Cr. R.
221, 229, 178 S. W. 337, 341 (1915). There is no immunity in Texas for the father who is
not married to the mother. Hammett v. State, 84 Tex. Cr. R. 635, 209 S. W. 661 (1919);
Thompson v. State (Ct. Crim. App. Tex. 1971), appeal docketed, No. 71-1200.
[Footnote 50] See Smith v. State, 33 Me.,
at 55; In re Vince, 2 N. J. 443, 450, 67 A. 2d 141, 144 (1949). A short discussion of the
modern law on this issue is contained in the Comment to the ALI's Model Penal Code 207.11,
at 158 and nn. 35-37 (Tent. Draft No. 9, 1959).
[Footnote 51] Tr. of Oral Rearg. 20-21.
[Footnote 52] Tr. of Oral Rearg. 24.
[Footnote 53] We are not aware that in
the taking of any census under this clause, a fetus has ever been counted.
[Footnote 54] When Texas urges that a
fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma.
Neither in Texas nor in any other State are all abortions prohibited. Despite broad
proscription, an exception always exists. The exception contained [410 U.S. 113, 158] in Art. 1196, for an abortion
procured or attempted by medical advice for the purpose of saving the life of the mother,
is typical. But if the fetus is a person who is not to be deprived of life without due
process of law, and if the mother's condition is the sole determinant, does not the Texas
exception appear to be out of line with the Amendment's command?
There are other inconsistencies between Fourteenth Amendment status and the typical
abortion statute. It has already been pointed out, n. 49, supra, that in Texas the woman
is not a principal or an accomplice with respect to an abortion upon her. If the fetus is
a person, why is the woman not a principal or an accomplice? Further, the penalty for
criminal abortion specified by Art. 1195 is significantly less than the maximum penalty
for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a person, may
the penalties be different?
[Footnote 55] Cf. the Wisconsin abortion
statute, defining "unborn child" to mean "a human being from the time of
conception until it is born alive," Wis. Stat. 940.04 (6) (1969), and the new
Connecticut Statute, Pub. Act No. 1 (May 1972 special session), declaring it to be the
public policy of the State and the legislative intent "to protect and preserve human
life from the moment of conception."
[Footnote 56] Edelstein 16.
[Footnote 57] Lader 97-99; D. Feldman,
Birth Control in Jewish Law 251-294 (1968). For a stricter view, see I. Jakobovits, Jewish
Views on Abortion, in Abortion and the Law 124 (D. Smith ed. 1967).
[Footnote 58] Amicus Brief for the
American Ethical Union et al. For the position of the National Council of Churches and of
other denominations, see Lader 99-101.
[Footnote 59] L. Hellman & J.
Pritchard, Williams Obstetrics 493 (14th ed. 1971); Dorland's Illustrated Medical
Dictionary 1689 (24th ed. 1965).
[Footnote 60] Hellman & Pritchard,
supra, n. 59, at 493.
[Footnote 61] For discussions of the
development of the Roman Catholic position, see D. Callahan, Abortion: Law, Choice, and
Morality 409-447 (1970); Noonan 1.
[Footnote 62] See Brodie, The New Biology
and the Prenatal Child, 9 J. Family L. 391, 397 (1970); Gorney, The New Biology and the
Future of Man, 15 U. C. L. A. L. Rev. 273 (1968); Note, Criminal Law - Abortion - The
"Morning-After Pill" and Other Pre-Implantation Birth-Control Methods and the
Law, 46 Ore. L. Rev. 211 (1967); G. Taylor, The Biological Time Bomb 32 (1968); A.
Rosenfeld, The Second Genesis 138-139 (1969); Smith, Through a Test Tube Darkly:
Artificial Insemination and the Law, 67 Mich. L. Rev. 127 (1968): Note, Artificial
Insemination and the Law, 1968 U. Ill. L. F. 203.
[Footnote 63] W. Prosser, The Law of
Torts 335-338 (4th ed. 1971); 2 F. Harper & F. James, The Law of Torts 1028-1031
(1956); Note, 63 Harv. L. Rev. 173 (1949).
[Footnote 64] See cases cited in Prosser,
supra, n. 63, at 336-338; Annotation, Action for Death of Unborn Child, 15 A. L. R. 3d 992
[Footnote 65] Prosser, supra, n. 63, at
338; Note, The Law and the Unborn Child: The Legal and Logical Inconsistencies, 46 Notre
Dame Law. 349, 354-360 (1971).
[Footnote 66] Louisell, Abortion, The
Practice of Medicine and the Due Process of Law, 16 U. C. L. A. L. Rev. 233, 235-238
(1969); Note, 56 Iowa L. Rev. 994, 999-1000 (1971); Note, The Law and the Unborn Child, 46
Notre Dame Law. 349, 351-354 (1971).
[Footnote 67] Neither in this opinion nor
in Doe v. Bolton, post, p. 179, do we discuss the father's rights, if any exist in the
constitutional context, in the abortion decision. No paternal right has been asserted in
either of the cases, and the Texas and the Georgia statutes on their face take no
cognizance of the father. We are aware that some statutes recognize the father under
certain circumstances. North Carolina, for example, N.C. Gen. Stat. 14-45.1 (Supp. 1971),
requires written permission for the abortion from the husband when the woman is a married
minor, that is, when she is less than 18 years of age, 41 N.C. A. G. 489 (1971); if the
woman is an unmarried minor, written permission from the parents is required. We need not
now decide whether provisions of this kind are constitutional.
MR. JUSTICE STEWART, concurring.
In 1963, this Court, in Ferguson v. Skrupa, 372 U.S. 726,
purported to sound the death knell for the doctrine of substantive due process, a doctrine
under which many state laws had in the past been held to violate the Fourteenth Amendment.
As Mr. Justice Black's opinion for the Court in Skrupa put it: "We have returned to
the original constitutional proposition that courts do not substitute their social and
economic beliefs for the judgment of legislative bodies, who are elected to pass
laws." Id., at 730.1
Barely two years later, in Griswold v. Connecticut, 381 U.S. 479,
the Court held a Connecticut birth control law unconstitutional. In view of what had been
so recently said in Skrupa, the Court's opinion in Griswold understandably did its best to
avoid reliance on the Due Process Clause of the Fourteenth Amendment as the ground for
decision. Yet, the Connecticut law did not violate any provision of the Bill of Rights,
nor any other specific provision of the Constitution.2 So it was clear [410 U.S.
