Summary of Roe v. Wade
Roe v. Wade
410 U.S. 113 (1973)
The central court decision that created current abortion law in the U.S. is Roe
v. Wade. In this
1973 decision, the Supreme Court ruled that women had a constitutional right to
that this right was based on an implied right to personal privacy emanating from
the Ninth and
In Roe v. Wade the Court said that a fetus is not a person but "potential life,"
and thus does not
have constitutional rights of its own. The Court also set up a framework in
which the woman's
right to abortion and the state's right to protect potential life shift: during
the first trimester of
pregnancy, a woman's privacy right is strongest and the state may not regulate
abortion for any
reason; during the second trimester, the state may regulate abortion only to
protect the health of
the woman; during the third trimester, the state may regulate or prohibit
abortion to promote its
interest in the potential life of the fetus, except where abortion is necessary
to preserve the
woman's life or health.
ROE VS. WADE (1973)
U.S. Supreme Court
ROE v. WADE, 410 U.S. 113 (1973)
410 U.S. 113
ROE ET AL. v. WADE, DISTRICT ATTORNEY OF DALLAS COUNTY
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
Argued December 13, 1971 Reargued October 11, 1972
Decided January 22, 1973
A pregnant single woman (Roe) brought a class action challenging the
constitutionality of the Texas criminal abortion laws, which proscribe procuring
or attempting an abortion except on medical advice for the purpose of saving the
mother's life. A licensed physician (Hallford), who had two state abortion
prosecutions pending against him, was permitted to intervene. A childless
married couple (the Does), the wife not being pregnant, separately attacked the
laws, basing alleged injury on the future possibilities of contraceptive
failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's
health. A three-judge District Court, which consolidated the actions, held that
Roe and Hallford, and members of their classes, had standing to sue and
presented justiciable controversies. Ruling that declaratory, though not
injunctive, relief was warranted, the court declared the abortion statutes void
as vague and overbroadly infringing those plaintiffs' Ninth and Fourteenth
Amendment rights. The court ruled the Does' complaint not justiciable.
Appellants directly appealed to this Court on the injunctive rulings, and
appellee cross-appealed from the District Court's grant of declaratory relief to
Roe and Hallford. Held:
1. While 28 U.S.C. 1253 authorizes no direct appeal to this Court from the grant
or denial of declaratory relief alone, review is not foreclosed when the case is
properly before the Court on appeal from specific denial of injunctive relief
and the arguments as to both injunctive and declaratory relief are necessarily
identical. P. 123.
2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129.
(a) Contrary to appellee's contention, the natural termination of Roe's
pregnancy did not moot her suit. Litigation involving pregnancy, which is
"capable of repetition, yet evading review," is an exception to the usual
federal rule that an actual controversy [410 U.S. 113, 114] must exist at review
stages and not simply when the action is initiated. Pp. 124-125.
(b) The District Court correctly refused injunctive, but erred in granting
declaratory, relief to Hallford, who alleged no federally protected right not
assertable as a defense against the good-faith state prosecutions pending
against him. Samuels v. Mackell, 401 U.S. 66 . Pp. 125-127.
(c) The Does' complaint, based as it is on contingencies, any one or more of
which may not occur, is too speculative to present an actual case or
controversy. Pp. 127-129.
3. State criminal abortion laws, like those involved here, that except from
criminality only a life-saving procedure on the mother's behalf without regard
to the stage of her pregnancy and other interests involved violate the Due
Process Clause of the Fourteenth Amendment, which protects against state action
the right to privacy, including a woman's qualified right to terminate her
pregnancy. Though the State cannot override that right, it has legitimate
interests in protecting both the pregnant woman's health and the potentiality of
human life, each of which interests grows and reaches a "compelling" point at
various stages of the woman's approach to term. Pp. 147-164.
(a) For the stage prior to approximately the end of the first trimester, the
abortion decision and its effectuation must be left to the medical judgment of
the pregnant woman's attending physician. Pp. 163, 164.
(b) For the stage subsequent to approximately the end of the first trimester,
the State, in promoting its interest in the health of the mother, may, if it
chooses, regulate the abortion procedure in ways that are reasonably related to
maternal health. Pp. 163, 164.
(c) For the stage subsequent to viability the State, in promoting its interest
in the potentiality of human life, may, if it chooses, regulate, and even
proscribe, abortion except where necessary, in appropriate medical judgment, for
the preservation of the life or health of the mother. Pp. 163-164; 164-165.
4. The State may define the term "physician" to mean only a physician currently
licensed by the State, and may proscribe any abortion by a person who is not a
physician as so defined. P. 165.
5. It is unnecessary to decide the injunctive relief issue since the Texas
authorities will doubtless fully recognize the Court's ruling [410 U.S. 113,
115] that the Texas criminal abortion statutes are unconstitutional. P. 166.
314 F. Supp. 1217, affirmed in part and reversed in part.
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and
DOUGLAS, BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. BURGER, C. J.,
post, p. 207, DOUGLAS, J., post, p. 209, and STEWART, J., post, p. 167, filed
concurring opinions. WHITE, J., filed a dissenting opinion, in which REHNQUIST,
J., joined, post, p. 221. REHNQUIST, J., filed a dissenting opinion, post, p.
Sarah Weddington reargued the cause for appellants. With her on the briefs were
Roy Lucas, Fred Bruner, Roy L. Merrill, Jr., and Norman Dorsen.
Robert C. Flowers, Assistant Attorney General of Texas, argued the cause for
appellee on the reargument. Jay Floyd, Assistant Attorney General, argued the
cause for appellee on the original argument. With them on the brief were
Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney
General, Alfred Walker, Executive Assistant Attorney General, Henry Wade, and
John B. Tolle. * [410 U.S. 113, 116]
[ Footnote * ] Briefs of amici curiae were filed by Gary K. Nelson, Attorney
General of Arizona, Robert K. Killian, Attorney General of Connecticut, Ed W.
Hancock, Attorney General of Kentucky, Clarence A. H. Meyer, Attorney General of
Nebraska, and Vernon B. Romney, Attorney General of Utah; by Joseph P.
Witherspoon, Jr., for the Association of Texas Diocesan Attorneys; by Charles E.
Rice for Americans United for Life; by Eugene J. McMahon for Women for the
Unborn et al.; by Carol Ryan for the American College of Obstetricians and
Gynecologists et al.; by Dennis J. Horan, Jerome A. Frazel, Jr., Thomas M.
Crisham, and Dolores V. Horan for Certain Physicians, Professors and Fellows of
the American College of Obstetrics and Gynecology; by Harriet F. Pilpel, Nancy
F. Wechsler, and Frederic S. Nathan for Planned Parenthood Federation of
America, Inc., et al.; by Alan F. Charles for the National Legal Program on
Health Problems of the Poor et al.; by Marttie L. Thompson for State Communities
Aid Assn.; by [410 U.S. 113, 116] Alfred L. Scanlan, Martin J. Flynn, and Robert
M. Byrn for the National Right to Life Committee; by Helen L. Buttenwieser for
the American Ethical Union et al.; by Norma G. Zarky for the American
Association of University Women et al.; by Nancy Stearns for New Women Lawyers
et al.; by the California Committee to Legalize Abortion et al.; and by Robert
E. Dunne for Robert L. Sassone.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p.
179, present constitutional challenges to state criminal abortion legislation.
The Texas statutes under attack here are typical of those that have been in
effect in many States for approximately a century. The Georgia statutes, in
contrast, have a modern cast and are a legislative product that, to an extent at
least, obviously reflects the influences of recent attitudinal change, of
advancing medical knowledge and techniques, and of new thinking about an old
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
In addition, population growth, pollution, poverty, and racial overtones tend to
complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional measurement, free
of emotion and of predilection. We seek earnestly to do this, and, because we
do, we [410 U.S. 113, 117] have inquired into, and in this opinion place some
emphasis upon, medical and medical-legal history and what that history reveals
about man's attitudes toward the abortion procedure over the centuries. We bear
in mind, too, Mr. Justice Holmes' admonition in his now-vindicated dissent in
Lochner v. New York, 198 U.S. 45, 76 (1905):
"[The Constitution] is made for people of fundamentally differing views, and the
accident of our finding certain opinions natural and familiar or novel and even
shocking ought not to conclude our judgment upon the question whether statutes
embodying them conflict with the Constitution of the United States."
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the
State's Penal Code. 1 These make it a crime to "procure an abortion," as therein
[410 U.S. 113, 118] defined, or to attempt one, except with respect to "an
abortion procured or attempted by medical advice for the purpose of saving the
life of the mother." Similar statutes are in existence in a majority of the
States. 2 [410 U.S. 113, 119]
Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49,
1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon modified
into language that has remained substantially unchanged to the present time. See
Texas Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal, Laws of Texas, Arts.
2192-2197 (1866); Texas Rev. Stat., c. 8, Arts. 536-541 (1879); Texas Rev. Crim.
Stat., Arts. 1071-1076 (1911). The final article in each of these compilations
provided the same exception, as does the present Article 1196, for an abortion
by "medical advice for the purpose of saving the life of the mother." 3 [410
U.S. 113, 120]
Jane Roe, 4 a single woman who was residing in Dallas County, Texas, instituted
this federal action in March 1970 against the District Attorney of the county.
She sought a declaratory judgment that the Texas criminal abortion statutes were
unconstitutional on their face, and an injunction restraining the defendant from
enforcing the statutes.
Roe alleged that she was unmarried and pregnant; that she wished to terminate
her pregnancy by an abortion "performed by a competent, licensed physician,
under safe, clinical conditions"; that she was unable to get a "legal" abortion
in Texas because her life did not appear to be threatened by the continuation of
her pregnancy; and that she could not afford to travel to another jurisdiction
in order to secure a legal abortion under safe conditions. She claimed that the
Texas statutes were unconstitutionally vague and that they abridged her right of
personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth
Amendments. By an amendment to her complaint Roe purported to sue "on behalf of
herself and all other women" similarly situated.
James Hubert Hallford, a licensed physician, sought and was granted leave to
intervene in Roe's action. In his complaint he alleged that he had been arrested
previously for violations of the Texas abortion statutes and [410 U.S. 113, 121]
that two such prosecutions were pending against him. He described conditions of
patients who came to him seeking abortions, and he claimed that for many cases
he, as a physician, was unable to determine whether they fell within or outside
the exception recognized by Article 1196. He alleged that, as a consequence, the
statutes were vague and uncertain, in violation of the Fourteenth Amendment, and
that they violated his own and his patients' rights to privacy in the
doctor-patient relationship and his own right to practice medicine, rights he
claimed were guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth
John and Mary Doe, 5 a married couple, filed a companion complaint to that of
Roe. They also named the District Attorney as defendant, claimed like
constitutional deprivations, and sought declaratory and injunctive relief. The
Does alleged that they were a childless couple; that Mrs. Doe was suffering from
a "neural-chemical" disorder; that her physician had "advised her to avoid
pregnancy until such time as her condition has materially improved" (although a
pregnancy at the present time would not present "a serious risk" to her life);
that, pursuant to medical advice, she had discontinued use of birth control
pills; and that if she should become pregnant, she would want to terminate the
pregnancy by an abortion performed by a competent, licensed physician under
safe, clinical conditions. By an amendment to their complaint, the Does
purported to sue "on behalf of themselves and all couples similarly situated."
The two actions were consolidated and heard together by a duly convened
three-judge district court. The suits thus presented the situations of the
pregnant single woman, the childless couple, with the wife not pregnant, [410
U.S. 113, 122] and the licensed practicing physician, all joining in the attack
on the Texas criminal abortion statutes. Upon the filing of affidavits, motions
were made for dismissal and for summary judgment. The court held that Roe and
members of her class, and Dr. Hallford, had standing to sue and presented
justiciable controversies, but that the Does had failed to allege facts
sufficient to state a present controversy and did not have standing. It
concluded that, with respect to the requests for a declaratory judgment,
abstention was not warranted. On the merits, the District Court held that the
"fundamental right of single women and married persons to choose whether to have
children is protected by the Ninth Amendment, through the Fourteenth Amendment,"
and that the Texas criminal abortion statutes were void on their face because
they were both unconstitutionally vague and constituted an overbroad
infringement of the plaintiffs' Ninth Amendment rights. The court then held that
abstention was warranted with respect to the requests for an injunction. It
therefore dismissed the Does' complaint, declared the abortion statutes void,
and dismissed the application for injunctive relief. 314 F. Supp. 1217, 1225 (ND
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C.
1253, have appealed to this Court from that part of the District Court's
judgment denying the injunction. The defendant District Attorney has purported
to cross-appeal, pursuant to the same statute, from the court's grant of
declaratory relief to Roe and Hallford. Both sides also have taken protective
appeals to the United States Court of Appeals for the Fifth Circuit. That court
ordered the appeals held in abeyance pending decision here. We postponed
decision on jurisdiction to the hearing on the merits. 402 U.S. 941 (1971). [410
U.S. 113, 123]
It might have been preferable if the defendant, pursuant to our Rule 20, had
presented to us a petition for certiorari before judgment in the Court of
Appeals with respect to the granting of the plaintiffs' prayer for declaratory
relief. Our decisions in Mitchell v. Donovan, 398 U.S. 427 (1970), and Gunn v.
University Committee, 399 U.S. 383 (1970), are to the effect that 1253 does not
authorize an appeal to this Court from the grant or denial of declaratory relief
alone. We conclude, nevertheless, that those decisions do not foreclose our
review of both the injunctive and the declaratory aspects of a case of this kind
when it is properly here, as this one is, on appeal under 1253 from specific
denial of injunctive relief, and the arguments as to both aspects are
necessarily identical. See Carter v. Jury Comm'n, 396 U.S. 320 (1970); Florida
Lime Growers v. Jacobsen, 362 U.S. 73, 80 -81 (1960). It would be destructive of
time and energy for all concerned were we to rule otherwise. Cf. Doe v. Bolton,
post, p. 179.
We are next confronted with issues of justiciability, standing, and abstention.
