Roe v. Wade - Oral Reargument

Roe v. Wade reargument

MRS. SARAH WEDDINGTON represented Jane Roe

MR. ROBERT C. FLOWERS represented Henry Wade and the State of Texas

CHIEF JUSTICE WARREN E. BURGER: First, in number 7018, Roe against Wade.

Mrs. Weddington, you may proceed whenever you're ready.

MRS. 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 I 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 rights
of a woman to determine whether or not she would continue or terminate a
pregnancy.

As you will recall, there are three- four- three plaintiffs and one
intervenor 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 intervenor, Dr.
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 stopped by the court, but rather
joined in the original request for a declaratory judgment and injunctive
relief against future prosecution.

As a matter of fact, he has not-his prosecution has not been continued. But
the District Attorney against whom we filed the 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 have been a very limited number
of prosecutions instituted in the State of Texas since the three judge
court entered its declaratory judgment.

CHIEF JUSTICE BURGER: Prosecutions of doctors, you're speaking of?

MRS. 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, 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.

CHIEF JUSTICE BURGER: You said "meaningful." You meant "meaningless,"
didn't you?

MRS. WEDDINGTON: Yes. It's just-in fact, we pointed out in our supplemental
brief filed here that there have 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 thinkthe Court would recognize there are many other
women going to other parts of the country.

One of the objections that our opponents have raised-the same in 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 at 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 and 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 the death rate
associated with live delivery for women.

That, in fact, the maternal morbid...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-well, from July 1st, 1970, to December
31st, 1971, out-of-wedlock pregnancies have dropped by 14 percent.

We now have other statistics coming from California, and other states, that
show that not only has the overall birth rate declined, but the welfare
birth rate 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 ones that we are relying on before this Court are the Fifth, the
Ninth, and the Fourteenth Amendments.

There is a great body of precedents. Certainly we cannot say that there is
in the Constitution-so stated-the right to an abortion. But neither is
there stated the right to travel, or some of the other very basic rights
that this Court has 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 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-the Skinner
case; whether-the right to determine for themselves whom they will
marry-the Loving case; and even in Boddie v. Connecticut, the choice of
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, this Court, of course, has held that the
individual has the right to determine-whether they are married or single
whether they will 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, child-bearing, and
education of children, which say that there are certain things that are so
much a 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 September 13th was the
second Connecticut case, Abele v. Markle, which Judge...

JUSTICE POTTER STEWART: Newman.

MRS. WEDDINGTON: Excuse me?

JUSTICE STEWART: Newman, I think.

MRS. WEDDINGTON: -Newman wrote the opinion, yes, thank You. And Judge
Lombard concurred.

In that case, that three judge court held the Connecticut statute- a
slightly revised statute-for the second time to be unconstitutional.

In part of the language of that case, it pointed out that "No decision"-
and I'm quoting- "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 briefs before the Court show the variety of personal judgments
that come to bear on this particular situation.

"To uphold 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 had 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 this statute was to
protect the fetus. If that's true, the fact that the woman is guilty of no
crime is not a reasonable kind of-it does not reasonably follow.

The women are not able to have any kind of declaratory judgment in Texas,
because of our special declaratory judgment statutes in our concurring
criminal and civil courts-the two different lines 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, or when 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
somethingthat, 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 this 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 the woman
is the victim of the crime, and is the only victim that the court talks
about.

We have all the contradictions in the statute, and 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 BYRON R. WHITE: 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?

MRS. WEDDINGTON: That's correct. There have been two cases decided since
the September 13th argument that expressly hold that a fetus has no
constitutional right-one being Byrn v. New York; the other being the
Magee-Women's Hospital cases.

In both situations, persons sought to bring that very question to the
Court: does a fetus-in the one instance, Byrn was a challenge to the New
York Revised Statutes. The other was a situation where a person sought to
prevent Magee-Women's 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 is also, of course

WHITE: Well, is it critical to your case that the fetus not be a person
under the due process clause?

MRS. 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 WHITE: Well, yes. But about the fetus?

MRS. WEDDINGTON: Okay. And, second, that the State has no compelling State
interest.

And the State is alleging a compelling State interest in

JUSTICE WHITE: Yes. But I'm just asking you, under the Federal
Constitution, is the fetus a person, for the protection of the due process
clause?

