有关堕胎的争议在美国是最受社会关注的问题之一，它涉及宗教、伦理、法律、价值取向、家庭观念等许多社会层面。美国最高法庭1973年裁决的《柔诉伟德案》（Roe v. Wade; 410 U.S. 113 (1973)）是有关堕胎权讨论中具有 深远影响力的一个法案。这里特选贴如下，供大家在了解这个社会问题的历史即双方的主要观点。

首席法官Ｂｌａｃｋｍｕｎ对反堕胎观念及法律的历史构画值得大家注意。Ｂｌａｃｋｍｕｎ首先强调了法庭对堕胎争论敏感性及情绪性的认识。他说尽管法庭最终裁决的依据是美国宪法，但也强调从历史、医学及法律史中所反映出的人对堕胎看法。他对希腊、罗马即美国早期立法进行了分析，指出当时（70年代）美国对堕胎的大大限制了妇女直至19世纪大部分还享有的中止怀孕的权力。法庭论及了堕胎决定系个人隐私权的一部分，最后依据第14修订案的Ｄｕｅ Ｐｒｏｃｅｓｓ Ｃｌａｕｓｅ 宣布 Ｔｅｘａｓ州反堕胎法（本案争论的焦点）违宪。

当时的法官（现任美国最高法庭首席法官）Rehnquist投了反对票。他指出法庭混淆了隐私权的意义；所谓堕胎权不属于“植根于传统与公众的良心”的宪法所保护的基本权利，也非已被人普遍接受的权利；宪法第14修订案不能在此作为依据来推翻在14修订案通过时就已存在的州法。

最高法庭在此案的裁决及适用范围其实是很具体、很严格界定的，它远没有许多堕胎倡导者或反对者所认为的那样宽广。尽管如此，近几年要求“翻案”的呼声远来远高。由Rehnquist主持的最高法庭在1989年的 Webster v. Reproductive Health Service一案中差一点就翻了Roe v. Wade。

Roe v. Wade会不会最终被推翻，人们将拭目以待。
=======================================================
（本案摘要）

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:
1. While 28 U.S.C. s 1253 authorizes no direct appeal to this Court from the grant or denial of declaratory
relief alone, review is not foreclose when the case is properly before the Court on appeal from specific
denial of injunctive relief and the arguments 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 appellee'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 *114 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.
**708 (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. Pp. 714-715.
3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving
procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved
violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right
to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot
override that right, it has legitimate interests in protecting both the pregnant woman's health and the
potentiality of human life, each of which interests grows and reaches a 'compelling' point at various stages
of the woman's approach to term. Pp. 726-732.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its
effectuation must be left to the medical judgment of the pregnant woman's attending physician. Pp.
731-732.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its
interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are
reasonably related to maternal health. Pp. 731-732.
(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life,
may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical
judgment, for the preservation of the life or health of the mother. Pp. 732-733.
4. The State may define the term 'physician' to mean only a physician currently licensed by the State, and
may proscribe any abortion by a person who is not a physician as so defined. Pp. 732-733.
5. It is unnecessary to decide the injunctive relief issue since the Texas authorities will doubtless fully
recognize the Court's ruling *115 that the Texas criminal abortion statutes are unconstitutional. P. 733.
314 F.Supp. 1217, affirmed in part and reversed in part.
Sarah R. Weddington, Austin, Tex., for appellants.
Robert C. Flowers, Asst. Atty. Gen. of Texas, Austin, Tex., for appellee on reargument.
Jay Floyd, Asst. Atty. Gen., Austin, Tex., for appellee on original argument.



＝＝＝＝＝＝＝＝＝＝＝＝＝＝
法庭裁决词全文。

*116 Mr. Justice BLACKMUN delivered the opinion of the Court.
This Texas federal appeal and its Georgia companion, Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35
L.Ed.2d 201, present constitutional challenges to state criminal abortion legislation. The Texas statutes
under attack here are typical of those that have been in effect in many States for approximately a century.
The Georgia statutes, in contrast, have a modern cast and are a legislative product that, to an extent at
least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and
techniques, and of new thinking about an old issue.
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion
controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly
absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the
raw edges of human existence, one's religious training, one's attitudes toward life and family and their
values, and the moral standards one establishes and seeks to observe, are all likely to influence and to
color one's thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend **709 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 *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, 25 S.Ct.
539, 547, 49 L.Ed. 937 (1905):
'(The Constitution) is made for people of fundamentally differing views, and the accident of our finding
certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment
upon the question whether statutes embodying them conflict with the Constitution of the United States.'
I
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's Penal Code, [FN1]
Vernon's Ann.P.C. These make it a crime to 'procure an abortion,' as therein *118 defined, or to attempt
one, except with respect to 'an abortion procured or attempted by medical advice for the purpose of
saving the life of the mother.' Similar statutes are in existence in a majority of the States. [FN2]

FN1. '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

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.'



