Is ANTIFA more fascist than the fascist?

First of all I suppose the question is just who are these Anti-fascist? No one seems able to address this question, they claim there is no central hierarchy, no unifying central control or origination structure, but without such, how could they plan, plot or execute the protest/riots which ensue.  Impossible, the scenes I have witnessed on television show hundreds perhaps even thousands of participants at these events. This cannot be possible without an in-depth planning and coordinated structure. Otherwise with just local cells of smaller groups taking action we would see far lesser crowds. The apparent global markings of this group speak of a much larger origination.

Second question is what is their agenda? No protest is just a gathering of people marching around without a definite message to promote. Ok, they are against fascism, but is this all? They are the defenders of our personal freedoms, not quite. With this large a following (I admit that some are merely duped into the main theme) there is an underlying result they wish to produce, but it is hidden deeply in the heart of this movement. By being ambiguous this gives it the greatest chances of remaining hidden.

Third question are they any less brutal than those they oppose? No, they use physical violence to disrupt, intimidate, and vandalize private property. By doing this I can’t help recall the tactics of the NAZI SA (Sturmabteilung [Storm troops]) during the 1920’s in German. The SA were the true fascist, and they had zero tolerance to any idea other than NAZI ideology. They disrupted any opposition meetings with beatings; they destroyed Jewish business and burning Synagogues. Smashing business windows; beating pedestrians on the street without any intervention by the police. It seems that the antifa group has adopted the same tactics. This is a sign that they are not the guardians of individual freedoms. They most assuredly do not safe guard the freedom of speech.

Fourth question is there a global conspiracy? Ok, here is the part where everyone does that little head shake and with a hearty chuckle rolls the eyes. But I merely ask out of curiosity. Could there be? If not, then why the use of a unifying name? Why the promotion of a single main theme? Why the seemingly uniform dress code? Why the secrecy?

Reverting to the 4 journalistic W’s: Who are they, What are they about, Where are they, Why are they? I add the fifth W; What do they hope to achieve.

Thank you for taking the time to read this

THE COMMENTARY GAZETTE®

CONTRIBUTOR: Eddy Toorall

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1955 United States – Iran Treaty

The following treaty between the United States and Iran has become the focus of yet another attempt by the Islamic Republic of Iran to extort money from the U. S.. Although this treaty was signed in good faith by the U.S., I for one feel that Iran has violated it on several occasions, in essence making it invalid. First with the over throw of the originator government by revolution, second by the unlawful occupation of the U. S. Embassy in Tehran, and many more overt actions against the U. S.. But the International Courts see it otherwise, allowing another unlawful filing, if there has every been a breech of this treaty, then it was by the current Iranian government. Congress needs to readdress this treaty and with in its powers, revoke it once and for all.

[P.S. Update 3 October 2018 Secretary of State Mike Pompeo announced that the United States no longer considers this treaty valid]

Amity, Economic Relations, and Consular Rights

Treaty signed at Tehran August 15, 1955;

Ratification advised by the Senate of the United States of America July 11, 1956;

Ratified by the President of the United States of America

September 14, 1956;

Ratified by Iran April 30, 1957;

Ratifications exchanged at Tehran May 16, 1957;

Proclaimed by the President of the United States of America

June 27, 1957;

Entered into force June 16, 1957.

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION

WHEREAS a treaty of amity, economic relations, and consular rights between the United States of America and Iran was signed at Tehran on August 15, 1955, the original of which treaty, being in the English and Persian languages, is word for word as follows:

TREATY OF AMITY, ECONOMIC RELATIONS, AND CONSULAR RIGHTS

BETWEEN

THE UNITED STATES OF AMERICA

AND IRAN

TREATY OF AMITY, ECONOMIC RELATIONS, AND CONSULAR RIGHTS BETWEEN THE UNITED STATES OF AMERICA AND IRAN

The United States of America and Iran, desirous of emphasizing the friendly relations which have long prevailed between their peoples, of reaffirming the high principles in the regulation of human affairs to which they are committed, of encouraging mutually beneficial trade and investments and closer economic intercourse generally between their peoples, and of regulating consular relations, have resolved to conclude, on the basis of reciprocal equality of treatment, a Treaty of Amity, Economic Relations, and Consular Rights, and have appointed as their Plenipotentiaries:

The President of the United States of America:

Mr. Selden Chapin, Ambassador Extraordinary and Plenipotentiary of the United States of America at Tehran;

and

His Imperial Majesty, the Shah of Iran:

His Excellency Mr. Mostafa Samiy, Under Secretary of the Ministry of Foreign Affairs;

Who, having communicated to each other their full powers found to be in due form, have agreed upon the following articles:

Article I

There shall be firm and enduring peace and sincere friendship between the United States of America and Iran.

Article II

1. Nationals of either High Contracting Party shall be permitted, upon terms no less favorable than those accorded to nationals of any third country, to enter and remain in the territories of the other High Contracting Party for the purpose of carrying on trade between their own country and the territories of such other High Contracting Party and engaging in related commercial activities, and for the purpose of developing and directing the operations of an enterprise in which they have invested, or in which they are actively in the process of investing, a substantial amount of capital.

2. Nationals of either High Contracting Party within the territories of the other High Contracting Party shall, either individually or through associations, and so long as their activities are not contrary to public order, safety or morals:

(a) be permitted to travel therein freely and reside at places of their choice;

(b)enjoy freedom of conscience and the right to hold religious services;

(c) be permitted to engage in philanthropic, educational and scientific activities; and

(d) have the right to gather and transmit information for dissemination to the public abroad, and otherwise to communicate with other persons inside and outside such territories. They shall also be permitted to engage in the practice of professions for which they have qualified under the applicable legal provisions governing admission to professions.

3. The provisions of paragraphs 1 and 2 of the present Article shall be subject to the right of either High Contracting Party to apply measures which are necessary to maintain public order, and to protect public health, morals and safety, including the right to expel, to exclude or to limit the movement of aliens on the said grounds.

4. Nationals of either High Contracting Party shall receive the most constant protection and security within the territories of the other High Contracting Party. When any such national is in custody, he shall in every respect receive reasonable and humane treatment; and, on his demand, the diplomatic or consular representative of his country shall without unnecessary delay be notified and accorded full opportunity to safeguard his interests. He shall be promptly informed of the accusations against him, allowed all facilities reasonably necessary to his defense and given a prompt and impartial disposition of his case.

Article III

1. Companies constituted under the applicable laws and regulations of either High Contracting Party shall have their juridical status recognized within the territories of the other High Contracting Party. It is understood, however, that recognition of juridical status does not of itself confer rights upon companies to engage in the activities for which they are organized. As used in the present Treaty, “companies” means corporations, partnerships, companies and other associations, whether or not with limited liability and whether or not for pecuniary profit.

2. Nationals and companies of either High Contracting Party shall have freedom of access to the courts of justice and administrative agencies within the territories of the other High Contracting Party, in all degrees of jurisdiction, both in defense and pursuit of their rights, to the end that prompt and impartial justice be done. Such access shall be allowed, in any event, upon terms no less favorable than those applicable to nationals and companies of such other High Contracting Party or of any third country. It is understood that companies not engaged in activities within the country shall enjoy the right of such access without any requirement of registration or domestication.

3. The private settlement of disputes of a civil nature, involving nationals and companies of either High Contracting Party, shall not be discouraged within the territories of the other High Contracting Party; and, in cases of such settlement by arbitration, neither the alienage of the arbitrators nor the foreign situs of the arbitration proceedings shall of themselves be a bar to the enforceability of awards duly resulting therefrom.

Article IV

I. Each High Contracting Party shall at all times accord fair and equitable treatment to nationals and companies of the other High Contracting Party, and to their property and enterprises; shall refrain from applying unreasonable or discriminatory measures that would impair their legally acquired rights and interests; and shall assure that their lawful contractual rights are afforded effective means of enforcement, in conformity with the applicable laws.

2. Property of nationals and companies of either High Contracting Party, including interests in property, shall receive the most constant protection and security within the territories of the other High Contracting Party, in no case less than that required by international law. Such property shall not be taken except for a public purpose, nor shall it be taken without the prompt payment of just compensation. Such compensation shall be in an effectively realizable form and shall represent the full equivalent of the property taken; and adequate provision shall have been made at or prior to the time of taking for the determination and payment thereof.

3. The dwellings, offices, warehouses, factories and other premises of nationals and companies of either High Contracting Party located within the territories of the other High Contracting Party shall not be subject to entry or molestation without just cause.

Official searches and examinations of such premises and their contents, shall be made only according to law and with careful regard for the convenience of the occupants and the conduct of business.

