IX 

THE DISTRICT COURT HELD THAT THE APPELLEE FAILED TO MEET HIS BURDEN OF
DEMONSTRATING THAT THE TEXAS STATUTE'S INFRINGEMENT UPON ROE'S RIGHTS WAS
NECESSARY TO SUPPORT A COMPELLING STATE INTEREST, AND THAT, ALTHOUGH THE
APPELLEE PRESENTED "SEVERAL COMPELLING JUSTIFICATIONS FOR STATE PRESENCE
IN THE AREA OF ABORTIONS," THE STATUTES OUTSTRIPPED THESE JUSTIFICATIONS
AND SWEPT "FAR BEYOND ANY AREAS OF COMPELLING STATE INTEREST."  314
F.SUPP.,AT 1222-1223.  APPELLANT AND APPELLEE BOTH CONTEST THAT HOLDING. 
APPELLANT, AS HAS BEEN INDICATED, CLAIMS AN ABSOLUTE RIGHT THAT BARS ANY
STATE IMPOSITION OF CRIMINAL PENALTIES IN THE AREA.  APPELLEE ARGUES THAT
THE STATE'S DETERMINATION TO RECOGNIZE AND PROTECT PRENATAL LIFE FROM AND
AFTER CONCEPTION CONSTITUTES A COMPELLING STATE INTEREST.  AS NOTED
ABOVE, WE DO NOT AGREE FULLY WITH EITHER FORMULATION. 

A. THE APPELLEE AND CERTAIN AMICI ARGUE THAT THE FETUS IS A "PERSON"
WITHIN THE LANGUAGE AND MEANING OF THE FOURTEENTH AMENDMENT.  IN SUPPORT
OF THIS, THEY OUTLINE AT LENGTH AND IN DETAIL THE WELL-KNOWN FACTS OF
FETAL DEVELOPMENT.  IF THIS SUGGESTION OF PERSONHOOD IS ESTABLISHED, THE
APPELLANT'S CASE, OF COURSE, COLLAPSES, FOR THE FETUS' RIGHT TO LIFE
WOULD THEN BE GUARANTEED SPECIFICALLY BY THE AMENDMENT.  THE APPELLANT
CONCEDED AS MUCH ON REARGUMENT.  /51/  ON THE OTHER HAND, THE APPELLEE
CONCEDED ON REARGUMENT /52/  THAT NO CASE COULD BE CITED THAT HOLDS THAT
A FETUS IS A PERSON WITHIN THE MEANING OF THE FOURTEENTH AMENDMENT. 

THE CONSTITUTION DOES NOT DEFINE "PERSON" IN SO MANY WORDS.  SECTION 1 OF
THE FOURTEENTH AMENDMENT CONTAINS THREE REFERENCES TO "PERSON."  THE
FIRST, IN DEFINING "CITIZENS," SPEAKS OF "PERSONS BORN OR NATURALIZED IN
THE UNITED STATES."  THE WORD ALSO APPEARS BOTH IN THE DUE PROCESS CLAUSE
AND IN THE EQUAL PROTECTION CLAUSE.  "PERSON" IS USED IN OTHER PLACES IN
THE CONSTITUTION:  IN THE LISTING OF QUALIFICATIONS FOR REPRESENTATIVES
AND SENATORS, ART. I, SEC. 2, CL. 2, AND SEC. 3, CL. 3; IN THE
APPORTIONMENT CLAUSE, ART. I, SEC. 2, CL. 3; /53/  IN THE MIGRATION AND
IMPORTATION PROVISION, ART. I, SEC. 9, CL. 1; IN THE EMOLUMENT CLAUSE,
ART. I, SEC. 9, CL. 8; IN THE ELECTORS PROVISIONS, ART. II, SEC. 1 CL. 2,
AND THE SUPERSEDED CL. 3; IN THE PROVISION OUTLINING QUALIFICATIONS FOR
THE OFFICE OF PRESIDENT, ART. II, SEC. 1, CL. 5; IN THE EXTRADITION
PROVISION, ART. IV, SEC. 2, CL. 2, AND THE SUPERSEDED FUGITIVE SLAVE
CLAUSE 3; AND IN THE FIFTH, TWELFTH, AND TWENTY-SECOND AMENDMENTS, AS
WELL AS IN SECS. 2 AND 3 OF THE FOURTEENTH AMENDMENT.  BUT IN NEARLY ALL
THESE INSTANCES, THE USE OF THE WORD IS SUCH THAT IT HAS APPLICATION ONLY
POSTNATALLY.  NONE INDICATES, WITH ANY ASSURANCE, THAT IT HAS ANY
POSSIBLE PRE-NATAL APPLICATION.  /54/ 