113, 168] to me then, and it is equally clear to me now, that the Griswold
decision can be rationally understood only as a holding that the Connecticut statute
substantively invaded the "liberty" that is protected by the Due Process Clause
of the Fourteenth Amendment.3 As so
understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the
doctrine of substantive due process, and I now accept it as such.
- "In a Constitution for a free people, there can be no doubt that the meaning of
`liberty' must be broad indeed." Board of Regents v. Roth, 408 U.S.
564, 572. The Constitution nowhere mentions a specific right of personal choice in
matters of marriage and family life, but the "liberty" protected by the Due
Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly
named in the Bill of Rights. See Schware v. Board of Bar Examiners, 353 U.S.
232, 238-239; Pierce v. Society of Sisters, 268 U.S. 510, 534-535;
Meyer v. Nebraska, 262
U.S. 390, 399-400. Cf. Shapiro v. Thompson, 394 U.S.
618, 629-630; United States v. Guest, 383 U.S.
745, 757-758; Carrington v. Rash, 380 U.S.
89, 96; Aptheker v. Secretary of State, 378 U.S.
500, 505; Kent v. Dulles, 357 U.S.
116, 127; Bolling v. Sharpe, 347 U.S.
497, 499-500; Truax v. Raich, 239 U.S. 33, 41. [410 U.S. 113, 169]
As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty guaranteed by
the Due Process Clause cannot be found in or limited by the precise terms of the specific
guarantees elsewhere provided in the Constitution. This `liberty' is not a series of
isolated points pricked out in terms of the taking of property; the freedom of speech,
press, and religion; the right to keep and bear arms; the freedom from unreasonable
searches and seizures; and so on. It is a rational continuum which, broadly speaking,
includes a freedom from all substantial arbitrary impositions and purposeless restraints .
. . and which also recognizes, what a reasonable and sensitive judgment must, that certain
interests require particularly careful scrutiny of the state needs asserted to justify
their abridgment." Poe v. Ullman, 367 U.S.
497, 543 (opinion dissenting from dismissal of appeal) (citations omitted). In the
words of Mr. Justice Frankfurter, "Great concepts like . . . `liberty' . . . were
purposely left to gather meaning from experience. For they relate to the whole domain of
social and economic fact, and the statesmen who founded this Nation knew too well that
only a stagnant society remains unchanged." National Mutual Ins. Co. v. Tidewater
Transfer Co., 337 U.S.
582, 646 (dissenting opinion).
Several decisions of this Court make clear that freedom of personal choice in matters
of marriage and family life is one of the liberties protected by the Due Process Clause of
the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1,
12; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v.
Nebraska, supra. See also Prince v. Massachusetts, 321 U.S.
158, 166; Skinner v. Oklahoma, 316 U.S.
535, 541. As recently as last Term, in Eisenstadt v. Baird, 405 U.S.
438, 453, we recognized "the right of the individual, married or single, to be
free from unwarranted governmental intrusion into matters so fundamentally affecting a
person [410 U.S. 113, 170] as the
decision whether to bear or beget a child." That right necessarily includes the right
of a woman to decide whether or not to terminate her pregnancy. "Certainly the
interests of a woman in giving of her physical and emotional self during pregnancy and the
interests that will be affected throughout her life by the birth and raising of a child
are of a far greater degree of significance and personal intimacy than the right to send a
child to private school protected in Pierce v. Society of Sisters, 268 U.S. 510 (1925), or
the right to teach a foreign language protected in Meyer v. Nebraska, 262 U.S. 390
(1923)." Abele v. Markle, 351 F. Supp. 224, 227 (Conn. 1972).
Clearly, therefore, the Court today is correct in holding that the right asserted by
Jane Roe is embraced within the personal liberty protected by the Due Process Clause of
the Fourteenth Amendment.
It is evident that the Texas abortion statute infringes that right directly. Indeed, it
is difficult to imagine a more complete abridgment of a constitutional freedom than that
worked by the inflexible criminal statute now in force in Texas. The question then becomes
whether the state interests advanced to justify this abridgment can survive the
"particularly careful scrutiny" that the Fourteenth Amendment here requires.
The asserted state interests are protection of the health and safety of the pregnant
woman, and protection of the potential future human life within her. These are legitimate
objectives, amply sufficient to permit a State to regulate abortions as it does other
surgical procedures, and perhaps sufficient to permit a State to regulate abortions more
stringently or even to prohibit them in the late stages of pregnancy. But such legislation
is not before us, and I think the Court today has thoroughly demonstrated that these state
interests cannot constitutionally support the broad abridgment of personal [410 U.S. 113, 171] liberty worked by the existing
Texas law. Accordingly, I join the Court's opinion holding that that law is invalid under
the Due Process Clause of the Fourteenth Amendment.
[Footnote 1] Only Mr. Justice Harlan
failed to join the Court's opinion, 372
U.S., at 733.
[Footnote 2] There is no constitutional
right of privacy, as such. "[The Fourth] Amendment protects individual privacy
against certain kinds of governmental intrusion, but its protections go further, and often
have nothing to do with privacy at all. Other provisions of [410 U.S. 113, 168] the Constitution protect personal
privacy from other forms of governmental invasion. But the protection of a person's
general right to privacy - his right to be let alone by other people - is, like the
protection of his property and of his very life, left largely to the law of the individual
States." Katz v. United States, 389 U.S.
347, 350-351 (footnotes omitted).
[Footnote 3] This was also clear to Mr.
Justice Black, 381
U.S., at 507 (dissenting opinion); to Mr. Justice Harlan, 381
U.S., at 499 (opinion concurring in the judgment); and to MR. JUSTICE WHITE, 381
U.S., at 502 (opinion concurring in the judgment). See also Mr. Justice Harlan's
thorough and thoughtful opinion dissenting from dismissal of the appeal in Poe v.
Ullman, 367 U.S.
MR. JUSTICE REHNQUIST, dissenting.
The Court's opinion brings to the decision of this troubling question both extensive
historical fact and a wealth of legal scholarship. While the opinion thus commands my
respect, I find myself nonetheless in fundamental disagreement with those parts of it that
invalidate the Texas statute in question, and therefore dissent.