4. Enterprises which nationals and companies of either High Contracting Party are permitted to establish or acquire, within territories of the other High Contracting Party, shall be permitted freely to conduct their activities therein, upon terms no less favorable than other enterprises of whatever nationality engaged in similar activities. Such nationals and companies shall enjoy the right to continued control and management of such enterprises; to engage attorneys, agents, accountants and other technical experts, executive personnel, interpreters and other specialized employees of their choice; and to do all other things necessary or incidental to the effective conduct of their affairs.

Article V

1. Nationals and companies of either High Contracting Party shall be permitted, within the’ territories of the other High Contracting Party:

(a) to lease, for suitable periods of time, real property needed for their residence or for the conduct of activities pursuant to the present Treaty;

(b) to purchase or otherwise acquire personal property of all kinds; and

(c) to dispose of property of all kinds by sale, testament or otherwise. The treatment accorded in these respects shall in no event be less favorable than that accorded nationals and companies of any third country.

2. Upon compliance with the applicable laws and regulations respecting registration and other formalities, nationals and companies of either High Contracting Party shall be accorded within the territories of the other High Contracting Party effective protection in the exclusive use of inventions, trade marks and trade names.

Article VI

1. Nationals and companies of either High Contracting Party shall not be subject to the payment of taxes, fees or charges within the territories of the other High Contracting Party, or to requirements with respect to the levy and collection thereof, more burdensome than those borne by nationals, residents and companies of any third country. In the case of nationals of either High Contracting Party residing within the territories of the other High Contracting Party, and of nationals and companies of either High Contracting Party engaged in trade or other gainful pursuit or in non-profit activities therein, such payments and requirements shall not be more burdensome than those borne by nationals and companies of such other High Contracting Party.

2. Each High Contracting Party, however, reserves the right to:

(a) extend specific tax advantages only on the basis of reciprocity, or pursuant to agreements for the avoidance of double taxation or the mutual protection of revenue; and

(b) apply special requirements as to the exemptions of a personal nature allowed to non-residents in connection with income and inheritance taxes.

3. Companies of either High Contracting Party shall not be subject, within the territories of the other High Contracting Party, to taxes upon any income, transactions or capital not attributable to the operations and investment thereof within such territories.

Article VII

1. Neither High Contracting Party shall apply restrictions on the making of payments, remittances, and other transfers of funds to or from the territories of the other High Contracting Party, except (a) to the extent necessary to assure the availability of foreign exchange for payments for goods and services essential to the health and welfare of its people, or (b) in the case of a member of the International Monetary Fund, restrictions specifically approved by the Fund.

2. If either High Contracting Party applies exchange restrictions, it shall promptly make reasonable provision for the withdrawal, in foreign exchange in the currency of the other High Contracting Party, of:

(a) the compensation referred to in Article IV, paragraph 2, of the present Treaty,

(b) earnings, whether in the form of salaries, interest, dividends, commissions, royalties, payments for technical services, or otherwise, land

(c) amounts for amortization of loans, depreciation of direct investments and capital transfers, giving consideration to special needs for other transactions. If more than one rate of exchange is in force, the rate applicable to such withdrawals shall be a rate which is specifically approved by the International Monetary Fund for such transactions or, in the absence of a rate so approved, an effective rate which, inclusive of any taxes or surcharges on exchange transfers, is just and reasonable.

3. Either High Contracting Party applying exchange restrictions shall in general administer them in a manner not to influence disadvantageously the competitive position of the commerce, transport or investment of capital of the other High Contracting Party in comparison with the commerce, transport or investment of capital of any third country; and shall afford such other High Contracting Party adequate opportunity for consultation at any time regarding the application of the present Article.

Article VIII

1. Each High Contracting Party shall accord to products of the other High Contracting Party, from whatever place and by whatever type of carrier arriving, and to products destined for exportation to the territories of such other High Contracting Party, by whatever route and by whatever type of carrier, treatment no less favorable than that accorded like products of or destined for exportation to any third country, in all matters relating to:

(a) duties, other charges, regulations and formalities, on or in connection with importation and exportation; and

(b) internal taxation, sale, distribution, storage and use. The same rule shall apply with respect, to the international transfer of payments for imports and exports.

2. Neither High Contracting Party shall impose restrictions or prohibitions on the importation of any product of the other High Contracting Party or on the exportation of any product to the territories of the other High Contracting Party, unless the importation of the like product of, or the exportation of the like product to, all third countries is similarly restricted or prohibited.

3. If either High Contracting Party imposes quantitative restrictions on the importation or exportation of any product in which the other High Contracting Party has an important interest:

(a) It shall as a general rule give prior public notice of the total amount of the product, by quantity or value, that may be imported or exported during a specified period, and of any change in such amount or period; and

(b) If it makes allotments to any third country, it shall afford such other High Contracting Party a share proportionate to the amount of the product, by quantity or value, supplied by or to it during a previous representative period, due consideration being given to any special factors affecting the trade in such product.

4. Either High Contracting Party may impose prohibitions or restrictions on sanitary or other customary grounds of a noncommercial nature, or in the interest of preventing deceptive or unfair practices, provided such prohibitions or restrictions do not arbitrarily discriminate against the commerce of the other High Contracting Party.

5. Either High Contracting Party may adopt measures necessary to assure the utilization of accumulated inconvertible currencies or to deal with a stringency of foreign exchange. However, such measures shall deviate no more than necessary from a policy designed to promote the maximum development of nondiscriminatory multilateral trade and to expedite the attainment of a balance-of-payments position which will obviate the necessity of such measures.

6. Each High Contracting Party reserves the right to accord special advantages:

(a) to products of its national fisheries,

(b) to adjacent countries in order to facilitate frontier traffic, or

(c) by virtue of a customs union or free trade area of which either High Contracting Party, after consultation with the other High Contracting Party, may become a member. Each High Contracting Party, moreover, reserves rights and obligations it may have under the General Agreement on Tariffs and Trade, and special advantages it may accord pursuant thereto.

Article IX

1. In the administration of its customs regulations and procedures, each High Contracting Party shall:

(a) promptly publish all requirements of general application affecting importation and exportation;

(b) apply such requirements in a uniform, impartial and reasonable manner;

(c) refrain, as a general practice, from enforcing new or more burdensome requirements until after public notice thereof;

(d) provide an appeals procedure by which prompt and impartial review of administrative action in customs matters can be obtained; and

(e) not impose greater than nominal penalties for infractions resulting from clerical errors or from mistakes made in good faith.

2. Nationals and companies of either High Contracting Party shall be accorded treatment no less favorable than that accorded nationals and companies of the other High Contracting Party, or of any third country, with respect to all matters relating to importation and exportation.

3. Neither High Contracting Party shall impose any measure of a discriminatory nature that hinders or prevents the importer or exporter of products of either country from obtaining marine insurance on such products in companies of either High Contracting Party.

Article X

1. Between the territories of the two High Contracting Parties there shall be freedom of commerce and navigation.

2. Vessels under the flag of either High Contracting Party, and carrying the papers required by its law in proof of nationality, shall be deemed to be vessels of that High Contracting Party both on the high seas and within the ports, places and waters of the other High Contracting Party.

3. Vessels of either High Contracting Party shall have liberty, on equal terms with vessels of the other High Contracting Party and on equal terms with vessels of any third country, to come with their cargoes to all ports, places and waters of such other High Contracting Party open to foreign commerce and navigation.

Such vessels and cargoes shall in all respects be accorded national treatment and most-favored-nation treatment within the ports, places and waters of such other High Contracting Party; but each High Contracting Party may reserve exclusive rights and privileges to its own vessels with respect to the coasting trade, inland navigation and national fisheries.

4. Vessels of either High Contracting Party shall be accorded national treatment and most-favored-nation treatment by the other High Contracting Party with respect to the right to carry all products that may be carried by vessel to or from the territories of such other High Contracting Party; and such products shall be accorded treatment no less favorable than that accorded like products carried in vessels of such other High Contracting Party, with respect to: (a) duties and charges of all kinds, (b) the administration of the customs, and (c) bounties, drawbacks and other privileges of this nature.

5. Vessels of either High Contracting Party that are in distress shall be permitted to take refuge in the nearest port or haven of the other High Contracting Party, and shall receive friendly treatment and assistance.

6. The term “vessels”, as used herein, means all types of vessels, whether privately owned or operated, or publicly owned or operated; but this term does not, except with reference to paragraphs 2 and 5 of the present Article, include fishing vessels or vessels of war.

Article XI

1. Each High Contracting Party undertakes

(a) that enterprises owned or controlled by its Government, and that monopolies or agencies granted exclusive or special privileges within its territories, shall make their purchases and sales involving either imports or exports affecting the commerce of the other High Contracting Party solely in accordance with commercial considerations, including price, quality, availability, marketability, transportation and other conditions of purchase or sale; and

(b) that the nationals, companies and commerce of such other High Contracting Party shall be afforded adequate opportunity, in accordance with customary business practice, to compete for participation in such purchases and sales.