MRS. 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 WHITE: Well, what about-would you lose your case if the fetus was a
person?

MRS. WEDDINGTON: Then you would have a balancing of interest.

JUSTICE WHITE: Well, you say you have anyway, don't you?

MRS. WEDDINGTON: Excuse me?

JUSTICE WHITE: You have anyway, don't you? You're going to be balancing the
rights of the mother against the rights of the fetus.

MRS. WEDDINGTON: It seems to me that you do not balance constitutional
rights of one person against mere statutory rights of another.

JUSTICE WHITE: You think a State interest, if it's only a statutory
interest, or a constitutional interest under the State law, can never
outweigh a constitutional right?

MRS. WEDDINGTON: I think-it would seem to me that --

JUSTICE WHITE: So all talk of compelling State interest is beside the
point. It can never be compelling enough.

MRS. 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 BURGER: Do you make any distinction between the first month,
and ninth month of gestation?

MRS. WEDDINGTON: Our statute does not.

CHIEF JUSTICE BURGER: Do you, in your position in this case?

MRS. 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 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's rape or incest; 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 BURGER: Then it's the weighing process that Mr. Justice White
was referring to. Is that your position?

MRS. WEDDINGTON: The legislature, 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 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 at
any future date. You know, we just don't know that.

But --

JUSTICE HARRY BLACKMUN: Mrs. Weddington, you're attacking the statute on
two grounds, are you not? Both vagueness --

MRS. WEDDINGTON: That's correct.

JUSTICE BLACKMUN: -and the Ninth Amendment. Do you base any greater weight
on one argument, as against the other?

MRS. WEDDINGTON: Our Texas Court of Criminal Appeals, in Thompson v. State

JUSTICE BLACKMUN: That's a recent case?

MRS. WEDDINGTON: Yes, in November of last year.

JUSTICE BLACKMUN: Again on vagueness?

MRS. WEDDINGTON: Yes. 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 seemed 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 he is used to making.

In Texas that's not the judgment he's 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 BLACKMUN: Well, I go back to my question: Are you --

MRS. WEDDINGTON: I still continue the argument that the Texas case is vague.

JUSTICE BLACKMUN: So you're relying on both?

MRS. WEDDINGTON: Yes, Your Honor, we are.

JUSTICE BLACKMUN: Now you referred a little bit to history. And let me ask
you a question

MRS. WEDDINGTON: Okay.

JUSTICE BLACKMUN: -based on history. You're familiar with the Hippocratic
oath?

MRS. WEDDINGTON: I am.

JUSTICE BLACKMUN: I think- I may have missed it, but I find no reference to
it in this-in your brief, or in the voluminous briefs that we're
overwhelmed with here. Do you have any comment about the Hippocratic oath?

MRS. 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 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.

JUSTICE BLACKMUN: Of course there are other briefs, on the other side,
joined by equally outstanding physicians.

MRS. WEDDINGTON: None of them has --

JUSTICE BLACKMUN: Tell me why you didn't discuss the Hippocratic oath.

MRS. WEDDINGTON: Okay. I guess it was- okay- in part, because the
Hippocratic oath-we discussed 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 has not established a compelling State interest. The
Hippocratic oath would not really pertain to that.

And then we discuss the vagueness jurisdiction. It seemed to us that the
fact that the medical profession at one time had adopted the Hippocratic
oath does not weigh 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 BLACKMUN: Of course, it's the only definitive statement of ethics
of the medical profession. I take it from what you said that your...you
didn't even footnote it, because it's old? That's about, really, what
you're saying?

MRS. WEDDINGTON: Well, I guess it is old. And not that it's out of date,
but that it seemed to us that it was not pertinent to the argument we were
making.

JUSTICE BLACKMUN: Let me ask another question, then. Last June 29th this
Court decided the capital punishment cases.

MRS. WEDDINGTON: Yes, sir.

JUSTICE BLACKMUN: Do you feel that there is any inconsistency in the
Court's decision in those cases outlawing the death penalty, with respect
to convicted murderers and rapists at one end of life's span; and your
position in this case, at the other end of life's span?

MRS. 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 BLACKMUN: Well, do I get from this, then, that your case depends
primarily on the proposition that the fetus has no constitutional rights?

