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
TEXAS
No. 70-18.
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. 171.
Sarah Weddington reargued the cause for appellants. With her on the briefs were Roy Lucas, Fred
Bruner, Roy L. Merrill, Jr., and Norman Dorsen.
Robert C. Flowers, Assistant Attorney General of Texas, argued the cause for appellee on the
reargument. Jay Floyd, Assistant Attorney General, argued the cause for appellee on the original
argument. With them on the brief were Crawford C. Martin, Attorney General, Nola White, First
Assistant Attorney General, Alfred Walker, Executive Assistant Attorney General, Henry Wade, and
John B. Tolle. * [410 U.S. 113, 116]
[ Footnote * ] Briefs of amici curiae were filed by Gary K. Nelson, Attorney General of Arizona,
Robert K. Killian, Attorney General of Connecticut, Ed W. Hancock, Attorney General of Kentucky,
Clarence A. H. Meyer, Attorney General of Nebraska, and Vernon B. Romney, Attorney General of
Utah; by Joseph P. Witherspoon, Jr., for the Association of Texas Diocesan Attorneys; by Charles E.
Rice for Americans United for Life; by Eugene J. McMahon for Women for the Unborn et al.; by
Carol Ryan for the American College of Obstetricians and Gynecologists et al.; by Dennis J. Horan,
Jerome A. Frazel, Jr., Thomas M. Crisham, and Dolores V. Horan for Certain Physicians, Professors
and Fellows of the American College of Obstetrics and Gynecology; by Harriet F. Pilpel, Nancy F.
Wechsler, and Frederic S. Nathan for Planned Parenthood Federation of America, Inc., et al.; by
Alan F. Charles for the National Legal Program on Health Problems of the Poor et al.; by Marttie L.
Thompson for State Communities Aid Assn.; by [410 U.S. 113, 116] Alfred L. Scanlan, Martin J.
Flynn, and Robert M. Byrn for the National Right to Life Committee; by Helen L. Buttenwieser for
the American Ethical Union et al.; by Norma G. Zarky for the American Association of University
Women et al.; by Nancy Stearns for New Women Lawyers et al.; by the California Committee to
Legalize Abortion et al.; and by Robert E. Dunne for Robert L. Sassone.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 179, present
constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here
are typical of those that have been in effect in many States for approximately a century. The Georgia
statutes, in contrast, have a modern cast and are a legislative product that, to an extent at least,
obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and
techniques, and of new thinking about an old issue.
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion
controversy, of the vigorous opposing views, even among physicians, and of the deep and
seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's
exposure to the raw edges of human existence, one's religious training, one's attitudes toward life
and family and their values, and the moral standards one establishes and seeks to observe, are all
likely to influence and to color one's thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not
to simplify the problem.
Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of
predilection. We seek earnestly to do this, and, because we do, we [410 U.S. 113, 117] have inquired
into, and in this opinion place some emphasis upon, medical and medical-legal history and what
that history reveals about man's attitudes toward the abortion procedure over the centuries. We bear
in mind, too, Mr. Justice Holmes' admonition in his now-vindicated dissent in Lochner v. New York,
198 U.S. 45, 76 (1905):
"[The Constitution] is made for people of fundamentally differing views, and the accident of
our finding certain opinions natural and familiar or novel and even shocking ought not to
conclude our judgment upon the question whether statutes embodying them conflict with the
Constitution of the United States."
I
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's Penal Code. 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]
II
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 Amendments.
John and Mary Doe, 5 a married couple, filed a companion complaint to that of Roe. They also
named the District Attorney as defendant, claimed like constitutional deprivations, and sought
declaratory and injunctive relief. The Does alleged that they were a childless couple; that Mrs. Doe
was suffering from a "neural-chemical" disorder; that her physician had "advised her to avoid
pregnancy until such time as her condition has materially improved" (although a pregnancy at the
present time would not present "a serious risk" to her life); that, pursuant to medical advice, she had
discontinued use of birth control pills; and that if she should become pregnant, she would want to
terminate the pregnancy by an abortion performed by a competent, licensed physician under safe,
clinical conditions. By an amendment to their complaint, the Does purported to sue "on behalf of
themselves and all couples similarly situated."
The two actions were consolidated and heard together by a duly convened three-judge district court.
The suits thus presented the situations of the pregnant single woman, the childless couple, with the
wife not pregnant, [410 U.S. 113, 122] and the licensed practicing physician, all joining in the attack
on the Texas criminal abortion statutes. Upon the filing of affidavits, motions were made for
dismissal and for summary judgment. The court held that Roe and members of her class, and Dr.
Hallford, had standing to sue and presented justiciable controversies, but that the Does had failed to
allege facts sufficient to state a present controversy and did not have standing. It concluded that,
with respect to the requests for a declaratory judgment, abstention was not warranted. On the merits,
the District Court held that the "fundamental right of single women and married persons to choose
whether to have children is protected by the Ninth Amendment, through the Fourteenth
Amendment," and that the Texas criminal abortion statutes were void on their face because they
were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs'
Ninth Amendment rights. The court then held that abstention was warranted with respect to the
requests for an injunction. It therefore dismissed the Does' complaint, declared the abortion statutes
void, and dismissed the application for injunctive relief. 314 F. Supp. 1217, 1225 (ND Tex. 1970).
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C. 1253, have appealed
to this Court from that part of the District Court's judgment denying the injunction. The defendant
District Attorney has purported to cross-appeal, pursuant to the same statute, from the court's grant
of declaratory relief to Roe and Hallford. Both sides also have taken protective appeals to the
United States Court of Appeals for the Fifth Circuit. That court ordered the appeals held in
abeyance pending decision here. We postponed decision on jurisdiction to the hearing on the merits.
402 U.S. 941 (1971). [410 U.S. 113, 123]
III
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.
IV
We are next confronted with issues of justiciability, standing, and abstention. Have Roe and the
Does established that "personal stake in the outcome of the controversy," Baker v. Carr, 369 U.S.
186, 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 in Texas.
Viewing Roe's case as of the time of its filing and thereafter until as late as May, there can be little
dispute that it then presented a case or controversy and that, wholly apart from the class aspects,
she, as a pregnant single woman thwarted by the Texas criminal abortion laws, had standing to
challenge those statutes. Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971); Crossen v.
