Argued December 13, 1971 Reargued October 11, 1972
                          Decided January 22, 1973

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

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J.,
and DOUGLAS, BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. BURGER, C.
J., post, p. 207, DOUGLAS, J., post, p. 209, and STEWART, J., post, p. 167,
filed concurring opinions. WHITE, J., filed a dissenting opinion, in which
REHNQUIST, J., joined, post, p. 221. REHNQUIST, J., filed a dissenting
opinion, post, p. 171.
 

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

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

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

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

Our task, of course, is to resolve the issue by constitutional measurement,
free of emotion and of predilection. We seek earnestly to do this, and,
because we do, we [410 U.S. 113, 117] have inquired into, and in this
opinion place some emphasis upon, medical and medical-legal history and what
that history reveals about man's attitudes toward the abortion procedure
over the centuries. We bear in mind, too, Mr. Justice Holmes' admonition in
his now-vindicated dissent in Lochner v. New York, 198 U.S. 45, 76 (1905):

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

                                      I
                                     V

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

                                     VI

It perhaps is not generally appreciated that the restrictive criminal
abortion laws in effect in a majority of States today are of relatively
recent vintage. Those laws, generally proscribing abortion or its attempt at
any time during pregnancy except when necessary to preserve the pregnant
woman's life, are not of ancient or even of common-law origin. Instead, they
derive from statutory changes effected, for the most part, in the latter
half of the 19th century. [410 U.S. 113, 130]

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

2. The Hippocratic Oath. What then of the famous Oath that has stood so long
as the ethical guide of the medical profession and that bears the name of
the great Greek (460(?)-377(?) B. C.), who has been described [410 U.S. 113,
131] as the Father of Medicine, the "wisest and the greatest practitioner of
his art," and the "most important and most complete medical personality of
antiquity," who dominated the medical schools of his time, and who typified
the sum of the medical knowledge of the past?13 The Oath varies somewhat
according to the particular translation, but in any translation the content
is clear: "I will give no deadly medicine to anyone if asked, nor suggest
any such counsel; and in like manner I will not give to a woman a pessary to
produce abortion,"14 or "I will neither give a deadly drug to anybody if
asked for it, nor will I make a suggestion to this effect. Similarly, I will
not give to a woman an abortive remedy."15

Although the Oath is not mentioned in any of the principal briefs in this
case or in Doe v. Bolton, post, p. 179, it represents the apex of the
development of strict ethical concepts in medicine, and its influence
endures to this day. Why did not the authority of Hippocrates dissuade
abortion practice in his time and that of Rome? The late Dr. Edelstein
provides us with a theory:16 The Oath was not uncontested even in
Hippocrates' day; only the Pythagorean school of philosophers frowned upon
the related act of suicide. Most Greek thinkers, on the other hand,
commended abortion, at least prior to viability. See Plato, Republic, V,
461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however, it
was a matter of dogma. For them the embryo was animate from the moment of
conception, and abortion meant destruction of a living being. The abortion
clause of the Oath, therefore, "echoes Pythagorean doctrines," [410 U.S.
113, 132] and "[i]n no other stratum of Greek opinion were such views held
or proposed in the same spirit of uncompromising austerity."17

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

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

5. The American law. In this country, the law in effect in all but a few
States until mid-19th century was the pre-existing English common law.
Connecticut, the first State to enact abortion legislation, adopted in 1821
that part of Lord Ellenborough's Act that related to a woman "quick with
child."29 The death penalty was not imposed. Abortion before quickening was
made a crime in that State only in 1860.30 In 1828, New York enacted
legislation31 that, in two respects, was to serve as a model for early
anti-abortion statutes. First, while barring destruction of an unquickened
fetus as well as a quick fetus, it made the former only a misdemeanor, but
the latter second-degree manslaughter. Second, it incorporated a concept of
therapeutic abortion by providing that an abortion was excused if it "shall
have been necessary to preserve the life of such mother, or shall have been
advised by two physicians to be necessary for such purpose." By 1840, when
Texas had received the common law,32 only eight American States [410 U.S.
113, 139] had statutes dealing with abortion.33 It was not until after the
War Between the States that legislation began generally to replace the
common law. Most of these initial statutes dealt severely with abortion
after quickening but were lenient with it before quickening. Most punished
attempts equally with completed abortions. While many statutes included the
exception for an abortion thought by one or more physicians to be necessary
to save the mother's life, that provision soon disappeared and the typical
law required that the procedure actually be necessary for that purpose.

Gradually, in the middle and late 19th century the quickening distinction
disappeared from the statutory law of most States and the degree of the
offense and the penalties were increased. By the end of the 1950's, a large
majority of the jurisdictions banned abortion, however and whenever
performed, unless done to save or preserve the life of the mother.34 The
exceptions, Alabama and the District of Columbia, permitted abortion to
preserve the mother's health.35 Three States permitted abortions that were
not "unlawfully" performed or that were not "without lawful justification,"
leaving interpretation of those standards to the courts.36 In [410 U.S. 113,
140] the past several years, however, a trend toward liberalization of
abortion statutes has resulted in adoption, by about one-third of the
States, of less stringent laws, most of them patterned after the ALI Model
Penal Code, 230.3,37 set forth as Appendix B to the opinion in Doe v.
Bolton, post, p. 205.

