Supreme Court: Roe vs. Wade Page 2
VII
Three reasons have been advanced to explain historically the enactment
of criminal abortion laws in the 19th century and to justify their
continued existence.
It has been argued occasionally that these laws were the product
of a Victorian social concern to discourage illicit sexual conduct.
Texas, however, does not advance this justification in the present
case, and it appears that no court or commentator has taken the
argument seriously. 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 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. 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.
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 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 (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 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, 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 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, 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
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 Ohio St. 2d 65, 275 N.
E. 2d 599 (1971). Indeed, our decision in United States v. Vuitch,
402 U.S. 62 (1971), inferentially is to the same effect, for we
there would not have indulged in statutory interpretation favorable
to abortion in specified circumstances if the necessary consequence
was the termination of life entitled to Fourteenth Amendment protection.
This conclusion, however, does not of itself fully answer the
contentions raised by Texas, and we pass on to other considerations.
B. The pregnant woman cannot be isolated in her privacy. She carries
an embryo and, later, a fetus, if one accepts the medical definitions
of the developing young in the human uterus. See Dorland's Illustrated
Medical Dictionary 478-479, 547 (24th ed. 1965). The situation
therefore is inherently different from marital intimacy, or bedroom
possession of obscene material, or marriage, or procreation, or
education, with which Eisenstadt and Griswold, Stanley, Loving,
Skinner, and Pierce and Meyer were respectively concerned. As
we have intimated above, it is reasonable and appropriate for
a State to decide that at some point in time another interest,
that of health of the mother or that of potential human life,
becomes significantly involved. The woman's privacy is no longer
sole and any right of privacy she possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins
at conception and is present throughout pregnancy, and that, therefore,
the State has a compelling interest in protecting that life from
and after conception. We need not resolve the difficult question
of when life begins. When those trained in the respective disciplines
of medicine, philosophy, and theology are unable to arrive at
any consensus, the judiciary, at this point in the development
of man's knowledge, is not in a position to speculate as to the
answer.
It should be sufficient to note briefly the wide divergence of
thinking on this most sensitive and difficult question. There
has always been strong support for the view that life does not
begin until live birth. This was the belief of the Stoics. 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 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 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 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
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 lifesaving procedure on behalf
of the mother, without regard to pregnancy stage and without recognition
of the other interests involved, is violative of the Due Process
Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first
trimester, the abortion decision and its effectuation must be
left to the medical judgment of the pregnant woman's attending
physician.
(b) For the stage subsequent to approximately the end of the first
trimester, the State, in promoting its interest in the health
of the mother, may, if it chooses, regulate the abortion procedure
in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting
its interest in the potentiality of human life may, if it chooses,
regulate, and even proscribe, abortion except where it is necessary,
in appropriate medical judgment, for the preservation of the life
or health of the mother.
2. The State may define the term "physician," as it
has been employed in the preceding paragraphs of this Part XI
of this opinion, to mean only a physician currently licensed by
the State, and may proscribe any abortion by a person who is not
a physician as so defined.
In Doe v. Bolton, post, p. 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 state interests provide compelling justifications
for intervention. Up to those points, the abortion decision in
all its aspects is inherently, and primarily, a medical decision,
and basic responsibility for it must rest with the physician.
If an individual practitioner abuses the privilege of exercising
proper medical judgment, the usual remedies, judicial and intra-professional,
are available.
XII
Our conclusion that Art. 1196 is unconstitutional means, of course,
that the Texas abortion statutes, as a unit, must fall. The exception
of Art. 1196 cannot be struck down separately, for then the State
would be left with a statute proscribing all abortion procedures
no matter how medically urgent the case.
Although the District Court granted appellant Roe declaratory
relief, it stopped short of issuing an injunction against enforcement
of the Texas statutes. The Court has recognized that different
considerations enter into a federal court's decision as to declaratory
relief, on the one hand, and injunctive relief, on the other.
Zwickler v. Koota, 389 U.S. 241, 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 of the District Court is affirmed.