Breckenridge, 446 F.2d 833, 838-839 (CA6 1971); Poe v. Menghini, 339 F. Supp. 986, 990-991
(Kan. 1972). See Truax v. Raich, 239 U.S. 33 (1915). Indeed, we do not read the appellee's brief as
really asserting anything to the contrary. The "logical nexus between the status asserted and the
claim sought to be adjudicated," Flast v. Cohen, 392 U.S., at 102 , and the necessary degree of
contentiousness, Golden v. Zwickler, 394 U.S. 103 (1969), are both present.
The appellee notes, however, that the record does not disclose that Roe was pregnant at the time of
the District Court hearing on May 22, 1970, 6 or on the following June 17 when the court's opinion
and judgment were filed. And he suggests that Roe's case must now be moot because she and all
other members of her class are no longer subject to any 1970 pregnancy. [410 U.S. 113, 125]
The usual rule in federal cases is that an actual controversy must exist at stages of appellate or
certiorari review, and not simply at the date the action is initiated. United States v. Munsingwear,
Inc., 340 U.S. 36 (1950); Golden v. Zwickler, supra; SEC v. Medical Committee for Human Rights,
404 U.S. 403 (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 plaintiffintervenor,
alleging in his complaint that he:
"[I]n the past has been arrested for violating the Texas Abortion Laws and at the present time
stands charged by indictment with violating said laws in the Criminal District Court of
Dallas County, Texas to-wit: (1) The State of Texas vs. [410 U.S. 113, 126] James H. Hallford,
No. C-69-5307-IH, and (2) The State of Texas vs. James H. Hallford, No. C-69-2524-H. In
both cases the defendant is charged with abortion . . . ."
In his application for leave to intervene, the doctor made like representations as to the abortion
charges pending in the state court. These representations were also repeated in the affidavit he
executed and filed in support of his motion for summary judgment.
Dr. Hallford is, therefore, in the position of seeking, in a federal court, declaratory and injunctive
relief with respect to the same statutes under which he stands charged in criminal prosecutions
simultaneously pending in state court. Although he stated that he has been arrested in the past for
violating the State's abortion laws, he makes no allegation of any substantial and immediate threat
to any federally protected right that cannot be asserted in his defense against the state prosecutions.
Neither is there any allegation of harassment or bad-faith prosecution. In order to escape the rule
articulated in the cases cited in the next paragraph of this opinion that, absent harassment and bad
faith, a defendant in a pending state criminal case cannot affirmatively challenge in federal court the
statutes under which the State is prosecuting him, Dr. Hallford seeks to distinguish his status as a
present state defendant from his status as a "potential future defendant" and to assert only the latter
for standing purposes here.
We see no merit in that distinction. Our decision in Samuels v. Mackell, 401 U.S. 66 (1971),
compels the conclusion that the District Court erred when it granted declaratory relief to Dr.
Hallford instead of refraining from so doing. The court, of course, was correct in refusing to grant
injunctive relief to the doctor. The reasons supportive of that action, however, are those expressed in
Samuels v. Mackell, supra, and in Younger v. [410 U.S. 113, 127] Harris, 401 U.S. 37 (1971); Boyle v.
Landry, 401 U.S. 77 (1971); Perez v. Ledesma, 401 U.S. 82 (1971); and Byrne v. Karalexis, 401
U.S. 216 (1971). See also Dombrowski v. Pfister, 380 U.S. 479 (1965). We note, in passing, that
Younger and its companion cases were decided after the three-judge District Court decision in this
case.
Dr. Hallford's complaint in intervention, therefore, is to be dismissed. 7 He is remitted to his
defenses in the state criminal proceedings against him. We reverse the judgment of the District
Court insofar as it granted Dr. Hallford relief and failed to dismiss his complaint in intervention.
C. The Does. In view of our ruling as to Roe's standing in her case, the issue of the Does' standing
in their case has little significance. The claims they assert are essentially the same as those of Roe,
and they attack the same statutes. Nevertheless, we briefly note the Does' posture.
Their pleadings present them as a childless married couple, the woman not being pregnant, who
have no desire to have children at this time because of their having received medical advice that
Mrs. Doe should avoid pregnancy, and for "other highly personal reasons." But they "fear . . . they
may face the prospect of becoming [410 U.S. 113, 128] parents." And if pregnancy ensues, they
"would want to terminate" it by an abortion. They assert an inability to obtain an abortion legally in
Texas and, consequently, the prospect of obtaining an illegal abortion there or of going outside
Texas to some place where the procedure could be obtained legally and competently.
We thus have as plaintiffs a married couple who have, as their asserted immediate and present
injury, only an alleged "detrimental effect upon [their] marital happiness" because they are forced to
"the choice of refraining from normal sexual relations or of endangering Mary Doe's health through
a possible pregnancy." Their claim is that sometime in the future Mrs. Doe might become pregnant
because of possible failure of contraceptive measures, and at that time in the future she might want
an abortion that might then be illegal under the Texas statutes.
This very phrasing of the Does' position reveals its speculative character. Their alleged injury rests
on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness
for parenthood, and possible future impairment of health. Any one or more of these several
possibilities may not take place and all may not combine. In the Does' estimation, these possibilities
might have some real or imagined impact upon their marital happiness. But we are not prepared to
say that the bare allegation of so indirect an injury is sufficient to present an actual case or
controversy. Younger v. Harris, 401 U.S., at 41 -42; Golden v. Zwickler, 394 U.S., at 109 -110;
Abele v. Markle, 452 F.2d, at 1124-1125; Crossen v. Breckenridge, 446 F.2d, at 839. The Does'
claim falls far short of those resolved otherwise in the cases that the Does urge upon us, namely,
Investment Co. Institute v. Camp, 401 U.S. 617 (1971); Data Processing Service v. Camp, 397 U.S.
150 (1970); [410 U.S. 113, 129] and Epperson v. Arkansas, 393 U.S. 97 (1968). See also Truax v.
Raich, 239 U.S. 33 (1915).
The Does therefore are not appropriate plaintiffs in this litigation. Their complaint was properly
dismissed by the District Court, and we affirm that dismissal.
V
The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right,
said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would
discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's
Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the
Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v.
Baird, 405 U.S. 438 (1972); id., at 460 (WHITE, J., concurring in result); or among those rights
reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S., at 486
(Goldberg, J., concurring). Before addressing this claim, we feel it desirable briefly to survey, in
several aspects, the history of abortion, for such insight as that history may afford us, and then to
examine the state purposes and interests behind the criminal abortion laws.
