In , 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.
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 position of the American Public Health Association.
These were five in number:. Rapid and simple abortion referral must be readily available through state and local public health departments, medical societies, or other non-profit organizations. An important function of counseling should be to simplify and expedite the provision of abortion services; if should not delay the obtaining of these services. 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.
A wide range of individuals from appropriately trained, sympathetic volunteers to highly skilled physicians may qualify as abortion counselors. Health Among factors pertinent to life and health risks associated with abortion were three that 'are recognized as important':. The duration of pregnancy, as determined by uterine size and confirmed by menstrual history.
It was said that 'a well-equipped hospital' offers more protection 'to cope with unforeseen difficulties than an office or clinic without such resources. The factor of gestational age is of overriding importance. For pregnancies in the first trimester, abortion in the hospital with or without overnight stay 'is probably the safest practice.
It was said that at present abortions should be performed by physicians or osteopaths who are licensed to practice and who have 'adequate training.
The position of the American Bar Association. We set forth the Act in full in the margin. Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence. It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct.
Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously. 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.
Antiseptic techniques, of course, were based on discoveries by Lister, Pasteur, and others first announced in , but were not generally accepted and employed until about the turn of the century. Abortion mortality was high. Even after , and perhaps until as late as the development of antibiotics in the '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.
Of course, important state interests in the areas of health and medical standards do remain. The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise.
The prevalence of high mortality rates at illegal 'abortion mills' strengthens, rather than weakens, the State's interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman's own health and safety when an abortion is proposed at a late stage of pregnancy,.
The third reason is the State's interest-some phrase it in terms of duty-in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. 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 life birth.
In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone. Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life.
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. It is with these interests, and the weight to be attached to them, that this case is concerned.
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.
Botsford, U. 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, U. Ohio, U. United States, U. Nebraska, U. These decisions make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' Palko v.
They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, U. Oklahoma, U. Massachusetts, U. Society of Sisters, U. Nebraska, supra. This right of privacy, whether it be founded in the Fourteenth Amendment 's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment 's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.
In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.
With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate.
As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions.
The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Bell, U. We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.
We note that those federal and state courts that have recently considered abortion law challenges have reached the same conclusion. A majority, in addition to the District Court in the present case, have held state laws unconstitutional, at least in part, because of vagueness or because of overbreadth and abridgment of rights. Bolton, F. Scott, F. Kugler, F. McCann, F.
Belous, 71 Cal. Barquet, So. Others have sustained state statutes. Crossen v. Attorney General, F. Edwards, F. Brown, F. Ohio ; Doe v. Rampton, F. State, Ind. State, So. Munson, S. Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant.
We agree with this approach. Where certain 'fundamental rights' are involved, the Court has held that regulation limiting these rights may be justified only by a 'compelling state interest,' Kramer v. Union Free School District, U. Thompson, U. Verner, U. Griswold v. Secretary of State, U. In the recent abortion cases, cited above, courts have recognized these principles. Those striking down state laws have generally scrutinized the State's interests in protecting health and potential life, and have concluded that neither interest justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy.
Courts sustaining state laws have held that the State's determinations to protect health or prenatal life are dominant and constitutionally justifiable. The District Court held that the appellee failed to meet his burden of demonstrating that the Texas statute's infringement upon Roe's rights was necessary to support a compelling state interest, and that, although the appellee presented 'several compelling justifications for state presence in the area of abortions,' the statutes outstripped these justifications and swept 'far beyond any areas of compelling state interest.
Appellant and appellee both contest that holding. Appellant, as has been indicated, claims an absolute right that bars any state imposition of criminal penalties in the area. Appellee argues that the State's determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation.
The appellee and certain amici argue that the fetus is a 'person' within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development.
If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument.
The Constitution does not define 'person' in so many words. Section 1 of the Fourteenth Amendment contains three references to 'person. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application. All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word 'person,' as used in the Fourteenth Amendment , does not include the unborn.
McGarvey v. Magee-Womens Hospital, F. Cheaney v. Rogers, F. Montana v. Kennedy, U. Superior Court, 2 Cal. Dickinson, 28 Ohio St. Indeed, our decision in United States v. Vuitch, U.
This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations. The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. See Dorland's Illustrated Medical Dictionary , 24th ed.
The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner and Pierce and Meyer were respectively concerned.
As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly. Texas urges that, apart from the Fourteenth Amendment , life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception.
