ROE v. WADE
Term:
- 1970-1979
Facts of the Case
Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life. After granting certiorari, the Court heard arguments twice. The first time, Roe's attorney -- Sarah Weddington -- could not locate the constitutional hook of her argument for Justice Potter Stewart. Her opponent -- Jay Floyd -- misfired from the start. Weddington sharpened her constitutional argument in the second round. Her new opponent -- Robert Flowers -- came under strong questioning from Justices Potter Stewart and Thurgood Marshall.
Question
Does the Constitution embrace a woman's right to terminate her pregnancy by abortion?
Conclusion
Decision: 7 votes for Roe, 2 vote(s) against
Legal provision: Due Process
Legal provision: Due Process
The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court's ruling.
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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. 410 U. S. 207, DOUGLAS, J., post, p. 410 U. S. 209, and STEWART, J., post, p. 410 U. S. 167, filed concurring opinions. WHITE, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 410 U. S. 221. REHNQUIST, J., filed a dissenting opinion, post, p. 410 U. S. 171.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 410 U. S. 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
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, 198 U. S. 76 (1905):
"[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."
I
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's Penal Code. [Footnote 1] These make it a crime to "procure an abortion," as therein
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. [Footnote 2]
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." [Footnote 3]
II
Jane Roe, [Footnote 4] a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes.
Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions"; that she was unable to get a "legal" abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint, Roe purported to sue "on behalf of herself and all other women" similarly situated.
James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe's action. In his complaint, he alleged that he had been arrested previously for violations of the Texas abortion statutes, and
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, [Footnote 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,
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)
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, 362 U. S. 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. 410 U. S. 179.
IV
We are next confronted with issues of justiciability, standing, and abstention. Have Roe and the Does established that "personal stake in the outcome of the controversy," Baker v. Carr, 369 U. S. 186, 369 U. S. 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, 392 U. S. 101 (1968), and Sierra Club v. Morton, 405 U. S. 727, 405 U. S. 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?
A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe is a fictitious person. For purposes of her case, we accept as true, and as established, her existence; her pregnant state, as of the inception of her suit in March 1970 and as late as May 21 of that year when she filed an alias affidavit with the District Court; and her inability to obtain a legal abortion in Texas.
Viewing Roe's case as of the time of its filing and thereafter until as late a May, there can be little dispute that it then presented a case or controversy and that, wholly apart from the class aspects, she, as a pregnant single woman thwarted by the Texas criminal abortion laws, had standing to challenge those statutes. Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971); Crossen v. Breckenridge, 446 F.2d 833, 838-839 (CA6 1971); Poe v. Menghini, 339 F.Supp. 986, 990-991 (Kan.1972). See Truax v. Raich, 239 U. S. 33 (1915). Indeed, we do not read the appellee's brief as really asserting anything to the contrary. The "logical nexus between the status asserted and the claim sought to be adjudicated," Flast v. Cohen, 392 U.S. at 392 U. S. 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, [Footnote 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.
The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. United States v. Munsingwear, Inc., 340 U. S. 36 (1950); Golden v. Zwickler, supra; SEC v. Medical Committee for Human Rights, 404 U. S. 403 (1972).
But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 219 U. S. 515 (1911). See Moore v. Ogilvie, 394 U. S. 814, 394 U. S. 816 (1969); Carroll v. Princess Anne, 393 U. S. 175, 393 U. S. 178-179 (1968); United States v. W. T. Grant Co., 345 U. S. 629, 345 U. S. 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.
James H. Hallford, No. C-69-5307-IH, and (2) The State of Texas vs. James H. Hallford, No. C-692524-H. In both cases, the defendant is charged with abortion. . . ."
In his application for leave to intervene, the doctor made like representations as to the abortion charges pending in the state court. These representations were also repeated in the affidavit he executed and filed in support of his motion for summary judgment.
Dr. Hallford is, therefore, in the position of seeking, in a federal court, declaratory and injunctive relief with respect to the same statutes under which he stands charged in criminal prosecutions simultaneously pending in state court. Although he stated that he has been arrested in the past for violating the State's abortion laws, he makes no allegation of any substantial and immediate threat to any federally protected right that cannot be asserted in his defense against the state prosecutions. Neither is there any allegation of harassment or bad faith prosecution. In order to escape the rule articulated in the cases cited in the next paragraph of this opinion that, absent harassment and bad faith, a defendant in a pending state criminal case cannot affirmatively challenge in federal court the statutes under which the State is prosecuting him, Dr. Hallford seeks to distinguish his status as a present state defendant from his status as a "potential future defendant," and to assert only the latter for standing purposes here.
We see no merit in that distinction. Our decision in Samuels v. Mackell, 401 U. S. 66 (1971), compels the conclusion that the District Court erred when it granted declaratory relief to Dr. Hallford instead of refraining from so doing. The court, of course, was correct in refusing to grant injunctive relief to the doctor. The reasons supportive of that action, however, are those expressed in Samuels v. Mackell, supra, and in Younger v.
Harris, 401 U. S. 37 (1971); Boyle v. Landry, 401 U. S. 77 (1971); Perez v. Ledesma, 401 U. S. 82 (1971); and Byrne v. Karaleis, 401 U. S. 216 (1971). See also Dombrowski v. Pfister, 380 U. S. 479 (1965). We note, in passing, that Younger and its companion cases were decided after the three-judge District Court decision in this case.
Dr. Hallford's complaint in intervention, therefore, is to be dismissed. [Footnote 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
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 401 U. S. 41-42; Golden v. Zwickler, 394 U.S. at 394 U. S. 109-110; Abele v. Markle, 452 F.2d 1124-1125; Crossen v. Breckenridge, 446 F.2d 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);
and Epperson v. Arkansas, 393 U. S. 97 (1968). See also Truax v. Raich, 239 U. S. 33 (1915).
The Does therefore are not appropriate plaintiffs in this litigation. Their complaint was properly dismissed by the District Court, and we affirm that dismissal.
V
The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); id. at 405 U. S. 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 381 U. S. 486 (Goldberg, J., concurring). Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws.
VI
It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman's life, are not of ancient or even of common law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.
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. [Footnote 8] We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era, [Footnote 9] and that "it was resorted to without scruple." [Footnote 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. [Footnote 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. [Footnote 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
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? [Footnote 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, [Footnote 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. [Footnote 15]"
Although the Oath is not mentioned in any of the principal briefs in this case or in Doe v. Bolton, post, p. 410 U. S. 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: [Footnote 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,"
and "[i]n no other stratum of Greek opinion were such views held or proposed in the same spirit of uncompromising austerity." [Footnote 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." [Footnote 18] But with the end of antiquity, a decided change took place. Resistance against suicide and against abortion became common. The Oath came to be popular. The emerging teachings of Christianity were in agreement with the Pythagorean ethic. The Oath "became the nucleus of all medical ethics," and "was applauded as the embodiment of truth." Thus, suggests Dr. Edelstein, it is "a Pythagorean manifesto, and not the expression of an absolute standard of medical conduct." [Footnote 19]
This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath's apparent rigidity. It enables us to understand, in historical context, a long-accepted and revered statement of medical ethics.
3. The common law. It is undisputed that, at common law, abortion performed before "quickening" -- the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy [Footnote 20] -- was not an indictable offense. [Footnote 21] The absence
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. [Footnote 22] This was "mediate animation." Although
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. [Footnote 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
passage, Coke took the position that abortion of a woman "quick with childe" is "a great misprision, and no murder." [Footnote 24] Blackstone followed, saying that, while abortion after quickening had once been considered manslaughter (though not murder), "modern law" took a less severe view. [Footnote 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. [Footnote 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, [Footnote 27] others followed Coke in stating that abortion
of a quick fetus was a "misprision," a term they translated to mean "misdemeanor." [Footnote 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
found guilty of the offense
"unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother."
A seemingly notable development in the English law was the case of Rex v. Bourne, [1939] 1 K.B. 687. This case apparently answered in the affirmative the question whether an abortion necessary to preserve the life of the pregnant woman was excepted from the criminal penalties of the 1861 Act. In his instructions to the jury, Judge Macnaghten referred to the 1929 Act, and observed that that Act related to "the case where a child is killed by a willful act at the time when it is being delivered in the ordinary course of nature." Id. at 691. He concluded that the 1861 Act's use of the word "unlawfully," imported the same meaning expressed by the specific proviso in the 1929 Act, even though there was no mention of preserving the mother's life in the 1861 Act. He then construed the phrase "preserving the life of the mother" broadly, that is, "in a reasonable sense," to include a serious and permanent threat to the mother's health, and instructed the jury to acquit Dr. Bourne if it found he had acted in a good faith belief that the abortion was necessary for this purpose. Id. at 693-694. The jury did acquit.
Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an abortion where two other licensed physicians agree (a)
"that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated,"
or (b)
"that there is a substantial risk that, if the child were born it would suffer from such physical or mental abnormalities as
to be seriously handicapped."
The Act also provides that, in making this determination, "account may be taken of the pregnant woman's actual or reasonably foreseeable environment." It also permits a physician, without the concurrence of others, to terminate a pregnancy where he is of the good faith opinion that the abortion "is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman."
5. The American law. In this country, the law in effect in all but a few States until mid-19th century was the preexisting English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough's Act that related to a woman "quick with child." [Footnote 29] The death penalty was not imposed. Abortion before quickening was made a crime in that State only in 1860. [Footnote 30] In 1828, New York enacted legislation [Footnote 31] that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickened fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it
"shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose."
By 1840, when Texas had received the common law, [Footnote 32] only eight American States
had statutes dealing with abortion. [Footnote 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. [Footnote 34] The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother's health. [Footnote 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. [Footnote 36] In
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, [Footnote 37] set forth as Appendix B to the opinion in Doe v. Bolton, post, p. 410 U. S. 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
to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.
6. The position of the American Medical Association. The anti-abortion mood prevalent in this country in the late 19th century was shared by the medical profession. Indeed, the attitude of the profession may have played a significant role in the enactment of stringent criminal abortion legislation during that period.
An AMA Committee on Criminal Abortion was appointed in May, 1857. It presented its report, 12 Trans. of the Am.Med.Assn. 778 (1859), to the Twelfth Annual Meeting. That report observed that the Committee had been appointed to investigate criminal abortion "with a view to its general suppression." It deplored abortion and its frequency and it listed three causes of "this general demoralization":
"The first of these causes is a widespread popular ignorance of the true character of the crime -- a belief, even among mothers themselves, that the foetus is not alive till after the period of quickening."
"The second of the agents alluded to is the fact that the profession themselves are frequently supposed careless of foetal life. . . ."
"The third reason of the frightful extent of this crime is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas. With strange inconsistency, the law fully acknowledges the foetus in utero and its inherent rights, for civil purposes; while personally and as criminally affected, it fails to recognize it,
and to its life as yet denies all protection."
Id. at 776. The Committee then offered, and the Association adopted, resolutions protesting "against such unwarrantable destruction of human life," calling upon state legislatures to revise their abortion laws, and requesting the cooperation of state medical societies "in pressing the subject." Id. at 28, 78.
In 1871, a long and vivid report was submitted by the Committee on Criminal Abortion. It ended with the observation,
"We had to deal with human life. In a matter of less importance, we could entertain no compromise. An honest judge on the bench would call things by their proper names. We could do no less."
22 Trans. of the Am.Med.Assn. 268 (1871). It proffered resolutions, adopted by the Association, id. at 38-39, recommending, among other things, that it
"be unlawful and unprofessional for any physician to induce abortion or premature labor without the concurrent opinion of at least one respectable consulting physician, and then always with a view to the safety of the child -- if that be possible,"
and calling
"the attention of the clergy of all denominations to the perverted views of morality entertained by a large class of females -- aye, and men also, on this important question."
Except for periodic condemnation of the criminal abortionist, no further formal AMA action took place until 1967. In that year, the Committee on Human Reproduction urged the adoption of a stated policy of opposition to induced abortion except when there is "documented medical evidence" of a threat to the health or life of the mother, or that the child "may be born with incapacitating physical deformity or mental deficiency," or that a pregnancy "resulting from legally established statutory or forcible rape or incest may constitute a threat to the mental or physical health of the
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. [Footnote 38] Proceedings
of the AMA House of Delegates 220 (June 1970). The AMA Judicial Council rendered a complementary opinion. [Footnote 39]
7. The position of the American Public Health Association. In October, 1970, the Executive Board of the APHA adopted Standards for Abortion Services. These were five in number:
"a. Rapid and simple abortion referral must be readily available through state and local public
health departments, medical societies, or other nonprofit organizations."
"b. An important function of counseling should be to simplify and expedite the provision of abortion services; it should not delay the obtaining of these services."
"c. Psychiatric consultation should not be mandatory. As in the case of other specialized medical services, psychiatric consultation should be sought for definite indications, and not on a routine basis."
"d. A wide range of individuals from appropriately trained, sympathetic volunteers to highly skilled physicians may qualify as abortion counselors."
"e. Contraception and/or sterilization should be discussed with each abortion patient."
"Recommended Standards for Abortion Services, 61 Am.J.Pub.Health 396 (1971). Among factors pertinent to life and health risks associated with abortion were three that 'are recognized as important': "
"a. the skill of the physician,"
"b. the environment in which the abortion is performed, and above all"
"c. the duration of pregnancy, as determined by uterine size and confirmed by menstrual history."
Id. at 397.
It was said that "a well equipped hospital" offers more protection
"to cope with unforeseen difficulties than an office or clinic without such resources. . . . The factor of gestational age is of overriding importance."
Thus, it was recommended that abortions in the second trimester and early abortions in the presence of existing medical complications be performed in hospitals as inpatient procedures. For pregnancies in the first trimester,
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. [Footnote 40] The
Opinion of the Court Conference has appended an enlightening Prefatory Note. [Footnote 41]
VII
Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.
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. [Footnote 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. [Footnote 43] This was particularly true prior to the
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. [Footnote 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.
The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal "abortion mills" strengthens, rather than weakens, the State's interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman's own health and safety when an abortion is proposed at a late stage of pregnancy.
The third reason is the State's interest -- some phrase it in terms of duty -- in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. [Footnote 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.
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. [Footnote 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. [Footnote 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. [Footnote 48] Proponents of this view point out that in many States, including Texas, [Footnote 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. [Footnote 50] They claim that adoption of the "quickening" distinction through received common
law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception.
It is with these interests, and the eight to be attached to them, that this case is concerned.
VIII
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U. S. 250, 141 U. S. 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, 394 U. S. 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U. S. 1, 392 U. S. 8-9 (1968), Katz v. United States, 389 U. S. 347, 389 U. S. 350 (1967), Boyd v. United States, 116 U. S. 616 (1886), see Olmstead v. United States, 277 U. S. 438, 277 U. S. 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S. at 381 U. S. 484-485; in the Ninth Amendment, id. at 381 U. S. 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, 262 U. S. 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, 302 U. S. 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U. S. 1, 388 U. S. 12 (1967); procreation, Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 405 U. S. 453-454; id. at 405 U. S. 460, 405 U. S. 463-465
(WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166 (1944); and childrearing and education, Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 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
Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U. S. 11 (1905) (vaccination); Buck v. Bell, 274 U. S. 200 (1927) ( sterilization).
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.
We note that those federal and state courts that have recently considered abortion law challenges have reached the same conclusion. A majority, in addition to the District Court in the present case, have held state laws unconstitutional, at least in part, because of vagueness or because of overbreadth and abridgment of rights. Abele v. Markle, 342 F.Supp. 800 (Conn.1972), appeal docketed, No. 72-56; Abele v. Markle, 351 F.Supp. 224 (Conn.1972), appeal docketed, No. 72-730; Doe v. Bolton, 319 F.Supp. 1048 (ND Ga.1970), appeal decided today, post, p. 410 U. S. 179; Doe v. Scott, 321 F.Supp. 1385 (ND Ill.1971), appeal docketed, No. 70-105; Poe v. Menghini, 339 F.Supp. 986 (Kan.1972); YWCA v. Kuler, 342 F.Supp. 1048 (NJ 1972); Babbitz v. McCann,
310 F.Supp. 293 (ED Wis.1970), appeal dismissed, 400 U. S. 1 (1970); People v. Belous, 71 Cal.2d 954, 458 P.2d 194 (1969), cert. denied, 397 U.S. 915 (1970); State v. Barquet, 262 So.2d 431 (Fla.1972).
Others have sustained state statutes. Crossen v. Attorney General, 344 F.Supp. 587 (ED Ky.1972), appeal docketed, No. 72-256; Rosen v. Louisiana State Board of Medical Examiners, 318 F.Supp. 1217 (ED La.1970), appeal docketed, No. 70-42; Corkey v. Edwards, 322 F.Supp. 1248 (WDNC 1971), appeal docketed, No. 71-92; Steinberg v. Brown, 321 F.Supp. 741 (ND Ohio 1970); Doe v. Rampton (Utah 1971), appeal docketed, No. 71-5666; Cheaney v. State, ___ Ind. ___, 285 N.E.2d 265 (1972); Spears v. State, 257 So.2d 876 (Miss. 1972); State v. Munson, 86 S.D. 663, 201 N.W.2d 123 (1972), appeal docketed, No. 72-631.
Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute, and is subject to some limitations; and that, at some point, the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.
Where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified only by a "compelling state interest," Kramer v. Union Free School District, 395 U. S. 621, 395 U. S. 627 (1969); Shapiro v. Thompson, 394 U. S. 618, 394 U. S. 634 (1969), Sherbert v. Verner, 374 U. S. 398, 374 U. S. 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 381 U. S. 485; Aptheker v. Secretary of State, 378 U. S. 500, 378 U. S. 508 (1964); Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 307-308 (1940); see
Eisenstadt v. Baird, 405 U.S. at 405 U. S. 460, 463-464 (WHITE, J., concurring in result).
In the recent abortion cases cited above, courts have recognized these principles. Those striking down state laws have generally scrutinized the State's interests in protecting health and potential life, and have concluded that neither interest justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy. Courts sustaining state laws have held that the State's determinations to protect health or prenatal life are dominant and constitutionally justifiable.
IX
The District Court held that the appellee failed to meet his burden of demonstrating that the Texas statute's infringement upon Roe's rights was necessary to support a compelling state interest, and that, although the appellee presented "several compelling justifications for state presence in the area of abortions," the statutes outstripped these justifications and swept "far beyond any areas of compelling state interest." 314 F.Supp. at 1222-1223. Appellant and appellee both contest that holding. Appellant, as has been indicated, claims an absolute right that bars any state imposition of criminal penalties in the area. Appellee argues that the State's determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation.
A. The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses,
for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. [Footnote 51] On the other hand, the appellee conceded on reargument [Footnote 52] that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.
The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; [Footnote 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 post-natally. None indicates, with any assurance, that it has any possible pre-natal application. [Footnote 54]
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. [Footnote 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
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.
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. [Footnote 56] It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. [Footnote 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. [Footnote 58] As we have noted, the common law found greater significance in quickening. Physician and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes "viable," that is, potentially able to live outside the mother's womb, albeit with artificial aid. [Footnote 59] Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. [Footnote 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
the moment of conception. [Footnote 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. [Footnote 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. [Footnote 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
courts have squarely so held. [Footnote 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. [Footnote 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. [Footnote 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.
X
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches
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 410 U. S. 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
during that period, except when it is necessary to preserve the life or health of the mother.
Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those "procured or attempted by medical advice for the purpose of saving the life of the mother," sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, "saving" the mother's life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.
This conclusion makes it unnecessary for us to consider the additional challenge to the Texas statute asserted on grounds of vagueness. See United States v. Vuitch, 402 U.S. at 402 U. S. 67-72.
XI
To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life
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. 410 U. S. 179, procedural requirements contained in one of the modern abortion statutes are considered. That opinion and this one, of course, are to be read together. [Footnote 67]
This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important
state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.
XII
Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be struck down separately, for then the State would be left with a statute proscribing all abortion procedures no matter how medically urgent the case.
Although the District Court granted appellant Roe declaratory relief, it stopped short of issuing an injunction against enforcement of the Texas statutes. The Court has recognized that different considerations enter into a federal court's decision as to declaratory relief, on the one hand, and injunctive relief, on the other. Zwickler v. Koota, 389 U. S. 241, 389 U. S. 252-255 (1967); Dombrowski v. Pfister, 380 U. S. 479 (1965). We are not dealing with a statute that, on its face, appears to abridge free expression, an area of particular concern under Dombrowski and refined in Younger v. Harris, 401 U.S. at 401 U. S. 50.
We find it unnecessary to decide whether the District Court erred in withholding injunctive relief, for we assume the Texas prosecutorial authorities will give full credence to this decision that the present criminal abortion statutes of that State are unconstitutional.
The judgment of the District Court as to intervenor Hallford is reversed, and Dr. Hallford's complaint in intervention is dismissed. In all other respects, the judgment
of the District Court is affirmed. Costs are allowed to the appellee.
It is so ordered.
[For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 410 U. S. 207.]
[For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 410 U. S. 209.]
[For dissenting opinion of MR. JUSTICE WHITE, see post, p. 410 U. S. 221.]
"Article 1191. Abortion"
"If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By 'abortion' is meant that the life of the fetus or embryo shall be destroyed in the woman's womb or that a premature birth thereof be caused."
"Art. 1192. Furnishing the means"
"Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice."
"Art. 1193. Attempt at abortion"
"If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means were calculated to produce that result, and shall be fined not less than one hundred nor more than one thousand dollars."
"Art. 1194. Murder in producing abortion"
"If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder."
"Art. 1196. By medical advice"
"Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother."
The foregoing Articles, together with Art. 1195, compose Chapter 9 of Title 15 of the Penal Code. Article 1195, not attacked here, reads:
"Art. 1195. Destroying unborn child"
"Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years."
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, §§ 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).
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 [ 402 U. S. ] Vuitch" (402 U.S. 62); and that the Texas statute "is not vague and indefinite or overbroad." A physician's abortion conviction was affirmed.
In Thompson, n. 2, the court observed that any issue as to the burden of proof under the exemption of Art. 1196 "is not before us." But see Veevers v. State, 172 Tex.Cr.R. 162, 168-169, 354 S.W.2d 161, 166-167 (1962). Cf. United States v. Vuitch, 402 U. S. 62, 402 U. S. 69-71 (1971).
The name is a pseudonym.
These names are pseudonyms.
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.
We need not consider what different result, if any, would follow if Dr. Hallford's intervention were on behalf of a class. His complaint in intervention does not purport to assert a class suit, and makes no reference to any class apart from an allegation that he "and others similarly situated" must necessarily guess at the meaning of Art. 1196. His application for leave to intervene goes somewhat further, for it asserts that plaintiff Roe does not adequately protect the interest of the doctor "and the class of people who are physicians . . . [and] the class of people who are . . . patients. . . ." The leave application, however, is not the complaint. Despite the District Court's statement to the contrary, 314 F.Supp. at 1225, we fail to perceive the essentials of a class suit in the Hallford complaint.
A. Castiglioni, A History of Medicine 84 (2d ed.1947), E. Krumbhaar, translator and editor (hereinafter Castiglioni).
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, 40622 (1961) (hereinafter Quay).
L. Edelstein, The Hippocratic Oath 10 (1943) (hereinafter Edelstein). But see Castiglioni 227.
Edelstein 12; Ricci 113-114, 118-119; Noonan 5.
Edelstein 13-14
Castiglioni 148.
Id. at 154.
Edelstein 3.
Id. at 12, 15-18.
Id. at 18; Lader 76.
Edelstein 63.
Id. at 64.
Dorand's Illustrated Medical Dictionary 1261 (24th ed.1965).
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 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.
Early philosophers believed that the embryo or fetus did not become formed and begin to live until at least 40 days after conception for a male and 80 to 90 days for a female. See, for example, Aristotle, Hist.Anim. 7.3.583b; Gen.Anim. 2.3.736, 2.5.741; Hippocrates, Lib. de Nat.Puer., No. 10. Aristotle's thinking derived from his three-stage theory of life: vegetable, animal, rational. The vegetable stage was reached at conception, the animal at "animation," and the rational soon after live birth. This theory, together with the 40/80 day view, came to be accepted by early Christian thinkers.
The theological debate was reflected in the writings of St. Augustine, who made a distinction between embryo inanimatus, not yet endowed with a soul, and embryo animatus. He may have drawn upon Exodus 21:22. At one point, however, he expressed the view that human powers cannot determine the point during fetal development at which the critical change occurs. See Augustine, De Origine Animae 4.4 (Pub.Law 44.527). See also W. Reany, The Creation of the Human Soul, c. 2 and 83-86 (1932); Huser, The Crime of Abortion in Canon Law 15 (Catholic Univ. of America, Canon Law Studies No. 162, Washington, D.C.1942).
Galen, in three treatises related to embryology, accepted the thinking of Aristotle and his followers. Quay 426-427. Later, Augustine on abortion was incorporated by Gratian into the Decretum, published about 1140. Decretum Magistri Gratiani 2.32.2.7 to 2.32.2.10, in 1 Corpus Juris Canonici 1122, 1123 (A. 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).
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 661 (Book 1, c. 23) (Selden Society ed.1955).
E. Coke, Institutes III *50.
1 W. Blackstone, Commentaries *129-130.
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 410 U. S. 136, states that "no adequate means have been hitherto provided for the prevention and punishment of such offenses."
Commonwealth v. Bangs, 9 Mass. 387, 388 (1812); Commonwealth v. Parker, 50 Mass. (9 Metc.) 263, 265-266 (1845); State v. Cooper, 22 N.J.L. 52, 58 (1849); Abrams v. Foshee, 3 Iowa 274, 278-280 (1856); Smith v. Gaffard, 31 Ala. 45, 51 (1857); Mitchell v. Commonwealth, 78 Ky. 204, 210 (1879); Eggart v. State, 40 Fla. 527, 532, 25 So. 144, 145 (1898); State v. Alcorn, 7 Idaho 599, 606, 64 P. 1014, 1016 (1901); Edwards v. State, 79 Neb. 251, 252, 112 N.W. 611, 612 (1907); Gray v. State, 77 Tex.Cr.R. 221, 224, 178 S.W. 337, 338 (1915); Miller v. Bennett, 190 Va. 162, 169, 56 S.E.2d 217, 221 (1949). Contra, Mills v. Commonwealth, 13 Pa. 631, 633 (1850); State v. Slagle, 83 N.C. 630, 632 (1880).
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).
Conn.Stat., Tit. 20, § 14 (1821).
Conn.Pub. Acts, c. 71, § 1 (1860).
N.Y.Rev.Stat., pt. 4, c. 1, Tit. 2, Art. 1, § 9, p. 661, and Tit. 6, § 21, p. 694 (1829).
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).
The early statutes are discussed in Quay 435-438. See also Lader 85-88; Stern 85-86; and Means II 37376.
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.
Ala.Code, Tit. 14, § 9 (1958); D.C.Code Ann. § 22-201 (1967).
Mass.Gen.Laws Ann., c. 272, § 19 (1970); N.J.Stat.Ann. § 2A: 87-1 (1969); Pa.Stat.Ann., Tit. 18, §§ 4718, 4719 (1963).
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.
"Whereas, Abortion, like any other medical procedure, should not be performed when contrary to the best interests of the patient since good medical practice requires due consideration for the patient's welfare, and not mere acquiescence to the patient's demand; and"
"Whereas, The standards of sound clinical judgment, which, together with informed patient consent, should be determinative according to the merits of each individual case; therefore be it"
"RESOLVED, That abortion is a medical procedure and should be performed only by a duly licensed physician and surgeon in an accredited hospital acting only after consultation with two other physicians chosen because of their professional competency and in conformance with standards of good medical practice and the Medical Practice Act of his State; and be it further"
"RESOLVED, That no physician or other professional personnel shall be compelled to perform any act which violates his good medical judgment. Neither physician, hospital, nor hospital personnel shall be required to perform any act violative of personally held moral principles. In these circumstances, good medical practice requires only that the physician or other professional personnel withdraw from the case so long as the withdrawal is consistent with good medical practice."
Proceedings of the AMA House of Delegates 220 (June 1970).
"The Principles of Medical Ethics of the AMA do not prohibit a physician from performing an abortion that is performed in accordance with good medical practice and under circumstances that do not violate the laws of the community in which he practices."
"In the matter of abortions, as of any other medical procedure, the Judicial Council becomes involved whenever there is alleged violation of the Principles of Medical Ethics as established by the House of Delegates."
"UNIFORM ABORTION ACT"
"SECTION 1. [Abortion Defined; When Authorized.]"
"(a) 'Abortion' means the termination of human pregnancy with an intention other than to produce a live birth or to remove a dead fetus."
"(b) An abortion may be performed in this state only if it is performed: "
"(1) by a physician licensed to practice medicine [or osteopathy] in this state or by a physician practicing medicine [or osteopathy] in the employ of the government of the United States or of this state, [and the abortion is performed] [in the physician's office or in a medical clinic, or] in a hospital approved by the [Department of Health] or operated by the United States, this state, or any department, agency, [or political subdivision of either;] or by a female upon herself upon the advice of the physician; and"
"(2) within [20] weeks after the commencement of the pregnancy [or after [20] weeks only if the physician has reasonable cause to believe (i) there is a substantial risk that continuance of the pregnancy would endanger the life of the mother or would gravely impair the physical or mental health of the mother, (ii) that the child would be born with grave physical or mental defect, or (iii) that the pregnancy resulted from rape or incest, or illicit intercourse with a girl under the age of 16 years]."
"SECTION 2. [Penalty.] Any person who performs or procures an abortion other than authorized by this Act is guilty of a [felony] and, upon conviction thereof, may be sentenced to pay a fine not exceeding [$1,000] or to imprisonment [in the state penitentiary] not exceeding [5 years], or both."
"SECTION 3. [Uniformity of Interpretation.] This Act shall be construed to effectuate its general purpose to make uniform the law with respect to the subject of this Act among those states which enact it."
"SECTION 4. [Short Title.] This Act may be cited as the Uniform Abortion Act."
"SECTION 5. [Severability.] If any provision of this Act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable."
"SECTION 6. [Repeal.] The following acts and parts of acts are repealed: "
"(1)"
"(2)"
"(3)"
"SECTION 7. [Time of Taking Effect.] This Act shall take effect _________."
"This Act is based largely upon the New York abortion act following a review of the more recent laws on abortion in several states and upon recognition of a more liberal trend in laws on this subject. Recognition was given also to the several decisions in state and federal courts which show a further trend toward liberalization of abortion laws, especially during the first trimester of pregnancy."
"Recognizing that a number of problems appeared in New York, a shorter time period for 'unlimited' abortions was advisable. The time period was bracketed to permit the various states to insert a figure more in keeping with the different conditions that might exist among the states. Likewise, the language limiting the place or places in which abortions may be performed was also bracketed to account for different conditions among the states. In addition, limitations on abortions after the initial 'unlimited' period were placed in brackets so that individual states may adopt all or any of these reasons, or place further restrictions upon abortions after the initial period."
"This Act does not contain any provision relating to medical review committees or prohibitions against sanctions imposed upon medical personnel refusing to participate in abortions because of religious or other similar reasons, or the like. Such provisions, while related, do not directly pertain to when, where, or by whom abortions may be performed; however, the Act is not drafted to exclude such a provision by a state wishing to enact the same."
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.
See C. Haagensen & W. Lloyd, A Hundred Years of Medicine 19 (1943).
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.
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.
See, e.g., Abele v. Markle, 342 F.Supp. 800 (Conn.1972), appeal docketed, No. 72-56.
See discussions in Means I and Means II.
See, e.g., State v. Murphy, 27 N.J.L. 112, 114 (1858).
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.
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).
Tr. of Oral Rearg. 20-21.
Tr. of Oral Rearg. 24.
We are not aware that in the taking of any census under this clause, a fetus has ever been counted.
When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment's command?
There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already been pointed out, n 49, supra, that, in Texas, the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different?
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."
Edelstein 16.
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).
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.
Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed.1971); Dorland's Illustrated Medical Dictionary 1689 (24th ed.1965).
Hellman & Pritchard, supra, n 59, at 493.
For discussions of the development of the Roman Catholic position, see D. Callahan, Abortion: Law, Choice, and Morality 409-447 (1970); Noonan 1.
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.
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).
See cases cited in Prosser, supra, n 63, at 336-338; Annotation, Action for Death of Unborn Child, 15 A.L.R.3d 992 (1967).
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).
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).
Neither in this opinion nor in Doe v. Bolton, post, p. 410 U. S. 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 372 U. S. 730. [Footnote 2/1]
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. [Footnote 2/2] So it was clear
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. [Footnote 2/3] 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, 408 U. S. 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, 353 U. S. 238-239; Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 534-535; Meyer v. Nebraska, 262 U. S. 390, 262 U. S. 399-400. Cf. Shapiro v. Thompson, 394 U. S. 618, 394 U. S. 629-630; United States v. Guest, 383 U. S. 745, 383 U. S. 757-758; Carrington v. Rash, 380 U. S. 89, 380 U. S. 96; Aptheker v. Secretary of State, 378 U. S. 500, 378 U. S. 505; Kent v. Dulles, 357 U. S. 116, 357 U. S. 127; Bolling v. Sharpe, 347 U. S. 497, 347 U. S. 499-500; Truax v. Raich, 239 U. S. 33, 239 U. S. 41.
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, 367 U. S. 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, 337 U. S. 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, 388 U. S. 12; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166; Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541. As recently as last Term, in Eisenstadt v. Baird, 405 U. S. 438, 405 U. S. 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
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
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.
Only Mr. Justice Harlan failed to join the Court's opinion, 372 U.S. at 372 U. S. 733.
There is no constitutional right of privacy, as such.
"[The Fourth] Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. But the protection of a person's General right to privacy -- his right to be let alone by other people -- is, like the protection of his property and of his very life, left largely to the law of the individual States."
