Roe v. Wade

On Appeal from the United States District Court for the Norther District of Texas

Supplemental Brief for Appellants

Statement

The instant case was argued before this Court on December 13, 1971. It is a direct appeal from the decision of a three-judge federal panel declaring the Texas abortion law to be unconstitutional but refusing to grant injunctive relief and denying standing to Appellants Doe.

On June 27, 1972, the case was restored to the calendar for reargument. 40 U.S.L.W. 3617. Reargument is scheduled for October 11, 1972.

Several pertinent decisions have been rendered since the submission of Appellants' original brief. This supplemental brief is submitted to inform the Court of those decisions.

Request for injunctive relief

As to their request for injunctive relief, Appellants would once again point out that the injunction requested was one against future prosecutions only. Appellant Hallford had not requested injunctive relief to prevent continuation of the state criminal charge pending against him.

The continuing situation in Texas

Despite the District Court holding in June, 1970, that the Texas abortion law is unconstitutional, in November, 1971, the Texas Court of Criminal Appeals (Texas' highest criminal court), in Thompson v, State, No. 44,071 (Tex. Ct. Crim. App., Nov. 2, 1971), petition for cert. filed, 40 U.S.L.W. 3532 (U.S. March 20, 1972) (No. 71-1200), rendered a decision which directly contradicted that of the District Court. Without interpreting the abortion statue, the Texas court held that the Texas law was not vague. It specifically did not reach the issue of privacy but held the State has a compelling interest in protecting the fetus through legislation.

Since the District Court refused to grant injunctive relief and since there is now a direct dichotomy between state federal decisions, Texas physicians continue to refuse to perform abortions for fear of prosecution. During the last nine months of 1971, 1,658 Texas women travelled to New York to obtain abortions. Texas women continue to be unable to obtain abortion procedures in Texas and thereby continue to suffer irreparable injury.

Actions regarding abortion

At its 1972 Midyear Meeting, the American Bar Association House of Delegates approved the Uniform Abortion Act as drafted by the National Conference of Commissioners on Uniform State Laws. 58 A.B.A.J. 380 (1972). The Uniform Abortion Act allows termination of pregnancy up to twenty weeks of pregnancy and thereafter for reasons such as rape, incest, fetal deformity, and the mental or physical health of the woman.

The Rockefeller Commission on Population and the American Future has recommended that the matter of abortion should be left to the conscience of the individual concerned. Abele v. Markle, 342 F. Supp. 800, 802 (D. Conn. 1972).

Argument

I. Recent cases support appellants' contentions regarding standing

In the oral argument before the three-judge panel, the attorney for Henry Wade, the sole defendant herein, admitted that Appellant Dr. Hallford has standing and that Appellant Roe has standing as an individual and as the representative of the class. (A. 104). The defendent-appellee did not accede standing to John and Mary Doe.

Several recent cases support Appellants' arguments regarding standing.

This Court, in Eisenstadt v. Baird, 405 U.S. 438 (1972) held that Appellee Baird had standing to assert the rights of unmarried persons denied access to contraceptives even though he was not a physician or pharmacist and was not an unmarried person denied access to contraceptives.

Just as Baird was allowed to raise the rights of persons who were affected by the statute but who were affected but who were not subject to prosecution thereunder, here Appellant Hallford should be allowed to raise, in addition to his own constitutional claims, the claims of women who are vitally affected by the Texas abortion law but now subject to prosecution thereunder.

Young Women's Christian Association v. Kugler, 342 F.Supp. 1048 (D.N.J. 1972), declared the New Jersey abortion laws unconstitutional. Such laws prohibited persons from causing miscarriage "without lawful justification."

Saying that "the alleged deprivations of unconstitutional rights depend upon the contingency of pregnancy," 342 F.Supp. at 1056, the Court dismissed all the women plaintiffs since none alleged pregnancy. There is no indication that any had alleged status as persons wishing to give advice or assistance to women seeking abortions.

The Court recognized that all the physician plaintiffs, two of whom had lost their licenses to practice medicine and one of whom was incarcerated at the time of the action, had standing to raise the constitutional questions both on behalf of and pertaining to themselves and their women patients.

The plaintiff physicians alleged that they had been forced to turn away patients seeking advice and information about the possibility of obtaining abortions, as have Dr. Hallford and the classes he represents in the instant case. Dr. Hallford and his fellow physicians are also subject to prosecution under the law if they should perform an abortion that a jury finds was not for the purpose of saving the life of the woman.

Dr. Hallford should be recognized to have standing to litigate the constitutional claims of his class of physicians and those of women patients.

In Abele v. Markle, 342 F.Supp. 800 (D. Conn. 1972), the Connecticut anti-abortion statutes were declared to be unconstitutional. Much like the Texas law, the statutes prohibited all abortions except those necessary to preserve the life of the mother or fetus. Prior to the District Court's consideration of the merits the Circuit Court held that pregnant women and medical personnel desiring to give advice and aid regarding abortions had standing to challenge to statute. Abele v, Markle, 452 F.2d 1121 (2 Cir. 1971).

In this Texas case, Appellant Jane Roe was pregnant when the action was filed. Appellants John and Mary Doe in their complaint outlined their desire to actively participate in organizations giving advice and counselling regarding abortions, along with information to specifically assist in securing abortion. (A. 18). Although the Connecticut abortion laws more specifically applied to giving aid, advice, and encouragement to bring about abortion, Texas law is such that Appellants Doe have been effectively stopped from giving such aid, advice, and encouragement for fear of being subjected to prosecution under either 1 Texas Penal Code art. 70 (1952) as accomplices to the crime of abortion, or 3 Texas Penal Code art 1628 (1953) for conspiring to commit the crime of abortion. (A. 19). Like the Connecticut medical personnel desiring to give advice and aid regarding abortions, Appellants Doe should be recognized to have standing to challenge the Texas law.

In Poe v. Menghini, 339 F.Supp. 986 (D. Kan. 1972), the three-judge panel recognized that two women who were pregnant when the action was commenced and a doctor had standing to challenge certain restrictions applicable to the performance of abortions. In the instant case, Appellant Jane Roe, who was pregnant when the action was commenced, and Appellant Dr. Hallford would correspondingly have standing to challenge the Texas abortion laws.

Beecham v, Leahy, 287 A.2d 836 (Vt. 1972), declared unconstitutional the Vermont abortion law, which, like Texas law, made abortion a criminal offense unless the same is necessary to preserve the life of the woman. The Vermont statute stated that the woman was not liable to the penalties prescribed by the section.