VI
It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a
majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion
or its attempt at any time during pregnancy except when necessary to preserve the pregnant
woman's life, are not of ancient or even of common-law origin. Instead, they derive from statutory
changes effected, for the most part, in the latter half of the 19th century. [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 remedy." 15
Although the Oath is not mentioned in any of the principal briefs in this case or in Doe v. Bolton,
post, p. 179, it represents the apex of the development of strict ethical concepts in medicine, and its
influence endures to this day. Why did not the authority of Hippocrates dissuade abortion practice in
his time and that of Rome? The late Dr. Edelstein provides us with a theory: 16 The Oath was not
uncontested even in Hippocrates' day; only the Pythagorean school of philosophers frowned upon
the related act of suicide. Most Greek thinkers, on the other hand, commended abortion, at least
prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the
Pythagoreans, however, it was a matter of dogma. For them the embryo was animate from the
moment of conception, and abortion meant destruction of a living being. The abortion clause of the
Oath, therefore, "echoes Pythagorean doctrines," [410 U.S. 113, 132] and "[i]n no other stratum of
Greek opinion were such views held or proposed in the same spirit of uncompromising austerity."
17
Dr. Edelstein then concludes that the Oath originated in a group representing only a small segment
of Greek opinion and that it certainly was not accepted by all ancient physicians. He points out that
medical writings down to Galen (A. D. 130-200) "give evidence of the violation of almost every
one of its injunctions." 18 But with the end of antiquity a decided change took place. Resistance
against suicide and against abortion became common. The Oath came to be popular. The emerging
teachings of Christianity were in agreement with the Pythagorean ethic. The Oath "became the
nucleus of all medical ethics" and "was applauded as the embodiment of truth." Thus, suggests Dr.
Edelstein, it is "a Pythagorean manifesto and not the expression of an absolute standard of medical
conduct." 19
This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath's apparent
rigidity. It enables us to understand, in historical context, a long-accepted and revered statement of
medical ethics.
3. The common law. It is undisputed that at common law, abortion performed before "quickening" the
first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th
week of pregnancy 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 country.
Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still
disputed. Bracton, writing early in the 13th century, thought it homicide. 23 But the later and
predominant view, following the great common-law scholars, has been that it was, at most, a lesser
offense. In a frequently cited [410 U.S. 113, 135] passage, Coke took the position that abortion of a
woman "quick with childe" is "a great misprision, and no murder." 24 Blackstone followed, saying
that while abortion after quickening had once been considered manslaughter (though not murder),
"modern law" took a less severe view. 25 A recent review of the common-law precedents argues,
however, that those precedents contradict Coke and that even post-quickening abortion was never
established as a common-law crime. 26 This is of some importance because while most American
courts ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under
their received common law, 27 others followed Coke in stating that abortion [410 U.S. 113, 136] of a
quick fetus was a "misprision," a term they translated to mean "misdemeanor." 28 That their
reliance on Coke on this aspect of the law was uncritical and, apparently in all the reported cases,
dictum (due probably to the paucity of common-law prosecutions for post-quickening abortion),
makes it now appear doubtful that abortion was ever firmly established as a common-law crime
even with respect to the destruction of a quick fetus.
4. The English statutory law. England's first criminal abortion statute, Lord Ellenborough's Act, 43
Geo. 3, c. 58, came in 1803. It made abortion of a quick fetus, 1, a capital crime, but in 2 it provided
lesser penalties for the felony of abortion before quickening, and thus preserved the "quickening"
distinction. This contrast was continued in the general revision of 1828, 9 Geo. 4, c. 31, 13. It
disappeared, however, together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85. 6, and did
not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, 59, that formed
the core of English anti-abortion law until the liberalizing reforms of 1967. In 1929, the Infant Life
(Preservation) Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was upon the destruction of
"the life of a child capable of being born alive." It made a willful act performed with the necessary
intent a felony. It contained a proviso that one was not to be [410 U.S. 113, 137] found guilty of the
offense "unless it is proved that the act which caused the death of the child was not done in good
faith for the purpose only of preserving the life of the mother."
A seemingly notable development in the English law was the case of Rex v. Bourne, 1939. 1 K. B.
687. This case apparently answered in the affirmative the question whether an abortion necessary to
preserve the life of the pregnant woman was excepted from the criminal penalties of the 1861 Act.
In his instructions to the jury, Judge Macnaghten referred to the 1929 Act, and observed that that
Act related to "the case where a child is killed by a wilful act at the time when it is being delivered
in the ordinary course of nature." Id., at 691. He concluded that the 1861 Act's use of the word
"unlawfully," imported the same meaning expressed by the specific proviso in the 1929 Act, even
though there was no mention of preserving the mother's life in the 1861 Act. He then construed the
phrase "preserving the life of the mother" broadly, that is, "in a reasonable sense," to include a
serious and permanent threat to the mother's health, and instructed the jury to acquit Dr. Bourne if it
found he had acted in a good-faith belief that the abortion was necessary for this purpose. Id., at
693-694. The jury did acquit.
Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15 & 16 Eliz. 2,
c. 87. The Act permits a licensed physician to perform an abortion where two other licensed
physicians agree (a) "that the continuance of the pregnancy would involve risk to the life of the
pregnant woman, or of injury to the physical or mental health of the pregnant woman or any
existing children of her family, greater than if the pregnancy were terminated," or (b) "that there is a
substantial risk that if the child were born it would suffer from such physical or mental
abnormalities as [410 U.S. 113, 138] to be seriously handicapped." The Act also provides that, in
making this determination, "account may be taken of the pregnant woman's actual or reasonably
foreseeable environment." It also permits a physician, without the concurrence of others, to
terminate a pregnancy where he is of the good-faith opinion that the abortion "is immediately
necessary to save the life or to prevent grave permanent injury to the physical or mental health of
the 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 period.
An AMA Committee on Criminal Abortion was appointed in May 1857. It presented its report, 12
Trans. of the Am. Med. Assn. 73-78 (1859), to the Twelfth Annual Meeting. That report observed
that the Committee had been appointed to investigate criminal abortion "with a view to its general
suppression." It deplored abortion and its frequency and it listed three causes of "this general
demoralization":
"The first of these causes is a wide-spread popular ignorance of the true character of the
crime - a belief, even among mothers themselves, that the foetus is not alive till after the
period of quickening.
"The second of the agents alluded to is the fact that the profession themselves are frequently
supposed careless of foetal life . . . .
"The third reason of the frightful extent of this crime is found in the grave defects of our
laws, both common and statute, as regards the independent and actual existence of the child
before birth, as a living being. These errors, which are sufficient in most instances to prevent
conviction, are based, and only based, upon mistaken and exploded medical dogmas. With
strange inconsistency, the law fully acknowledges the foetus in utero and its inherent rights,
for civil purposes; while personally and as criminally affected, it fails to recognize it, [410
U.S. 113, 142] and to its life as yet denies all protection." Id., at 75-76.
