VII 

THREE REASONS HAVE BEEN ADVANCED TO EXPLAIN HISTORICALLY THE ENACTMENT OF
CRIMINAL ABORTION LAWS IN THE 19TH CENTURY AND TO JUSTIFY THEIR CONTINUED
EXISTENCE. 

IT HAS BEEN ARGUED OCCASIONALLY THAT THESE LAWS WERE THE PRODUCT OF A
VICTORIAN SOCIAL CONCERN TO DISCOURAGE ILLICIT SEXUAL CONDUCT.  TEXAS,
HOWEVER, DOES NOT ADVANCE THIS JUSTIFICATION IN THE PRESENT CASE, AND IT
APPEARS THAT NO COURT OR COMMENTATOR HAS TAKEN THE ARGUMENT SERIOUSLY. 
/42/  THE APPELLANTS AND AMICI CONTEND, MOREOVER, THAT THIS IS NOT A
PROPER STATE PURPOSE AT ALL AND SUGGEST THAT, IF IT WERE, THE TEXAS
STATUTES ARE OVERBROAD IN PROTECTING IT SINCE THE LAW FAILS TO
DISTINGUISH BETWEEN MARRIED AND UNWED MOTHERS.   A SECOND REASON IS
CONCERNED WITH ABORTION AS A MEDICAL PROCEDURE.  WHEN MOST CRIMINAL
ABORTION LAWS WERE FIRST ENACTED, THE PROCEDURE WAS A HAZARDOUS ONE FOR
THE WOMAN.  /43/  THIS WAS PARTICULARLY TRUE PRIOR TO THE DEVELOPMENT OF
ANTISEPSIS.  ANTISEPTIC TECHNIQUES, OF COURSE, WERE BASED ON DISCOVERIES
BY LISTER, PASTEUR, AND OTHERS FIRST ANNOUNCED IN 1867, BUT WERE NOT
GENERALLY ACCEPTED AND EMPLOYED UNTIL ABOUT THE TURN OF THE CENTURY. 
ABORTION MORTALITY WAS HIGH.  EVEN AFTER 1900, AND PERHAPS UNTIL AS LATE
AS THE DEVELOPMENT OF ANTIBIOTICS IN THE 1940'S, STANDARD MODERN
TECHNIQUES SUCH AS DILATION AND CURETTAGE WERE NOT NEARLY SO SAFE AS THEY
ARE TODAY.  THUS, IT HAS BEEN ARGUED THAT A STATE'S REAL CONCERN IN
ENACTING A CRIMINAL ABORTION LAW WAS TO PROTECT THE PREGNANT WOMAN, THAT
IS, TO RESTRAIN HER FROM SUBMITTING TO A PROCEDURE THAT PLACED HER LIFE
IN SERIOUS JEOPARDY. 

MODERN MEDICAL TECHNIQUES HAVE ALTERED THIS SITUATION.  APPELLANTS AND
VARIOUS AMICI REFER TO MEDICAL DATA INDICATING THAT ABORTION IN EARLY
PREGNANCY, THAT IS, PRIOR TO THE END OF THE FIRST TRIMESTER, ALTHOUGH NOT
WITHOUT ITS RISK, IS NOW RELATIVELY SAFE.  MORTALITY RATES FOR WOMEN
UNDERGOING EARLY ABORTIONS, WHERE THE PROCEDURE IS LEGAL, APPEAR TO BE AS
LOW AS OR LOWER THAN THE RATES FOR NORMAL CHILDBIRTH.  /44/ 
CONSEQUENTLY, ANY INTEREST OF THE STATE IN PROTECTING THE WOMAN FROM AN
INHERENTLY HAZARDOUS PROCEDURE EXCEPT WHEN IT WOULD BE EQUALLY DANGEROUS
FOR HER TO FORGO IT, HAS LARGELY DISAPPEARED.  OF COURSE, IMPORTANT STATE
INTERESTS IN THE AREAS OF HEALTH AND MEDICAL STANDARDS DO REMAIN.  THE
STATE HAS A LEGITIMATE INTEREST IN SEEING TO IT THAT ABORTION, LIKE ANY
OTHER MEDICAL PROCEDURE, IS PERFORMED UNDER CIRCUMSTANCES THAT INSURE
MAXIMUM SAFETY FOR THE PATIENT.  THIS INTEREST OBVIOUSLY EXTENDS AT LEAST
TO THE PERFORMING PHYSICIAN AND HIS STAFF, TO THE FACILITIES INVOLVED, TO
THE AVAILABILITY OF AFTER-CARE, AND TO ADEQUATE PROVISION FOR ANY
COMPLICATION OR EMERGENCY THAT MIGHT ARISE.  THE PREVALENCE OF HIGH
MORTALITY RATES AT ILLEGAL "ABORTION MILLS" STRENGTHENS, RATHER THAN
WEAKEN, THE STATE'S INTEREST IN REGULATING THE CONDITIONS UNDER WHICH
ABORTIONS ARE PERFORMED.  MOREOVER, THE RISK TO THE WOMAN INCREASES AS
HER PREGNANCY CONTINUES.  THUS, THE STATE RETAINS A DEFINITE INTEREST IN
PROTECTING THE WOMAN'S OWN HEALTH AND SAFETY WHEN AN ABORTION IS PROPOSED
AT A LATE STAGE OF PREGNANCY.  