Katz v. United States, 389 U. S. 347, 389 U. S. 350-351 (footnotes omitted).
This was also clear to Mr. Justice Black, 381 U.S. at 381 U. S. 507 (dissenting opinion); to Mr. Justice Harlan, 381 U.S. at 381 U. S. 499 (opinion concurring in the judgment); and to MR. JUSTICE WHITE, 381 U.S. at 381 U. S. 502 (opinion concurring in the judgment). See also Mr. Justice Harlan's thorough and thoughtful opinion dissenting from dismissal of the appeal in Poe v. Ullman, 367 U. S. 497, 367 U. S. 522
MR. JUSTICE REHNQUIST, dissenting.
The Court's opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with those parts of it that invalidate the Texas statute in question, and therefore dissent.
I
The Court's opinion decides that a State may impose virtually no restriction on the performance of abortions during the first trimester of pregnancy. Our previous decisions indicate that a necessary predicate for such an opinion is a plaintiff who was in her first trimester of pregnancy at some time during the pendency of her lawsuit. While a party may vindicate his own constitutional rights, he may not seek vindication for the rights of others. Moose Lodge v. Irvis, 407 U. S. 163 (1972); Sierra, Club v. Morton, 405 U. S. 727 (1972). The Court's statement of facts in this case makes clear, however, that the record in no way indicates the presence of such a plaintiff. We know only that plaintiff Roe at the time of filing her complaint was a pregnant woman; for aught that appears in this record, she may have been in her last trimester of pregnancy as of the date the complaint was filed.
Nothing in the Court's opinion indicates that Texas might not constitutionally apply its proscription of abortion as written to a woman in that stage of pregnancy. Nonetheless, the Court uses her complaint against the Texas statute as a fulcrum for deciding that States may
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, 113 U. S. 39 (1885). See also Ashwander v. TVA, 297 U. S. 288, 297 U. S. 345 (1936) (Brandeis, J., concurring).
II
Even if there were a plaintiff in this case capable of litigating the issue which the Court decides, I would reach a conclusion opposite to that reached by the Court. I have difficulty in concluding, as the Court does, that the right of "privacy" is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not "private" in the ordinary usage of that word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U. S. 347 (1967).
If the Court means by the term "privacy" no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of "liberty" protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of MR. JUSTICE STEWART in his concurring opinion that the "liberty," against deprivation of which without due process the Fourteenth
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, 348 U. S. 491 (1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra. But the Court's sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court's opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.
The Court eschews the history of the Fourteenth Amendment in its reliance on the "compelling state interest" test. See Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 406 U. S. 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.
While the Court's opinion quotes from the dissent of Mr. Justice Holmes in Lochner v. New York, 198 U. S. 45, 198 U. S. 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, 291 U. S. 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
Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. [Footnote 3/1] While many States have amended or updated
their laws, 21 of the laws on the books in 1868 remain in effect today. [Footnote 3/2] Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857,
and "has remained substantially unchanged to the present time." Ante at 410 U. S. 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.
III
Even if one were to agree that the case that the Court decides were here, and that the enunciation of the substantive constitutional law in the Court's opinion were proper, the actual disposition of the case by the Court is still difficult to justify. The Texas statute is struck down in toto, even though the Court apparently concedes that, at later periods of pregnancy Texas might impose these self-same statutory limitations on abortion. My understanding of past practice is that a statute found
to be invalid as applied to a particular plaintiff, but not unconstitutional as a whole, is not simply "struck down" but is, instead, declared unconstitutional as applied to the fact situation before the Court. Yick Wo v. Hopkins, 118 U. S. 356 (1886); Street v. New York, 394 U. S. 576 (1969).
For all of the foregoing reasons, I respectfully dissent.
Jurisdictions having enacted abortion laws prior to the adoption of the Fourteenth Amendment in 1868:
1. Alabama -- Ala. Acts, c. 6, § 2 (1840).
2. Arizona -- Howell Code, c. 10, § 45 (1865).
3. Arkansas -- Ark.Rev.Stat., c. 44, div. III, Art. II, § 6 (1838).
4. California -- Cal.Sess.Laws, c. 99, § 45, p. 233 (1849-1850).
5. Colorado (Terr.) -- Colo. Gen.Laws of Terr. of Colo. 1st Sess., § 42, pp 296-297 (1861).
6. Connecticut -- Conn.Stat., Tit. 20, §§ 14, 16 (1821). By 1868, this statute had been replaced by another abortion law. Conn.Pub. Acts, c. 71, §§ 1, 2, p. 65 (1860).
7. Florida -- Fla.Acts 1st Sess., c. 1637, subc. 3, §§ 10, 11, subc. 8, §§ 9, 10, 11 (1868), as amended, now Fla.Stat.Ann. §§ 782.09, 782.10, 797.01, 797.02, 782.16 (1965).
8. Georgia Pen.Code, 4th Div., § 20 (1833).
9. Kingdom of Hawaii -- Hawaii Pen.Code, c. 12, §§ 1, 2, 3 (1850).
10. Idaho (Terr.) -- Idaho (Terr.) Laws, Crimes and Punishments §§ 33, 34, 42, pp. 441, 443 (1863).
11. Illinois -- Ill.Rev. Criminal Code §§ 40, 41, 46, pp. 130, 131 (1827). By 1868, this statute had been replaced by a subsequent enactment. Ill.Pub.Laws §§ 1, 2, 3, p. 89 (1867).
12. Indiana -- Ind.Rev.Stat. §§ 1, 3, p. 224 (1838). By 1868, this statute had been superseded by a subsequent enactment. Ind.Laws, c. LXXXI, § 2 (1859).
13. Iowa (Terr.) -- Iowa (Terr.) Stat., 1st Legis., 1st Sess., § 18, p. 145 (1838). By 1868, this statute had been superseded by a subsequent enactment. Iowa (Terr.) Rev.Stat., c. 49, §§ 10, 13 (1843).
14. Kansas (Terr.) -- Kan. (Terr.) Stat., c. 48, §§ 9, 10, 39 (1855). By 1868, this statute had been superseded by a subsequent enactment. Kan. (Terr.) Laws, c. 28, §§ 9, 10, 37 (1859).
15. Louisiana -- La.Rev.Stat., Crimes and Offenses § 24, p. 138 (1856).
16. Maine -- Me.Rev.Stat., c. 160, §§ 11, 12, 13, 14 (1840).
17. Maryland -- Md.Laws, c. 179, § 2, p. 315 (1868).
18. Massachusetts -- Mass. Acts & Resolves, c. 27 (1845).
19. Michigan -- Mich.Rev.Stat., c. 153, §§ 32, 33, 34, p. 662 (1846).
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, pp. 285-286 (1845); N.Y.Laws, c. 22, § 1, p. 19 (1846).
28. Ohio -- Ohio Gen.Stat. §§ 111(1), 112(2), p. 252 (1841).
29. Oregon -- Ore. Gen.Laws, Crim.Code, c. 43, § 509, p. 528 (1845-1864).
30. Pennsylvania -- Pa.Laws No. 374, §§ 87, 88, 89 (1860).
31. Texas -- Tex. Gen.Stat. Dig., c. VII, Arts. 531-536, p. 524 (Oldham & White 1859).
32. Vermont -- Vt. Acts No. 33, § 1 (1846). By 1868, this statute had been amended. Vt.Acts No. 57, §§ 1, 3 (1867).
33. Virginia -- Va.Acts, Tit. II, c. 3, § 9, p. 96 (1848).
34. Washington (Terr.) -- Wash. (Terr.) Stats., c. II, §§ 37, 38, p. 81 (1854).
35. West Virginia -- See Va. Acts., Tit. II, c. 3, § 9, p. 96 (1848); W.Va.Const., Art. XI, par. 8 (1863).
36. Wisconsin -- Wis.Rev.Stat., c. 133, §§ 10, 11 (1849). By 1868, this statute had been superseded. Wis.Rev.Stat., c. 164, §§ 10, 11; c. 169, §§ 58, 59 (1858).
Abortion laws in effect in 1868 and still applicable as of August, 1970:
1. Arizona (1865).
2. Connecticut (1860).
3. Florida (1868).
4. Idaho (1863).
5. Indiana (1838).
6. Iowa (1843)
7. Maine (1840).
8. Massachusetts (1845).
9. Michigan (1846).
10. Minnesota (1851).
11. Missouri (1835).
12. Montana (1864).
13. Nevada (1861).
14. New Hampshire (1848).
15. New Jersey (1849).
16. Ohio (1841).
17. Pennsylvania (1860).
18. Texas (1859).
19. Vermont (1867).
20. West Virginia (1863).
21. Wisconsin (1858).
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Floyd's humor misfires: Beware use of humor
Transcript:Argument of Sarah Weddington
Chief Justice Warren E. Burger: We will hear arguments in number 18 Roe against Wade.
Mrs. Weddington you may proceed whenever you are ready.
Ms Weddington: Mr. Chief Justice and may it please the court.
The instant case is a direct appeal from a decision of the United State District Court for the Northern District of Texas.
The court declared the Texas abortion law to the unconstitutional for two reasons: First, that the law was impermissibly vague, and, second, that it violated a woman’s right to continue or terminate a pregnancy.
Although the court granted declaratory relief, the court denied appellant’s request for injunctive relief.
The Texas law in question permits abortions to be performed only in instances where it is for the purpose of saving the life of the woman.
The case originated with the filing of two separate complaints, the first being filed on behalf of Jane Roe, an unmarried pregnant girl and the second being filed on behalf of Jane and Mary Doe, a married couple.
Jane Roe, the pregnant woman, had gone to several Dallas physicians seeking an abortion, but had been refused care because of the Texas law.
She filed suit on behalf of herself and all those women who have in the past at that present time or in the future would seek termination of a pregnancy.
In her affidavit she did state some of the reasons that she desired an abortion at the time she sought one.
But, contrary to the contentions of appellee, she continued to desire the abortion.
And it was not only at the time she sought the abortion that her desire was to terminate the pregnancy.
Chief Justice Warren E. Burger: When this case was in the District Court, the case of Vuitch against The United States had not been decided here?
Ms Weddington: That is correct.
Chief Justice Warren E. Burger: Now, do you think that has disposed off some of the questions raised now?
Ms Weddington: Your Honor, I do not.
In the Vuitch decision this Court was working with a statute which provided that an abortion could be performed for reasons of health or life.
Our Texas statute provides an abortion only where it is for the purpose of saving the life of the woman.
Since the Vuitch decision was rendered, the Texas Court of Criminal Appeals -which is our highest court of criminal jurisdiction has held that the Texas law is not vague, citing the Vuitch decision, but saying that the Texas law is more definite than the D.C. law.
So, obviously the Court of Criminal Appeals doesn't feel that the two are the same.
And in the Vuitch decision, the Justices of this Court emphasized continuously that a doctor, as a matter of routine, works with the problem of what is best for the health of his patients.
We submit that a doctor is not used to being restricted to acting only when it's for the purpose of saving the life of the woman, and that health is a continuum which runs into life.
And a doctor in our State does not know whether he can perform an abortion only when death is imminent or when the woman's life would be shortened.
He does not know if the death must be certain, or if it could be an increase in probability of her death.
So here, in the District, doctors are able to exercise their normal matter of judgment, whether or not the health of the woman, mental or physical will be affected.
But, in Texas, we tell the doctor that unless he can decide whether it's necessary for the purpose of saving her life, and for no other reason, that he is subject to criminal sanctions.
I think it's important to note the range of problems that could be presented to a doctor.
The court, for example, cited the instance of suicide, if a woman comes in alleging that she will commit suicide.
Is it then necessary for him to do or can he do an abortion for the purpose of saving her life?
Or, is that a situation where he has to have something more?
I think all of those questions cannot be answered, at this point.
This brings up the married couple in our case.
The woman in that case had a neurochemical condition.
Her doctor had advised her not to get pregnant, and not to take the birth control pills.
She was using alternative means of birth control, but she and her husband were fearful that she would become pregnant and that, although the neurochemical condition would impair her health, evidently her doctor did not feel that she would die if she continued the pregnancy.
And certainly they were very concerned about the effect of the statute, and her physician seemed uncertain about its implications.
The doctors in our State continue to feel that our law is vague.
Certainly, we introduced affidavits in the lower court to that effect.
Since the time of the lower court ruling, the District Attorney in Texas has said that he considers the Federal court decision there not to be binding.
And we do have a letter from him and the first thing in our Appendix to the brief, stating that he will continue to prosecute.
So the doctors in Texas, even with the Federal decision and even after the Vuitch decision, do not feel free to perform abortions.
And, instead, 728 women in the first nine months after the decision went to New York for an abortion.
Texas women are coming here.
It's so often the poor and the disadvantaged in Texas who are not able to escape the effect of the law.
Certainly, there are many Texas women who are affected because our doctors still feel uncertain about the impact of the law, even in light of the Vuitch decision.
Justice Potter Stewart: Well then, of course Mrs. Weddington, you make many additional constitutional attacks upon the Texas statute, and only one was before us in the Vuitch decision...
Ms Weddington: Yes.
Your Honor.
We do.
Justice Potter Stewart: It is only the claim of unconstitutional vagueness, that the Court explicitly didn't reach any of the other claims, and you make many other claims.
Of course, before you get to any of those, there are a good many threshold questions, are there not, of jurisdiction?
Ms Weddington: Yes, Your Honor, there are.
I think it is important to point out to the Court that in my reading of Younger versus Harris, the companion cases, all the Court was concerned about in those cases was a situation where there was an attempt to interfere with a pending state criminal prosecution.
In this case, as I pointed out, the original parties to this matter are women, and in one case, the husband.
The women certainly are not subject to prosecution in the State of Texas.
It is impossible for them to stand in the criminal dock and litigate their interests.
They came seeking injunctive relief. But it was not against pending State criminal prosecution.
They were not even aware of the prosecution against Dr. Hallford.
Justice Potter Stewart: Could they, under Texas law, be charged as accomplices or as co-conspirators, or anything like that?
Ms Weddington: No, we have expressed Texas cases.
In one situation, Woodrow v. State, an 1880 case, the woman had taken a potion to induce abortion, and the Texas court specifically said that the woman is guilty of no crime, even in that situation.
And, that in fact she is the victim of our law.
There is no declaratory relief available for these plaintiffs.
Their only forum was the Federal courts, and it was to those courts that they turned
Justice Potter Stewart: You have three plaintiffs here representing a class, as I gather?
Ms Weddington: Yes sir.
Justice Potter Stewart: One, an unmarried pregnant woman; two, a married couple, and it was shown that it would be injurious to the wife's health to have a child and also injurious to her health to use the most efficient form of birth control; and, then third, is a physician who is under indictment, or was, at the time of this complaint.
Ms Weddington: The physician intervened after the order was entered granting Jane Roe a three-judge court.
And he intervened, again, asking only that future prosecution under the law be enjoined.
He did not ask any relief of the court relating to his pending State criminal prosecution.
He did specifically, in his complaint, reserve the right to ask for future relief.
But, that was never done.
And certainly, in the future, he were to ask for relief, the court would have the guidance of the Younger versus Harris companion cases.
But there was in no way any request for any action to interfere with the pending criminal prosecutions then in process.
There is an allegation that the question is moot since the woman has now has carried the pregnancy to term.
And I think it is important to realize that there are several important aspects in which this case differs from the case that the Courts might usually be presented.
First, the case is different in the nature of the interest which is involved, and in the extent to which personal determination is undermined by this statute - the effect that it has on women.
Second, it is unique in the type of injury that's presented.
Certainly there are some injuries that can be compensated, and most last over a sufficient period of time for the courts to litigate the interest.
But in this case, a progressing pregnancy does not suspend itself in order to give the courts time to act.
Certainly Jane Roe brought her suit as soon as she knew she was pregnant.
As soon as she had sought an abortion, and then denied, she came to Federal court.
She came on behalf of a class of women.
And I don't think there's any question but that women in Texas continued to desire abortions, and to seek them out outside our State.
There was an absence of any other remedy, and without the ability to litigate her claim as a pregnant woman who came seeking relief and who was affected by the time required by the Federal process; not because of any infirmity in her own attempt to litigate her interests that this will, in fact, be a case certainly presenting substantial Federal question, and yet awaiting review in the future.
I think the third way in which it is unique is, as I have stated the fact that it is the only forum available to these women.
They have no other way to litigate their interests
Justice Harry A. Blackmun: Does that mean that there is no possibility of getting a declaratory judgment under Texas law?
Ms Weddington: Yes, Your Honor.
Declaratory judgments in the State of Texas are limited to a situation where property rights are involved.
And we also have a very unusual situation in Texas, where we have two concurrent jurisdictions, one the civil and one the criminal.
And even -- there are some cases which indicate that our State Supreme Court would not have the ability to mandamus any of the criminal prosecution officers because the Texas Court of Criminal Appeals has jurisdiction as to all criminal matters in the State of Texas.
So, even if the woman had been able to bring a declaratory judgment -- which she couldn't -- she couldn't have gotten any sort of relief against future prosecutions.
And it was exactly the absence of the court granting an injunction against future prosecutions which had resulted in the irreparable injuries these women have suffered.