MRS. WEDDINGTON: It depends on saying that the woman has a fundamental
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 STEWART: That's what's involved in this case? Weighing one life
against another?

MRS. WEDDINGTON: No, Your Honor. I say 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 STEWART: Well, if-if it were established that an unborn fetus is a
person, with the protection of the Fourteenth Amendment, you would have
almost an impossible case here, would you not?

MRS. WEDDINGTON: I would have a very difficult case.

JUSTICE STEWART: I'm sure you would. So, if you had the same kind of thing,
you'd have to say that this would be the equivalent- after the child was
born, if the mother thought it bothered her health any having the child
around, she could have it killed. Isn't that correct?

MRS. WEDDINGTON: That's correct. That-

CHIEF JUSTICE BURGER: Could Texas, constitutionally- did you want to
respond further to Justice Stewart? Did you want to respond further to him?

MRS. WEDDINGTON: No, Your Honor.

CHIEF JUSTICE 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?

MRS. 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 BURGER: The states have to deal with statutes in some cases,
don't they?

MRS. 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 upon being born
alive. It can be retroactive to the period prior to birth. But, in this
particular situation, we are alleging that this statute is unconstitutional.

CHIEF JUSTICE BURGER: But that has been recognized in the period before
birth, for purposes of injury claims. And you put that, I take it, in the
property category?

MRS. WEDDINGTON: In Texas it is only when they are born alive. And the fact
that there is a-you know, the wrongful conduct of another is not the same
as in this situation. As for 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 did not prevent this Court,
in Griswold, from holding people had the right to birth control.

CHIEF JUSTICE BURGER: Mr. Flowers?

MR. FLOWERS: Mr. Chief Justice, and may it please the Court:

The lower court in Dallas held the Texas abortion law unconstitutional
primarily on the two grounds that have 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 State.

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 being; a person, within the concept of the Constitution of the United
States, and that of Texas, also.

JUSTICE STEWART: Now how should that question be decided? Is it a legal
question? A constitutional question? A medical question? A philosophical
question? Or, a religious question? Or 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 the medical
testimony- the actual people who do the research. But we do have

JUSTICE STEWART: So then it's basically a medical question?

MR. FLOWERS: From a constitutional standpoint, no, sir. I think it's fairly
and squarely before this Court. We don't envy the Court for having to make
this decision.

JUSTICE 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 STEWART: Well, these weren't the framers that wrote the Fourteenth
Amendment. It came along much later.

MR. FLOWERS: No, sir. I understand. But the Fifth Amendment- under the
Fifth Amendment, no one shall be deprived of the right to life, liberty,
and property, without due process of law.

JUSTICE STEWART: Yes. But then the Fourteenth Amendment defines "person" as
somebody who's born, doesn't it?

MR. FLOWERS: I'm not sure about that, sir. I-

JUSTICE STEWART: Well, it does. All right. Any person born, or naturalized
in the United States.

MR. FLOWERS: Yes, sir.

JUSTICE STEWART: It doesn't-that's not the definition of a "person," but
that's the definition of a "citizen."

MR. FLOWERS: Your Honor, it's our position that the definition of a person
is so basic, it's so fundamental, that the framers of the Constitution had
not even set out to define it.

We can only go to what the teachings were at the time 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 these"

JUSTICE BLACKMUN: Mr. Flowers, 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 my point there was to see the
thinking of the framers of the Constitution, from the people they learned
from, and the general attitudes of the times.

JUSTICE BLACKMUN: Well, I think- I'm just wondering if there isn't basic
inconsistency 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 standpoint,
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 BLACKMUN: But then you're speaking of potential of right.

MR. FLOWERS: Yes, sir.

JUSTICE BLACKMUN: With which everyone can agree, perhaps.

MR. FLOWERS: On the seventh 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 that

JUSTICE WHITE: Well, if you're correct that the fetus is a person, then I
don't suppose you'd have-the State would have great trouble permitting an
abortion, would it?

MR. FLOWERS: Yes, sir.

JUSTICE WHITE: In any circumstances?

MR. FLOWERS: It would, yes, sir.

JUSTICE WHITE: To save the life of a mother, or her health, or anything else?

MR. FLOWERS: Well, there would be the balancing of the two lives, and I
think that

JUSTICE WHITE: Well, what would you choose? Would you choose to kill the
innocent one, or what?