FN2. Ariz.Rev.Stat.Ann. s 13-211 (1956); Conn.Pub.Act No. 1 (May

1972 special session) (in 4 Conn.Leg.Serv. 677 (1972)), and Conn.Gen.Stat.Rev. ss 53-29,
53-30 (1968) (or unborn child); Idaho Code s 18-601 (1948); Ill.Rev.Stat., c. 38, s 21-1
(1971); Ind.Code s 35- 1-58-1 (1971); Iowa Code s 701.1 (1971); Ky.Rev.Stat. s
436.020 (1962); LaRev.Stat. s 37:1285(6) (1964) (loss of medical license) (but see s 14-87
(Supp.1972) containing no exception for the life of the mother under the criminal statute);
Me.Rev.Stat.Ann., Tit. 17, s 51 (1964); Mass.Gen.Laws Ann., c. 272, s 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 s 750.14
(1948); Minn.Stat. s 617.18 (1971); Mo.Rev.Stat. s 559.100 (1969); Mont.Rev.Codes
Ann. s 94-401 (1969); Neb.Rev.Stat. s 28-405 (1964); Nev.Rev.Stat. s 200.220 (1967);
N.H.Rev.Stat.Ann. s 585:13 (1955); N.J.Stat.Ann. s 2A:87-1 (1969) ( 'without lawful
justification'); N.D.Cent.Code ss 12-25-01, 12-25-02 (1960); Ohio Rev.Code Ann. s
2901.16 (1953); Okla.Stat.Ann., Tit. 21, s 861 (1972-1973 Supp.); Pa.Stat.Ann., Tit. 18,
ss 4718, 4719 (1963) ('unlawful'); R.I.Gen.Laws Ann. s 11-3-1 (1969); S.D.Comp.Laws
Ann. s 22-17-1 (1967); Tenn.Code Ann. ss 39-301, 39-302 (1956); Utah Code Ann. ss
76-2-1, 76-2-2 (1953); Vt.Stat.Ann., Tit. 13, s 101 (1958); W.Va.Code Ann. s 61-2-8
(1966); Wis.Stat. s 940.04

(1969); Wyo.Stat.Ann. ss 6-77, 6-78 (1957).



**710 *119 Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49, s 1, set forth
in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon modified into language that has remained
substantially unchanged to the present time. See Texas Penal Code of 1857, c. 7, Arts. 531-536; G.
Paschal, Laws of Texas, Arts. 2192-2197 (1866); Texas Rev.Stat., c. 8, Arts. 536-541 (1879); Texas
Rev.Crim.Stat., Arts. 1071-1076 (1911). The final article in each of these compilations provided the same
exception, as does the present Article 1196, for an abortion by 'medical advice for the purpose of saving
the life of the mother.' [FN3]

FN3. Long ago, a suggestion was made that the Texas statutes were unconstitutionally vague
because of definitional deficiencies. The Texas Court of Criminal Appeals disposed of that
suggestion peremptorily, saying only,


'It is also insisted in the motion in arrest of judgment that the statute is unconstitutional and
void, in that it does not sufficiently define or describe the offense of abortion. We do not
concur 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 overbroad. Thompson v. State, 493 S.W.2d 913 (1971), appeal
docketed, No. 71-1200. The court held that 'the State of Texas has a compelling interest to
protect fetal life'; that Art. 1191 'is designed to protect fetal life'; that the Texas homicide
statutes, particularly Act. 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. 11196 'is more definite that 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 overbroad.' 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 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).



*120 II
Jane Roe, [FN4] a single woman who was residing in Dallas County, Texas, instituted this federal action in
March 1970 against the District Attorney of the county. She sought a declaratory judgment that the Texas
criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant
from enforcing the statutes.

FN4. The name is a pseudonym.



Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an
abortion 'performed by a competent, licensed physician, under safe, clinical conditions'; that she was
unable to get a 'legal' abortion in Texas because her life did not appear to be threatened by the
continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to
secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally
vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and
Fourteenth Amendments. By an amendment to her complaint Roe purported to sue 'on behalf of herself
and all other women' similarly situated.
James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe's action. In
his complaint he alleged that he had been arrested previously for violations of the Texas abortion statutes
and *121 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 **711 whether they fell within or outside the exception recognized by Article 1196. He alleged
that, as a consequence, the statutes were vague and uncertain, in violation of the Fourteenth Amendment,
and that they violated his own and his patients' rights to privacy in the doctor-patient relationship and his
own right to practice medicine, rights he claimed were guaranteed by the First, Fourth, Fifth, Ninth, and
Fourteenth Amendments.
John and Mary Doe, [FN5] 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 their complaint, the
Does purported to sue 'on behalf of themselves and all couples similarly situated.'

FN5. These names are pseudonyms.