*It is thus apparent that at common law, at the time of the adoption of our
Constitution, and throughout the major portion of the 19th century, abortion
was viewed with less disfavor than under most American statutes currently in
effect. Phrasing it another way, a woman enjoyed a substantially broader
right to terminate a pregnancy than she does in most States today. At least
with respect to the early stage of pregnancy, and very possibly without such
a limitation, the opportunity [410 U.S. 113, 141] to make this choice was
present in this country well into the 19th century. Even later, the law
continued for some time to treat less punitively an abortion procured in
early pregnancy.**

6. The position of the American Medical Association. The anti-abortion mood
prevalent in this country in the late 19th century was shared by the medical
profession. Indeed, the attitude of the profession may have played a
significant role in the enactment of stringent criminal abortion legislation
during that period.

An AMA Committee on Criminal Abortion was appointed in May 1857. It
presented its report, 12 Trans. of the Am. Med. Assn. 73-78 (1859), to the
Twelfth Annual Meeting. That report observed that the Committee had been
appointed to investigate criminal abortion "with a view to its general
suppression." It deplored abortion and its frequency and it listed three
causes of "this general demoralization":

     "The first of these causes is a wide-spread popular ignorance of the
     true character of the crime - a belief, even among mothers themselves,
     that the foetus is not alive till after the period of quickening.

     "The second of the agents alluded to is the fact that the profession
     themselves are frequently supposed careless of foetal life . . . .

     "The third reason of the frightful extent of this crime is found in the
     grave defects of our laws, both common and statute, as regards the
     independent and actual existence of the child before birth, as a living
     being. These errors, which are sufficient in most instances to prevent
     conviction, are based, and only based, upon mistaken and exploded
     medical dogmas. With strange inconsistency, the law fully acknowledges
     the foetus in utero and its inherent rights, for civil purposes; while
     personally and as criminally affected, it fails to recognize it, [410
     U.S. 113, 142] and to its life as yet denies all protection." Id., at
     75-76.

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

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

Except for periodic condemnation of the criminal abortionist, no further
formal AMA action took place until 1967. In that year, the Committee on
Human Reproduction urged the adoption of a stated policy of opposition to
induced abortion, except when there is "documented medical evidence" of a
threat to the health or life of the mother, or that the child "may be born
with incapacitating physical deformity or mental deficiency," or that a
pregnancy "resulting from legally established statutory or forcible rape or
incest may constitute a threat to the mental or physical health of the [410
U.S. 113, 143] patient," two other physicians "chosen because of their
recognized professional competence have examined the patient and have
concurred in writing," and the procedure "is performed in a hospital
accredited by the Joint Commission on Accreditation of Hospitals." The
providing of medical information by physicians to state legislatures in
their consideration of legislation regarding therapeutic abortion was "to be
considered consistent with the principles of ethics of the American Medical
Association." This recommendation was adopted by the House of Delegates.
Proceedings of the AMA House of Delegates 40-51 (June 1967).

In 1970, after the introduction of a variety of proposed resolutions, and of
a report from its Board of Trustees, a reference committee noted
"polarization of the medical profession on this controversial issue";
division among those who had testified; a difference of opinion among AMA
councils and committees; "the remarkable shift in testimony" in six months,
felt to be influenced "by the rapid changes in state laws and by the
judicial decisions which tend to make abortion more freely available;" and a
feeling "that this trend will continue." On June 25, 1970, the House of
Delegates adopted preambles and most of the resolutions proposed by the
reference committee. The preambles emphasized "the best interests of the
patient," "sound clinical judgment," and "informed patient consent," in
contrast to "mere acquiescence to the patient's demand." The resolutions
asserted that abortion is a medical procedure that should be performed by a
licensed physician in an accredited hospital only after consultation with
two other physicians and in conformity with state law, and that no party to
the procedure should be required to violate personally held moral
principles.38 Proceedings [410 U.S. 113, 144] of the AMA House of Delegates
220 (June 1970). The AMA Judicial Council rendered a complementary
opinion.39

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

     "a. Rapid and simple abortion referral must be readily available
     through state and local public [410 U.S. 113, 145] health departments,
     medical societies, or other nonprofit organizations.

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

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

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

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

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

     "a. the skill of the physician,

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

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

It was said that "a well-equipped hospital" offers more protection "to cope
with unforeseen difficulties than an office or clinic without such
resources. . . . The factor of gestational age is of overriding importance."
Thus, it was recommended that abortions in the second trimester and early
abortions in the presence of existing medical complications be performed in
hospitals as inpatient procedures. For pregnancies in the first trimester,
[410 U.S. 113, 146] abortion in the hospital with or without overnight stay
"is probably the safest practice." An abortion in an extramural facility,
however, is an acceptable alternative "provided arrangements exist in
advance to admit patients promptly if unforeseen complications develop."
Standards for an abortion facility were listed. It was said that at present
abortions should be performed by physicians or osteopaths who are licensed
to practice and who have "adequate training." Id., at 398.
 