ALL THIS, TOGETHER WITH OUR OBSERVATION, SUPRA, THAT THROUGHOUT THE MAJOR
PORTION OF THE 19TH CENTURY PREVAILING LEGAL ABORTION PRACTICES WERE FAR
FREER THAN THEY ARE TODAY, PERSUADES US THAT THE WORD "PERSON," AS USED
IN THE FOURTEENTH AMENDMENT, DOES NOT INCLUDE THE UNBORN.  /55/  THIS IS
IN ACCORD WITH THE RESULTS REACHED IN THOSE FEW CASES WHERE THE ISSUE HAS
BEEN SQUARELY PRESENTED.  MCGARVEY V. MAGEE WOMENS HOSPITAL, 340 F.SUPP. 
751 (WD PA. 1972); BYRN V. NEW YORK CITY HEALTH & HOSPITALS CORP., 31
N.Y.2D 194, 286 N.E.2D 887 (1972), APPEAL DOCKETED, NO. 72-434; ABELE V.
MARKLE, 351 F.SUPP.  224 (CONN. 1972), APPEAL DOCKETED, NO. 72-730.  CF.
CHEANEY V. STATE,-- IND., AT-- , 285 N.E.2D AT 270; MONTANA V. ROGERS,
278 F.2D 68, 72 (CA7 1960), AFF'D SUB NOM.  MONTANA V. KENNEDY, 366 U.S.
308 (1961); KEELER V. SUPERIOR COURT, 2 CAL.3D 619, 470 P.2D 617 (1070);
STATE V. DICKINSON, 28 OHIO ST.2D 65, 275 N.E.2D 599 (1971).  INDEED, OUR
DECISION IN UNITED STATES V. VUITCH, 402 U.S. 62 (1971), INFERENTIALLY IS
TO THE SAME EFFECT, FOR WE THERE WOULD NOT HAVE INDULGED IN STATUTORY
INTERPRETATION FAVORABLE TO ABORTION IN SPECIFIED CIRCUMSTANCES IF THE
NECESSARY CONSEQUENCE WAS THE TERMINATION OF LIFE ENTITLED TO FOURTEENTH
AMENDMENT PROTECTION. 

THIS CONCLUSION, HOWEVER, DOES NOT OF ITSELF FULLY ANSWER THE CONTENTIONS
RAISED BY TEXAS, AND WE PASS ON TO OTHER CONSIDERATIONS. 

B. THE PREGNANT WOMAN CANNOT BE ISOLATED IN HER PRIVACY.  SHE CARRIES AN
EMBRYO AND, LATER, A FETUS, IF ONE ACCEPTS THE MEDICAL DEFINITIONS OF THE
DEVELOPING YOUNG IN THE HUMAN UTERUS.  SEE DORLAND'S ILLUSTRATED MEDICAL
DICTIONARY 478-479, 547 (24TH ED. 1965).  THE SITUATION THEREFORE IS
INHERENTLY DIFFERENT FROM MARITAL INTIMACY, OR BEDROOM POSSESSION OF
OBSCENE MATERIAL, OR MARRIAGE, OR PROCREATION, OR EDUCATION, WITH WHICH
EISENSTADT AND GRISWOLD, STANLEY, LOVING, SKINNER, AND PIERCE AND MEYER
WERE RESPECTIVELY CONCERNED.  AS WE HAVE INTIMATED ABOVE, IT IS
REASONABLE AND APPROPRIATE FOR A STATE TO DECIDE THAT AT SOME POINT IN
TIME ANOTHER INTEREST, THAT OF HEALTH OF THE MOTHER OR THAT OF POTENTIAL
HUMAN LIFE, BECOMES SIGNIFICANTLY INVOLVED.  THE WOMAN'S PRIVACY IS NO
LONGER SOLE AND ANY RIGHT OF PRIVACY SHE POSSESSES MUST BE MEASURED
ACCORDINGLY. 

