U.S. Supreme Court
Roe v. Wade, 410
U.S. 113 (1973)
Roe v. Wade
Argued December 13, 1971
Reargued October 11, 1972
Decided January 22, 1973
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This Texas federal appeal and its Georgia companion, Doe v.
, p. 179, present constitutional challenges to
state criminal abortion legislation. The Texas statutes under
attack here are typical of those that have been in effect in many
States for approximately a century. The Georgia statutes, in
contrast, have a modern cast, and are a legislative product that,
to an extent at least, obviously reflects the influences of recent
attitudinal change, of advancing medical knowledge and techniques,
and of new thinking about an old issue.
We forthwith acknowledge our awareness of the sensitive and
emotional nature of the abortion controversy, of the vigorous
opposing views, even among physicians, and of the deep and
seemingly absolute convictions that the subject inspires. One's
philosophy, one's experiences, one's exposure to the raw edges of
human existence, one's religious training, one's attitudes toward
life and family and their values, and the moral standards one
establishes and seeks to observe, are all likely to influence and
to color one's thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial
overtones tend to complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional
measurement, free of emotion and of predilection. We seek earnestly
to do this, and, because we do, we
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
"[The Constitution] is made for people of fundamentally
differing views, and the accident of our finding certain opinions
natural and familiar or novel and even shocking ought not to
conclude our judgment upon the question whether statutes embodying
them conflict with the Constitution of the United States."
The Texas statutes that concern us here are Arts. 1191-1194 and
1196 of the State's Penal Code. [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
Texas first enacted a criminal abortion statute in 1854. Texas
Laws 1854, c. 49, Â§ 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
Jane Roe, [Footnote 4
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
Roe alleged that she was unmarried and pregnant; that she wished
to terminate her pregnancy by an abortion "performed by a
competent, licensed physician, under safe, clinical conditions";
that she was unable to get a "legal" abortion in Texas because her
life did not appear to be threatened by the continuation of her
pregnancy; and that she could not afford to travel to another
jurisdiction in order to secure a legal abortion under safe
conditions. She claimed that the Texas statutes were
unconstitutionally vague and that they abridged her right of
personal privacy, protected by the First, Fourth, Fifth, Ninth, and
Fourteenth Amendments. By an amendment to her complaint, Roe
purported to sue "on behalf of herself and all other women"
James Hubert Hallford, a licensed physician, sought and was
granted leave to intervene in Roe's action. In his complaint, he
alleged that he had been arrested previously for violations of the
Texas abortion statutes, and
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
] 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
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.
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant
to 28 U.S.C. Â§ 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
Gunn v. University Committee
, 399 U. S. 383
to the effect that Â§ 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
Florida Lime Growers v. Jacobsen
, 362 U. S. 73
(1960). It would be destructive of time and energy for all
concerned were we to rule otherwise. Cf. Doe v. Bolton,
, p. 179.
We are next confronted with issues of justiciability, standing,
and abstention. Have Roe and the Does established that "personal
stake in the outcome of the controversy," Baker v. Carr
369 U. S. 186
204 (1962), that insures that
"the dispute sought to be adjudicated will be presented in an
adversary context and in a form historically viewed as capable of
Flast v. Cohen
, 392 U. S. 83
, 101 (1968),
and Sierra Club v. Morton
, 405 U. S. 727
(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
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.
, 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
, 392 U.S. at 102, and the necessary degree of
contentiousness, Golden v. Zwickler
, 394 U. S. 103
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
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
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.
, 340 U. S. 36
Golden v. Zwickler, supra; SEC v. Medical Committee for Human
, 404 U.
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
(1911). See Moore v. Ogilvie
, 394 U. S. 814
(1969); Carroll v. Princess Anne
, 393 U. S. 175
(1968); United States v. W. T. Grant Co.
, 345 U. S. 629
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.Â .Â .Â ."
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
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
We see no merit in that distinction. Our decision in Samuels
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
, 401 U. S. 37
Boyle v. Landry
, 401 U. S. 77
Perez v. Ledesma
, 401 U. S. 82
Byrne v. Karaleis
, 401 U. S. 216
See also Dombrowski v. Pfister
, 380 U. S. 479
note, in passing, that Younger
and its companion cases
were decided after the three-judge District Court decision in this
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
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 .Â .Â . 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
We thus have as plaintiffs a married couple who have, as their
asserted immediate and present injury, only an alleged "detrimental
effect upon [their] marital happiness" because they are forced to
"the choice of refraining from normal sexual relations or of
endangering Mary Doe's health through a possible pregnancy." Their
claim is that, sometime in the future, Mrs. Doe might become
pregnant because of possible failure of contraceptive measures,
and, at that time in the future, she might want an abortion that
might then be illegal under the Texas statutes.