Have Roe and the Does established that "personal stake in the outcome of the
controversy," Baker v. Carr, 369 U.S. 186, 204 (1962), that insures that "the
dispute sought to be adjudicated will be presented in an adversary context and
in a form historically viewed as capable of judicial resolution," Flast v.
Cohen, 392 U.S. 83, 101 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732
(1972)? And what effect did the pendency of criminal abortion charges against
Dr. Hallford in state court have upon the propriety of the federal court's
granting relief to him as a plaintiff-intervenor? [410 U.S. 113, 124]
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
Viewing Roe's case as of the time of its filing and thereafter until as late as
May, there can be little dispute that it then presented a case or controversy
and that, wholly apart from the class aspects, she, as a pregnant single woman
thwarted by the Texas criminal abortion laws, had standing to challenge those
statutes. Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971); Crossen v.
Breckenridge, 446 F.2d 833, 838-839 (CA6 1971); Poe v. Menghini, 339 F. Supp.
986, 990-991 (Kan. 1972). See Truax v. Raich, 239 U.S. 33 (1915). Indeed, we do
not read the appellee's brief as really asserting anything to the contrary. The
"logical nexus between the status asserted and the claim sought to be
adjudicated," Flast v. Cohen, 392 U.S., at 102 , and the necessary degree of
contentiousness, Golden v. Zwickler, 394 U.S. 103 (1969), are both present.
The appellee notes, however, that the record does not disclose that Roe was
pregnant at the time of the District Court hearing on May 22, 1970, 6 or on the
following June 17 when the court's opinion and judgment were filed. And he
suggests that Roe's case must now be moot because she and all other members of
her class are no longer subject to any 1970 pregnancy. [410 U.S. 113, 125]
The usual rule in federal cases is that an actual controversy must exist at
stages of appellate or certiorari review, and not simply at the date the action
is initiated. United States v. Munsingwear, Inc., 340 U.S. 36 (1950); Golden v.
Zwickler, supra; SEC v. Medical Committee for Human Rights, 404 U.S. 403 (1972).
But when, as here, pregnancy is a significant fact in the litigation, the normal
266-day human gestation period is so short that the pregnancy will come to term
before the usual appellate process is complete. If that termination makes a case
moot, pregnancy litigation seldom will survive much beyond the trial stage, and
appellate review will be effectively denied. Our law should not be that rigid.
Pregnancy often comes more than once to the same woman, and in the general
population, if man is to survive, it will always be with us. Pregnancy provides
a classic justification for a conclusion of nonmootness. It truly could be
"capable of repetition, yet evading review." Southern Pacific Terminal Co. v.
ICC, 219 U.S. 498, 515 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816 (1969);
Carroll v. Princess Anne, 393 U.S. 175, 178 -179 (1968); United States v. W. T.
Grant Co., 345 U.S. 629, 632 -633 (1953).
We, therefore, agree with the District Court that Jane Roe had standing to
undertake this litigation, that she presented a justiciable controversy, and
that the termination of her 1970 pregnancy has not rendered her case moot.
B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation
as a plaintiff-intervenor, alleging in his complaint that he:
"[I]n the past has been arrested for violating the Texas Abortion Laws and at
the present time stands charged by indictment with violating said laws in the
Criminal District Court of Dallas County, Texas to-wit: (1) The State of Texas
vs. [410 U.S. 113, 126] James H. Hallford, No. C-69-5307-IH, and (2) The State
of Texas vs. James H. Hallford, No. C-69-2524-H. In both cases the defendant is
charged with abortion . . . ."
In his application for leave to intervene, the doctor made like representations
as to the abortion charges pending in the state court. These representations
were also repeated in the affidavit he executed and filed in support of his
motion for summary judgment.
Dr. Hallford is, therefore, in the position of seeking, in a federal court,
declaratory and injunctive relief with respect to the same statutes under which
he stands charged in criminal prosecutions simultaneously pending in state
court. Although he stated that he has been arrested in the past for violating
the State's abortion laws, he makes no allegation of any substantial and
immediate threat to any federally protected right that cannot be asserted in his
defense against the state prosecutions. Neither is there any allegation of
harassment or bad-faith prosecution. In order to escape the rule articulated in
the cases cited in the next paragraph of this opinion that, absent harassment
and bad faith, a defendant in a pending state criminal case cannot affirmatively
challenge in federal court the statutes under which the State is prosecuting
him, Dr. Hallford seeks to distinguish his status as a present state defendant
from his status as a "potential future defendant" and to assert only the latter
for standing purposes here.
We see no merit in that distinction. Our decision in Samuels v. Mackell, 401
U.S. 66 (1971), compels the conclusion that the District Court erred when it
granted declaratory relief to Dr. Hallford instead of refraining from so doing.
The court, of course, was correct in refusing to grant injunctive relief to the
doctor. The reasons supportive of that action, however, are those expressed in
Samuels v. Mackell, supra, and in Younger v. [410 U.S. 113, 127] Harris, 401
U.S. 37 (1971); Boyle v. Landry, 401 U.S. 77 (1971); Perez v. Ledesma, 401 U.S.
82 (1971); and Byrne v. Karalexis, 401 U.S. 216 (1971). See also Dombrowski v.
Pfister, 380 U.S. 479 (1965). We note, in passing, that Younger and its
companion cases were decided after the three-judge District Court decision in
Dr. Hallford's complaint in intervention, therefore, is to be dismissed. 7 He is
remitted to his defenses in the state criminal proceedings against him. We
reverse the judgment of the District Court insofar as it granted Dr. Hallford
relief and failed to dismiss his complaint in intervention.
C. The Does. In view of our ruling as to Roe's standing in her case, the issue
of the Does' standing in their case has little significance. The claims they
assert are essentially the same as those of Roe, and they attack the same
statutes. Nevertheless, we briefly note the Does' posture.
Their pleadings present them as a childless married couple, the woman not being
pregnant, who have no desire to have children at this time because of their
having received medical advice that Mrs. Doe should avoid pregnancy, and for
"other highly personal reasons." But they "fear . . . they may face the prospect
of becoming [410 U.S. 113, 128] parents." And if pregnancy ensues, they "would
want to terminate" it by an abortion. They assert an inability to obtain an
abortion legally in Texas and, consequently, the prospect of obtaining an
illegal abortion there or of going outside Texas to some place where the
procedure could be obtained legally and competently.
We thus have as plaintiffs a married couple who have, as their asserted
immediate and present injury, only an alleged "detrimental effect upon [their]
marital happiness" because they are forced to "the choice of refraining from
normal sexual relations or of endangering Mary Doe's health through a possible
pregnancy." Their claim is that sometime in the future Mrs. Doe might become
pregnant because of possible failure of contraceptive measures, and at that time
in the future she might want an abortion that might then be illegal under the
This very phrasing of the Does' position reveals its speculative character.
Their alleged injury rests on possible future contraceptive failure, possible
future pregnancy, possible future unpreparedness for parenthood, and possible
future impairment of health. Any one or more of these several possibilities may
not take place and all may not combine. In the Does' estimation, these
possibilities might have some real or imagined impact upon their marital
happiness. But we are not prepared to say that the bare allegation of so
indirect an injury is sufficient to present an actual case or controversy.
Younger v. Harris, 401 U.S., at 41 -42; Golden v. Zwickler, 394 U.S., at 109
-110; Abele v. Markle, 452 F.2d, at 1124-1125; Crossen v. Breckenridge, 446
F.2d, at 839. The Does' claim falls far short of those resolved otherwise in the
cases that the Does urge upon us, namely, Investment Co. Institute v. Camp, 401
U.S. 617 (1971); Data Processing Service v. Camp, 397 U.S. 150 (1970); [410 U.S.
113, 129] and Epperson v. Arkansas, 393 U.S. 97 (1968). See also Truax v. Raich,
239 U.S. 33 (1915).
The Does therefore are not appropriate plaintiffs in this litigation. Their
complaint was properly dismissed by the District Court, and we affirm that
The principal thrust of appellant's attack on the Texas statutes is that they
improperly invade a right, said to be possessed by the pregnant woman, to choose
to terminate her pregnancy. Appellant would discover this right in the concept
of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause;
or in personal, marital, familial, and sexual privacy said to be protected by
the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479
(1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id., at 460 (WHITE, J.,
concurring in result); or among those rights reserved to the people by the Ninth
Amendment, Griswold v. Connecticut, 381 U.S., at 486 (Goldberg, J., concurring).
Before addressing this claim, we feel it desirable briefly to survey, in several
aspects, the history of abortion, for such insight as that history may afford
us, and then to examine the state purposes and interests behind the criminal
It perhaps is not generally appreciated that the restrictive criminal abortion
laws in effect in a majority of States today are of relatively recent vintage.
Those laws, generally proscribing abortion or its attempt at any time during
pregnancy except when necessary to preserve the pregnant woman's life, are not
of ancient or even of common-law origin. Instead, they derive from statutory
changes effected, for the most part, in the latter half of the 19th century.
[410 U.S. 113, 130]
1. Ancient attitudes. These are not capable of precise determination. We are
told that at the time of the Persian Empire abortifacients were known and that
criminal abortions were severely punished. 8 We are also told, however, that
abortion was practiced in Greek times as well as in the Roman Era, 9 and that
"it was resorted to without scruple." 10 The Ephesian, Soranos, often described
as the greatest of the ancient gynecologists, appears to have been generally
opposed to Rome's prevailing free-abortion practices. He found it necessary to
think first of the life of the mother, and he resorted to abortion when, upon
this standard, he felt the procedure advisable. 11 Greek and Roman law afforded
little protection to the unborn. If abortion was prosecuted in some places, it
seems to have been based on a concept of a violation of the father's right to
his offspring. Ancient religion did not bar abortion. 12
2. The Hippocratic Oath. What then of the famous Oath that has stood so long as
the ethical guide of the medical profession and that bears the name of the great
Greek (460(?)-377(?) B. C.), who has been described [410 U.S. 113, 131] as the
Father of Medicine, the "wisest and the greatest practitioner of his art," and
the "most important and most complete medical personality of antiquity," who
dominated the medical schools of his time, and who typified the sum of the
medical knowledge of the past? 13 The Oath varies somewhat according to the
particular translation, but in any translation the content is clear: "I will
give no deadly medicine to anyone if asked, nor suggest any such counsel; and in
like manner I will not give to a woman a pessary to produce abortion," 14 or "I
will neither give a deadly drug to anybody if asked for it, nor will I make a
suggestion to this effect. Similarly, I will not give to a woman an abortive
Although the Oath is not mentioned in any of the principal briefs in this case
or in Doe v. Bolton, post, p. 179, it represents the apex of the development of
strict ethical concepts in medicine, and its influence endures to this day. Why
did not the authority of Hippocrates dissuade abortion practice in his time and
that of Rome? The late Dr. Edelstein provides us with a theory: 16 The Oath was
not uncontested even in Hippocrates' day; only the Pythagorean school of
philosophers frowned upon the related act of suicide. Most Greek thinkers, on
the other hand, commended abortion, at least prior to viability. See Plato,
Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans,
however, it was a matter of dogma. For them the embryo was animate from the
moment of conception, and abortion meant destruction of a living being. The
abortion clause of the Oath, therefore, "echoes Pythagorean doctrines," [410
U.S. 113, 132] and "[i]n no other stratum of Greek opinion were such views held
or proposed in the same spirit of uncompromising austerity." 17
Dr. Edelstein then concludes that the Oath originated in a group representing
only a small segment of Greek opinion and that it certainly was not accepted by
all ancient physicians. He points out that medical writings down to Galen (A. D.
130-200) "give evidence of the violation of almost every one of its
injunctions." 18 But with the end of antiquity a decided change took place.
Resistance against suicide and against abortion became common. The Oath came to
be popular. The emerging teachings of Christianity were in agreement with the
Pythagorean ethic. The Oath "became the nucleus of all medical ethics" and "was
applauded as the embodiment of truth." Thus, suggests Dr. Edelstein, it is "a
Pythagorean manifesto and not the expression of an absolute standard of medical
This, it seems to us, is a satisfactory and acceptable explanation of the
Hippocratic Oath's apparent rigidity. It enables us to understand, in historical
context, a long-accepted and revered statement of medical ethics.
3. The common law. It is undisputed that at common law, abortion performed
before "quickening" - the first recognizable movement of the fetus in utero,
appearing usually from the 16th to the 18th week of pregnancy 20 - was not an
indictable offense. 21 The absence [410 U.S. 113, 133] of a common-law crime for
pre-quickening abortion appears to have developed from a confluence of earlier
philosophical, theological, and civil and canon law concepts of when life
begins. These disciplines variously approached the question in terms of the
point at which the embryo or fetus became "formed" or recognizably human, or in
terms of when a "person" came into being, that is, infused with a "soul" or
"animated." A loose consensus evolved in early English law that these events
occurred at some point between conception and live birth. 22 This was "mediate
animation." Although [410 U.S. 113, 134] Christian theology and the canon law
came to fix the point of animation at 40 days for a male and 80 days for a
female, a view that persisted until the 19th century, there was otherwise little
agreement about the precise time of formation or animation. There was agreement,
however, that prior to this point the fetus was to be regarded as part of the
mother, and its destruction, therefore, was not homicide. Due to continued
uncertainty about the precise time when animation occurred, to the lack of any
empirical basis for the 40-80-day view, and perhaps to Aquinas' definition of
movement as one of the two first principles of life, Bracton focused upon
quickening as the critical point. The significance of quickening was echoed by
later common-law scholars and found its way into the received common law in this
Whether abortion of a quick fetus was a felony at common law, or even a lesser
crime, is still disputed. Bracton, writing early in the 13th century, thought it
homicide. 23 But the later and predominant view, following the great common-law
scholars, has been that it was, at most, a lesser offense. In a frequently cited
[410 U.S. 113, 135] passage, Coke took the position that abortion of a woman
"quick with childe" is "a great misprision, and no murder." 24 Blackstone
followed, saying that while abortion after quickening had once been considered
manslaughter (though not murder), "modern law" took a less severe view. 25 A
recent review of the common-law precedents argues, however, that those
precedents contradict Coke and that even post-quickening abortion was never
established as a common-law crime. 26 This is of some importance because while
most American courts ruled, in holding or dictum, that abortion of an
unquickened fetus was not criminal under their received common law, 27 others
followed Coke in stating that abortion [410 U.S. 113, 136] of a quick fetus was
a "misprision," a term they translated to mean "misdemeanor." 28 That their
reliance on Coke on this aspect of the law was uncritical and, apparently in all
the reported cases, dictum (due probably to the paucity of common-law
prosecutions for post-quickening abortion), makes it now appear doubtful that
abortion was ever firmly established as a common-law crime even with respect to
the destruction of a quick fetus.