                                     VII

**Three reasons have been advanced to explain historically the enactment of
criminal abortion laws in the 19th century and to justify their continued
existence. [410 U.S. 113, 148]

It has been argued occasionally that these laws were the product of a
Victorian social concern to discourage illicit sexual conduct. Texas,
however, does not advance this justification in the present case, and it
appears that no court or commentator has taken the argument seriously.42 The
appellants and amici contend, moreover, that this is not a proper state
purpose at all and suggest that, if it were, the Texas statutes are
overbroad in protecting it since the law fails to distinguish between
married and unwed mothers.

A second reason is concerned with abortion as a medical procedure. When most
criminal abortion laws were first enacted, the procedure was a hazardous one
for the woman.43 This was particularly true prior to the [410 U.S. 113, 149]
development of antisepsis. Antiseptic techniques, of course, were based on
discoveries by Lister, Pasteur, and others first announced in 1867, but were
not generally accepted and employed until about the turn of the century.
Abortion mortality was high. Even after 1900, and perhaps until as late as
the development of antibiotics in the 1940's, standard modern techniques
such as dilation and curettage were not nearly so safe as they are today.
Thus, it has been argued that a State's real concern in enacting a criminal
abortion law was to protect the pregnant woman, that is, to restrain her
from submitting to a procedure that placed her life in serious jeopardy.

Modern medical techniques have altered this situation. Appellants and
various amici refer to medical data indicating that abortion in early
pregnancy, that is, prior to the end of the first trimester, although not
without its risk, is now relatively safe. Mortality rates for women
undergoing early abortions, where the procedure is legal, appear to be as
low as or lower than the rates for normal childbirth.44 Consequently, any
interest of the State in protecting the woman from an inherently hazardous
procedure, except when it would be equally dangerous for her to forgo it,
has largely disappeared. Of course, important state interests in the areas
of health and medical standards do remain. [410 U.S. 113, 150] The State has
a legitimate interest in seeing to it that abortion, like any other medical
procedure, is performed under circumstances that insure maximum safety for
the patient. This interest obviously extends at least to the performing
physician and his staff, to the facilities involved, to the availability of
after-care, and to adequate provision for any complication or emergency that
might arise. The prevalence of high mortality rates at illegal "abortion
mills" strengthens, rather than weakens, the State's interest in regulating
the conditions under which abortions are performed. Moreover, the risk to
the woman increases as her pregnancy continues. Thus, the State retains a
definite interest in protecting the woman's own health and safety when an
abortion is proposed at a late stage of pregnancy.

The third reason is the State's interest - some phrase it in terms of duty -
in protecting prenatal life. Some of the argument for this justification
rests on the theory that a new human life is present from the moment of
conception.45 The State's interest and general obligation to protect life
then extends, it is argued, to prenatal life. Only when the life of the
pregnant mother herself is at stake, balanced against the life she carries
within her, should the interest of the embryo or fetus not prevail.
Logically, of course, a legitimate state interest in this area need not
stand or fall on acceptance of the belief that life begins at conception or
at some other point prior to live birth. In assessing the State's interest,
recognition may be given to the less rigid claim that as long as at least
potential life is involved, the State may assert interests beyond the
protection of the pregnant woman alone. [410 U.S. 113, 151]

Parties challenging state abortion laws have sharply disputed in some courts
the contention that a purpose of these laws, when enacted, was to protect
prenatal life.46 Pointing to the absence of legislative history to support
the contention, they claim that most state laws were designed solely to
protect the woman. Because medical advances have lessened this concern, at
least with respect to abortion in early pregnancy, they argue that with
respect to such abortions the laws can no longer be justified by any state
interest. There is some scholarly support for this view of original
purpose.47 The few state courts called upon to interpret their laws in the
late 19th and early 20th centuries did focus on the State's interest in
protecting the woman's health rather than in preserving the embryo and
fetus.48 Proponents of this view point out that in many States, including
Texas,49 by statute or judicial interpretation, the pregnant woman herself
could not be prosecuted for self-abortion or for cooperating in an abortion
performed upon her by another.50 They claim that adoption of the
"quickening" distinction through received common [410 U.S. 113, 152] law and
state statutes tacitly recognizes the greater health hazards inherent in
late abortion and impliedly repudiates the theory that life begins at
conception.

It is with these interests, and the weight to be attached to them, that this
case is concerned.

                                    VIII

The Constitution does not explicitly mention any right of privacy. In a line
of decisions, however, going back perhaps as far as Union Pacific R. Co. v.
Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of
personal privacy, or a guarantee of certain areas or zones of privacy, does
exist under the Constitution. In varying contexts, the Court or individual
Justices have, indeed, found at least the roots of that right in the First
Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and
Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United
States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616
(1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis,
J., dissenting); in the penumbras of the Bill of Rights, Griswold v.
Connecticut, 381 U.S., at 484-485; in the Ninth Amendment, id., at 486
(Goldberg, J., concurring); or in the concept of liberty guaranteed by the
first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S.
390, 399 (1923). These decisions make it clear that only personal rights
that can be deemed "fundamental" or "implicit in the concept of ordered
liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in
this guarantee of personal privacy. They also make it clear that the right
has some extension to activities relating to marriage, Loving v. Virginia,
388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535,
541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454;
id., at 460, 463-465 [410 U.S. 113, 153] (WHITE, J., concurring in result);
family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and
child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535
(1925), Meyer v. Nebraska, supra.