2. Each High Contracting Party shall accord to the nationals, companies and commerce of the other High Contracting Party fair and equitable treatment, as compared with that accorded to the nationals, companies and commerce of any third country, with respect to:

(a) the governmental purchase of supplies,

(b) the awarding of government contracts, and

(c) the sale of any service sold by the Government or by any monopoly or agency granted exclusive or special privileges.

3. The High Contracting Parties recognize that conditions of competitive equality should be maintained in situations in which publicly owned or controlled trading or manufacturing enterprises of either High Contracting Party engage in competition, within the territories thereof, with privately owned and controlled enterprises of nationals and companies of the other High Contracting Party. Accordingly, such private enterprises shall, in such situations, be entitled to the benefit of any special advantages of an economic nature accorded such public enterprises, whether in the nature of subsidies, tax exemptions or otherwise.

The foregoing rule shall not apply, however, to special advantages given in connection with:

(a) manufacturing goods for government use, or supplying goods and services to the Government for government use; or

(b) supplying at prices substantially below competitive prices, the needs of particular population groups for essential goods and services not otherwise practically obtainable by such groups.

4. No enterprise of either High Contracting Party, including corporations, associations, and government agencies and instrumentalities, which is publicly owned or controlled shall, if it engages in commercial, industrial, shipping or other business activities within the territories of the other High Contracting Party, claim or enjoy, either for itself or for its property, immunity therein from taxation, suit, execution of judgment or other liability to which privately owned and controlled enterprises are subject therein.

Article XII

Each High Contracting Party shall have the right to send to the other High Contracting Party consular representatives, who, having presented their credentials and having been recognized in a consular capacity, shall be provided, free of charge, with exequaturs or other authorization.

Article XIII

1. Consular representatives of each High Contracting Party shall be permitted to reside in the territory of the other High Contracting Party at the places where consular officers of any third country are permitted to reside and at other places by consent of the other High Contracting Party. Consular officers and employees shall enjoy the privileges and immunities accorded to officers and employees of their rank or status by general international usage and shall be permitted to exercise all functions which are in accordance with such usage; in any event they shall be treated, subject to reciprocity, in a manner no less favorable than similar officers and employees of any third country.

2. The consular offices shall not be entered by the police or other local authorities without the consent of the consular officer, except that in the case of fire or other disaster, or if the local authorities have probable cause to believe that a crime of violence has been or is about to be committed in the consular office, consent to entry shall be presumed. In no case shall they examine or seize the papers there deposited.

Article XIV

1. All furniture, equipment and supplies consigned to or withdrawn from customs custody for a consular or diplomatic office of either High Contracting Party for official use shall be exempt within the territories of the other High Contracting Party from all customs duties and internal revenue or other taxes imposed upon or by reason of importation.

2. The baggage, effects and other articles imported exclusively for the personal use of consular officers and diplomatic and consular employees and members of their families residing with them, who are nationals of the sending state and are not engaged in any private occupation for gain in the territories of the receiving state, shall be exempt from all customs duties and internal revenue or other taxes imposed upon or by reason of importation. Such exemptions shall be granted with respect to the property accompanying the person entitled thereto on first arrival and on subsequent arrivals, and to that consigned to such officers and employees during the period in which they continue in status.

3. It is understood, however, that:

(a) paragraph 2 of the present Article shall apply as to consular officers and diplomatic and consular employees only when their names have been communicated to the appropriate authorities of the receiving state and they have been duly recognized in their official capacity;

(b) in the case of consignments, either High Contracting Party may, as a condition to the granting of exemption, require that a notification of any such consignment be given, in a prescribed manner; and

(c) nothing herein authorizes importations specifically prohibited by law.

Article XV

1. The Government of either High Contracting Party may, in the territory of the other, acquire, own, lease for any period of time, or otherwise hold and occupy, such lands, buildings, and appurtenances as may be necessary and appropriate for governmental, other than military, purposes. If under the local law the permission of the local authorities must be obtained as a prerequisite to any such acquiring or holding, such permission shall be given on request.

2. Lands and buildings situated in the territories of either High Contracting Party, of which the other High Contracting Party is the legal or equitable owner and which are used exclusively for governmental purposes by that owner, shall be exempt from taxation of every kind, national, state, provincial and municipal, other than assessments levied for services or local public improvements by which the premises are benefited.

Article XVI

1. No tax or other similar charge of any kind, whether of a national, state, provincial, or municipal nature, shall be levied or collected within the territories of the receiving state in respect of the official emoluments, salaries, wages or allowances received

(a) by a consular officer of the sending state as compensation for his consular services, or

(b) by a consular employee thereof as compensation for his services at a consulate. Likewise, consular officers and employees, who are permanent employees of the sending state and are not engaged in private occupation for gain within the territories of the receiving state, shall be exempt from all taxes or other similar charges, the legal incidence of which would otherwise fall upon such officers or employees.

2. The preceding paragraph shall not apply in respect of taxes and other similar charges upon:

(a) the ownership or occupation of immovable property situated within the territories of the receiving state;

(b) income derived from sources within such territories (except the compensation mentioned in the preceding paragraph); or

(c) the passing of property at death.

3. The provisions of the present Article shall have like application to diplomatic officers and employees, who shall in addition be accorded all exemptions allowed them under general international usage.

Article XVII

The exemptions provided for in Articles XIV and XVI shall not apply to nationals of the sending state who are also nationals of the receiving state, or to any other person who is a national of the receiving state, nor to persons having immigrant status who have been lawfully admitted for permanent residence in the receiving state.

Article XVIII

Consular officers and employees are not subject to local jurisdiction for acts done in their official character and within the scope of their authority. No consular officer or employee shall be required to present his official files before the courts or to make declaration with respect to their contents.

Article XIX

A consular officer shall have the right within his district to:

(a) interview, communicate with, assist and advise any national of the sending state;

(b) inquire into any incidents which have occurred affecting the interests of any such national; and

(c) assist any such national in proceedings before or in relations with the authorities of the receiving state and, where necessary, arrange for legal assistance to which he is entitled. A national of the sending state shall have the right at all times to communicate with a consular officer of his country and, unless subject to lawful detention, to visit him at the consular office.

Article XX

1. The present Treaty shall not preclude the application of measures:

(a) regulating the importation or exportation of gold or silver;

(b) relating to fissionable materials, the radio-active by-products thereof, or the sources thereof;

(c) regulating the production of or traffic in arms, ammunition and implements of war, or traffic in other materials carried on directly or indirectly for the purpose of supplying a military establishment; and

(d) necessary to fulfill the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests.

2. The present Treaty does not accord any rights to engage in political activities.

3. The stipulations of the present Treaty shall not extend to advantages accorded by the United States of America or its Territories and possessions, irrespective of any future change in their political status, to one another, to the Republic of Cuba, to the Republic of the Philippines, to the Trust Territory of the Pacific Islands or to the Panama Canal Zone.

4. The provisions of Article II, Paragraph 1, shall be construed as extending to nationals of either High Contracting Party seeking to enter the territories of the other High Contracting Party solely for the purpose of developing and directing the operations of an enterprise in the territories of such other High Contracting Party in which their employer has invested or is actively in the process of investing a substantial amount of capital: provided that such employer is a national or company of the same nationality as the applicant and that the applicant is employed by such national or company in a responsible capacity.

Article XXI

1. Each High Contracting Party shall accord sympathetic consideration to, and shall afford adequate opportunity for consultation regarding, such representations as the other High Contracting Party may make with respect to any matter affecting the operation of the present Treaty.

2. Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means.

Article XXII

1. The present Treaty shall replace the following agreements between the United States of America and Iran:

(a) the provisional agreement relating to commercial and other relations, concluded at Tehran May 14, 1928, and

(b) the provisional agreement relating to personal status and family law, concluded at Tehran July 11, 1928.

2. Nothing in the present Treaty shall be construed to supersede any provision of the trade agreement and the supplementary exchange of notes between the United States of America and Iran, concluded at Washington April 8, 1943.

Article XXIII

1. The present Treaty shall be ratified, and the ratifications thereof shall be exchanged at Tehran as soon as possible.

2. The present Treaty shall enter into force one month after the day of exchange of ratifications. It shall remain in force for ten years and shall continue in force thereafter until terminated as provided herein.

3. Either High Contracting Party may, by giving one year’s written notice to the other High Contracting Party, terminate the present Treaty at the end of the initial ten-year period or at any time thereafter.

IN WITNESS WHEREOF the respective Plenipotentiaries have signed the present Treaty and have affixed hereunto their seals.

DONE in duplicate, in the English and Persian languages, both equally authentic, at Tehran this fifteenth day of August one thousand nine hundred fifty-five, corresponding with the twenty-third day of Mordad one thousand three hundred and thirty-four.