The plaintiffs in Beecham were an unmarried pregnant woman who wanted an abortion and a physician who, except for the law, was willing to terminate the pregnancy but who had not done so and who (unlike Appellant Dr. Hallford) was not the subject of pending state criminal action. The Court held that unmarried pregnant woman had standing but that the physician did not. There is no indication in the opinion as to whether or not the physician sought to adjudicate the rights of his patients, which other cases have allowed.

Regarding the woman the Court said:

By reducing her rights to ephemeral status without confronting them, the ability of the plaintiff to produce a case or controversy in the ordinary sense is likewise frustrated. She cannot sue the doctor for an action by him that cannot be compelled. She is not herself subject to legal action, by statutory exemption. Yet a very real wrong, in the eyes of the law, exists . . . Therefore, . . . we declare that she is entitled to proceed in her action founded on her petition. . .287 A.2d at 840.

Appellant Jane Roe was similarly found by the lower court to have standing. She, too, was pregnant, had sought but been unable to find a physician to terminate the pregnancy, was not subject to state prosecution, and yet had suffered a very real wrong.

II. The right to seek and receive medical care for the protection of health and well-being is a fundamental personal liberty

As shown in the original brief of Appellants, the Texas abortion law effectively denies Appellants Jane Roe and Mary Doe access to health care.

Although under Texas case law it is not a crime for a pregnant woman to terminate her own pregnancy or to persuade someone else to perform an abortion on her, the Texas law effectively denies her assistance of trained medical personnel in doing what she is otherwise legally allowed to do.

The Supreme Court in Vermont, in Beecham v. Leahy, supra, observed that:

On the one hand the legislation, by specific reference, leaves untouched in the woman herself those rights respecting her own choice to bear children now coming to be recognized in many jurisdictions... Yet, tragically, unless her life itself is at stake, the law leaves her only to the recourse of attempts at self-induced abortion, uncounselled and unassisted by a doctor, in a situation where medical attention is imperative. 287 A.2d at 839 (emphasis added).

The woman is guilty of no crime in Texas, although by case law rather than by statute. Tragically, Texas women effectively prevented from securing the services of a doctor when medical expertise and experience are imperative to avoid such pitfalls as the piercing of the uterine wall and infection. By preventing the availability of medical assistance, the state effectively endangers the health and well-being of citizens in direct contravention of their best interests and fundamental rights.

III. The Texas abortion law violates fundamental rights of privacy

As the opinion of this Court in Eisenstadt v. Baird, supra, states:

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwanted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or begat a child. 405 U.S. 438.

In Vuitch v. Hardy, Civil No. 71-1129-Y (D. Md. June 22, 1972), the Court stated: "However, this Court is convinced that a woman does have a constitutionally protected, 'fundamental personal right' to seek an abortion," citing Griswold and the above language from Eisenstadt.

Y.W.C.A. v. Kugler, supra, resulted in the New Jersey abortion law being declared unconstitutional in part as a violation of rights of privacy.

The scope of interests found to be constitutionally protected by the Supreme Court demonstrates that it views both the sanctity of the individual's person and his relationships within a family as so vital to our free society that they should be ranked as fundamental, or implicit in the concept of ordered liberty. 342 F.Supp at 1071.

Accordingly, we are persuaded that the freedom to determine whether to bear a child and to terminate a pregnancy in its early stages is so significantly related to the fundamental individual and family rights already found to exist in the Constitution that it follows directly in their channel and requires recognition. Whether a constitutional right of privacy this area is conceptualized as a family right, as in Griswold, as a personal and individual right, or as deriving from both sources is of no significance and applies equally to all women regardless of marital status, for the restriction on abortion by the New Jersey statutes immediately involves and interferes with the protected areas of both family and individual freedom. Hence we hold that a woman has a constitutional right of privacy recognizable under the Ninth and Fourteenth Amendments to determine for herself whether to bear a child or to terminate a pregnancy in its early stages, free from unreasonable interference by the State. 342 F.Supp at 1072.

The fundamental impact of the question of abortion on women was emphasized by the Abele Connecticut panel:

The decision to carry and bear a child has extraordinary ramifications for a woman. Pregnancy entails profound physical changes. Childbirth presents some danger to life and health. Bearing and raising a child demands difficult psychological and social adjustments. The working or student mother must curtail or end her employment or educational opportunities. The mother with an unwanted child may find that it overtaxes her and her family's financial or emotional resources. Thus, determining whether or not to bear a child is of fundamental importance to a woman. 342 F.Supp. at 801 (emphasis added).

As the lower Court found in the instant case, the Texas abortion law must be declared unconstitutional because it deprives women of their right, secured by the Ninth and Fourteenth Amendments, to choose whether or not to carry a pregnancy to term.

I. The Texas statute does not advance any state interest of compelling importance in a manner which is narrowly drawn

The legislative purposes that the Texas abortion law was meant to serve are not altogether clear. No legislative history specifically applicable to Texas is available.

Appellee during the oral argument before the lower court said the State has only one interest, that of protecting the unborn (A. 104-05). Appellee's brief and Dec. 13th argument before this Court advance no other State interest.

It is important to note that Appellee give no authority whatsoever that even tends to establish that the purpose of the Texas legislature in adopting the abortion law was in fact what Appellee suggests.

On the other hand, Appellants' original brief establish that the purpose of the Texas legislature in adopting the abortion law was in fact what Appellee suggests.

On the other hand, Appellants' original brief establishes that the legislative purpose in other states was to protect the pregnant woman from the dangers of antiseptic surgery.

Further Watson v, State, 9 Tex. App. 237 (Tex. Crim. App. 1880), states that the woman is the victim of the crime of abortion.

People v. Nixon, Dkt. No. 9579 (Ct. App. 2 Div., Aug. 23, 1972), involved a challenge to the constitutionality of the Michigan abortion statute making a criminal actions terminate a pregnancy unless the same was necessary to preserve the life of the woman. The Court concluded that the "so-called 'abortion' statute was not intended to protect the 'rights' of the unquickened fetus" but rather that the obvious purpose was to protect the pregnant woman.

The Court pointed out that the woman was not subject to prosecution for self-induced abortion and concluded:

. . .it must be assumed that the harm the statute was attempting to punish ran only to the woman and not to the fetus. If the statute were intended to protect the continued existence of the fetus, then there would be no reason for exempting the woman from prosecution. Opinion at 4, n.9.

Similarly, since self-abortion is not a crime in Texas, it is not logical to assume that the purpose of the legislature in passing the so-called "abortion" law was to protect the fetus. It is logical that the legislative purpose was to protect the woman and her health.

