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Majority Opinion - Section: Intro |
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11-12
Footnotes |
Concurring Opinion: Justice Stewart |
Dissenting Opinion: Justice Rehnquist
ROE V. WADE 410 U.S. 113
ROE ET AL. V. WADE, DISTRICT ATTORNEY OF DALLAS COUNTY
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
TEXAS
NO. 70-18.
ARGUED DECEMBER 13, 1971-- REARGUED OCTOBER 11, 1972-- DECIDED JANUARY
22, 1973
***
SARAH WEDDINGTON REARGUED THE CAUSE FOR APPELLANTS. WITH HER ON THE
BRIEFS WERE ROY LUCAS, FRED BRUNER, ROY L. MERRILL, JR., AND NORMAN
DORSEN.
ROBERT C. FLOWERS, ASSISTANT ATTORNEY GENERAL OF TEXAS, ARGUED THE CAUSE
FOR APPELLEE ON THE REARGUMENT. JAY FLOYD, ASSISTANT ATTORNEY GENERAL,
ARGUED THE CAUSE FOR APPELLEE ON THE ORIGINAL ARGUMENT. WITH THEM ON THE
BRIEF WERE CRAWFORD C. MARTIN, ATTORNEY GENERAL, NOLA WHITE, FIRST
ASSISTANT ATTORNEY GENERAL, ALFRED WALKER, EXECUTIVE ASSISTANT ATTORNEY
GENERAL, HENRY WADE, AND JOHN B. TOLLE.
***
A PREGNANT SINGLE WOMAN (ROE) BROUGHT A CLASS ACTION CHALLENGING THE
CONSTITUTIONALITY OF THE TEXAS CRIMINAL ABORTION LAWS, WHICH PRESCRIBE
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. 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 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 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. 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
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.
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 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."
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