This right of privacy, whether it be founded in the Fourteenth Amendment's
concept of personal liberty and restrictions upon state action, as we feel
it is, or, as the District Court determined, in the Ninth Amendment's
reservation of rights to the people, is broad enough to encompass a woman's
decision whether or not to terminate her pregnancy. The detriment that the
State would impose upon the pregnant woman by denying this choice altogether
is apparent. Specific and direct harm medically diagnosable even in early
pregnancy may be involved. Maternity, or additional offspring, may force
upon the woman a distressful life and future. Psychological harm may be
imminent. Mental and physical health may be taxed by child care. There is
also the distress, for all concerned, associated with the unwanted child,
and there is the problem of bringing a child into a family already unable,
psychologically and otherwise, to care for it. In other cases, as in this
one, the additional difficulties and continuing stigma of unwed motherhood
may be involved. All these are factors the woman and her responsible
physician necessarily will consider in consultation.

On the basis of elements such as these, appellant and some amici argue that
the woman's right is absolute and that she is entitled to terminate her
pregnancy at whatever time, in whatever way, and for whatever reason she
alone chooses. With this we do not agree. Appellant's arguments that Texas
either has no valid interest at all in regulating the abortion decision, or
no interest strong enough to support any limitation upon the woman's sole
determination, are unpersuasive. The [410 U.S. 113, 154] Court's decisions
recognizing a right of privacy also acknowledge that some state regulation
in areas protected by that right is appropriate. As noted above, a State may
properly assert important interests in safeguarding health, in maintaining
medical standards, and in protecting potential life. At some point in
pregnancy, these respective interests become sufficiently compelling to
sustain regulation of the factors that govern the abortion decision. The
privacy right involved, therefore, cannot be said to be absolute. In fact,
it is not clear to us that the claim asserted by some amici that one has an
unlimited right to do with one's body as one pleases bears a close
relationship to the right of privacy previously articulated in the Court's
decisions. The Court has refused to recognize an unlimited right of this
kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905)
(vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).

We, therefore, conclude that the right of personal privacy includes the
abortion decision, but that this right is not unqualified and must be
considered against important state interests in regulation.

We note that those federal and state courts that have recently considered
abortion law challenges have reached the same conclusion.

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," and that legislative enactments must be narrowly
drawn to express only the legitimate state interests at stake.

In the recent abortion cases, cited above, courts have recognized these
principles. Those striking down state laws have generally scrutinized the
State's interests in protecting health and potential life, and have
concluded that neither interest justified broad limitations on the reasons
for which a physician and his pregnant patient might decide that she should
have an abortion in the early stages of pregnancy. Courts sustaining state
laws have held that the State's determinations to protect health or prenatal
life are dominant and constitutionally justifiable.**

                                     IX

The District Court held that the appellee failed to meet his burden of
demonstrating that the Texas statute's infringement upon Roe's rights was
necessary to support a compelling state interest, and that, although the
appellee presented "several compelling justifications for state presence in
the area of abortions," the statutes outstripped these justifications and
swept "far beyond any areas of compelling state interest." 314 F. Supp., at
1222-1223. Appellant and appellee both contest that holding. Appellant, as
has been indicated, claims an absolute right that bars any state imposition
of criminal penalties in the area. Appellee argues that the State's
determination to recognize and protect prenatal life from and after
conception constitutes a compelling state interest. As noted above, we do
not agree fully with either formulation.

**A. The appellee and certain amici argue that the fetus is a "person" within
the language and meaning of the Fourteenth Amendment. In support of this,
they outline at length and in detail the well-known facts of fetal
development. If this suggestion of personhood is established, the
appellant's case, of course, collapses, for the fetus'right to life would then be guaranteed specifically by the Amendment. Theappellant conceded as much on reargument.51 On the other hand, the appelleeconceded on reargument52 that no case could be cited that holds that a fetus
is a person within the meaning of the Fourteenth Amendment.

The Constitution does not define "person" in so many words. Section 1 of the
Fourteenth Amendment contains three references to "person." The first, in
defining "citizens," speaks of "persons born or naturalized in the United
States."  But in nearly all these instances, the use of the word is such that it has application only
postnatally. None indicates, with any assurance, that it has any possible
pre-natal application.

All this, together with our observation, supra, that throughout the major
portion of the 19th century prevailing legal abortion practices were far
freer than they are today, persuades us that the word "person," as used in
the Fourteenth Amendment, does not include the unborn.55 This is in accord
with the results reached in those few cases where the issue has been
squarely presented.

Indeed, our decision in United States v. Vuitch, 402 U.S. 62 (1971),
inferentially is to the same effect, for we there would not have indulged in
statutory interpretation favorable to abortion in specified circumstances if
the necessary consequence was the termination of life entitled to Fourteenth
Amendment protection.

This conclusion, however, does not of itself fully answer the contentions
raised by Texas, and we pass on to other considerations.