TEXAS URGES THAT, APART FROM THE FOURTEENTH AMENDMENT, LIFE BEGINS AT
CONCEPTION AND IS PRESENT THROUGHOUT PREGNANCY, AND THAT, THEREFORE, THE
STATE HAS A COMPELLING INTEREST IN PROTECTING THAT LIFE FROM AND AFTER
CONCEPTION.  WE NEED NOT RESOLVE THE DIFFICULT QUESTION OF WHEN LIFE
BEGINS.  WHEN THOSE TRAINED IN THE RESPECTIVE DISCIPLINES OF MEDICINE,
PHILOSOPHY, AND THEOLOGY ARE UNABLE TO ARRIVE AT ANY CONSENSUS, THE
JUDICIARY, AT THIS POINT IN THE DEVELOPMENT OF MAN'S KNOWLEDGE, IS NOT IN
A POSITION TO SPECULATE AS TO THE ANSWER. 

IT SHOULD BE SUFFICIENT TO NOTE BRIEFLY THE WIDE DIVERGENCE OF THINKING
ON THIS MOST SENSITIVE AND DIFFICULT QUESTION.  THERE HAS ALWAYS BEEN
STRONG SUPPORT FOR THE VIEW THAT LIFE DOES NOT BEGIN UNTIL LIVE BIRTH. 
THIS WAS THE BELIEF OF THE STOICS.  /56/  IT APPEARS TO BE THE
PREDOMINANT, THOUGH NOT THE UNANIMOUS, ATTITUDE OF THE JEWISH FAITH. 
/57/  IT MAY BE TAKEN TO REPRESENT ALSO THE POSITION OF A LARGE SEGMENT
OF THE PROTESTANT COMMUNITY, INSOFAR AS THAT CAN BE ASCERTAINED;
ORGANIZED GROUPS THAT HAVE TAKEN A FORMAL POSITION ON THE ABORTION ISSUE
HAVE GENERALLY REGARDED ABORTION AS A MATTER FOR THE CONSCIENCE OF THE
INDIVIDUAL AND HER FAMILY.  /58/  AS WE HAVE NOTED, THE COMMON LAW FOUND
GREATER SIGNIFICANCE IN QUICKENING.  PHYSICIANS AND THEIR SCIENTIFIC
COLLEAGUES HAVE REGARDED THAT EVENT WITH LESS INTEREST AND HAVE TENDED TO
FOCUS EITHER UPON CONCEPTION, UPON LIVE BIRTH, OR UPON THE INTERIM POINT
AT WHICH THE FETUS BECOMES "VIABLE," THAT IS, POTENTIALLY ABLE TO LIVE
OUTSIDE THE MOTHER'S WOMB, ALBEIT WITH ARTIFICIAL AID.  /59/  VIABILITY
IS USUALLY PLACED AT ABOUT SEVEN MONTHS (28 WEEKS) BUT MAY OCCUR EARLIER,
EVEN AT 24 WEEKS.  /60/  THE ARISTOTELIAN THEORY OF "MEDIATE ANIMATION,"
THAT HELD SWAY THROUGHOUT THE MIDDLE AGES AND THE RENAISSANCE IN EUROPE,
CONTINUED TO BE OFFICIAL ROMAN CATHOLIC DOGMA UNTIL THE 19TH CENTURY,
DESPITE OPPOSITION TO THIS "ENSOULMENT" THEORY FROM THOSE IN THE CHURCH
WHO WOULD RECOGNIZE THE EXISTENCE OF LIFE FROM THE MOMENT OF CONCEPTION. 
/61/  THE LATTER IS NOW, OF COURSE, THE OFFICIAL BELIEF OF THE CATHOLIC
CHURCH.  AS ONE BRIEF AMICUS DISCLOSES, THIS IS A VIEW STRONGLY HELD BY
MANY NON CATHOLICS AS WELL, AND BY MANY PHYSICIANS.  SUBSTANTIAL PROBLEMS
FOR PRECISE DEFINITION OF THIS VIEW ARE POSED, HOWEVER, BY NEW
EMBRYOLOGICAL DATA THAT PURPORT TO INDICATE THAT CONCEPTION IS A
"PROCESS" OVER TIME, RATHER THAN AN EVENT, AND BY NEW MEDICAL TECHNIQUES
IMPLANTATION OF EMBRYOS, ARTIFICIAL INSEMINATION, AND EVEN ARTIFICIAL
WOMBS.  /62/ 