The two actions were consolidated and heard together by a duly convened three- judge district court. The
suits thus presented the situations of the pregnant single woman, the childless couple, with the wife not
pregnant, *122 and the licensed practicing physician, all joining in the attack on the Texas criminal abortion
statutes. Upon the filing of affidavits, motions were made for dismissal and for summary judgment. The
court held that Roe and members of her class, and Dr. Hallford, had standing to sue and presented
justiciable controversies, but that the Does had failed to allege facts sufficient to state a present controversy
and did not have standing. It concluded that, with respect to the requests for a declaratory judgment,
abstention was not warranted. On the merits, the District Court held that the 'fundamental right of single
women and married persons to choose where to have children is protected by the Ninth Amendment,
through the Fourteenth Amendment,' and that the Texas criminal abortion statutes were void on their face
because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs'
Ninth Amendment rights. The court then held that abstention was warranted with respect to the requests
for an injunction. It therefore dismissed the Does' complaint, declared the abortion statutes void, and
dismissed the application for injunctive relief. 314 F.Supp. 1217, 1225 (N.D.Tex.1970).
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C. s 1253, have appealed to
this Court from that part of the District Court's judgment denying the injunction. The defendant District
Attorney has purported to cross-appeal, pursuant to the same statute, from the court's grant of declaratory
relief to Roe and Hallford. Both sides also have taken protective appeals to the United States Court of
Appeals for the Fifth Circuit. That court ordered the appeals held in abeyance pending decision here. We
postponed decision on jurisdiction to the hearing on the merits. 402 U.S. 941, 91 S.Ct. 1610, 29 L.Ed.
108 (1971).
*123 III
[1] It might have been preferable if the defendant, pursuant to our Rule 20, had presented to us a
petition for certiorari before judgment in the Court of Appeals with respect to the granting of the plaintiffs'
prayer for declaratory relief. Our decisions in Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26
L.Ed.2d 378 (1970), and **712 Gunn v. University Committee, 399 U.S. 383, 90 S.Ct. 2013, 26
L.Ed.2d 684 (1970), are to the effect that s 1253 does not authorize an appeal to this Court from the
grant or denial of declaratory relief alone. We conclude, nevertheless, that those decisions do not foreclose
our review of both the injunctive and the declaratory aspects of a case of this kind when it is property here,
as this one is, on appeal under s 1253 from specific denial of injunctive relief, and the arguments as to both
aspects are necessarily identical. See Carter v. Jury Comm'n, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d
549 (1970); Florida Lime and Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73; 80-81, 80 S.Ct. 568,
573-574, 4 L.Ed.2d 568 (1960). It would be destructive of time and energy for all concerned were we to
rule otherwise. Cf. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201.
IV
We are next confronted with issues of justiciability, standing, and abstention. Have Roe and the Does
established that 'personal stake in the outcome of the controversy,' Baker v. Carr, 369 U.S. 186, 204, 82
S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), that insures that 'the dispute sought to be adjudicated will be
presented in an adversary context and in a form historically viewed as capable of judicial resolution,' Flast
v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968), and Sierra Club v. Morton,
405 U.S. 727, 732, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972)? And what effect did the pendency of
criminal abortion charges against Dr. Hallford in state court have upon the propriety of the federal court's
granting relief to him as a plaintiff-intervenor?
*124 [2] A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe is a
fictitious person. For purposes of her case, we accept as true, and as established, her existence; her
pregnant state, as of the inception of her suit in March 1970 and as late as May 21 of that year when she
filed an alias affidavit with the District Court; and her inability to obtain a legal abortion in Texas.
Viewing Roe's case as of the time of its filing and thereafter until as late as May, there can be little dispute
that it then presented a case or controversy and that, wholly apart from the class aspects, she, as a
pregnant single woman thwarted by the Texas criminal abortion laws, had standing to challenge those
statutes. Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971); Crossen v. Breckenridge, 446 F.2d 833,
8380-839 (CA6 1971); Poe v. Menghini, 339 F.Supp. 986, 990-991 (D.C.Kan. 1972). See Truax v.
Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1951). Indeed, we do not read the appellee's brief as
really asserting anything to the contrary. The 'logical nexus between the status asserted and the claim
sought to be adjudicated,' Flast v. Cohen, 392 U.S., at 102, 88 S.Ct., at 1953, and the necessary degree
of contentiousness, Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), are both
present.
The appellee notes, however, that the record does not disclose that Roe was pregnant at the time of the
District Court hearing on May 22, 1970, [FN6] or on the following June 17 when the court's opinion and
judgment were filed. And he suggests that Roe's case must now be moot because she and all other
members of her class are no longer subject to any 1970 pregnancy.

FN6. The appellee twice states in his brief that the hearing before the District Court was held
on July 22, 1970. Brief for Appellee 13. The docket entries, App. 2, and the transcript, App.
76, reveal this to be an error. The July date appears to be the time of the reporter's
transcription. See App. 77.