B. The pregnant woman cannot be isolated in her privacy. She carries an
embryo and, later, a fetus, if one accepts the medical definitions of the
developing young in the human uterus. See Dorland's Illustrated Medical
Dictionary 478-479, 547 (24th ed. 1965). The situation therefore is
inherently different from marital intimacy, or bedroom possession of obscene
material, or marriage, or procreation, or education, with which Eisenstadt
and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were
respectively concerned. As we have intimated above, it is reasonable and
appropriate for a State to decide that at some point in time another
interest, that of health of the mother or that of potential human life,
becomes significantly involved. The woman's privacy is no longer sole and
any right of privacy she possesses must be measured accordingly.

Texas urges that, apart from the Fourteenth Amendment, life begins at
conception and is present throughout pregnancy, and that, therefore, the
State has a compelling interest in protecting that life from and after
conception. We need not resolve the difficult question of when life begins.
When those trained in the respective disciplines of medicine, philosophy,
and theology are unable to arrive at any consensus, the judiciary, at this
point in the development of man's knowledge, is not in a position to
speculate as to the answer. [410 U.S. 113, 160]

It should be sufficient to note briefly the wide divergence of thinking on
this most sensitive and difficult question. There has always been strong
support for the view that life does not begin until live birth. This was the
belief of the Stoics.56 It appears to be the predominant, though not the
unanimous, attitude of the Jewish faith.57 It may be taken to represent also
the position of a large segment of the Protestant community, insofar as that
can be ascertained; organized groups that have taken a formal position on
the abortion issue have generally regarded abortion as a matter for the
conscience of the individual and her family.58 As we have noted, the common
law found greater significance in quickening. Physicians and their
scientific colleagues have regarded that event with less interest and have
tended to focus either upon conception, upon live birth, or upon the interim
point at which the fetus becomes "viable," that is, potentially able to live
outside the mother's womb, albeit with artificial aid.59 Viability is
usually placed at about seven months (28 weeks) but may occur earlier, even
at 24 weeks.60 The Aristotelian theory of "mediate animation," that held
sway throughout the Middle Ages and the Renaissance in Europe, continued to
be official Roman Catholic dogma until the 19th century, despite opposition
to this "ensoulment" theory from those in the Church who would recognize the
existence of life from [410 U.S. 113, 161] the moment of conception.61 The
latter is now, of course, the official belief of the Catholic Church. As one
brief amicus discloses, this is a view strongly held by many non-Catholics
as well, and by many physicians. Substantial problems for precise definition
of this view are posed, however, by new embryological data that purport to
indicate that conception is a "process" over time, rather than an event, and
by new medical techniques such as menstrual extraction, the "morning-after"
pill, implantation of embryos, artificial insemination, and even artificial
wombs.62

In areas other than criminal abortion, the law has been reluctant to endorse
any theory that life, as we recognize it, begins before live birth or to
accord legal rights to the unborn except in narrowly defined situations and
except when the rights are contingent upon live birth. For example, the
traditional rule of tort law denied recovery for prenatal injuries even
though the child was born alive.63 That rule has been changed in almost
every jurisdiction. In most States, recovery is said to be permitted only if
the fetus was viable, or at least quick, when the injuries were sustained,
though few [410 U.S. 113, 162] courts have squarely so held.64 In a recent
development, generally opposed by the commentators, some States permit the
parents of a stillborn child to maintain an action for wrongful death
because of prenatal injuries.65 Such an action, however, would appear to be
one to vindicate the parents' interest and is thus consistent with the view
that the fetus, at most, represents only the potentiality of life.
Similarly, unborn children have been recognized as acquiring rights or
interests by way of inheritance or other devolution of property, and have
been represented by guardians ad litem.66 Perfection of the interests
involved, again, has generally been contingent upon live birth. In short,
the unborn have never been recognized in the law as persons in the whole
sense.

                                      X

In view of all this, we do not agree that, by adopting one theory of life,
Texas may override the rights of the pregnant woman that are at stake. We
repeat, however, that the State does have an important and legitimate
interest in preserving and protecting the health of the pregnant woman,
whether she be a resident of the State or a nonresident who seeks medical
consultation and treatment there, and that it has still another important
and legitimate interest in protecting the potentiality of human life. These
interests are separate and distinct. Each grows in substantiality as the
woman approaches [410 U.S. 113, 163] term and, at a point during pregnancy,
each becomes "compelling."

With respect to the State's important and legitimate interest in the health
of the mother, the "compelling" point, in the light of present medical
knowledge, is at approximately the end of the first trimester. This is so
because of the now-established medical fact, referred to above at 149, that
until the end of the first trimester mortality in abortion may be less than
mortality in normal childbirth. It follows that, from and after this point,
a State may regulate the abortion procedure to the extent that the
regulation reasonably relates to the preservation and protection of maternal
health. Examples of permissible state regulation in this area are
requirements as to the qualifications of the person who is to perform the
abortion; as to the licensure of that person; as to the facility in which
the procedure is to be performed, that is, whether it must be a hospital or
may be a clinic or some other place of less-than-hospital status; as to the
licensing of the facility; and the like.