MR. FLOWERS: Well, in our statute, the State did choose that way, Your Honor.

JUSTICE THURGOOD MARSHALL: Well-

MR. FLOWERS: The protection of the mother.

JUSTICE MARSHALL: Well, did the State of Texas say that if it is for the
benefit of the health of the wife to kill the husband

MR. FLOWERS: I'm sorry, I didn't understand your question.

JUSTICE MARSHALL: Could Texas say, if it confronts the situation, for the
benefit of the health of the wife, that the husband has to die? Could they
kill him?

MR. FLOWERS: I wouldn't think so, sir.

JUSTICE MARSHALL: Is there any statute in Texas that prohibits the doctor
from performing any operation, other than an abortion?

MR. FLOWERS: I don't- 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 MARSHALL: But there is no-the only operation that a doctor can
possibly commit that will bring on a criminal penalty is an abortion?

MR. FLOWERS: Yes, sir.

JUSTICE MARSHALL: Why?

MR. FLOWERS: As far as-

JUSTICE MARSHALL: Well, why don't you limit some other operations?

MR. FLOWERS: Because this is the only type of operation that would take
another human life.

JUSTICE MARSHALL: Well, a brain operation could.

MR. FLOWERS: Well, there again that would be- I think that in every feat
that a doctor performs that he is constantly making this judgment.

JUSTICE MARSHALL: Well, 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 MARSHALL: Well, why wouldn'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 throughout these proceedings. It's not
attacked as unconstitutional, for some reason.

If you will permit me to-

JUSTICE MARSHALL: But is it at issue here?

MR. FLOWERS: No, sir. You asked the question about whether we had made
manslaughter-or an abortion manslaughter.

JUSTICE MARSHALL: Maybe the reason is: Why have two statutes?

MR. FLOWERS: Well, this was in context with-this is 1195. They are
attacking 1191 through 1196, but omitted 1195.

Here's what 1195 says-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 and before actual birth-which child would have
otherwise been born alive, which-shall be confined to the penitentiary for
life, or not less than five years."

JUSTICE MARSHALL: What does that statute mean?

MR. FLOWERS: Sir?

JUSTICE MARSHALL: What does it mean?

MR. FLOWERS: I would think that-

JUSTICE STEWART: That it is an offense to kill a child in the process of
childbirth?

MR. FLOWERS: Yes, sir. It would be immediately before childbirth, or right
in the proximity of the child being born.

JUSTICE MARSHALL: Which is not an abortion.

MR. FLOWERS: Which is not-would not be an abortion, yes, sir. You're
correct, sir. It would be homicide.

Gentlemen, we feel that the concept of a fetus being within the concept of
a person, within the framework of the United States Constitution and the
Texas Constitution, is an extremely fundamental thing.

JUSTICE STEWART: Of course, if you're right about that, you can sit down,
you've won your case.

MR. FLOWERS: Your Honor-

JUSTICE STEWART: Except insofar as, maybe, the Texas abortion law presently
goes too far in allowing abortions.

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 a

JUSTICE WHITE: Do you think the case is over for you? You've lost your
case, then, if the fetus or the embryo is not a person? Is that it?

MR. FLOWERS: Yes, sir, I would say so.

JUSTICE WHITE: You mean the State has no interest of its own that it can
assert, and

MR. FLOWERS: Oh, we have other interests, Your Honor- preventing
promiscuity, say, maybe that's

JUSTICE WHITE: Mr. Flowers, your legislature apparently-or you're asserting
that your State law wants to protect the life of the fetus?

MR. FLOWERS: Yes, sir.

JUSTICE WHITE: And, under State law, there is some right- there are some
rights given to the fetus?

MR. FLOWERS: Yes, sir.

JUSTICE WHITE: And you are asserting those rights, against the right of the
mother.

MR. FLOWERS: Balancing against the Ninth Amendment rights of the mother,
within the framework

JUSTICE WHITE: But that's wholly aside from whether 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 BURGER: Does Texas have judicial statutes on mutilation,
making it a criminal act?

MR. FLOWERS: Yes, sir.

CHIEF JUSTICE BURGER: So that there are other assertions

MR. FLOWERS: Yes, sir.

CHIEF JUSTICE BURGER: -or procedures which could be criminal?