The Court's opinion decides that a State may impose virtually no restriction on the
performance of abortions during the first trimester of pregnancy. Our previous decisions
indicate that a necessary predicate for such an opinion is a plaintiff who was in her
first trimester of pregnancy at some time during the pendency of her law-suit. While a
party may vindicate his own constitutional rights, he may not seek vindication for the
rights of others. Moose Lodge v. Irvis, 407 U.S. 163
(1972); Sierra Club v. Morton, 405 U.S. 727
(1972). The Court's statement of facts in this case makes clear, however, that the record
in no way indicates the presence of such a plaintiff. We know only that plaintiff Roe at
the time of filing her complaint was a pregnant woman; for aught that appears in this
record, she may have been in her last trimester of pregnancy as of the date the complaint
Nothing in the Court's opinion indicates that Texas might not constitutionally apply
its proscription of abortion as written to a woman in that stage of pregnancy.
Nonetheless, the Court uses her complaint against the Texas statute as a fulcrum for
deciding that States may [410 U.S. 113, 172]
impose virtually no restrictions on medical abortions performed during the first trimester
of pregnancy. In deciding such a hypothetical lawsuit, the Court departs from the
longstanding admonition that it should never "formulate a rule of constitutional law
broader than is required by the precise facts to which it is to be applied."
Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration,
113 U.S. 33, 39
(1885). See also Ashwander v. TVA, 297 U.S. 288, 345
(1936) (Brandeis, J., concurring).
Even if there were a plaintiff in this case capable of litigating the issue which the
Court decides, I would reach a conclusion opposite to that reached by the Court. I have
difficulty in concluding, as the Court does, that the right of "privacy" is
involved in this case. Texas, by the statute here challenged, bars the performance of a
medical abortion by a licensed physician on a plaintiff such as Roe. A transaction
resulting in an operation such as this is not "private" in the ordinary usage of
that word. Nor is the "privacy" that the Court finds here even a distant
relative of the freedom from searches and seizures protected by the Fourth Amendment to
the Constitution, which the Court has referred to as embodying a right to privacy. Katz v.
United States, 389 U.S. 347
If the Court means by the term "privacy" no more than that the claim of a
person to be free from unwanted state regulation of consensual transactions may be a form
of "liberty" protected by the Fourteenth Amendment, there is no doubt that
similar claims have been upheld in our earlier decisions on the basis of that liberty. I
agree with the statement of MR. JUSTICE STEWART in his concurring opinion that the
"liberty," against deprivation of which without due process the Fourteenth [410 U.S. 113, 173] Amendment
protects, embraces more than the rights found in the Bill of Rights. But that liberty is
not guaranteed absolutely against deprivation, only against deprivation without due
process of law. The test traditionally applied in the area of social and economic
legislation is whether or not a law such as that challenged has a rational relation to a
valid state objective. Williamson v. Lee Optical Co., 348 U.S.
483, 491 (1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does
place a limit, albeit a broad one, on legislative power to enact laws such as this. If the
Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I
have little doubt that such a statute would lack a rational relation to a valid state
objective under the test stated in Williamson, supra. But the Court's sweeping
invalidation of any restrictions on abortion during the first trimester is impossible to
justify under that standard, and the conscious weighing of competing factors that the
Court's opinion apparently substitutes for the established test is far more appropriate to
a legislative judgment than to a judicial one.
The Court eschews the history of the Fourteenth Amendment in its reliance on the
"compelling state interest" test. See Weber v. Aetna Casualty & Surety Co.,
164, 179 (1972) (dissenting opinion). But the Court adds a new wrinkle to this test by
transposing it from the legal considerations associated with the Equal Protection Clause
of the Fourteenth Amendment to this case arising under the Due Process Clause of the
Fourteenth Amendment. Unless I misapprehend the consequences of this transplanting of the
"compelling state interest test," the Court's opinion will accomplish the
seemingly impossible feat of leaving this area of the law more confused than it found it. [410 U.S. 113, 174]
While the Court's opinion quotes from the dissent of Mr. Justice Holmes in Lochner v.
New York, 198 U.S. 45,
74 (1905), the result it reaches is more closely attuned to the majority opinion of
Mr. Justice Peckham in that case. As in Lochner and similar cases applying substantive due
process standards to economic and social welfare legislation, the adoption of the
compelling state interest standard will inevitably require this Court to examine the
legislative policies and pass on the wisdom of these policies in the very process of
deciding whether a particular state interest put forward may or may not be
"compelling." The decision here to break pregnancy into three distinct terms and
to outline the permissible restrictions the State may impose in each one, for example,
partakes more of judicial legislation than it does of a determination of the intent of the
drafters of the Fourteenth Amendment.
The fact that a majority of the States reflecting, after all, the majority sentiment in
those States, have had restrictions on abortions for at least a century is a strong
indication, it seems to me, that the asserted right to an abortion is not "so rooted
in the traditions and conscience of our people as to be ranked as fundamental,"
Snyder v. Massachusetts, 291 U.S. 97, 105
(1934). Even today, when society's views on abortion are changing, the very existence of
the debate is evidence that the "right" to an abortion is not so universally
accepted as the appellant would have us believe.
To reach its result, the Court necessarily has had to find within the scope of the
Fourteenth Amendment a right that was apparently completely unknown to the drafters of the
Amendment. As early as 1821, the first state law dealing directly with abortion was
enacted by the Connecticut Legislature. Conn. Stat., Tit. 22, 14, 16. By the time of the
adoption of the Fourteenth [410 U.S. 113,
175] Amendment in 1868, there were at least 36 laws enacted by state or
territorial legislatures limiting abortion.1
While many States have amended or updated [410
U.S. 113, 176] their laws, 21 of the laws on the books in 1868 remain in effect
today.2 Indeed, the Texas statute struck
down today was, as the majority notes, first enacted in 1857 [410 U.S. 113, 177] and "has remained
substantially unchanged to the present time." Ante, at 119.
There apparently was no question concerning the validity of this provision or of any of
the other state statutes when the Fourteenth Amendment was adopted. The only conclusion
possible from this history is that the drafters did not intend to have the Fourteenth
Amendment withdraw from the States the power to legislate with respect to this matter.