In Texas, the woman is the victim.
The State cannot deny the effect that this law has on the women of Texas.
Certainly there are problems regarding even the use of contraception.
Abortion now, for a woman, is safer than childbirth.
In the absence of abortions, or legal medically safe abortions-women often result to the illegal abortions, which certainly carry risks of death, all the side effects such as severe infections, permanent sterility, all the complications that result.
And, in fact, if the woman is unable to get either a legal abortion or an illegal abortion in our State, she can do a self-abortion, which is certainly, perhaps, by far the most dangerous.
And that is no crime. She is in our State
Chief Justice Warren E. Burger: The microphone won't be effective if you --
Ms Weddington: Excuse me, Your Honor.
Thank you.
Texas, for example, it appears to us, would not allow any relief at all, even in situations where the mother would suffer perhaps serious physical or mental harm.
There is certainly a great question about it.
If the pregnancy would result in the birth of a deformed or defective child, she has no relief.
Regardless of the circumstances of conception, whether it was because of rape, incest, whether she is extremely immature, she has no relief.
I think it's without question that pregnancy to a woman can completely disrupt her life.
Whether she's unmarried; whether she's pursuing an education; whether she's pursuing a career; whether she has family problems; all of the problems of personal and family life, for a woman, are bound up in the problem of abortion.
For example, in our State there are many schools where a woman is forced to quit if she becomes pregnant.
In the City of Austin that is true.
A woman, if she becomes pregnant, and is in high school, must drop out of regular education process.
And that's true of some colleges in our State.
In the matter of employment, she often is forced to quit at an early point in her pregnancy.
She has no provision for maternity leave.
She cannot get unemployment compensation under our laws, because the laws hold that she is not eligible for employment, being pregnant, and therefore is eligible for no unemployment compensation.
At the same time, she can get no welfare to help her at a time but she has no unemployment compensation and she's not eligible for any help in getting a job to provide for herself.
There is no duty for employers to rehire women if they must drop out to carry a pregnancy to term.
And, of course, this is especially hard on the many women in Texas who are heads of their own households and must provide for their already existing children.
And, obviously, the responsibility of raising a child is a most serious one, and at times an emotional investment that must be made, cannot be denied.
So, a pregnancy to a woman is perhaps one of the most determinative aspects of her life.
It disrupts her body.
It disrupts her education.
It disrupts her employment.
And it often disrupts her entire family life.
And we feel that, because of the impact on the woman, this certainly and as far as there are any rights which are fundamental is a matter which is of such fundamental and basic concern to the woman involved that she should be allowed to make the choice as to whether to continue or to terminate her pregnancy.
I think the question is equally serious for the physicians of our State.
They are seeking to practice medicine in what they consider the highest method of practice.
We have affidavits in the back of our brief from each of the heads of public of heads of Obstetrics and Gynecology departments from each of our public medical schools in Texas.
And each of them points out that they were willing and interested to immediately begin to formulate methods of providing care and services for women who are pregnant and do not desire to continue the pregnancy.
They were stopped cold in their efforts, even with the declaratory judgment, because of the DA's position that they would continue to prosecute.
Justice Potter Stewart: Mrs. Weddington, so far on the merits, you've told us about the important impact of this law, and you made a very eloquent policy argument against it.
And I trust you are going to get to what provisions of the Constitution you rely on.
Sometimes in the Court -- we would like to, sometimes but we cannot here be involved simply with matters of policy, as you know
Ms Weddington: Your Honors, in the lower court, as I'm sure you're aware, the court held that the right to determine whether or not to continue a pregnancy rested upon the Ninth Amendment which, of course, reserves those rights not specifically enumerated to the Government, to the people.
I think it is important to note, in a law review article recently submitted to the Court and distributed among counsel by Professor Cyril Means, Jr., entitled "The Phoenix of Abortional Freedom," that at the time the Constitution was adopted there was no common law prohibition against abortions; that they were available to the women of this country.
Certainly, under the Griswold decision, it appears that the members of the Court in that case were obviously divided as to the specific constitutional framework of the right which they held to exist in the Griswold decision.
I'm a little reluctant to aspire to a wisdom that the Court was not in agreement on.
I do feel that the Ninth Amendment is an appropriate place for the freedom to rest.
I think the Fourteenth Amendment is equally an appropriate place, under the rights of persons to life, liberty, and the pursuit of happiness.
I think that in as far as "liberty" is meaningful, that liberty to these women would mean liberty from being forced to continue the unwanted pregnancy.
Justice Potter Stewart: You're relying, in this branch of the argument simply on the Due Process clause of the Fourteenth Amendment?
Ms Weddington: We had originally brought this suit alleging both the Due Process clause, Equal Protection clause, the Ninth Amendment, and a variety of others.
Justice Potter Stewart: And anything else that might be applicable?
Ms Weddington: Yes, right.
Since that District Court found the right to reside in the Ninth Amendment, we pointed our attention in the brief to that particular aspect of the Constitution.
But I think we would not presume -- I do feel that in-so-much as members of the Court can say that the Ninth Amendment applies to rights reserved to the people, and those which were most important-and certainly this is that the Ninth Amendment is appropriate place insofar as the Court has said that life, liberty, in a pursuit of happiness involved the most fundamental things of people; that this matter is one of those most fundamental matters.
I think, in as far as the Court has said that there is a penumbra that exists to encompass the entire purpose of the Constitution, that I think one of the purposes of the Constitution was to guarantee to the individual the right to determine the course of their own lives.
Insofar as there was, perhaps, no compelling state interest and we allege there is none in this case that, there again, that the right fits within the framework of the previous decisions of this Court.
Justice Potter Stewart: What is the asserted State interest?
Is there any legislative history about this statute?
Ms Weddington: No, sir, Your Honor.
No, sir, there is not.
The only legislative history, of course, is that which is found in other states which has been pointed out to the Court before - and, as Professor Means points out again, that these statutes were adopted for the health of the mother.
Certainly, the Texas courts have referred to the woman as being the victim, and they have never referred to anyone else as being the victim.
Concepts have certainly changed.
I think it's important to realize that in Texas self-abortion is no crime.
The woman is guilty of no crime, even though she seeks out the doctor; even though she consents; even though she participates; even though she pays for the procedure.
She, again, is guilty of no crime whatsoever.
It's also interesting that in our statutes -- the penalty for the offense of abortion depends on whether or not the consent of the woman was obtained prior to the procedure.
It's double if you don't get her consent.
There is no indication in Fondgren v. State, for example, the court ruled that a woman who commits an abortion on herself is guilty of no crime.
Again, "she" being regarded as the victim, rather than the perpetrator of the crime.
Obviously, in our State, the offense is not murder.
It is an abortion, which carries a significantly lesser offense.
There is no requirement of -- even though the State, in its brief, points out the development of the fetus that in an eight-week period, the same State, does not require any death certificate, or any formalities of birth.
The product of such a conception would be handled merely as a pathological specimen.
Justice Byron R. White: And the statute doesn't make any distinctions based upon what period of pregnancy the abortion is performed?
Ms Weddington: No, Your Honor.
There is no time limit or indication of time, whatsoever.
So I think.
Justice Byron R. White: Well, do you make any distinctions?
Ms Weddington: No, sir.
I do.
I feel that the question of a time limit is not strictly before the Court, because of the nature of the situation in which the case is handled.
Certainly I think, as a practical matter though, most of the states that do have some time limit indicated still permit abortions beyond the time limit for specified reasons, usually where the health of the mother is involved.
Justice Byron R. White: What's your constitutional position here?
Ms Weddington: As to a time limit.
Justice Byron R. White: What about whatever clause of the Constitution you rest on-Ninth Amendment, Due Process, the general pattern penumbra - will that take you right up to the time of birth?
Ms Weddington: It is our position that the freedom involved is that of a woman to determine whether or not to continue a pregnancy.
Obviously I have a much more difficult time saying that the State has no interest in late pregnancy.
Justice Byron R. White: Why?
Why is that?
Ms Weddington: I think it is more the emotional response to a late pregnancy rather than it is any constitutional.
Justice Byron R. White: Emotional response by whom?
Ms Weddington: I guess by persons considering the issue outside the legal context.
I think, as far as the State.
Justice Byron R. White: Well, do you or don't you say that the constitutional
Ms Weddington: I would say the constitutional.
Justice Byron R. White: Right, you insist on reaches up to the time of birth?
Ms Weddington: The Constitution, as I read it, and as interpreted and as documented by Professor Means, attaches protection to the person at the time of birth.
Those persons born are citizens.
The Enumeration clause, we count those people who are born.
The Constitution, as I see it, gives protection to people after birth.
Justice William J. Brennan: Mrs. Weddington, the issue here, I guess, on your appeal, is whether you're entitled to injunctive relief?
Ms Weddington: Yes, Your Honor.
Justice William J. Brennan: Assuming that in all other respects your argument were accepted, why do you think, in addition to declaratory relief, you're entitled to injunctive relief?
Those are different things, aren't they?
Ms Weddington: Yes, sir.
Certainly, in your dissent, you pointed out in Perez v. Ledesma, not a concurring opinion.
Justice William J. Brennan: It was a dissent?
Ms Weddington: It was a dissent.
That there are different standards that apply to the declaratory judgment, and to injunctive relief.
Justice William J. Brennan: So I guess we said that in Zwickler v. Koota, didn't we?
Ms Weddington: Yes, that is correct.
And that's what the Court said, following Zwickler v. Koota, that even though they were granting declaratory relief, different considerations applied as to injunctive relief.
But it seems that the opinions of this Court have established that where there is great and immediate threat of irreparable injury, with no adequate remedy in state court, that an injunction is still proper.
And it is our position that there is great and immediate threat of irreparable injury in the form of a continuing pregnancy that will not abate, and that continues.
Justice Byron R. White: So, you're asserting that the pregnant woman has standing in this case, and the married couple where the wife is not pregnant has standing
Ms Weddington: Yes, Your Honor.
Justice Byron R. White: But what about the doctor where a criminal prosecution is already pending against him?
Ms Weddington: The doctor, as I said, was asking no relief as to the pending prosecution.
He was only asking relief as to future prosecutions.
Justice Byron R. White: But he was asking for a declaratory judgment?
Ms Weddington: Yes, Your Honor.
He joined in both the request for the declaratory judgment.
Justice Byron R. White: Well, didn't Younger and its companion cases cover declaratory judgments?
Ms Weddington: Where there were pending --.
Samuels v. Mackell, as I read it, did say that where you have a request for a declaratory judgment there would be an effect on a pending criminal prosecution.
Justice Byron R. White: There was one pending.
Ms Weddington: There was one pending when this action was brought, those against Dr. Hallford.
However, in this case we submit that if there is to be any meaning to the Federal courts as the supreme arbiters of constitutional rights, that they must be able to act, at least in some form, when there are pending criminal prosecutions -- not particularly against the person involved in the prosecution, but others.
Justice William J. Brennan: But other cases say, at least, that Federal courts may in limited situation, the harassment in prosecution improperly is used as a device to harass the person prosecuted.
Now, isn't that it?
Ms Weddington: Yes, Your Honor.
But again as I understood it—
Justice William J. Brennan: Are you suggesting it ought to be broader than that?
Ms Weddington: I'm suggesting that in this case the women in particular brought a declaratory action having nothing to do with the pending State criminal prosecution.
Justice William J. Brennan: I thought we were talking now about—
Ms Weddington: And that the intervention of the doctor certainly should not be sufficient.
Justice William J. Brennan: We are talking about the doctor’s case right?
Ms Weddington: Right.
That because the doctor intervened when he was asking no relief as to the pending State criminal prosecution, that his intervention --
Justice William J. Brennan: You mean he was asking... he was asking what?
No injunction against the continuance of that prosecution?
Ms Weddington: That's correct.
He is willing to litigate his interest.
Unknown Speaker: But he did want a declaratory judgment..
Ms Weddington: As to future prosecution.
Justice William J. Brennan: Well, except that he wanted a declaratory judgment, as I understand it, that the underlying statute on which the prosecution was brought is unconstitutional.
Isn't that it?
Ms Weddington: Yes.
Justice William J. Brennan: Well, I thought that's what Samuels and Mackles said he couldn't have?
Ms Weddington: And which your dissent said was incorrect.
Justice William J. Brennan: I repeat.
Ms Weddington: It was a dissent, okay.
I think perhaps we would stress that there are two separate actions before the Court first, that of the women; and, second, that of the doctor.
Justice William J. Brennan: So that even though the—
Ms Weddington: Even though the Court might find that the doctor was an inappropriate party for relief, it certainly would not effect the original action as brought by the women.
Justice William J. Brennan: Alright, then I come back again.
If we're left only with the lady's action, are you suggesting that the declaratory relief they already obtained was not enough, because that doesn't help terminate the pregnancy?
Ms Weddington: Because they are still subject to the irreparable injury, and have no adequate State remedy.
And, if they are not able to continue to litigate their interest in this situation, any time there was any prosecution pending against anyone in the State, at any point in the appeal-for example, the Thompson case was filed in 1968.
It's been decided now in our State courts.
It's on appeal, or it will be appealed here, I think.
And, certainly if they cannot litigate their interests while there is a prosecution pending against the doctor, they will -- in many instances where a statute—
Justice William J. Brennan: Well, I suppose the answer is that if there's a prosecution against the doctor, there's not going to be any doctor that's going to be available.
Is that it?
Ms Weddington: Yes.
They cannot even decide to take the risk for themselves under the declaratory judgment.
They must rely on another person to take that risk.
But, certainly, the doctor raised not only his own rights, but the rights of his patients.
And those same patients are suffering the same sort of irreparable injury that the original plaintiffs were suffering.
Justice Thurgood Marshall: Couldn't the doctor raise the same point in the criminal prosecution?
Ms Weddington: Yes, Your Honor, he can.
But I don't feel it's appropriate to make those women who are most vitally affected certainly more so than the doctor, who can merely decide not to perform an abortion, and thereby escape --
Justice Thurgood Marshall: I want to talk about the doctor.
You said there were two separate issues here.
And the issue involving the doctor, he could litigate everything he's now litigating in the State court?
Ms Weddington: Yes, Your Honor.
My point being that these women should not be compelled to leave it up to a doctor to litigate those interests.
Justice Potter Stewart: Well, he's going to defend himself in a criminal prosecution, isn't he?
You can count on him to do that.
Ms Weddington: Well, I think there are different interests involved.
And in most criminal prosecutions the doctors would bring up other problems, such as --
Justice Potter Stewart: "I didn't do it."
Or something like that?
Ms Weddington: Yes.
Or the witnesses disappeared, or it really was for this reason, in this particular case.
Justice Potter Stewart: But has this defense ever been interposed in a Texas criminal case in a constitutional defense?
Ms Weddington: Yes, Your Honor.
There is one recent opinion, Thompson v. The State of Texas, which the Attorney General attempted to bring to the attention of the Court, and it was not printed, and the Court rejected it.
But it was a decision about a month-and-a-half ago which originated in Houston.
A doctor there was indicted on a charge of abortion.
At trial he used only an alibi defense.
But on his appeal he did raise the same constitutional questions that we raised in the Federal courts.
Justice Potter Stewart: The court said that was too late?
Ms Weddington: No, Your Honor, they could have, but they didn't.
They went ahead and litigated those issues, and our Texas Court of Criminal Appeals-which is our highest court-has now held that the statute is not vague, citing Vuitch, which, again, I would contend is an incorrect reliance.
Justice Potter Stewart: That's the case you cited to the Chief Justice earlier in your argument?
Ms Weddington: And, second, they did not determine whether or not there was a right to privacy; but did hold there was a compelling interest.
So, in that particular situation, which is the only situation, a doctor did attempt to litigate the same issues—
Justice Potter Stewart: And the Texas Court of Criminal Appeals has basically upheld the constitutional validity.
Ms Weddington: They have held, really, directly in opposition to the Federal Court opinion from which we are appealing.
Justice Potter Stewart: Is that case coming to this Court?
Ms Weddington: They have filed a motion for rehearing in the State Court of Criminal Appeals, which will be argued tomorrow.
I think it's very unlikely that the court would change its opinion, and it is the intention of those parties to appeal.
Justice Potter Stewart: Does the Texas law in other areas of the law give rights to unborn children in the areas of trusts, estates and wills, or any of the other.
Ms Weddington: No, Your Honor, only if they are born alive.
The Supreme Court of Texas recently has held in one case that there is an action for prenatal injuries at any stage prior to birth, but only upon the condition that it be born alive.
The same is true of our property law.
The child must be born alive.
And I think there is a distinction between those children which are ultimately born; and I think it is appropriate to give them retroactive rights.
But I think that's a completely different question from whether or not they had rights at the time they were still in the womb
Justice Byron R. White: What about the unborn child who as a result of an accident, killed or whatever word you want to use for it?
Ms Weddington: There had been no situation litigated like that in Texas.
I suppose you noted that the --
Justice Byron R. White: Well, what about around the country?