MR. FLOWERS: That's right.

CHIEF JUSTICE BURGER: If a man walked into a doctor's office and said, "I
want you to cut off my right arm"

MR. FLOWERS: That's right- mutilation, castration-yes, sir. I had forgotten
about those, Your Honor.

JUSTICE MARSHALL: Those statutes apply to doctors?

MR. FLOWERS: I would assume so, sir, or anyone that would-

JUSTICE MARSHALL: Do you have any case that says so?

MR. FLOWERS: No, sir. I would say that there would have to be a culpability
of proof in there, as in most criminal cases.

Your Honor, I'd like to call the attention of the Court, that the unborn
child-that this Court has not been blind to the rights of the unborn child
in the past.

In the Memorial case v. Anderson, a New Jersey Supreme Court case, the
court-this was the case where the pregnant woman had refused, on religious
grounds, to undergo a blood transfusion 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 the 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 have been easier for the mother, and less expensive
for the father-this alleged detriment cannot stand against the preciousness
of one single life.

In Jones v. State-excuse me, Jones v. Jones, the New York Supreme Court
held that the unborn child was a patient of the mother's obstetrician, as
well as the mother herself.

In Jackson v. Indiana, this Court zealously guarded the rights of a
retarded child. Now if we're 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 of the potential of achieving?

In the Prince v. Commonwealth of Massachusetts case, this Court was faced
with the contention that the State statute precluding labor by a child in
tender years in distributing religious tracts 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 minority. 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 counsel 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, and a doctor-all of
the constitutional rights-if this person has the person concept?

What would keep a legislature, under this ground, from deciding who else
might or might not be a human being, or might not be a "person"?

JUSTICE STEWART: Well, generally speaking, I think you agree that up until
now the test has been whether or not somebody has been born or not. And
that's the word used in the Fourteenth Amendment.

MR. FLOWERS: Yes, sir.

JUSTICE STEWART: That's what would keep the legislature, I suppose, from
classifying people that have been born, as not persons.

MR. FLOWERS: Your Honor, it seems to me that the physical act of being
born- I'm not playing it down. I know it's-a very momentous incident.

But what changes? Is it a nonhuman, and changing by the act of birth into a
human? Or would

JUSTICE STEWART: Well, that's been the theory up until now on the lawbooks.

MR. FLOWERS: Well, in other words, it has been the theory that we
have-deriving from nonhuman material- a human being after conception.

Well, Your Honor

JUSTICE STEWART: You see, that's the reason I asked you at the beginning,
within what framework should this question be decided? Should it be a
theological one

MR. FLOWERS: Yes, sir.

JUSTICE STEWART: -a philosophical one, or a medical one. Or, that we could
find here dealing with

MR. FLOWERS: I think, Your Honor, that the Court-

JUSTICE 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 they
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, from the- I'm sorry.

JUSTICE MARSHALL: But there's no medical testimony that backs up your
statement that it goes from inception, is there?

MR. FLOWERS: Only that-

JUSTICE MARSHALL: Medical.

MR. FLOWERS: Sir, in this case you're talking about?

JUSTICE 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
answering that question, to what I feel to believe was one of the better
culminations of the medical research, and that was Senior Judge Campbell's
dissenting opinion in the Doe v. Scott, which is very similar to the case
we have before us.

He goes in chronological order of 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 MARSHALL: But I understood you to say that 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 of-yes, sir.

JUSTICE MARSHALL: And that's it?

MR. FLOWERS: Yes, sir.

JUSTICE MARSHALL: Now, you're now quoting the judge. I want you to give me
a medical, recognizable medical writing of any kind that says that at the
time of conception 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 could give it to you after research.

JUSTICE WILLIAM H. REHNQUIST: Mr. Flowers-

MR. FLOWERS: Yes, sir?

JUSTICE REHNQUIST: -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, "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. Contraceptives prevent the creation of new life. Abortion
destroys the existing life. Contraceptives and abortion are as
distinguishable as thoughts and dreams are distinguishable from a reality."

JUSTICE MARSHALL: Well, where are the medical authorities you told Mr.
Justice Rehnquist he cited? Are they there?

MR. FLOWERS: Yes, sir. He lists them day by day, just prior to this time,
sir. But it's quite lengthy.

JUSTICE MARSHALL: Where is that you're reading from?

