Jacobson v. Bell, U. 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.
Bolton, F. Scott, F. Kuler, F. McCann, [p] F. Belous, 71 Cal. Barquet, So. Others have sustained state statutes. Crossen v. Attorney General, F. Edwards, F. Brown, F. Rampton Utah , appeal docketed, No. State, So. Munson, 86 S. 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, U. Thompson, U. Verner, U. Griswold v. Secretary of State, U. In the recent abortion cases cited above, courts have recognized these principles. Those striking down state laws have generally scrutinized the State's interests in protecting health and potential life, and have concluded that neither interest justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy.
Courts sustaining state laws have held that the State's determinations to protect health or prenatal life are dominant and constitutionally justifiable. The District Court held that the appellee failed to meet his burden of demonstrating that the Texas statute's infringement upon Roe's rights was necessary to support a compelling state interest, and that, although the appellee presented "several compelling justifications for state presence in the area of abortions," the statutes outstripped these justifications and swept "far beyond any areas of compelling state interest.
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.
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, [p] for the fetus' right to life would then be guaranteed specifically by the Amendment.
The appellant conceded as much on reargument. The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person. But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application. 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.
McGarvey v. Magee-Womens Hospital, F. Cheaney v. Rogers, F. Montana v. Kennedy, U. Superior Court, 2 Cal. Dickinson, 28 [p] Ohio St. Indeed, our decision in United States v. Vuitch, U. This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations. 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 , 24th ed. 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. Physician and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes "viable," that is, potentially able to live outside the mother's womb, albeit with artificial aid. 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. 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 [p] courts have squarely so held.
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. In short, the unborn have never been recognized in the law as persons in the whole sense. In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.
We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another 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 [p] 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 , 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 [p] during that period, except when it is necessary to preserve the life or health of the mother.
Measured against these standards, Art. 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. 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.
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. That opinion and this one, of course, are to be read together. This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day.
The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important [p] state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.
If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available. Our conclusion that Art. The exception of Art. 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, U. 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.
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 [p] of the District Court is affirmed.
Costs are allowed to the appellee. 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. Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice. 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.
If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder. 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. Article , not attacked here, reads:.
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. Act No. Ann, Tit.
Laws Ann. Codes Ann. Code Ann. 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.
The same court recently has held again that the State's abortion statutes are not unconstitutionally vague or overbroad. Thompson v. State Ct. The court held that "the State of Texas has a compelling interest to protect fetal life"; that Art. In Thompson, n.
State, Tex. The name is a pseudonym. These names are pseudonyms. The appellee twice states in his brief that the hearing before the District Court was held on July 22, Brief for Appellee The docket entries,App. The July date appears to be the time of the reporter's transcription. See App. 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.
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. Despite the District Court's statement to the contrary, F.
Castiglioni, A History of Medicine 84 2d ed. Krumbhaar, translator and editor hereinafter Castiglioni. Ricci, The Genealogy of Gynaecology 52, 84, , 2d ed. Lader, Abortion hereinafter Lader , K. Smith ed. Noonan ed. Edelstein, The Hippocratic Oath 10 hereinafter Edelstein. But see Castiglioni Edelstein 12; Ricci , ; Noonan 5. Edelstein Castiglioni Edelstein 3. Dorand's Illustrated Medical Dictionary 24th ed. Hawkins, Pleas of the Crown, c. Hale, Pleas of the Crown 1st Amer.
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. 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. 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 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. Law See also W. Reany, The Creation of the Human Soul, c. Galen, in three treatises related to embryology, accepted the thinking of Aristotle and his followers. Quay Later, Augustine on abortion was incorporated by Gratian into the Decretum, published about Decretum Magistri Gratiani 2. Friedburg, 2d ed. This Decretal and the Decretals that followed were recognized as the definitive body of canon law until the new Code of For discussions of the canon law treatment, see Means I, pp.
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. Twiss ed. Thorne ed. See Quay ; see also 2 Fleta Book 1, c. 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 , 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 , 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 ; and that the preamble to the English legislation of , 43 Geo. Commonwealth v. Bangs, 9 Mass. Parker, 50 Mass. Cooper, 22 N. Foshee, 3 Iowa , ; Smith v. Gaffard, 31 Ala. Commonwealth, 78 Ky. State, 40 Fla. Alcorn, 7 Idaho , , 64 P. State, 79 Neb. State, 77 Tex. Bennett, Va. Contra, Mills v. Commonwealth, 13 Pa.
Slagle, 83 N. See Smith v. State, 33 Me. Jay Floyd - Argued the case for Texas the first time. Robert C. Flowers - Reargued the case for Texas. Supreme Court Justice Opinions. Majority: Harry A. Blackmun for The Court , William J.
Brennan, Lewis F. Powell Jr. Despite these regulations and the fact that the drugs sometimes proved fatal to women, they continued to be advertised and sold. In , the Catholic Church banned abortion at any stage of pregnancy, while in , Congress passed the Comstock law, which made it illegal to distribute contraceptives and abortion-inducing drugs through the U.
By the s, abortion was outlawed across most of the country. In , the U. Supreme Court struck down a law banning the distribution of birth control to married couples, ruling that the law violated their implied right to privacy under the U.
And in , the Supreme Court struck down a law prohibiting the distribution of contraceptives to unmarried adults. That same year, New York legalized abortion, with no residency requirement. By the time of Roe v. Wade in , abortion was also legally available in Alaska and Washington.
In , Norma McCorvey, a Texas woman in her early 20s, sought to terminate an unwanted pregnancy. McCorvey, who had grown up in difficult, impoverished circumstances, previously had given birth twice and given up both children for adoption.
While American women with the financial means could obtain abortions by traveling to other countries where the procedure was safe and legal, or pay a large fee to a U. In the s and s, the estimated number of illegal abortions in the United States ranged from , to 1. After trying unsuccessfully to get an illegal abortion, McCorvey was referred to Texas attorneys Linda Coffee and Sarah Weddington, who were interested in challenging anti-abortion laws.
The case eventually was appealed to the U. Supreme Court. Meanwhile, McCovey gave birth and put the child up for adoption. On Jan 22, , the Supreme Court, in a decision, struck down the Texas law banning abortion, effectively legalizing the procedure nationwide. The court divided pregnancy into three trimesters, and declared that the choice to end a pregnancy in the first trimester was solely up to the woman.
Wade , the Court ruled that a state law that banned abortions except to save the life of the mother was unconstitutional under the Fourteenth Amendment. Norma L. McCorvey discovered that she was pregnant in June It was to be her third child, but McCorvey wished to have an abortion.
At the time, Texas law only allowed for abortion in cases of rape, incest, or to save the life of the mother. McCorvey was advised by her friends to falsely assert that she had been raped, but there was no police report to back up this claim.
Instead, McCorvey attempted to have an illegal abortion, but she soon discovered that the authorities had shut down the facility. McCorvey visited a local attorney seeking advice on what to do next.
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