This very phrasing of the Does' position reveals its speculative
character. Their alleged injury rests on possible future
contraceptive failure, possible future pregnancy, possible future
unpreparedness for parenthood, and possible future impairment of
health. Any one or more of these several possibilities may not take
place, and all may not combine. In the Does' estimation, these
possibilities might have some real or imagined impact upon their
marital happiness. But we are not prepared to say that the bare
allegation of so indirect an injury is sufficient to present an
actual case or controversy. Younger v. Harris
, 401 U.S. at
41-42; Golden v. Zwickler
, 394 U.S. at 109-110; Abele
, 452 F.2d at 1124-1125; Crossen v.
, 446 F.2d at 839. The Does' claim falls far short
of those resolved otherwise in the cases that the Does urge upon
us, namely, Investment Co. Institute v. Camp
, 401 U. S. 617
Data Processing Service v. Camp
, 397 U. S. 150
and Epperson v. Arkansas
, 393 U. S. 97
See also Truax v. Raich
, 239 U. S. 33
The Does therefore are not appropriate plaintiffs in this
litigation. Their complaint was properly dismissed by the District
Court, and we affirm that dismissal.
The principal thrust of appellant's attack on the Texas statutes
is that they improperly invade a right, said to be possessed by the
pregnant woman, to choose to terminate her pregnancy. Appellant
would discover this right in the concept of personal "liberty"
embodied in the Fourteenth Amendment's Due Process Clause; or in
personal, marital, familial, and sexual privacy said to be
protected by the Bill of Rights or its penumbras, see Griswold
, 381 U. S. 479
Eisenstadt v. Baird
, 405 U. S. 438
at 460 (WHITE, J., concurring in result); or among
those rights reserved to the people by the Ninth Amendment,
Griswold v. Connecticut
, 381 U.S. at 486 (Goldberg, J.,
concurring). Before addressing this claim, we feel it desirable
briefly to survey, in several aspects, the history of abortion, for
such insight as that history may afford us, and then to examine the
state purposes and interests behind the criminal abortion laws.
It perhaps is not generally appreciated that the restrictive
criminal abortion laws in effect in a majority of States today are
of relatively recent vintage. Those laws, generally proscribing
abortion or its attempt at any time during pregnancy except when
necessary to preserve the pregnant woman's life, are not of ancient
or even of common law origin. Instead, they derive from statutory
changes effected, for the most part, in the latter half of the 19th
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."
] 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
] 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
"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. 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:
] 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
and "[i]n no other stratum of Greek opinion were such views held
or proposed in the same spirit of uncompromising austerity."
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
usually from the 16th to the 18th week of pregnancy [Footnote 20
] -- was not an indictable
offense. [Footnote 21
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
] others followed Coke in stating that abortion
of a quick fetus was a "misprision," a term they translated to
mean "misdemeanor." [Footnote
] 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, Â§ 1, a
capital crime, but, in Â§ 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, Â§ 13.
It disappeared, however, together with the death penalty, in 1837,
7 Will. 4 & 1 Vict., c. 85. Â§ 6, and did not
reappear in the Offenses Against the Person Act of 1861, 24 &
25 Vict., c. 100, Â§ 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
,  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.
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,"
"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
By 1840, when Texas had received the common law, [Footnote 32
] only eight American
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
] 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
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, Â§ 230.3, [Footnote 37
] set forth as Appendix B to the
opinion in Doe v. Bolton, post
, p. 205.
It is thus apparent that, at common law, at the time of the
adoption of our Constitution, and throughout the major portion of
the 19th century, abortion was viewed with less disfavor than under
most American statutes currently in effect. Phrasing it another
way, a woman enjoyed a substantially broader right to terminate a
pregnancy than she does in most States today. At least with respect
to the early stage of pregnancy, and very possibly without such a
limitation, the opportunity
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
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
"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
"The second of the agents alluded to is the fact that the
profession themselves are frequently supposed careless of foetal
life.Â .Â .Â ."
"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
and its inherent rights, for civil purposes; while
personally and as criminally affected, it fails to recognize
and to its life as yet denies all protection."
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."
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.
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,"
"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
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
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
In October, 1970, the Executive Board of the APHA
adopted Standards for Abortion Services. These were five in
"a. Rapid and simple abortion referral must be readily available
through state and local public
health departments, medical societies, or other nonprofit
"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
"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
"a. the skill of the physician,"
"b. the environment in which the abortion is performed, and
"c. the duration of pregnancy, as determined by uterine size and
confirmed by menstrual history."
It was said that "a well equipped hospital" offers more
"to cope with unforeseen difficulties than an office or clinic
without such resources.Â .Â .Â .
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.
8. The position of the American Bar Association.
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
Opinion of the Court Conference has appended an enlightening
Prefatory Note. [Footnote
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
] 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
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
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.
] 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.