Even if one were to agree that the case that the Court decides were here, and that the
enunciation of the substantive constitutional law in the Court's opinion were proper, the
actual disposition of the case by the Court is still difficult to justify. The Texas
statute is struck down in toto, even though the Court apparently concedes that at later
periods of pregnancy Texas might impose these selfsame statutory limitations on abortion.
My understanding of past practice is that a statute found [410 U.S. 113, 178] to be invalid as applied to a
particular plaintiff, but not unconstitutional as a whole, is not simply "struck
down" but is, instead, declared unconstitutional as applied to the fact situation
before the Court. Yick Wo v. Hopkins, 118 U.S. 356 (1886);
Street v. New York, 394 U.S. 576
For all of the foregoing reasons, I respectfully dissent.
[Footnote 1] Jurisdictions having enacted
abortion laws prior to the adoption of the Fourteenth Amendment in 1868:
1. Alabama - Ala. Acts, c. 6, 2 (1840).
2. Arizona - Howell Code, c. 10, 45 (1865).
3. Arkansas - Ark. Rev. Stat., c. 44, div. III, Art. II, 6 (1838).
4. California - Cal. Sess. Laws, c. 99, 45, p. 233 (1849-1850).
5. Colorado (Terr.) - Colo. Gen. Laws of Terr. of Colo., 1st Sess., 42, pp. 296-297
6. Connecticut - Conn. Stat., Tit. 20, 14, 16 (1821). By 1868, this statute had been
replaced by another abortion law. Conn. Pub. Acts, c. 71, 1, 2, p. 65 (1860).
7. Florida - Fla. Acts 1st Sess., c. 1637, subc. 3, 10, 11, subc. 8, 9, 10, 11 (1868),
as amended, now Fla. Stat. Ann. 782.09, 782.10, 797.01, 797.02, 782.16 (1965).
8. Georgia - Ga. Pen. Code, 4th Div., 20 (1833).
9. Kingdom of Hawaii - Hawaii Pen. Code, c. 12, 1, 2, 3 (1850).
10. Idaho (Terr.) - Idaho (Terr.) Laws, Crimes and Punishments 33, 34, 42, pp. 441, 443
11. Illinois - Ill. Rev. Criminal Code 40, 41, 46, pp. 130, 131 (1827). By 1868, this
statute had been replaced by a subsequent enactment. Ill. Pub. Laws 1, 2, 3, p. 89 (1867).
12. Indiana - Ind. Rev. Stat. 1, 3, p. 224 (1838). By 1868 this statute had been
superseded by a subsequent enactment. Ind. Laws, c. LXXXI, 2 (1859).
13. Iowa (Terr.) - Iowa (Terr.) Stat., 1st Legis., 1st Sess., 18, p. 145 (1838). By
1868, this statute had been superseded by a subsequent enactment. Iowa (Terr.) Rev. Stat.,
c. 49, 10, 13 (1843).
14. Kansas (Terr.) - Kan. (Terr.) Stat., c. 48, 9, 10, 39 (1855). By 1868, this statute
had been superseded by a subsequent enactment. Kan. (Terr.) Laws, c. 28, 9, 10, 37 (1859).
15. Louisiana - La. Rev. Stat., Crimes and Offenses 24, p. 138 (1856).
16. Maine - Me. Rev. Stat., c. 160, 11, 12, 13, 14 (1840).
17. Maryland - Md. Laws, c. 179, 2, p. 315 (1868).
18. Massachusetts - Mass. Acts & Resolves, c. 27 (1845).
19. Michigan - Mich. Rev. Stat., c. 153, 32, 33, 34, p. 662 (1846). [410 U.S. 113, 176] 20. Minnesota (Terr.) - Minn.
(Terr.) Rev. Stat., c. 100, 10, 11, p. 493 (1851).
21. Mississippi - Miss. Code, c. 64, 8, 9, p. 958 (1848).
22. Missouri - Mo. Rev. Stat., Art. II, 9, 10, 36, pp. 168, 172 (1835).
23. Montana (Terr.) - Mont. (Terr.) Laws, Criminal Practice Acts 41, p. 184 (1864).
24. Nevada (Terr.) - Nev. (Terr.) Laws, c. 28, 42, p. 63 (1861).
25. New Hampshire - N. H. Laws, c. 743, 1, p. 708 (1848).
26. New Jersey - N. J. Laws, p. 266 (1849).
27. New York - N. Y. Rev. Stat., pt. 4, c. 1, Tit. 2, 8, 9, pp. 12-13 (1828). By 1868,
this statute had been superseded. N. Y. Laws, c. 260, 1-6, pp. 285-286 (1845); N. Y. Laws,
c. 22, 1, p. 19 (1846).
28. Ohio - Ohio Gen. Stat. 111 (1), 112 (2), p. 252 (1841).
29. Oregon - Ore. Gen. Laws, Crim. Code, c. 43, 509, p. 528 (1845-1864).
30. Pennsylvania - Pa. Laws No. 374, 87, 88, 89 (1860).
31. Texas - Tex. Gen. Stat. Dig., c. VII, Arts. 531-536, p. 524 (Oldham & White
32. Vermont - Vt. Acts No. 33, 1 (1846). By 1868, this statute had been amended. Vt.
Acts No. 57, 1, 3 (1867).
33. Virginia - Va. Acts, Tit. II, c. 3, 9, p. 96 (1848).
34. Washington (Terr.) - Wash. (Terr.) Stats., c. II, 37, 38, p. 81 (1854).
35. West Virginia - See Va. Acts., Tit. II, c. 3, 9, p. 96 (1848); W. Va. Const., Art.
XI, par. 8 (1863).
36. Wisconsin - Wis. Rev. Stat., c. 133, 10, 11 (1849). By 1868, this statute had been
superseded. Wis. Rev. Stat., c. 164, 10, 11; c. 169, 58, 59 (1858).
[Footnote 2] Abortion laws in effect in
1868 and still applicable as of August 1970:
1. Arizona (1865). 2. Connecticut (1860). 3. Florida (1868). 4. Idaho (1863). 5.
Indiana (1838). [410 U.S. 113, 177]
6. Iowa (1843). 7. Maine (1840). 8. Massachusetts (1845). 9. Michigan (1846). 10.
Minnesota (1851). 11. Missouri (1835). 12. Montana (1864). 13. Nevada (1861). 14. New
Hampshire (1848). 15. New Jersey (1849). 16. Ohio (1841). 17. Pennsylvania (1860). 18.