SELDEN CHAPIN MOSTAFA SAMIY

[SEAL] [SEAL]

[SEAL] [SEAL]

WHEREAS the Senate of the United States of America by their resolution of July 11, 1956, two-thirds of the Senators present concurring therein, did advise and consent to the ratification of the said treaty;

WHEREAS the said treaty was ratified by the President of the United States of America on September 14, 1956, in pursuance of the aforesaid advice and consent of the Senate, and has been duly ratified on the part of Iran;

WHEREAS the respective instruments of ratification of the said treaty were duly exchanged at Tehran on May 16, 1957;

AND WHEREAS it is provided in Article XXIII of the said treaty that the treaty shall enter into force one month after the day of exchange of ratifications;

NOW, THEREFORE, be it known that I, Dwight D. Eisenhower, President of the United States of America, do hereby proclaim and make public the said treaty to the end that the same and every article and clause thereof may be observed and fulfilled in good faith on and after June 16, 1957, one month after the day of exchange of ratifications, by the United States of America and by the citizens of the United States of America and all other persons subject to the jurisdiction thereof.

IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the Seal of the United States of America to be affixed.

DONE at the city of Washington this twenty-seventh day of June in the year of our Lord one thousand nine hundred [SEAL] -fifty-seven and of the Independence of the United States of America the one hundred eighty-first.

DWIGHT D EISENHOWER

By the President:

JOHN FOSTER DULLES

Secretary of State

THE COMMENTARY GAZETTE®

Thank you for taking the time to read this

SOURCE: United States Department of State

CONTRIBUTOR: Eddy Toorall

Roe vs Wade; the decision

The debate continues 55 years on, I here present you with the Supreme Court judgement for you to review.