This means, on the other hand, that, for the period of pregnancy prior to
this "compelling" point, the attending physician, in consultation with his
patient, is free to determine, without regulation by the State, that, in his
medical judgment, the patient's pregnancy should be terminated. If that
decision is reached, the judgment may be effectuated by an abortion free of
interference by the State.

With respect to the State's important and legitimate interest in potential
life, the "compelling" point is at viability. This is so because the fetus
then presumably has the capability of meaningful life outside the mother's
womb. State regulation protective of fetal life after viability thus has
both logical and biological justifications. If the State is interested in
protecting fetal life after viability, it may go so far as to proscribe
abortion [410 U.S. 113, 164] during that period, except when it is necessary
to preserve the life or health of the mother.

Measured against these standards, Art. 1196 of the Texas Penal Code, in
restricting legal abortions to those "procured or attempted by medical
advice for the purpose of saving the life of the mother," sweeps too
broadly. The statute makes no distinction between abortions performed early
in pregnancy and those performed later, and it limits to a single reason,
"saving" the mother's life, the legal justification for the procedure. The
statute, therefore, cannot survive the constitutional attack made upon it
here.

                                     XI

To summarize and to repeat:

1. A state criminal abortion statute of the current Texas type, that excepts
from criminality only a life-saving procedure on behalf of the mother,
without regard to pregnancy stage and without recognition of the other
interests involved, is violative of the Due Process Clause of the Fourteenth
Amendment.

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

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

(c) For the stage subsequent to viability, the State in promoting its
interest in the potentiality of human life [410 U.S. 113, 165] may, if it
chooses, regulate, and even proscribe, abortion except where it is
necessary, in appropriate medical judgment, for the preservation of the life
or health of the mother.

2. The State may define the term "physician," as it has been employed in the
preceding paragraphs of this Part XI of this opinion, to mean only a
physician currently licensed by the State, and may proscribe any abortion by
a person who is not a physician as so defined.

In Doe v. Bolton, post, p. 179, procedural requirements contained in one of
the modern abortion statutes are considered. That opinion and this one, of
course, are to be read together.67

This holding, we feel, is consistent with the relative weights of the
respective interests involved, with the lessons and examples of medical and
legal history, with the lenity of the common law, and with the demands of
the profound problems of the present day. The decision leaves the State free
to place increasing restrictions on abortion as the period of pregnancy
lengthens, so long as those restrictions are tailored to the recognized
state interests. The decision vindicates the right of the physician to
administer medical treatment according to his professional judgment up to
the points where important [410 U.S. 113, 166] state interests provide
compelling justifications for intervention. Up to those points, the abortion
decision in all its aspects is inherently, and primarily, a medical
decision, and basic responsibility for it must rest with the physician. If
an individual practitioner abuses the privilege of exercising proper medical
judgment, the usual remedies, judicial and intra-professional, are
available.

There is no material below that I will hold you responsible for.  You can take a look at Rehnquist's dissenting opinion at the end of this document if you like.**

armstrongb
 
 
 

                                     XII

Our conclusion that Art. 1196 is unconstitutional means, of course, that the
Texas abortion statutes, as a unit, must fall. The exception of Art. 1196
cannot be struck down separately, for then the State would be left with a
statute proscribing all abortion procedures no matter how medically urgent
the case.

     It is so ordered.

[For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 207.]

[For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 209.]

[For dissenting opinion of MR. JUSTICE WHITE, see post, p. 221.]
 
 

MR. JUSTICE STEWART, concurring.

In 1963, this Court, in Ferguson v. Skrupa, 372 U.S. 726, purported to sound
the death knell for the doctrine of substantive due process, a doctrine
under which many state laws had in the past been held to violate the
Fourteenth Amendment. As Mr. Justice Black's opinion for the Court in Skrupa
put it: "We have returned to the original constitutional proposition that
courts do not substitute their social and economic beliefs for the judgment
of legislative bodies, who are elected to pass laws." Id., at 730.1

Barely two years later, in Griswold v. Connecticut, 381 U.S. 479, the Court
held a Connecticut birth control law unconstitutional. In view of what had
been so recently said in Skrupa, the Court's opinion in Griswold
understandably did its best to avoid reliance on the Due Process Clause of
the Fourteenth Amendment as the ground for decision. Yet, the Connecticut
law did not violate any provision of the Bill of Rights, nor any other
specific provision of the Constitution.2 So it was clear [410 U.S. 113, 168]
to me then, and it is equally clear to me now, that the Griswold decision
can be rationally understood only as a holding that the Connecticut statute
substantively invaded the "liberty" that is protected by the Due Process
Clause of the Fourteenth Amendment.3 As so understood, Griswold stands as
one in a long line of pre-Skrupa cases decided under the doctrine of
substantive due process, and I now accept it as such.

     "In a Constitution for a free people, there can be no doubt that the
     meaning of `liberty' must be broad indeed." Board of Regents v. Roth,
     408 U.S. 564, 572. The Constitution nowhere mentions a specific right
     of personal choice in matters of marriage and family life, but the
     "liberty" protected by the Due Process Clause of the Fourteenth
     Amendment covers more than those freedoms explicitly named in the Bill
     of Rights.