The Committee then offered, and the Association adopted, resolutions protesting "against such
unwarrantable destruction of human life," calling upon state legislatures to revise their abortion
laws, and requesting the cooperation of state medical societies "in pressing the subject." Id., at 28,
78.
In 1871 a long and vivid report was submitted by the Committee on Criminal Abortion. It ended
with the observation, "We had to deal with human life. In a matter of less importance we could
entertain no compromise. An honest judge on the bench would call things by their proper names.
We could do no less." 22 Trans. of the Am. Med. Assn. 258 (1871). It proffered resolutions, adopted
by the Association, id., at 38-39, recommending, among other things, that it "be unlawful and
unprofessional for any physician to induce abortion or premature labor, without the concurrent
opinion of at least one respectable consulting physician, and then always with a view to the safety
of the child - if that be possible," and calling "the attention of the clergy of all denominations to the
perverted views of morality entertained by a large class of females - aye, and men also, on this
important question."
Except for periodic condemnation of the criminal abortionist, no further formal AMA action took
place until 1967. In that year, the Committee on Human Reproduction urged the adoption of a stated
policy of opposition to induced abortion, except when there is "documented medical evidence" of a
threat to the health or life of the mother, or that the child "may be born with incapacitating physical
deformity or mental deficiency," or that a pregnancy "resulting from legally established statutory or
forcible rape or incest may constitute a threat to the mental or physical health of the [410 U.S. 113,
143] patient," two other physicians "chosen because of their recognized professional competence
have examined the patient and have concurred in writing," and the procedure "is performed in a
hospital accredited by the Joint Commission on Accreditation of Hospitals." The providing of
medical information by physicians to state legislatures in their consideration of legislation regarding
therapeutic abortion was "to be considered consistent with the principles of ethics of the American
Medical Association." This recommendation was adopted by the House of Delegates. Proceedings
of the AMA House of Delegates 40-51 (June 1967).
In 1970, after the introduction of a variety of proposed resolutions, and of a report from its Board of
Trustees, a reference committee noted "polarization of the medical profession on this controversial
issue"; division among those who had testified; a difference of opinion among AMA councils and
committees; "the remarkable shift in testimony" in six months, felt to be influenced "by the rapid
changes in state laws and by the judicial decisions which tend to make abortion more freely
available;" and a feeling "that this trend will continue." On June 25, 1970, the House of Delegates
adopted preambles and most of the resolutions proposed by the reference committee. The preambles
emphasized "the best interests of the patient," "sound clinical judgment," and "informed patient
consent," in contrast to "mere acquiescence to the patient's demand." The resolutions asserted that
abortion is a medical procedure that should be performed by a licensed physician in an accredited
hospital only after consultation with two other physicians and in conformity with state law, and that
no party to the procedure should be required to violate personally held moral principles. 38
Proceedings [410 U.S. 113, 144] of the AMA House of Delegates 220 (June 1970). The AMA Judicial
Council rendered a complementary opinion. 39
7. The position of the American Public Health Association. In October 1970, the Executive Board of
the APHA adopted Standards for Abortion Services. These were five in 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 services.
"c. Psychiatric consultation should not be mandatory. As in the case of other specialized
medical services, psychiatric consultation should be sought for definite indications and not
on a routine basis.
"d. A wide range of individuals from appropriately trained, sympathetic volunteers to highly
skilled physicians may qualify as abortion counselors.
"e. Contraception and/or sterilization should be discussed with each abortion patient."
Recommended Standards for Abortion Services, 61 Am. J. Pub. Health 396 (1971).
Among factors pertinent to life and health risks associated with abortion were three that "are
recognized as important":
"a. the skill of the physician,
"b. the environment in which the abortion is performed, and above all
"c. the duration of pregnancy, as determined by uterine size and confirmed by menstrual
history." Id., at 397.
It was said that "a well-equipped hospital" offers more protection "to cope with unforeseen
difficulties than an office or clinic without such resources. . . . The factor of gestational age is of
overriding importance." Thus, it was recommended that abortions in the second trimester and early
abortions in the presence of existing medical complications be performed in hospitals as inpatient
procedures. For pregnancies in the first trimester, [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
VII
Three reasons have been advanced to explain historically the enactment of criminal abortion laws in
the 19th century and to justify their continued existence. [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.
VIII
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however,
going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 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 constitutionally justifiable.
IX
The District Court held that the appellee failed to meet his burden of demonstrating that the Texas
statute's infringement upon Roe's rights was necessary to support a compelling state interest, and
that, although the appellee presented "several compelling justifications for state presence in the area
of abortions," the statutes outstripped these justifications and swept "far beyond any areas of
compelling state interest." 314 F. Supp., at 1222-1223. Appellant and appellee both contest that
holding. Appellant, as has been indicated, claims an absolute right that bars any state imposition of
criminal penalties in the area. Appellee argues that the State's determination to recognize and
protect prenatal life from and after conception constitutes a compelling state interest. As noted
above, we do not agree fully with either formulation.
A. The appellee and certain amici argue that the fetus is a "person" within the language and
meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the
well-known facts of fetal development. If this suggestion of personhood is established, the
appellant's case, of course, collapses, [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. 113, 160]
It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and
difficult question. There has always been strong support for the view that life does not begin until
live birth. This was the belief of the Stoics. 56 It appears to be the predominant, though not the
unanimous, attitude of the Jewish faith. 57 It may be taken to represent also the position of a large
segment of the Protestant community, insofar as that can be ascertained; organized groups that have
taken a formal position on the abortion issue have generally regarded abortion as a matter for the
conscience of the individual and her family. 58 As we have noted, the common law found greater
significance in quickening. Physicians and their scientific colleagues have regarded that event with
less interest and have tended to focus either upon conception, upon live birth, or upon the interim
point at which the fetus becomes "viable," that is, potentially able to live outside the mother's
womb, albeit with artificial aid. 59 Viability is usually placed at about seven months (28 weeks) but
may occur earlier, even at 24 weeks. 60 The Aristotelian theory of "mediate animation," that held
sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman
Catholic dogma until the 19th century, despite opposition to this "ensoulment" theory from those in
the Church who would recognize the existence of life from [410 U.S. 113, 161] the moment of
conception. 61 The latter is now, of course, the official belief of the Catholic Church. As one brief
amicus discloses, this is a view strongly held by many non-Catholics as well, and by many
physicians. Substantial problems for precise definition of this view are posed, however, by new
embryological data that purport to indicate that conception is a "process" over time, rather than an
event, and by new medical techniques such as menstrual extraction, the "morning-after" pill,
implantation of embryos, artificial insemination, and even artificial wombs. 62
In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as
we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly
defined situations and except when the rights are contingent upon live birth. For example, the
traditional rule of tort law denied recovery for prenatal injuries even though the child was born
alive. 63 That rule has been changed in almost every jurisdiction. In most States, recovery is said to
be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though
few [410 U.S. 113, 162] courts have squarely so held. 64 In a recent development, generally opposed
by the commentators, some States permit the parents of a stillborn child to maintain an action for
wrongful death because of prenatal injuries. 65 Such an action, however, would appear to be one to
vindicate the parents' interest and is thus consistent with the view that the fetus, at most, represents
only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or
interests by way of inheritance or other devolution of property, and have been represented by
guardians ad litem. 66 Perfection of the interests involved, again, has generally been contingent
upon live birth. In short, the unborn have never been recognized in the law as persons in the whole
sense.