Case Name: 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
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.”
I
THE TEXAS STATUTES THAT CONCERN US HERE ARE ARTS. 1191-1194 AND 1196 OF THE STATE’S PENAL CODE. /1/
THESE MAKE IT A CRIME TO “PROCURE AN ABORTION,” AS THEREIN 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. /2/
TEXAS FIRST ENACTED A CRIMINAL ABORTION STATUTE IN 1854. TEXAS LAWS 1854, C. 49, SEC. 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.” /3/
II
JANE ROE, /4/
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 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, /5/
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, 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 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).
THE PLAINTIFFS ROE AND DOE AND THE INTERVENOR HALLFORD, PURSUANT TO 28 U.S.C. 1253, HAVE APPEALED TO THIS COURT FROM THAT PART OF THE DISTRICT COURT’S JUDGMENT DENYING THE INJUNCTION. THE DEFENDANT DISTRICT ATTORNEY HAD 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 (1971).
III
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 (1970), AND GUNN V. UNIVERSITY COMMITTEE, 399 U.S. 383 (1970), ARE TO THE EFFECT THAT SEC. 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 PROPERLY HERE, AS THIS ONE IS, ON APPEAL UNDER SEC. 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 (1970); FLORIDA LIME GROWERS V. JACOBSEN, 362 U.S. 73, 80-81 (1960). IT WOULD BE DESTRUCTIVE OF TIME AND ENERGY FOR ALL CONCERNED WERE WE TO RULE OTHERWISE. CF. DOE V. BOLTON, POST, P.179.
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 (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 (1968), AND SIERRA CLUB V. MORTON, 405 U.S. 727, 732 (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?
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 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, 838-839 (CA6 1971); POE V. MENGHINI, 339 F.SUPP. 986, 990-991 (KAN. 1972). SEE TRUAX V. RAICH, 239 U.S. 33 (1915). INDEED, WE DO NOT READ THE APPELLEE’S BRIEF AS REALLY ASSERTING ANYTHING TO THE CONTRARY. THE “LOGICAL NEXUS BETWEEN THE STATUS ASSERTED ANT THE CLAIM SOUGHT TO BE ADJUDICATED,” FLAST V. COHEN, 392 U.S.,AT 102, AND THE NECESSARY DEGREE OF CONTENTIOUSNESS, GOLDEN V. ZWICKLER, 394 U.S. 103 (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, /6/ 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.
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. UNITED STATES V. MUNSINGWEAR, INC., 340 U.S. 36 (1950); GOLDEN V. ZWICKLER, SUPRA; SEC V. MEDICAL COMMITTEE FOR HUMAN RIGHTS, 404 U.S. 403 (1972).
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 (1911). SEE MOORE V. OGILVIE, 394 U.S. 814, 816 (1969); CARROLL V. PRINCESS ANNE, 393 U.S. 175, 178-179 (1968); UNITED STATES V. W. T.GRANT CO., 345 U.S. 629, 632-633 (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. B. DR. HALLFORD. THE DOCTOR’S POSITION IS DIFFERENT. HE ENTERED ROE’S LITIGATION AS A PLAINTIFF-INTERVENOR, ALLEGING IN HIS COMPLAINT THAT HE: “(IN 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. 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.
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 PROSECUTION. 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 HARRASSMENT 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 (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 YOUNGER V. HARRIS, 401 U.S. 37 (1971); BOYLE V. LANDRY, 401 U.S. 77 (1971); PEREZ V. LEDESMA, 401 U.S. 82 (1971); AND BYRNE V. KARALEXIS, 401 U.S. 216 (1971). SEE ALSO DOMBROWSKI V. PFISTER, 380 U.S. 479 (1965). WE NOTE, IN PASSING, THAT YOUNGER AND ITS COMPANION CASES WERE DECIDED AFTER THE THREE-JUDGE DISTRICT COURT DECISION IN THIS CASE.
DR. HALLFORD’S COMPLAINT IN INTERVENTION, THEREFORE, IS TO BE DISMISSED. /7/
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.
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 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 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; GOLDEN V. ZWICKLER, 394 U.S.,AT 109-110; 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 (1971); DATA PROCESSING SERVICE V. CAMP, 397 U.S. 150 (1970); AND EPPERSON V. ARKANSAS, 393 U.S. 97 (1968). SEE ALSO TRUAX V. RAICH, 239 U.S. 33 (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 (1965); EISENSTADT V. BAIRD, 405 U.S. 438 (1972); ID., AT 460 (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 (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.
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. /8/ WE ARE ALSO TOLD, HOWEVER, THAT ABORTION WAS PRACTICED IN GREEK TIMES AS WELL AS IN THE ROMAN ERA, /9/ AND THAT “IT WAS RESORTED TO WITHOUT SCRUPLE.” /10/ 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. /11/ 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. /12/
2. THE HIPPOCRATIC OATH. WHAT THEN OF THE FAMOUS OATH THAT HAS STOOD SO LONG AS THE ETHICAL GUIDE OF THE MEDICAL PROFESSION AND THAT BEARS THE NAME OF THE GREAT GREEK (460 (?)-377 (?) B.C.), WHO HAD BEEN DESCRIBED 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? /13/ 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,” /14/ 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.” /15/
ALTHOUGH THE OATH IS NOT MENTIONED IN ANY OF THE PRINCIPAL BRIEFS IN THIS CASE OR IN DOE V. BOLTON, POST, P. 179, 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: /16/ 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 OFTHE OATH, THEREFORE, “ECHOES PYTHAGOREAN DOCTRINES,” AND “(IN NO OTHER STRATUM OF GREEK OPINION WERE SUCH VIEWS HELD OR PROPOSED IN THE SAME SPIRIT OF UNCOMPROMISING AUSTERITY.” /17/
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.” /18/ 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 PYTHAGOREAN 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 OFAN ABSOLUTE STANDARD OF MEDICAL CONDUCT.” /19/
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 /20/ — WAS NOT AN INDICTABLE OFFENSE. /21/ THE ABSENCE OF A 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 CONSENSUS EVOLVED IN EARLY ENGLISH LAW THAT THESE EVENTS OCCURRED AT SOME POINT BETWEEN CONCEPTION AND LIVE BIRTH. /22
THIS WAS “MEDIATE ANIMATION.” ALTHOUGH 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. 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, THOUGH IT HOMICIDE. /23/ BUT THE LATER AND PREDOMINANT VIEW, FOLLOWING THE GREAT COMMON-LAW SCHOLARS, HAS BEEN THAT IT WAS, AT MOST, A LESSER OFFENSE. IN A FREQUENTLY CITED PASSAGE, COKE TOOK THE POSITION THAT ABORTION OF A WOMAN “QUICK WITH CHILDE” IS “A GREAT MISPRISION, AND NO MURDER.” /24/ BLACKSTONE FOLLOWED, SAYING THAT WHILE ABORTION AFTER QUICKENING HAD ONCE BEEN CONSIDERED MANSLAUGHTER (THOUGH NOT MURDER), “MODERN LAW” TOOK A LESS SEVERE VIEW. /25/
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. /26/ 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, /27/ OTHERS FOLLOWED COKE IN STATING THAT ABORTION OF A QUICK FETUS WAS A “MISPRISION,” A TERM THEY TRANSLATED TO MEAN “MISDEMEANOR.” /28/ 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.
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, SEC. 1, A CAPITAL CRIME, BUT IN SEC. 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, SEC. 13. IT DISAPPEARED, HOWEVER, TOGETHER WITH THE DEATH PENALTY, IN 1837, 7 WILL. 4 & 1 VICT.,C. 85, SEC. 6, AND DID NOT REAPPEAR IN THE OFFENSES AGAINST THE PERSON ACT OF 1861, 24 & 25 VICT.,C. 100, SEC. 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 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 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 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.” /29/ THE DEATH PENALTY WAS NOT IMPOSED.