4. The English statutory law. England's first criminal abortion statute, Lord
Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick
fetus, 1, a capital crime, but in 2 it provided lesser penalties for the felony
of abortion before quickening, and thus preserved the "quickening" distinction.
This contrast was continued in the general revision of 1828, 9 Geo. 4, c. 31,
13. It disappeared, however, together with the death penalty, in 1837, 7 Will. 4
& 1 Vict., c. 85. 6, and did not reappear in the Offenses Against the Person Act
of 1861, 24 & 25 Vict., c. 100, 59, that formed the core of English
anti-abortion law until the liberalizing reforms of 1967. In 1929, the Infant
Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis
was upon the destruction of "the life of a child capable of being born alive."
It made a willful act performed with the necessary intent a felony. It contained
a proviso that one was not to be [410 U.S. 113, 137] found guilty of the offense
"unless it is proved that the act which caused the death of the child was not
done in good faith for the purpose only of preserving the life of the mother."
A seemingly notable development in the English law was the case of Rex v.
Bourne, 1939. 1 K. B. 687. This case apparently answered in the affirmative the
question whether an abortion necessary to preserve the life of the pregnant
woman was excepted from the criminal penalties of the 1861 Act. In his
instructions to the jury, Judge Macnaghten referred to the 1929 Act, and
observed that that Act related to "the case where a child is killed by a wilful
act at the time when it is being delivered in the ordinary course of nature."
Id., at 691. He concluded that the 1861 Act's use of the word "unlawfully,"
imported the same meaning expressed by the specific proviso in the 1929 Act,
even though there was no mention of preserving the mother's life in the 1861
Act. He then construed the phrase "preserving the life of the mother" broadly,
that is, "in a reasonable sense," to include a serious and permanent threat to
the mother's health, and instructed the jury to acquit Dr. Bourne if it found he
had acted in a good-faith belief that the abortion was necessary for this
purpose. Id., at 693-694. The jury did acquit.
Recently, Parliament enacted a new abortion law. This is the Abortion Act of
1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an
abortion where two other licensed physicians agree (a) "that the continuance of
the pregnancy would involve risk to the life of the pregnant woman, or of injury
to the physical or mental health of the pregnant woman or any existing children
of her family, greater than if the pregnancy were terminated," or (b) "that
there is a substantial risk that if the child were born it would suffer from
such physical or mental abnormalities as [410 U.S. 113, 138] to be seriously
handicapped." The Act also provides that, in making this determination, "account
may be taken of the pregnant woman's actual or reasonably foreseeable
environment." It also permits a physician, without the concurrence of others, to
terminate a pregnancy where he is of the good-faith opinion that the abortion
"is immediately necessary to save the life or to prevent grave permanent injury
to the physical or mental health of the 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 pre-existing English common law. Connecticut, the
first State to enact abortion legislation, adopted in 1821 that part of Lord
Ellenborough's Act that related to a woman "quick with child." 29 The death
penalty was not imposed. Abortion before quickening was made a crime in that
State only in 1860. 30 In 1828, New York enacted legislation 31 that, in two
respects, was to serve as a model for early anti-abortion statutes. First, while
barring destruction of an unquickened fetus as well as a quick fetus, it made
the former only a misdemeanor, but the latter second-degree manslaughter.
Second, it incorporated a concept of therapeutic abortion by providing that an
abortion was excused if it "shall have been necessary to preserve the life of
such mother, or shall have been advised by two physicians to be necessary for
such purpose." By 1840, when Texas had received the common law, 32 only eight
American States [410 U.S. 113, 139] had statutes dealing with abortion. 33 It
was not until after the War Between the States that legislation began generally
to replace the common law. Most of these initial statutes dealt severely with
abortion after quickening but were lenient with it before quickening. Most
punished attempts equally with completed abortions. While many statutes included
the exception for an abortion thought by one or more physicians to be necessary
to save the mother's life, that provision soon disappeared and the typical law
required that the procedure actually be necessary for that purpose.
Gradually, in the middle and late 19th century the quickening distinction
disappeared from the statutory law of most States and the degree of the offense
and the penalties were increased. By the end of the 1950's, a large majority of
the jurisdictions banned abortion, however and whenever performed, unless done
to save or preserve the life of the mother. 34 The exceptions, Alabama and the
District of Columbia, permitted abortion to preserve the mother's health. 35
Three States permitted abortions that were not "unlawfully" performed or that
were not "without lawful justification," leaving interpretation of those
standards to the courts. 36 In [410 U.S. 113, 140] the past several years,
however, a trend toward liberalization of abortion statutes has resulted in
adoption, by about one-third of the States, of less stringent laws, most of them
patterned after the ALI Model Penal Code, 230.3, 37 set forth as Appendix B to
the opinion in Doe v. Bolton, post, p. 205.
It is thus apparent that at common law, at the time of the adoption of our
Constitution, and throughout the major portion of the 19th century, abortion was
viewed with less disfavor than under most American statutes currently in effect.
Phrasing it another way, a woman enjoyed a substantially broader right to
terminate a pregnancy than she does in most States today. At least with respect
to the early stage of pregnancy, and very possibly without such a limitation,
the opportunity [410 U.S. 113, 141] to make this choice was present in this
country well into the 19th century. Even later, the law continued for some time
to treat less punitively an abortion procured in early pregnancy.
6. The position of the American Medical Association. The anti-abortion mood
prevalent in this country in the late 19th century was shared by the medical
profession. Indeed, the attitude of the profession may have played a significant
role in the enactment of stringent criminal abortion legislation during that
An AMA Committee on Criminal Abortion was appointed in May 1857. It presented
its report, 12 Trans. of the Am. Med. Assn. 73-78 (1859), to the Twelfth Annual
Meeting. That report observed that the Committee had been appointed to
investigate criminal abortion "with a view to its general suppression." It
deplored abortion and its frequency and it listed three causes of "this general
"The first of these causes is a wide-spread popular ignorance of the true
character of the crime - a belief, even among mothers themselves, that the
foetus is not alive till after the period of quickening.
"The second of the agents alluded to is the fact that the profession themselves
are frequently supposed careless of foetal life . . . .
"The third reason of the frightful extent of this crime is found in the grave
defects of our laws, both common and statute, as regards the independent and
actual existence of the child before birth, as a living being. These errors,
which are sufficient in most instances to prevent conviction, are based, and
only based, upon mistaken and exploded medical dogmas. With strange
inconsistency, the law fully acknowledges the foetus in utero and its inherent
rights, for civil purposes; while personally and as criminally affected, it
fails to recognize it, [410 U.S. 113, 142] and to its life as yet denies all
protection." Id., at 75-76.
The Committee then offered, and the Association adopted, resolutions protesting
"against such unwarrantable destruction of human life," calling upon state
legislatures to revise their abortion laws, and requesting the cooperation of
state medical societies "in pressing the subject." Id., at 28, 78.
In 1871 a long and vivid report was submitted by the Committee on Criminal
Abortion. It ended with the observation, "We had to deal with human life. In a
matter of less importance we could entertain no compromise. An honest judge on
the bench would call things by their proper names. We could do no less." 22
Trans. of the Am. Med. Assn. 258 (1871). It proffered resolutions, adopted by
the Association, id., at 38-39, recommending, among other things, that it "be
unlawful and unprofessional for any physician to induce abortion or premature
labor, without the concurrent opinion of at least one respectable consulting
physician, and then always with a view to the safety of the child - if that be
possible," and calling "the attention of the clergy of all denominations to the
perverted views of morality entertained by a large class of females - aye, and
men also, on this important question."
Except for periodic condemnation of the criminal abortionist, no further formal
AMA action took place until 1967. In that year, the Committee on Human
Reproduction urged the adoption of a stated policy of opposition to induced
abortion, except when there is "documented medical evidence" of a threat to the
health or life of the mother, or that the child "may be born with incapacitating
physical deformity or mental deficiency," or that a pregnancy "resulting from
legally established statutory or forcible rape or incest may constitute a threat
to the mental or physical health of the [410 U.S. 113, 143] patient," two other
physicians "chosen because of their recognized professional competence have
examined the patient and have concurred in writing," and the procedure "is
performed in a hospital accredited by the Joint Commission on Accreditation of
Hospitals." The providing of medical information by physicians to state
legislatures in their consideration of legislation regarding therapeutic
abortion was "to be considered consistent with the principles of ethics of the
American Medical Association." This recommendation was adopted by the House of
Delegates. Proceedings of the AMA House of Delegates 40-51 (June 1967).
In 1970, after the introduction of a variety of proposed resolutions, and of a
report from its Board of Trustees, a reference committee noted "polarization of
the medical profession on this controversial issue"; division among those who
had testified; a difference of opinion among AMA councils and committees; "the
remarkable shift in testimony" in six months, felt to be influenced "by the
rapid changes in state laws and by the judicial decisions which tend to make
abortion more freely available;" and a feeling "that this trend will continue."
On June 25, 1970, the House of Delegates adopted preambles and most of the
resolutions proposed by the reference committee. The preambles emphasized "the
best interests of the patient," "sound clinical judgment," and "informed patient
consent," in contrast to "mere acquiescence to the patient's demand." The
resolutions asserted that abortion is a medical procedure that should be
performed by a licensed physician in an accredited hospital only after
consultation with two other physicians and in conformity with state law, and
that no party to the procedure should be required to violate personally held
moral principles. 38 Proceedings [410 U.S. 113, 144] of the AMA House of
Delegates 220 (June 1970). The AMA Judicial Council rendered a complementary
7. The position of the American Public Health Association. In October 1970, the
Executive Board of the APHA adopted Standards for Abortion Services. These were
five in number:
"a. Rapid and simple abortion referral must be readily available through state
and local public [410 U.S. 113, 145] health departments, medical societies, or
other nonprofit organizations.
"b. An important function of counselling should be to simplify and expedite the
provision of abortion services; it should not delay the obtaining of these
"c. Psychiatric consultation should not be mandatory. As in the case of other
specialized medical services, psychiatric consultation should be sought for
definite indications and not on a routine basis.
"d. A wide range of individuals from appropriately trained, sympathetic
volunteers to highly skilled physicians may qualify as abortion counselors.
"e. Contraception and/or sterilization should be discussed with each abortion
patient." Recommended Standards for Abortion Services, 61 Am. J. Pub. Health 396
Among factors pertinent to life and health risks associated with abortion were
three that "are recognized as important":
"a. the skill of the physician,
"b. the environment in which the abortion is performed, and above all
"c. the duration of pregnancy, as determined by uterine size and confirmed by
menstrual history." Id., at 397.
It was said that "a well-equipped hospital" offers more protection "to cope with
unforeseen difficulties than an office or clinic without such resources. . . .
The factor of gestational age is of overriding importance." Thus, it was
recommended that abortions in the second trimester and early abortions in the
presence of existing medical complications be performed in hospitals as
inpatient procedures. For pregnancies in the first trimester, [410 U.S. 113,
146] abortion in the hospital with or without overnight stay "is probably the
safest practice." An abortion in an extramural facility, however, is an
acceptable alternative "provided arrangements exist in advance to admit patients
promptly if unforeseen complications develop." Standards for an abortion
facility were listed. It was said that at present abortions should be performed
by physicians or osteopaths who are licensed to practice and who have "adequate
training." Id., at 398.
8. The position of the American Bar Association. At its meeting in February 1972
the ABA House of Delegates approved, with 17 opposing votes, the Uniform
Abortion Act that had been drafted and approved the preceding August by the
Conference of Commissioners on Uniform State Laws. 58 A. B. A. J. 380 (1972). We
set forth the Act in full in the margin. 40 The [410 U.S. 113, 147] Conference
has appended an enlightening Prefatory Note. 41
Three reasons have been advanced to explain historically the enactment of
criminal abortion laws in the 19th century and to justify their continued
existence. [410 U.S. 113, 148]
It has been argued occasionally that these laws were the product of a Victorian
social concern to discourage illicit sexual conduct. Texas, however, does not
advance this justification in the present case, and it appears that no court or
commentator has taken the argument seriously. 42 The appellants and amici
contend, moreover, that this is not a proper state purpose at all and suggest
that, if it were, the Texas statutes are overbroad in protecting it since the
law fails to distinguish between married and unwed mothers.
A second reason is concerned with abortion as a medical procedure. When most
criminal abortion laws were first enacted, the procedure was a hazardous one for
the woman. 43 This was particularly true prior to the [410 U.S. 113, 149]
development of antisepsis. Antiseptic techniques, of course, were based on
discoveries by Lister, Pasteur, and others first announced in 1867, but were not
generally accepted and employed until about the turn of the century. Abortion
mortality was high. Even after 1900, and perhaps until as late as the
development of antibiotics in the 1940's, standard modern techniques such as
dilation and curettage were not nearly so safe as they are today. Thus, it has
been argued that a State's real concern in enacting a criminal abortion law was
to protect the pregnant woman, that is, to restrain her from submitting to a
procedure that placed her life in serious jeopardy.