MR. FLOWERS: It's 321 Federal Supplement on page 394, sir.

Or 392, it begins, Your Honor. And I refer you to his medical condensation,
because I have read most of the comments that he has to make through
the-throughout these many, many briefs that we have had submitted in this
case and other cases.

For instance, he starts off: "We did"- let's 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-scale baby..." and then goes from there on.

Now, I know he doesn't address himself, Your Honor, to the moment of
conception.

JUSTICE MARSHALL: I didn't think so.

MR. FLOWERS: You're entirely right there.

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 that legislature. There they have the
facilities to have some type of medical testimony brought before them, and
the opinion of the people who are being governed by it.

JUSTICE STEWART: Well, if you're right that an unborn fetus is a person,
then you can't leave it to the legislature to play fast and loose dealing
with that person. In other words, if you're correct, in your basic
submission that an unborn fetus is a person, then abortion laws such as
that which New York has are grossly unconstitutional, isn't it?

MR. FLOWERS: That's right, yes.

JUSTICE STEWART: Allowing the killing of people.

MR. FLOWERS: Yes, sir.

JUSTICE STEWART: A person.

MR. FLOWERS: Your Honor, in Massachusetts, I might point out

JUSTICE STEWART: You can't leave it up to the legislature. It's a
constitutional problem, isn't it?

MR. FLOWERS: Well, if there would be any exceptions within this

JUSTICE STEWART: The basic constitutional question, initially, is whether
or not an unborn fetus is a person, isn't it?

MR. FLOWERS: Yes, sir, and entitled to the constitutional protection.

JUSTICE STEWART: And that'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
in descent, in distribution of property rights, tort laws, have all pointed
out that they have, in the past, have given credence to this concept.

JUSTICE REHNQUIST: Mr. Flowers, doesn't the fact that so many of the state
abortion statutes do provide for exceptional situations in which an
abortion may be performed-and presumably these date back a great number of
years, following Mr. Justice Stewart's comment-suggest 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 great clamoring for this liberalization of it.

Perhaps this is good. Population explosion. We have just so many things
that are arriving on the scene in the past few years that might have some
effect on producing this type of legislation, rather than facing the facts
squarely. I don't think anyone has faced the fact, in making a decision,
whether this is a life, in a person concept.

Thank you, Your Honors.

JUSTICE BLACKMUN: Mr. Flowers, when was the first abortion statute adopted
in your State?

MR. FLOWERS: Your Honor, in 1854.

JUSTICE BLACKMUN: Prior to 1854, what was the situation in Texas?

MR. FLOWERS: I do not think it was an offense, Your Honor. I think it was
silent-the State was silent.

JUSTICE BLACKMUN: So, on your theory, destruction of the person in the form
of a fetus was legal?

MR. FLOWERS: Yes, sir. Well, at least the legislature hadn't spoken on it,
Your Honor.

JUSTICE BLACKMUN: Then it was legal.

MR. FLOWERS: Yes, sir.

JUSTICE REHNQUIST: Mr. Flowers, did Texas have an abortion statute on the
books at the time-at least in the eyes of the North-when 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 REHNQUIST: Well, at the time that it was-passed muster with the

MR. FLOWERS: When it was a republic?

JUSTICE REHNQUIST: Well, my historical impression is that following the
Civil War Congress went through the procedure, at any rate, of readmitting
the states which had seceded. And passing on their constitutional
provisions, and that sort of thing. Did Texas have an abortion statute at
that time?

MR. FLOWERS: Yes, sir. It was passed in 1854, Your Honor.

JUSTICE 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 BLACKMUN: In fact, the latter half of the Nineteenth Century?

MR. FLOWERS: Yes, sir.

JUSTICE BLACKMUN: Do you know why they all came on at that time?

MR. FLOWERS: No, sir, I surely don't.

JUSTICE STEWART: So that the materials indicate that, during that period,
they were enacted to protect the health and lives of pregnant women,
because of the danger of operative procedures generally around that time?

MR. FLOWERS: I'm sure that was a great factor, Your Honor.

CHIEF JUSTICE BURGER: Well, isn't it historically pretty well accepted as a
fact that in the early period of the history of this country there was a
general reliance upon religious disciplines to preclude this kind of
activity- abortions- and when that didn't seem to cover it, then the states
began to enact the statutes?