Appellants' original brief establishes that the Texas abortion law no longer serves to protect the health of the pregnant woman; in fact it is a hindrance to health.

Even if Appellee could establish that the legislative purpose of the Texas abortion law was to protect the life of the unborn, the state certainly cannot meet its burden of proving that the statute now has a compelling interest in such regulation not that the law is sufficiently narrow.

The fetus, as such, is not and never has been protected in Texas, with the possible exception of the abortion statutes. In Texas, the so-called protections for the "unborn child" are dependent on the live birth of the child. Thus under Texas law, once born a child may have rights retroactive to the time prior to birth but such rights are meant to benefit those who have survived birth.

Under the criminal laws of Texas, the fetus is given little protection. Self-abortion is not a crime, and the pregnant woman who seeks or receives the help of others in terminating her pregnancy is guilty of no crime. Even the severity of the penalty for another having performed an abortion depends upon whether or not the woman consented to the procedure.

To destroy the life of a fetus has never been considered as homicide in Texas. In order to obtain a murder conviction, the state must ". . .prove that the child was born alive; (and) that it had an existence independent of the mother . . ." Harris v, State, 28 Tex. App. 308, 309, 12 S.W. 1102, 1103 (1889). In Wallace v. State, 7 Tex. App. 570, 10 S.W. 255 (1880), the mother strangled her child with string. The court overturned her murder conviction, saying that the state failed to prove either that the child was born live or that the actual childbirth process had been completed before the child was killed.

Texas courts are not alone in following the common law rule that a child must be born alive to be the subject of the crime of murder. State v. Dickinson, 28 Ohio St. 2d 65, 275 N.E.2d 599 (1971); Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 662, 87 Cal. Rptr. 481 (1970); Clark v. State, 117 Ala. 1, 23 So. 671 (1898); Abrams v, Foshee, Clark 274 (Iowa 1856). In those cases where a person has actually been convicted of a crime for causing the death of a fetus, it has not been under the regular homicide statute but under some special statutory provision, such as a feticide statute. Most feticide statutes have as one of their essential elements a malicious intent to kill the mother. Passley v. State, 194 Ga. 327, 21 S.E.2d 230 (1942); State v. Harness, 280 S.W.2d 11 (Mo. 1955). An intent to cause a miscarriage without an intent to kill the woman would not be sufficient to sustain a conviction of feticide. The penalties under such statutes are also generally lighter than those prescribed by the homicide laws.

Viewed from another angle, there are ironical contradictions between some Texas criminal laws, and the abortion law. As stated in Abele v. Markle, supra, "(t)he statutes force a woman to carry to natural term a pregnancy that is the result of rape or incest. Yet these acts are prohibited by the state at least in part to avoid the offspring of such unions." 342 F.Supp at 804.

Similarly, Texas makes rape and incest criminal offenses, 2A Texas Penal Code, art 1183 at 372 (1961), and 1 Texas Penal Code, art. 495, at 553 (1952), and prohibits the marriage of persons closely related, Texas Family Code section 2.21, at 17 (1971). Persons who have any infectious condition of syphilis or other veneral disease cannot obtain a marriage license. Texas Family Code, section 1.21, at 9, and 1.31 at 11 (1972).

The fetus gets no more protection under Texas tort laws than it does under Texas criminal law. The Texas courts did not recognize a right to recover for injuries received prior to birth until 1967 (113 years after the Texas abortion law was enacted) in Leal v. C.C. Pitts Sand and Gravel, Inc., 429 S.W.2d 820 (Tex. 1967). Leal involved a wrongful death action brought by the parents of a child who died two days after birth as the result of pre-natal injuries received in an automobile collision. In allowing the wrongful death action, the Texas Supreme Court held that the child, had it lived, could have maintained an action for damages for the pre-natal injuries.

In Delgado v. Yandell, 468 S.W.2d 475 (Tex. Civ. App. 1971), the Texas Supreme Court approved the holding of the Court of Civil Appeals that a cause of action does exist for pre-natal injuries sustained at any pre-natal stage provided the child is born alive and survives. The damages in such a case are not paid to the fetus; they are compensation to a living child for having to spend all or a part of his life under a disability caused prior to birth by another's wrongful act.

Thus the claimed "rights" of the fetus in the tort area are actually rights which may only be exercised by a live child after birth or are the right of bereaved potential parents to be compensated for their loss.

Though much has been written concerning the property rights of the fetus, these rights are really legal fictions which have developed to protect the rights of living children. In order to receive the benefit of its supposed rights, the fetus must be born alive. There has never been a case in Texas where a fetus which stillborn or destroyed through miscarriage or abortion has been treated as a person for the purpose of determining property rights. When certain kinds of inheritances are involved, even unconceived children can be considered to have some property "rights" in that they may receive a legacy on their subsequent birth. Byrn v. New York City Health & Hospitals Corp., No. 210 72 (Ct. App. 1972). However, this has not prevented the United States Supreme Court from finding a constitutional right on the part of a woman to practice contraception. Griswold v. Connecticut, 38 U.S. 479 (1965).

There are other areas where Texas does not treat a fetus as a person. For example, under the rules of the Texas Welfare Department, a needy pregnant woman cannot get welfare payments for her unborn child. The state compels the birth of the child, yet does not provide the assistance often needed to produce a healthy child.

Texas does not regard the fetus as a person and had made no attempt to put the fetus on an equal footing with a living child.

Several courts have recently dealt directly with the question of whether the fetus is a person within the meaning of the United States Constitution. Arguably this Court's opinion in Vuitch implicitly rejected the claim that the fetus is a person under the Fifth and Fourteenth Amendments.

McGarvey v. Magee-Womens Hospital, Civil Action No. 71-196 (W.D.Pa. Mar. 17, 1972), held that the embryo or fetus is not a person or citizen within the meaning of the Fourteenth Amendment or the Civil Rights Act.

In Byrn v. New York City Health & Hospitals Corp., supra, the issue whether children in embryo are and must be recognized as legal persons or entities entitled under the State and Federal Constitutions to a right to life. The Court's conclusion was the Constitution does not confer or require legal personality for the unborn.

The Appellee has failed to produce any authority for the proposition that the fetus is considered a person under the Constitution. There is evidence in the Constitution that "person" applies only to a live born person. The clause requiring a decennial census says "the whole number must be counted. U.S. Const. Art. I, § 2, Cl. 3. From the first census in 1790 to the present, census takers have counted only those born. Means, The Phoenix of Abortional Freedom, 17 N.Y.L. Forum 335, 402-03 (1971).