ABORTION BEFORE QUICKENING WAS MADE A CRIME IN THAT STATE ONLY IN 1860. /30/ IN 1828, NEW YORK ENACTED LEGISLATION /31/ THAT, IN TWO RESPECTS, WAS TO SERVE AS A MODEL FOR EARLY ANTI-ABORTION STATUTES. FIRST, WHILE BARRING DESTRUCTION OF AN UNQUICKENED 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, /32/ ONLY EIGHT AMERICAN STATES HAD STATUTES DEALING WITH ABORTION. /33/
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 SEVERLY 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.
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. /34/ THE EXCEPTIONS, ALABAMA AND THE DISTRICT OF COLUMBIA, PERMITTED ABORTION TO PRESERVE THE MOTHER’S HEALTH. /35/
THREE STATES PERMITTED ABORTIONS THAT WERE NOT “UNLAWFULLY” PERFORMED OR THAT WERE NOT “WITHOUT LAWFUL JUSTIFICATION,” LEAVING INTERPRETATION OF THOSE STANDARDS TO THE COURTS. /36/ IN 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, SEC. 230.3, /37/ SET FORTH AS APPENDIX B TO THE OPINION IN DOE V. BOLTON, POST, P. 205.
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, AND VERY POSSIBLY WITHOUT SUCH A LIMITATION, THE OPPORTUNITY 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 THE 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, 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 PATIENT,” TWO OTHER PHYSICIANS “CHOSEN BECAUSE OF THEIR RECOGNIZED PROFESSIONAL COMPETENCE HAVE EXAMINED THE PATIENT AND HAVE CONCURRED IN WRITING,” 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. /38/ PROCEEDINGS OF THE AMA HOUSE OF DELEGATES 220 (JUNE 1970). THE AMA JUDICIAL COUNCIL RENDERED A COMPLEMENTARY OPINION. /39/
7. THE POSITION OF THE AMERICAN PUBLIC HEALTH ASSOCIATION. IN OCTOBER 1970, THE EXECUTIVE BOARD OF THE APHA ADOPTED STANDARDS FOR ABORTION SERVICES. THESE WERE FIVE IN NUMBER.
“A. RAPID AND SIMPLE ABORTION REFERRAL MUST BE READILY AVAILABLE THROUGH STATE AND LOCAL PUBLIC HEALTH DEPARTMENTS, MEDICAL SOCIETIES, OR OTHER NONPROFIT ORGANIZATIONS.
“B. AN IMPORTANT FUNCTION OF COUNSELING SHOULD BE TO SIMPLIFY AND EXPEDITE THE PROVISION OF ABORTION SERVICES; IT SHOULD NOT DELAY THE OBTAINING OF THESE SERVICES.
“C. PSYCHIATRIC CONSULTATION SHOULD NOT BE MANDATORY. AS IN THE CASE OF OTHER SPECIALIZED MEDICAL SERVICES, PSYCHIATRIC CONSULTATION SHOULD BE SOUGHT FOR DEFINITE INDICATIONS AND NOT ON A ROUTINE BASIS.
“D. A WIDE RANGE OF INDIVIDUALS FROM APPROPRIATELY TRAINED, SYMPATHETIC VOLUNTEERS TO HIGHLY SKILLED PHYSICIANS MAY QUALIFY AS ABORTION COUNSELORS.
“E. CONTRACEPTION AND/OR STERILIZATION SHOULD BE DISCUSSED WITH EACH ABORTION PATIENT.” RECOMMENDED STANDARDS FOR ABORTION SERVICES, 61 AM.J.PUB.HEALTH 396 (1971).
AMONG FACTORS PERTINENT TO LIFE AND HEALTH RISKS ASSOCIATED WITH ABORTION WERE THREE THAT “ARE RECOGNIZED AS IMPORTANT”: 10
“A. THE SKILL OF THE PHYSICIAN,
“B. THE ENVIRONMENT IN WHICH THE ABORTION IS PERFORMED, AND ABOVE ALL
“C. THE DURATION OF PREGNANCY, AS DETERMINED BY UTERINE SIZE AND CONFIRMED BY MENSTRUAL HISTORY.” ID., AT 397.
IT WAS SAID THAT “A WELL-EQUIPPED HOSPITAL” OFFERS MORE PROTECTION “TO COPE WITH UNFORESEEN DIFFICULTIES THAN AN OFFICE OR CLINIC WITHOUT SUCH RESOURCES . . . . THE FACTOR OF GESTATIONAL AGE IS OF OVERRIDING IMPORTANCE.” THUS, IT WAS RECOMMENDED THAT ABORTIONS IN THE SECOND TRIMESTER AND EARLY ABORTIONS IN THE PRESENCE OF EXISTING MEDICAL COMPLICATIONS BE PERFORMED IN HOSPITALS AS INPATIENT PROCEDURES. FOR PREGNANCIES IN THE FIRST TRIMESTER, ABORTION IN THE HOSPITAL WITH OR WITHOUT OVERNIGHT STAY “IS PROBABLY THE SAFEST PRACTICE.” AN ABORTION IN AN EXTRAMURAL FACILITY, HOWEVER, IS AN ACCEPTABLE ALTERNATIVE “PROVIDED ARRANGEMENTS EXIST IN ADVANCE TO ADMIT PATIENTS PROMPTLY IF UNFORESEEN COMPLICATIONS DEVELOP.” STANDARDS FOR AN ABORTION FACILITY WERE LISTED. IT WAS SAID THAT AT PRESENT ABORTIONS SHOULD BE PERFORMED BY PHYSICIANS OR OSTEOPATHS WHO ARE LICENSED TO PRACTICE AND WHO HAVE “ADEQUATE TRAINING.” ID., AT 398.
8. THE POSITION OF THE AMERICAN BAR ASSOCIATION. AT ITS MEETING IN FEBRUARY 1972 THE ABA HOUSE OF DELEGATES APPROVED, WITH 17 OPPOSING VOTES, THE UNIFORM ABORTION ACT THAT HAD BEEN DRAFTED AND APPROVED THE PRECEDING AUGUST BY THE CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS. 58 A.B.A.J. 380 (1972). WE SET FORTH THE ACT IN FULL IN THE MARGIN. /40/ THE CONFERENCE HAS APPENDED AN ENLIGHTENING PREFATORY NOTE. /41/
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.
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.
XI
TO SUMMARIZE AND TO REPEAT:
1. A STATE CRIMINAL ABORTION STATUTE OF THE CURRENT TEXAS TYPE, THAT EXCEPTS FROM CRIMINALITY ONLY A LIFESAVING PROCEDURE ON BEHALF OF THE MOTHER, WITHOUT REGARD TO PREGNANCY STAGE AND WITHOUT RECOGNITION OF THE OTHER INTERESTS INVOLVED, IS VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.
(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.
(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.
(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 IT IS NECESSARY, IN APPROPRIATE MEDICAL JUDGMENT, FOR THE PRESERVATION OF THE LIFE OR HEALTH OF THE MOTHER.
2. THE STATE MAY DEFINE THE TERM “PHYSICIAN,” AS IT HAS BEEN EMPLOYED IN THE PRECEDING PARAGRAPHS OF THIS PART XI OF THIS OPINION, 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.
IN DOE V. BOLTON, POST, P. 179, PROCEDURAL REQUIREMENTS CONTAINED IN ONE OF THE MODERN ABORTION STATUTES ARE CONSIDERED. THAT OPINION AND THIS ONE, OF COURSE, ARE TO BE READ TOGETHER. /67/
THIS HOLDING, WE FEEL, IS CONSISTENT WITH THE RELATIVE WEIGHTS OF THE RESPECTIVE INTERESTS INVOLVED, WITH THE LESSONS AND EXAMPLES OF MEDICAL AND LEGAL HISTORY, WITH THE LENITY OF THE COMMON LAW, AND WITH THE DEMANDS OF THE PROFOUND PROBLEMS OF THE PRESENT DAY.
THE DECISION LEAVES THE STATE FREE TO PLACE INCREASING RESTRICTIONS ON ABORTION AS THE PERIOD OF PREGNANCY LENGTHENS, SO LONG AS THOSE RESTRICTIONS ARE TAILORED TO THE RECOGNIZED STATE INTERESTS. THE DECISION VINDICATES THE RIGHT OF THE PHYSICIAN TO ADMINISTER MEDICAL TREATMENT ACCORDING TO HIS PROFESSIONAL JUDGMENT UP TO THE POINTS WHERE IMPORTANT STATE INTERESTS PROVIDE COMPELLING JUSTIFICATIONS FOR INTERVENTION. UP TO THOSE POINTS, THE ABORTION DECISION IN ALL ITS ASPECTS IS INHERENTLY, AND PRIMARILY, A MEDICAL DECISION, AND BASIC RESPONSIBILITY FOR IT MUST REST WITH THE PHYSICIAN. IF AN INDIVIDUAL PRACTITIONER ABUSES THE PRIVILEGE OF EXERCISING PROPER MEDICAL JUDGMENT, THE USUAL REMEDIES, JUDICIAL AND INTRA-PROFESSIONAL, ARE AVAILABLE.
XII
OUR CONCLUSION THAT ART. 1196 IS UNCONSTITUTIONAL MEANS, OF COURSE, THAT THE TEXAS ABORTION STATUTES, AS A UNIT, MUST FALL. THE EXCEPTION OF ART. 1196 CANNOT BE STRUCK DOWN SEPARATELY, FOR THEN THE STATE WOULD BE LEFT WITH A STATUTE PROSCRIBING ALL ABORTION PROCEDURES NO MATTER HOW MEDICALLY URGENT THE CASE.
ALTHOUGH THE DISTRICT COURT GRANTED APPELLANT ROE DECLARATORY RELIEF, IT STOPPED SHORT OF ISSUING AN INJUNCTION AGAINST ENFORCEMENT OF THE TEXAS STATUTES. THE COURT HAS RECOGNIZED THAT DIFFERENT CONSIDERATIONS ENTER INTO A FEDERAL COURT’S DECISION AS TO RELIEF, ON THE ONE HAND, AND INJUNCTIVE RELIEF, ON THE OTHER. ZWICKLER V. KOOTA, 389 U.S. 241, 252-255 (1967); DOMBROWSKI V. PFISTER, 380 U.S. 479 (1965).
WE ARE NOT DEALING WITH A STATUTE THAT, ON ITS FACE, APPEARS TO ABRIDGE FREE EXPRESSION, AN AREA OF PARTICULAR CONCERN UNDER DOMBROWSKI AND REFINED IN YOUNGER V. HARRIS, 401 U.S.,AT 50.