*125 [3] The usual rule in federal cases is that an actual controversy must exist at stages of appellate
or certiorari review, and not simply at the date the action is initiated. **713 United States v. Munsingwear,
Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950); Golden v. Zwickler, supra; SEC v. Medical
Committee for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972).
[4] But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human
gestation period is so short that the pregnancy will come to term before the usual appellate process is
complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the
trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy
often comes more than once to the same woman, and in the general population, if man is to survive, it will
always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could
be 'capable of repetition, yet evading review.' Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515,
31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493,
1494, 23 L.Ed.2d 1 (1969); Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175,
178-179, 89 S.Ct. 347, 350, 351, 21 L.Ed.2d 325 (1968); United States v. W. T. Grant Co., 345 U.S.
629, 632-633, 73 S.Ct. 894, 897-898, 97 L.Ed. 1303 (1953).
We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she
presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her
case moot.
[5] B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation as a
plaintiff-intervenor, alleging in his complaint that he:
'(I)n the past has been arrested for violating the Texas Abortion Laws and at the present time stands
charged by indictment with violating said laws in the Criminal District Court of Dallas County, Texas
to-wit: (1) The State of Texas vs. *126 James H. Hallford, No. C-69-5307-IH, and (2) The State of
Texas vs. James H. Hallford, No. C-69-2524-H. In both cases the defendant is charged with abortion . .
.'
In his application for leave to intervene, the doctor made like representations as to the abortion charges
pending in the state court. These representations were also repeated in the affidavit he executed and filed in
support of his motion for summary judgment.
[6] Dr. Hallford is, therefore, in the position of seeking, in a federal court, declaratory and injunctive
relief with respect to the same statutes under which he stands charged in criminal prosecutions
simultaneously pending in state court. Although he stated that he has been arrested in the past for violating
the State's abortion laws, he makes no allegation of any substantial and immediate threat to any federally
protected right that cannot be asserted in his defense against the state prosecutions. Neither is there any
allegation of harassment or bad-faith prosecution. In order to escape the rule articulated in the cases cited
in the next paragraph of this opinion that, absent harassment and bad faith, a defendant in a pending state
criminal case cannot affirmatively challenge in federal court the statutes under which the State is
prosecuting him, Dr. Hallford seeks to distinguish his status as a present state defendant from his status as
a 'potential future defendant' and to assert only the latter for standing purposes here.
We see no merit in that distinction. Our decision in Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27
L.Ed.2d 688 (1971), compels the conclusion that the District Court erred when it granted declaratory
relief to Dr. Hallford instead of refraining from so doing. The court, of course, was correct in refusing to
grant injunctive relief to the doctor. The reasons supportive of that action, however, are those expressed in
Samuels v. Mackell, supra, and in *127 Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669
(1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); **714 Perez v. Ledesma,
401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); and Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct.
777, 27 L.Ed.2d 792 (1971). See also Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14
L.Ed.2d 22 (1965). We note, in passing, that Younger and its companion cases were decided after the
three-judge District Court decision in this case.
[7] Dr. Hallford's complaint in intervention, therefore, is to be dismissed. [FN7] He is remitted to his
defenses in the state criminal proceedings against him. We reverse the judgment of the District Court
insofar as it granted Dr. Hallford relief and failed to dismiss his complaint in intervention.

FN7. We need not consider what different result, if any, would follow if Dr. Hallford's
intervention were on behalf of a class. His complaint in intervention does not purport to assert
a class suit and makes no reference to any class apart from an allegation that he 'and others
similarly situated' must necessarily guess at the meaning of Art. 1196. His application for
leave to intervene goes somewhat further, for it asserts that plaintiff Roe does not adequately
protect the interest of the doctor

'and the class of people who are physicians . . . (and) the class of people who are . . .
patients . . ..' The leave application, however, is not the complaint. Despite the District
Court's statement to the contrary, 314 F.Supp., at 1225, we fail to perceive the essentials of
a class suit in the Hallford complaint.