IN AREAS OTHER THAN CRIMINAL ABORTION, THE LAW HAS BEEN RELUCTANT TO
ENDORSE ANY THEORY THAT LIFE, AS WE RECOGNIZE IT, BEGINS BEFORE LIVE
BIRTH OR TO ACCORD LEGAL RIGHTS TO THE UNBORN EXCEPT IN NARROWLY DEFINED
SITUATIONS AND EXCEPT WHEN THE RIGHTS ARE CONTINGENT UPON LIVE BIRTH. 
FOR EXAMPLE, THE TRADITIONAL RULE OF TORT LAW DENIED RECOVERY FOR
PRENATAL INJURIES EVEN THOUGH THE CHILD WAS BORN ALIVE.  /63/  THAT RULE
HAS BEEN CHANGED IN ALMOST EVERY JURISDICTION.  IN MOST STATES, RECOVERY
IS SAID TO BE PERMITTED ONLY IF THE FETUS WAS VIABLE, OR AT LEAST QUICK,
WHEN THE INJURIES WERE SUSTAINED, THOUGH FEW COURTS HAVE SQUARELY SO
HELD.  /64/  IN A RECENT DEVELOPMENT, GENERALLY OPPOSED BY THE
COMMENTATORS, SOME STATES PERMIT THE PARENTS OF A STILLBORN CHILD TO
MAINTAIN AN ACTION FOR WRONGFUL DEATH BECAUSE OF PRENATAL INJURIES.  /65/ 
SUCH AN ACTION, HOWEVER, WOULD APPEAR TO BE ONE TO VINDICATE THE PARENTS'
INTEREST AND IS THUS CONSISTENT WITH THE VIEW THAT THE FETUS, AT MOST,
REPRESENTS ONLY THE POTENTIALITY OF LIFE.  SIMILARLY, UNBORN CHILDREN
HAVE BEEN RECOGNIZED AS ACQUIRING RIGHTS OR INTERESTS BY WAY OF
INHERITANCE OR OTHER DEVOLUTION OF PROPERTY, AND HAVE BEEN REPRESENTED BY
GUARDIANS AD LITEM.  /66/  PERFECTION OF THE INTERESTS INVOLVED, AGAIN,
HAS GENERALLY BEEN CONTINGENT UPON LIVE BIRTH.  IN SHORT, THE UNBORN HAVE
NEVER BEEN RECOGNIZED IN THE LAW AS PERSONS IN THE WHOLE SENSE. 

       				X 

IN VIEW OF ALL THIS, WE DO NOT AGREE THAT, BY ADOPTING ONE THEORY OF
LIFE, TEXAS MAY OVERRIDE THE RIGHTS OF THE PREGNANT WOMAN THAT ARE AT
STAKE.  WE REPEAT, HOWEVER, THAT THE STATE DOES HAVE AN IMPORTANT AND
LEGITIMATE INTEREST IN PRESERVING AND PROTECTING THE HEALTH OF THE
PREGNANT WOMAN, WHETHER SHE BE A RESIDENT OF THE STATE OR A NONRESIDENT
WHO SEEKS MEDICAL CONSULTATION AND TREATMENT THERE, AND THAT IT HAS STILL
ANOTHER IMPORTANT AND LEGITIMATE INTEREST IN PROTECTING THE POTENTIALITY
OF HUMAN LIFE.  THESE INTERESTS ARE SEPARATE AND DISTINCT.  EACH GROWS IN
SUBSTANTIALITY AS THE WOMAN APPROACHES TERM AND, AT A POINT DURING
PREGNANCY, EACH BECOMES "COMPELLING."  