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
(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
(1969); in the Fourth and Fifth Amendments, Terry v. Ohio
392 U. S. 1
(1968), Katz v. United States
, 389 U. S. 347
(1967), Boyd v. United States
, 116 U. S. 616
see Olmstead v. United States
, 277 U. S. 438
, 478 (1928)
(Brandeis, J., dissenting); in the penumbras of the Bill of Rights,
Griswold v. Connecticut
, 381 U.S. at 484-485; in the Ninth
at 486 (Goldberg, J., concurring); or in
the concept of liberty guaranteed by the first section of the
Fourteenth Amendment, see Meyer v. Nebraska
, 262 U. S. 390
(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
(1937), are included in this guarantee of personal privacy. They
also make it clear that the right has some extension to activities
relating to marriage, Loving v. Virginia
, 388 U. S. 1
, 12 (1967);
procreation, Skinner v. Oklahoma
, 316 U. S. 535
(1942); contraception, Eisenstadt v. Baird
, 405 U.S. at
at 460, 463-465
(WHITE, J., concurring in result); family relationships,
Prince v. Massachusetts
, 321 U. S. 158
(1944); and childrearing and education, Pierce v. Society of
, 268 U.
, 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
On the basis of elements such as these, appellant and some
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
(vaccination); Buck v. Bell
, 274 U. S. 200
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.
(Conn.1972), appeal docketed
, No. 72-56;
Abele v. Markle
, 351 F.
(Conn.1972), appeal docketed
, No. 72-730;
Doe v. Bolton
, 319 F. Supp. 1048 (ND Ga.1970), appeal
decided today, post
, p. 179; Doe v. Scott
, 321 F.
(ND Ill.1971), appeal docketed
, No. 70-105;
Poe v. Menghini
, 339 F.
(Kan.1972); YWCA v. Kuler
, 342 F.
(NJ 1972); Babbitz v. McCann
(ED Wis.1970), appeal dismissed
, 400 U. S. 1
People v. Belous
, 71 Cal. 2d
, 458 P.2d 194 (1969), cert. denied
, 397 U.S. 915
(1970); State v. Barquet
, 262 So. 2d 431
Others have sustained state statutes. Crossen v. Attorney
, 344 F.
(ED Ky.1972), appeal docketed
, No. 72-256;
Rosen v. Louisiana State Board of Medical Examiners
(ED La.1970), appeal docketed
, No. 70-42;
Corkey v. Edwards
, 322 F.
(WDNC 1971), appeal docketed
, No. 71-92;
Steinberg v. Brown
, 321 F.
(ND Ohio 1970); Doe v. Rampton
, No. 71-5666; Cheaney v. State
___ Ind. ___, 285 N.E.2d
(1972); Spears v. State
, 257 So.
(Miss. 1972); State v. Munson
, 86 S.D. 663,
(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
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
, 395 U.
, 627 (1969); Shapiro v. Thompson
, 394 U. S. 618
(1969), Sherbert v. Verner
, 374 U. S. 398
(1963), and that legislative enactments must be narrowly drawn to
express only the legitimate state interests at stake. Griswold
, 381 U.S. at 485; Aptheker v. Secretary of
, 378 U. S.
, 508 (1964); Cantwell v. Connecticut
, 310 U. S. 296
Eisenstadt v. Baird
, 405 U.S. at 460, 463-464 (WHITE,
J., concurring in result).
In the recent abortion cases cited above, courts have recognized
these principles. Those striking down state laws have generally
scrutinized the State's interests in protecting health and
potential life, and have concluded that neither interest justified
broad limitations on the reasons for which a physician and his
pregnant patient might decide that she should have an abortion in
the early stages of pregnancy. Courts sustaining state laws have
held that the State's determinations to protect health or prenatal
life are dominant and constitutionally justifiable.
The District Court held that the appellee failed to meet his
burden of demonstrating that the Texas statute's infringement upon
Roe's rights was necessary to support a compelling state interest,
and that, although the appellee presented "several compelling
justifications for state presence in the area of abortions," the
statutes outstripped these justifications and swept "far beyond any
areas of compelling state interest." 314 F. Supp. at 1222-1223.
Appellant and appellee both contest that holding. Appellant, as has
been indicated, claims an absolute right that bars any state
imposition of criminal penalties in the area. Appellee argues that
the State's determination to recognize and protect prenatal life
from and after conception constitutes a compelling state interest.
As noted above, we do not agree fully with either 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,
for the fetus' right to life would then be guaranteed
specifically by the Amendment. The appellant conceded as much on
reargument. [Footnote 51
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
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,
Â§ 2, cl. 2, and Â§ 3, cl. 3; in the
Apportionment Clause, Art. I, Â§ 2, cl. 3; [Footnote 53
] in the Migration and
Importation provision, Art. I, Â§ 9, cl. 1; in the
Emolument Clause, Art. I, Â§ 9, cl. 8; in the Electors
provisions, Art. II, Â§ 1, cl. 2, and the superseded cl.
3; in the provision outlining qualifications for the office of
President, Art. II, Â§ 1, cl. 5; in the Extradition
provisions, Art. IV, Â§ 2, cl. 2, and the superseded
Fugitive Slave Clause 3; and in the Fifth, Twelfth, and
Twenty-second Amendments, as well as in Â§Â§
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
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.