[8] C. The Does. In view of our ruling as to Roe's standing in her case, the issue of the Does' standing
in their case has little significance. The claims they assert are essentially the same as those of Roe, and they
attack the same statutes. Nevertheless, we briefly note the Does' posture.
Their pleadings present them as a childless married couple, the woman not being pregnant, who have no
desire to have children at this time because of their having received medical advice that Mrs. Doe should
avoid pregnancy, and for 'other highly personal reasons.' But they 'fear . . . they may face the prospect of
becoming *128 parents.' And if pregnancy ensues, they 'would want to terminate' it by an abortion. They
assert an inability to obtain an abortion legally in Texas and, consequently, the prospect of obtaining an
illegal abortion there or of going outside Texas to some place where the procedure could be obtained
legally and competently.
We thus have as plaintiffs a married couple who have, as their asserted immediate and present injury, only
an alleged 'detrimental effect upon (their) marital happiness' because they are forced to 'the choice of
refraining from normal sexual relations or of endangering Mary Doe's health through a possible pregnancy.'
Their claim is that sometime in the future Mrs. Doe might become pregnant because of possible failure of
contraceptive measures, and at that time in the future she might want an abortion that might then be illegal
under the Texas statutes.
This very phrasing of the Does' position reveals its speculative character. Their alleged injury rests on
possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for
parenthood, and possible future impairment of health. Any one or more of these several possibilities may
not take place and all may not combine. In the Does' estimation, these possibilities might have some real or
imagined impact upon their marital happiness. But we are not prepared to say that the bare allegation of so
indirect an injury is sufficient to present an actual case or controversy. Younger v. Harris, 401 U.S., at
41-42, 91 S.Ct., at 749; Golden v. Zwickler, 394 U.S., at 109-110, 89 S.Ct., at 960; Abele v. Markle,
452 F.2d, at 1124-1125; Crossen v. Breckenridge, 446 F.2d, at 839. The Does' claim falls far short of
those resolved otherwise in the cases that the Does urge upon us, namely, investment Co. Institute v.
Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971); **715 Association of Data Processing
Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); *129 and
Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). See also Truax v. Raich,
239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915).
The Does therefore are not appropriate plaintiffs in this litigation. Their complaint was properly dismissed
by the District Court, and we affirm that dismissal.
V
The principal 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, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965);
Eisenstadt v. Baird, 405 U.S. 438 (1972); id., at 460, 92 S.Ct. 1029, at 1042, 31 L.Ed.2d 349 (White,
J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold
v. Connecticut, 381 U.S., at 486, 85 S.Ct., at 1682 (Goldberg, J., concurring). Before addressing this
claim, we feel it desirable briefly to survey, in several aspects, the history 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.
*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. [FN8]
We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era, [FN9]
and that 'it was resorted to without scruple.' [FN10] 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. [FN11] 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.
[FN12]

FN8. A Castiglioni, A. History of Medicine 84 (2d ed. 1947), E. Krumbhaar, translator and
editor (hereinafter Castiglioni).



FN9. J. Ricci, The Genealogy of Gynaecology 52, 84, 113, 149 (2d ed. 1950) (hereinafter
Ricci); L. Lader, Abortion 75-77 (1966) (hereinafter Lader); K. Niswander, Medical
Abortion Practices in the United States, in Abortion and the Law 37, 38-40 (D. Smith ed.
1967); G. Williams, The Sanctity of Life and the Criminal Law 148 (1957) (hereinafter
Williams); J. Noonan, An Almost Absolute Value in History, in The Morality of Abortion 1,
3-7 (J. Noonan ed. 1970) (hereinafter Noonan); Quay, Justifiable Abortion- Medical and
Legal Foundations, (pt. 2), 49 Geo.L.J. 395, 406-422 (1961) (hereinafter Quay).



FN10. L. Edelstein, The Hippocratic Oath 10 (1943) (hereinafter Edelstein). But see
Castiglioni 227.



FN11. Edelstein 12; Ricci 113-114, 118-119; Noonan 5.



FN12. Edelstein 13-14.



2. The Hippocratic Oath. What then of the famous Oath that has stood so **716 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 *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? [FN13] 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,' [FN14] 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.'
[FN15]

FN13. Castiglioni 148.



FN14. Id., at 154.



FN15. Edelstein 3.



Although the Oath is not mentioned in any of the principal briefs in this case or in Doe v. Bolton, 410 U.S.
179, 93 S.Ct. 739, 35 L.Ed.2d 201, it represents the apex of the development of strict ethical concepts in
medicine, and its influence endures to this day. Why did not the authority of Hippocrates dissuade abortion
practice in his time and that of Rome? The late Dr. Edelstein provides us with a theory: [FN16] 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,' *132 and '(i)n no other stratum of Greek opinion were such views held or proposed in the
same spirit of uncompromising austerity.' [FN17]

FN16. Id., at 12, 15-18.



FN17. Id., at 18; Lader 76.



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.' [FN18] 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 Phthagorean 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.' [FN19]

FN18. Edelstein 63.



FN19. Id., at 64.



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 reversed statement of
medical ethics.
3. The common law. It is undisputed that at common law, abortion performed before 'quickening'-the first
recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of
pregnancy [FN20]-was not an indictable offense. [FN21] The absence *133 of a **717 common-law
crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical,
theological, and civil and canon law concepts of when life begins. These disciplines variously approached
the question in terms of the point at which the embryo or fetus became 'formed' or recognizably human, or
in terms of when a 'person' came into being, that is, infused with a 'soul' or 'animated.' A loose concensus
evolved in early English law that these events occurred at some point between conception and live birth.
[FN22] This was 'mediate animation.' Although *134 Christian theology and the canon law came to fix the
point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th
century, there was otherwise little agreement about the precise time of formation or animation. There was
agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its
destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when
animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas'
definition of movement as one of the two first principles of life, Bracton focused upon quickening as the
critical point. The significance of quickening was echoed by later common-law scholars and found its way
into the received common law in this country.

FN20. Dorland's Illustrated Medical Dictionary 1261 (24th ed. 1965).