Although on its face, the Texas abortion law applies any time after conception, the Brief for Appellee submitted to this Court at page 30 states:

It most certainly seems logical that from the stage of differentiation . . . the fetus implanted in the uterine wall deserves respect as a human life.

Here Appellee seems to suggest that the law should apply instead only after implantation. Yet on page 32 Appellee devotes a paragraph to describing the "child" during the seven to nine days before implantation. During oral argument Appellee suggested that the Texas hospitals intervene to terminate pregnancy when a rape victim is brought in (Tr. 47-48), although there is no exception for rape in the Texas statute.

Appellee's ambivalence is but on indication that the statute does not evidence a compelling interest which could not be protected by less restrictive means.

V. The Texas abortion law is unconstitutionally vague

In Thompson v. State, supra, the Texas Court of Criminal Appeals upheld the conviction of a physician who allegedly had performed an abortion. The court held, relying on United States v. Vuitch, 402 U.S. 62 (1971), that the Texas abortion law was not vague.

The Court in Thompson erred. Whether or not a statute is vague is to be determined from the standpoint of the person who is considering performing an act. The Supreme Court in Vuitch emphasized that a doctor's day-to-day task was one of consideration for the health of his patients; the District of Columbia statute allowed physicians to act to preserve the life or health of patients. Texas, however, allows physicians to act only when necessary to protect life; that is not the sort of criteria physicians are accustomed to dealing with. From the physician's standpoint, as the District Court in this case pointed out, there are many uncertainties inherent in the language of the statute. Vuitch is not authority for upholding the Texas abortion law.

Further, in Vuitch the Court upheld the D.C. statute as interpreted by the lower courts to include both mental and physical health. In Texas there has been no interpretation of the Texas statute. Thompson does not even discuss application of the statute.

Recent decisions have declared laws in New Jersey and Florida to be unconstitutionally vague. In Y.W.C.A. v. Kugler, supra, a federal panel declared vague to the New Jersey statute against performing an abortion "unless the same shall have been necessary to preserve the life of the mother" was declared unconstitutionally vague by the Florida Supreme Court in State v. Barquet, 262 So.2d 432 (1972).

The Florida court said that "if the statutes contained a clause reading 'necessary to the preservation of the mother's life or health' instead of the clause necessary' to preserve the life,' the statutes could be held constitutional. . ." 262 So.2d at 433.

Chaney v. Indiana, No. 1171 S 321 (Ind. July 24, 1972), however, rejects the vagueness arguments as to a non-medical person.

VI. The Texas abortion law places an unconstitutional burden of proof in the physician

Appellant's original brief details the unconstitutionality of placing upon the physician charged with allegedly performing an abortion the burden of showing that the procedure was necessary for the purpose of saving the life of the woman. Although the burden of proof issue was not before, them, the Texas Court of Criminal Appeals in a footnote in Thompson, supra, recognized that the Vuitch case does call into question the validity of Texas' statutory scheme as to who has the burden of proof on the exemption.

Conclusion

For the reasons stated in Appellants' original brief and this supplemental brief, this Court should reverse the lower court's judgment denying standing to Appellants Doe and denying injunctive relief; declare that the Texas Abortion Statutes, Art 1191, 1192, 1193, 1194 and 1196, Texas Penal Code, violate the United States Constitution; and remand with instructions that a permanent injunction against enforcement of said statutes be entered.

Respectfully submitted,

Roy Lucas
• Law Institutional Madison Constitutional Law Institute
• 230 Twin Peaks Blvd.
• San Francisco, California 94114

Sarah WeddingtonJames R. Weddington
• 709 West 14th
• Austin, Texas 78701
Linda N. Coffee
• 2130 First Nat'l Bank Bldg.
• Dallas, Texas 75202

Fred BrunerRoy L. Merrill, Jr.
• Daughtery, Bruner, Lastelick and Anderson
• 1130 Mercantile Bank Bldg.
• Dallas, Texas 75201

• Attorneys for Appellants

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Roe v. Wade

Cite as 93 S.Ct. 705 (1973)

410 U.S. 113, 35 L.Ed.2d 147

Jane Roe, et al., Appellants,

v.

Henry Wade.

No. 70-18.

Argued Dec. 13, 1971.

Reargued Oct. 11, 1972.

Decided Jan. 22, 1973.

Rehearing Denied Feb. 26, 1973.

See 410 U.S. 959, 93 S.Ct. 1409.

Action was brought for a declaratory and injunctive relief respecting Texas criminal abortion laws which were claimed to be unconstitutional. A three-judge United States District Court for the Northern District of Texas, 314 F.Supp. 1217, entered judgment declaring laws unconstitutional and an appeal was taken. The Supreme Court, Mr. Justice Blackmun, held that the Texas criminal abortion statutes prohibiting abortions at any stage of pregnancy except to save the life of the mother are unconstitutional; that prior to approximately the end of the first trimester the abortion decision and its effectuation must be left to the medical judgement of the pregnant woman's attending physician, subsequent to approximately the end of the first trimester the state may regulate abortion procedure in ways reasonably related to maternal health, and at the stage subsequent to viability the state may regulate and even proscribe abortion except where necessary in appropriate medical judgment for preservation of life or health of mother.

Affirmed in part and reversed in part.

Mr. Chief Justice Burger, Mr. Justice Douglas and Mr. Justice Stewart filed concurring opinions.

Mr. Justice White filed a dissenting opinion in which Mr. Justice Rehnquist joined.

Mr. Justice Rehnquist filed a dissenting opinion.

Supreme Court was not foreclosed from review of both the injunctive and declaratory aspects of case attacking constitutionally of Texas criminal abortion statutes where case was properly before Supreme Court on direct appeal from decision of three-judge district court specifically denying injunctive relief and the arguments as to both aspects were necessarily identical. 28 U.S.C.A. 1253.

With respect to single, pregnant female who alleged that she was unable to obtain a legal abortion in Texas, when viewed as of the time of filing of case and for several months thereafter, she had standing to challenge constitutionality of Texas criminal abortion laws, even though record did not disclose that she was pregnant at time of district court hearing or when the opinion and judgment were filed, and she presented a justiciable controversy; the termination of her pregnancy did not render case moot. Vernon's Ann.Tex.P.C. arts. 1191-1194, 1196.

Usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review and not simply at date action is initiated.

Where pregnancy of plaintiff was a significant fact in litigation and the normal human gestation period was so short that pregnancy would come to term before usual appellate process was complete, and pregnancy often came more than once to the same woman, fact of that pregnancy provided a classic justification for conclusion of nonmootness because of termination.