Ms Weddington: The Iowa Supreme Court about two weeks ago held that where it was stillborn there was no cause of action whatsoever --
Justice Byron R. White: For either the mother.
Ms Weddington: Oh, I am speaking-excuse me, solely for the fetus; that the fetus had no independent right; that the mother --
Justice Byron R. White: What about the mother recovering on the death of the child, or for the whatever you want to call it?
Ms Weddington: Only for her injury.
Justice Byron R. White: Only for hers?
Ms Weddington: Yes.
Justice Byron R. White: Does that include anything with regard to the child.
Ms Weddington: No, Your Honor.
Thank you.
Argument of Jay Floyd
Chief Justice Warren E. Burger: Thank you Mrs. Weddington.
Mr. Floyd?
Mr. Floyd: Mr. Chief Justice, may it please the Court.
It's an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.
Before I proceed to the original issue in this case-which was the propriety of the trial court grant, or denying of injunctive relief - I would like to bring to the Court's attention some grave matters concerning what has been referred to as the standing of the parties.
The couple involved: they were a married couple, childless married couple.
The only matter, evidence, or whatever, in the record concerning their contentions is contained in their first amended original petition.
That is, that the woman would have difficulty if she became pregnant in carrying a child to childbirth.
Further, that they were unprepared for parenthood.
We submit to the Court that their cause of action is strictly based upon conjecture.
Will they continue the marriage?
Will her health improve?
Will they then be, at some time in the future, prepared or unprepared for parenthood?
There is no fear of prosecution by Mary Doe.
If we accept all contentions of this married couple, we submit that they still do not come under the prescribed conditions of Flast v. Cohen and Golden v. Zwickler.
We feel that the lower court properly denied them standing.
As to the unmarried pregnant female, a unique situation arises in.
Is her action now moot?
Of course if moot, there is no case or controversy.
Justice Potter Stewart: Class action wasn’t it?
Mr. Floyd: It was a class action.
Justice Potter Stewart: Surely it would -- and I suppose, we can almost take judicial notice of the fact that they are at any given time, unmarried pregnant females in the State of Texas.
Mr. Floyd: Yes, Your Honor.
I would say that the only thing that would uphold her standing would be - or eliminate the mootness issue - would be whether or not this is a class action on her part.
Yes, Your Honor.
The record that came up to this Court contains the amended petition of Jane Roe, an unsigned alias affidavit, and that is all.
She alleges that she was pregnant on April the 20th, 1970, which is some 21 months ago.
Now I think that it is - it has been recognized by the appellant's counsel that she is no longer pregnant.
This Court has consistently held that the time of determination of mootness is when the hearing is before the Court.
That is, the case can become moot from the hearing in the trial court until the time it reaches this Court.
We do not feel appellant's authority contained in her brief will substantiate her contention that the case is not moot.
I might add this that I believe the law to be that if there is a reasonable possibility of re-occurrence of the situation, then the case would not be moot.
Now, this is the W.T. Grant case.
The other case, or cases, concerned orders of the Interstate Commerce Commission, in which the Court holds that there is a possibility or a reasonable possibility of continuation of those orders, and the capability of repetition.
It deals mainly with the capability of repetition.
We think the case of Jane Roe can be easily compared to Hall v. Beals.
In that particular case a group of voters instituted a class action complaining of a Colorado statute which prescribed a residency requirement of six months.
They had, at the time, lived in the State, or at the time of the election lived in the State, some four or five months.
The case came up through the lower courts to this Court.
And, in the meantime Colorado repealed the statute and established a two-months residency requirement.
The election was held in the meantime.
The trial court plaintiffs complained of the two-months residency requirement.
This Court held the cause of action moot even though it was denominated as a class action
Justice Byron R. White: There's a big difference.
Colorado had amended its statute, and Texas had not.
Mr. Floyd: That is correct, Your Honor.
But the fact was that you still had-if it is what you want to call it - the evil still existing.
Justice Byron R. White: But, two months.
But it was the other statute that had been the subject of the litigation.
And that statute had been amended in Hall against Beals.
That is not true here.
Mr. Floyd: That is not what we call white horse.
Justice Byron R. White: I understand.
Mr. Floyd: In connection with the class action aspect of this, and I say I have no authority to support this proposition; but it would appear that in order for a class action to continue, if there be one to begin with, is that one plaintiff must remain, or else an intervenor, or someone, to be a representative of the class.
Because this is the whole purpose of the class action, to have a representative in court.
Now, the position of the appellant Hallford.
Justice Byron R. White: How do you suggest, if you're right, what procedure would you suggest for any pregnant female in the State of Texas ever to get any judicial consideration of this constitutional claim?
Mr. Floyd: Your Honor, let me answer your question with a statement, if I may.
I do not believe it can be done.
There are situations in which, of course as the Court knows, no remedy is provided.
Now I think she makes her choice prior to the time she becomes pregnant.
That is the time of the choice.
It's like, more or less, the first three or four years of our life we don't remember anything.
But, once a child is born, a woman no longer has a choice, and I think pregnancy may terminate that choice.
That's when
Justice Byron R. White: Maybe she makes her choice when she decides to live in Texas.
Mr. Floyd: May I proceed?
There is no restriction on moving.
Your Honor, the appellant Hallford is under two indictments, charged with the offense of performing an abortion.
There are no allegations in the complaint of appellant Hallford - or none in his affidavit that there is any bad faith prosecution, bad faith arrest, harassment of him at all, to bring him within Dombrowski's special circumstances.
We think the cases of Younger v. Harris and Samuels v. Mackell are controlling as to Dr. Hallford's position.
We also feel that Dr. Hallford cannot rely upon his patients' right to bring him into Federal court.
And I think the Tilston v. Ullman case will be authority for that proposition.
As to the matter of injunctive relief after the court once grants declaratory relief, I will make this comment, that it appears the Court can consider the propriety of declaratory relief, and can consider the propriety of injunctive relief.
That is, the Court can divorce the two.
And, once granting declaratory relief that a statute is unconstitutional, in its discretion can determine whether or not injunctive relief is proper, and deny it if it so pleases.
Now, should this Court, as I understand it, and all the parties feel that if this Court once acquired jurisdiction over the matter, that these parties would like the Court to consider all the constitutional issues --
Justice Byron R. White: Are you sustaining or are you saying that the denial of injunction was proper, because the declaratory judgment was in error?
Mr. Floyd: No, Your Honor.
I say the Court can grant declaratory relief on constitutionality, and deny injunctive relief.
Justice Byron R. White: I know.
But certainly, if the judgment about the - if the declaratory judgment was erroneous, it was also right to deny injunction.
Mr. Floyd: Yes, Your Honor.
Justice Byron R. White: And that is your position?
Mr. Floyd: That's correct.
I think if the Court, of course, says.--
Justice Byron R. White: You didn't cross-appeal?
You could have.
Mr. Floyd: We could not, to this Court, Your Honor.
We have to go to the Fifth Circuit.
So, we have --
Justice Byron R. White: But are you attempting to sustain the denial of injunction here on the grounds that the declaratory judgment was improper?
Mr. Floyd: We are asking the Court, requesting the Court, to do this, that if the Court gets into the merits of injunctive relief; whether or not it was proper under the circumstances; that this Court go forward, and continue the other or continue the constitutional issues and make a determination.
Justice William J. Brennan: Can we do that?
You went to the Fifth Circuit, because we said that you couldn't cross-appeal for a declaratory judgment.
You could only cross-appeal and then grant or denial of an injunction?
Mr. Floyd: Yes, Your Honor.
Justice William J. Brennan: I suppose we could do it, if we bypassed the Court of Appeals and bring up your appeal pending in the Fifth Circuit.
Justice Potter Stewart: Couldn't we -- you're here.
Your opponent has brought a direct appeal here, because your opponent was denied an injunction by the three judge District Court?
Mr. Floyd: Yes, sir.
Justice Potter Stewart: You could not bring a cross-appeal here, because you won, from the point of view of successfully resisting the injunction.
Mr. Floyd: Yes, sir.
Justice Potter Stewart: But now that you're here as the appellee, you're arguing that an injunction should not have issued.
And part of that argument, very legitimately convened that on the merits the court was wrong, and that it shouldn't have issued a declaratory judgment or an injunction.
Mr. Floyd: That's correct, Your Honor.
Justice Potter Stewart: That is your position?
Mr. Floyd: Yes, Your Honor.
Now, the proceedings in the Fifth Circuit have been staid or abated.
Justice William J. Brennan: I must say, your position makes sense to me.
But don't some of our prior cases rather foreclose it, unless we bypass the Fifth Circuit and bring your appeal pending right here?
Mr. Floyd: Well, Your Honor - and I don't want to be repetitious, but a motion has been filed in the Fifth Circuit to hold the appeal in abeyance until a determination by this Court.
Justice William J. Brennan: But you didn't file any motion here asking us to bring your appeal pending in the Fifth Circuit here for decision with this appeal, did you?
Mr. Floyd: No.
We have requested that in our reply to the jurisdiction, and in our brief.
We have presented it in that manner.
Your Honor, we feel that this Court can, and should consider all the issues.
And, under the Sterling, Florida Lime and Avocado Growers, and the Carter cases, which are cited in the briefs of the parties.
Justice Thurgood Marshall: What is Texas' interest?
What is Texas' interest in the statute?
Mr. Floyd: Mr. Justice, the Thompson case, which has been cited to the Court -- Thompson v. State -- the Court of Criminal Appeals did not decide the issue of privacy.
It was not before the court; or, the right of choice issue.
The State Court, Court of Criminal Appeals, held that the State had a compelling interest because of the protection of fetal life.
They recognized the humanness of the embryo, or the fetus, and they said, we have an interest in protecting fetal life.
Whether or not that was the original intent of the statute, I have no idea.
Justice Potter Stewart: Yet, Texas does not attempt to punish a woman who herself performs an abortion on herself.
Mr. Floyd: That is correct, Your Honor.
And the matter has been brought to my attention.
Why not punish for murder, since you are destroying what you - or what has been said to be a human being?
I do not know, except that I will say this.
As medical science progresses, maybe the law will progress along with it.
Maybe at one time it could be possible, I suppose, statutes could be passed.
Whether or not that would be constitutional or not, I don't know
Justice Potter Stewart: But we're dealing with the statute as it is.
There's no state there that equates abortion with murder?
Or is there?
Mr. Floyd: There is none, Your Honor, except one of our statutes that if the mother dies, that the doctor shall be guilty of murder.
Justice Potter Stewart: Well, that's ordinary.
Mr. Floyd: Yes.
Unknown Speaker: Felony or murder.
Mr. Floyd: Just I would say so Mr. Justice yes.
Justice Thurgood Marshall: The Texas statute covers the entire period of pregnancy?
Mr. Floyd: Yes, it does, Mr. Justice.
Yes.
Justice William J. Brennan: Mr. Floyd, I don't find that Thompson case cited in the brief here.
I gather you said it just had been decided recently?
Mr. Floyd: Mr. Justice this case is just a recent case.
Justice William J. Brennan: Do you have a citation?
Mr. Floyd: It is not in the reporter system yet.
Justice William J. Brennan: Are you going to provide us with a copy of it?
Mr. Floyd: I'll be happy to, yes, sir, provide the Court with copies of that.
Justice William J. Brennan: What is the date of it, and the number?
Do you know?
Mr. Floyd: This is No. 44070, C. W. Thompson v. The State of Texas.
The opinion was delivered on November the 2nd, 1971.
Justice William J. Brennan: Thank you.
Mr. Floyd: I shall be happy to furnish the Court with this copy, if the Court so desires.
Justice Potter Stewart: At the Court of Criminal Appeals?
Mr. Floyd: Yes, Your Honor.
Justice William J. Brennan: And now, that's the case Mrs. Weddington told me was pending on a motion for rehearing?
Mr. Floyd: Yes, Your Honor.
Now, there's one--
Chief Justice Warren E. Burger: If you leave that with the Clerk, Mr. Floyd, we'll distribute copies.
Mr. Floyd: Now, in addition, the Thompson case cited Vuitch case, in regard to vagueness, and said that it was controlling the issue.
And, as I recall, that Dr. Thompson raised the issue of: Well, how can you find me guilty of murder, I mean of abortion, if you make no determination that the fetus is alive at the time I performed this?
In effect is what he's saying.
He never admitted doing it.
But he's saying, how can you prove it?
Of course the Texas Court answered by saying, it is presumed the fetus was alive when an abortion is performed.
Justice Potter Stewart: You're saying, in answer to my brother Marshall's question as to what is the interest of the State in this legislation or, even, what is its purpose, its societal purpose, your answer was, I think, relying on your opinion, the most recent opinion of the Court of Criminal Appeals in Texas, it was the protection of fetal life?
And I think you also said that that was not, perhaps, its original purpose.
Mr. Floyd: Well, I'm not sure of that.
I--
Justice Potter Stewart: Well, it may be rather important.
In a constitutional case of this kind, it becomes quite vital, sometimes, to rather precisely identify what the asserted interest of the state is.
Mr. Floyd: I think that original purpose, Mr. Justice, and the present prevailing purpose, may be the same in this respect.
There have been statistics furnished to this Court in various briefs from various groups, and from medical societies of different groups of physicians and gynecologists, or whatever it may be.
These statistics have not shown me, for example, that abortion is safer than normal childbirth.
They have not shown me that there are not emotional problems that are very important, resulting from an abortion.
The protection of the mother, at one time, may still be the primary - but the policy considerations, Mr. Justice, would seem to me to be for the State legislature to make a decision.
Justice Potter Stewart: Certainly that's true.
Policy questions are for legislative and executive bodies, both in the State and Federal Governments.
But we have here a constitutional question.
And, in deciding it, it's important to know what the asserted interest of the State is in the enactment of this legislation.
Mr. Floyd: This is just from my - l speak personally, if I may I would think that even when this statute was first passed, there was some concern for the unborn fetus.
Justice Potter Stewart: When was it enacted?
Mr. Floyd: 1859 was the original statute.
This, I believe, was around 1900, 1907.
Justice Potter Stewart: It goes back...
Mr. Floyd: It goes back...
Justice Potter Stewart: ...to the middle of the Nineteenth century?
Mr. Floyd: Yes, sir.
Justice Potter Stewart: Before that there were no criminal abortion laws in Texas?
Mr. Floyd: As far as I know there were not, no.
I think this is, maybe, set out in some of the briefs.
Justice Harry A. Blackmun: Well, in any event, Mr. Floyd, apart from your personal attitude, your court has spoken on the intent of the statute, has it not?
Mr. Floyd: Yes.
Justice Potter Stewart: Well, I can't quite square that most recent pronouncement with the earlier decisions of the Texas Court, that refer to the mother as the victim.
Can you?
Mr. Floyd: Well, as I say, Your Honor, I don't think the courts have come to the conclusion that the unborn has full juristic rights.
Not yet.
Maybe they will.
I don't know.
I just don't feel like they have, at the present time.
Justice Thurgood Marshall: In the first few weeks of pregnancy?
Mr. Floyd: Sir?
Justice Thurgood Marshall: In the first few weeks of pregnancy?
Mr. Floyd: At any time, Mr. Justice.
We make no distinctions in our statute.
Justice Thurgood Marshall: You make no distinctions whether there's life there or not?
Mr. Floyd: We say there is life from the moment of impregnation.
Justice Thurgood Marshall: And do you have any scientific data to support that?
Mr. Floyd: Well we begin, Mr. Justice, in our brief, with the development of the human embryo, carrying it through the development of the fetus from about seven to nine days after conception.
Justice Thurgood Marshall: Well, what about six days?
Mr. Floyd: We don't know.
Justice Thurgood Marshall: But the statute goes all the way back to one hour?
Mr. Floyd: I don't.
-- Mr. Justice, there are unanswerable questions in this field.
Justice Thurgood Marshall: I appreciate it.
Mr. Floyd: This is an artless statement on my part.
Justice Thurgood Marshall: I withdraw the question.
Mr. Floyd: Thank you.
When does the soul come into the unborn - if a person believes in the soul, I don't know.
I assume the appellants now are operating under the Ninth Amendment rights.
There are allegations of First Amendment rights being violated.
However, I feel there is no merit.
This statute does not establish any religion; nor does it prohibit anyone from practicing of any part of any religious group.
I see no merit in their contentions that it could possibly be under freedom of speech or press.
In fact, there have been some articles recently in this City's newspaper - yesterday, for instance about it.
The other constitutional rights that the appellant speaks of, I think, are expressed in two manners: The individual, or marital right of privacy; and, secondly - or -- or the right to choose whether or not to abort a child.
Now, if those are out of the case, the marital privacy is out of the case.
But be that as it may, neither individual nor marital privacy has been held to be absolute.
We have legal search and seizure.
We have the possession of illegal drugs; the practice of polygamy, and other matters.
A parent, I do not believe or parents, cannot refuse to give their child some form of education.
As far as the freedom over one's body is concerned, this is not absolute, the use of illicit drugs; the indecent exposure legislation; and, as Mr. Goldberg stated in the Griswold case, that adultery and fornication are constitutional beyond doubt.
Justice Potter Stewart: "Are constitutional"?