FN21. E. Coke, Institutes III *50; 1 W. Hawkins, Pleas of the Crown, c. 31, s 16 (4th ed.
1762); 1 W. Blackstone, Commentaries *129-130; M. Hale, Pleas of the Crown 433 (1st
Amer. ed. 1847). For discussions of the role of the quickening concept in English common
law, see Lader 78; Noonan 223-226; Means, The Law of New York Concerning Abortion
and the Status of the Foetus, 1664- 1968: A Case of Cessation of Constitutionality (pt. 1),
14 N.Y.L.F. 411, 418-428 (1968) (hereinafter Means I); Stern, Abortion: Reform and the
Law, 59 J.Crim.L.C. & P.S. 84 (1968) (hereinafter Stern); Quay 430-432; Williams 152.



FN22. Early philosophers believed that the embryo or fetus did not become formed and
begin to live until at least 40 days after conception for a male, and 80 to 90 days for a female.
See, for example, Aristotle, Hist.Anim. 7.3.583b; Gen.Anim. 2.3.736, 2.5.741; Hippocrates,
Lib. de Nat.Puer., No. 10. Aristotle's thinking derived from his three-stage theory of life:
vegetable, animal, rational. The vegetable stage was reached at conception, the animal at
'animation,' and the rational soon after live birth. This theory, together with the 40/80 day
view, came to be accepted by early Christian thinkers.


The theological debate was reflected in the writings of St. Augustine, who made a distinction
between embryo inanimatus, not yet endowed with a soul,

and embryo animatus. He may have drawn upon Exodus 21:22. At one point, however, he
expressed the view that human powers cannot determine the point during fetal development
at which the critical change occurs. See Augustine, De Origine Animae 4.4 (Pub.Law
44.527). See also W. Reany, The Creation of the Human Soul, c. 2 and 83-86 (1932);
Huser, The Crime of Abortion in Canon Law 15 (Catholic Univ. of America, Canon Law
Studies No. 162, Washington, D.C., 1942).


Galen, in three treatises related to embryology, accepted the thinking of Aristotle and his
followers. Quay 426-427. Later, Augustine on abortion was incorporated by Gratian into the
Decretum, published about 1140. Decretum Magistri Gratiani 2.32.2.7 to 2.32.2.10, in 1
Corpus Juris Canonici 1122, 1123 (A. Friedberg, 2d ed. 1879). This Decretal and the
Decretals that followed were recognized as the definitive body of canon law until the new
Code of 1917.


For discussions of the canon-law treatment, see Means I, pp. 411-412; Noonan 20-26;
Quay 426-430; see also J. Noonan, Contraception: A History of Its Treatment by the
Catholic Theologians and Canonists 18-29 (1965).



Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed.
Bracton, writing early in the 13th century, thought it homicide. [FN23] But the later and predominant
**718 view, following the great common-law scholars, has been that it was, at most, a lesser offense. In a
frequently cited *135 passage, Coke took the position that abortion of a woman 'quick with childe' is 'a
great misprision, and no murder.' [FN24] Blackstone followed, saying that while abortion after quickening
had once been considered manslaughter (though not murder), 'modern law' took a less severe view.
[FN25] A recent review of the common-law precedents argues, however, that those precedents
contradict Coke and that even post-quickening abortion was never established as a common-law crime.
[FN26] This is of some importance because while most American courts ruled, in holding or dictum, that
abortion of an unquickened fetus was not criminal under their received common law, [FN27] others
followed Coke in stating that abortion *136 of a quick fetus was a 'misprision,' a term they translated to
mean 'misdemeanor.' [FN28] That their reliance on Coke on this aspect of the law was uncritical and,
apparently in all the reported cases, dictum (due probably to the paucity of common-law prosecutions for
post-quickening abortion), makes it now appear doubtful that abortion was ever firmly established as a
common-law crime even with respect to the destruction of a quick fetus.

FN23. Bracton took the position that abortion by blow or poison was homicide 'if the foetus
be already formed and animated, and particularly if it be animated.' 2 H. Bracton, De Legibus
et Consuetudinibus Angliae 279

(T. Twiss ed. 1879), or, as a later translation puts it, 'if the foetus is already formed or
quickened, especially if it is quickened,' 2 H. Bracton, On the Laws and Customs of England
341 (S. Thorne ed. 1968). See Quay 431; see also 2 Fleta 60-61 (Book 1, c. 23) (Selden
Society ed. 1955).



FN24. E. Coke, Institutes III *50.



FN25. 1 W. Blackstone, Commentaries *129-130.