As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty
guaranteed by the Due Process Clause cannot be found in or limited by the
precise terms of the specific guarantees elsewhere provided in the
Constitution. This `liberty' is not a series of isolated points pricked out
in terms of the taking of property; the freedom of speech, press, and
religion; the right to keep and bear arms; the freedom from unreasonable
searches and seizures; and so on. It is a rational continuum which, broadly
speaking, includes a freedom from all substantial arbitrary impositions and
purposeless restraints . . . and which also recognizes, what a reasonable
and sensitive judgment must, that certain interests require particularly
careful scrutiny of the state needs asserted to justify their abridgment."
Poe v. Ullman, 367 U.S. 497, 543 (opinion dissenting from dismissal of
appeal) (citations omitted). In the words of Mr. Justice Frankfurter, "Great
concepts like . . . `liberty' . . . were purposely left to gather meaning
from experience. For they relate to the whole domain of social and economic
fact, and the statesmen who founded this Nation knew too well that only a
stagnant society remains unchanged." National Mutual Ins. Co. v. Tidewater
Transfer Co., 337 U.S. 582, 646 (dissenting opinion).

Several decisions of this Court make clear that freedom of personal choice
in matters of marriage and family life is one of the liberties protected by
the Due Process Clause of the Fourteenth Amendment. As recently as last Term,
in Eisenstadt v. Baird, 405 U.S. 438, 453, we recognized "the right of the
individual, married or single, to be free from unwarranted governmental
intrusion into matters so fundamentally affecting a person [410 U.S. 113,
170] as the decision whether to bear or beget a child." That right
necessarily includes the right of a woman to decide whether or not to
terminate her pregnancy. "Certainly the interests of a woman in giving of
her physical and emotional self during pregnancy and the interests that will
be affected throughout her life by the birth and raising of a child are of a
far greater degree of significance and personal intimacy than the right to
send a child to private school protected in Pierce v. Society of Sisters,

Clearly, therefore, the Court today is correct in holding that the right
asserted by Jane Roe is embraced within the personal liberty protected by
the Due Process Clause of the Fourteenth Amendment.

It is evident that the Texas abortion statute infringes that right directly.
Indeed, it is difficult to imagine a more complete abridgment of a
constitutional freedom than that worked by the inflexible criminal statute
now in force in Texas. The question then becomes whether the state interests
advanced to justify this abridgment can survive the "particularly careful
scrutiny" that the Fourteenth Amendment here requires.

The asserted state interests are protection of the health and safety of the
pregnant woman, and protection of the potential future human life within
her. These are legitimate objectives, amply sufficient to permit a State to
regulate abortions as it does other surgical procedures, and perhaps
sufficient to permit a State to regulate abortions more stringently or even
to prohibit them in the late stages of pregnancy. But such legislation is
not before us, and I think the Court today has thoroughly demonstrated that
these state interests cannot constitutionally support the broad abridgment
of personal [410 U.S. 113, 171] liberty worked by the existing Texas law.
Accordingly, I join the Court's opinion holding that that law is invalid
under the Due Process Clause of the Fourteenth Amendment.

MR. JUSTICE REHNQUIST, dissenting.

The Court's opinion brings to the decision of this troubling question both
extensive historical fact and a wealth of legal scholarship. While the
opinion thus commands my respect, I find myself nonetheless in fundamental
disagreement with those parts of it that invalidate the Texas statute in
question, and therefore dissent.

                                      I

The Court's opinion decides that a State may impose virtually no restriction
on the performance of abortions during the first trimester of pregnancy. Our
previous decisions indicate that a necessary predicate for such an opinion
is a plaintiff who was in her first trimester of pregnancy at some time
during the pendency of her law-suit. While a party may vindicate his own
constitutional rights, he may not seek vindication for the rights of others.
Moose Lodge v. Irvis, 407 U.S. 163 (1972); Sierra Club v. Morton, 405 U.S.
727 (1972). The Court's statement of facts in this case makes clear,
however, that the record in no way indicates the presence of such a
plaintiff. We know only that plaintiff Roe at the time of filing her
complaint was a pregnant woman; for aught that appears in this record, she
may have been in her last trimester of pregnancy as of the date the
complaint was filed.

Nothing in the Court's opinion indicates that Texas might not
constitutionally apply its proscription of abortion as written to a woman in
that stage of pregnancy. Nonetheless, the Court uses her complaint against
the Texas statute as a fulcrum for deciding that States may [410 U.S. 113,
172] impose virtually no restrictions on medical abortions performed during
the first trimester of pregnancy. In deciding such a hypothetical lawsuit,
the Court departs from the longstanding admonition that it should never
"formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied." Liverpool, New York &
Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39
(1885). See also Ashwander v. TVA, 297 U.S. 288, 345 (1936) (Brandeis, J.,
concurring).

                                     II

Even if there were a plaintiff in this case capable of litigating the issue
which the Court decides, I would reach a conclusion opposite to that reached
by the Court. I have difficulty in concluding, as the Court does, that the
right of "privacy" is involved in this case. Texas, by the statute here
challenged, bars the performance of a medical abortion by a licensed
physician on a plaintiff such as Roe. A transaction resulting in an
operation such as this is not "private" in the ordinary usage of that word.
Nor is the "privacy" that the Court finds here even a distant relative of
the freedom from searches and seizures protected by the Fourth Amendment to
the Constitution, which the Court has referred to as embodying a right to
privacy. Katz v. United States, 389 U.S. 347 (1967).