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.
It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics. 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.
As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a 'process' over time, rather than an event, and by new medical techniques such as menstrual extraction, the 'morning-after' pill, implantation of embryos, artificial insemination, and even artificial wombs.
In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before life birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon life birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few courts have squarely so held.
Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem. In short, the unborn have never been recognized in the law as persons in the whole sense. In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.
We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a non-resident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes 'compelling.
With respect to the State's important and legitimate interest in the health of the mother, the 'compelling' point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at , that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth.
It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.
Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.
This means, on the other hand, that, for the period of pregnancy prior to this 'compelling' point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated.
If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State. With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.
If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother. Measured against these standards, Art. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, 'saving' the mother's life, the legal justification for the procedure.
The statute, therefore, cannot survive the constitutional attack made upon it here. This conclusion makes it unnecessary for us to consider the additional challenge to the Texas statute asserted on grounds of vagueness. See United States v. A state criminal abortion statute of the current Texas type, that excepts from criminality only a 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.
The State may define the term 'physician,' as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.
In Doe v. That opinion and this one, of course, are to be read together. This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day.
The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention.
Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.
Our conclusion that Art. The exception of Art. Although the District Court granted appellant Roe declaratory relief, it stopped short of issuing an injunction against enforcement of the Texas statutes. The Court has recognized that different considerations enter into a federal court's decision as to declaratory relief, on the one hand, and injunctive relief, on the other.
Zwickler v. Koota, U. S , , 88 S. We are not dealing with a statute that, on its face, appears to abridge free expression, an area of particular concern under Dombrowski and refined in Younger v. We find it unnecessary to decide whether the District Court erred in withholding injunctive relief, for we assume the Texas prosecutorial authorities will give full credence to this decision that the present criminal abortion statutes of that State are unconstitutional. The judgment of the District Court as to intervenor Hallford is reversed, and Dr.
Hallford's complaint in intervention is dismissed. In all other respects, the judgment of the District Court is affirmed. Costs are allowed to the appellee. Wade - district attorney of Dallas County from to McCorvey sued him because he enforced a law that prohibited abortion, except to save a woman's life.
He died on March 1, Sarah Weddington - Lawyer for McCorvey. Linda Coffee - Lawyer for McCorvey. Jay Floyd - Argued the case for Texas the first time. Robert C. Flowers - Reargued the case for Texas. And yet, because their biological mother happens to have been Jane Roe, they are also extraordinary.
Would a different Jane Roe have changed the way the case has been perceived over the years? Weddington and Coffee do seem to have told her that, by the time her case made it to court, it would almost certainly be too late to end the pregnancy. But they did not help her to get an abortion, and, as Prager notes, they could at least have tried. Weddington had worked with a service that referred people seeking abortions to clinics in California where it was legal and in Mexico where it was quasi-legal.
She herself had obtained an abortion in Mexico a few years earlier. Weddington was only twenty-six when she argued Roe in front of the Supreme Court. But Prager says that in early interviews Weddington made it sound as if McCorvey had decided to carry her pregnancy to term to make sure she would still have standing, thereby saving the case. She was living quietly with her partner in a small town in East Texas, where it was not easy to be open about her gay identity.
Her finances were precarious enough that she relied on a local food bank. By the time the pro-life movement took McCorvey aboard, anti-abortion activists had widened their focus from the vulnerable fetus to the woman carrying it—who, they argued, would be morally, emotionally, and physically damaged by an abortion.
Everett Koop was tasked with collecting evidence of P. Evidence of routine regret was also lacking. A large-scale study conducted by researchers at the University of California, San Francisco, found that, five years out, the vast majority of women who had undergone an abortion said it had been the right choice for them.
In any case, regret is a dubious basis for policy. The anti-abortion movement made McCorvey into a sad-eyed embodiment of tormenting second thoughts.
Here, after all, was the very woman whose pregnancy had legalized abortion, now decrying it. But the regret McCorvey expressed time and again was about not getting an abortion—she even shared that sentiment with a reporter sent to cover her born-again baptism. There had been other possible plaintiffs, other possible routes to the Supreme Court. As a young litigator with the A. The woman was Susan Struck, a nurse in the Air Force who became pregnant in , while serving in Vietnam.