FN26. Means, The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment
Right About to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century
Common-Law Liberty?, 17 N.Y.L.F. 335 (1971) (hereinafter Means II). The author
examines the two principal precedents cited marginally by Coke, both contrary to his dictum,
and traces the treatment of these and other cases by earlier commentators. He concludes that
Coke, who himself participated as an advocate in an abortion case in 1601, may have
intentionally misstated the law. The author even suggests a reason: Coke's strong feelings
against abortion, coupled with his determination to assert common-law (secular) jurisdiction
to assess penalties for an offense that traditionally had been an exclusively ecclesiastical or
canon-law crime. See also Lader 78-79, who notes that

some scholars doubt that the common law ever was applied to abortion; that the English
ecclesiastical courts seem to have lost interest in the problem after 1527; and that the
preamble to the English legislation of 1803, 43 Geo. 3, c. 58, s 1, referred to in the text,
infra, at 718, states that 'no adequate means have been hitherto provided for the prevention
and punishment of such offenses.'



FN27. Commonwealth v. Bangs, 9 Mass. 387, 388 (1812); Commonwealth v. Parker, 50
Mass. (9 Metc.) 263, 265-266 (1845); State v. Cooper, 22 N.J.L. 52, 58 (1849); Abrams
v. Foshee, 3 Iowa 274, 278- 280 (1856); Smith v. Gaffard, 31 Ala. 45, 51 (1857); Mitchell
v. Commonwealth, 78 Ky. 204, 210 (1879); Eggart v. State, 40 Fla. 527, 532, 25 So. 144,
145 (1898); State v. Alcorn, 7 Idaho 599, 606, 64 P. 1014, 1016 (1901); Edwards v.
State, 79 Neb. 251, 252, 112 N.W. 611, 612 (1907); Gray v. State, 77 Tex.Cr.R. 221,
224, 178 S.W. 337, 338 (1915); Miller v. Bennett, 190 Va. 162, 169, 56 S.E.2d 217, 221
(1949). Contra, Mills v. Commonwealth, 13 Pa. 631, 633 (1850); State v. Slagle, 83 N.C.
630, 632 (1880).



FN28. See Smith v. State, 33 Me. 48, 55 (1851); Evans v. People, 49 N.Y. 86, 88 (1872);
Lamb v. State, 67 Md. 524, 533, 10 A.

208 (1887).



4. The English statutory law. England's first criminal abortion statute, Lord Ellenborough's Act, 43 Geo. 3,
c. 58, came in 1803. It made abortion of a quick fetus, s 1, a capital crime, but in s 2 it provided lesser
penalties for the felony of abortion before quickening, and thus preserved the 'quickening' distinction. This
contrast was continued in the general revision of 1828, 9 Geo. 4, c. 31, s 13. It disappeared, however,
together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85, s 6, and did not reappear in the
Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, s 59, that formed the core of English
anti-abortion law until the liberalizing reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 &
20 Geo. 5, c. 34, came into being. Its emphasis was upon the destruction of 'the life of **719 a child
capable of being born alive.' It made a willful act performed with the necessary intent a felony. It contained
a proviso that one was not to be *137 found guilty of the offense 'unless it is proved that the act which
caused the death of the child was not done in good faith for the purpose only of preserving the life of the
mother.'
A seemingly notable development in the English law was the case of Rex v. Bourne, (1939) 1 K.B. 687.
This case apparently answered in the affirmative the question whether an abortion necessary to preserve
the life of the pregnant woman was excepted from the criminal penalties of the 1861 Act. In his instructions
to the jury, Judge MacNaghten referred to the 1929 Act, and observed that that Act related to 'the case
where a child is killed by a willful act at the time when it is being delivered in the ordinary course of nature.'
Id., at 691. He concluded that the 1861 Act's use of the word 'unlawfully,' imported the same meaning
expressed by the specific proviso in the 1929 Act, even though there was no mention of preserving the
mother's life in the 1861 Act. He then construed the phrase 'preserving the life of the mother' broadly, that
is, 'in a reasonable sense,' to include a serious and permanent threat to the mother's health, and instructed
the jury to acquit Dr. Bourne if it found he had acted in a good-faith belief that the abortion was necessary
for this purpose. Id., at 693-694. The jury did acquit.
Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15 & 16 Eliz. 2, c.
87. The Act permits a licensed physician to perform an abortion where two other licensed physicians agree
(a) 'that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury
to the physical or mental health of the pregnant woman or any existing children of her family, greater than if
the pregnancy were terminated,' or (b) 'that there is a substantial risk that if the child were born it would
suffer from such physical or mental abnormalities as *138 to be seriously handicapped.' The Act also
provides that, in making this determination, 'account may be taken of the pregnant woman's actual or
reasonably foreseeable environment.' It also permits a physician, without the concurrence of others, to
terminate a pregnancy where he is of the good-faith opinion that the abortion 'is immediately necessary to
save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.'
5. The American law. In this country, the law in effect in all but a few States until mid-19th century was the
pre-existing English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821
that part of Lord Ellenborough's Act that related to a woman 'quick with child.' [FN29] The death penalty
was not imposed. Abortion before quickening was made a crime in that State only in 1860. [FN30] In
1828, New York enacted legislation [FN31] that, in two respects, was to serve as a model for early
anti-abortion statutes. First, while barring destruction of an unquickend 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, [FN32] only eight American States *139
had **720 statutes dealing with abortion. [FN33] 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.