Modern medical techniques have altered this situation. Appellants and various
amici refer to medical data indicating that abortion in early pregnancy, that
is, prior to the end of the first trimester, although not without its risk, is
now relatively safe. Mortality rates for women undergoing early abortions, where
the procedure is legal, appear to be as low as or lower than the rates for
normal childbirth. 44 Consequently, any interest of the State in protecting the
woman from an inherently hazardous procedure, except when it would be equally
dangerous for her to forgo it, has largely disappeared. Of course, important
state interests in the areas of health and medical standards do remain. [410
U.S. 113, 150] The State has a legitimate interest in seeing to it that
abortion, like any other medical procedure, is performed under circumstances
that insure maximum safety for the patient. This interest obviously extends at
least to the performing physician and his staff, to the facilities involved, to
the availability of after-care, and to adequate provision for any complication
or emergency that might arise. The prevalence of high mortality rates at illegal
"abortion mills" strengthens, rather than weakens, the State's interest in
regulating the conditions under which abortions are performed. Moreover, the
risk to the woman increases as her pregnancy continues. Thus, the State retains
a definite interest in protecting the woman's own health and safety when an
abortion is proposed at a late stage 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. 45
The State's interest and general obligation to protect life then extends, it is
argued, to prenatal life. Only when the life of the pregnant mother herself is
at stake, balanced against the life she carries within her, should the interest
of the embryo or fetus not prevail. Logically, of course, a legitimate state
interest in this area need not stand or fall on acceptance of the belief that
life begins at conception or at some other point prior to live birth. In
assessing the State's interest, recognition may be given to the less rigid claim
that as long as at least potential life is involved, the State may assert
interests beyond the protection of the pregnant woman alone. [410 U.S. 113, 151]
Parties challenging state abortion laws have sharply disputed in some courts the
contention that a purpose of these laws, when enacted, was to protect prenatal
life. 46 Pointing to the absence of legislative history to support the
contention, they claim that most state laws were designed solely to protect the
woman. Because medical advances have lessened this concern, at least with
respect to abortion in early pregnancy, they argue that with respect to such
abortions the laws can no longer be justified by any state interest. There is
some scholarly support for this view of original purpose. 47 The few state
courts called upon to interpret their laws in the late 19th and early 20th
centuries did focus on the State's interest in protecting the woman's health
rather than in preserving the embryo and fetus. 48 Proponents of this view point
out that in many States, including Texas, 49 by statute or judicial
interpretation, the pregnant woman herself could not be prosecuted for
self-abortion or for cooperating in an abortion performed upon her by another.
50 They claim that adoption of the "quickening" distinction through received
common [410 U.S. 113, 152] law and state statutes tacitly recognizes the greater
health hazards inherent in late abortion and impliedly repudiates the theory
that life begins at conception.
It is with these interests, and the weight to be attached to them, that this
case is 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, 251 (1891), the Court has recognized that a right of
personal privacy, or a guarantee of certain areas or zones of privacy, does
exist under the Constitution. In varying contexts, the Court or individual
Justices have, indeed, found at least the roots of that right in the First
Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth
Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United States, 389
U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead
v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the
penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484 -485;
in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the
concept of liberty guaranteed by the first section of the Fourteenth Amendment,
see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear
that only personal rights that can be deemed "fundamental" or "implicit in the
concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are
included in this guarantee of personal privacy. They also make it clear that the
right has some extension to activities relating to marriage, Loving v. Virginia,
388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541 -542
(1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453 -454; id., at 460,
463-465 [410 U.S. 113, 153] (WHITE, J., concurring in result); family
relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child
rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925),
Meyer v. Nebraska, supra.
This right of privacy, whether it be founded in the Fourteenth Amendment's
concept of personal liberty and restrictions upon state action, as we feel it
is, or, as the District Court determined, in the Ninth Amendment's reservation
of rights to the people, is broad enough to encompass a woman's decision whether
or not to terminate her pregnancy. The detriment that the State would impose
upon the pregnant woman by denying this choice altogether is apparent. Specific
and direct harm medically diagnosable even in early pregnancy may be involved.
Maternity, or additional offspring, may force upon the woman a distressful life
and future. Psychological harm may be imminent. Mental and physical health may
be taxed by child care. There is also the distress, for all concerned,
associated with the unwanted child, and there is the problem of bringing a child
into a family already unable, psychologically and otherwise, to care for it. In
other cases, as in this one, the additional difficulties and continuing stigma
of unwed motherhood may be involved. All these are factors the woman and her
responsible physician necessarily will consider in consultation.
On the basis of elements such as these, appellant and some amici argue that the
woman's right is absolute and that she is entitled to terminate her pregnancy at
whatever time, in whatever way, and for whatever reason she alone chooses. With
this we do not agree. Appellant's arguments that Texas either has no valid
interest at all in regulating the abortion decision, or no interest strong
enough to support any limitation upon the woman's sole determination, are
unpersuasive. The [410 U.S. 113, 154] Court's decisions recognizing a right of
privacy also acknowledge that some state regulation in areas protected by that
right is appropriate. As noted above, a State may properly assert important
interests in safeguarding health, in maintaining medical standards, and in
protecting potential life. At some point in pregnancy, these respective
interests become sufficiently compelling to sustain regulation of the factors
that govern the abortion decision. The privacy right involved, therefore, cannot
be said to be absolute. In fact, it is not clear to us that the claim asserted
by some amici that one has an unlimited right to do with one's body as one
pleases bears a close relationship to the right of privacy previously
articulated in the Court's decisions. The Court has refused to recognize an
unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11
(1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).
We, therefore, conclude that the right of personal privacy includes the abortion
decision, but that this right is not unqualified and must be considered against
important state interests in regulation.
We note that those federal and state courts that have recently considered
abortion law challenges have reached the same conclusion. A majority, in
addition to the District Court in the present case, have held state laws
unconstitutional, at least in part, because of vagueness or because of
overbreadth and abridgment of rights. Abele v. Markle, 342 F. Supp. 800 (Conn.
1972), appeal docketed, No. 72-56; Abele v. Markle, 351 F. Supp. 224 (Conn.
1972), appeal docketed, No. 72-730; Doe v. Bolton, 319 F. Supp. 1048 (ND Ga.
1970), appeal decided today, post, p. 179; Doe v. Scott, 321 F. Supp. 1385 (ND
Ill. 1971), appeal docketed, No. 70-105; Poe v. Menghini, 339 F. Supp. 986 (Kan.
1972); YWCA v. Kugler, 342 F. Supp. 1048 (NJ 1972); Babbitz v. McCann, [410 U.S.
113, 155] 310 F. Supp. 293 (ED Wis. 1970), appeal dismissed, 400 U.S. 1 (1970);
People v. Belous, 71 Cal. 2d 954, 458 P.2d 194 (1969), cert. denied, 397 U.S.
915 (1970); State v. Barquet, 262 So.2d 431 (Fla. 1972).
Others have sustained state statutes. Crossen v. Attorney General, 344 F. Supp.
587 (ED Ky. 1972), appeal docketed, No. 72-256; Rosen v. Louisiana State Board
of Medical Examiners, 318 F. Supp. 1217 (ED La. 1970), appeal docketed, No.
70-42; Corkey v. Edwards, 322 F. Supp. 1248 (WDNC 1971), appeal docketed, No.
71-92; Steinberg v. Brown, 321 F. Supp. 741 (ND Ohio 1970); Doe v. Rampton (Utah
1971), appeal docketed, No. 71-5666; Cheaney v. State, ___ Ind. ___, 285 N. E.
2d 265 (1972); Spears v. State, 257 So.2d 876 (Miss. 1972); State v. Munson, 86
S. D. 663, 201 N. W. 2d 123 (1972), appeal docketed, No. 72-631.
Although the results are divided, most of these courts have agreed that the
right of privacy, however based, is broad enough to cover the abortion decision;
that the right, nonetheless, is not absolute and is subject to some limitations;
and that at some point the state interests as to protection of health, medical
standards, and prenatal life, become dominant. We agree with this approach.
Where certain "fundamental rights" are involved, the Court has held that
regulation limiting these rights may be justified only by a "compelling state
interest," Kramer v. Union Free School District, 395 U.S. 621, 627 (1969);
Shapiro v. Thompson, 394 U.S. 618, 634 (1969), Sherbert v. Verner, 374 U.S. 398,
406 (1963), and that legislative enactments must be narrowly drawn to express
only the legitimate state interests at stake. Griswold v. Connecticut, 381 U.S.,
at 485 ; Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964); Cantwell v.
Connecticut, 310 U.S. 296, 307 -308 (1940); see [410 U.S. 113, 156] Eisenstadt
v. Baird, 405 U.S., at 460 , 463-464 (WHITE, J., concurring in result).
In the recent abortion cases, cited above, courts have recognized these
principles. Those striking down state laws have generally scrutinized the
State's interests in protecting health and potential life, and have concluded
that neither interest justified broad limitations on the reasons for which a
physician and his pregnant patient might decide that she should have an abortion
in the early stages of pregnancy. Courts sustaining state laws have held that
the State's determinations to protect health or prenatal life are dominant and
The District Court held that the appellee failed to meet his burden of
demonstrating that the Texas statute's infringement upon Roe's rights was
necessary to support a compelling state interest, and that, although the
appellee presented "several compelling justifications for state presence in the
area of abortions," the statutes outstripped these justifications and swept "far
beyond any areas of compelling state interest." 314 F. Supp., at 1222-1223.
Appellant and appellee both contest that holding. Appellant, as has been
indicated, claims an absolute right that bars any state imposition of criminal
penalties in the area. Appellee argues that the State's determination to
recognize and protect prenatal life from and after conception constitutes a
compelling state interest. As noted above, we do not agree fully with either
A. The appellee and certain amici argue that the fetus is a "person" within the
language and meaning of the Fourteenth Amendment. In support of this, they
outline at length and in detail the well-known facts of fetal development. If
this suggestion of personhood is established, the appellant's case, of course,
collapses, [410 U.S. 113, 157] for the fetus' right to life would then be
guaranteed specifically by the Amendment. The appellant conceded as much on
reargument. 51 On the other hand, the appellee conceded on reargument 52 that no
case could be cited that holds that a fetus is a person within the meaning of
the Fourteenth Amendment.
The Constitution does not define "person" in so many words. Section 1 of the
Fourteenth Amendment contains three references to "person." The first, in
defining "citizens," speaks of "persons born or naturalized in the United
States." The word also appears both in the Due Process Clause and in the Equal
Protection Clause. "Person" is used in other places in the Constitution: in the
listing of qualifications for Representatives and Senators, Art. I, 2, cl. 2,
and 3, cl. 3; in the Apportionment Clause, Art. I, 2, cl. 3; 53 in the Migration
and Importation provision, Art. I, 9, cl. 1; in the Emolument Clause, Art. I, 9,
cl. 8; in the Electors provisions, Art. II, 1, cl. 2, and the superseded cl. 3;
in the provision outlining qualifications for the office of President, Art. II,
1, cl. 5; in the Extradition provisions, Art. IV, 2, cl. 2, and the superseded
Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second
Amendments, as well as in 2 and 3 of the Fourteenth Amendment. But in nearly all
these instances, the use of the word is such that it has application only
postnatally. None indicates, with any assurance, that it has any possible
pre-natal application. 54 [410 U.S. 113, 158]
All this, together with our observation, supra, that throughout the major
portion of the 19th century prevailing legal abortion practices were far freer
than they are today, persuades us that the word "person," as used in the
Fourteenth Amendment, does not include the unborn. 55 This is in accord with the
results reached in those few cases where the issue has been squarely presented.
McGarvey v. Magee-Womens Hospital, 340 F. Supp. 751 (WD Pa. 1972); Byrn v. New
York City Health & Hospitals Corp., 31 N. Y. 2d 194, 286 N. E. 2d 887 (1972),
appeal docketed, No. 72-434; Abele v. Markle, 351 F. Supp. 224 (Conn. 1972),
appeal docketed, No. 72-730. Cf. Cheaney v. State, ___ Ind., at ___, 285 N. E.
2d, at 270; Montana v. Rogers, 278 F.2d 68, 72 (CA7 1960), aff'd sub nom.
Montana v. Kennedy, 366 U.S. 308 (1961); Keeler v. Superior Court, 2 Cal. 3d
619, 470 P.2d 617 (1970); State v. Dickinson, 28 [410 U.S. 113, 159] Ohio St. 2d
65, 275 N. E. 2d 599 (1971). Indeed, our decision in United States v. Vuitch,
402 U.S. 62 (1971), inferentially is to the same effect, for we there would not
have indulged in statutory interpretation favorable to abortion in specified
circumstances if the necessary consequence was the termination of life entitled
to Fourteenth Amendment protection.
This conclusion, however, does not of itself fully answer the contentions raised
by Texas, and we pass on to other considerations.
B. The pregnant woman cannot be isolated in her privacy. She carries an embryo
and, later, a fetus, if one accepts the medical definitions of the developing
young in the human uterus. See Dorland's Illustrated Medical Dictionary 478-479,
547 (24th ed. 1965). The situation therefore is inherently different from
marital intimacy, or bedroom possession of obscene material, or marriage, or
procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving,
Skinner, and Pierce and Meyer were respectively concerned. As we have intimated
above, it is reasonable and appropriate for a State to decide that at some point
in time another interest, that of health of the mother or that of potential
human life, becomes significantly involved. The woman's privacy is no longer
sole and any right of privacy she possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins at conception
and is present throughout pregnancy, and that, therefore, the State has a
compelling interest in protecting that life from and after conception. We need
not resolve the difficult question of when life begins. When those trained in
the respective disciplines of medicine, philosophy, and theology are unable to
arrive at any consensus, the judiciary, at this point in the development of
man's knowledge, is not in a position to speculate as to the answer. [410 U.S.
It should be sufficient to note briefly the wide divergence of thinking on this
most sensitive and difficult question. There has always been strong support for
the view that life does not begin until live birth. This was the belief of the
Stoics. 56 It appears to be the predominant, though not the unanimous, attitude
of the Jewish faith. 57 It may be taken to represent also the position of a
large segment of the Protestant community, insofar as that can be ascertained;
organized groups that have taken a formal position on the abortion issue have
generally regarded abortion as a matter for the conscience of the individual and
her family. 58 As we have noted, the common law found greater significance in
quickening. Physicians and their scientific colleagues have regarded that event
with less interest and have tended to focus either upon conception, upon live
birth, or upon the interim point at which the fetus becomes "viable," that is,
potentially able to live outside the mother's womb, albeit with artificial aid.