Texas physician, against whom there were pending indictments charging him with violations of Texas abortion laws who made no allegation of any substantial and immediate threat to any federally protected right that could not be asserted in his defense against state prosecutions and who had not alleged any harassment or bad faith prosecution, did not have standing to intervene in suit seeking declaratory and injunctive relief with respect to Texas abortion statutes which were claimed to be unconstitutional. Vernon's Ann.Tex.P.C. arts. 1191-1194, 1196.

Absent harassment and bad faith, defendant in pending state criminal case cannot affirmatively challenge in federal court the statutes under which state is prosecuting him.

Application for leave to intervene making certain assertions relating to a class of people was insufficient to establish party's desire to intervene on behalf of class, where the complaint failed to set forth the essentials of class suit.

Childless married couple alleging that they had no desire to have children at the particular time because of medical advice that the wife should avoid pregnancy and for other highly personal reasons and asserting an inability to obtain a legal abortion in Texas were not, because of the highly speculative character of their position, appropriate plaintiffs in federal district court suit challenging validity of Texas criminal abortion statutes. Vernon's Ann.Tex.P.C. arts. 1191-1194, 1196.

Right to personal privacy or a guarantee of certain areas or zones of privacy does exist under Constitution, and only personal rights that can be deemed fundamental or implicit in the concept of odered liberty are included in this guarantee of personal privacy; the right has some extension to activities relating to marriage. U.S.C.A.Const. Amends. 1, 4, 5, 9, 14, 13, § 1.

Constitutional right to privacy is broad enough to encompass woman's decision whether or not to terminate her pregnancy, but the woman's right to terminate pregnancy is not absolute since state may properly assert important interests in safeguarding health, in maintaining medical standards and in protecting potential life, and at some point in pregnancy these respective interests become sufficiently compelling to sustain regulation of factors that govern the abortion decision. U.S.C.A.Const. Amends. 9, 14.

Where certain fundamental rights are involved, regulation limiting these rights may be justified only by a compelling state interest and the legislative enactments must be narrowly drawn to express only legitimate state interests at stake.

Word "person" as used in the Fourteenth Amendment does not include the unborn. U.S.C.A.Const. Amend. 14.

Prior to approximately the end of the first trimester of pregnancy the attending physician in consultation with his patient is free to determine, without regulation by state, that in his medical judgment the patient's pregnancy should be terminated, and if that decision is reached such judgment may be effectuated by an abortion without interference by the state.

From and after approximately the end of the first trimester of pregnancy a state may regulate abortion procedure to extent that the regulation reasonably relates to preservation and protection of maternal health.

If state is interested in protecting fetal life after viability it may go so far as to proscribe abortion during that period except when necessary to preserve the life or the health of the mother.

State criminal abortion laws like Texas statutes making it a crime to procure or attempt an abortion except an abortion on medical advice for purpose of saving life of the mother regardless of stage of pregnancy violate due process clause of Fourteenth Amendment protecting right to privacy against state action. U.S.C.A.Const. Amend, 14; Vernon's Ann.Tex.P.C. arts. 1191-1194, 1196.

State in regulating abortion procedures may define "physician" as a physician currently licensed by State and may proscribe any abortion by a person who is not a physician as so defined.

Conclusion that Texas criminal abortion statue proscribing all abortions except to save life of mother is unconstitutional meant that the abortion statutes as a unit must fall, and the exception could not be struck down separately for then the state would be left with statue proscribing all abortion procedures no matter how medically urgent the case. Vernon's Ann.Tex.P.C. arts. 1191-1194, 1196.

Syllabus*

A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene. A childless married couple (the Does), the wife not being pregnant, separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health. A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justiciable controversies. Ruling that declaratory, thought not injunctive, relief was warranted, the court declared the abortion statutes void as vague and overbroadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does' complaint not justiciable. Appellants directly appealed to this Court on the injunctive rulings, and appellee cross-appealed from the District Court's grant of declaratory relief to Roe and Hallford. Held:

1. While 28 U.S.C. § 1253 authorizes no direct appeal to this Court from the grant or denial of declaratory relief alone, review is not foreclosed when the case is properly before the Court on appeal from specific denial of injunctive relief and the arrangements as to both injunctive and declaratory relief are necessarily identical. Pp. 711-712.

2. Roe has standing to sue; the Does and Hallford do not. Pp. 712-715.

(a) Contrary to appellees's contention, the natural termination of Roe's pregnancy did not moot her suit. Litigation involving pregnancy, which is "capable of repetition, yet evading review," is an exception to the usual federal rule that an actual controversy must exist at review stages and not simply when the action is initiated. Pp. 712-713.

(b) The District Court correctly refused injunctive, but erred in granting declaratory, relief to Hallford, who alleged no federally protected right not assertable as a defense against the good-faith state prosecutions pending against him. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688. Pp. 713-714.

(c) The Does' complaint, based as it is on contingencies, any one or more of which may not occur, is too speculative to present an actual case or controversy.

3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term. Pp. 726-732.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. Pp. 731-732.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Pp. 731-732.

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 732-733.

4. The State may define the term "physician" to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. Pp. 732-733.

5. It is unnecessary to decide the injunctive relief issue since the Texas authorities will doubtless fully recognize the Court's ruling that the Texas criminal abortion statutes are unconstitutional. P. 733.

314 F.Supp. 1217, affirmed in part and reversed in part.

Sarah R. Weddington, Austin, Tex., for appellants.

Robert C. Flowers, Asst. Atty. Gen. of Texas, Austin, Tex., for appellee on reemergence.

Jay Floyd, Asst. Atty. Gen., Austin, Tex., for appellee on original argument.

Mr. Justice BLACKMUN delivered the opinion of the Court.

This Texas federal appeal and its Georgia companion, Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue.

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.

In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes' admonition in his now-vindicated dissent in Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 547, 49 L.Ed. 937 (1905):

"[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."

I

The Texas statutes that concern us here art Arts. 1191-1194 and 1196 of the State's Penal Code, 1 Vernon's Ann.P.C. these make it a crime to "procure an abortion," as therein defined, or to attempt one, except with respect to "an abortion procured or attempted my medical advice for the purpose of saving the life of the mother." Similar statutes are in existence in a majority of the States.2

Texas first enacted a criminal abortion statue in 1854. Texas Laws 1854, c. 49, § 1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon modified into language that has remained substantially unchanged to the present time. See Texas Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal, Laws of Texas, Arts. 2192-2197 (1866); Texas Rev.Stat., c. 8, Arts. 536-541 (1879); Texas Rev.Crim.Stat., Arts. 1071-1076 (1911). The final article in each of these compilations provided the same exception, as does the present Article 1196, for an abortion by "medical advice for the purpose of saving the life of the mother."3

II

Jane Roe4 a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes.

Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions"; that she was unable to get a "legal" abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint Roe purported to sue "on behalf of herself and all other women similarly situated."

James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe's action. In his complaint he alleged that he had been arrested previously for violations of the Texas abortion statutes and that two such prosecutions were pending against him. He described conditions of patients who came to him seeking abortions, and he claimed that for many cases he, as a physician, was unable to determine whether they fell within or outside the exception recognized by Article 1196. He alleged that, as a consequence, the statutes were vague and uncertain, in violation of the Fourteenth Amendment, and that they violated his own and his patients' rights to privacy in the doctor-patient relationship and his own right to practice medicine, rights he claimed were guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

John and Mary Doe,5a 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 sue "on behalf of themselves and all couples similarly situated."

The two actions were consolidated and heard together by a duly convened three-judge district court. The suits thus presented the situations of the pregnant single woman, the childless couple, with the wife not pregnant, and the licensed practicing physician, all joining in the attack on the Texas criminal abortion statutes. Upon the filing of affidavits, motions were made for dismissal and for summary judgment. The court held that Roe and members of her class, and Dr. Hallford, had standing to sue and presented justiciable controversies, but that the Does had failed to allege facts sufficient to state a present controversy and did not have standing. It concluded that, with respect to the requests for a declaratory judgment, abstention was not warranted. on the merits, the District Court held that the "fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment," and that the Texas criminal abortion statutes were void on their face because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiff's Ninth Amendment rights. The court then held that abstention was warranted with respect to the requests for an injunction. It therefore dismissed the Does' complaint, declared the abortion statutes void, and dismissed the application for injunctive relief. 314 F.Supp. 1217, 1225 (N.D.Tex.1970).

The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C. § 1253, have appealed to this Court from the part of the District Court's judgment denying the injunction. The defendant District Attorney has purported to cross-appeal, pursuant to the same statue, from the court's grant of declaratory relief to Roe and Hallford. Both sides also have taken protective appeals for the Fifth Circuit. That court ordered the appeals held in abeyance pending decision here. We postponed decision on jurisdiction to the hearing on the merits. 402 U.S. 941, 91 S.Ct. 1610, 29 L.Ed.2d 108 (1971).

III

It might have been preferable if the defendant, pursuant to our Rule 20, had presented to us a petition for certiorari before judgment in the Court of Appeals with respect to the granting of the plaintiffs' prayer for declaratory relief. Our decisions in Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d (1970), and Gunn v. University Committee, 399 U.S. 383, 90 S.Ct. 2013, 26 L.Ed.2d 684 (1970), are to the effect that § 1253 does not authorize an appeal to this Court from the grant or denial of declaratory relief alone. We conclude, nevertheless, that those decisions do not foreclose our review of both the injunctive and the declaratory aspects of a case of this kind when it is properly here, as this one is, on appeal under § 1253 from specific denial of injunctive relief, and the arguments as to both aspects are necessarily identical. See Carter v. Jury Comm'n 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Florida Lime and Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73; 80-81, 80 S.Ct. 568, 573-574, 4 L.Ed.2d 568 (1960). It would be destructive of time and energy for all concerned were we to rule otherwise. Cf. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201.

IV

We are next confronted with issues of justiciability, standing, and abstention. Have Roe and the Does established that "personal stake in the outcome of the controversy," Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), that insures that "the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution," Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972)? And what effect did the pendency of criminal abortion charges against Dr. Hallford in state court have upon the propriety of the federal court's granting relief to him as a plaintiff-intervenor?

[2] A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe is a fictitious person. For purposes of her case, we accept as true, and as established, her existence; her pregnant state, as of the inception of her suit in March 1970 and as late as May 21 of that year when she filed an alias affidavit with the District Court; and her inability to obtain a legal abortion in Texas.

Viewing Roe's case as of the time of its filing and thereafter until as late as May, there can be little dispute that it then presented a case or controversy and that, wholly apart from the class aspects, she, as a pregnant single woman thwarted by the Texas criminal abortion laws, had standing to challenge those statutes. Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971); Crossen v. Breckenridge, 446 F.2d 833, 838-839 (CA6 1971); Poe v. Menghini, 339 F. Supp. 986, 990-991 (D.C.Kan. 1972). See Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915). Indeed, we do not read the appellee's brief as really asserting anything to the contrary. The "logical nexus between the status asserted and the claim sought to be adjudicated," Flast v. Cohen, 392 U.S., at 102, 88 S.Ct., at 1953, and the necessary degree of contentiousness, Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), are both present.

The appellee notes, however, that the record does not disclose that Roe was pregnant at the time of the District Court hearing on May 22, 1970, 6 or on the following June 17 when the court's opinion and judgment were filed. And he suggests that Roe's case must now be moot because she and all other members of her class are no longer subject to any 1970 pregnancy.

[3] The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. United States v. Munsing-wear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950); Golden v. Zwickler, supra; SEC v. Medical Committee for Human Rights, 404 U.S. 403, 92 S.Ct. 577, L.Ed.2d 560 (1972).

[4] But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969); Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 178-179, 89 S.Ct. 347, 350, 351, 21 L.Ed.2d 325 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 897-898, 97 L.Ed. 1303 (1953).

We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot.

[5] B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation as a plaintiff-intervenor, alleging in his complaint that he:

"[I]n the past has been arrested for violating the Texas Abortion Laws and at the present time stands charged by indictment with violating said laws in the Criminal District Court of Dallas County, Texas to-wit: (1) The State of Texas vs. James H. Hallford, No. C—69-5307-IH, and (2) The State of Texas vs. James H. Hallford, No. C—69-2524-H. In both cases the defendant is charged with abortion . . ."

In his application for leave to intervene, the doctor made like representations as to the abortion charges pending in the state court. These representations were also repeated in the affidavit he executed and filed in support of his motion for summary judgment.

[6] Dr. Hallford is, therefore in the position of seeking, in a federal court, declaratory and injunctive relief with respect to the same statutes under which he stands charged in criminal prosecutions simultaneously pending in state cout. Although he stated that he has been arrested in the past for violating the State's abortion laws, he makes no allegation of any substantial and immediate threat to any federally protected right that cannot be asserted in his defense against the state prosecutions. Neither is there any allegation of harassment or bad-faith prosecution. In order to escape the rule articulated in the cases cited in the next paragraph of this opinion that, absent harassment and bad faith, a defendant in a pending state criminal case cannot affirmatively challenge in federal court the statutes under which the State is prosecuting him, Dr. Hallford seeks to distinguish his status as a "potential future defendant" and to assert only the latter for standing purposes here.