X
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the
rights of the pregnant woman that are at stake. We repeat, however, that the State does have an
important and legitimate interest in preserving and protecting the health of the pregnant woman,
whether she be a resident of the State or a nonresident who seeks medical consultation and
treatment there, and that it has still another important and legitimate interest in protecting the
potentiality of human life. These interests are separate and distinct. Each grows in substantiality as
the woman approaches [410 U.S. 113, 163] term and, at a point during pregnancy, each becomes
"compelling."
With respect to the State's important and legitimate interest in the health of the mother, the
"compelling" point, in the light of present medical knowledge, is at approximately the end of the
first trimester. This is so because of the now-established medical fact, referred to above at 149, that
until the end of the first trimester mortality in abortion may be less than mortality in normal
childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to
the extent that the regulation reasonably relates to the preservation and protection of maternal
health. Examples of permissible state regulation in this area are requirements as to the qualifications
of the person who is to perform the abortion; as to the licensure of that person; as to the facility in
which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or
some other place of less-than-hospital status; as to the licensing of the facility; and the like.
This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the
attending physician, in consultation with his patient, is free to determine, without regulation by the
State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is
reached, the judgment may be effectuated by an abortion free of interference by the State.
With respect to the State's important and legitimate interest in potential life, the "compelling" point
is at viability. This is so because the fetus then presumably has the capability of meaningful life
outside the mother's womb. State regulation protective of fetal life after viability thus has both
logical and biological justifications. If the State is interested in protecting fetal life after viability, it
may go so far as to proscribe abortion [410 U.S. 113, 164] during that period, except when it is
necessary to preserve the life or health of the mother.
Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions
to those "procured or attempted by medical advice for the purpose of saving the life of the mother,"
sweeps too broadly. The statute makes no distinction between abortions performed early in
pregnancy and those performed later, and it limits to a single reason, "saving" the mother's life, the
legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack
made upon it 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.
XI
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 maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of
human life [410 U.S. 113, 165] may, if it chooses, regulate, and even proscribe, abortion except where
it is necessary, in appropriate medical judgment, for the preservation of the life or health of the
mother.
2. The State may define the term "physician," as it has been employed in the preceding paragraphs
of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may
proscribe any abortion by a person who is not a physician as so defined.
In Doe v. Bolton, post, p. 179, procedural requirements contained in one of the modern abortion
statutes are considered. That opinion and this one, of course, are to be read 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 intraprofessional,
are available.
XII
Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes,
as a unit, must fall. The exception of Art. 1196 cannot be struck down separately, for then the State
would be left with a statute proscribing all abortion procedures no matter how medically urgent the
case.
Although the District Court granted appellant Roe declaratory relief, it stopped short of issuing an
injunction against enforcement of the Texas statutes. The Court has recognized that different
considerations enter into a federal court's decision as to declaratory relief, on the one hand, and
injunctive relief, on the other. Zwickler v. Koota, 389 U.S. 241, 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.]
Footnotes
[ 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; Williams 152.
[ Footnote 22 ] Early philosophers believed that the embryo or fetus did not become formed and
begin to live until at least 40 days after conception for a male, and 80 to 90 days for a female. See,
for example, Aristotle, Hist. Anim. 7.3.583b; Gen. Anim. 2.3.736, 2.5.741; Hippocrates, Lib. de
Nat. Puer., No. 10. Aristotle's thinking derived from his three-stage theory of life: vegetable, animal,
rational. The vegetable stage was reached at conception, the animal at "animation," and the rational
soon after live birth. This theory, together with the 40/80 day view, came to be accepted by early
Christian thinkers.
The theological debate was reflected in the writings of St. Augustine, who made a distinction
between embryo inanimatus, not yet endowed with a soul, and embryo animatus. He may have
drawn upon Exodus 21:22. At one point, however, he expressed the view that human powers cannot
determine the point during fetal development at which the critical change occurs. See Augustine, De
Origine Animae 4.4 (Pub. Law 44.527). See also W. Reany, The Creation of the Human Soul, c. 2
and 83-86 (1932); Huser, The Crime of Abortion in Canon Law 15 (Catholic Univ. of America,
Canon Law Studies No. 162, Washington, D.C., 1942).
Galen, in three treatises related to embryology, accepted the thinking of Aristotle and his followers.
Quay 426-427. Later, Augustine on abortion was incorporated by Gratian into the Decretum,
published about 1140. Decretum Magistri Gratiani 2.32.2.7 to 2.32.2.10, [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 (1913).
[ Footnote 33 ] The early statutes are discussed in Quay 435-438. See also Lader 85-88; Stern
85-86; and Means II 375-376.
[ Footnote 34 ] Criminal abortion statutes in effect in the States as of 1961, together with historical
statutory development and important judicial interpretations of the state statutes, are cited and
quoted in Quay 447-520. See Comment, A Survey of the Present Statutory and Case Law on
Abortion: The Contradictions and the Problems, 1972 U. Ill. L. F. 177, 179, classifying the abortion
statutes and listing 25 States as permitting abortion only if necessary to save or preserve the
mother's life.
[ Footnote 35 ] Ala. Code, Tit. 14, 9 (1958); D.C. Code Ann. 22-201 (1967).
[ Footnote 36 ] Mass. Gen. Laws Ann., c. 272, 19 (1970); N. J. Stat. Ann. 2A:87-1 (1969); Pa. Stat.
Ann., Tit. 18, 4718, 4719 (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) "(2) "(3)
"SECTION 7. [Time of Taking Effect.] This Act shall take effect ________________."