59 Viability is usually placed at about seven months (28 weeks) but may occur
earlier, even at 24 weeks. 60 The Aristotelian theory of "mediate animation,"
that held sway throughout the Middle Ages and the Renaissance in Europe,
continued to be official Roman Catholic dogma until the 19th century, despite
opposition to this "ensoulment" theory from those in the Church who would
recognize the existence of life from [410 U.S. 113, 161] the moment of
conception. 61 The latter is now, of course, the official belief of the Catholic
Church. As one brief amicus discloses, this is a view strongly held by many
non-Catholics as well, and by many physicians. Substantial problems for precise
definition of this view are posed, however, by new embryological data that
purport to indicate that conception is a "process" over time, rather than an
event, and by new medical techniques such as menstrual extraction, the
"morning-after" pill, implantation of embryos, artificial insemination, and even
artificial wombs. 62
In areas other than criminal abortion, the law has been reluctant to endorse any
theory that life, as we recognize it, begins before live birth or to accord
legal rights to the unborn except in narrowly defined situations and except when
the rights are contingent upon live birth. For example, the traditional rule of
tort law denied recovery for prenatal injuries even though the child was born
alive. 63 That rule has been changed in almost every jurisdiction. In most
States, recovery is said to be permitted only if the fetus was viable, or at
least quick, when the injuries were sustained, though few [410 U.S. 113, 162]
courts have squarely so held. 64 In a recent development, generally opposed by
the commentators, some States permit the parents of a stillborn child to
maintain an action for wrongful death because of prenatal injuries. 65 Such an
action, however, would appear to be one to vindicate the parents' interest and
is thus consistent with the view that the fetus, at most, represents only the
potentiality of life. Similarly, unborn children have been recognized as
acquiring rights or interests by way of inheritance or other devolution of
property, and have been represented by guardians ad litem. 66 Perfection of the
interests involved, again, has generally been contingent upon live birth. In
short, the unborn have never been recognized in the law as persons in the whole
In view of all this, we do not agree that, by adopting one theory of life, Texas
may override the rights of the pregnant woman that are at stake. We repeat,
however, that the State does have an important and legitimate interest in
preserving and protecting the health of the pregnant woman, whether she be a
resident of the State or a nonresident who seeks medical consultation and
treatment there, and that it has still another important and legitimate interest
in protecting the potentiality of human life. These interests are separate and
distinct. Each grows in substantiality as the woman approaches [410 U.S. 113,
163] term and, at a point during pregnancy, each becomes "compelling."
With respect to the State's important and legitimate interest in the health of
the mother, the "compelling" point, in the light of present medical knowledge,
is at approximately the end of the first trimester. This is so because of the
now-established medical fact, referred to above at 149, that until the end of
the first trimester mortality in abortion may be less than mortality in normal
childbirth. It follows that, from and after this point, a State may regulate the
abortion procedure to the extent that the regulation reasonably relates to the
preservation and protection of maternal health. Examples of permissible state
regulation in this area are requirements as to the qualifications of the person
who is to perform the abortion; as to the licensure of that person; as to the
facility in which the procedure is to be performed, that is, whether it must be
a hospital or may be a clinic or some other place of less-than-hospital status;
as to the licensing of the facility; and the like.
This means, on the other hand, that, for the period of pregnancy prior to this
"compelling" point, the attending physician, in consultation with his patient,
is free to determine, without regulation by the State, that, in his medical
judgment, the patient's pregnancy should be terminated. If that decision is
reached, the judgment may be effectuated by an abortion free of interference by
With respect to the State's important and legitimate interest in potential life,
the "compelling" point is at viability. This is so because the fetus then
presumably has the capability of meaningful life outside the mother's womb.
State regulation protective of fetal life after viability thus has both logical
and biological justifications. If the State is interested in protecting fetal
life after viability, it may go so far as to proscribe abortion [410 U.S. 113,
164] during that period, except when it is necessary to preserve the life or
health of the mother.
Measured against these standards, Art. 1196 of the Texas Penal Code, in
restricting legal abortions to those "procured or attempted by medical advice
for the purpose of saving the life of the mother," sweeps too broadly. The
statute makes no distinction between abortions performed early in pregnancy and
those performed later, and it limits to a single reason, "saving" the mother's
life, the legal justification for the procedure. The statute, therefore, cannot
survive the constitutional attack made upon it here.
This conclusion makes it unnecessary for us to consider the additional challenge
to the Texas statute asserted on grounds of vagueness. See United States v.
Vuitch, 402 U.S., at 67 -72.
To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that excepts
from criminality only a life-saving procedure on behalf of the mother, without
regard to pregnancy stage and without recognition of the other interests
involved, is violative of the Due Process Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first trimester, the
abortion decision and its effectuation must be left to the medical judgment of
the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester,
the State, in promoting its interest in the health of the mother, may, if it
chooses, regulate the abortion procedure in ways that are reasonably related to
(c) For the stage subsequent to viability, the State in promoting its interest
in the potentiality of human life [410 U.S. 113, 165] may, if it chooses,
regulate, and even proscribe, abortion except where it is necessary, in
appropriate medical judgment, for the preservation of the life or health of the
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. 67
This holding, we feel, is consistent with the relative weights of the respective
interests involved, with the lessons and examples of medical and legal history,
with the lenity of the common law, and with the demands of the profound problems
of the present day. The decision leaves the State free to place increasing
restrictions on abortion as the period of pregnancy lengthens, so long as those
restrictions are tailored to the recognized state interests. The decision
vindicates the right of the physician to administer medical treatment according
to his professional judgment up to the points where important [410 U.S. 113,
166] state interests provide compelling justifications for intervention. Up to
those points, the abortion decision in all its aspects is inherently, and
primarily, a medical decision, and basic responsibility for it must rest with
the physician. If an individual practitioner abuses the privilege of exercising
proper medical judgment, the usual remedies, judicial and intra-professional,
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, 252 -255 (1967); Dombrowski v.
Pfister, 380 U.S. 479 (1965). We are not dealing with a statute that, on its
face, appears to abridge free expression, an area of particular concern under
Dombrowski and refined in Younger v. Harris, 401 U.S., at 50 .
We find it unnecessary to decide whether the District Court erred in withholding
injunctive relief, for we assume the Texas prosecutorial authorities will give
full credence to this decision that the present criminal abortion statutes of
that State are unconstitutional.
The judgment of the District Court as to intervenor Hallford is reversed, and
Dr. Hallford's complaint in intervention is dismissed. In all other respects,
the judgment [410 U.S. 113, 167] of the District Court is affirmed. Costs are
allowed to the appellee.
It is so ordered.
[For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 207.]
[For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 209.]
[For dissenting opinion of MR. JUSTICE WHITE, see post, p. 221.]
[ Footnote 1 ] "Article 1191. Abortion
"If any person shall designedly administer to a pregnant woman or knowingly
procure to be administered with her consent any drug or medicine, or shall use
towards her any violence or means whatever externally or internally applied, and
thereby procure an abortion, he shall be confined in the penitentiary not less
than two nor more than five years; if it be done without her consent, the
punishment shall be doubled. By `abortion' is meant that the life of the fetus
or embryo shall be destroyed in the woman's womb or that a premature birth
thereof be caused.
"Art. 1192. Furnishing the means
"Whoever furnishes the means for procuring an abortion knowing the purpose
intended is guilty as an accomplice.
"Art. 1193. Attempt at abortion
"If the means used shall fail to produce an abortion, the offender is
nevertheless guilty of an attempt to produce abortion, provided [410 U.S. 113,
118] it be shown that such means were calculated to produce that result, and
shall be fined not less than one hundred nor more than one thousand dollars.
"Art. 1194. Murder in producing abortion
"If the death of the mother is occasioned by an abortion so produced or by an
attempt to effect the same it is murder."
"Art. 1196. By medical advice
"Nothing in this chapter applies to an abortion procured or attempted by medical
advice for the purpose of saving the life of the mother."
The foregoing Articles, together with Art. 1195, compose Chapter 9 of Title 15
of the Penal Code. Article 1195, not attacked here, reads:
"Art. 1195. Destroying unborn child
"Whoever shall during parturition of the mother destroy the vitality or life in
a child in a state of being born and before actual birth, which child would
otherwise have been born alive, shall be confined in the penitentiary for life
or for not less than five years."
[ Footnote 2 ] Ariz. Rev. Stat. Ann. 13-211 (1956); Conn. Pub. Act No. 1 (May
1972 special session) (in 4 Conn. Leg. Serv. 677 (1972)), and Conn. Gen. Stat.
Rev. 53-29, 53-30 (1968) (or unborn child); Idaho Code 18-601 (1948); Ill. Rev.
Stat., c. 38, 23-1 (1971); Ind. Code 35-1-58-1 (1971); Iowa Code 701.1 (1971);
Ky. Rev. Stat. 436.020 (1962); La. Rev. Stat. 37:1285 (6) (1964) (loss of
medical license) (but see 14:87 (Supp. 1972) containing no exception for the
life of the mother under the criminal statute); Me. Rev. Stat. Ann., Tit. 17, 51
(1964); Mass. Gen. Laws Ann., c. 272, 19 (1970) (using the term "unlawfully,"
construed to exclude an abortion to save the mother's life, Kudish v. Bd. of
Registration, 356 Mass. 98, 248 N. E. 2d 264 (1969)); Mich. Comp. Laws 750.14
(1948); Minn. Stat. 617.18 (1971); Mo. Rev. Stat. 559.100 (1969); Mont. Rev.
Codes Ann. 94-401 (1969); Neb. Rev. Stat. 28-405 (1964); Nev. Rev. Stat. 200.220
(1967); N. H. Rev. Stat. Ann. 585:13 (1955); N. J. Stat. Ann. 2A:87-1 (1969)
("without lawful justification"); N. D. Cent. Code 12-25-01, 12-25-02 (1960);
Ohio Rev. Code Ann. 2901.16 (1953); Okla. Stat. Ann., Tit. 21, 861 (1972-1973
Supp.); Pa. Stat. Ann., Tit. 18, [410 U.S. 113, 119] 4718, 4719 (1963)
("unlawful"); R. I. Gen. Laws Ann. 11-3-1 (1969); S. D. Comp. Laws Ann. 22-17-1
(1967); Tenn. Code Ann. 39-301, 39-302 (1956); Utah Code Ann. 76-2-1, 76-2-2
(1953); Vt. Stat. Ann., Tit. 13, 101 (1958); W. Va. Code Ann. 61-2-8 (1966);
Wis. Stat. 940.04 (1969); Wyo. Stat. Ann. 6-77, 6-78 (1957).
[ Footnote 3 ] Long ago, a suggestion was made that the Texas statutes were
unconstitutionally vague because of definitional deficiencies. The Texas Court
of Criminal Appeals disposed of that suggestion peremptorily, saying only,
"It is also insisted in the motion in arrest of judgment that the statute is
unconstitutional and void in that it does not sufficiently define or describe
the offense of abortion. We do not concur in respect to this question." Jackson
v. State, 55 Tex. Cr. R. 79, 89, 115 S. W. 262, 268 (1908).
The same court recently has held again that the State's abortion statutes are
not unconstitutionally vague or overbroad. Thompson v. State (Ct. Crim. App.
Tex. 1971), appeal docketed, No. 71-1200. The court held that "the State of
Texas has a compelling interest to protect fetal life"; that Art. 1191 "is
designed to protect fetal life"; that the Texas homicide statutes, particularly
Art. 1205 of the Penal Code, are intended to protect a person "in existence by
actual birth" and thereby implicitly recognize other human life that is not "in
existence by actual birth"; that the definition of human life is for the
legislature and not the courts; that Art. 1196 "is more definite than the
District of Columbia statute upheld in [United States v.] Vuitch" ( 402 U.S. 62
); and that the Texas statute "is [410 U.S. 113, 120] not vague and indefinite
or overbroad." A physician's abortion conviction was affirmed.
In Thompson, n. 2, the court observed that any issue as to the burden of proof
under the exemption of Art. 1196 "is not before us." But see Veevers v. State,
172 Tex. Cr. R. 162, 168-169, 354 S. W. 2d 161, 166-167 (1962). Cf. United
States v. Vuitch, 402 U.S. 62, 69 -71 (1971).
[ Footnote 4 ] The name is a pseudonym.
[ Footnote 5 ] These names are pseudonyms.
[ Footnote 6 ] The appellee twice states in his brief that the hearing before
the District Court was held on July 22, 1970. Brief for Appellee 13. The docket
entries, App. 2, and the transcript, App. 76, reveal this to be an error. The
July date appears to be the time of the reporter's transcription. See App. 77.
[ Footnote 7 ] We need not consider what different result, if any, would follow
if Dr. Hallford's intervention were on behalf of a class. His complaint in
intervention does not purport to assert a class suit and makes no reference to
any class apart from an allegation that he "and others similarly situated" must
necessarily guess at the meaning of Art. 1196. His application for leave to
intervene goes somewhat further, for it asserts that plaintiff Roe does not
adequately protect the interest of the doctor "and the class of people who are
physicians . . . [and] the class of people who are . . . patients . . . ." The
leave application, however, is not the complaint. Despite the District Court's
statement to the contrary, 314 F. Supp., at 1225, we fail to perceive the
essentials of a class suit in the Hallford complaint.
[ Footnote 8 ] A. Castiglioni, A History of Medicine 84 (2d ed. 1947), E.
Krumbhaar, translator and editor (hereinafter Castiglioni).
[ Footnote 9 ] J. Ricci, The Genealogy of Gynaecology 52, 84, 113, 149 (2d ed.
1950) (hereinafter Ricci); L. Lader, Abortion 75-77 (1966) (hereinafter Lader);
K. Niswander, Medical Abortion Practices in the United States, in Abortion and
the Law 37, 38-40 (D. Smith ed. 1967); G. Williams, The Sanctity of Life and the
Criminal Law 148 (1957) (hereinafter Williams); J. Noonan, An Almost Absolute
Value in History, in The Morality of Abortion 1, 3-7 (J. Noonan ed. 1970)
(hereinafter Noonan); Quay, Justifiable Abortion - Medical and Legal Foundations
(pt. 2), 49 Geo. L. J. 395, 406-422 (1961) (hereinafter Quay).