We see no merit in that distinction. Our decision in Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), compels the conclusion that the District Court erred when it granted declaratory relief to Dr. Hallford instead of refraining from so doing. The court, of course, was correct in refusing to grant injunctive relief to the doctor. The reasons supportive of that action, however, are those expressed in Samuels v. Mackell, supra, and in Younger v. Harris, 401 U.S. 37, 81 S.Ct. 746, 27 L.Ed.2d 669 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); and Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971). See also Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116; 14 L.Ed.2d 22 (1965). We note, in passing that Younger and its companion cases were decided after the three-judge District Court decision in this case.

[7] Dr. Hallford's complaint in intervention, therefore, is to be dismissed.7 He is remitted to his defenses in the state criminal proceedings against him. We reverse the judgment of the District Court insofar as it granted Dr. Hallford relief and failed to dismiss his complaint in intervetnion.

[8] C. The Does. In view of our ruling as to Roe's standing in her case, the issue of the Doe's standing in their case has little significance. The claims they assert are essentially the same as those of Roe, and they attack the same statutes. Nevertheless, we briefly note the Doe's posture.

Their pleadings present them as a childless married couple, the woman not being pregnant, who have no desire to have children at this time because of their having received medical advice that Mrs. Doe should avoid pregnancy, and for "other highly personal reasons." But they "fear . . . they may face the prospect of becoming parents." And if pregnancy ensues, they "would want to terminate" it by an abortion. They assert an inability to obtain an abortion legally in Texas and, consequently, the prospect of obtaining an illegal abortion there or of going outside Texas to some place where the procedure could be obtained legally and competently.

We thus have as plaintiffs a married couple who have, as their asserted immediate and present injury, only an alleged "detrimental effect upon [their] marital happiness" because they are forced to "the choice of refraining from normal sexual relations or of endangering Mary Doe's health through a possible pregnancy." "Their claim is that sometime in the future Mrs. Doe might become pregnant because of possible failure of contraceptive measures, and at that time in the future she might want an abortion that might then be illegal under the Texas statutes.

This very phrasing of the Doe's position reveals its speculative character. Their alleged injury rests on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health. Any one or more of these several possibilities may not take place and all may not combine. In the Doe's estimation, these possibilities might have some real or imagined impact upon their marital happiness. But we are not prepared to say that the bare allegation of so indirect an injury is sufficient to present an actual case or controversy. Younger v. Harris, 401 U.S., at 41-42, 91 S.Ct., at 749; Golden Zwickler, 394 U.S., at 109-110, 89 S.Ct., at 960; Abele v. Markle, 452 F.2d, at 1124-1125; Crossen v. Breckenridge, 446 F.2d, at 839. The Doe's claim falls far short of those resolved otherwise in the cases that the Does' urge upon us, namely, Investment Co. Institute v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); and Epperson v. Arkansas, 393 U.S. 87, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). See also Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915).

The Does therefore are not appropriate plaintiffs in this litigation. Their complaint was properly dismissed by the District Court, and we affirm that dismissal.

V

The principal trust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id, at 460, 92 S.Ct. 1029, at 1042, 31 L.Ed.2d 349 (White, J., concurring in result); or among those rights reserved to the people be the Ninth Amendment, Griswold v. Connecticut, 381 U.S., at 486, 85 S.Ct., at 1682 (Goldberg, J., concurring). Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws.

VI

It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman's life, are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.

1. Ancient attitudes. These are not capable of precise determination. We are told that at the time of the Persian Empire abortifacients were known and that criminal abortions were severely punished.8 We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era,9and that "it was resorted to without scruple."10 The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome's prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable.11 Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father's right to his offspring. Ancient religion did not bar abortion.12

2. The Hippocratic Oath. What then of the famous Oath that has stood so long as the ethical guide of the medical profession and that bears the name of the great Greek (460(?)-377(?) B.C.), who has been described as the Father of Medicine, the "wisest and the greatest practitioner of his art," and the "most important and most complete medical personality of antiquity," who dominated the medical schools of his time, and who typified the sum of the medical knowledge of the past?13The Oath varies somewhat according to the particular translation, but in any translation the content is clear: "I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion,"14or "I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy."15

Although the Oath is not mentioned in any of the principal briefs in this case or in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, it represents the apex of the development of strict ethical concepts in medicine, and its influence endures to this day. Why did not the authority of Hippocrates dissuade abortion practice in his time and that of Rome? The late Dr. Edelstein provides us with a theory:16 The Oath was not uncontested even in Hippocrates' day; only the Pythagorean school of philosophers frowned upon the related act of suicide. Most Greek thinkers, on the other hand, commended abortion, at least prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however, it was a matter of dogma. For them the embryo was animate form the moment of conception, and abortion meant destruction of a living being. The abortion clause of the Oath, therefore, "echoes Pythagorean doctrines," and "[i]n no other stratum of Greek opinion were such views held or proposed in the same spirit of uncompromising austerity."17

Dr. Edelstein then concludes that the Oath Originated in a group representing only a small segment of Greek opinion and that it certainly was not accepted by all ancient physicians. He points out that medical writings down to Galen (A.D. 130-200) "give evidence of the violation of almost every one of its injunctions."18 But with the end of antiquity a decided change took place. Resistance against suicide and against abortion became common. The Oath came to be popular. The emerging teachings of Christianity were in agreement with the Pythagorean ethic. The Oath "became the nucleus of all medical ethics" and "was applauded as the embodiment of truth." Thus, suggests Dr. Edelstein, it is "a Pythagorean manifesto and not the expression of an absolute standard of medical conduct."19

This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath's apparent rigidity. It enables us to understand, in historical context, a long-accepted and revered statement of medical ethics.

3. The common law. It is undisputed that at common law, abortion performed before"quickening"—the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy20—was not an indictable offense.21 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 concensus evolved in early English law that these events occurred at some point between conception and live birth.22 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 quickfetus was a felony at common law, or even a lesser crime, is still disputed. Bracton, writing early in the 13th century, thought it homicide.23But the later and predominant view, following the great common-law scholars, has been that it was, at most, a lesser offence. In a frequently cited passage, Coke took the position that abortion of a woman "quick with childe" is "a great misprision, and no murder"24 Blackstone followed, saying that while abortion after quickening had once been considered manslaughter (though not murder), "modern law" took a less severe view.25 A recent review of the common-law precedents argues, however, that those precedents contradict Coke and that even post-quickening abortion was never established as a common-law crime.26 This is of some importance because while most American courts ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law,27others followed Coke instating that abortion of a quick fetus was a "misprision," a term they translated to mean "misdemeanor."28 That their reliance on Coke on this aspect of the law was uncritical and, apparently in all the reported cases, dictum (due probably to the paucity of common-law prosecutions for post-quickening abortion), makes it now appear doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.