(WD Pa.1972); Byrn v. New York City Health &
, 31 N.Y.2d 194, 286 N.E.2d 887 (1972),
, No. 72-434; Abele v. Markle
(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
Keeler v. Superior Court
, 2 Cal. 3d 619
470 P.2d 617 (1970); State v. Dickinson
Ohio St.2d 65, 275 N.E.2d 599 (1971). Indeed, our decision in
United States v. Vuitch
, 402 U. S. 62
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
This conclusion, however, does not of itself fully answer the
contentions raised by Texas, and we pass on to other
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.
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
] 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.
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
] 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
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
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.
] Perfection of the
interests involved, again, has generally been contingent upon live
birth. In short, the unborn have never been recognized in the law
as persons in the whole sense.
In view of all this, we do not agree that, by adopting one
theory of life, Texas may override the rights of the pregnant woman
that are at stake. We repeat, however, that the State does have an
important and legitimate interest in preserving and protecting the
health of the pregnant woman, whether she be a resident of the
State or a nonresident who seeks medical consultation and treatment
there, and that it has still another
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
With respect to the State's important and legitimate interest in
the health of the mother, the "compelling" point, in the light of
present medical knowledge, is at approximately the end of the first
trimester. This is so because of the now-established medical fact,
referred to above at 149, that, until the end of the first
trimester mortality in abortion may be less than mortality in
normal childbirth. It follows that, from and after this point, a
State may regulate the abortion procedure to the extent that the
regulation reasonably relates to the preservation and protection of
maternal health. Examples of permissible state regulation in this
area are requirements as to the qualifications of the person who is
to perform the abortion; as to the licensure of that person; as to
the facility in which the procedure is to be performed, that is,
whether it must be a hospital or may be a clinic or some other
place of less-than-hospital status; as to the licensing of the
facility; and the like.
This means, on the other hand, that, for the period of pregnancy
prior to this "compelling" point, the attending physician, in
consultation with his patient, is free to determine, without
regulation by the State, that, in his medical judgment, the
patient's pregnancy should be terminated. If that decision is
reached, the judgment may be effectuated by an abortion free of
interference by the State.
With respect to the State's important and legitimate interest in
potential life, the "compelling" point is at viability. This is so
because the fetus then presumably has the capability of meaningful
life outside the mother's womb. State regulation protective of
fetal life after viability thus has both logical and biological
justifications. If the State is interested in protecting fetal life
after viability, it may go so far as to proscribe abortion
during that period, except when it is necessary to preserve the
life or health of the mother.
Measured against these standards, Art. 1196 of the Texas Penal
Code, in restricting legal abortions to those "procured or
attempted by medical advice for the purpose of saving the life of
the mother," sweeps too broadly. The statute makes no distinction
between abortions performed early in pregnancy and those performed
later, and it limits to a single reason, "saving" the mother's
life, the legal justification for the procedure. The statute,
therefore, cannot survive the constitutional attack made upon it
This conclusion makes it unnecessary for us to consider the
additional challenge to the Texas statute asserted on grounds of
vagueness. See United States v. Vuitch
, 402 U.S. at
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
(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. 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.
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.
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
(1967); Dombrowski v. Pfister
, 380 U. S. 479
are not dealing with a statute that, on its face, appears to
abridge free expression, an area of particular concern under
and refined in Younger v. Harris
U.S. at 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
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
It is so ordered.
[For concurring opinion of MR. CHIEF JUSTICE BURGER, see
, p. 207.]
[For concurring opinion of MR. JUSTICE DOUGLAS, see
, p. 209.]
[For dissenting opinion of MR. JUSTICE WHITE, see post
MR. JUSTICE STEWART, concurring.
In 1963, this Court, in Ferguson v. Skrupa
, 372 U. S. 726
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
"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
at 730. [Footnote 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
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
] So it was clear
to me then, and it is equally clear to me now, that the
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 3
] As so understood, Griswold
as one in a long line of pre-Skrupa
cases decided under
the doctrine of substantive due process, and I now accept it as
"In a Constitution for a free people, there can be no doubt that
the meaning of liberty' must be broad indeed." Board of
Regents v. Roth, 408 U. S. 564, 572. The
Constitution nowhere mentions a specific right of personal choice
in matters of marriage and family life, but the "liberty" protected
by the Due Process Clause of the Fourteenth Amendment covers more
than those freedoms explicitly named in the Bill of Rights. See
Schware v. Board of Bar Examiners, 353 U. S. 232, 238-239;
Pierce v. Society of Sisters, 268 U. S. 510, 534-535;
Meyer v. Nebraska, 262 U. S. 390, 399-400.