[ Footnote 10 ] L. Edelstein, The Hippocratic Oath 10 (1943) (hereinafter
Edelstein). But see Castiglioni 227.
[ Footnote 11 ] Edelstein 12; Ricci 113-114, 118-119; Noonan 5.
[ Footnote 12 ] Edelstein 13-14.
[ Footnote 13 ] Castiglioni 148.
[ Footnote 14 ] Id., at 154.
[ Footnote 15 ] Edelstein 3.
[ Footnote 16 ] Id., at 12, 15-18.
[ Footnote 17 ] Id., at 18; Lader 76.
[ Footnote 18 ] Edelstein 63.
[ Footnote 19 ] Id., at 64.
[ Footnote 20 ] Dorland's Illustrated Medical Dictionary 1261 (24th ed. 1965).
[ Footnote 21 ] E. Coke, Institutes III *50; 1 W. Hawkins, Pleas of the Crown,
c. 31, 16 (4th ed. 1762); 1 W. Blackstone, Commentaries *129-130; M. Hale, Pleas
of the Crown 433 (1st Amer. ed. 1847). For discussions of the role of the
quickening concept in English common law, see Lader 78; Noonan 223-226; Means,
The Law of New [410 U.S. 113, 133] York Concerning Abortion and the Status of
the Foetus, 1664-1968: A Case of Cessation of Constitutionality (pt. 1), 14 N.
Y. L. F. 411, 418-428 (1968) (hereinafter Means I); Stern, Abortion: Reform and
the Law, 59 J. Crim. L. C. & P. S. 84 (1968) (hereinafter Stern); Quay 430-432;
[ Footnote 22 ] Early philosophers believed that the embryo or fetus did not
become formed and begin to live until at least 40 days after conception for a
male, and 80 to 90 days for a female. See, for example, Aristotle, Hist. Anim.
7.3.583b; Gen. Anim. 2.3.736, 2.5.741; Hippocrates, Lib. de Nat. Puer., No. 10.
Aristotle's thinking derived from his three-stage theory of life: vegetable,
animal, rational. The vegetable stage was reached at conception, the animal at
"animation," and the rational soon after live birth. This theory, together with
the 40/80 day view, came to be accepted by early Christian thinkers.
The theological debate was reflected in the writings of St. Augustine, who made
a distinction between embryo inanimatus, not yet endowed with a soul, and embryo
animatus. He may have drawn upon Exodus 21:22. At one point, however, he
expressed the view that human powers cannot determine the point during fetal
development at which the critical change occurs. See Augustine, De Origine
Animae 4.4 (Pub. Law 44.527). See also W. Reany, The Creation of the Human Soul,
c. 2 and 83-86 (1932); Huser, The Crime of Abortion in Canon Law 15 (Catholic
Univ. of America, Canon Law Studies No. 162, Washington, D.C., 1942).
Galen, in three treatises related to embryology, accepted the thinking of
Aristotle and his followers. Quay 426-427. Later, Augustine on abortion was
incorporated by Gratian into the Decretum, published about 1140. Decretum
Magistri Gratiani 220.127.116.11 to 18.104.22.168, [410 U.S. 113, 134] in 1 Corpus Juris
Canonici 1122, 1123 (A. Friedburg, 2d ed. 1879). This Decretal and the Decretals
that followed were recognized as the definitive body of canon law until the new
Code of 1917.
For discussions of the canon-law treatment, see Means I, pp. 411-412; Noonan
20-26; Quay 426-430; see also J. Noonan, Contraception: A History of Its
Treatment by the Catholic Theologians and Canonists 18-29 (1965).
[ Footnote 23 ] Bracton took the position that abortion by blow or poison was
homicide "if the foetus be already formed and animated, and particularly if it
be animated." 2 H. Bracton, De Legibus et Consuetudinibus Angliae 279 (T. Twiss
ed. 1879), or, as a later translation puts it, "if the foetus is already formed
or quickened, especially if it is quickened," 2 H. Bracton, On the Laws and
Customs of England 341 (S. Thorne ed. 1968). See Quay 431; see also 2 Fleta
60-61 (Book 1, c. 23) (Selden Society ed. 1955).
[ Footnote 24 ] E. Coke, Institutes III *50.
[ Footnote 25 ] 1 W. Blackstone, Commentaries *129-130.
[ Footnote 26 ] Means, The Phoenix of Abortional Freedom: Is a Penumbral or
Ninth-Amendment Right About to Arise from the Nineteenth-Century Legislative
Ashes of a Fourteenth-Century Common-Law Liberty?, 17 N. Y. L. F. 335 (1971)
(hereinafter Means II). The author examines the two principal precedents cited
marginally by Coke, both contrary to his dictum, and traces the treatment of
these and other cases by earlier commentators. He concludes that Coke, who
himself participated as an advocate in an abortion case in 1601, may have
intentionally misstated the law. The author even suggests a reason: Coke's
strong feelings against abortion, coupled with his determination to assert
common-law (secular) jurisdiction to assess penalties for an offense that
traditionally had been an exclusively ecclesiastical or canon-law crime. See
also Lader 78-79, who notes that some scholars doubt that the common law ever
was applied to abortion; that the English ecclesiastical courts seem to have
lost interest in the problem after 1527; and that the preamble to the English
legislation of 1803, 43 Geo. 3, c. 58, 1, referred to in the text, infra, at
136, states that "no adequate means have been hitherto provided for the
prevention and punishment of such offenses."
[ Footnote 27 ] Commonwealth v. Bangs, 9 Mass. 387, 388 (1812); Commonwealth v.
Parker, 50 Mass. (9 Metc.) 263, 265-266 (1845); State v. Cooper, 22 N. J. L. 52,
58 (1849); Abrams v. Foshee, 3 Iowa 274, 278-280 (1856); Smith v. Gaffard, 31
Ala. 45, 51 (1857); Mitchell v. Commonwealth, 78 Ky. 204, 210 (1879); Eggart v.
State, 40 Fla. [410 U.S. 113, 136] 527, 532, 25 So. 144, 145 (1898); State v.
Alcorn, 7 Idaho 599, 606, 64 P. 1014, 1016 (1901); Edwards v. State, 79 Neb.
251, 252, 112 N. W. 611, 612 (1907); Gray v. State, 77 Tex. Cr. R. 221, 224, 178
S. W. 337, 338 (1915); Miller v. Bennett, 190 Va. 162, 169, 56 S. E. 2d 217, 221
(1949). Contra, Mills v. Commonwealth, 13 Pa. 631, 633 (1850); State v. Slagle,
83 N.C. 630, 632 (1880).
[ Footnote 28 ] See Smith v. State, 33 Me. 48, 55 (1851); Evans v. People, 49 N.
Y. 86, 88 (1872); Lamb v. State, 67 Md. 524, 533, 10 A. 208 (1887).
[ Footnote 29 ] Conn. Stat., Tit. 20, 14 (1821).
[ Footnote 30 ] Conn. Pub. Acts, c. 71, 1 (1860).
[ Footnote 31 ] N. Y. Rev. Stat., pt. 4, c. 1, Tit. 2, Art. 1, 9, p. 661, and
Tit. 6, 21, p. 694 (1829).
[ Footnote 32 ] Act of Jan. 20, 1840, 1, set forth in 2 H. Gammel, Laws of Texas
177-178 (1898); see Grigsby v. Reib, 105 Tex. 597, 600, 153 S. W. 1124, 1125
[ Footnote 33 ] The early statutes are discussed in Quay 435-438. See also Lader
85-88; Stern 85-86; and Means II 375-376.
[ Footnote 34 ] Criminal abortion statutes in effect in the States as of 1961,
together with historical statutory development and important judicial
interpretations of the state statutes, are cited and quoted in Quay 447-520. See
Comment, A Survey of the Present Statutory and Case Law on Abortion: The
Contradictions and the Problems, 1972 U. Ill. L. F. 177, 179, classifying the
abortion statutes and listing 25 States as permitting abortion only if necessary
to save or preserve the mother's life.
[ Footnote 35 ] Ala. Code, Tit. 14, 9 (1958); D.C. Code Ann. 22-201 (1967).
[ Footnote 36 ] Mass. Gen. Laws Ann., c. 272, 19 (1970); N. J. Stat. Ann.
2A:87-1 (1969); Pa. Stat. Ann., Tit. 18, 4718, 4719 (1963).
[ Footnote 37 ] Fourteen States have adopted some form of the ALI statute. See
Ark. Stat. Ann. 41-303 to 41-310 (Supp. 1971); Calif. Health & Safety Code
25950-25955.5 (Supp. 1972); Colo. Rev. Stat. Ann. 40-2-50 to 40-2-53 (Cum. Supp.
1967); Del. Code Ann., Tit. 24, 1790-1793 (Supp. 1972); Florida Law of Apr. 13,
1972, c. 72-196, 1972 Fla. Sess. Law Serv., pp. 380-382; Ga. Code 26-1201 to
26-1203 (1972); Kan. Stat. Ann. 21-3407 (Supp. 1971); Md. Ann. Code, Art. 43,
137-139 (1971); Miss. Code Ann. 2223 (Supp. 1972); N. M. Stat. Ann. 40A-5-1 to
40A-5-3 (1972); N.C. Gen. Stat. 14-45.1 (Supp. 1971); Ore. Rev. Stat. 435.405 to
435.495 (1971); S. C. Code Ann. 16-82 to 16-89 (1962 and Supp. 1971); Va. Code
Ann. 18.1-62 to 18.1-62.3 (Supp. 1972). Mr. Justice Clark described some of
these States as having "led the way." Religion, Morality, and Abortion: A
Constitutional Appraisal, 2 Loyola U. (L. A.) L. Rev. 1, 11 (1969).
By the end of 1970, four other States had repealed criminal penalties for
abortions performed in early pregnancy by a licensed physician, subject to
stated procedural and health requirements. Alaska Stat. 11.15.060 (1970); Haw.
Rev. Stat. 453-16 (Supp. 1971); N. Y. Penal Code 125.05, subd. 3 (Supp.
1972-1973); Wash. Rev. Code 9.02.060 to 9.02.080 (Supp. 1972). The precise
status of criminal abortion laws in some States is made unclear by recent
decisions in state and federal courts striking down existing state laws, in
whole or in part.
[ Footnote 38 ] "Whereas, Abortion, like any other medical procedure, should not
be performed when contrary to the best interests of the patient [410 U.S. 113,
144] since good medical practice requires due consideration for the patient's
welfare and not mere acquiescence to the patient's demand; and
"Whereas, The standards of sound clinical judgment, which, together with
informed patient consent should be determinative according to the merits of each
individual case; therefore be it
"RESOLVED, That abortion is a medical procedure and should be performed only by
a duly licensed physician and surgeon in an accredited hospital acting only
after consultation with two other physicians chosen because of their
professional competency and in conformance with standards of good medical
practice and the Medical Practice Act of his State; and be it further
"RESOLVED, That no physician or other professional personnel shall be compelled
to perform any act which violates his good medical judgment. Neither physician,
hospital, nor hospital personnel shall be required to perform any act violative
of personally-held moral principles. In these circumstances good medical
practice requires only that the physician or other professional personnel
withdraw from the case so long as the withdrawal is consistent with good medical
practice." Proceedings of the AMA House of Delegates 220 (June 1970).
[ Footnote 39 ] "The Principles of Medical Ethics of the AMA do not prohibit a
physician from performing an abortion that is performed in accordance with good
medical practice and under circumstances that do not violate the laws of the
community in which he practices.
"In the matter of abortions, as of any other medical procedure, the Judicial
Council becomes involved whenever there is alleged violation of the Principles
of Medical Ethics as established by the House of Delegates."
[ Footnote 40 ] "UNIFORM ABORTION ACT
"SECTION 1. [Abortion Defined; When Authorized.]
"(a) `Abortion' means the termination of human pregnancy with an intention other
than to produce a live birth or to remove a dead fetus.
"(b) An abortion may be performed in this state only if it is performed:
"(1) by a physician licensed to practice medicine [or osteopathy] in this state
or by a physician practicing medicine [or osteopathy] in the employ of the
government of the United States or of this state, [and the abortion is performed
[in the physician's office or in a medical clinic, or] in a hospital approved by
the [Department of Health] or operated by the United States, this state, or any
department, agency, or political subdivision of either;] or by a female upon
herself upon the advice of the physician; and
"(2) within 20. weeks after the commencement of the pregnancy [or after 20.
weeks only if the physician has reasonable cause to believe (i) there is a
substantial risk that continuance of the pregnancy would endanger the life of
the mother or would gravely impair the physical or mental health of the mother,
(ii) that the child would be born with grave physical or mental defect, or (iii)
that [410 U.S. 113, 147] the pregnancy resulted from rape or incest, or illicit
intercourse with a girl under the age of 16 years].
"SECTION 2. [Penalty.] Any person who performs or procures an abortion other
than authorized by this Act is guilty of a [felony] and, upon conviction
thereof, may be sentenced to pay a fine not exceeding [$1,000] or to
imprisonment [in the state penitentiary] not exceeding [5 years], or both.
"SECTION 3. [Uniformity of Interpretation.] This Act shall be construed to
effectuate its general purpose to make uniform the law with respect to the
subject of this Act among those states which enact it.
"SECTION 4. [Short Title.] This Act may be cited as the Uniform Abortion Act.
"SECTION 5. [Severability.] If any provision of this Act or the application
thereof to any person or circumstance is held invalid, the invalidity does not
affect other provisions or applications of this Act which can be given effect
without the invalid provision or application, and to this end the provisions of
this Act are severable.
"SECTION 6. [Repeal.] The following acts and parts of acts are repealed: "(1)
"SECTION 7. [Time of Taking Effect.] This Act shall take effect
[ Footnote 41 ] "This Act is based largely upon the New York abortion act
following a review of the more recent laws on abortion in several states and
upon recognition of a more liberal trend in laws on this subject. Recognition
was given also to the several decisions in state and federal courts which show a
further trend toward liberalization of abortion laws, especially during the
first trimester of pregnancy.