WITH RESPECT TO THE STATE'S IMPORTANT AND LEGITIMATE INTEREST IN THE
HEALTH OF THE MOTHER, THE "COMPELLING" POINT, IN THE LIGHT OF PRESENT
MEDICAL KNOWLEDGE, IS AT APPROXIMATELY THE END OF THE FIRST TRIMESTER. 
THIS IS SO BECAUSE OF THE NOW-ESTABLISHED MEDICAL FACT, REFERRED TO ABOVE
AT 149, THAT UNTIL THE END OF THE FIRST TRIMESTER MORTALITY IN ABORTION
MAY BE LESS THAN MORTALITY IN NORMAL CHILDBIRTH.  IT FOLLOWS THAT, FROM
AND AFTER THIS POINT, A STATE MAY REGULATE THE ABORTION PROCEDURE TO THE
EXTENT THAT THE REGULATION REASONABLY RELATES TO THE PRESERVATION AND
PROTECTION OF MATERNAL HEALTH.  EXAMPLES OF PERMISSIBLE STATE REGULATION
IN THIS AREA ARE REQUIREMENTS AS TO THE QUALIFICATIONS OF THE PERSON WHO
IS TO PERFORM THE ABORTION; AS TO THE LICENSURE OF THAT PERSON; AS TO THE
FACILITY IN WHICH THE PROCEDURE IS TO BE PERFORMED, THAT IS, WHETHER IT
MUST BE A HOSPITAL OR MAY BE A CLINIC OR SOME OTHER PLACE OF
LESS-THAN-HOSPITAL STATUS; AS TO THE LICENSING OF THE FACILITY; AND THE
LIKE. 

THIS MEANS, ON THE OTHER HAND, THAT, FOR THE PERIOD OF PREGNANCY PRIOR TO
THIS "COMPELLING" POINT, THE ATTENDING PHYSICIAN, IN CONSULTATION WITH
HIS PATIENT, IS FREE TO DETERMINE, WITHOUT REGULATION BY THE STATE, THAT,
IN HIS MEDICAL JUDGMENT, THE PATIENT'S PREGNANCY SHOULD BE TERMINATED. 
IF THAT DECISION IS REACHED, THE JUDGMENT MAY BE EFFECTUATED BY AN
ABORTION FREE OF INTERFERENCE BY THE STATE. 

WITH RESPECT TO THE STATE'S IMPORTANT AND LEGITIMATE INTEREST IN
POTENTIAL LIFE, THE "COMPELLING" POINT IS AT VIABILITY.  THIS IS SO
BECAUSE THE FETUS THEN PRESUMABLY HAS THE CAPABILITY OF MEANINGFUL LIFE
OUTSIDE THE MOTHER'S WOMB.  STATE REGULATION PROTECTIVE OF FETAL LIFE
AFTER VIABILITY THUS HAS BOTH LOGICAL AND BIOLOGICAL JUSTIFICATIONS.  IF
THE STATE IS INTERESTED IN PROTECTING FETAL LIFE AFTER VIABILITY, IT MAY
GO SO FAR AS TO PROSCRIBE ABORTION DURING THAT PERIOD, EXCEPT WHEN IT IS
NECESSARY TO PRESERVE THE LIFE OR HEALTH OF THE MOTHER.  MEASURED AGAINST
THESE STANDARDS, ART. 1196 OF THE TEXAS PENAL CODE, IN RESTRICTING LEGAL
ABORTIONS TO THOSE "PROCURED OR ATTEMPTED BY MEDICAL ADVICE FOR THE
PURPOSE OF SAVING THE LIFE OF THE MOTHER,"  SWEEPS TOO BROADLY.  THE
STATUTE MAKES NO DISTINCTION BETWEEN ABORTIONS PERFORMED EARLY IN
PREGNANCY AND THOSE PERFORMED LATER, AND IT LIMITS TO A SINGLE REASON,
"SAVING" THE MOTHER'S LIFE, THE LEGAL JUSTIFICATION FOR THE PROCEDURE. 
THE STATUTE, THEREFORE, CANNOT SURVIVE THE CONSTITUTIONAL ATTACK MADE
UPON IT HERE. 

THIS CONCLUSION MAKES IT UNNECESSARY FOR US TO CONSIDER THE ADDITIONAL
CHALLENGE TO THE TEXAS STATUTE ASSERTED ON GROUNDS OF VAGUENESS.  SEE
UNITED STATES V. VUITCH, 402 U.S.,AT 67-72. 

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