[ Footnote 41 ] "This Act is based largely upon the New York abortion act following a review of the
more recent laws on abortion in several states and upon recognition of a more liberal trend in laws
on this subject. Recognition was given also to the several decisions in state and federal courts which
show a further trend toward liberalization of abortion laws, especially during the first trimester of
pregnancy.
"Recognizing that a number of problems appeared in New York, a shorter time period for
`unlimited' abortions was advisable. The [410 U.S. 113, 148] time period was bracketed to
permit the various states to insert a figure more in keeping with the different conditions that
might exist among the states. Likewise, the language limiting the place or places in which
abortions may be performed was also bracketed to account for different conditions among
the states. In addition, limitations on abortions after the initial `unlimited' period were placed
in brackets so that individual states may adopt all or any of these reasons, or place further
restrictions upon abortions after the initial period.
"This Act does not contain any provision relating to medical review committees or
prohibitions against sanctions imposed upon medical personnel refusing to participate in
abortions because of religious or other similar reasons, or the like. Such provisions, while
related, do not directly pertain to when, where, or by whom abortions may be performed;
however, the Act is not drafted to exclude such a provision by a state wishing to enact the
same."
[ Footnote 42 ] See, for example, YWCA v. Kugler, 342 F. Supp. 1048, 1074 (N. J. 1972); Abele v.
Markle, 342 F. Supp. 800, 805-806 (Conn. 1972) (Newman, J., concurring in result), appeal
docketed, No. 72-56; Walsingham v. State, 250 So.2d 857, 863 (Ervin, J., concurring) (Fla. 1971);
State v. Gedicke, 43 N. J. L. 86, 90 (1881); Means II 381-382.
[ Footnote 43 ] See C. Haagensen & W. Lloyd, A Hundred Years of Medicine 19 (1943).
[ Footnote 44 ] Potts, Postconceptive Control of Fertility, 8 Int'l J. of G. & O. 957, 967 (1970)
(England and Wales); Abortion Mortality, 20 Morbidity and Mortality 208, 209 (June 12, 1971)
(U.S. Dept. of HEW, Public Health Service) (New York City); Tietze, United States: Therapeutic
Abortions, 1963-1968, 59 Studies in Family Planning 5, 7 (1970); Tietze, Mortality with
Contraception and Induced Abortion, 45 Studies in Family Planning 6 (1969) (Japan,
Czechoslovakia, Hungary); Tietze & Lehfeldt, Legal Abortion in Eastern Europe, 175 J. A. M. A.
1149, 1152 (April 1961). Other sources are discussed in Lader 17-23.
[ Footnote 45 ] See Brief of Amicus National Right to Life Committee; R. Drinan, The Inviolability
of the Right to be Born, in Abortion and the Law 107 (D. Smith ed. 1967); Louisell, Abortion, The
Practice of Medicine and the Due Process of Law, 16 U. C. L. A. L. Rev. 233 (1969); Noonan 1.
[ Footnote 46 ] See, e. g., Abele v. Markle, 342 F. Supp. 800 (Conn. 1972), appeal docketed, No.
72-56.
[ Footnote 47 ] See discussions in Means I and Means II.
[ Footnote 48 ] See, e. g., State v. Murphy, 27 N. J. L. 112, 114 (1858).
[ Footnote 49 ] Watson v. State, 9 Tex. App. 237, 244-245 (1880); Moore v. State, 37 Tex. Cr. R.
552, 561, 40 S. W. 287, 290 (1897); Shaw v. State, 73 Tex. Cr. R. 337, 339, 165 S. W. 930, 931
(1914); Fondren v. State, 74 Tex. Cr. R. 552, 557, 169 S. W. 411, 414 (1914); Gray v. State, 77 Tex.
Cr. R. 221, 229, 178 S. W. 337, 341 (1915). There is no immunity in Texas for the father who is not
married to the mother. Hammett v. State, 84 Tex. Cr. R. 635, 209 S. W. 661 (1919); Thompson v.
State (Ct. Crim. App. Tex. 1971), appeal docketed, No. 71-1200.
[ Footnote 50 ] See Smith v. State, 33 Me., at 55; In re Vince, 2 N. J. 443, 450, 67 A. 2d 141, 144
(1949). A short discussion of the modern law on this issue is contained in the Comment to the ALI's
Model Penal Code 207.11, at 158 and nn. 35-37 (Tent. Draft No. 9, 1959).
[ Footnote 51 ] Tr. of Oral Rearg. 20-21.
[ Footnote 52 ] Tr. of Oral Rearg. 24.
[ Footnote 53 ] We are not aware that in the taking of any census under this clause, a fetus has ever
been counted.
[ Footnote 54 ] When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a
person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited.
Despite broad proscription, an exception always exists. The exception contained [410 U.S. 113, 158]
in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the
life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due
process of law, and if the mother's condition is the sole determinant, does not the Texas exception
appear to be out of line with the Amendment's command?
There are other inconsistencies between Fourteenth Amendment status and the typical abortion
statute. It has already been pointed out, n. 49, supra, that in Texas the woman is not a principal or an
accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a
principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is
significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal
Code. If the fetus is a person, may the penalties be different?
[ Footnote 55 ] Cf. the Wisconsin abortion statute, defining "unborn child" to mean "a human being
from the time of conception until it is born alive," Wis. Stat. 940.04 (6) (1969), and the new
Connecticut Statute, Pub. Act No. 1 (May 1972 special session), declaring it to be the public policy
of the State and the legislative intent "to protect and preserve human life from the moment of
conception."
[ Footnote 56 ] Edelstein 16.
[ Footnote 57 ] Lader 97-99; D. Feldman, Birth Control in Jewish Law 251-294 (1968). For a
stricter view, see I. Jakobovits, Jewish Views on Abortion, in Abortion and the Law 124 (D. Smith
ed. 1967).
[ Footnote 58 ] Amicus Brief for the American Ethical Union et al. For the position of the National
Council of Churches and of other denominations, see Lader 99-101.
[ Footnote 59 ] L. Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed. 1971); Dorland's
Illustrated Medical Dictionary 1689 (24th ed. 1965).
[ Footnote 60 ] Hellman & Pritchard, supra, n. 59, at 493.
[ Footnote 61 ] For discussions of the development of the Roman Catholic position, see D.
Callahan, Abortion: Law, Choice, and Morality 409-447 (1970); Noonan 1.