Texas (1859). 19. Vermont (1867). 20. West Virginia (1863). 21. Wisconsin (1858). [410 U.S. 113, 179]
Copyright © 1994-1999 FindLaw Inc.
Post: MR. CHIEF JUSTICE BURGER, concurring*
I agree that, under the Fourteenth Amendment to the Constitution, the
abortion statutes of Georgia and Texas impermissibly limit the performance of
abortions necessary to protect the health of pregnant women, using [410 U.S.
208] the term health in its broadest medical context. See United States v.
Vuitch, 402 U.S. 62, 71-72 (1971). I am somewhat troubled that the Court has
taken notice of various scientific and medical data in reaching its conclusion;
however, I do not believe that the Court has exceeded the scope of judicial
notice accepted in other contexts.
In oral argument, counsel for the State of Texas informed the Court that
early abortion procedures were routinely permitted in certain exceptional cases,
such as nonconsensual pregnancies resulting from rape and incest. In the face of
a rigid and narrow statute, such as that of Texas, no one in these circumstances
should be placed in a posture of dependence on a prosecutorial policy or
prosecutorial discretion. Of course, States must have broad power, within the
limits indicated in the opinions, to regulate the subject of abortions, but
where the consequences of state intervention are so severe, uncertainty must be
avoided as much as possible. For my part, I would be inclined to allow a State
to require the certification of two physicians to support an abortion, but the
Court holds otherwise. I do not believe that such a procedure is unduly
burdensome, as are the complex steps of the Georgia statute, which require as
many as six doctors and the use of a hospital certified by the JCAH.
I do not read the Court's holdings today as having the sweeping consequences
attributed to them by the dissenting Justices; the dissenting views discount the
reality that the vast majority of physicians observe the standards of their
profession, and act only on the basis of carefully deliberated medical judgments
relating to life and health. Plainly, the Court today rejects any claim that the
Constitution requires abortions on demand. [410 U.S. 209]
* [This opinion applies also to No. 718, Roe v. Wade, ante p. 113.]
Post: MR. JUSTICE DOUGLAS, concurring *
While I join the opinion of the Court,1
I add a few words.
The questions presented in the present cases go far beyond the
issues of vagueness, which we considered in United States v. Vuitch, 402
U.S. 62. They involve the right of privacy, one aspect of which we considered in
Griswold v. Connecticut, 381 U.S. 479, 484, when we held that various
guarantees in the Bill of Rights create zones of privacy.2
[410 U.S. 210]
The Griswold case involved a law forbidding the use of contraceptives.
We held that law as applied to married people unconstitutional:
"We deal with a right of privacy older than the Bill of Rights -- older
than our political parties, older than our school system. Marriage is a coming
together for better or for worse, hopefully enduring, and intimate to the
degree of being sacred." Id. at 486.
The District Court in Doe held that Griswold and related cases
"establish a Constitutional right to privacy broad enough to encompass the
right of a woman to terminate an unwanted pregnancy in its early stages, by
obtaining an abortion." 319 F.Supp. 1048, 1054.
The Supreme Court of California expressed the same view in People v.
71 Cal.2d 954, 963, 458 P.2d 194, 199.
The Ninth Amendment obviously does not create federally enforceable rights.
It merely says, "The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people."
But a catalogue of these rights includes customary, traditional, and
time-honored rights, amenities, privileges, and immunities that come within the
sweep of "the Blessings of Liberty" mentioned in the preamble to the
Constitution. Many of them, in my view, come [410 U.S. 211] within the meaning
of the term "liberty" as used in the Fourteenth Amendment.
First is the autonomous control over the development and expression of one's
intellect, interests, tastes, and personality.
These are rights protected by the First Amendment and, in my view, they are
absolute, permitting of no exceptions. See Terminiello v. Chicago, 337
U.S. l; Roth v. United States, 354 U.S. 476, 508 (dissent); Kingsley
Pictures Corp. v. Regents, 360 U.S. 684, 697 (concurring); New York Times
Co. v. Sullivan, 376 U.S. 254, 293 (Black, J., concurring, in which I
joined). The Free Exercise Clause of the First Amendment is one facet of this
constitutional right. The right to remain silent as respects one's own beliefs, Watkins
v. United States, 354 U.S. 178, 196-199, is protected by the First and the
Fifth. The First Amendment grants the privacy of first-class mail, United
States v. Van Leeuwen, 397 U.S. 249, 253. All of these aspects of the right
of privacy are rights "retained by the people" in the meaning of the
Second is freedom of choice in the basic decisions of one's life respecting
marriage, divorce, procreation, contraception, and the education and upbringing
These rights, unlike those protected by the First Amendment, are subject to
some control by the police power. Thus, the Fourth Amendment speaks only of
"unreasonable searches and seizures" and of "probable
cause." These rights are "fundamental," and we have held that, in
order to support legislative action, the statute must be narrowly and precisely
drawn, and that a "compelling state interest" must be shown in support
of the limitation. E.g., Kramer v. Union Free School District, 395 U.S.
621; Shapiro v. Thompson, 394 U.S. 618; [410 U.S. 212] Carrington v.
Rash, 380 U.S. 89; Sherbert v. Verner, 374 U.S. 398; NAACP v.
Alabama, 357 U.S. 449.
The liberty to marry a person of one' own choosing, Loving v. Virginia,
388 U.S. 1; the right of procreation, Skinner v. Oklahoma, 316 U.S. 535;
the liberty to direct the education of one's children, Pierce v. Society of
Sisters, 268 U.S. 510, and the privacy of the marital relation, Griswold
v. Connecticut, supra, are in this category.4
[410 U.S. 213] Only last Term, in Eisenstadt v. Baird, 405 U.S. 438,
another contraceptive case, we expanded the concept of Griswold by
"It is true that, in Griswold, the right of privacy in question
inhered in the marital relationship. Yet the marital couple is not an
independent entity, with a mind and heart of its own, but an association of
two individuals, each with a separate intellectual and emotional makeup. If
the right of privacy means anything, it is the right of the individual,
married or single, to be free from unwarranted governmental intrusion into
matters so fundamentally affecting a person as the decision whether to bear or
beget a child." Id., at 453.