"Recognizing that a number of problems appeared in New York, a shorter time
period for `unlimited' abortions was advisable. The [410 U.S. 113, 148] time
period was bracketed to permit the various states to insert a figure more in
keeping with the different conditions that might exist among the states.
Likewise, the language limiting the place or places in which abortions may be
performed was also bracketed to account for different conditions among the
states. In addition, limitations on abortions after the initial `unlimited'
period were placed in brackets so that individual states may adopt all or any of
these reasons, or place further restrictions upon abortions after the initial
"This Act does not contain any provision relating to medical review committees
or prohibitions against sanctions imposed upon medical personnel refusing to
participate in abortions because of religious or other similar reasons, or the
like. Such provisions, while related, do not directly pertain to when, where, or
by whom abortions may be performed; however, the Act is not drafted to exclude
such a provision by a state wishing to enact the same."
[ Footnote 42 ] See, for example, YWCA v. Kugler, 342 F. Supp. 1048, 1074 (N. J.
1972); Abele v. Markle, 342 F. Supp. 800, 805-806 (Conn. 1972) (Newman, J.,
concurring in result), appeal docketed, No. 72-56; Walsingham v. State, 250
So.2d 857, 863 (Ervin, J., concurring) (Fla. 1971); State v. Gedicke, 43 N. J.
L. 86, 90 (1881); Means II 381-382.
[ Footnote 43 ] See C. Haagensen & W. Lloyd, A Hundred Years of Medicine 19
[ Footnote 44 ] Potts, Postconceptive Control of Fertility, 8 Int'l J. of G. &
O. 957, 967 (1970) (England and Wales); Abortion Mortality, 20 Morbidity and
Mortality 208, 209 (June 12, 1971) (U.S. Dept. of HEW, Public Health Service)
(New York City); Tietze, United States: Therapeutic Abortions, 1963-1968, 59
Studies in Family Planning 5, 7 (1970); Tietze, Mortality with Contraception and
Induced Abortion, 45 Studies in Family Planning 6 (1969) (Japan, Czechoslovakia,
Hungary); Tietze & Lehfeldt, Legal Abortion in Eastern Europe, 175 J. A. M. A.
1149, 1152 (April 1961). Other sources are discussed in Lader 17-23.
[ Footnote 45 ] See Brief of Amicus National Right to Life Committee; R. Drinan,
The Inviolability of the Right to be Born, in Abortion and the Law 107 (D. Smith
ed. 1967); Louisell, Abortion, The Practice of Medicine and the Due Process of
Law, 16 U. C. L. A. L. Rev. 233 (1969); Noonan 1.
[ Footnote 46 ] See, e. g., Abele v. Markle, 342 F. Supp. 800 (Conn. 1972),
appeal docketed, No. 72-56.
[ Footnote 47 ] See discussions in Means I and Means II.
[ Footnote 48 ] See, e. g., State v. Murphy, 27 N. J. L. 112, 114 (1858).
[ Footnote 49 ] Watson v. State, 9 Tex. App. 237, 244-245 (1880); Moore v.
State, 37 Tex. Cr. R. 552, 561, 40 S. W. 287, 290 (1897); Shaw v. State, 73 Tex.
Cr. R. 337, 339, 165 S. W. 930, 931 (1914); Fondren v. State, 74 Tex. Cr. R.
552, 557, 169 S. W. 411, 414 (1914); Gray v. State, 77 Tex. Cr. R. 221, 229, 178
S. W. 337, 341 (1915). There is no immunity in Texas for the father who is not
married to the mother. Hammett v. State, 84 Tex. Cr. R. 635, 209 S. W. 661
(1919); Thompson v. State (Ct. Crim. App. Tex. 1971), appeal docketed, No.
[ Footnote 50 ] See Smith v. State, 33 Me., at 55; In re Vince, 2 N. J. 443,
450, 67 A. 2d 141, 144 (1949). A short discussion of the modern law on this
issue is contained in the Comment to the ALI's Model Penal Code 207.11, at 158
and nn. 35-37 (Tent. Draft No. 9, 1959).
[ Footnote 51 ] Tr. of Oral Rearg. 20-21.
[ Footnote 52 ] Tr. of Oral Rearg. 24.
[ Footnote 53 ] We are not aware that in the taking of any census under this
clause, a fetus has ever been counted.
[ Footnote 54 ] When Texas urges that a fetus is entitled to Fourteenth
Amendment protection as a person, it faces a dilemma. Neither in Texas nor in
any other State are all abortions prohibited. Despite broad proscription, an
exception always exists. The exception contained [410 U.S. 113, 158] in Art.
1196, for an abortion procured or attempted by medical advice for the purpose of
saving the life of the mother, is typical. But if the fetus is a person who is
not to be deprived of life without due process of law, and if the mother's
condition is the sole determinant, does not the Texas exception appear to be out
of line with the Amendment's command?
There are other inconsistencies between Fourteenth Amendment status and the
typical abortion statute. It has already been pointed out, n. 49, supra, that in
Texas the woman is not a principal or an accomplice with respect to an abortion
upon her. If the fetus is a person, why is the woman not a principal or an
accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is
significantly less than the maximum penalty for murder prescribed by Art. 1257
of the Texas Penal Code. If the fetus is a person, may the penalties be
[ Footnote 55 ] Cf. the Wisconsin abortion statute, defining "unborn child" to
mean "a human being from the time of conception until it is born alive," Wis.
Stat. 940.04 (6) (1969), and the new Connecticut Statute, Pub. Act No. 1 (May
1972 special session), declaring it to be the public policy of the State and the
legislative intent "to protect and preserve human life from the moment of
[ Footnote 56 ] Edelstein 16.
[ Footnote 57 ] Lader 97-99; D. Feldman, Birth Control in Jewish Law 251-294
(1968). For a stricter view, see I. Jakobovits, Jewish Views on Abortion, in
Abortion and the Law 124 (D. Smith ed. 1967).
[ Footnote 58 ] Amicus Brief for the American Ethical Union et al. For the
position of the National Council of Churches and of other denominations, see
[ Footnote 59 ] L. Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed.
1971); Dorland's Illustrated Medical Dictionary 1689 (24th ed. 1965).
[ Footnote 60 ] Hellman & Pritchard, supra, n. 59, at 493.
[ Footnote 61 ] For discussions of the development of the Roman Catholic
position, see D. Callahan, Abortion: Law, Choice, and Morality 409-447 (1970);
[ Footnote 62 ] See Brodie, The New Biology and the Prenatal Child, 9 J. Family
L. 391, 397 (1970); Gorney, The New Biology and the Future of Man, 15 U. C. L.
A. L. Rev. 273 (1968); Note, Criminal Law - Abortion - The "Morning-After Pill"
and Other Pre-Implantation Birth-Control Methods and the Law, 46 Ore. L. Rev.
211 (1967); G. Taylor, The Biological Time Bomb 32 (1968); A. Rosenfeld, The
Second Genesis 138-139 (1969); Smith, Through a Test Tube Darkly: Artificial
Insemination and the Law, 67 Mich. L. Rev. 127 (1968): Note, Artificial
Insemination and the Law, 1968 U. Ill. L. F. 203.
[ Footnote 63 ] W. Prosser, The Law of Torts 335-338 (4th ed. 1971); 2 F. Harper
& F. James, The Law of Torts 1028-1031 (1956); Note, 63 Harv. L. Rev. 173
[ Footnote 64 ] See cases cited in Prosser, supra, n. 63, at 336-338;
Annotation, Action for Death of Unborn Child, 15 A. L. R. 3d 992 (1967).
[ Footnote 65 ] Prosser, supra, n. 63, at 338; Note, The Law and the Unborn
Child: The Legal and Logical Inconsistencies, 46 Notre Dame Law. 349, 354-360
[ Footnote 66 ] Louisell, Abortion, The Practice of Medicine and the Due Process
of Law, 16 U. C. L. A. L. Rev. 233, 235-238 (1969); Note, 56 Iowa L. Rev. 994,
999-1000 (1971); Note, The Law and the Unborn Child, 46 Notre Dame Law. 349,
[ Footnote 67 ] Neither in this opinion nor in Doe v. Bolton, post, p. 179, do
we discuss the father's rights, if any exist in the constitutional context, in
the abortion decision. No paternal right has been asserted in either of the
cases, and the Texas and the Georgia statutes on their face take no cognizance
of the father. We are aware that some statutes recognize the father under
certain circumstances. North Carolina, for example, N.C. Gen. Stat. 14-45.1
(Supp. 1971), requires written permission for the abortion from the husband when
the woman is a married minor, that is, when she is less than 18 years of age, 41
N.C. A. G. 489 (1971); if the woman is an unmarried minor, written permission
from the parents is required. We need not now decide whether provisions of this
kind are constitutional.
MR. JUSTICE STEWART, concurring.
In 1963, this Court, in Ferguson v. Skrupa, 372 U.S. 726 , purported to sound
the death knell for the doctrine of substantive due process, a doctrine under
which many state laws had in the past been held to violate the Fourteenth
Amendment. As Mr. Justice Black's opinion for the Court in Skrupa put it: "We
have returned to the original constitutional proposition that courts do not
substitute their social and economic beliefs for the judgment of legislative
bodies, who are elected to pass laws." Id., at 730. 1
Barely two years later, in Griswold v. Connecticut, 381 U.S. 479 , the Court
held a Connecticut birth control law unconstitutional. In view of what had been
so recently said in Skrupa, the Court's opinion in Griswold understandably did
its best to avoid reliance on the Due Process Clause of the Fourteenth Amendment
as the ground for decision. Yet, the Connecticut law did not violate any
provision of the Bill of Rights, nor any other specific provision of the
Constitution. 2 So it was clear [410 U.S. 113, 168] to me then, and it is
equally clear to me now, that the Griswold decision can be rationally understood
only as a holding that the Connecticut statute substantively invaded the
"liberty" that is protected by the Due Process Clause of the Fourteenth
Amendment. 3 As so understood, Griswold stands as one in a long line of pre-Skrupa
cases decided under the doctrine of substantive due process, and I now accept it
"In a Constitution for a free people, there can be no doubt that the meaning of
`liberty' must be broad indeed." Board of Regents v. Roth, 408 U.S. 564, 572 .
The Constitution nowhere mentions a specific right of personal choice in matters
of marriage and family life, but the "liberty" protected by the Due Process
Clause of the Fourteenth Amendment covers more than those freedoms explicitly
named in the Bill of Rights. See Schware v. Board of Bar Examiners, 353 U.S.
232, 238 -239; Pierce v. Society of Sisters, 268 U.S. 510, 534 -535; Meyer v.
Nebraska, 262 U.S. 390, 399 -400. Cf. Shapiro v. Thompson, 394 U.S. 618, 629
-630; United States v. Guest, 383 U.S. 745, 757 -758; Carrington v. Rash, 380
U.S. 89, 96 ; Aptheker v. Secretary of State, 378 U.S. 500, 505 ; Kent v.
Dulles, 357 U.S. 116, 127 ; Bolling v. Sharpe, 347 U.S. 497, 499 -500; Truax v.
Raich, 239 U.S. 33, 41 . [410 U.S. 113, 169]
As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty guaranteed by
the Due Process Clause cannot be found in or limited by the precise terms of the
specific guarantees elsewhere provided in the Constitution. This `liberty' is
not a series of isolated points pricked out in terms of the taking of property;
the freedom of speech, press, and religion; the right to keep and bear arms; the
freedom from unreasonable searches and seizures; and so on. It is a rational
continuum which, broadly speaking, includes a freedom from all substantial
arbitrary impositions and purposeless restraints . . . and which also
recognizes, what a reasonable and sensitive judgment must, that certain
interests require particularly careful scrutiny of the state needs asserted to
justify their abridgment." Poe v. Ullman, 367 U.S. 497, 543 (opinion dissenting
from dismissal of appeal) (citations omitted). In the words of Mr. Justice
Frankfurter, "Great concepts like . . . `liberty' . . . were purposely left to
gather meaning from experience. For they relate to the whole domain of social
and economic fact, and the statesmen who founded this Nation knew too well that
only a stagnant society remains unchanged." National Mutual Ins. Co. v.
Tidewater Transfer Co., 337 U.S. 582, 646 (dissenting opinion).
Several decisions of this Court make clear that freedom of personal choice in
matters of marriage and family life is one of the liberties protected by the Due
Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 12 ;
Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v.
Nebraska, supra. See also Prince v. Massachusetts, 321 U.S. 158, 166 ; Skinner
v. Oklahoma, 316 U.S. 535, 541 . As recently as last Term, in Eisenstadt v.
Baird, 405 U.S. 438, 453 , we recognized "the right of the individual, married
or single, to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person [410 U.S. 113, 170] as the decision whether to
bear or beget a child." That right necessarily includes the right of a woman to
decide whether or not to terminate her pregnancy. "Certainly the interests of a
woman in giving of her physical and emotional self during pregnancy and the
interests that will be affected throughout her life by the birth and raising of
a child are of a far greater degree of significance and personal intimacy than
the right to send a child to private school protected in Pierce v. Society of
Sisters, 268 U.S. 510 (1925), or the right to teach a foreign language protected
in Meyer v. Nebraska, 262 U.S. 390 (1923)." Abele v. Markle, 351 F. Supp. 224,
227 (Conn. 1972).
Clearly, therefore, the Court today is correct in holding that the right
asserted by Jane Roe is embraced within the personal liberty protected by the
Due Process Clause of the Fourteenth Amendment.
It is evident that the Texas abortion statute infringes that right directly.
Indeed, it is difficult to imagine a more complete abridgment of a
constitutional freedom than that worked by the inflexible criminal statute now
in force in Texas. The question then becomes whether the state interests
advanced to justify this abridgment can survive the "particularly careful
scrutiny" that the Fourteenth Amendment here requires.
The asserted state interests are protection of the health and safety of the
pregnant woman, and protection of the potential future human life within her.