Or do you mean laws against them are constitutional?
Mr. Floyd: The laws against them are constitutional.
Now, there is nothing in the United States Constitution concerning birth, contraception, or abortion.
Now, the appellee does not disagree with the appellants' statement that a woman has a choice.
But, as we have previously mentioned, we feel that this choice is left up to the woman, prior to the time she becomes pregnant.
This is the time of the choice.
Now this was brought out in the Rosen v. Louisiana State Board of Medical Examiners case, and in Corkey v. Edwards, which are lower court opinions, and my understanding is that Corkey v. Edwards has been adopted in this Court.
Justice Potter Stewart: Has been?
Mr. Floyd: Has been, yes, Your Honor.
I'm not positive, but I think it has been.
Justice Potter Stewart: Texas doesn't grant any exemption in the case of a rape, where the woman's pregnancy has resulted from rape -- either statutory or otherwise-does it?
Mr. Floyd: There is nothing in our statute about that.
Now, the procedure...
Justice Potter Stewart: And such a woman wouldn't have had a choice, would she?
Mr. Floyd: The procedure - and now I'm telling the Court something that's outside the record - as I understand, the procedure when a woman is brought in after a rape, is to try to stop whatever has occurred, immediately, by the proper procedure in the hospital.
Immediately she's taken there, if she reports it immediately.
But, no, there is nothing in the statute.
Now, as I previously informed the Court, the statistics or the people who prepare the statistics, and the different statistics are not in conformity in connection with the medical aspects of abortion; that is, whether or not it's safer.
There are some statistics that will say it is and statistics that say it's not.
It has been provided to this Court, the common law and the legislative history of abortion; and that the morality of abortion has been injected in various cases by various groups.
We think these matters are matters of policy which can be properly addressed by the State legislature.
We think that a consideration should be given to the unborn, and in some instances, a consideration should be given for the father, if he would be objective to abortion.
Thank you, Your Honor.
Rebuttal of Sarah Weddington
Chief Justice Warren E. Burger: Mr. Floyd, your time is consumed.
Unless you have some correction you wish to make, Mrs. Weddington.
Ms Weddington: Your Honor, I would only like to draw to the Court's attention at page 130 of the record, the notice of appeal by defendant State of Texas, from the judgment of the District Court to the Supreme Court of the United States.
They have filed an appeal in this Court.
Chief Justice Warren E. Burger: Thank you.
Thank you, Mrs. Weddington.
Thank you, Mr. Floyd.
The case is submitted.
Print this transcript
Transcript:
Argument of Sarah Weddington
Chief Justice Warren E. Burger: We’ll hear arguments first in number 70-18, Roe against Wade.
Mrs. Weddington, you may proceed whenever you’re ready.
Ms Weddington: Mr. Chief Justice and may it please the Court.
We are once again before this Court to ask relief against the continued enforcement of the Texas abortion statute and ask that you affirm the ruling of the three-judge Court below which held our statute unconstitutional for two reasons, the first, that it was vague and, the second, that it interfered with the Ninth Amendment right for a woman to determine whether or not she would continue or terminate her pregnancy.
As you will recall, there are three-- four-- three plaintiffs and one intervener involved here.
The first plaintiff was Jane Roe, an unmarried pregnant girl who had sought an abortion in the State of Texas and was denied it because of the Texas abortion statute which provides an abortion is lawful only for the purpose of saving the life of the woman.
In the original action, she was joined by a married couple, John and Mary Doe.
Mrs. Doe had a medical condition.
Her doctor had recommended first that she not get pregnant and, second, that she not take the pill.
After this cause was instituted and after, in fact, the three-judge Court had been granted, those three plaintiffs were joined by an intervener, Doctor Hallford, who was, at the time he intervened, under a pending state criminal prosecution under the statute.
He did not ask that his prosecution be joined-- be stopped by the Court but, rather, joined in the original request for a declaratory judgment and injunctive relief against future prosecutions.
As a matter of fact, he has not-- his prosecution has not been continued, but the District Attorney, against whom we filed a suit, has taken a position that because there was no injunction he is still free to institute prosecutions.
There is a letter from his office in the appendix stating that he will continue prosecutions and, in fact, there had been a very limited number of prosecutions instituted in the State of Texas since the three-judge Court entered its declaratory judgment.
Chief Justice Warren E. Burger: The prosecutions of doctors, you’re speaking of.
Ms Weddington: Prosecutions of doctors, yes, sir.
The problem that we face in Texas is that even though we were granted a declaratory judgment ruling the law unconstitutional and even though we’ve been before this Court once in the past, in Texas, women still are not able to receive abortions from licensed doctors because doctors still fear that they will be prosecuted under the statute.
So, if the declaratory judgment was any relief at all, it was an almost meaningful relief because the women of Texas still must either travel to other states, if they are that sophisticated and can afford it, or they must resort to some other less-- some other very undesirable alternatives and--
Chief Justice Warren E. Burger: You said “meaningful.” You meant meaningless, didn’t you?
Ms Weddington: Yes, it’s just--
Chief Justice Warren E. Burger: Meaningless review.
Ms Weddington: In fact, we’ve pointed out in our supplemental brief filed here that there had been something like 1,600 Texas women who have gone to New York City alone for abortions in the first nine months of 1971.
In addition, I think the Court would recognize there are many women going to other parts of the country.
One of the objections that our opponents have raised is saying that this Court is moot because, of course, the woman is no longer pregnant.
It’s been almost three years since we instituted the original action and, yet, we can certainly show that it is a continuing problem to Texas women.
There still are unwanted pregnancies. There are still women who, for various reasons, do not wish to continue the pregnancy whether because of personal health considerations, whether because of their family situation, whether because of financial situations, education, working situations, some of the many things we discussed in the last hearing.
Since the last hearing before this Court, there have been a few cases decided that we wanted to draw the Court’s attention to and are covered in our supplemental brief.
In addition, there is a supplemental brief filed by an amicus party, Harriet Pilpel on behalf of Planned Parenthood of New York, that seeks to point out to the Court at pages 6 and 7, subsequent pages, some of the changing medical statistics available regarding the procedure of abortion.
For example, that brief points out that the overall maternal death rate from legal abortion in New York dropped to 3.7 per 100,000 abortions in the last half of 1971 and that, in fact, is less than half of the death rate associated with live delivery for women.
That, in fact, the maternal morbidity-- mortality rate has decreased by about two-thirds to a record low in New York in 1971.
That-- now, in 1971, New York recorded the lowest infant mortality rate ever in that state.
That during the first 18 months of 19-- well, from July 1, 1970 to December 31, 1971, out of wedlock pregnancies have dropped about 14%.
We now have other statistics coming from California and other states that show that not only has the overall birthrate declined, but the welfare birthrate has also declined accordingly.
As to the women, this is their only forum.
They are in a very unique situation for several reasons.
First, because of the very nature of the interest involved, their primary interest being the interest associated with the question of whether or not they will be forced by the state to continue an unwanted pregnancy.
In our original brief, we alleged a number of constitutional grounds.
The main one that we are relying on before this Court are the Fifth, Ninth, and the Fourteenth Amendments.
There’s a great body of precedent.
Certainly, we cannot say that there isn’t a constitution so stated the right to abortion but, neither is there stated the right to travel or some of the other basic rights that this Court have held are under the United States Constitution.
The Court has in the past, for example, held that it is the right of the parents and not of the individual to determine whether or not they will send their child to private school, whether or not their children will be taught foreign languages, whether or not they will have offspring in the Skinner case, whether the right to determine for themselves whom they will marry in the Loving case, and even in Body versus Connecticut the choice saying that marriage itself is so important that the state cannot interfere with termination of a marriage just because the woman is unable to pay the cost.
Griswold, of course, is the primary case holding that the state could not interfere in the question of whether or not a married couple would use birth control and, since then, the Courts have-- this Court, of course, has held that the individual has the right to determine whether they are married or single, whether they would use birth control.
So, there is a great body of cases decided in the past by this Court in the areas of marriage, sex, contraception, procreation, childbearing, and education of children which says that there are certain things that are so much part of the individual concern that they should be left to the determination of the individual.
One of the cases decided since our last argument, December 13, was the second Connecticut case, Abele versus Markle, which Judge-- excuse me?
Unknown Speaker: Newman.
Ms Weddington: Judge Newman wrote the opinion, yes.
Thank you.
And, Judge Lambert concurred.
Part of the lang-- in that case, that three-judge Court held the Connecticut statute, a slightly revised statute for the second time, to be unconstitutional, and part of the language of that case pointed out that “no decision of the Supreme Court has ever permitted anyone’s constitutional right to be directly abridged to protect a state interest which is subject to such a variety of personal judgments” and, certainly, the amicus brief stag before the Court showed a variety of personal judgments that come to bear on this particular situation.
To oppose such a statute, the Court said, would be to permit the state to impose its view of the nature of a fetus upon those who have the constitutional right to base an important decision in their personal lives upon a different view.
Again, this is a very special type case for the women because of the very nature of the injury involved.
It is an irreparable injury.
Once pregnancy has started, certainly this is not the kind of injury that can be later adjudicated.
It is not the kind of injury that can later be compensated by some sort of monetary reward.
These women who have now gone through pregnancy and the women who continue to be forced to go through pregnancy have certainly gone through something that is irreparable, that can never be changed for them.
It is certainly great and it is certainly immediate.
There is no other forum available to them.
As we talked last time, they are not subject in Texas to any kind of criminal prosecution whether the woman performs self-abortion, whether she goes to a doctor, finds someone who will perform it on her.
She is guilty of no crime whatsoever and, yet, the state tries to allege that its purpose in the statute was to protect the fetus.
If that’s true, the fact the woman is guilty of no crime is not a reasonable kind of-- it does not reasonably follow.
These-- the women are not able to have any kind of declaratory judgment in Texas because of our special declaratory judgment statutes and our concurring Criminal and Civil Courts, the two different kinds of cases that we have.
So, the Federal Court was the only Court to which the women had any kind of access, and it was to the Federal Courts they came, and it’s the Federal Court, in my judgment, that should determine this case.
It’s a very unique kind of harm, certainly, that was done to them.
Even though there are many cases, some very recent from this Court, talking about the problem of when a state may interfere when they’re-- or the federal judiciary may interfere when there is a pending state criminal prosecution.
This case does come under the exceptions in that there is great, immediate, irreparable injury where there is no other forum.
It is something that, as far as these women are concerned, can never be adjudicated in a criminal prosecution, much less in a single criminal prosecution.
It certainly is an instance of a situation that is capable of repetition, yet, evading review.
The judiciary simply does not move fast enough for the case to be decided within the period of gestation, much less within the period within which an abortion would be medically safe for these women.
The state has alleged and it’s only alleged interest in the statute is the interest in protecting the life of the unborn.
However, the state has not been able to point to any authority of any nature whatsoever that would demonstrate that this statute was, in fact, adopted for that purpose.
We have some indication that other state statutes were adopted for the purpose of protecting the health of the woman.
We have an 1880 case in Texas, shortly after the 1854 statute was adopted, that states that a woman is the victim of the crime and is the only victim the Court talks about.
We have all the contradictions in the statute in the way-- so many things that just don’t make sense.
If the statute was adopted for that purpose, for example, why is the woman guilty of no crime?
If the statute was adopted for that purpose, why is it that the penalty for abortion is determined by whether or not you have the woman’s consent?
Justice Potter Stewart: Regardless of the purpose for which the statute was originally enacted or the purpose which keeps it on the books in Texas today, you would agree, I suppose, that one of the important factors that has to be considered in this case is what rights, if any, does the unborn fetus have.
Ms Weddington: That’s correct.
There had been two cases decided since the December 13 argument that expressly hold that a fetus has no constitutional rights, one being Byrn versus New York, and the other being the Magee-Womens Hospital cases.
In both situations, a person sought to bring that very question to the Court does in the one instance, Byrn, was a challenge to the New York revised statute, the other was a situation where a person sought to prevent Magee-Womens Hospital from allowing further abortions to be done in that hospital.
And, in both cases, it was held that the fetus had no constitutional rights.
Several of the briefs before this Court would also argue that this Court in deciding the Vuitch case which has allowed abortions to continue in the District of Columbia, certainly the Court would not have made that kind of decision if it felt there were any ingrained rights of the fetus within the constitution.
There had also-- there is also, of course--
Justice Byron R. White: Is it also critical to your case that the fetus not to be a person under the due process clause?
Ms Weddington: It seems to me that it is critical first that we prove this is a fundamental interest on behalf of the woman, that it is a constitutional right and, second--
Justice Byron R. White: Yes, but how about the fetus?
Ms Weddington: Okay and, second, that the state has no compelling state interest.
Okay, and the state is alleging a compelling state interest.
Justice Byron R. White: Yes, but I’m just asking you, under the federal constitution, is the fetus a person for the purpose of the protection of the Due Process Clause?
Ms Weddington: All of the cases, the prior history of this statute, the common law history would indicate that it is not.
The state has shown no--
Justice Byron R. White: Well, what if-- would you loose your case if the fetus was a person?
Ms Weddington: Then you would have a balancing of interests.
Justice Byron R. White: Well, you’d still-- you have any way, don’t you?
Ms Weddington: Excuse me?
Justice Byron R. White: You have any way, don’t you?
You’re going to be balancing the rights of the mother against the rights of the fetus.
Ms Weddington: It seems to me that you do not balance constitutional rights of one person against mere statutory rights of another.
Justice Byron R. White: Do you think a state interest, if it’s only a statutory interest or a constitutional interest under the state law, can never outweigh a federal constitutional right, is that it?
Ms Weddington: I think-- it would seem to me that--
Justice Byron R. White: So all the talk of compelling state interests is beside the point.
It can never be compelling enough.
Ms Weddington: If the state could show that the fetus was a person under the Fourteenth Amendment or under some other amendment or part of the constitution, then you would have the situation of trying-- you would have a state compelling interest which, in some instances, can outweigh a fundamental right.
This is not the case in this particular situation.
Chief Justice Warren E. Burger: Do you make any distinction between the first month and the ninth month of gestation?
Ms Weddington: Our statute does not.
Chief Justice Warren E. Burger: Do you, in your position in this case?
Ms Weddington: We are asking in this case that the Court declare the statute unconstitutional, the state having proved no compelling interest at all.
There are some states that now have adopted time limits.
Those have not yet been challenged and, perhaps, that question will be before this Court.
Even those statutes though allow exceptions, well, for-- New York, for example, says an abortion is lawful up to 24 weeks, but even after the 24 weeks it is still lawful where there is rape or incest or where the mother’s mental or physical health is involved.
In other words, even after that period, it’s not a hard and fast cutoff.
Chief Justice Warren E. Burger: Then it’s the weighing process that Mr. Justice White was referring to.
Is that your position?
Ms Weddington: The legislature and in that situation engaged in the weighing process, and it seems to me that it has not yet been determined whether the state has the compelling state interest to uphold even that kind of regulation, but that’s really not before the Court in this particular case. We have no time limit.
There is no indication in Texas that any would be applied in any future date.
You know, we just don’t know that.
Justice Harry A. Blackmun: Mrs. Weddington, you’re attacking the statute on two grounds, are you not?
Ms Weddington: That’s correct.
Justice Harry A. Blackmun: Both vagueness and the Ninth Amendment.
Do you place any greater weight on one argument as against the other?
Ms Weddington: Our--Texas Court of Criminal Appeals in Thompson versus State--
Justice Harry A. Blackmun: That’s the recent case?
Ms Weddington: Yes, in November or last--
Justice Harry A. Blackmun: Again up on vagueness.
Ms Weddington: Yes, it-- that particular case held that the Texas statute was not vague citing Vuitch.
It’s my opinion that that reliance was misplaced.
That, in Vuitch, this Court had before it the D.C. statute which allowed abortion for the purpose of saving the life or the health, and this Court adopted the interpretation that health meant both mental and physical health.
And, it seem to me, the Court’s language in that case talked a great deal about the fact that the doctor’s judgment goes to saving the health of the woman, that that’s the kind of judgment that he is used to making.
In Texas, that’s not the judgment he is forced to make.
The judgment in Texas is, is this necessary for the purpose of preserving the life of the woman, and the language of that statute has never been interpreted.
That’s not the kind of judgment that a doctor is accustomed or perhaps even able to make.
Justice Harry A. Blackmun: I’ll go back to my question.
Are you--
Ms Weddington: I still continue the argument that the Texas case is vague.
Justice Harry A. Blackmun: So, you’re relying on both.
Ms Weddington: Yes, Your Honor, we are.
Justice Harry A. Blackmun: You referred a little bit to history.
Let me ask you a question based on history.
Ms Weddington: Okay.
Justice Harry A. Blackmun: You’re familiar with a Hippocratic Oath?
Ms Weddington: I am.
Justice Harry A. Blackmun: I think I may have missed it, but I find no reference to it in this-- in your brief or in the luminous briefs that were overwhelmed with here.
You have any comment about the Hippocratic Oath?
Ms Weddington: I think two things could be said.
The first would be that situations and understandings change.