Cf. Shapiro v. Thompson, 394 U. S. 618, 629-630;
United States v. Guest, 383 U. S. 745, 757-758;
Carrington v. Rash, 380 U. S. 89, 96;
Aptheker v. Secretary of State, 378 U. S. 500, 505;
Kent v. Dulles, 357 U. S. 116, 127;
Bolling v. Sharpe, 347 U. S. 497, 499-500;
Truax v. Raich, 239 U. S. 33, 41.
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
.Â .Â . 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
(opinion dissenting from dismissal of appeal) (citations omitted).
In the words of Mr. Justice Frankfurter,
"Great concepts like .Â .Â . 'liberty'
.Â .Â . were purposely left to gather meaning
from experience. For they relate to the whole domain of social and
economic fact, and the statesmen who founded this Nation knew too
well that only a stagnant society remains unchanged."
National Mutual Ins. Co. v. Tidewater Transfer Co.
337 U. S. 582
646 (dissenting opinion).
Several decisions of this Court make clear that freedom of
personal choice in matters of marriage and family life is one of
the liberties protected by the Due Process Clause of the Fourteenth
Amendment. Loving v. Virginia
, 388 U. S. 1
Griswold v. Connecticut, supra; Pierce v. Society of Sisters,
supra; Meyer v. Nebraska, supra. See also Prince v.
, 321 U. S. 158
Skinner v. Oklahoma
, 316 U. S. 535
, 541. As
recently as last Term, in Eisenstadt v. Baird
, 405 U. S. 438
, 453, we
"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
Abele v. Markle
, 351 F.
, 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
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.
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
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
Sierra, Club v. Morton
, 405 U. S. 727
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
impose virtually no restrictions on medical abortions performed
during the first trimester of pregnancy. In deciding such a
hypothetical lawsuit, the Court departs from the longstanding
admonition that it should never "formulate a rule of constitutional
law broader than is required by the precise facts to which it is to
be applied." Liverpool, New York & Philadelphia S.S. Co. v.
Commissioners of Emigration
, 113 U. S. 33
, 39 (1885).
See also Ashwander v. TVA
, 297 U. S. 288
, 345 (1936)
(Brandeis, J., concurring).
Even if there were a plaintiff in this case capable of
litigating the issue which the Court decides, I would reach a
conclusion opposite to that reached by the Court. I have difficulty
in concluding, as the Court does, that the right of "privacy" is
involved in this case. Texas, by the statute here challenged, bars
the performance of a medical abortion by a licensed physician on a
plaintiff such as Roe. A transaction resulting in an operation such
as this is not "private" in the ordinary usage of that word. Nor is
the "privacy" that the Court finds here even a distant relative of
the freedom from searches and seizures protected by the Fourth
Amendment to the Constitution, which the Court has referred to as
embodying a right to privacy. Katz v. United States
389 U. S. 347
If the Court means by the term "privacy" no more than that the
claim of a person to be free from unwanted state regulation of
consensual transactions may be a form of "liberty" protected by the
Fourteenth Amendment, there is no doubt that similar claims have
been upheld in our earlier decisions on the basis of that liberty.
I agree with the statement of MR. JUSTICE STEWART in his concurring
opinion that the "liberty," against deprivation of which without
due process the Fourteenth
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
(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
But the Court's sweeping invalidation
of any restrictions on abortion during the first trimester is
impossible to justify under that standard, and the conscious
weighing of competing factors that the Court's opinion apparently
substitutes for the established test is far more appropriate to a
legislative judgment than to a judicial one.
The Court eschews the history of the Fourteenth Amendment in its
reliance on the "compelling state interest" test. See Weber v.
Aetna Casualty & Surety Co.
, 406 U. S. 164
, 179 (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
, 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
The fact that a majority of the States reflecting, after all,
the majority sentiment in those States, have had restrictions on
abortions for at least a century is a strong indication, it seems
to me, that the asserted right to an abortion is not "so rooted in
the traditions and conscience of our people as to be ranked as
fundamental," Snyder v. Massachusetts
, 291 U. S. 97
, 105 (1934).
Even today, when society's views on abortion are changing, the very
existence of the debate is evidence that the "right" to an abortion
is not so universally accepted as the appellant would have us
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,
Â§Â§ 14, 16. By the time of the adoption of
Amendment in 1868, there were at least 36 laws enacted by state
or territorial legislatures limiting abortion. [Footnote 1
] While many States have amended
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."
There apparently was no question concerning the validity of this
provision or of any of the other state statutes when the Fourteenth
Amendment was adopted. The only conclusion possible from this
history is that the drafters did not intend to have the Fourteenth
Amendment withdraw from the States the power to legislate with
respect to this matter.
Even if one were to agree that the case that the Court decides
were here, and that the enunciation of the substantive
constitutional law in the Court's opinion were proper, the actual
disposition of the case by the Court is still difficult to justify.
The Texas statute is struck down in toto
, even though the
Court apparently concedes that, at later periods of pregnancy Texas
might impose these 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
Street v. New York
, 394 U. S. 576
For all of the foregoing reasons, I respectfully dissent.