[ Footnote 62 ] See Brodie, The New Biology and the Prenatal Child, 9 J. Family L. 391, 397
(1970); Gorney, The New Biology and the Future of Man, 15 U. C. L. A. L. Rev. 273 (1968); Note,
Criminal Law - Abortion - The "Morning-After Pill" and Other Pre-Implantation Birth-Control
Methods and the Law, 46 Ore. L. Rev. 211 (1967); G. Taylor, The Biological Time Bomb 32 (1968);
A. Rosenfeld, The Second Genesis 138-139 (1969); Smith, Through a Test Tube Darkly: Artificial
Insemination and the Law, 67 Mich. L. Rev. 127 (1968): Note, Artificial Insemination and the Law,
1968 U. Ill. L. F. 203.
[ Footnote 63 ] W. Prosser, The Law of Torts 335-338 (4th ed. 1971); 2 F. Harper & F. James, The
Law of Torts 1028-1031 (1956); Note, 63 Harv. L. Rev. 173 (1949).
[ Footnote 64 ] See cases cited in Prosser, supra, n. 63, at 336-338; Annotation, Action for Death of
Unborn Child, 15 A. L. R. 3d 992 (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 (1971).
[ Footnote 66 ] Louisell, Abortion, The Practice of Medicine and the Due Process of Law, 16 U. C.
L. A. L. Rev. 233, 235-238 (1969); Note, 56 Iowa L. Rev. 994, 999-1000 (1971); Note, The Law
and the Unborn Child, 46 Notre Dame Law. 349, 351-354 (1971).
[ Footnote 67 ] Neither in this opinion nor in Doe v. Bolton, post, p. 179, do we discuss the father's
rights, if any exist in the constitutional context, in the abortion decision. No paternal right has been
asserted in either of the cases, and the Texas and the Georgia statutes on their face take no
cognizance of the father. We are aware that some statutes recognize the father under certain
circumstances. North Carolina, for example, N.C. Gen. Stat. 14-45.1 (Supp. 1971), requires written
permission for the abortion from the husband when the woman is a married minor, that is, when she
is less than 18 years of age, 41 N.C. A. G. 489 (1971); if the woman is an unmarried minor, written
permission from the parents is required. We need not now decide whether provisions of this kind are
constitutional.
MR. JUSTICE STEWART, concurring.
In 1963, this Court, in Ferguson v. Skrupa, 372 U.S. 726 , purported to sound the death knell for the
doctrine of substantive due process, a doctrine under which many state laws had in the past been
held to violate the Fourteenth Amendment. As Mr. Justice Black's opinion for the Court in Skrupa
put it: "We have returned to the original constitutional proposition that courts do not substitute their
social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws."
Id., at 730. 1
Barely two years later, in Griswold v. Connecticut, 381 U.S. 479 , the Court held a Connecticut
birth control law unconstitutional. In view of what had been so recently said in Skrupa, the Court's
opinion in Griswold understandably did its best to avoid reliance on the Due Process Clause of the
Fourteenth Amendment as the ground for decision. Yet, the Connecticut law did not violate any
provision of the Bill of Rights, nor any other specific provision of the Constitution. 2 So it was clear
[410 U.S. 113, 168] to me then, and it is equally clear to me now, that the Griswold decision can be
rationally understood only as a holding that the Connecticut statute substantively invaded the
"liberty" that is protected by the Due Process Clause of the Fourteenth Amendment. 3 As so
understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of
substantive due process, and I now accept it as such.
"In a Constitution for a free people, there can be no doubt that the meaning of `liberty' must
be broad indeed." Board of Regents v. Roth, 408 U.S. 564, 572 . The Constitution nowhere
mentions a specific right of personal choice in matters of marriage and family life, but the
"liberty" protected by the Due Process Clause of the Fourteenth Amendment covers more
than those freedoms explicitly named in the Bill of Rights. See Schware v. Board of Bar
Examiners, 353 U.S. 232, 238 -239; Pierce v. Society of Sisters, 268 U.S. 510, 534 -535;
Meyer v. Nebraska, 262 U.S. 390, 399 -400. Cf. Shapiro v. Thompson, 394 U.S. 618, 629
-630; United States v. Guest, 383 U.S. 745, 757 -758; Carrington v. Rash, 380 U.S. 89, 96 ;
Aptheker v. Secretary of State, 378 U.S. 500, 505 ; Kent v. Dulles, 357 U.S. 116, 127 ;
Bolling v. Sharpe, 347 U.S. 497, 499 -500; Truax v. Raich, 239 U.S. 33, 41 . [410 U.S. 113,
169]
As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty guaranteed by the Due Process
Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere
provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of
the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms;
the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which,
broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless
restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that
certain interests require particularly careful scrutiny of the state needs asserted to justify their
abridgment." Poe v. Ullman, 367 U.S. 497, 543 (opinion dissenting from dismissal of appeal)
(citations omitted). In the words of Mr. Justice Frankfurter, "Great concepts like . . . `liberty' . . .
were purposely left to gather meaning from experience. For they relate to the whole domain of
social and economic fact, and the statesmen who founded this Nation knew too well that only a
stagnant society remains unchanged." National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S.
582, 646 (dissenting opinion).
Several decisions of this Court make clear that freedom of personal choice in matters of marriage
and family life is one of the liberties protected by the Due Process Clause of the Fourteenth
Amendment. Loving v. Virginia, 388 U.S. 1, 12 ; Griswold v. Connecticut, supra; Pierce v. Society
of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U.S. 158, 166 ;
Skinner v. Oklahoma, 316 U.S. 535, 541 . As recently as last Term, in Eisenstadt v. Baird, 405 U.S.
438, 453 , we recognized "the right of the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person [410 U.S. 113, 170] as the
decision whether to bear or beget a child." That right necessarily includes the right of a woman to
decide whether or not to terminate her pregnancy. "Certainly the interests of a woman in giving of
her physical and emotional self during pregnancy and the interests that will be affected throughout
her life by the birth and raising of a child are of a far greater degree of significance and personal
intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters, 268
U.S. 510 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska, 262 U.S.
390 (1923)." Abele v. Markle, 351 F. Supp. 224, 227 (Conn. 1972).
Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is
embraced within the personal liberty protected by the Due Process Clause of the Fourteenth
Amendment.
It is evident that the Texas abortion statute infringes that right directly. Indeed, it is difficult to
imagine a more complete abridgment of a constitutional freedom than that worked by the inflexible
criminal statute now in force in Texas. The question then becomes whether the state interests
advanced to justify this abridgment can survive the "particularly careful scrutiny" that the
Fourteenth Amendment here requires.