WE FIND IT UNNECESSARY TO DECIDE WHETHER THE DISTRICT COURT ERRED IN WITHHOLDING INJUNCTIVE RELIEF, FOR WE ASSUME THE TEXAS PROSECUTORIAL AUTHORITIES WILL GIVE FULL CREDENCE TO THIS DECISION THAT THE PRESENT CRIMINAL ABORTION STATUTES OF THAT STATE ARE UNCONSTITUTIONAL.
THE JUDGMENT OF THE DISTRICT COURT AS TO INTERVENOR HALLFORD IS REVERSED, AND DR. HALLFORD’S COMPLAINT IN INTERVENTION IS DISMISSED.
IN ALL OTHER RESPECTS, THE JUDGMENT OF THE DISTRICT COURT IS AFFIRMED.
COSTS ARE ALLOWED TO THE APPELLEE.
IT IS SO ORDERED.
(FOR CONCURRING OPINION OF MR. CHIEF JUSTICE BURGER, SEE POST, P.207.)
(FOR CONCURRING OPINION OF MR. JUSTICE DOUGLAS, SEE POST, P. 209.)
(FOR DISSENTING OPINION OF MR. JUSTICE WHITE, SEE POST, P. 221.)
/0/ BRIEFS OF AMICI CURIAE WERE FILED BY GARY K. NELSON, ATTORNEY GENERAL OF ARIZONA, ROBERT K. KILLIAN, ATTORNEY GENERAL OF CONNECTICUT, ED W. HANCOCK, ATTORNEY GENERAL OF KENTUCKY, CLARENCE A. H. MEYER, ATTORNEY GENERAL OF NEBRASKA, AND VERNON B. ROMNEY, ATTORNEY GENERAL OF UTAH; BY JOSEPH P. WITHERSPOON, JR., FOR THE ASSOCIATION OF TEXAS DIOCESAN ATTORNEYS; BY CHARLES E. RICE FOR AMERICANS UNITED FOR LIFE; BY EUGENE J. MCMAHON FOR WOMEN FOR THE UNBORN ET AL.; BY CAROL RYAN FOR THE AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS ET AL.; BY DENNIS J. HORAN, JEROME A. FRAZEL, JR., THOMAS M. CRISHAM, AND DOLORES V. HORAN FOR CERTAIN PHYSICIANS, PROFESSORS AND FELLOWS OF THE AMERICAN COLLEGE OF OBSTETRICS AND GYNECOLOGY; BY HARRIET F. PILPEL, NANCY F. WECHSLER, AND FREDERIC S. NATHAN FOR PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., ET AL.; BY ALAN F. CHARLES FOR THE NATIONAL LEGAL PROGRAM ON HEALTH PROBLEMS OF THE POOR ET AL.; BY MARTTIE L. THOMPSON FOR STATE COMMUNITIES AID ASSN.; BY ALFRED L. SCANLAN, MARTIN J. FLYNN, AND ROBERT M. BYRN FOR THE NATIONAL RIGHT TO LIFE COMMITTEE; BY HELEN L. BUTTENWIESER FOR THE AMERICAN ETHICAL UNION ET AL.; BY NORMA G. ZARKY FOR THE AMERICAN ASSOCIATION OF UNIVERSITY WOMEN ET AL.; BY NANCY STEARNS FOR NEW WOMEN LAWYERS ET AL.; BY THE CALIFORNIA COMMITTEE TO LEGALIZE ABORTION ET AL.; AND BY ROBERT E. DUNNE FOR ROBERT L. SASSONE.
/1/ “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 BY MEDICAL ADVICE FOR THE PURPOSE OF SAVING THE LIFE OF THE MOTHER.”
“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.”
/2/ ARIZ. REV. STAT. ANN. SEC. 13-211 (1956); CONN. PUB. ACT NO. 1 (MAY 1972 SPECIAL SESSION) (IN 4 CONN.LEG.SERV. 677 (1972)), AND CONN. GEN. STAT. REV. SECS. 53-29, 53-30 (1968) (OR UNBORN CHILD); IDAHO CODE SEC. 18-601 (1948); ILL. REV. STAT., C. 38, SEC. 23-1 (1971); IND. CODE SEC. 35-1-58-1 (1971); IOWA CODE SEC. 701.1 (1971); KY. REV. STAT. SEC. 436.020 (1962); LA. REV. STAT. SEC. 37:1285(6) (1964) (LOSS OF MEDICAL LICENSE) (BUT SEE SEC. 14:87 (SUPP. 1972) CONTAINING NO EXCEPTION FOR THE LIFE OF THE MOTHER UNDER THE CRIMINAL STATUTE); ME. REV. STAT. ANN., TIT. 17, SEC. 51 (1964); MASS. GEN. LAWS ANN., C. 272, SEC. 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 SEC. 750.14 (1948); MINN. STAT. SEC. 617.18 (1971); MO. REV. STAT. SEC. 559.100 (1969); MONT. REV. CODES ANN. SEC. 94-401 (1969); NEB. REV. STAT. ANN. SEC. 585:13 (1955); N. J. STAT. ANN. SEC. 2A:87-1 (1969) (“WITHOUT LAWFUL JUSTIFICATION”); N.D. CENT. CODE SECS. 12-25-01, 12-25-02 (1960); OHIO REV. CODE ANN. SEC. 2901.16 (1953); OKLA. STAT. ANN., TIT. 21, SEC. 861 (1972-1973 SUPP.); PA. STAT. ANN., TIT. 18, SECS. 4718, 4719 (1963) (“UNLAWFUL”); R.I. GEN. LAWS ANN. SEC. 11-3-1 (1969); S.D. COMP. LAWS ANN. SEC. 22-17 1 (1967); TENN. CODE ANN. SECS. 39-301, 39-302 (1956); UTAH CODE ANN. SECS. 76-2-1, 76-2-2 (1953); VT. STAT. ANN., TIT. 13, SEC. 101 (1958); W.VA. CODE ANN. SEC. 61-2-8 (1966); WIS. STAT. SEC. 940.04 (1969); WYO. STAT. ANN. SECS. 6-77, 6-78, (1957).
/3/ 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 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 (CT. CRIM. APP. TEX. 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 ART. 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. 1196 “IS MORE DEFINITE THAN THE DISTRICT OF COLUMBIA STATUTE UPHELD IN (UNITED STATES V.) VUITCH” (402 U.S. 62); AND THAT THE TEXAS STATUTE “IS NOT VAGUE AND INDEFINITE OR OVERBROAD.” A PHYSICIAN’S ABORTION CONVICTION WAS AFFIRMED.
IN THOMPSON, 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 (1971).
/4/ THE NAME IS A PSEUDONYM.
/5/ THESE NAMES ARE PSEUDONYMS.
/6/ 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.
/7/ 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/ A. CASTIGLIONI, A HISTORY OF MEDICINE 84 (2D ED. 1947), E. KRUMBHAAR, TRANSLATOR AND EDITOR (HEREINAFTER CASTIGLIONI).
/9/ 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 (1962) (HEREINAFTER QUAY). /10/ L. EDELSTEIN, THE HIPPOCRATIC OATH 10 (1943) (HEREINAFTER EDELSTEIN). BUT SEE CASTIGLIONI 227.
/11/ EDELSTEIN 12; RICCI 113-114, 118-119; NOONAN 5.
/12/ EDELSTEIN 13-14.
/13/ CASTIGLIONI 148.
/14/ ID., AT 154.
/15/ EDELSTEIN 3.
/16/ ID., AT 12, 15-18. /17/ ID., AT 18; LADER 76.
/18/ EDELSTEIN 63.
/19/ ID., AT 64.
/20/ DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1261 (24TH ED. 1965).
/21/ E. COKE, INSTITUTES III 50; 1 W. HAWKINS, PLEAS OF THE CROWN, C. 31, SEC. 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.
/22/ 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, HIS. 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. FRIEDBURG, 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).
/23/ 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).
/24/ E. COKE, INSTITUTES III 50.
/25/ 1 W.BLACKSTONE, COMMENTARIES 129-130.
/26/ 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, SEC. 1 REFERRED TO IN THE TEXT, INFRA, AT 136, STATES THAT “NO ADEQUATE MEANS HAVE BEEN HITHERTO PROVIDED FOR THE PREVENTION AND PUNISHMENT OF SUCH OFFENSES.”
/27/ 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 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).
/28/ 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).
/29/ CONN. STAT., TIT. 20, SEC. 14 (1821).
/30/ CONN. PUB. ACTS, C. 71, SEC. 1 (1860).
/31/ N.Y. REV. STAT., PT. 4, C. 1, TIT. 2, ART. 1, SEC. 9, P. 661, AND TIT. 6, SEC. 21, P. 694 (1829).
/32/ ACT OF JAN. 20, 1840, SEC. 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).
/33/ THE EARLY STATUTES ARE DISCUSSED IN QUAY 435-438. SEE ALSO LADER 85-88; STERN 85-86; AND MEANS II 375-376.
/34/ 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.
/35/ ALA. CODE, TIT. 14, SEC. 9 (1958); D.C. CODE ANN. SEC. 22-201(1967).
/36/ MASS. GEN. LAWS ANN., C. 272, SEC. 19 (1970); N.J. STAT. ANN. SEC. 2A:87-1 (1969); PA. STAT. ANN., TIT. 18, SECS. 4718, 4719 (1963).
/37/ FOURTEEN STATES HAVE ADOPTED SOME FORM OF THE ALI STATUTE. SEE ARK. STAT. ANN. SECS. 41-303 TO 41-310 (SUPP. 1971); CALIF. HEALTH & SAFETY CODE SECS. 25950-25955.5 (SUPP. 1972); COLO. REV. STAT. ANN. SECS. 40-2-50 TO 40-2-53 (CUM. SUPP. 1967); DEL. CODE ANN., TIT. 24, SECS. 1790-1793 (SUPP. 1972); FLORIDA LAW OF APR. 13, 1972, C. 72-196, 1972 FLA. SESS. LAW SERV., PP. 380-382; GA. CODE SECS. 26-1201 TO 26 1203 (1972); KAN. STAT. ANN. SEC. 21-3407 (SUPP. 1971); MD. ANN. CODE, ART. 43, SECS. 137-139 (1971); MISS. CODE ANN. SEC. 2223 (SUPP. 1972); N.M. STAT. ANN. SECS. 40A-5-1 TO 40A-5-3 (1972); N.C. GEN. STAT.SES. 14-45.1 (SUPP. 1971); ORE. REV. STAT. SECS. 435.405 TO 435.495 (1971); S.C. CODE ANN. SECS. 16-82 TO 16-89 (1962 AND SUPP. 1971); VA. CODE ANN. SECS. 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. SEC. 11.15.060 (1970); HAW. REV. STAT. SEC. 453-16 (SUPP. 1971); N.Y. PENAL CODE SEC. 125.05, SUBD. 3 SUBD. 3 (SUPP. 1972-1973); WASH. REV. CODE SECS. 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.