"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 foregoing Articles, together with Art. 1195, compose Chapter
9 of Title 15 of the Penal Code. Article 1195, not attacked here,
"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
Ariz.Rev.Stat.Ann. Â§ 13-211 (1956); Conn.Pub. Act
No. 1 (May 1972 special session) (in 4 Conn.Leg.Serv. 677 (1972)),
and Conn.Gen.Stat.Rev. Â§Â§ 53-29, 53-30
(1968) (or unborn child); Idaho Code Â§ 18-601 (1948);
Ill.Rev.Stat., c. 38, Â§ 23-1 (1971); Ind.Code
Â§ 35-1-58-1 (1971); Iowa Code Â§ 701.1
(1971); Ky.Rev.Stat. Â§ 436.020 (1962); La.Rev.Stat.
Â§ 37: 1285(6) (1964) (loss of medical license) (but
Â§ 14:87 (Supp. 1972) containing no exception
for the life of the mother under the criminal statute);
Me.Rev.Stat. Ann, Tit. 17, Â§ 51 (1964); Mass.Gen.Laws
Ann., c. 272, Â§ 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
(1969)); Mich.Comp.Laws Â§ 750.14 (1948);
Minn.Stat. Â§ 617.18 (1971); Mo.Rev.Stat. Â§
559.100 (1969); Mont.Rev.Codes Ann. Â§ 94-401 (1969);
Neb.Rev.Stat. Â§ 28-405 (1964); Nev.Rev.Stat.
Â§ 200.220 (1967); N.H.Rev.Stat.Ann. Â§ 585:
13 (1955); N.J.Stat.Ann. Â§ 2A:87-1 (1969) ("without
lawful justification"); N.D.Cent.Code Â§Â§
12-25-01, 12-25-02 (1960); Ohio Rev.Code Ann. Â§ 2901.16
(1953); Okla.Stat.Ann., Tit. 21, Â§ 861 (1972-1973
Supp.); Pa.Stat.Ann., Tit. 18, Â§Â§ 4718,
4719 (1963) ("unlawful"); R.I.Gen.Laws Ann. Â§ 11-3-1
(1969); S.D.Comp.Laws Ann. Â§ 22-17-1 (1967); Tenn.Code
Ann. Â§Â§ 39-301, 39-302 (1956); Utah Code
Ann. Â§Â§ 76-2-1, 76-2-2 (1953);
Vt.Stat.Ann., Tit. 13, Â§ 101 (1958); W.Va.Code Ann.
Â§ 61-2-8 (1966); Wis.Stat. Â§ 940.04 (1969);
Wyo.Stat.Ann. Â§Â§ 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
, 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.
, 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,
, 166-167 (1962). Cf. United States v.
, 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
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 .Â .Â . [and] the
class of people who are .Â .Â .
patients.Â .Â .Â ." 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
Edelstein 12; Ricci 113-114, 118-119; Noonan 5.
at 12, 15-18.
at 18; Lader 76.
Dorand's Illustrated Medical Dictionary 1261 (24th ed.1965).
E. Coke, Institutes III *50; 1 W. Hawkins, Pleas of the Crown,
c. 31, Â§ 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
, 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
, not yet endowed with a soul, and embryo
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
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,
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 126.96.36.199
to 188.8.131.52, 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
For discussions of the canon law treatment, see
I, pp. 411-412; Noonan 20-26; Quay 426-430; see also
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
2 Fleta 661 (Book 1, c. 23) (Selden Society
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
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, Â§
1, referred to in the text, infra
at 136, states that "no
adequate means have been hitherto provided for the prevention and
punishment of such offenses."
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.
, 31 Ala. 45, 51 (1857); Mitchell v.
, 78 Ky. 204, 210 (1879); Eggart v.
, 40 Fla. 527, 532, 25 So. 144, 145 (1898); State v.
, 7 Idaho 599, 606, 64 P. 1014, 1016 (1901); Edwards
, 79 Neb. 251, 252, 112 N.W. 611, 612 (1907); Gray
, 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.
, 49 N.Y. 86, 88 (1872); Lamb v. State
, 67 Md.
524, 533, 10 A. 208 (1887).
Conn.Stat., Tit. 20, Â§ 14 (1821).
Conn.Pub. Acts, c. 71, Â§ 1 (1860).
N.Y.Rev.Stat., pt. 4, c. 1, Tit. 2, Art. 1, Â§ 9, p.
661, and Tit. 6, Â§ 21, p. 694 (1829).
Act of Jan. 20, 1840, Â§ 1, set forth in 2 H. Gammel,
Laws of Texas 177-178 (1898); see Grigsby v. Reib
Tex. 597, 600, 153 S.W. 1124, 1125 (1913).
The early statutes are discussed in Quay 435-438. See
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, Â§ 9 (1958); D.C.Code Ann.
Â§ 22-201 (1967).
