Gale Encyclopedia Of American Law 3Rd Edition Volume 12 P47 pptx

that cannot be compelled. She is not herself subject to legal action, by statutory exemp- tion. 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 other- wise 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, ‘funda- mental 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 de clared uncon- stitutional in part as a violation of rights of privacy. The scope of interests found to be con- stitutionally protected by the Supreme Court demonstrates that it views both the sanctity of the individual’s person and his relation- ships 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW ROE V. WADE 447 U.S. SUPREME COURT, 1972 SUPPLEMENTAL BRIEF FOR APPELLANTS difficult psychological and social adjust- ments. The working or student mother must curtail or end her employment or educa- tional 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. IV. 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 specifi- cally 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 estab- lish 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 legisla- ture 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 compelli ng interest in such regulation not that the law is sufficiently narrow. The fetus, as such, is not and never has been protected in Texa s, with the possible exception of the abortion statutes. In Texas, the so-called protections for the “unborn child” are depen- dent 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,28Tex.App.308, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 448 ROE V. WADE MILESTONES IN THE LAW U.S. SUPREME COURT, 1972 SUPPLEMENTAL BRIEF FOR APPELLANTS 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 (197 1); 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 crimi- nal 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 recog- nize 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 compen- sated 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 uncon- ceived 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 p regnant 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW ROE V. WADE 449 U.S. SUPREME COURT, 1972 SUPPLEMENTAL BRIEF FOR APPELLANTS 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 unconstitu- tionally 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 physi- cian’s standpoint, as the District Court in this case pointed out, there are man y 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 disc uss 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 unconsti- tutionally 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’slifeor 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 450 ROE V. WADE MILESTONES IN THE LAW U.S. SUPREME COURT, 1972 SUPPLEMENTAL BRIEF FOR APPELLANTS VI. The Texas abortion law places an unconstitutional burden of proof in the physician Appellant’s original brief details the uncon- stitutionality 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 deny- ing 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 instruc- tions that a permanent injunction against enfor- cement of said statutes be entered. Respectfully submitted, ROY LUCAS Law Institutional Madison Constitutional Law Institute 230 Twin Peaks Blvd. San Francisco, California 94114 SARAH WEDDINGTON James R. Weddington 709 West 14th Austin, Texas 78701 LINDA N. COFFEE 2130 First Nat’l Bank Bldg. Dallas, Texas 75202 FRED BRUNER ROY L . MERRILL, JR. Daughtery, Bruner, Lastelick and Anderson 1130 Mercantile Bank Bldg. Dallas, Texas 75201 Attorneys for Appellants GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW ROE V. WADE 451 U.S. SUPREME COURT, 1972 SUPPLEMENTAL BRIEF FOR APPELLANTS Roe v. Wade CITE AS 93 S.CT. 705 (1973) k 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 abor- tion laws which were claimed to be uncon- stitutional. A three-judge United States District CourtfortheNorthernDistrictofTexas,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 decisionand its effectuation must be left to the medical judgement of the pregnant woman’s attending physician, subse- quent to approximately the end of the first trimester the state may regulate abortion proce- dureinways 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 forpreservationoflifeorhealthofmother. 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 necessar- ily identical. 28 U.S.C.A. 1253. With respect to single, pregnant female who alleged that she was unable to obta in 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 viola- tions 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 injunc- tive 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 affirma- tively 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 452 ROE V. WADE MILESTONES IN THE LAW U.S. SUPREME COURT, JANUARY 1973 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 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 impor- tant interests in safeguarding health, in main- taining 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 in- volved, regulation limiting these rights may be justified only by a compelling state interest and the legislative enactme nts 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 protec- tion 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 pro- tecting right to privacy against state action. U.S.C.A.Const. Amend, 14; Vernon’sAnn.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 constitution ality of the Texas criminal abortion laws, which proscribe procuring or attemptin g 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 inter- vene. 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 *The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 409. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW ROE V. WADE 453 U.S. SUPREME COURT, JANUARY 1973 overbroadly infringing those plaintiffs’ Ninth and Fourt eenth 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 injunc- tive 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 termi- nate 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 “compel- ling” 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 approxi- mately 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 neces- sary, 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. 7 32–733. 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 uncon- stitutional. 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, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 454 ROE V. WADE MILESTONES IN THE LAW U.S. SUPREME COURT, JANUARY 1973 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 centu- ries. 