THE THIRD REASON IS THE STATE'S INTEREST-- SOME PHRASE IT IN TERMS OF
DUTY-- IN PROTECTING PRENATAL LIFE.  SOME OF THE ARGUMENT FOR THIS
JUSTIFICATION RESTS ON THE THEORY THAT A NEW HUMAN LIFE IS PRESENT FROM
THE MOMENT OF CONCEPTION.  /45/  THE STATE'S INTEREST AND GENERAL
OBLIGATION TO PROTECT LIFE THEN EXTENDS, IT IS ARGUED, TO PRENATAL LIFE. 
ONLY WHEN THE LIFE OF THE PREGNANT MOTHER HERSELF IS AT STAKE, BALANCED
AGAINST THE LIFE SHE CARRIES WITHIN HER, SHOULD THE INTEREST OF THE
EMBRYO OR FETUS NOT PREVAIL.  LOGICALLY, OF COURSE, A LEGITIMATE STATE
INTEREST IN THIS AREA NEED NOT STAND OR FALL ON ACCEPTANCE OF THE BELIEF
THAT LIFE BEGINS AT CONCEPTION OR AT SOME OTHER POINT PRIOR TO LIVE
BIRTH.  IN ASSESSING THE STATE'S INTEREST, RECOGNITION MAY BE GIVEN TO
THE LESS RIGID CLAIM THAT AS LONG AS AT LEAST POTENTIAL LIFE IS INVOLVED,
THE STATE MAY ASSERT INTERESTS BEYOND THE PROTECTION OF THE PREGNANT
WOMAN ALONE. 

PARTIES CHALLENGING STATE ABORTION LAWS HAVE SHARPLY DISPUTED IN SOME
COURTS THE CONTENTION THAT A PURPOSE OF THESE LAWS, WHEN ENACTED, WAS TO
PROTECT PRENATAL LIFE.  /46/  POINTING TO THE ABSENCE OF LEGISLATIVE
HISTORY TO SUPPORT THE CONTENTION, THEY CLAIM THAT MOST STATE LAWS WERE
DESIGNED SOLELY TO PROTECT THE WOMAN.  BECAUSE MEDICAL ADVANCES HAVE
LESSENED THIS CONCERN, AT LEAST WITH RESPECT TO ABORTION IN EARLY
PREGNANCY, THEY ARGUE THAT WITH RESPECT TO SUCH ABORTIONS THE LAWS CAN NO
LONGER BE JUSTIFIED BY ANY STATE INTEREST.  THERE IS SOME SCHOLARLY
SUPPORT FOR THIS VIEW OF ORIGINAL PURPOSE.  /47/  THE FEW STATE COURTS
CALLED UPON TO INTERPRET THEIR LAWS IN THE LATE 19TH AND EARLY 20TH
CENTURIES DID FOCUS ON THE STATE'S INTEREST IN PROTECTING THE WOMAN'S
HEALTH RATHER THAN IN PRESERVING THE EMBRYO AND FETUS.  /48/  PROPONENTS
OF THIS VIEW POINT OUT THAT IN MANY STATES, INCLUDING TEXAS, /49/  BY
STATUTE OR JUDICIAL INTERPRETATION, THE PREGNANT WOMAN HERSELF COULD NOT
BE PROSECUTED FOR SELF-ABORTION OR FOR COOPERATING IN AN ABORTION
PERFORMED UPON HER BY ANOTHER.  /50/  THEY CLAIM THAT ADOPTION OF THE
"QUICKENING THROUGH RECEIVED COMMON LAW AND STATE STATUTES TACITLY
RECOGNIZES THE GREATER HEALTH HAZARDS INHERENT IN LATE ABORTION AND
IMPLIEDLY REPUDIATES THE THEORY THAT LIFE BEGINS AT CONCEPTION. 