Mass.Gen.Laws Ann., c. 272, Â§ 19 (1970);
N.J.Stat.Ann. Â§ 2A: 87-1 (1969); Pa.Stat.Ann., Tit. 18,
Â§Â§ 4718, 4719 (1963).
Fourteen States have adopted some form of the ALI statute.
Ark.Stat.Ann. Â§Â§ 41-303 to
41-310 (Supp. 1971); Calif.Health & Safety Code
Â§Â§ 25950-25955.5 (Supp. 1972);
Colo.Rev.Stat.Ann. Â§Â§ 40-2-50 to 40-2-53
(Cum.Supp. 1967); Del.Code Ann., Tit. 24,
Â§Â§ 1790-1793 (Supp. 1972); Florida Law of
Apr. 13, 1972, c. 72-196, 1972 Fla.Sess.Law Serv., pp. 380-382;
Ga.Code Â§Â§ 26-1201 to 26-1203 (1972);
Kan.Stat.Ann. Â§ 21-3407 (Supp. 1971); Md.Ann.Code, Art.
43, Â§Â§ 137-139 (1971); Miss.Code Ann.
Â§ 2223 (Supp. 1972); N.M.Stat.Ann.
Â§Â§ 40A-5-1 to 40A-5-3 (1972); N.C.Gen.Stat.
Â§ 14-45.1 (Supp. 1971); Ore.Rev.Stat.
Â§Â§ 435.405 to 435.495 (1971); S.C.Code Ann.
Â§Â§ 16-82 to 16-89 (1962 and Supp. 1971);
Va.Code Ann. Â§Â§ 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. Â§ 11.15.060 (1970); Haw.Rev.Stat.
Â§ 453-16 (Supp. 1971); N.Y.Penal Code Â§
125.05, subd. 3 (Supp. 1972-1973); Wash.Rev.Code
Â§Â§ 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
"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
"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
"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
"(b) An abortion may be performed in this state only if it is
"(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
"(2) within  weeks after the commencement of the pregnancy
[or after  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: "
"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.
, 1074 (N.J.1972); Abele v. Markle
, 805-806 (Conn.1972) (Newman, J., concurring in
result), appeal docketed
, No. 72-56; Walsingham v.
, 250 So. 2d
, 863 (Ervin, J., concurring) (Fla.1971); State v.
, 43 N.J.L. 86, 90 (1881); Means II 381-382.
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.
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.
(Conn.1972), appeal docketed
, No. 72-56.
discussions in Means I and Means II.
See, e.g., State v. Murphy
, 27 N.J.L. 112, 114
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.
, 84 Tex.Cr.R. 635, 209 S.W. 661 (1919); Thompson v.
(Ct.Crim.App. Tex.1971), appeal docketed
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 Â§ 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
, 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?
the Wisconsin abortion statute, defining "unborn
child" to mean "a human being from the time of conception until it
is born alive," Wis.Stat. Â§ 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."
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
Amicus Brief for the American Ethical Union et al.
the position of the National Council of Churches and of other
Hellman & J. Pritchard, Williams Obstetrics 493 (14th
ed.1971); Dorland's Illustrated Medical Dictionary 1689 (24th
Hellman & Pritchard, supra
59, at 493.
For discussions of the development of the Roman Catholic
D. Callahan, Abortion: Law, Choice, and
Morality 409-447 (1970); Noonan 1.
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).
cases cited in Prosser, supra
63, at 336-338; Annotation, Action for
Death of Unborn Child, 15 A.L.R.3d 992 (1967).
, n. 63
at 338; Note, The Law and the Unborn Child: The Legal
and Logical Inconsistencies, 46 Notre Dame Law. 349, 354-360
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
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.
Â§ 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.
Only Mr. Justice Harlan failed to join the Court's opinion, 372
U.S. at 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
This was also clear to Mr. Justice Black, 381 U.S. at 507
(dissenting opinion); to Mr. Justice Harlan, 381 U.S. at 499
(opinion concurring in the judgment); and to MR. JUSTICE WHITE, 381
U.S. at 502 (opinion concurring in the judgment). See also
Mr. Justice Harlan's thorough and thoughtful opinion dissenting
from dismissal of the appeal in Poe v. Ullman
, 367 U. S. 497
Jurisdictions having enacted abortion laws prior to the adoption
of the Fourteenth Amendment in 1868:
1. Alabama -- Ala. Acts, c. 6, Â§ 2 (1840).
2. Arizona -- Howell Code, c. 10, Â§ 45 (1865).
3. Arkansas -- Ark.Rev.Stat., c. 44, div. III, Art. II,
Â§ 6 (1838).
4. California -- Cal.Sess.Laws, c. 99, Â§ 45, p. 233
5. Colorado (Terr.) -- Colo. Gen.Laws of Terr. of Colo. 1st
Sess., Â§ 42, pp 296-297 (1861).