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 acci- dent 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); Tex as 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 Roe 4 a single woman who was residing in Dallas County, Texas, instituted this fede- ral action in March 1970 against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion 1 “Article 1191. Abortion. “If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent; the punishment shall be doubled. By ‘abortion’ is meant that the life of the fetus or embryo shall be destroyed in the woman’s womb or that a premature birth thereof be caused. “Art. 1192. Furnishing the means. “Whoever furnishes the means for procuring an abortion knowing the purpose is intended is guilty as an accomplice.” “Art. 1193. Attempt at abortion.” “If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means were calculated to produce that result, and shall be fined not less than one hundred nor more than one thousand dollars.” “Art. 1194. Murder in producing abortion.” “If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder.” “Art. 1196. By medical advice. “Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.” The foregoing Articles, together with Art. 1195, compose Chapter 9 of title 15 of the Penal Code. Article 1195, not attacked here reads: “Art. 1195. Destroying unborn child. “Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years.” 2 Ariz.Rev.Stat.Ann. § 13–211 (1956); Conn.Pub.Act No. 1 (May 1972 special session) (in 4 Conn.Leg.Serv. 677 (1972)), and Conn.Gen.Stat.Rev. §§ 53–29, 53–30 (1968) (or unborn child); Idaho Code § 18–601 (1948); Ill.Rev. Stat., c. 38, §23–1 (1971); Ind.Code § 35–158–1 (1971); Ky.Rev.Stat. § 436.020 (1962); La.Rev.Stat. § 37:1285(6) (1964) (loss of medical license) (but see § 14–87 (Supp.1972) containing no exception for the life of the mother under the criminal statute); Me.Rev.Stat.Ann., Tit. 17, § 51 (1964); Mass.Gen. Laws Ann., c. 272, § 19 (1970) (using the term “unlawfully” construed to exclude an abortion to save the mother’s life, Kudish v. Bd. of Registration, 356 Mass. 98, 248 N.E. 2d 264 (1969); Mich.Comp.Laws § 750.14 (1948); Minn.Stat. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW ROE V. WADE 455 U.S. SUPREME COURT, JANUARY 1973 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 uncon- stitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amend- ments. 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 Four- teenth Amendment, and that they violated his own and his patients’ rights to privacy in the doctor-patient relatio nship 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, 5 a married couple, filed a companion complaint to that of Roe. They also named the District Attorney as defendant, claimed like constitutional deprivations, and sought declaratory and injunctive relief. The Does alleged that they were a childless couple; that Mrs. Doe was suffering from a “neural- chemical” disorder; that her physician had “advised her to avoid pregnancy until such time as her condition has materially improved” (although a pregnancy at the present time would not present “a serious risk” to her life); that, pursuant to medical advice, she had discontinued use of birth control pills; and that if she should become pregnant, she would want to terminate the pregnancy by an abortion performed by a competent, licensed physician under safe, clinical conditions. By an amendment to 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 § 617.18 (1971); Mo.Rev.Stat. § 559.100 (1969); Mont.Rev. Codes Ann. § 94–401 (1969); Neb.Rev.Stat. § 28–405 (1964); Nev.Rev. Stat. § 200.220 (1967); N.H.Rev.Stat. Ann. § 585:13 (1955); N.J.Stat.Ann. § 2A:87–1 (1969) (“without lawful justification”); N.D.Cent.Code §§ 12–25–01, 12–25– 02 (1960); Ohio Rev.Code Ann. § 2901.16 (1953); Okla.Stat. Ann., Tit. 21, § 861 (1972–1973 Supp.); Pa.Stat. Ann., Tit 18, §§ 4718, 4719 (1963) (“unlawful”); R.I.Gen.Laws Ann. §11–3–1 (1969); S.D.Comp.Laws Ann. § 22–17–1 (1967); Tenn.Code Ann. §§ 39–301, 39–302 (1956); Utah Code Ann. §§ 76–2–1, 76–2–2 1953); Vt.Stat.Ann., Tit. 13, § 101 (1958); W.Va.Code. Ann. § 61–2–8 (1966); Wis.Stat. § 940.04 (1969); Wyo.Stat.Ann. §§ 6–77, 6–78 (1957). 3 Long ago, a suggestion was made that the Texas statutes were unconstitutionally vague because of definitional deficiencies. The Texas Court of Criminal Appeals disposed of that suggestion peremptorily, saying only. “It is also insisted in the motion in arrest of judgment that the statue in unconstitutional and void, in that it does not sufficiently define or describe the offense of abortion. We do not concur with counsel in respect to this question.” Jackson v. State, 55 Tex.Cr.R. 79, 89, 115 S.W. 262, 268 (1908). The same court recently has held again that the State’s abortion statutes are not unconstitutionally vague or overboard. Thompson v. State, 493 S.W.2d 913 (1971), appeal docketed, No. 7101200. The court held that “the State of Texas has a compelling interest to protect fetal life”; the Art. 1191 “is designed to protect fetal life”; that the Texas homicide statutes, particularly Art. 1205 of the Penal Code, are intended to protect a person “in existence by actual birth” and thereby implicitly recognize other human life that is not “in existence by actual birth”; that the definition of human life is for the legislature and not the courts; that Art. 1196 “is more definite than the District of Columbia statute upheld in [United States v.] Vuitch” (402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601); and that the Texas statute “is not vague and indefinite or overboard.” A physician’s abortion conviction was affirmed. In 493 S.W.2d, at 920 n. 2, the court observed that any issue as to the court observed that any issue as to the burden of proof under the exemption of Art. 1196 “is not before us.” But see Veevers v. State, 172 Tex.Cr.R. 162, 168–169, 354 S.W.2d 161, 166–167 (1962). Cf. United States v. Vuitch, 402 U.S. 62, 69–71, 91 S.Ct. 1294, 1298–1299, 28 L.Ed.2d 601 (1971). 4 The name is a pseudonym. 5 These names are pseudonyms. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 456 ROE V. WADE MILESTONES IN THE LAW U.S. SUPREME COURT, JANUARY 1973 . S.Ct. 129 4, 129 8 129 9, 28 L.Ed.2d 601 (1971). 4 The name is a pseudonym. 5 These names are pseudonyms. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 456 ROE V. WADE MILESTONES IN THE LAW U.S sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 454 ROE V. WADE MILESTONES IN THE LAW U.S. SUPREME COURT,. state compels the birth of the child, yet does not provide the assistance often needed to produce a healthy child. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW ROE V. WADE 449 U.S.