In this case, for example, we have before the Court a medical amicus brief that was joined by all of the deans of the public medical schools in Texas.
It was joined by numerous other professors of medicine.
It was joined by the American College of Obstetricians and Gynecologists.
You know--
Justice Harry A. Blackmun: There are other briefs in the other side joined by equally outstanding positions.
Ms Weddington: None of theirs is--
Justice Harry A. Blackmun: But tell me why you didn’t discuss the Hippocratic Oath.
Ms Weddington: Okay.
I guess it was-- okay, in part, because the Hippocratic Oath, we discuss basically the constitutional protection we felt the woman to have.
The Hippocratic Oath does not pertain to that.
Second, we discuss the fact that the state had not established a compelling state interest.
The Hippocratic Oath would not really pertain to that.
And then, we discuss the vagueness jurisdiction.
It seem to us that that-- that the fact that the medical profession, at one time, had adopted the Hippocratic Oath does not weight upon the fundamental constitutional rights involved.
It is a guide for physicians, but the outstanding organizations of the medical profession have, in fact, adopted a position that says the doctor and the patient should be able to make the decision for themselves in this kind of situation.
Justice Harry A. Blackmun: Of course, it’s the only definitive statement of ethics in the medical profession.
I take it, from what you just said, that you’re-- you didn’t even footnote it because it’s old.
That’s about really what you’re saying.
Ms Weddington: Well, I guess you-- it is old, and not that it’s out of date, but it seemed to us that it was not pertinent to the argument we were making.
Justice Harry A. Blackmun: Let me ask another question.
Last June 29, this Court decided the capital punishment cases.
Ms Weddington: Yes, sir.
Justice Harry A. Blackmun: Do you feel that there is any inconsistency in the Court’s decision in those cases outlying the death penalty with respect to convicted murderers and rapists at one end of lifespan, and your position in this case at the other end of lifespan?
Ms Weddington: I think had there been established that the fetus was a person under the Fourteenth Amendment or under constitutional protection then there might be a differentiation.
In this case, there has never been established that the fetus is a person or that it’s entitled to the Fourteenth Amendment rights or the protection of the constitution.
It would be inconsistent to decide that, after birth, various classifications of persons would be subject to the death penalty or not but, here, we have a person, the woman, entitled to fundamental constitutional rights as opposed to the fetus prior to birth where there is no establishment of any kind of federal constitutional rights.
Justice Harry A. Blackmun: Well, do I get from this then that your case depends primarily on the proposition that the fetus has no constitutional rights?
Ms Weddington: It depends on saying that the woman has a fundament constitutional right and that the state has not proved any compelling interest for regulation in the area.
Even if the Court, at some point, determined the fetus to be entitled to constitutional protection, you would still get back into the weighing of one life against another.
Justice Byron R. White: And that’s what’s involved in this case, weighing one’s life against another?
Ms Weddington: No, Your Honor.
I said that would be what would be involved if the facts were different and the state could prove that there was a person for the constitutional right.
Justice Potter Stewart: Well, if it were established that an unborn fetus is a person within the protection of the Fourteenth Amendment, you would have almost an impossible case here, would you not?
Ms Weddington: I would have a very difficult case. [Laughter]
Justice Potter Stewart: You certainly would because you’d have the same kind of thing you’d have to say that this would be the equivalent to after the child was born.
Ms Weddington: That’s right.
Justice Potter Stewart: If the mother thought that it bothered her health having the child around, she could have it killed.
Isn’t that correct?
Ms Weddington: That’s correct.
Chief Justice Warren E. Burger: Could Texas constitutionally-- did you want to respond further to Justice Stewart?
Did you want to respond further to him?
Ms Weddington: No, Your Honor.
Chief Justice Warren E. Burger: Could Texas constitutionally, in your view, declare that—by statute that the fetus is a person for all constitutional purposes after the third month of gestation?
Ms Weddington: I do not believe that the state legislature can determine the meaning of the federal constitution.
It is up to this Court to make that determination.
Chief Justice Warren E. Burger: Yes, but states have to--
Ms Weddington: The state--
Chief Justice Warren E. Burger: Go against the statutes, don’t they?
Ms Weddington: The state could obviously adopt that kind of statute and then the question would have to be adjudicated as to whether, for all purposes, that statute is constitutional.
We are not alleging that there cannot be some kind of protection.
For example, the property rights which, again, are contingent on being—upon being born alive that can be retroactive to the period prior to birth, but in this particular situation, we are alleging that this statute is unconstitutional.
Chief Justice Warren E. Burger: They have been recognized in the period before birth for purposes of injury claims.
You put that, I take it, in the property category?
Ms Weddington: That is only when they are born alive, and the fact that there is a wrong—the wrongful conduct of another is not the same in this situation.
As to property rights, for example, there are even property rights that relate back to prior to conception, children that are not yet conceived can later inherit.
But, that doesn’t—that did not prevent this Court in Griswold from holding people had the right to birth control.
Argument of Robert C. Flowers
Chief Justice Warren E. Burger: Mr. Flowers.
Mr. Flowers: Mr. Chief Justice and may it please the Court.
The lower Court in Dallas has held the Texas abortion law unconstitutional primarily on the two grounds that had just been discussed, on the vagueness question and the rights of the mother under the Ninth Amendment.
The thrust of the whole argument of the State of Texas is against the rights of the mother under the Ninth Amendment, that it certainly is a balancing effect.
There must be or, on the other side of the coin, Texas has no steak.
It is impossible for me to trace within my allocated time the development of the fetus from the date of conception to the date of its birth, but it is the position of the State of Texas that upon conception we have a human baby, a person within the concept of the Constitution of the United States and that of Texas also.
Justice Potter Stewart: How should we-- how should that question be decided?
Is it a legal question, a constitutional question, a medical question, a philosophical question, a religious question, what is it?
Mr. Flowers: Your Honor, we feel that it could be best decided by a legislature in view of the fact that they can bring before it, in medical testimony, the actual people to do the research, but we do have--
Justice Potter Stewart: You think that is basically a medical question?
Mr. Flowers: From a constitutional stand point, no, sir.
I think it’s fairly squarely before this Court.
We don’t envy the Court for having to make this decision.
Justice Potter Stewart: Do you know of any case anywhere that’s held that an unborn fetus is a person within the meaning of the Fourteenth Amendment?
Mr. Flowers: No, sir.
We can only go back to what the framers of our constitution had in mind.
Justice Potter Stewart: Well, here’s what the framers who wrote the Fourteenth Amendment had came along.
Mr. Flowers: No, sir.
I understand, but the Fifth Amendment-- I know the Fifth Amendment, no one shall be deprived of rights to life, liberty, and property without the due process of law.
Justice Potter Stewart: Yes, but then the Fourteenth Amendment defines a person as somebody who is born, doesn’t it?
Mr. Flowers: I’m not sure about that, Your Honor.
Justice Potter Stewart: I know it does.
Any person born or naturalized in the United States doesn’t-- oh, that’s not a definition of a person, but that’s a definition of a citizen.
Mr. Flowers: Your Honor, it’s our position that your definition of a person is so basic.
It’s so fundamental that it is-- the framers of the constitution had not even set out to define.
We can only go to what the teachings at the time that the constitution was framed.
We have numerous listings in the brief by Mr. Joe Witherspoon, a professor at the University of Texas, that tries to trace back what was in their mind when they had the person concept when they drew up the constitution.
He quoted Blackstone in 1765 and he observed in his commentaries that life, this right is inherent by nature in every individual and exists even before the child is born.
I submit to you that the Declaration of Independence, we hold, is--
Justice Harry A. Blackmun: When you quote Blackstone, is it not true that in Blackstone’s time abortion was not a felony?
Mr. Flowers: That’s true, Your Honor, but what my point there was to see the thinking of the framers of the constitution from the people they’ve learned from and the general attitude of the time.
Justice Harry A. Blackmun: Well, I think-- I’m just wondering if there’s a basic consistency there and let me go back to something else that you said.
Is it not true or is it true that the medical profession itself is not in agreement as to when life begins?
Mr. Flowers: I think that’s true, sir.
But from a layman’s stand point, medically speaking, we would say that at the moment of conception from the chromosomes, every potential that anybody in this room has is present from the moment of conception.
Justice Harry A. Blackmun: Then you’re speaking of potential of life.
Mr. Flowers: Yes, sir.
Justice Harry A. Blackmun: With which everyone can agree perhaps.
Mr. Flowers: On the 7th day, I think that the heart, in some form, starts beating.
On the 20th day, practically all the facilities are there that you and I have, Your Honor.
I think--
Justice Byron R. White: If you’re correct that the fetus is a person, then I don’t suppose you’d have a-- the state would have great trouble permitting an abortion, wouldn’t it?
Mr. Flowers: Yes, sir.
Justice Byron R. White: In any circumstance.
Mr. Flowers: It would, yes, sir.
Justice Byron R. White: To save the life of the mother or her health or anything else?
Mr. Flowers: Well, there would be the balancing of the two lives and I think that--
Justice Byron R. White: What would you choose?
Would you choose to kill the innocent one or what?
Mr. Flowers: Well, in this-- in our statutes, the state did choose that way, Your Honor.
Well, in the protection of the mother.
Justice Thurgood Marshall: Well, could the State of Texas say that if it’s for the benefit of the health of the wife, they can kill the husband?
Mr. Flowers: I’m sorry, I didn’t understand.
Justice Thurgood Marshall: Could Texas say, if it comes to a situation for the benefit and the health of the wife that the husband has to die, could they kill him?
Mr. Flowers: I wouldn’t think so.
Justice Thurgood Marshall: That’s right.
Mr. Flowers: I think.
Justice Thurgood Marshall: Is there any statute in Texas that prohibits doctors from performing any operation other than an abortion?
Mr. Flowers: I don’t think so, sir, and there is another thrust of our argument.
If we declare, as the appellees in this case have asked this Court to declare, that an embryo or a fetus is a mass of protoplasm similar to a tumor then, of course, the state has no compelling interest whatsoever.
Justice Thurgood Marshall: But there is no-- the only operation that a doctor could possibly commit that will bring on the criminal penalty is the abortion.
Mr. Flowers: Yes, sir.
Justice Thurgood Marshall: Why?
Mr. Flowers: As far as--
Justice Thurgood Marshall: Well, why don’t you limit some other operation?
Mr. Flowers: Because this is the only type of operation that would take another human life.
Justice Thurgood Marshall: Well, a brain operation could.
Mr. Flowers: Well, there again, that would be -- I think in every fate that a doctor performs, that he is constantly making this judgment.
Justice Thurgood Marshall: If a doctor performs a brain operation and does it improperly, he could be guilty of manslaughter, couldn’t he?
Mr. Flowers: I would think so, if he was negligent.
Justice Thurgood Marshall: Well, why couldn’t you charge him with manslaughter if he commits an abortion?
Mr. Flowers: In effect, Your Honor, we did.
In the statute 1195 that has been very carefully avoided all though out these proceedings, it is not attacked.
It is unconstitutional for some reason.
If you’ll permit me to--
Justice Thurgood Marshall: Well, is it initiated?
Mr. Flowers: No, sir.
You asked the question about whether we had made manslaughter-- abortion manslaughter.
Justice Thurgood Marshall: Maybe the reason is why have two concepts?
Mr. Flowers: Well, this was in context with-- this is 1195.
They are attacking 1191 and 1196, but omitted 1195.
Here’s what 1195 said-- provides, whoever shall, during the parturition of the mother, destroy the vitality or life in a child in a state of being born before actual birth or/and before actually birth which child would have otherwise been born alive which be-- shall be confined in the penitentiary for life or not less than five years.
Justice Thurgood Marshall: What does that statute mean?
Mr. Flowers: Sir?
Justice Thurgood Marshall: What does it mean?
Mr. Flowers: I would think that it--
Justice Potter Stewart: It’s an offense to kill a child in the process of childbirth.
Mr. Flowers: Yes.
Justice Potter Stewart: Isn’t it?
Mr. Flowers: It would be immediately before childbirth or right in the proximity of the child being born.
Justice Thurgood Marshall: Which, is not an abortion.
Mr. Flowers: Which is not-- would not be an abortion, yes, you’re correct.
It would be homicide.
And we feel that the concept of fetus being in the-- within the concept of a person within the framework of the United States Constitution and the Texas Constitution is an extremely fundamental thing.
Justice Potter Stewart: Of course, if you’re right about that, you can sit down.
You’ve won your case.
Mr. Flowers: Your Honor--
Justice Potter Stewart: That acceptance of ours may be the Texas abortion law presently goes to far in allowing abortion.
Mr. Flowers: Yes, sir.
That’s exactly right.
We feel that this is the only question really that this Court has to answer.
We have--
Justice Byron R. White: Do you think the case is over for you?
You’ve lost your case if the fetus or the embryo is not a person, is that it?
Mr. Flowers: Yes, sir.
I would say so.
Justice Byron R. White: You mean the state has no interest that-- of its own that it can assert and--
Mr. Flowers: Oh, we have other interests, Your Honor, preventing promiscuity, maybe that’s--
Justice Byron R. White: Yes, but your legislature apparently or you’re asserting that the state-- that your state law wants to protect the life of the fetus.
Mr. Flowers: Yes, sir.
Justice Byron R. White: And under state law, there is some rights given-- there are some rights given to the fetus.
Mr. Flowers: Yes, sir.
Justice Byron R. White: And you’re asserting those rights against the right of the mother.
Mr. Flowers: Balancing against he Ninth Amendment rights or within the--
Justice Byron R. White: Yes, but that’s wholly aside from whether or not the fetus is a person under the federal constitution.
You can still assert those rights whether the fetus is a person or not.
Mr. Flowers: Yes, sir.
Chief Justice Warren E. Burger: Does Texas have judicial statutes on mutilation.
Mr. Flowers: Yes, sir.
Chief Justice Warren E. Burger: I guess in the Criminal Act.
Mr. Flowers: Yes, sir.
Chief Justice Warren E. Burger: So that if there are, there are--
Mr. Flowers: Yes, sir.
Chief Justice Warren E. Burger: Certain procedures which could be criminal.
Mr. Flowers: That’s right, they do--
Chief Justice Warren E. Burger: The man walked into the doctor’s office and said I want you to cutoff my right arm--
Mr. Flowers: That’s right, mutilating and castration.
Chief Justice Warren E. Burger: Because it has offended me.
Mr. Flowers: Yes, sir, I have forgotten about those, Your Honor.
Justice Thurgood Marshall: Does that apply to doctors?
Mr. Flowers: I would assume so, sir.
Anyone with--
Justice Thurgood Marshall: Do you have any case that says so?
Mr. Flowers: No, sir.
I would say that there would have to be a capability of mind to prove the merits in most criminal cases.
Your Honor, I’d like to call the attention of the Court that the unborn child, if this Court has not been blind to the rights of the unborn child in the past, in the Memorial case versus Anderson, a New Jersey Supreme Court case, the Court-- this was a case where the pregnant woman had refused on religious grounds not doing a blood transfusion and in order to save the child, the Court held that the right of the child to live and to be born was paramount over this pregnant woman’s right of religion.
I think that here is exactly what we’re facing in this case.
Is the life of this unborn fetus paramount over a woman’s right to determine whether or not she shall bear a child?
In Glickman v. Cosgrove, it’s a New Jersey Supreme Court case.
It’s a tort action instituted against the doctor as a result of his failure to warn the mother that she was suffering from German measles in order that she could terminate her pregnancy.
The Court recognized the life of the embryo and stated that it would’ve been easier for the mother and less expensive for the father.
This alleged detriment cannot stand against the contention that it’s still one single life.
In Jones versus State-- excuse me, Jones versus Jones, a New York Supreme Court held that the unborn child was a patient-- the mother’s obstetrician as well as the mother herself-- excuse me a minute.
In Jackson versus Indiana, this Court zealously guarded the rights of a retarded child.
Now, if we are going to extend the right of a child who has reached its potential, it cannot go on and grow.
It cannot go on and grow mentally and achieve, then how much more right should we afford to a child who is-- has all o the potential of achieving?
The Prince versus Commonwealth of Massachusetts case, this Court was faced with the contention that the state statute precluding labor by child in tender years in distributing religious tracks was protected, that the child’s right to grow up and to become educated and fully developed was paramount to these parents’ religious beliefs.
This Court has been diligent in protecting the rights of the minorities and, Gentlemen, we say that this is a minority, a silent minority, the true silent minority.
Who is speaking for these children?
Where is the council for these unborn children, whose life is being taken?
Where is the safeguard of the right to trial by jury?
Are we to place this power in the hands of a mother, in a doctor?
All of the constitutional rights, if this person has the person concept, what would keep a legislature under this grounds from deciding who else might or might not be a human being, or might not be a person?
Justice Potter Stewart: Now, generally speaking, I think you’d agree that up until now the test has been whether or not somebody’s been born or not, and that’s the word used in the Fourteenth Amendment.
Mr. Flowers: Yes, sir.
Justice Potter Stewart: That’s what would keep a legislature, I suppose, from classifying people who’ve been born as not persons.