IT IS WITH THESE INTERESTS, AND THE WEIGHT TO BE ATTACHED TO THEM, THAT
THIS CASE IS CONCERNED. 

       				VIII 

THE CONSTITUTION DOES NOT EXPLICITLY MENTION ANY RIGHT OF PRIVACY.  IN A
LINE OF DECISIONS, HOWEVER, GOING BACK PERHAPS AS FAR AS UNION PACIFIC R.
CO. V. BOTSFORD, 141 U.S. 250, 251 (1891), THE COURT HAS RECOGNIZED THAT
A RIGHT OF PERSONAL PRIVACY, OR A GUARANTEE OF CERTAIN AREAS OR ZONES OF
PRIVACY, DOES EXIST UNDER THE CONSTITUTION.  IN VARYING CONTEXTS, THE
COURT OR INDIVIDUAL JUSTICES HAVE, INDEED, FOUND AT LEAST THE ROOTS OF
THAT RIGHT IN THE FIRST AMENDMENT, STANLEY V. GEORGIA, 394 U.S. 557, 564
(1969); IN THE FOURTH AND FIFTH AMENDMENTS, TERRY V. OHIO, 392 U.S. 1,
8-9 (1968), KATZ V. UNITED STATES, 389 U.S. 347, 350 (1967), BOYD V.
UNITED STATES, 116 U.S. 616 (1886), SEE OLMSTEAD V. UNITED STATES, 277
U.S. 438, 478 (1928) (BRANDEIS, J., DISSENTING); IN THE PENUMBRAS OF THE
BILL OF RIGHTS, GRISWOLD V. CONNECTICUT, 381 U.S.,AT 484-485; IN THE
NINTH AMENDMENT, ID., AT 486 (GOLDBERG, J., CONCURRING); OR IN THE
CONCEPT OF LIBERTY GUARANTEED BY THE FIRST SECTION OF THE FOURTEENTH
AMENDMENT, SEE MEYER V. NEBRASKA, 262 U.S. 390, 399 (1923).  THESE
DECISIONS MAKE IT CLEAR THAT ONLY PERSONAL RIGHTS THAT CAN BE DEEMED
"FUNDAMENTAL" OR "IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY," PALKO V.
CONNECTICUT, 302 U.S. 319, 325 (1937), ARE INCLUDED IN THIS GUARANTEE OF
PERSONAL PRIVACY.  THEY ALSO MAKE IT CLEAR THAT THE RIGHT HAS SOME
EXTENSION TO ACTIVITIES RELATING TO MARRIAGE, LOVING V. VIRGINIA, 388
U.S. 1, 12 (1967); PROCREATION, SKINNER V. OKLAHOMA, 316 U.S. 535,
541-542 (1942); CONTRACEPTION, EISENSTADT V. BAIRD, 405 U.S.,AT 453-454;
ID., AT 460, 463-465 (WHITE J., CONCURRING IN RESULT); FAMILY
RELATIONSHIPS, PRINCE V. MASSACHUSETTS, 321 U.S. 158, 166 (1944); AND
CHILD REARING AND EDUCATION, PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510,
535 (1925), MEYER V. NEBRASKA, SUPRA. 

THIS RIGHT OF PRIVACY, WHETHER IT BE FOUNDED IN THE FOURTEENTH
AMENDMENT'S CONCEPT OF PERSONAL LIBERTY AND RESTRICTIONS UPON STATE
ACTION, AS WE FEEL IT IS, OR, AS THE DISTRICT COURT DETERMINED, IN THE
NINTH AMENDMENT'S RESERVATION OF RIGHTS TO THE PEOPLE, IS BROAD ENOUGH TO
ENCOMPASS A WOMAN'S DECISION WHETHER OR NOT TO TERMINATE HER PREGNANCY. 
THE DETRIMENT THAT THE STATE WOULD IMPOSE UPON THE PREGNANT WOMAN BY
DENYING THIS CHOICE ALTOGETHER IS APPARENT.  SPECIFIC AND DIRECT HARM
MEDICALLY DIAGNOSABLE EVEN IN EARLY PREGNANCY MAY BE INVOLVED. 
MATERNITY, OR ADDITIONAL OFF-SPRING, MAY FORCE UPON THE WOMAN A
DISTRESSFUL LIFE AND FUTURE.  PSYCHOLOGICAL HARM MAY BE IMMINENT.  MENTAL
AND PHYSICAL HEALTH MAY BE TAXED BY CHILD CARE.  THERE IS ALSO THE
DISTRESS, FOR ALL CONCERNED, ASSOCIATED WITH THE UNWANTED CHILD, AND
THERE IS THE PROBLEM OF BRINGING A CHILD INTO A FAMILY ALREADY UNABLE,
PSYCHOLOGICALLY AND OTHERWISE, TO CARE FOR IT. IN OTHER CASES, AS IN THIS
ONE, THE ADDITIONAL DIFFICULTIES AND CONTINUING STIGMA FACTORS THE WOMAN
AND HER RESPONSIBLE PHYSICIAN NECESSARILY WILL CONSIDER IN CONSULTATION. 