If the Court means by the term "privacy" no more than that the claim of a
person to be free from unwanted state regulation of consensual transactions
may be a form of "liberty" protected by the Fourteenth Amendment, there is
no doubt that similar claims have been upheld in our earlier decisions on
the basis of that liberty. I agree with the statement of MR. JUSTICE STEWART
in his concurring opinion that the "liberty," against deprivation of which
without due process the Fourteenth [410 U.S. 113, 173] Amendment protects,
embraces more than the rights found in the Bill of Rights. But that liberty
is not guaranteed absolutely against deprivation, only against deprivation
without due process of law. The test traditionally applied in the area of
social and economic legislation is whether or not a law such as that
challenged has a rational relation to a valid state objective. Williamson v.
Lee Optical Co., 348 U.S. 483, 491 (1955). The Due Process Clause of the
Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on
legislative power to enact laws such as this. If the Texas statute were to
prohibit an abortion even where the mother's life is in jeopardy, I have
little doubt that such a statute would lack a rational relation to a valid
state objective under the test stated in Williamson, supra. But the Court's
sweeping invalidation of any restrictions on abortion during the first
trimester is impossible to justify under that standard, and the conscious
weighing of competing factors that the Court's opinion apparently
substitutes for the established test is far more appropriate to a
legislative judgment than to a judicial one.

The Court eschews the history of the Fourteenth Amendment in its reliance on
the "compelling state interest" test. See Weber v. Aetna Casualty & Surety
Co., 406 U.S. 164, 179 (1972) (dissenting opinion). But the Court adds a new
wrinkle to this test by transposing it from the legal considerations
associated with the Equal Protection Clause of the Fourteenth Amendment to
this case arising under the Due Process Clause of the Fourteenth Amendment.
Unless I misapprehend the consequences of this transplanting of the
"compelling state interest test," the Court's opinion will accomplish the
seemingly impossible feat of leaving this area of the law more confused than
it found it. [410 U.S. 113, 174]

While the Court's opinion quotes from the dissent of Mr. Justice Holmes in
Lochner v. New York, 198 U.S. 45, 74 (1905), the result it reaches is more
closely attuned to the majority opinion of Mr. Justice Peckham in that case.
As in Lochner and similar cases applying substantive due process standards
to economic and social welfare legislation, the adoption of the compelling
state interest standard will inevitably require this Court to examine the
legislative policies and pass on the wisdom of these policies in the very
process of deciding whether a particular state interest put forward may or
may not be "compelling." The decision here to break pregnancy into three
distinct terms and to outline the permissible restrictions the State may
impose in each one, for example, partakes more of judicial legislation than
it does of a determination of the intent of the drafters of the Fourteenth
Amendment.

The fact that a majority of the States reflecting, after all, the majority
sentiment in those States, have had restrictions on abortions for at least a
century is a strong indication, it seems to me, that the asserted right to
an abortion is not "so rooted in the traditions and conscience of our people
as to be ranked as fundamental," Snyder v. Massachusetts, 291 U.S. 97, 105
(1934). Even today, when society's views on abortion are changing, the very
existence of the debate is evidence that the "right" to an abortion is not
so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope
of the Fourteenth Amendment a right that was apparently completely unknown
to the drafters of the Amendment. As early as 1821, the first state law
dealing directly with abortion was enacted by the Connecticut Legislature.
Conn. Stat., Tit. 22, 14, 16. By the time of the adoption of the Fourteenth
[410 U.S. 113, 175] Amendment in 1868, there were at least 36 laws enacted
by state or territorial legislatures limiting abortion.1 While many States
have amended or updated [410 U.S. 113, 176] their laws, 21 of the laws on
the books in 1868 remain in effect today.2 Indeed, the Texas statute struck
down today was, as the majority notes, first enacted in 1857 [410 U.S. 113,
177] and "has remained substantially unchanged to the present time." Ante,
at 119.

There apparently was no question concerning the validity of this provision
or of any of the other state statutes when the Fourteenth Amendment was
adopted. The only conclusion possible from this history is that the drafters
did not intend to have the Fourteenth Amendment withdraw from the States the
power to legislate with respect to this matter.

                                     III

Even if one were to agree that the case that the Court decides were here,
and that the enunciation of the substantive constitutional law in the
Court's opinion were proper, the actual disposition of the case by the Court
is still difficult to justify. The Texas statute is struck down in toto,
even though the Court apparently concedes that at later periods of pregnancy
Texas might impose these selfsame statutory limitations on abortion. My
understanding of past practice is that a statute found [410 U.S. 113, 178]
to be invalid as applied to a particular plaintiff, but not unconstitutional
as a whole, is not simply "struck down" but is, instead, declared
unconstitutional as applied to the fact situation before the Court. Yick Wo
v. Hopkins, 118 U.S. 356 (1886); Street v. New York, 394 U.S. 576 (1969).

For all of the foregoing reasons, I respectfully dissent.