This right of privacy was called by Mr. Justice Brandeis the right "to
be let alone." Olmstead v. United States, 277 U.S. 438, 478
(dissenting opinion). That right includes the privilege of an individual to plan
his own affairs, for, "'outside areas of plainly harmful conduct, every
American is left to shape his own life as he thinks best, do what he pleases, go
where he pleases.'" Kent v. Dulles, 357 U.S. 116, 126.
Third is the freedom to care for one's health and person, freedom from bodily
restraint or compulsion, freedom to walk, stroll, or loaf.
These rights, though fundamental, are likewise subject to regulation on a
showing of "compelling state interest." We stated in Papachristou
v. City of Jacksonville, 405 U.S. 156, 164, that walking, strolling, and
wandering "are historically part of the amenities of life as we have known
them." As stated in Jacobson v. Massachusetts, 197 U.S. 11, 29:
"There is, of course, a sphere within which the individual may assert the
supremacy of his own will [410 U.S. 214] and rightfully dispute the authority
of any human government, especially of any free government existing under a
written constitution, to interfere with the exercise of that will."
In Union Pacific R. Co. v. Botsford, 141 U.S. 250, 252, the Court
said, "The inviolability of the person is as much invaded by a compulsory
stripping and exposure as by a blow."
In Terry v. Ohio, 392 U.S. 1, 8-9, the Court, in speaking of the
Fourth Amendment stated, "This inestimable right of personal security
belongs as much to the citizen on the streets of our cities as to the homeowner
closeted in his study to dispose of his secret affairs."
Katz v. United States, 389 U.S. 347, 350, emphasizes that the Fourth
Amendment "protects individual privacy against certain kinds of
In Meyer v. Nebraska, 262 U.S. 390, 399, the Court said:
"Without doubt, [liberty] denotes not merely freedom from bodily
restraint, but also the right of the individual to contract, to engage in any
of the common occupations of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God according to the
dictates of his own conscience, and generally to enjoy those privileges long
recognized at common law as essential to the orderly pursuit of happiness by
The Georgia statute is at war with the clear message of these cases -- that a
woman is free to make the basic decision whether to bear an unwanted child.
Elaborate argument is hardly necessary to demonstrate that childbirth may
deprive a woman of her preferred lifestyle and force upon her a radically
different and undesired future. For example, rejected applicants under the
Georgia statute are required to endure the [410 U.S. 215] discomforts of
pregnancy; to incur the pain, higher mortality rate, and after-effects of
childbirth; to abandon educational plans; to sustain loss of income; to forgo
the satisfactions of careers; to tax further mental and physical health in
providing child care; and, in some cases, to bear the lifelong stigma of unwed
motherhood, a badge which may haunt, if not deter, later legitimate family
Such reasoning is, however, only the beginning of the problem.
The State has interests to protect. Vaccinations to prevent epidemics are one
example, as Jacobson, supra, holds. The Court held that compulsory
sterilization of imbeciles afflicted with hereditary forms of insanity or
imbecility is another. Buck v. Bell, 274 U.S. 200. Abortion affects
another. While childbirth endangers the lives of some women, voluntary abortion
at any time and place regardless of medical standards would impinge on a
rightful concern of society. The woman's health is part of that concern; as is
the life of the fetus after quickening. These concerns justify the State in
treating the procedure as a medical one.
One difficulty is that this statute as construed, and applied apparently does
not give full sweep to the "psychological, as well as physical wellbeing"
of women patients which saved the concept "health" from being void for
vagueness in United States v. Vuitch, 402 U.S. at 72. But, apart from
that, Georgia's enactment has a constitutional infirmity because, as stated by
the District Court, it "limits the number of reasons for which an abortion
may be sought." I agree with the holding of the District Court, "This
the State may not do, because such action unduly restricts a decision sheltered
by the Constitutional right to privacy." 319 F.Supp. at 1056.
The vicissitudes of life produce pregnancies which may be unwanted, or which
may impair "health" in [410 U.S. 216] the broad Vuitch sense of
the term, or which may imperil the life of the mother, or which, in the full
setting of the case, may create such suffering, dislocations, misery, or tragedy
as to make an early abortion the only civilized step to take. These hardships
may be properly embraced in the "health" factor of the mother as
appraised by a person of insight. Or they may be part of a broader medical
judgment based on what is "appropriate" in a given case, though
perhaps not "necessary" in a strict sense.
The "liberty" of the mother, though rooted as it is in the
Constitution, may be qualified by the State for the reasons we have stated. But
where fundamental personal rights and liberties are involved, the corrective
legislation must be "narrowly drawn to prevent the supposed evil," Cantwell
v. Connecticut, 310 U.S. 296, 307, and not be dealt with in an
"unlimited and indiscriminate" manner. Shelton v. Tucker, 364
U.S. 479, 490. And see Talley v. California, 362 U.S. 60. Unless
regulatory measures are so confined and are addressed to the specific areas of
compelling legislative concern, the police power would become the great leveler
of constitutional rights and liberties.
There is no doubt that the State may require abortions to be performed by
qualified medical personnel. The legitimate objective of preserving the mother's
health clearly supports such laws. Their impact upon the woman's privacy is
minimal. But the Georgia statute outlaws virtually all such operations -- even
in the earliest stages of pregnancy. In light of modern medical evidence
suggesting that an early abortion is safer healthwise than childbirth itself,5
it cannot be seriously [410 U.S. 217] urged that so comprehensive a ban is aimed
at protecting the woman's health. Rather, this expansive proscription of all
abortions along the temporal spectrum can rest only on a public goal of
preserving both embryonic and fetal life.
The present statute has struck the balance between the woman's and the
State's interests wholly in favor of the latter. I am not prepared to hold that
a State may equate, as Georgia has done, all phases of maturation preceding
birth. We held in Griswold that the States may not preclude spouses from
attempting to avoid the joinder of sperm and egg. If this is true, it is
difficult to perceive any overriding public necessity which might attach
precisely at the moment of conception. As Mr. Justice Clark has said:6
"To say that life is present at conception is to give recognition to the
potential, rather than the actual. The unfertilized egg has life, and if
fertilized, it takes on human proportions. But the law deals in reality, not
obscurity -- the known, rather than the unknown. When sperm meets egg, life
may eventually form, but quite often it does not. The law does not deal in
speculation. The phenomenon of [410 U.S. 218] life takes time to develop, and,
until it is actually present, it cannot be destroyed. Its interruption prior
to formation would hardly be homicide, and as we have seen, society does not
regard it as such. The rites of Baptism are not performed and death
certificates are not required when a miscarriage occurs. No prosecutor has
ever returned a murder indictment charging the taking of the life of a fetus.7
This would not be the case if the fetus constituted human life."