The asserted state interests are protection of the health and safety of the pregnant woman, and
protection of the potential future human life within her. These are legitimate objectives, amply
sufficient to permit a State to regulate abortions as it does other surgical procedures, and perhaps
sufficient to permit a State to regulate abortions more stringently or even to prohibit them in the late
stages of pregnancy. But such legislation is not before us, and I think the Court today has
thoroughly demonstrated that these state interests cannot constitutionally support the broad
abridgment of personal [410 U.S. 113, 171] liberty worked by the existing Texas law. Accordingly, I
join the Court's opinion holding that that law is invalid under the Due Process Clause of the
Fourteenth Amendment.
[ Footnote 1 ] Only Mr. Justice Harlan failed to join the Court's opinion, 372 U.S., at 733 .
[ Footnote 2 ] There is no constitutional right of privacy, as such. "[The Fourth] Amendment
protects individual privacy against certain kinds of governmental intrusion, but its protections go
further, and often have nothing to do with privacy at all. Other provisions of [410 U.S. 113, 168] the
Constitution protect personal privacy from other forms of governmental invasion. But the protection
of a person's general right to privacy - his right to be let alone by other people - is, like the
protection of his property and of his very life, left largely to the law of the individual States." Katz
v. United States, 389 U.S. 347, 350 -351 (footnotes omitted).
[ Footnote 3 ] This was also clear to Mr. Justice Black, 381 U.S., at 507 (dissenting opinion); to Mr.
Justice Harlan, 381 U.S., at 499 (opinion concurring in the judgment); and to MR. JUSTICE
WHITE, 381 U.S., at 502 (opinion concurring in the judgment). See also Mr. Justice Harlan's
thorough and thoughtful opinion dissenting from dismissal of the appeal in Poe v. Ullman, 367 U.S.
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 therefore dissent.
I
The Court's opinion decides that a State may impose virtually no restriction on the performance of
abortions during the first trimester of pregnancy. Our previous decisions indicate that a necessary
predicate for such an opinion is a plaintiff who was in her first trimester of pregnancy at some time
during the pendency of her 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).
II
Even if there were a plaintiff in this case capable of litigating the issue which the Court decides, I
would reach a conclusion opposite to that reached by the Court. I have difficulty in concluding, as
the Court does, that the right of "privacy" is involved in this case. Texas, by the statute here
challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such
as Roe. A transaction resulting in an operation such as this is not "private" in the ordinary usage of
that word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from
searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has
referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967).
If the Court means by the term "privacy" no more than that the claim of a person to be free from
unwanted state regulation of consensual transactions may be a form of "liberty" protected by the
Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier
decisions on the basis of that liberty. I agree with the statement of MR. JUSTICE STEWART in his
concurring opinion that the "liberty," against deprivation of which without due process the
Fourteenth [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.
III
Even if one were to agree that the case that the Court decides were here, and that the enunciation of
the substantive constitutional law in the Court's opinion were proper, the actual disposition of the
case by the Court is still difficult to justify. The Texas statute is struck down in toto, even though the
Court apparently concedes that at later periods of pregnancy Texas might impose these 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. 296-297 (1861).
6. Connecticut - Conn. Stat., Tit. 20, 14, 16 (1821). By 1868, this statute had been replaced by
another abortion law. Conn. Pub. Acts, c. 71, 1, 2, p. 65 (1860).
7. Florida - Fla. Acts 1st Sess., c. 1637, subc. 3, 10, 11, subc. 8, 9, 10, 11 (1868), as amended, now
Fla. Stat. Ann. 782.09, 782.10, 797.01, 797.02, 782.16 (1965).
8. Georgia - 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. 493 (1851).
21. Mississippi - Miss. Code, c. 64, 8, 9, p. 958 (1848).
22. Missouri - Mo. Rev. Stat., Art. II, 9, 10, 36, pp. 168, 172 (1835).
23. Montana (Terr.) - Mont. (Terr.) Laws, Criminal Practice Acts 41, p. 184 (1864).
24. Nevada (Terr.) - Nev. (Terr.) Laws, c. 28, 42, p. 63 (1861).
25. New Hampshire - N. H. Laws, c. 743, 1, p. 708 (1848).
26. New Jersey - N. J. Laws, p. 266 (1849).
27. New York - N. Y. Rev. Stat., pt. 4, c. 1, Tit. 2, 8, 9, pp. 12-13 (1828). By 1868, this statute had
been superseded. N. Y. Laws, c. 260, 1-6, pp. 285-286 (1845); N. Y. Laws, c. 22, 1, p. 19 (1846).
28. Ohio - Ohio Gen. Stat. 111 (1), 112 (2), p. 252 (1841).
29. Oregon - Ore. Gen. Laws, Crim. Code, c. 43, 509, p. 528 (1845-1864).
30. Pennsylvania - Pa. Laws No. 374, 87, 88, 89 (1860).
31. Texas - Tex. Gen. Stat. Dig., c. VII, Arts. 531-536, p. 524 (Oldham & White 1859).
32. Vermont - Vt. Acts No. 33, 1 (1846). By 1868, this statute had been amended. Vt. Acts No. 57,
1, 3 (1867).
33. Virginia - Va. Acts, Tit. II, c. 3, 9, p. 96 (1848).
34. Washington (Terr.) - Wash. (Terr.) Stats., c. II, 37, 38, p. 81 (1854).
35. West Virginia - See Va. Acts., Tit. II, c. 3, 9, p. 96 (1848); W. Va. Const., Art. XI, par. 8 (1863).
36. Wisconsin - Wis. Rev. Stat., c. 133, 10, 11 (1849). By 1868, this statute had been superseded.
Wis. Rev. Stat., c. 164, 10, 11; c. 169, 58, 59 (1858).
[ Footnote 2 ] Abortion laws in effect in 1868 and still applicable as of August 1970:
1. Arizona (1865). 2. Connecticut (1860). 3. Florida (1868). 4. Idaho (1863). 5. Indiana (1838). [410
U.S. 113, 177] 6. Iowa (1843). 7. Maine (1840). 8. Massachusetts (1845). 9. Michigan (1846). 10.
Minnesota (1851). 11. Missouri (1835). 12. Montana (1864). 13. Nevada (1861). 14. New
Hampshire (1848). 15. New Jersey (1849). 16. Ohio (1841). 17. Pennsylvania (1860). 18. Texas
(1859). 19. Vermont (1867). 20. West Virginia (1863). 21. Wisconsin (1858). [410 U.S. 113, 179]