ON THE BASIS OF ELEMENTS SUCH AS THESE, APPELLANT AND SOME AMICI ARGUE
THAT THE WOMAN'S RIGHT IS ABSOLUTE AND THAT SHE IS ENTITLED TO TERMINATE
HER PREGNANCY AT WHATEVER TIME, IN WHATEVER WAY, AND FOR WHATEVER REASON
SHE ALONE CHOOSES.  WITH THIS WE DO NOT AGREE.  APPELLANT'S ARGUMENTS
THAT TEXAS EITHER HAS NO VALID INTEREST STRONG ENOUGH TO SUPPORT ANY
LIMITATION UPON THE WOMAN'S SOLE DETERMINATION, ARE UNPERSUASIVE.  THE
COURT'S DECISIONS RECOGNIZING A RIGHT OF PRIVACY ALSO ACKNOWLEDGE THAT
SOME STATE REGULATION IN AREAS PROTECTED BY THAT RIGHT IS APPROPRIATE. 
AS NOTED ABOVE, A STATE MAY PROPERLY ASSERT IMPORTANT INTERESTS IN
SAFEGUARDING HEALTH, IN MAINTAINING MEDICAL STANDARDS, AND IN PROTECTING
POTENTIAL LIFE.  AT SOME POINT IN PREGNANCY, TO SUSTAIN REGULATION OF THE
FACTORS THAT GOVERN THE ABORTION DECISION.  THE PRIVACY RIGHT INVOLVED,
THEREFORE, CANNOT BE SAID TO BE ABSOLUTE.  IN FACT, IT IS NOT CLEAR TO US
THAT THE CLAIM ASSERTED BY SOME AMICI THAT ONE HAS AN UNLIMITED RIGHT TO
DO WITH ONE'S BODY AS ONE PLEASES BEARS A CLOSE RELATIONSHIP TO THE RIGHT
OF PRIVACY PREVIOUSLY ARTICULATED IN THE COURT'S DECISIONS.  THE COURT
HAS REFUSED TO RECOGNIZE AN UNLIMITED RIGHT OF THIS KIND IN THE PAST. 
JACOBSON V. MASSACHUSETTS, 197 U.S. 11 (1905) (VACCINATION); BUCK V.
BELL, 274 U.S. 200 (1927) (STERILIZATION). 