In summary, the enactment is overbroad. It is not closely correlated to the
aim of preserving prenatal life. In fact, it permits its destruction in several
cases, including pregnancies resulting from sex acts in which unmarried females
are below the statutory age of consent. At the same time, however, the measure
broadly proscribes aborting other pregnancies which may cause severe mental
disorders. Additionally, the statute is overbroad because it equates the value
of embryonic life immediately after conception with the worth of life
immediately before birth.
Under the Georgia Act, the mother's physician is not the sole
judge as to whether the abortion should be performed. Two other licensed
physicians must concur in his judgment.8
Moreover, the abortion must be performed in a licensed hospital;9
and the abortion must be [410 U.S. 219] approved in advance by a committee of
the medical staff of that hospital.10
Physicians, who speak to us in Doe through an amicus brief, complain
of the Georgia Act's interference with their practice of their profession.
The right of privacy has no more conspicuous place than in the
physician-patient relationship, unless it be in the priest-penitent
It is one thing for a patient to agree that her physician may consult with
another physician about her case. It is quite a different matter for the State
compulsorily to impose on that physician-patient relationship another layer or,
as in this case, still a third layer of physicians. The right of privacy -- the
right to care for one's health and person and to seek out a physician of one's
own choice protected by the Fourteenth Amendment -- becomes only a matter of
theory, not a reality, when a "multiple physician approval" system is
mandated by the State.
The State licenses a physician. If he is derelict or faithless, the
procedures available to punish him or to deprive him of his license are well
known. He is entitled to procedural due process before professional disciplinary
sanctions may be imposed. See In re Ruffalo, 390 U.S. 544. Crucial here,
however, is state-imposed control over the medical decision whether pregnancy
should be interrupted. The good faith decision of the patient's chosen physician
is overridden and the final decision passed on to others in whose selection the
patient has no part. This is a total destruction of the right of privacy between
physician and patient and the intimacy of relation which that entails.
The right to seek advice on one's health and the right to place reliance on
the physician of one's choice are [410 U.S. 220] basic to Fourteenth Amendment
values. We deal with fundamental rights and liberties, which, as already noted,
can be contained or controlled only by discretely drawn legislation that
preserves the "liberty" and regulates only those phases of the problem
of compelling legislative concern. The imposition by the State of group controls
over the physician-patient relationship is not made on any medical procedure
apart from abortion, no matter how dangerous the medical step may be. The
oversight imposed on the physician and patient in abortion cases denies them
their "liberty," viz., their right of privacy, without any
compelling, discernible state interest.
Georgia has constitutional warrant in treating abortion as a medical problem.
To protect the woman's right of privacy, however, the control must be through
the physician of her choice and the standards set for his performance.
The protection of the fetus when it has acquired life is a legitimate concern
of the State. Georgia's law makes no rational, discernible decision on that
For under the Code, the developmental stage of the fetus is irrelevant when
pregnancy is the result of rape, when the fetus will very likely be born with a
permanent defect, or when a continuation of the pregnancy will endanger the life
of the mother or permanently injure her health. When life is present is a
question we do not try to resolve. While basically a question for medical
experts, as stated by Mr. Justice Clark,12
it is, of course, caught up in matters of religion and morality.
In short, I agree with the Court that endangering the life of the woman or
seriously and permanently injuring [410 U.S. 221] her health are standards too
narrow for the right of privacy that is at stake.
I also agree that the superstructure of medical supervision which Georgia has
erected violates the patient's right of privacy inherent in her choice of her
* [This opinion applies also to No. 70-18, Roe v. Wade, ante p. 113.]
1. I disagree with the dismissal of Dr. Hallford's complaint in
intervention in Roe v. Wade, ante p. 113, because my disagreement with Younger
v. Harris, 401 U.S. 37, revealed in my dissent in that case, still persists
and extends to the progeny of that case.
2. There is no mention of privacy in our Bill of Rights, but our
decisions have recognized it as one of the fundamental values those amendments
were designed to protect. The fountainhead case is Boyd v. United States,
116 U.S. 616, holding that a federal statute which authorized a court in tax
cases to require a taxpayer to produce his records or to concede the
Government's allegations offended the Fourth and Fifth Amendments. Mr. Justice
Bradley, for the Court, found that the measure unduly intruded into the
"sanctity of a man's home and the privacies of life." Id.. at
630. Prior to Boyd, in Kilbourn v. Thompson, 103 U.S. 168, 190,
Mr. Justice Miller held for the Court that neither House of Congress
"possesses the general power of making inquiry into the private affairs of
the citizen." Of Kilbourn, Mr. Justice Field later said, "This
case will stand for all time as a bulwark against the invasion of the right of
the citizen to protection in his private affairs against the unlimited scrutiny
of investigation by a congressional committee." In re Pacific Railway
Comm'n, 32 F. 241, 253 (cited with approval in Sinclair v. United States,
279 U.S. 263, 293). Mr. Justice Harlan, also speaking for the Court in ICC v.
Brimson, 154 U.S. 447, 478, thought the same was true of administrative
inquiries, saying that the Constitution did not permit a "general power of
making inquiry into the private affairs of the citizen." In a similar vein
were Harriman v. ICC, 211 U.S. 407; United States v. Louisville &
Nashville R. Co., 236 U.S. 318, 335; and FTC v. American Tobacco Co.,
264 U.S. 298.
3. The California abortion statute, held unconstitutional in the Belous
case, made it a crime to perform or help perform an abortion "unless the
same is necessary to preserve [the mother's] life." 71 Cal.2d at 959, 458
P.2d at 197.