MR. FLOWERS: Yes, sir.

CHIEF JUSTICE BURGER: As had been done in England.

MR. FLOWERS: Also in the exploration and the Indian days, if you wish,
frontier days, I don't imagine that too many abortions intentional
abortions-were created in this, these United States. People were of such a
necessity to develop the United States. Thank you, Your Honor.

CHIEF JUSTICE BURGER: Mrs. Weddington, you have four minutes left.

MRS. 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; 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 the family, of such
fundamental impact on the person

JUSTICE WHITE: Well, I gather your argument is that a state may not protect
the life of the fetus or prevent an abortion even at any time during
pregnancy?

MRS. WEDDINGTON: At this-

JUSTICE WHITE: Right up until the moment of birth?

MRS. WEDDINGTON: At this time my point is that this particular statute is
unconstitutional.

JUSTICE WHITE: I understand that. But your argument, the way you state it
is that it wouldn't make any difference when in the pregnancy that the
State attempts to prevent the abortion? It would still be unconstitutional?

MRS. 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 that

JUSTICE WHITE: Well, I don't know whether it is or it isn't. If the
statute-you're claiming that the statute is void on its face?

MRS. WEDDINGTON: That's correct.

JUSTICE WHITE: Now isn't it possible, if 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?

MRS. WEDDINGTON: It seems to me in this situation the Court is-excuse me. I
must-would you ask the question again?

JUSTICE WHITE: Well, is the statute void-would the statute be void on its
face if the State could prevent abortions at any time after six months?

MRS. WEDDINGTON: You mean if the State, in fact, did that?

JUSTICE WHITE: Well, let's assume it were constitutional for the State to
prevent abortions after six months.

MRS. WEDDINGTON: It would still be void on its face in this situation
because it's overly broad. It interferes at a time when a state has no

JUSTICE WHITE: Well, this isn't a free speech case. The statute might be
perfectly valid in part, and invalid in part. You're saying it's invalid on
its face-totally invalid-that it may not apply to-the statute may not
prevent an abortion, no matter when the abortion takes place.

MRS. 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, 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 BURGER: What did this Court say about voidness in the Vuitch
case? What did we say there?

MRS. 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 BURGER: Well, 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?

MRS. WEDDINGTON: That's correct, which makes it much more difficult for the
doctor to tell when it is-when he can

CHIEF JUSTICE BURGER: But in Vuitch, unless the Court is prepared to
overrule it-not a fact-the Texas statute would be valid if it was construed
to include abortions for the protection of health, treating life as broad
enough to do include health?

MRS. WEDDINGTON: Including mental and physical.

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 the
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, it seems to me, that you're-well, okay.
Life there could be slightly different, because of the constitutional
implications here. It seems to me that-

JUSTICE BLACKMUN: Well, the Hippocratic oath went directly and specifically
to abortive procedures.

MRS. WEDDINGTON: To providing a-

JUSTICE BLACKMUN: However life was defined.

MRS. 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.

In this case, this Court is faced with a situation where there have been 14
three judge courts that have ruled on the constitutionality of abortion
statutes. Nine courts have favored the woman, five 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 or 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 WHITE: But any doctor, I suppose you would say, may refuse her?

MRS. WEDDINGTON: Certainly, Your Honor. He may refuse any kind of medical
procedure whatsoever.

JUSTICE WHITE: But the State may not-yes.

MRS. 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 patients.

JUSTICE BLACKMUN: To be sure that I get your argument in focus, I take if
from your recent remarks that you are urging upon us abortion on demand of
the woman alone, not in conjunction with her physician?

MRS. 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

JUSTICE BLACKMUN: Well, doesn't it follow from that, then, that a woman can
come into a doctor's office and say, "I want an abortion"?

MRS. WEDDINGTON: And he can say, "I'm sorry, I don't perform them."

JUSTICE BLACKMUN: And then what does she do?

MRS. WEDDINGTON: She goes elsewhere, if she so chooses. If she stays with
that-you know, 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 BURGER: Your time is up now, Mrs. Weddington.

MRS. WEDDINGTON: Thank you.

CHIEF JUSTICE BURGER: Thank you, Mrs. Weddington. Thank you, Mr. Flowers.
The case is submitted.