Mr. Flowers: Your Honor, it seems to me that the physical act of being born, and I’m not playing it down, I know it’s a very momentous incident but what changes?
Is it a non-human in changing by the act of birth into a human or--
Justice Potter Stewart: Well, that’s been the theory up until now in the law.[Laughter]
Mr. Flowers: Well, in other words, it has been the theory that we have deriving from non-human material a human being after conception.
Your Honor--
Justice Potter Stewart: That’s the reason I asked you at the beginning.
What-- within what framework should this question be decided?
Should it be a theological one, a philosophical one, or a medical one, or are we confined here to dealing with--
Mr. Flowers: I think, Your Honor, that the Court--
Justice Potter Stewart: The constitutional meaning of it?
Mr. Flowers: I wish I could answer that.
I believe that the Court must take these-- the medical research and apply it to our constitution the best it can.
I said I’m without envy of the burden that the Court has.
I think that, possibly, we have an opportunity to make one of the worst mistakes here that we’ve ever made on--
Justice Thurgood Marshall: There’s no medical testimony--
Mr. Flowers: Sorry.
Justice Thurgood Marshall: That backs up your statement that it goes from inception, is there?
Mr. Flowers: Only that--
Justice Thurgood Marshall: Medical?
Mr. Flowers: Sir, in this case you’re talking about?
Justice Thurgood Marshall: No, is there any medical testimony of any kind that says that a fetus is a person at the time of inception?
Mr. Flowers: Your Honor, I would like to call the Court’s attention in answer that question what I feel to believe one of the better culminations of the medical research, and that was Senior Judge’s Campbell’s dissenting opinion in the Doe versus Scott which is very similar to the case we have before us.
He goes in chronological order.
What the medical research has determined from the chromosome structure at the time of conception, what the potential is, down through each day of life until it’s born.
Justice Thurgood Marshall: But I understood you to say the State of Texas says it extends from the date of inception until the child is born.
Mr. Flowers: The date of conception until the day-- yes, sir.
Justice Thurgood Marshall: And that’s it.
Mr. Flowers: Yes, sir.
Justice Thurgood Marshall: Now, you’re not quoting a judge.
I want you to give me a medical recognizable medical writing of any kind that says that at the time of conception that the fetus is a person.
Mr. Flowers: I do not believe that I could give that to you without researching through the briefs that have been filed in this case, Your Honor.
I’m not sure that I can give it to you after research--
Justice William H. Rehnquist: Mr. Flowers.
Did Judge Campbell rely on medical authorities in that statement you’re summarizing?
Mr. Flowers: Yes, sir, he did.
This case was-- the Court held there that, really, the problem could be answered on an extension of the Griswold case and here’s what my dissenting judge had to say about that which we adopt, Your Honor.
He said that “in citing Griswold, the majority concludes we could not distinguish the interest asserted by the plaintiffs in this case from those asserted in Griswold.
In other words, in their views, there is no distinction that can be made between prohibiting the use of contraceptives and prohibiting the destruction of fetal life which, as explained above, may reasonably be construed to be a human life.
I find this assertion incredible.
Contraceptive prevents creation of new life.
Abortion destroys existing life.
Abortion-- contraceptives and abortion are as distinguishable as thoughts and dreams are distinguishable from a reality.”
Now--
Justice Thurgood Marshall: Well, where are the medical part, as you told Mr. Justice Rehnquist, he cited, are they there?
Mr. Flowers: Yes, sir.
He list them day by day, just prior to this time, sir.
But, it’s quite lengthy.
Justice Thurgood Marshall: Where is that you’re reading from?
Mr. Flowers: It’s 321 Federal Supplement on page 394, sir.
And, I-- or 392, it begins, Your Honor, and I refer you to his medical condensation because I read most of the comments that he has to make through that-- these many, many briefs that we have had submitted in this case and other cases.
For instance, he starts off-- we did-- see, as Illinois legislature would have before us, the following undisputed facts relating to fetal life, seven weeks after conception, the fertilized egg develops into a well proportioned small-scaled baby and then goes from there on.
Now-- no, he doesn’t address himself, Your Honor, to the moment of conception.
Justice Thurgood Marshall: I didn’t think so.
Mr. Flowers: You’re entirely right there and-- but I find no way that I know that any Court or any legislature or any doctor anywhere can say that here is the dividing line.
Here is not a life and here is a life after conception.
Perhaps it would be better left to our legislators.
There, they have the facilities to have some type of medical history brought before them, and the opinion of the people who are being governed by this.
Justice Potter Stewart: If you’re right that an unborn is a person, then you can’t leave it to the legislature to play fast and loose without dealing with that person.
In other words, if you’re correct in your basic submission that an unborn fetus is a person, then abortion law such as that which New York has is grossly unconstitutional, isn’t it?
Mr. Flowers: That’s right.
Yes, sir.
Justice Potter Stewart: Allowing the killing of people.
Mr. Flowers: Yes, sir.
Justice Potter Stewart: Of persons.
Mr. Flowers: Your Honor, the Massachusetts, I might point out--
Justice Potter Stewart: So you can’t leave this up to the legislature.
There’s a constitutional problem, isn’t there?
Mr. Flowers: Well, if there would be exceptions within this--
Justice Potter Stewart: And the basic constitutional question initially is whether or not an unborn fetus is a person, isn’t it?
Mr. Flowers: Yes, and entirely to the constitutional perspective.
Justice Potter Stewart: It’s critical to this case, is it not?
Mr. Flowers: Yes, sir, it is, and we feel that the treatment that the Courts have given unborn children and dissent in distribution of property rights by the Court below have all pointed out that they have, in the past, have given credence to this concept.
Justice William H. Rehnquist: Mr. Flowers, doesn’t the fact that so many of the state abortion statutes do provide for exceptional situations in which abortion may be performed and presumably these date back a great number of years, following Mr. Justice Stewart’s comment, suggested that the absolute proposition that a fetus from the time of conception is a person just is at least against the weight of historical legal approach to the question?
Mr. Flowers: Yes, sir.
I would think possibly that that would indicate that.
However, Your Honor, in this whole field of abortion here we have, on the one hand, a great clamoring for this liberization of it.
Perhaps this is good.
Population explosion, we have so many things that are arriving on the scene the last few years that might have some effect on producing this type of legislature rather than facing the facts squarely.
I don’t think anyone has faced the fact in making the decision whether this is a life in a person concept.
Thank you, Your Honor.
Justice Harry A. Blackmun: Mr. Flowers, when was the first abortion statute adopted in your state?
Mr. Flowers: Your Honor, in 1854.
Justice Harry A. Blackmun: Prior to 1854, what was the situation in Texas?
Mr. Flowers: I do not think it was an offense, Your Honor.
Justice Harry A. Blackmun: So, in your--
Mr. Flowers: I think it was silent.
The state was silent then.
Justice Harry A. Blackmun: So, in your theory, destruction of a person in the form of a fetus was legal.
Mr. Flowers: Yes, sir.
Well, at least legislature hadn’t spoken on it, Your Honor.
Justice Harry A. Blackmun: Well, it was legal.
Mr. Flowers: Yes, sir.
Justice William H. Rehnquist: Mr. Flowers, did Texas have an abortion statute on the books at the time, at least in the eyes of the north, it was readmitted to the union after the Civil War?
Mr. Flowers: No, sir.
The State was admitted to the union in 1845, Your Honor, and--
Justice William H. Rehnquist: Well, at the time that it was passed master with--
Mr. Flowers: When it was a republic?
Justice William H. Rehnquist: Well, my historical question is that, following the Civil War, Congress went through the procedure, at any rate, of readmitting the states which have seceded and passing on their constitutional provisions in that certainly.
Did Texas have an abortion statute at that time?
Mr. Flowers: Yes, sir.
It was passed in 1854, Your Honor.
Justice Harry A. Blackmun: Do you know as a matter of historical fact when most of these abortion statutes came on the books?
Mr. Flowers: I think it was-- most of them were in the mid 1800s, Your Honor.
Justice Harry A. Blackmun: In fact, the latter half of the 19th Century.
Do you know why they okayed him on at that time?
Mr. Flowers: No, sir, I surely don’t.
I’m sorry.
Justice Potter Stewart: The materials indicate that, generally speaking, they’re enacted to protect the health and lives of pregnant women because of the danger of operative procedures generally in that year of our history.
Mr. Flowers: I’m sure that was a great factor, Your Honor.
Chief Justice Warren E. Burger: Well, isn’t it historically pretty well accepted as a fact that in the early period in the history of this country, there was general reliance upon religious discipline to preclude this kind of activity, abortions, and when that didn’t seem to cover it, then the states began to enact statutes.
Mr. Flowers: Yes, sir.
Chief Justice Warren E. Burger: As have been done in England.
Mr. Flowers: Also, in the expiration and the Indian days, if you wish, the frontier days, I don’t imagine that too many abortions were-- intentional abortions were created in this United States.
People were such a necessity to develop the United States.
Thank you.
Rebuttal of Sarah Weddington
Chief Justice Warren E. Burger: Mrs. Weddington, you have four minutes left.
Ms Weddington: Thank you, Your Honor.
I think Mr. Flowers well made the point when he said that no one can say here is the dividing line, here is where life begins, here is-- life is here and life is not over here.
In a situation where no one can prove where life begins, where no one can show that the constitution was adopted, that it was meant to protect fetal life, in those situations where it is shown that that kind of decision is so fundamentally a part of individual life of het family, of such fundamental impact on the person--
Justice Byron R. White: I gather your argument is that state may not protect the life of the fetus or with that of abortion even at any time during pregnancy.
Ms Weddington: At this--
Justice Byron R. White: Right up until the moment of birth.
Ms Weddington: At this time, my point is that this particular statute is unconstitutional.
Justice Byron R. White: I understand that but your argument, as the way you state it, is that it wouldn’t make any difference what part of pregnancy that the state would cut the abortion.
It will still be unconstitutional.
Ms Weddington: At this time, there is no indication to show that the constitution would give any protection prior to birth.
That is not before the Court and that is the question I think--
Justice Byron R. White: Well, I don’t know whether it is or it isn’t.
If the statute you’re claiming is a statute that’s void on its face.
Ms Weddington: That’s correct.
Justice Byron R. White: Now, is it possible the statute-- before you can declare the statute void on its face that you have to say that it’s void no matter when in the pregnancy the abortion takes place?
Ms Weddington: It seems to me, in this situation, the Court is-- excuse me, I must-- would you ask the question again?
Justice Byron R. White: Well, is the statute void on the-- could the statute be void on its face if the state could prevent abortions at any time after six months?
Ms Weddington: You mean if the state, in fact, did that?
Justice Byron R. White: No, let’s assume that it’s unconstitutional for the state to prevent abortion after six months.
Ms Weddington: It would still be void on its face in this situation because it is overly broad.
It interferes in a-- at a time when a state has no--
Justice Byron R. White: This is a Free Speech Clause.
The statute might be perfectly valid in part and invalid in part.
You’re saying--
Ms Weddington: In areas where--
Justice Byron R. White: It’s invalid on its face, totally invalid.
Ms Weddington: Well--
Justice Byron R. White: It may not apply to-- it may not be enough in preventing abortion no matter when the abortion takes place.
Ms Weddington: My argument would, first, be that it’s void on its face and, second, if the Court finds it’s not void on its face then it certainly is void because it infringes upon the fundamental right at a time when the state can show no compelling interest early in pregnancy.
Chief Justice Warren E. Burger: What did this Court say about vagueness in the Vuitch case?
What did we say there?
Ms Weddington: There, you said the particular D.C. statute was not void for vagueness.
It’s a different statute.
There was an interpretation of the meaning of the statute, and the Court there said the doctor could work within that context and could tell what the statute meant.
Chief Justice Warren E. Burger: Then isn’t the only difference between the Texas statute and the D.C. statute that the Texas statute does not have the health factor in it?
Ms Weddington: That’s correct, which makes it much more difficult for the doctor to tell when it is const-- when he can act.
Chief Justice Warren E. Burger: But then under Vuitch, unless the Court was prepared to overrule it, nullified the Texas statute would be valid if it was construed to include abortions for the protection of health--
Ms Weddington: Including--
Chief Justice Warren E. Burger: Treating life as broad enough to--
Ms Weddington: Mental and physical.
Chief Justice Warren E. Burger: Include health.
Ms Weddington: But then the question is raised as to the right of privacy which was not before the Court in the Vuitch case and is before the Court in this particular situation.
As to the Hippocratic Oath, it seems to me that that oath was adopted at a time when abortion was extremely dangerous to the health of the woman and, second, that the oath is to protect life.
And, here, the question is what does life mean in this particular context?
It’s the sort of same vagueness that it seems to me that your-- well, okay, life there could be slightly different because of the constitutional implications here.
It seems to me that--
Justice Harry A. Blackmun: Well, Hippocratic Oath went directly and specifically to abort the procedures.
Ms Weddington: To providing abortions.
Justice Harry A. Blackmun: Whatever-- however life was defined.
Ms Weddington: That’s correct.
As to mutilation, there, it seems to me that the purpose of those statutes was to prevent the citizen from becoming a dependent or ward of the state and also to ensure that its citizens would be available for service in the military.
In this particular instance, the rationale works just the opposite.
Here, a woman, because of her pregnancy, is often not a productive member of society.
She cannot work.
She cannot hold a job.
She’s not eligible for welfare.
She cannot get unemployment compensation, and furthermore, in fact, the pregnancy may produce a child who will become a ward of the state.
We do not object to the cases such as the transfusion case where there is a decision already made by the woman that she desires to carry the pregnancy to term, and when that decision is made that the child should be given every opportunity to come into life a healthy person.
We do not believe that that necessitates the conclusion that, therefore, under the constitution prior to birth a person under the Fourteenth Amendment would exist there.
This case-- this Court is faced with the situation where there have been 14 three-judge Courts that ruled on the constitutionality of abortion statutes, 9 Courts have favored the woman, 5 have gone against her.
25 judges have favored the woman, 17 have gone against her.
9 circuit judges have favored the woman, 5 have gone against her.
16 District Court judges have favored the woman, 10 have gone against her.
No one is more keenly aware of the gravity of the issues of the moral implications of this case, but it is a case that must be decided on the constitution.
We do not disagree that there is a progression of fetal development.
It is the conclusion to be drawn from that, upon which we disagree.
We are not here to advocate abortion.
We do not ask this Court to rule that abortion is good or desirable in any particular situation.
We are here to advocate that the decision as to whether or not a particular woman will continue to carry or will terminate a pregnancy is a decision that should be made by that individual.
That, in fact, she has a constitutional right to make that decision for herself and that the state has shown no interest in interfering with that decision.
Our supplemental brief on page 14 points out that the brief of the opposition can’t quite decide when life does begin.
At one point, they suggest it’s when there’s implantation.
A few pages later, they suggest it’s with conception.
Justice Byron R. White: But any doctor, I suppose, would say-- may refuse her.
Ms Weddington: Certainly, Your Honor, he may.
He may refuse any kind of medical procedure whatsoever.
Justice Byron R. White: But the state?
Ms Weddington: Here, it’s the question of whether or not the state by the statute will force the woman to continue.
The woman should be given that freedom, just as the doctor has the freedom to decide what procedures he will carry out and what he will refuse to his patient.
Chief Justice Warren E. Burger: You’re out of time now.
Ms Weddington: Okay.
Justice Harry A. Blackmun: To make sure I get your argument in focus, I take it from your recent remarks that you are urging upon us abortion on demand that the woman alone, not in conjunction with her physician.
Ms Weddington: I am urging that, in this particular context, this statute is unconstitutional that in the Baird versus Eisenstadt case, this Court said if the right of privacy is to mean anything, it is the right of the individual, whether married or single, to make determinations for themselves.
It seems to me that you cannot say this is a woman of this particular doctor and this particular woman.
It is, it seems to me, of--
Justice Harry A. Blackmun: Well, doesn’t it follow from that then that one can come into a doctor’s office and say “I want an abortion”?
Ms Weddington: And he can say, “I’m sorry, I don’t perform them.”
Justice Harry A. Blackmun: And then what does she do?
Ms Weddington: She goes elsewhere, if she so chooses.
If she stays with that-- you know, it’s-- that’s an impossible question.
Certainly, I don’t think the state could say the first doctor a woman goes to shall make that determination, and she cannot go elsewhere.
Chief Justice Warren E. Burger: Your time is up now, Mrs. Weddington.
Ms Weddington: Okay, thank you.
Chief Justice Warren E. Burger: Thank you, Mrs. Weddington.
Thank you, Mr. Flowers.
The case is submitted.
Cite this Page
ROE v. WADE. The Oyez Project at IIT Chicago-Kent College of Law. 24 May 2013. <http://www.oyez.org/cases/1970-1979/1971/1971_70_18>.
ROE v. WADE, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1970-1979/1971/1971_70_18 (last visited May 24, 2013).
"ROE v. WADE," The Oyez Project at IIT Chicago-Kent College of Law, accessed May 24, 2013, http://www.oyez.org/cases/1970-1979/1971/1971_70_18.