4. My Brother STEWART, writing in Roe v. Wade, supra, says that
our decision in Griswold reintroduced substantive due process that had
been rejected in Ferguson v. Skrupa, 372 U.S. 726. Skrupa involved
legislation governing a business enterprise; and the Court in that case, as had
Mr. Justice Holmes on earlier occasions, rejected the idea that
"liberty" within the meaning of the Due Process Clause of the
Fourteenth Amendment was a vessel to be filled with one's personal choices of
values, whether drawn from the laissez faire school, from the socialistic
school, or from the technocrats. Griswold involved legislation touching
on the marital relation and involving the conviction of a licensed physician for
giving married people information concerning contraception. There is nothing
specific in the Bill of Rights that covers that item. Nor is there anything in
the Bill of Rights that, in terms, protects the right of association or the
privacy in one's association. Yet we found those rights in the periphery of the
First Amendment. NAACP v. Alabama, 357 U.S. 449, 462. Other peripheral
rights are the right to educate one's children as one chooses, Pierce v.
Society of Sisters, 268 U.S. 510, and the right to study the German
language, Meyer v. Nebraska, 262 U.S. 390. These decisions, with all
respect, have nothing to do with substantive due process. One may think they are
not peripheral to other rights that are expressed in the Bill of Rights. But
that is not enough to bring into play the protection of substantive due process.
There are, of course, those who have believed that the reach of due process
in the Fourteenth Amendment included all of the Bill of Rights but went further.
Such was the view of Mr. Justice Murphy and Mr. Justice Rutledge. See Adamson
v. California, 332 U.S. 46, 123, 124 (dissenting opinion). Perhaps they were
right, but it is a bridge that neither I nor those who joined the Court's
opinion in Griswold crossed.
5. Many studies show that it is safer for a woman to have a medically
induced abortion than to bear a child. In the first 11 months of operation of
the New York abortion law, the mortality rate associated with such operations
was six per 100,000 operations. Abortion Mortality, 20 Morbidity and Mortality
208, 209 (June 1971) (U.S. Dept. of HEW, Public Health Service). On the other
hand, the maternal mortality rate associated with childbirths other than
abortions was 18 per 100,000 live births. Tietze, Mortality with Contraception
and Induced Abortion, 45 Studies in Family Planning 6 (1969). See also
Tietze & Lehfeldt, Legal Abortion in Eastern Europe, 175 J.A.M.A. 1149, 1152
(Apr.1961); Kolblova, Legal Abortion in Czechoslovakia, 196 J.A.M.A. 371
(Apr.1968); Mehland, Combating Illegal Abortion in the Socialist Countries of
Europe, 13 World Med. J. 84 (1966).
6. Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loyola
U. (L.A.) L.Rev. 1, 9-10 (1969).
7. In Keeler v. Superior Court, 2 Cal.3d 619, 470 P.2d 617, the
California Supreme Court held in 1970 that the California murder statute did not
cover the killing of an unborn fetus, even though the fetus be
"viable," and that it was beyond judicial power to extend the statute
to the killing of an unborn. It held that the child must be "born alive
before a charge of homicide can be sustained." Id. at 639, 470 P.2d
8. See Ga.Code Ann. § 26-1202(b)(3).
9. See id. § 26-1202(b)(4).
10. Id. § 26-1202(b)(5).
11. See Rochat, Tyler, & Schoenbucher, An Epidemiological
Analysis of Abortion in Georgia, 61 Am.J. of Public Health 543 (1971).
12. Supra, n. 6, at 10.
Post: MR. JUSTICE WHITE, with whom MR. JUSTICE
REHNQUIST joins, dissenting.*
At the heart of the controversy in these cases are those recurring
pregnancies that pose no danger whatsoever to the life or health of the mother
but are, nevertheless, unwanted for any one or more of a variety of reasons --
convenience, family planning, economics, dislike of children, the embarrassment
of illegitimacy, etc. The common claim before us is that, for any one of such
reasons, or for no reason at all, and without asserting or claiming any threat
to life or health, any woman is entitled to an abortion at her request if she is
able to find a medical advisor willing to undertake the procedure.
The Court, for the most part, sustains this position: during the period prior
to the time the fetus becomes viable, the Constitution of the United States
values the convenience, whim, or caprice of the putative mother more than the
life or potential life of the fetus; the Constitution, therefore, guarantees the
right to an abortion as against any state law or policy seeking to protect the
fetus from an abortion not prompted by more compelling reasons of the mother.
With all due respect, I dissent. I find nothing in the language or history of
the Constitution to support the Court's judgment. The Court simply fashions and
announces a new constitutional right for pregnant mothers [410 U.S. 222] and,
with scarcely any reason or authority for its action, invests that right with
sufficient substance to override most existing state abortion statutes. The
upshot is that the people and the legislatures of the 50 States are
constitutionally dissentitled to weigh the relative importance of the continued
existence and development of the fetus, on the one hand, against a spectrum of
possible impacts on the mother, on the other hand. As an exercise of raw
judicial power, the Court perhaps has authority to do what it does today; but,
in my view, its judgment is an improvident and extravagant exercise of the power
of judicial review that the Constitution extends to this Court.
The Court apparently values the convenience of the pregnant mother more than
the continued existence and development of the life or potential life that she
carries. Whether or not I might agree with that marshaling of values, I can in
no event join the Court's judgment because I find no constitutional warrant for
imposing such an order of priorities on the people and legislatures of the
States. In a sensitive area such as this, involving as it does issues over which
reasonable men may easily and heatedly differ, I cannot accept the Court's
exercise of its clear power of choice by interposing a constitutional barrier to
state efforts to protect human life and by investing mothers and doctors with
the constitutionally protected right to exterminate it. This issue, for the most
part, should be left with the people and to the political processes the people
have devised to govern their affairs.
It is my view, therefore, that the Texas statute is not constitutionally
infirm because it denies abortions to those who seek to serve only their
convenience, rather than to protect their life or health. Nor is this plaintiff,
who claims no threat to her mental or physical health, entitled to assert the
possible rights of those women [410 U.S. 223] whose pregnancy assertedly
implicates their health. This, together with United States v. Vuitch, 402
U.S. 62 (1971), dictates reversal of the judgment of the District Court.
Likewise, because Georgia may constitutionally forbid abortions to putative
mothers who, like the plaintiff in this case, do not fall within the reach of §
26-1202(a) of its criminal code, I have no occasion, and the District Court had
none, to consider the constitutionality of the procedural requirements of the
Georgia statute as applied to those pregnancies posing substantial hazards to
either life or health. I would reverse the judgment of the District Court in the
* [This opinion applies also to No. 718, Roe
v. Wade, ante p. 113.]