The military gave her two choices: have an abortion or be immediately discharged. She especially welcomed the prospect of coming together with her half sisters. She told me the next month, when we met for the first time on a rainy day in Tucson, Arizona, that she also wished to be unburdened of her secret. From the December issue: Caitlin Flanagan on the dishonesty of the abortion debate.
In time, I would come to know Shelley and her sisters well, along with their birth mother, Norma. Their lives resist the tidy narratives told on both sides of the abortion divide. To better represent that divide in my book, I also wrote about an abortion provider, a lawyer, and a pro-life advocate who are as important to the larger story of abortion in America as they are unknown.
Together, their stories allowed me to give voice to the complicated realities of Roe v. She became instead, with the help of McCluskey, the only child of a woman in Dallas named Ruth Schmidt and her eventual husband, Billy Thornton. Ruth named the baby Shelley Lynn. Ruth had grown up in a devoutly Lutheran home in Minnesota, one of nine children. In , at the age of 17, she married a military man from her hometown, and the couple moved to an Air Force base in Texas.
Ruth quickly learned that she could not conceive. That same year, Ruth met Billy, the brother of another wife on the base. It had helped him with women, too. Ruth and Billy ran off, settling in the Dallas area. The brother introduced the couple to Henry McCluskey.
In early June , the lawyer called with the news that a newborn baby girl was available. She was three days old when Billy drove her home. Ruth was ecstatic. McCluskey had told Ruth and Billy that Shelley had two half sisters.
But he did not identify them, or Norma, or say anything about the Roe lawsuit that Norma had filed three months earlier. When the Roe case was decided, in , the adoptive parents were oblivious of its connection to their daughter, now 2 and a half, a toddler partial to spaghetti and pork chops and Cheez Whiz casserole.
When Shelley was 5, she decided that her birth parents were most likely Elvis Presley and the actor Ann-Margret. Ruth loved being a mother—playing the tooth fairy, outfitting Shelley in dresses, putting her hair into pigtails. When Shelley was 7, Billy found work as a mechanic in Houston. The family moved, and then moved again and again. Mindful of her adoption, she wished to know who had brought her into being: her heart-shaped face and blue eyes, her shyness and penchant for pink, her frequent anxiety—which gripped her when her father began to drink heavily.
Billy and Ruth fought. Doors slammed. Shelley watched her mother issue second chances, then watched her father squander them. A week passed before Ruth explained that Billy would not return. Shelley found herself wondering not only about her birth parents but also about the two older half sisters her mother had told her she had. She wanted to know them, to share her thoughts, to tell them about her father or about how much she hated science and gym.
She began to look hard and long at every girl in every park. She would call town halls asking for information. In , Billy got back in touch with Ruth and asked to see their daughter.
But she got through ninth grade, shedding her Texas accent and making friends at Highline High. The next year, she had a boyfriend. He, too, had been adopted. Shelley was happy.
She liked attention and got it. But then life changed. Shelley was 15 when she noticed that her hands sometimes shook. She could make them still by eating.
But the tremor would return. She simply continued on. Decades after her father left home, it would occur to Shelley that the genesis of her unease preceded his disappearance. In fact, it preceded her birth. She knew only, she explained, that she wanted to one day find a partner who would stay with her always. And she wanted to become a secretary, because a secretary lived a steady life. In , Shelley graduated from Highline High and enrolled in secretarial school.
One year later, her birth mother started to look for her. She had revealed her identity as Jane Roe days after the Roe decision, in , but almost a decade elapsed before she began to commit herself to the pro-choice movement.
Her name was not yet widely known when, shortly before the march, three bullets pierced her home and car. Norma blamed the shooting on Roe , but it likely had to do with a drug deal.
A woman had recently accused Norma of shortchanging her in a marijuana sale. Norma landed in the papers. The feminist lawyer Gloria Allred approached her at the Washington march and took her to Los Angeles for a run of talks, fundraisers, and interviews. Soon after, Norma announced that she was hoping to find her third child, the Roe baby. In a television studio in Manhattan, the Today host Jane Pauley asked Norma why she had decided to look for her.
Norma struggled to answer. Some 20 years had passed since Norma had conceived her third child, yet she had begun searching for that child only a few weeks after retaining a prominent lawyer. And she was not looking for her second child. She was seeking only the one associated with Roe. Norma had no sooner announced her search than The National Enquirer offered to help.
The tabloid turned to a woman named Toby Hanft. Hanft died in , but two of her sons spoke with me about her life and work, and she once talked about her search for the Roe baby in an interview.
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