Costs are allowed to the appellee.
It is so ordered.
---- Begin EndNotes ----
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 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."
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, §§
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).
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 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).
4 The name is a pseudonym.
5 These names are pseudonyms.
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.
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.
8 A. Castiglioni, A History
of Medicine 84 (2d ed. 1947), E. Krumbhaar, translator and editor
(hereinafter Castiglioni).
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).
10 L. Edelstein, The Hippocratic
Oath 10 (1943) (hereinafter Edelstein). But see Castiglioni 227.
11 Edelstein 12; Ricci 113-114,
118-119; Noonan 5.
12 Edelstein 13-14.
13 Castiglioni 148.
14 Id., at 154.
15 Edelstein 3.
16 Id., at 12, 15-18.
17 Id., at 18; Lader 76.
18 Edelstein 63.
19 Id., at 64.
20 Dorland's Illustrated
Medical Dictionary 1261 (24th ed. 1965).
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 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.
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,
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).
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).
24 E. Coke, Institutes III
*50.
25 1 W. Blackstone, Commentaries
*129-130.
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."
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. 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).
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).
29 Conn. Stat., Tit. 20,
§ 14 (1821).
30 Conn. Pub. Acts, c. 71,
§ 1 (1860).
31 N. Y. Rev. Stat., pt.
4, c. 1, Tit. 2, Art. 1, § 9, p. 661, and Tit. 6, §
21, p. 694 (1829).
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).
33 The early statutes are
discussed in Quay 435-438. See also Lader 85-88; Stern 85-88;
and Means II 375-376.
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.
35 Ala. Code, Tit. 14, §
9 (1958); D. C. Code Ann. § 22-201 (1967).
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).
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.
38 "Whereas, Abortion,
like any other medical procedure, should not be performed when
contrary to the best interests of the patient since good medical
practice requires due consideration for the patient's welfare
and not mere acquiescence to the patient's demand; and
"Whereas, The standards of sound clinical judgment, which,
together with informed patient consent should be determinative
according to the merits of each individual case; therefore be
it
"RESOLVED, That abortion is a medical procedure and should
be performed only by a duly licensed physician and surgeon in
an accredited hospital acting only after consultation with two
other physicians chosen because of their professional competency
and in conformance with standards of good medical practice and
the Medical Practice Act of his State; and be it further
"RESOLVED, That no physician or other professional personnel
shall be compelled to perform any act which violates his good
medical judgment. Neither physician, hospital, nor hospital personnel
shall be required to perform any act violative of personally-held
moral principles. In these circumstances good medical practice
requires only that the physician or other professional personnel
withdraw from the case so long as the withdrawal is consistent
with good medical practice." Proceedings of the AMA House
of Delegates 220 (June 1970).
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."
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 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 -- -- -- -- -- -- ."
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 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."
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.
43 See C. Haagensen &
W. Lloyd, A Hundred Years of Medicine 19 (1943).
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.
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.
46 See, e. g., Abele v. Markle,
342 F.Supp. 800 (Conn. 1972), appeal docketed, No. 72-56.
47 See discussions in Means
I and Means II.
48 See, e. g., State v. Murphy,
27 N. J. L. 112, 114 (1858).
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.
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).
51 Tr. of Oral Rearg. 20-21.
52 Tr. of Oral Rearg. 24.
53 We are not aware that
in the taking of any census under this clause, a fetus has ever
been counted.
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 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?
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."
56 Edelstein 16.
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).
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.
59 L. Hellman & J. Pritchard,
Williams Obstetrics 493 (14th ed. 1971); Dorland's Illustrated
Medical Dictionary 1689 (24th ed. 1965).
60 Hellman & Pritchard,
supra, n. 59, at 493.
61 For discussions of the
development of the Roman Catholic position, see D. Callahan, Abortion:
Law, Choice, and Morality 409-447 (1970); Noonan 1.
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.
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).
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).
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).
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).
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.