6. Connecticut -- Conn.Stat., Tit. 20,
Â§Â§ 14, 16 (1821). By 1868, this statute had
been replaced by another abortion law. Conn.Pub. Acts, c. 71,
Â§Â§ 1, 2, p. 65 (1860).
7. Florida -- Fla.Acts 1st Sess., c. 1637, subc. 3,
Â§Â§ 10, 11, subc. 8,
Â§Â§ 9, 10, 11 (1868), as amended, now
Fla.Stat.Ann. Â§Â§ 782.09, 782.10, 797.01,
797.02, 782.16 (1965).
8. Georgia Pen.Code, 4th Div., Â§ 20 (1833).
9. Kingdom of Hawaii -- Hawaii Pen.Code, c. 12,
Â§Â§ 1, 2, 3 (1850).
10. Idaho (Terr.) -- Idaho (Terr.) Laws, Crimes and Punishments
Â§Â§ 33, 34, 42, pp. 441, 443 (1863).
11. Illinois -- Ill.Rev. Criminal Code
Â§Â§ 40, 41, 46, pp. 130, 131 (1827). By
1868, this statute had been replaced by a subsequent enactment.
Ill.Pub.Laws Â§Â§ 1, 2, 3, p. 89 (1867).
12. Indiana -- Ind.Rev.Stat. Â§Â§ 1, 3, p.
224 (1838). By 1868, this statute had been superseded by a
subsequent enactment. Ind.Laws, c. LXXXI, Â§ 2
13. Iowa (Terr.) -- Iowa (Terr.) Stat., 1st Legis., 1st Sess.,
Â§ 18, p. 145 (1838). By 1868, this statute had been
superseded by a subsequent enactment. Iowa (Terr.) Rev.Stat., c.
49, Â§Â§ 10, 13 (1843).
14. Kansas (Terr.) -- Kan. (Terr.) Stat., c. 48,
Â§Â§ 9, 10, 39 (1855). By 1868, this statute
had been superseded by a subsequent enactment. Kan. (Terr.) Laws,
c. 28, Â§Â§ 9, 10, 37 (1859).
15. Louisiana -- La.Rev.Stat., Crimes and Offenses Â§
24, p. 138 (1856).
16. Maine -- Me.Rev.Stat., c. 160, Â§Â§
11, 12, 13, 14 (1840).
17. Maryland -- Md.Laws, c. 179, Â§ 2, p. 315
18. Massachusetts -- Mass. Acts & Resolves, c. 27
19. Michigan -- Mich.Rev.Stat., c. 153,
Â§Â§ 32, 33, 34, p. 662 (1846).
20. Minnesota (Terr.) -- Minn. (Terr.) Rev.Stat., c. 100,
Â§ 10, 11, p. 493 (1851).
21. Mississippi -- Miss.Code, c. 64, Â§Â§
8, 9, p. 958 (1848).
22. Missouri -- Mo.Rev.Stat., Art. II,
Â§Â§ 9, 10, 36, pp. 168, 172 (1835).
23. Montana (Terr.) -- Mont. (Terr.) Laws, Criminal Practice
Acts Â§ 41, p. 184 (1864).
24. Nevada (Terr.) -- Nev. (Terr.) Laws, c. 28, Â§
42, p. 63 (1861).
25. New Hampshire -- N.H.Laws, c. 743, Â§ 1, p. 708
26. New Jersey -- N.J.Laws, p. 266 (1849).
27. New York -- N.Y.Rev.Stat., pt. 4, c. 1, Tit 2,
Â§Â§ 8, 9, pp. 12-13 (1828). By 1868, this
statute had been superseded. N.Y.Laws, c. 260,
Â§Â§ 1, pp. 285-286 (1845); N.Y.Laws, c. 22,
Â§ 1, p. 19 (1846).
28. Ohio -- Ohio Gen.Stat. Â§Â§ 111(1),
112(2), p. 252 (1841).
29. Oregon -- Ore. Gen.Laws, Crim.Code, c. 43, Â§
509, p. 528 (1845-1864).
30. Pennsylvania -- Pa.Laws No. 374, Â§Â§
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, Â§ 1 (1846). By 1868,
this statute had been amended. Vt.Acts No. 57,
Â§Â§ 1, 3 (1867).
33. Virginia -- Va.Acts, Tit. II, c. 3, Â§ 9, p. 96
34. Washington (Terr.) -- Wash. (Terr.) Stats., c. II,
Â§Â§ 37, 38, p. 81 (1854).
35. West Virginia -- See
Va. Acts., Tit. II, c. 3,
Â§ 9, p. 96 (1848); W.Va.Const., Art. XI, par. 8
36. Wisconsin -- Wis.Rev.Stat., c. 133,
Â§Â§ 10, 11 (1849). By 1868, this statute had
been superseded. Wis.Rev.Stat., c. 164, Â§Â§
10, 11; c. 169, Â§Â§ 58, 59 (1858).
Abortion laws in effect in 1868 and still applicable as of
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).