WE, THEREFORE, CONCLUDE THAT THE RIGHT OF PERSONAL PRIVACY INCLUDES THE
ABORTION DECISION, BUT THAT THIS RIGHT IS NOT UNQUALIFIED AND MUST BE
CONSIDERED AGAINST IMPORTANT STATE INTERESTS IN REGULATION.   WE NOTE
THAT THOSE FEDERAL AND STATE COURTS THAT HAVE RECENTLY CONSIDERED
ABORTION LAW CHALLENGES HAVE REACHED THE SAME CONCLUSION.  A MAJORITY, IN
ADDITION TO THE DISTRICT COURT IN THE PRESENT CASE, HAVE HELD STATE LAWS
UNCONSTITUTIONAL, AT LEAST IN PART, BECAUSE OF VAGUENESS OR BECAUSE OF
OVERBREADTH AND ABRIDGMENT OF RIGHTS.  ABELE V. MARKLE, 342 F.SUPP.  800
(CONN. 1972), APPEAL DOCKETED, NO. 72-56; ABELE V. MARKLE, 351 F.SUPP. 
224 (CONN. 1972), APPEAL DOCKETED, NO. 72 730; DOE V. BOLTON, 319 F.SUPP. 
1048 (ND GA. 1970), APPEAL DECIDED TODAY, POST, P. 179; DOE V. SCOTT, 321
F.SUPP.  1385 (ND ILL. 1971), APPEAL DOCKETED, NO. 70-105; POE V.
MENGHINI, 339 F.SUPP.  986 (KAN. 1972); YWCA V. KUGLER, 342 F.SUPP.  1048
(NJ 1972); BABBITZ V. MCCANN, 310 F.SUPP.  293 (ED WIS. 1970), APPEAL
DISMISSED, 400 U.S. 1 (1970); PEOPLE V. BELOUS, 71 CAL.2D 954, 458 P.2D
194 (1969), CERT. DENIED, 397 U.S. 915 (1970); STATE V. BARQUET, 262
SO.2D 431 (FLA. 1972).  OTHERS HAVE SUSTAINED STATE STATUTES.  CROSSEN V.
ATTORNEY GENERAL, 344 F.SUPP.  587 (ED KY. 1972), APPEAL DOCKETED, NO.
72-256; ROSEN V. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, 318 F.SUPP. 
1217 (ED LA. 1970), APPEAL DOCKETED, NO. 70-42; CORKEY V. EDWARDS, 322
F.SUPP.  1248 (WDNC 1971), APPEAL DOCKETED, NO. 71-92; STEINBERG V.
BROWN, 321 F.SUPP.  741 (ND OHIO 1970); DOE V. RAMPTON (UTAH 1971),
APPEAL DOCKETED, NO. 71-5666; CHEANEY V. STATE,-- IND.-- , 285 N.E.2D 265
(1972); SPEARS V. STATE, 257 SO.2D 876 (MISS.  1972); STATE V. MUNSON, 86
S.D. 663, 201 N.W.2D 123 (1972), APPEAL DOCKETED, NO. 72-631. 
 ALTHOUGH THE RESULTS ARE DIVIDED, MOST OF THESE COURTS HAVE AGREED THAT
THE RIGHT OF PRIVACY, HOWEVER BASED, IS BROAD ENOUGH TO COVER THE
ABORTION DECISION; THAT THE RIGHT, NONETHELESS, IS NOT ABSOLUTE AND IS
SUBJECT TO SOME LIMITATIONS; AND THAT AT SOME POINT THE STATE INTERESTS
AS TO PROTECTION OF HEALTH, MEDICAL STANDARDS, AND PRENATAL LIFE, BECOME
DOMINANT.  WE AGREE WITH THIS APPROACH.   WHERE CERTAIN "FUNDAMENTAL
RIGHTS" ARE INVOLVED, THE COURT HAS HELD THAT REGULATION LIMITING THESE
RIGHTS MAY BE JUSTIFIED ONLY BY A "COMPELLING STATE INTEREST," KRAMER V.
UNION FREE SCHOOL DISTRICT, 395 U.S. 621, 627 (1969); SHAPIRO V.
THOMPSON, 394 U.S. 618, 634 (1969), SHERBERT V. VERNER, 374 U.S. 398, 406
(1963), AND THAT LEGISLATIVE ENACTMENTS MUST BE NARROWLY DRAWN TO EXPRESS
ONLY THE LEGITIMATE STATE INTERESTS AT STAKE.  GRISWOLD V. CONNECTICUT,
381 U.S.,AT 485; APTHEKER V. SECRETARY OF STATE, 378 U.S. 500, 508
(1964); CANTWELL V. CONNECTICUT, 310 U.S. 296, 307-308 (1940); SEE
EISENSTADT V. BAIRD, 405 U.S.,AT 460, 463-464 (WHITE, J., CONCURRING IN
RESULT).   IN THE RECENT ABORTION CASES, CITED ABOVE, COURTS HAVE
RECOGNIZED THESE PRINCIPLES.  THOSE STRIKING DOWN STATE LAWS HAVE
GENERALLY SCRUTINIZED THE STATE'S INTERESTS IN PROTECTING HEALTH AND
POTENTIAL LIFE, AND HAVE CONCLUDED THAT NEITHER INTEREST JUSTIFIED BROAD
LIMITATIONS ON THE REASONS FOR WHICH A PHYSICIAN AND HIS PREGNANT PATIENT
MIGHT DECIDE THAT SHE SHOULD HAVE AN ABORTION IN THE EARLY STAGES OF
PREGNANCY.  COURTS SUSTAINING STATE LAWS HAVE HELD THAT THE STATE'S
DETERMINATIONS TO PROTECT HEALTH OR PRENATAL LIFE ARE DOMINANT AND
CONSTITUTIONALLY JUSTIFIABLE. 

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