4. The English statutory law. England's first criminal abortion statute, Lord Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick fetus, § 1, a capital crime, but in §2 it provided lesser penalties for the felony of abortion before quickening, and thus preserved the "quickening" distinction. This contrast was continued in the general revision of 1828, 9 Geo. 4, c. 31, § 13. It disappeared, however, together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85, § 6, and did not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, § 59, that formed the core of English anti-abortion law until the liberalizing reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was upon the destruction of "the life of a child capable of being born alive." It made a willful act performed with the necessary intent a felony. It contained a proviso that one was not to be found guilty of the offense "unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother."

A seemingly notable development in the English law was the case of Rex v. Bourne, [1939] 1 K.B. 687. This case apparently answered in the affirmative the question whether an abortion necessary to preserve the life of the pregnant woman was expected from the criminal penalties of the 1861 Act. In his instructions to the jury, Judge Macnaghten referred to the 1929 Act, and observed that the Act related to "the case where a child is killed by a willful act at the time when it is being delivered in the ordinary course of nature,"Id., at 691. He concluded that the 1861 Act's use of the word "unlawfully," imported the same meaning expressed by the specific proviso in the 1929 Act, even though there was no mention of preserving the mother's life in the 1861 Act. He then constructed the phrase "preserving the life of the mother" broadly, that is, "in a reasonable sense," to include a serious and permanent threat to the mother'shealth, and instructed the jury to acquit Dr. Bourne if it found he had acted in a good-faith belief that the abortion was necessary for this purpose. Id., at 693-694. The jury did acquit.

Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an abortion where two other licensed physicians agree (a) "that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated," or (b) "that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped." The Act also provides that, in making this determination, "account may be taken of the pregnant woman's actual or reasonably foreseeable environment." It also permits a physician, without the concurrence of others, to terminate a pregnancy where he is of the good-faith opinion that the abortion "is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman."

5. The American law. In this country, the law in effect in all but a few States until mid-19th century was the pre-existing English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough's Act that related to a woman "quick with child."29 The death penalty was not imposed. Abortion before quickening was made a crime in the State only in 1860.30In 1828, New York enacted legislation 31 that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickened fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it "shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose." By 1840, when Texas had received the common law, 32only eight American States had statutes dealing with abortion. 33 It was not until after the War Between the States the legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening. Most punished attempts equally with completed abortions. While many statutes included the exception for an abortion thought by one or more physicians to be necessary to save the mother's life, that provision soon disappeared and the typical law required that the procedure actually be necessary for that purpose.

Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950's a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother.34 The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother's health.35 Three States permitted abortions that were not "unlawfully" performed or that were not "without lawful justification," leaving interpretation of those standards to the courts.36In the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws, most of them patterned after the ALI Model Penal Code, § 230.3,37 set forth as Appendix B to the opinion in Doe v. Bolton, 410 U.S. 205, 93 S.Ct. 754.

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." Id., at 75-76.

The Committee then offered, and the Association adopted, resolutions protesting "against such unwarrantable destruction of human life," calling upon state legislatures to revise their abortion laws, and requesting the cooperation of state medical societies "in pressing the subject." Id., at 28, 78.

In 1871 a long and vivid report was submitted by the Committee on Criminal Abortion. It ended with the observation, "We had to deal with human life. In a matter of less importance we could entertain no compromise. An honest judge on the bench would call things by their proper names. We could do no less," 22 Trans. of the Am.Med.Assn. 258 (1871). It proffered resolutions, adopted by the Association, id., at 38-39, recommending, among other things, that it "be unlawful and unprofessional for any physician to induce abortion or premature labor, without the concurrent opinion of at least one respectable consulting physician, and then always with a view to the safety of the child—if that be possible," and calling "the attention of the clergy of all denominations to the perverted views of morality entertained by a large class of females—aye, and men also, on this important question."

Except for periodic condemnation of the criminal abortionist, no further formal AMA action took place until 1967. In that year, the Committee on Human Reproduction urged the adoption of a stated policy of opposition to induced abortion, except when there is "documented medical evidence" of a threat to the health or life of the mother, or that the child "may be born with incapacitating physical deformity or mental deficiency," or that a pregnancy "resulting from legally established statutory or forcible rape or incest may constitute a threat to the mental or physical health of the "patient," two other physicians "chosen because of their recognized professional competency 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.38Proceedings of the AMA House of Delegates 220 (June 1970). The AMA Judicial Council rendered a complementary opinion.39

7. The position of the American Public Health Association. In October 1970, the Executive Board of the APHA adopted Standards for Abortion Services. These were five in number:

"a. Rapid and simple abortion referral must be readily available through state and local public health departments, medical societies, or other non-profit organizations.

"b. An important function of counseling should be to simplify and expedite the provision of abortion services; it should not delay the obtaining of these services.

"c. Psychiatric consultation should not be mandatory. As in the case of other specialized medical services, psychiatric consultation should be sought for definite indications and not on a routine basis.

"d. A wide range of individuals from appropriately trained, sympathetic volunteers to highly skilled physicians may qualify as abortion counselors.

"e. Contraception and/or sterilization should be discussed with each abortion patient." Recommended Standards for Abortion Services, 61 Am.J.Pub.Health 396 (1971).

Among factors pertinent to life and health risks associated with abortion were three that "are recognized as important":

"a. the skill of the physician,

"b. the environment in which the abortion is performed, and above all

"c. the duration of pregnancy, as determined by uterine size and confirmed by menstrual history." Id., at 397.

It was said that "a well-equipped hospital" offers more protection "to cope with unforeseen difficulties than an office or clinic without such resources. . . . The factor of gestational age is of overriding importance." Thus, it was recommended that abortions in the second trimester and early abortions in the 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." Id., at 398.

8. The position of the American Bar Association. At its meeting in February 1972 the ABA House of Delegates approved, with 17 opposing votes, the Uniform Abortion Act that had been drafted and approved the proceeding August by the Conference of Commissioners on Uniform State Laws. 58 A.B.A. J. 380 (1972). We set forth the Act in full in the margin.40 The Conference has appended an enlightening Prefatory Note.41