These are legitimate objectives, amply sufficient to permit a State to regulate
abortions as it does other surgical procedures, and perhaps sufficient to permit
a State to regulate abortions more stringently or even to prohibit them in the
late stages of pregnancy. But such legislation is not before us, and I think the
Court today has thoroughly demonstrated that these state interests cannot
constitutionally support the broad abridgment of personal [410 U.S. 113, 171]
liberty worked by the existing Texas law. Accordingly, I join the Court's
opinion holding that that law is invalid under the Due Process Clause of the
[ Footnote 1 ] Only Mr. Justice Harlan failed to join the Court's opinion, 372
U.S., at 733 .
[ Footnote 2 ] There is no constitutional right of privacy, as such. "[The
Fourth] Amendment protects individual privacy against certain kinds of
governmental intrusion, but its protections go further, and often have nothing
to do with privacy at all. Other provisions of [410 U.S. 113, 168] the
Constitution protect personal privacy from other forms of governmental invasion.
But the protection of a person's general right to privacy - his right to be let
alone by other people - is, like the protection of his property and of his very
life, left largely to the law of the individual States." Katz v. United States,
389 U.S. 347, 350 -351 (footnotes omitted).
[ Footnote 3 ] This was also clear to Mr. Justice Black, 381 U.S., at 507
(dissenting opinion); to Mr. Justice Harlan, 381 U.S., at 499 (opinion
concurring in the judgment); and to MR. JUSTICE WHITE, 381 U.S., at 502 (opinion
concurring in the judgment). See also Mr. Justice Harlan's thorough and
thoughtful opinion dissenting from dismissal of the appeal in Poe v. Ullman, 367
U.S. 497, 522 .
MR. JUSTICE REHNQUIST, dissenting.
The Court's opinion brings to the decision of this troubling question both
extensive historical fact and a wealth of legal scholarship. While the opinion
thus commands my respect, I find myself nonetheless in fundamental disagreement
with those parts of it that invalidate the Texas statute in question, and
The Court's opinion decides that a State may impose virtually no restriction on
the performance of abortions during the first trimester of pregnancy. Our
previous decisions indicate that a necessary predicate for such an opinion is a
plaintiff who was in her first trimester of pregnancy at some time during the
pendency of her law-suit. While a party may vindicate his own constitutional
rights, he may not seek vindication for the rights of others. Moose Lodge v.
Irvis, 407 U.S. 163 (1972); Sierra Club v. Morton, 405 U.S. 727 (1972). The
Court's statement of facts in this case makes clear, however, that the record in
no way indicates the presence of such a plaintiff. We know only that plaintiff
Roe at the time of filing her complaint was a pregnant woman; for aught that
appears in this record, she may have been in her last trimester of pregnancy as
of the date the complaint was filed.
Nothing in the Court's opinion indicates that Texas might not constitutionally
apply its proscription of abortion as written to a woman in that stage of
pregnancy. Nonetheless, the Court uses her complaint against the Texas statute
as a fulcrum for deciding that States may [410 U.S. 113, 172] impose virtually
no restrictions on medical abortions performed during the first trimester of
pregnancy. In deciding such a hypothetical lawsuit, the Court departs from the
longstanding admonition that it should never "formulate a rule of constitutional
law broader than is required by the precise facts to which it is to be applied."
Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113
U.S. 33, 39 (1885). See also Ashwander v. TVA, 297 U.S. 288, 345 (1936)
(Brandeis, J., concurring).
Even if there were a plaintiff in this case capable of litigating the issue
which the Court decides, I would reach a conclusion opposite to that reached by
the Court. I have difficulty in concluding, as the Court does, that the right of
"privacy" is involved in this case. Texas, by the statute here challenged, bars
the performance of a medical abortion by a licensed physician on a plaintiff
such as Roe. A transaction resulting in an operation such as this is not
"private" in the ordinary usage of that word. Nor is the "privacy" that the
Court finds here even a distant relative of the freedom from searches and
seizures protected by the Fourth Amendment to the Constitution, which the Court
has referred to as embodying a right to privacy. Katz v. United States, 389 U.S.
If the Court means by the term "privacy" no more than that the claim of a person
to be free from unwanted state regulation of consensual transactions may be a
form of "liberty" protected by the Fourteenth Amendment, there is no doubt that
similar claims have been upheld in our earlier decisions on the basis of that
liberty. I agree with the statement of MR. JUSTICE STEWART in his concurring
opinion that the "liberty," against deprivation of which without due process the
Fourteenth [410 U.S. 113, 173] Amendment protects, embraces more than the rights
found in the Bill of Rights. But that liberty is not guaranteed absolutely
against deprivation, only against deprivation without due process of law. The
test traditionally applied in the area of social and economic legislation is
whether or not a law such as that challenged has a rational relation to a valid
state objective. Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955). The
Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit,
albeit a broad one, on legislative power to enact laws such as this. If the
Texas statute were to prohibit an abortion even where the mother's life is in
jeopardy, I have little doubt that such a statute would lack a rational relation
to a valid state objective under the test stated in Williamson, supra. But the
Court's sweeping invalidation of any restrictions on abortion during the first
trimester is impossible to justify under that standard, and the conscious
weighing of competing factors that the Court's opinion apparently substitutes
for the established test is far more appropriate to a legislative judgment than
to a judicial one.
The Court eschews the history of the Fourteenth Amendment in its reliance on the
"compelling state interest" test. See Weber v. Aetna Casualty & Surety Co., 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. [410 U.S. 113, 174]
While the Court's opinion quotes from the dissent of Mr. Justice Holmes in
Lochner v. New York, 198 U.S. 45, 74 (1905), the result it reaches is more
closely attuned to the majority opinion of Mr. Justice Peckham in that case. As
in Lochner and similar cases applying substantive due process standards to
economic and social welfare legislation, the adoption of the compelling state
interest standard will inevitably require this Court to examine the legislative
policies and pass on the wisdom of these policies in the very process of
deciding whether a particular state interest put forward may or may not be
"compelling." The decision here to break pregnancy into three distinct terms and
to outline the permissible restrictions the State may impose in each one, for
example, partakes more of judicial legislation than it does of a determination
of the intent of the drafters of the Fourteenth Amendment.
The fact that a majority of the States reflecting, after all, the majority
sentiment in those States, have had restrictions on abortions for at least a
century is a strong indication, it seems to me, that the asserted right to an
abortion is not "so rooted in the traditions and conscience of our people as to
be ranked as fundamental," Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
Even today, when society's views on abortion are changing, the very existence of
the debate is evidence that the "right" to an abortion is not so universally
accepted as the appellant would have us believe.
To reach its result, the Court necessarily has had to find within the scope of
the Fourteenth Amendment a right that was apparently completely unknown to the
drafters of the Amendment. As early as 1821, the first state law dealing
directly with abortion was enacted by the Connecticut Legislature. Conn. Stat.,
Tit. 22, 14, 16. By the time of the adoption of the Fourteenth [410 U.S. 113,
175] Amendment in 1868, there were at least 36 laws enacted by state or
territorial legislatures limiting abortion. 1 While many States have amended or
updated [410 U.S. 113, 176] their laws, 21 of the laws on the books in 1868
remain in effect today. 2 Indeed, the Texas statute struck down today was, as
the majority notes, first enacted in 1857 [410 U.S. 113, 177] and "has remained
substantially unchanged to the present time." Ante, at 119.
There apparently was no question concerning the validity of this provision or of
any of the other state statutes when the Fourteenth Amendment was adopted. The
only conclusion possible from this history is that the drafters did not intend
to have the Fourteenth Amendment withdraw from the States the power to legislate
with respect to this matter.
Even if one were to agree that the case that the Court decides were here, and
that the enunciation of the substantive constitutional law in the Court's
opinion were proper, the actual disposition of the case by the Court is still
difficult to justify. The Texas statute is struck down in toto, even though the
Court apparently concedes that at later periods of pregnancy Texas might impose
these selfsame statutory limitations on abortion. My understanding of past
practice is that a statute found [410 U.S. 113, 178] to be invalid as applied to
a particular plaintiff, but not unconstitutional as a whole, is not simply
"struck down" but is, instead, declared unconstitutional as applied to the fact
situation before the Court. Yick Wo v. Hopkins, 118 U.S. 356 (1886); Street v.
New York, 394 U.S. 576 (1969).
For all of the foregoing reasons, I respectfully dissent.
[ Footnote 1 ] Jurisdictions having enacted abortion laws prior to the adoption
of the Fourteenth Amendment in 1868:
1. Alabama - Ala. Acts, c. 6, 2 (1840).
2. Arizona - Howell Code, c. 10, 45 (1865).
3. Arkansas - Ark. Rev. Stat., c. 44, div. III, Art. II, 6 (1838).
4. California - Cal. Sess. Laws, c. 99, 45, p. 233 (1849-1850).
5. Colorado (Terr.) - Colo. Gen. Laws of Terr. of Colo., 1st Sess., 42, pp.
6. Connecticut - Conn. Stat., Tit. 20, 14, 16 (1821). By 1868, this statute had
been replaced by another abortion law. Conn. Pub. Acts, c. 71, 1, 2, p. 65
7. Florida - Fla. Acts 1st Sess., c. 1637, subc. 3, 10, 11, subc. 8, 9, 10, 11
(1868), as amended, now Fla. Stat. Ann. 782.09, 782.10, 797.01, 797.02, 782.16
8. Georgia - Ga. Pen. Code, 4th Div., 20 (1833).
9. Kingdom of Hawaii - Hawaii Pen. Code, c. 12, 1, 2, 3 (1850).
10. Idaho (Terr.) - Idaho (Terr.) Laws, Crimes and Punishments 33, 34, 42, pp.
441, 443 (1863).
11. Illinois - Ill. Rev. Criminal Code 40, 41, 46, pp. 130, 131 (1827). By 1868,
this statute had been replaced by a subsequent enactment. Ill. Pub. Laws 1, 2,
3, p. 89 (1867).
12. Indiana - Ind. Rev. Stat. 1, 3, p. 224 (1838). By 1868 this statute had been
superseded by a subsequent enactment. Ind. Laws, c. LXXXI, 2 (1859).
13. Iowa (Terr.) - Iowa (Terr.) Stat., 1st Legis., 1st Sess., 18, p. 145 (1838).
By 1868, this statute had been superseded by a subsequent enactment. Iowa
(Terr.) Rev. Stat., c. 49, 10, 13 (1843).
14. Kansas (Terr.) - Kan. (Terr.) Stat., c. 48, 9, 10, 39 (1855). By 1868, this
statute had been superseded by a subsequent enactment. Kan. (Terr.) Laws, c. 28,
9, 10, 37 (1859).
15. Louisiana - La. Rev. Stat., Crimes and Offenses 24, p. 138 (1856).
16. Maine - Me. Rev. Stat., c. 160, 11, 12, 13, 14 (1840).
17. Maryland - Md. Laws, c. 179, 2, p. 315 (1868).
18. Massachusetts - Mass. Acts & Resolves, c. 27 (1845).
19. Michigan - Mich. Rev. Stat., c. 153, 32, 33, 34, p. 662 (1846). [410 U.S.
113, 176] 20. Minnesota (Terr.) - Minn. (Terr.) Rev. Stat., c. 100, 10, 11, p.
21. Mississippi - Miss. Code, c. 64, 8, 9, p. 958 (1848).
22. Missouri - Mo. Rev. Stat., Art. II, 9, 10, 36, pp. 168, 172 (1835).
23. Montana (Terr.) - Mont. (Terr.) Laws, Criminal Practice Acts 41, p. 184
24. Nevada (Terr.) - Nev. (Terr.) Laws, c. 28, 42, p. 63 (1861).
25. New Hampshire - N. H. Laws, c. 743, 1, p. 708 (1848).
26. New Jersey - N. J. Laws, p. 266 (1849).
27. New York - N. Y. Rev. Stat., pt. 4, c. 1, Tit. 2, 8, 9, pp. 12-13 (1828). By
1868, this statute had been superseded. N. Y. Laws, c. 260, 1-6, pp. 285-286
(1845); N. Y. Laws, c. 22, 1, p. 19 (1846).
28. Ohio - Ohio Gen. Stat. 111 (1), 112 (2), p. 252 (1841).
29. Oregon - Ore. Gen. Laws, Crim. Code, c. 43, 509, p. 528 (1845-1864).
30. Pennsylvania - Pa. Laws No. 374, 87, 88, 89 (1860).
31. Texas - Tex. Gen. Stat. Dig., c. VII, Arts. 531-536, p. 524 (Oldham & White
32. Vermont - Vt. Acts No. 33, 1 (1846). By 1868, this statute had been amended.
Vt. Acts No. 57, 1, 3 (1867).
33. Virginia - Va. Acts, Tit. II, c. 3, 9, p. 96 (1848).
34. Washington (Terr.) - Wash. (Terr.) Stats., c. II, 37, 38, p. 81 (1854).
35. West Virginia - See Va. Acts., Tit. II, c. 3, 9, p. 96 (1848); W. Va.
Const., Art. XI, par. 8 (1863).
36. Wisconsin - Wis. Rev. Stat., c. 133, 10, 11 (1849). By 1868, this statute
had been superseded. Wis. Rev. Stat., c. 164, 10, 11; c. 169, 58, 59 (1858).
[ Footnote 2 ] Abortion laws in effect in 1868 and still applicable as of August
1. Arizona (1865). 2. Connecticut (1860). 3. Florida (1868). 4. Idaho (1863). 5.
Indiana (1838). [410 U.S. 113, 177] 6. Iowa (1843). 7. Maine (1840). 8.
Massachusetts (1845). 9. Michigan (1846). 10. Minnesota (1851). 11. Missouri
(1835). 12. Montana (1864). 13. Nevada (1861). 14. New Hampshire (1848). 15. New
Jersey (1849). 16. Ohio (1841). 17. Pennsylvania (1860). 18. Texas (1859). 19.
Vermont (1867). 20. West Virginia (1863). 21. Wisconsin (1858). [410 U.S. 113,