FN29. Conn.Stat., Tit. 20, s 14 (1821).



FN30. Conn.Pub.Acts, c. 71, s 1 (1860).



FN31. N.Y.Rev.Stat., pt. 4, c. 1, Tit. 2, Art. 1, s 9, p. 661, and Tit. 6, s 21, p. 694 (1829).



FN32. Act of Jan. 20, 1840, s 1, set forth in 2 H. Gammel, Laws of Texas 177-178 (1898);
see Grigsby v. Reib, 105 Tex. 597, 600, 153 S.W. 1124, 1125 (1913).



FN33. The early statutes are discussed in Quay 435-438. See also Lader 85-88; Stern
85-86; and Means II 375-376.



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. [FN34] The exceptions, Alabama and the District of Columbia,
permitted abortion to preserve the mother's health. [FN35] Three States permitted abortions that were not
'unlawfully' performed or that were not 'without lawful justification,' leaving interpretation of those
standards to the courts. [FN36] In *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, s 230.3, [FN37] set forth as Appendix B to the opinion
in Doe v. Bolton, 410 U.S. 205, 93 S.Ct. 754.

FN34. Criminal abortion statutes in effect in the States as of 1961, together with historical
statutory development and important judicial interpretations of the state statutes, are cited and
quoted in Quay 447- 520. See Comment, A Survey of the Present Statutory and Case Law
on Abortion: The Contradictions and the Problems, 1972 U.Ill.L.F. 177, 179, classifying the
abortion statutes and listing 25 States as permitting

abortion only if necessary to save or preserve the mother's life.



FN35. Ala.Code, Tit. 14, s 9 (1958); D.C.Code Ann. s 22-201 (1967).



FN36. Mass.Gen.Laws Ann., c. 272, s 19 (1970); N.J.Stat.Ann. s 2A:87-1 (1969);
Pa.Stat.Ann., Tit. 18, ss 4718, 4719 (1963).



FN37. Fourteen States have adopted some form of the ALI statute. See Ark.Stat.Ann. ss
41-303 to 41-310 (Supp.1971); Calif. Health & Safety Code ss 25950-25955.5
(Supp.1972); Colo.Rev.Stat.Ann. ss 40-2- 50 to 40-2-53 (Cum.Supp.1967); Del.Code
Ann., Tit. 24, ss 1790- 1793 (Supp.1972); Florida Law of Apr. 13, 1972, c. 72-196, 1972
Fla.Sess.Law Serv., pp. 380-382; Ga.Code ss 26-1201 to 26-1203 (1972); Kan.Stat.Ann.
s 21-3407 (Supp.1971); Md.Ann.Code, Art. 43, ss 137-139 (1971); Miss.Code Ann. s
2223 (Supp.1972); N.M.Stat.Ann. ss 40A-5-1 to 40A-5-3 (1972); N.C.Gen.Stat. s
14-45.1 (Supp.1971); Ore.Rev.Stat. ss 435.405 to 435.495 (1971); S.C.Code Ann. ss
16-82 to 16-89 (1962 and Supp.1971); Va.Code Ann. ss 18.1-62 to 18.1- 62.3
(Supp.1972). Mr. Justice Clark described some of these States as having 'led the way.'
Religion, Morality, and Abortion: A Constitutional

Appraisal, 2 Loyola U. (L.A.) L.Rev. 1, 11 (1969).


By the end of 1970, four other States had repealed criminal penalties for abortions
performed in early pregnancy by a licensed physician, subject to stated procedural and health
requirements. Alaska Stat. s 11.15.060 (1970); Haw.Rev.Stat. s 453-16 (Supp.1971);
N.Y.Penal Code s 125.05, subd. 3 (Supp.1972-1973); Wash.Rev.Code ss 9.02.060 to
9.02.080 (Supp.1972). The precise status of criminal abortion laws in some States is made
unclear by recent decisions in state and federal courts striking down existing state laws, in
whole or in part.



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, **721 and very possibly without such a limitation, the opportunity *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, *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 *143 patient,' two other physicians 'chosen
because of their recognized professional competency have examined the patient and have concurred in
writing,' **722 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. [FN38] Proceedings *144 of the AMA House of Delegates 220 (June 1970). The AMA
Judicial Council rendered a complementary opinion. [FN39]

FN38. 'Whereas, Abortion, like any other medical procedure, should not be performed
when contrary to the best interests of the patient since good medical practice requires due
consideration for the patient's welfare and not mere acquiescence to the patient's demand;
and


'Whereas, The standards of sound clinical judgment, which, together with informed patient
consent should be determinative according to the merits of each individual case; therefore be
it


'RESOLVED, That abortion is a medical procedure and should be performed

only by a duly licensed physician and surgeon in an accredited hospital acting only after
consultation with two other physicians chosen because of their professional competency and
in conformance with standards of good medical practice and the Medical Practice Act of his
State; and be it fu