Roe v. Wade

No. 70-18

SUPREME COURT OF THE UNITED STATES

410 U.S. 113

December 13, 1971 Reargued October 11, 1972

January 22, 1973

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN  DISTRICT OF TEXAS

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 justifiable 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 justifiable.  Appellants directly appealed to this Court on the injunctive rulings, and  appellee cross-appealed from the District Court's grant of declaratory relief to  Roe and Hallford.

Held:

1. While 28 U.S.C. § 1253 authorizes no direct appeal to this  Court from the grant or denial of declaratory relief alone, review is not  foreclosed when the case is properly before the Court on appeal from specific  denial of injunctive relief and the arguments as to both injunctive and  declaratory relief are necessarily identical. P. 123  .

2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129  .

(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 [p*114] must exist at review stages, and  not simply when the action is initiated. Pp. 124-125  .

(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. Pp. 125-127  .

(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. 127-129  .

3. State criminal abortion laws, like those involved here, that  except from criminality only a lifesaving 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. 147-164  .

(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. 163  , 164  .

1. While 28 U.S.C. § 1253 authorizes no direct appeal to this  Court from the grant or denial of declaratory relief alone, review is not  foreclosed when the case is properly before the Court on appeal from specific  denial of injunctive relief and the arguments as to both injunctive and  declaratory relief are necessarily identical. P. 123  .

2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129  .

(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 [p*114] must exist at review stages, and  not simply when the action is initiated. Pp. 124-125  .

(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. Pp. 125-127  .

(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. 127-129  .

3. State criminal abortion laws, like those involved here, that  except from criminality only a lifesaving 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. 147-164  .

(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. 163  , 164  .

(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. 163  , 164  .

(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. 163-164  ; 164-165  .

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. P. 165  .

5. It is unnecessary to decide the injunctive relief issue, since  the Texas authorities will doubtless fully recognize the Court's ruling [p*115]  that the Texas criminal abortion statutes are unconstitutional. P. 166  .

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

BLACKMUN, J., delivered the opinion of the Court, in which BURGER,  C.J., and DOUGLAS, BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined.  BURGER,  C.J., post, p. 207  , DOUGLAS, J., post, p. 209  , and STEWART, J., post, p. 167  , filed concurring opinions. WHITE, J., filed a dissenting opinion, in which  REHNQUIST, J., joined, post, p. 221  . REHNQUIST, J., filed a dissenting opinion, post, p. 171  . [p*116]

BLACKMUN,  J., Opinion of the Court

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

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

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

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

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

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

I

The Texas statutes that concern us here are Arts. 1191-1194 and  1196 of the State's Penal Code. ^[n1] These make it a crime to "procure an abortion," as therein  [p*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. ^[n2] [p*119]

Texas first enacted a criminal abortion statute in 1854. Texas  Laws 1854, c. 49, § 1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This  was soon modified into language  that has remained substantially unchanged to the  present time. See Texas Penal Code of 1857, c. 7, Arts. 531-536; G.  Paschal, Laws of Texas, Arts. 2192-2197 (1866); Texas Rev.Stat., c. 8, Arts.  536-541 (1879); Texas Rev.Crim.Stat., Arts. 1071-1076 (1911). The final article  in each of these compilations provided the same exception, as does the present  Article 1196, for an abortion by "medical advice for the purpose of saving the  life of the mother." ^[n3] [p*120]

II

Jane Roe, ^[n4] a single woman who was residing in Dallas County, Texas,  instituted this federal action in March 1970 against the District Attorney of  the county. She sought a declaratory judgment that the Texas criminal abortion  statutes were unconstitutional on their face, and an injunction restraining the  defendant from enforcing the statutes.

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

James Hubert Hallford, a licensed physician, sought and was  granted leave to intervene in Roe's action. In his complaint, he alleged that he  had been arrested previously for violations of the Texas abortion statutes, and  [p*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 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, ^[n5] 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."

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,  [p*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 justifiable  controversies, but that the Does had failed to allege facts sufficient to state  a present controversy, and did not have standing. It concluded that, with  respect to the requests for a declaratory judgment, abstention was not   warranted. On the merits, the District Court held that the

fundamental right of single women and married persons to choose  whether to have children is protected by the Ninth Amendment, through the  Fourteenth Amendment,

and that the Texas criminal abortion statutes were void on their  face because they were both unconstitutionally vague and constituted an  overbroad infringement of the 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 (ND Tex.1970).