ROE v. WADE, 410
Argued December 13, 1971 Reargued October
11, 1972
Decided January 22, 1973
MR. JUSTICE BLACKMUN delivered the
opinion of the Court.
This
We forthwith acknowledge our awareness of
the sensitive and emotional nature of the abortion controversy, of the vigorous
opposing views, even among physicians, and of the deep and seemingly absolute
convictions that the subject inspires. One's philosophy, one's experiences,
one's exposure to the raw edges of human existence, one's religious training,
one's attitudes toward life and family and their values, and the moral
standards one establishes and seeks to observe, are all likely to influence and
to color one's thinking and conclusions about abortion.
In addition, population growth,
pollution, poverty, and racial overtones tend to complicate and not to simplify
the problem.
Our task, of course, is to resolve the
issue by constitutional measurement, free of emotion and of predilection. We
seek earnestly to do this, and, because we do, we have
inquired into, and in this opinion place some emphasis upon, medical and
medical-legal history and what that history reveals about man's attitudes
toward the abortion procedure over the centuries. We bear in mind, too, Mr.
Justice Holmes' admonition in his now-vindicated dissent in Lochner
v.
"[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
I
The
II
Jane Roe, a single woman who was residing
in
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
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
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. * * * 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.
* * *
III
* * *
(The Court addressed its authority to hear the
appeal.)
IV
* * * (The Court rejected several
arguments claiming it lacked jurisdiction.)
V
The principal thrust of appellant's
attack on the
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.
1. Ancient attitudes. These are not
capable of precise determination. We are told that at the time of the
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
Although the Oath is not mentioned in any
of the principal briefs in this case or in Doe v.
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." 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."
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 - was not an
indictable offense. The absence 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. This was "mediate animation." Although Christian theology
and the canon law came to fix the point of animation at 40 days for a male and
80 days for a female, a view that persisted until the 19th century, there was
otherwise little agreement about the precise time of formation or animation.
There was agreement, however, that prior to this point the fetus was to be
regarded as part of the mother, and its destruction, therefore, was not
homicide. Due to continued uncertainty about the precise time when animation
occurred, to the lack of any empirical basis for the 40-80-day view, and
perhaps to Aquinas' definition of movement as one of the two first principles
of life, Bracton focused upon quickening as the
critical point. The significance of quickening was echoed by later common-law
scholars and found its way into the received common law in this country.
Whether abortion of a quick fetus was a
felony at common law, or even a lesser crime, is still disputed. Bracton, writing early in the 13th century, thought it
homicide. But the later and predominant view, following the great common-law
scholars, has been that it was, at most, a lesser offense. In a frequently
cited passage, Coke took the position that abortion of a woman "quick with
childe" is "a great misprision, and no murder." Blackstone
followed, saying that while abortion after quickening had once been considered
manslaughter (though not murder), "modern
law" took a less severe view. 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. 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, others followed Coke in stating that abortion of a quick fetus was
a "misprision," a term they translated to mean
"misdemeanor." 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.
* * *
The Court went on to discuss English case law interpreting their
abortion statute, especially those dealing with exceptions for the health of
the mother.
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.
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. The exceptions,
It is thus apparent that at common law,
at the time of the adoption of our Constitution, and throughout the major
portion of the 19th century, abortion was viewed with less
disfavor than under most American statutes currently in effect. Phrasing
it another way, a woman enjoyed a substantially broader right to terminate a
pregnancy than she does in most States today. At least with respect to the
early stage of pregnancy, and very possibly without such a limitation, the
opportunity to make this
choice was present in this country well into the 19th century. Even later, the
law continued for some time to treat less punitively an abortion procured in
early pregnancy.
6. The position of the American Medical
Association. The anti-abortion mood prevalent in this country in the late 19th
century was shared by the medical profession. Indeed, the attitude of the
profession may have played a significant role in the enactment of stringent
criminal abortion legislation during that 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, and to
its life as yet denies all protection."
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."
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 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. Proceedings of
the AMA House of Delegates 220 (June 1970). The AMA Judicial Council rendered a
complementary opinion.
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 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."
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, 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."
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. The Conference has appended an
enlightening Prefatory Note.
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.
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. 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.
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 prootecting 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. 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. 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. The
few state courts called upon to interpret their laws in the late 19th and early
20th centuries did focus on the State's interest in protecting the woman's
health rather than in preserving the embryo and fetus. Proponents of this view point out that in many
States, including
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.
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
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.
* * *
Where certain "fundamental
rights" are involved, the Court has held that regulation limiting these
rights may be justified only by a "compelling state interest," (cites
omitted), and that legislative enactments must be narrowly drawn to express
only the legitimate state interests at stake. (cites
omitted).
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 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
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.
* * *
This conclusion, however, does not of
itself fully answer the contentions raised by
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. * * * 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.
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. It appears to be the
predominant, though not the unanimous, attitude of the Jewish faith. 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. 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. Viability is usually
placed at about seven months (28 weeks) but may occur earlier, even at 24
weeks. 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. The latter is now, of course, the official belief of the
Catholic Church. As one brief amicus discloses, this is a view strongly held by
many non-Catholics as well, and by many physicians. Substantial problems for
precise definition of this view are posed, however, by new embryological data
that purport to indicate that conception is a "process" over time,
rather than an event, and by new medical techniques such as menstrual
extraction, the "morning-after" pill, implantation
of embryos, artificial insemination, and even artificial wombs.
In areas other than criminal abortion,
the law has been reluctant to endorse any theory that life, as we recognize it,
begins before live birth or to accord legal rights to the unborn except in
narrowly defined situations and except when the rights are contingent upon live
birth. For example, the traditional rule of tort law denied recovery for
prenatal injuries even though the child was born alive. 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. 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. 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. 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,
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.
* * *
XI
To summarize and to repeat:
1. A state criminal abortion statute of
the current
(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. * * *
XII
Our conclusion that
Art. 1196 is
unconstitutional means, of course, that the
MR. JUSTICE STEWART,
concurring.
* * *
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.
* * *
The asserted state
interests are protection of the health and safety of the pregnant woman, and
protection of the potential future human life within her. These are legitimate
objectives, amply sufficient to permit a State to regulate abortions as it does
other surgical procedures, and perhaps sufficient to permit a State to regulate
abortions more stringently or even to prohibit them in the late stages of
pregnancy. But such legislation is not before us, and I think the Court today
has thoroughly demonstrated that these state interests cannot constitutionally
support the broad abridgment of personal liberty worked by the existing
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
I
***
(Rehnquist challenged the Court’s jurisdiction on
the grounds that there was no showing that Roe or Doe was pregnant at the time
of the hearing, and therefore the case was moot).
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.
* * *
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
The Court eschews the history of the
Fourteenth Amendment in its reliance on the "compelling state
interest" test. (Cite omitted). 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.
* * * 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.
* * *By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36
laws enacted by state or territorial legislatures limiting abortion. * * *
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
* * * (Rehnquist argues that the valid
parts of the
For all of the foregoing reasons, I
respectfully dissent.