/38/ “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 FURTHER “RESOLVED, THAT NO PHYSICIAN OR OTHER PROFESSIONAL PERSONNEL SHALL BE COMPELLED TO PERFORM ANY ACT WHICH VIOLATES HIS GOOD MEDICAL JUDGMENT. NEITHER PHYSICIAN, HOSPITAL, NOR HOSPITAL PERSONNEL SHALL BE REQUIRED TO PERFORM ANY ACT VIOLATIVE OF PERSONALLY-HELD MORAL PRINCIPLES. IN THESE CIRCUMSTANCES GOOD MEDICAL PRACTICE REQUIRES ONLY THAT THE PHYSICIAN OR OTHER PROFESSIONAL PERSONNEL WITHDRAW FROM THE CASE SO LONG AS THE WITHDRAWAL IS CONSISTENT WITH GOOD MEDICAL PRACTICE.” PROCEEDINGS OF THE AMA HOUSE OF DELEGATES 220 (JUNE 1970).
/39/ “THE PRINCIPLES OF MEDICAL ETHICS OF THE AMA DO NOT PROHIBIT A PHYSICIAN FROM PERFORMING AN ABORTION THAT IS PERFORMED IN ACCORDANCE WITH GOOD MEDICAL PRACTICE AND UNDER CIRCUMSTANCES THAT DO NOT VIOLATE THE LAWS OF THE COMMUNITY IN WHICH HE PRACTICES.
“IN THE MATTER OF ABORTIONS, AS OF ANY OTHER MEDICAL PROCEDURE, THE JUDICIAL COUNCIL BECOMES INVOLVED WHENEVER THERE IS ALLEGED VIOLATION OF THE PRINCIPLES OF MEDICAL ETHICS AS ESTABLISHED BY THE HOUSE OF DELEGATES.”
/40/ “UNIFORM ABORTION ACT “SECTION 1. (ABORTION DEFINED; WHEN AUTHORIZED.)
(A) ‘ABORTION’ MEANS THE TERMINATION OF HUMAN PREGNANCY WITH AN INTENTION OTHER THAN TO PRODUCE A LIVE BIRTH OR TO REMOVE A DEAD FETUS.
“(B) AN ABORTION MAY BE PERFORMED IN THIS STATE ONLY IF IT IS PERFORMED:
“(1) BY A PHYSICIAN LICENSED TO PRACTICE MEDICINE (OR OSTEOPATHY) IN THIS STATE OR BY A PHYSICIAN PRACTICING MEDICINE (OR OSTEOPATHY) IN THE EMPLOY OF THE GOVERNMENT OF THE UNITED STATES OR OF THIS STATE, (AND THE ABORTION IS PERFORMED (IN THE PHYSICIAN’S OFFICE OR IN A MEDICAL CLINIC, OR) IN A HOSPITAL APPROVED BY THE (DEPARTMENT OF HEALTH) OR OPERATED BY THE UNITED STATES, THIS STATE, OR ANY DEPARTMENT, AGENCY, OR POLITICAL SUBDIVISION OF EITHER;) OR BY A FEMALE UPON HERSELF UPON THE ADVICE OF THE PHYSICIAN; AND
“(2) WITHIN (20) WEEKS AFTER THE COMMENCEMENT OF THE PREGNANCY (OR AFTER (20) WEEKS ONLY IF THE PHYSICIAN HAS REASONABLE CAUSE TO BELIEVE (I) THERE IS A SUBSTANTIAL RISK THAT CONTINUANCE OF THE PREGNANCY WOULD ENDANGER THE LIFE OF THE MOTHER OR WOULD GRAVELY IMPAIR THE PHYSICAL OR MENTAL HEALTH OF THE MOTHER, (II) THAT THE CHILD WOULD BE BORN WITH GRAVE PHYSICAL OR MENTAL DEFECT, OR (III) THAT THE PREGNANCY RESULTED FROM RAPE OR INCEST, OR ILLICIT INTERCOURSE WITH A GIRL UNDER THE AGE OF 16 YEARS).
“SECTION 2. (PENALTY.)
ANY PERSON WHO PERFORMS OR PROCURES AN ABORTION OTHER THAN AUTHORIZED BY THIS ACT IS GUILTY OF A (FELONY) AND, UPON CONVICTION THEREOF, MAY BE SENTENCED TO PAY A FINE NOT EXCEEDING ($1,000) OR TO IMPRISONMENT (IN THE STATE PENITENTIARY) NOT EXCEEDING (5 YEARS), OR BOTH.
“SECTION 3. (UNIFORMITY OF INTERPRETATION.)
THIS ACT SHALL BE CONSTRUED TO EFFECTUATE ITS GENERAL PURPOSE TO MAKE UNIFORM THE LAW WITH RESPECT TO THE SUBJECT OF THIS ACT AMONG THOSE STATES WHICH ENACT IT.
“SECTION 4. (SHORT TITLE.)
THIS ACT MAY BE CITED AS THE UNIFORM ABORTION ACT.
“SECTION 5. (SEVERABILITY.)
IF ANY PROVISION OF THIS ACT OR THE APPLICATION THEREOF TO ANY PERSON OR CIRCUMSTANCE IS HELD INVALID, THE INVALIDITY DOES NOT AFFECT OTHER PROVISIONS OR APPLICATIONS OF THIS ACT WHICH CAN BE GIVEN EFFECT WITHOUT THE INVALID PROVISION OR APPLICATION, AND TO THIS END THE PROVISIONS OF THIS ACT ARE SEVERABLE.
“SECTION 6. (REPEAL.)
THE FOLLOWING ACTS AND PARTS OF ACTS ARE REPEALED:
“(1)
“(2)
“(3)
“SECTION 7. (TIME OF TAKING EFFECT.) THIS ACT SHALL TAKE EFFECT–.”
/41/ “THIS ACT IS BASED LARGELY UPON THE NEW YORK ABORTION ACT FOLLOWING A REVIEW OF THE MORE RECENT LAWS ON ABORTION IN SEVERAL STATES AND UPON RECOGNITION OF A MORE LIBERAL TREND IN LAWS ON THIS SUBJECT. RECOGNITION WAS GIVEN ALSO TO THE SEVERAL DECISIONS IN STATE AND FEDERAL COURTS WHICH SHOW A FURTHER TREND TOWARD LIBERALIZATION OF ABORTION LAWS, ESPECIALLY DURING THE FIRST TRIMESTER OF PREGNANCY.
“RECOGNIZING THAT A NUMBER OF PROBLEMS APPEARED IN NEW YORK, A SHORTER TIME PERIOD FOR ‘UNLIMITED’ ABORTIONS WAS ADVISABLE. THE TIME PERIOD WAS BRACKETED TO PERMIT THE VARIOUS STATES TO INSERT A FIGURE MORE IN KEEPING WITH THE DIFFERENT CONDITIONS THAT MIGHT EXIST AMONG THE STATES. LIKEWISE, THE LANGUAGE LIMITING THE PLACE OR PLACES IN WHICH ABORTIONS MAY BE PERFORMED WAS ALSO BRACKETED TO ACCOUNT FOR DIFFERENT CONDITIONS AMONG THE STATES. IN ADDITION, LIMITATIONS ON ABORTIONS AFTER THE INITIAL ‘UNLIMITED’ PERIOD WERE PLACED IN BRACKETS SO THAT INDIVIDUAL STATES MAY ADOPT ALL OR ANY OF THESE REASONS, OR PLACE FURTHER RESTRICTIONS UPON ABORTIONS AFTER THE INITIAL PERIOD.
“THIS ACT DOES NOT CONTAIN ANY PROVISION RELATING TO MEDICAL REVIEW COMMITTEES OR PROHIBITIONS AGAINST SANCTIONS IMPOSED UPON MEDICAL PERSONNEL REFUSING TO PARTICIPATE IN ABORTIONS BECAUSE OF RELIGIOUS OR OTHER SIMILAR REASONS, OR THE LIKE. SUCH PROVISIONS, WHILE RELATED, DO NOT DIRECTLY PERTAIN TO WHEN, WHERE, OR BY WHOM ABORTIONS MAY BE PERFORMED; HOWEVER, THE ACT IS NOT DRAFTED TO EXCLUDE SUCH A PROVISION BY A STATE WISHING TO ENACT THE SAME.”
/42/ SEE, FOR EXAMPLE, YWCA V. KUGLER, 342 F.SUPP. 1048, 1074 (N.J. 1972); ABELE V. MARKLE, 342 F.SUPP. 800, 805-806 (CONN. 1972) (NEWMAN, J., CONCURRING IN RESULT), APPEAL DOCKETED, NO. 72-56; WALSINGHAM V. STATE, 250 SO.2D 857, 863 (ERVIN, J., CONCURRING) (FLA. 1971); STATE V. GEDICKE, 43 N.J.L. 86, 90 (1881); MEANS II 381-382.
/43/ SEE C. HAAGENSEN & W. LLOYD, A HUNDRED YEARS OF MEDICINE 19 (1943).
/44/ POTTS, POSTCONCEPTIVE CONTROL OF FERTILITY, 8 INT’L J.OF G. & O. 957, 967 (1970) (ENGLAND AND WALES); ABORTION MORTALITY, 20 MORBIDITY AND MORTALITY 208, 209 (JUNE 12, 1971) (U.S. DEPT. OF HEW, PUBLIC HEALTH SERVICE) (NEW YORK CITY); TIETZE, UNITED STATES: THERAPEUTIC ABORTIONS, 1963-1968, 59 STUDIES IN FAMILY PLANNING 5, 7 (1970); TIETZE, MORTALITY WITH CONTRACEPTION AND INDUCED ABORTION, 45 STUDIES IN FAMILY PLANNING 6 (1969) (JAPAN, CZECHOSLOVAKIA, HUNGARY); TIETZE & LEHFELDT, LEGAL ABORTION IN EASTERN EUROPE, 175 J.A.M.A. 1149, 1152 (APRIL 1961). OTHER SOURCES ARE DISCUSSED IN LADER 17-23.
/45/ SEE BRIEF OF AMICUS NATIONAL RIGHT TO LIFE COMMITTEE; R. DRINAN, THE INVIOLABILITY OF THE RIGHT TO BE BORN, IN ABORTION AND THE LAW 107 (D. SMITH ED. 1967); LOUISELL, ABORTION, THE PRACTICE OF MEDICINE AND THE DUE PROCESS OF LAW, 16 U.C.L.A.L.REV. 233 (1969); NOONAN 1.
/46/ SEE, E.G., ABELE V. MARKLE, 342 F.SUPP. 800 (CONN. 1972), APPEAL DOCKETED, NO. 72-56.
/47/ SEE DISCUSSIONS IN MEANS I AND MEANS II.
/48/ SEE, E.G., STATE V. MURPHY, 27 N.J.L. 112, 114 (1858).
/49/ WATSON V. STATE, 9 TEX.APP. 237, 244-245 (1880); MOORE V. STATE, 37 TEX.CR.R. 552, 561, 40 S.W. 287, 290 (1897); SHAW V. STATE, 73 TEX.CR.R. 337, 339, 165 S.W. 930, 931 (1914); FONDREN V. STATE, 74 TEX.CR.R. 552, 557, 169 S.W. 411, 414 (1914); GRAY V. STATE, 77 TEX.CR.R. 221, 229, 178 S.W. 337, 341 (1915). THERE IS NO IMMUNITY IN TEXAS FOR THE FATHER WHO IS NOT MARRIED TO THE MOTHER. HAMMETT V. STATE, 84 TEX.CR.R. 635, 209 S.W. 661 (1919); THOMPSON V. STATE (CT. CRIM. APP. TEX. 1971), APPEAL DOCKETED, NO. 71-1200.
/50/ SEE SMITH V. STATE, 33 ME.,AT 55; IN RE VINCE, 2 N.J. 443, 450, 67 A.2D 141, 144 (1949). A SHORT DISCUSSION OF THE MODERN LAW ON THIS ISSUE IS CONTAINED IN THE COMMENT TO THE ALI’S MODEL PENAL CODE SEC. 207.11, AT 158 AND NN. 35-37 (TENT. DRAFT NO. 9, 1959).
/51/ TR. OF ORAL REARG. 20-21.
/52/ TR. OF ORAL REARG. 24.
/53/ WE ARE NOT AWARE THAT IN THE TAKING OF ANY CENSUS UNDER THIS CLAUSE, A FETUS HAS EVER BEEN COUNTED.
/54/ WHEN TEXAS URGES THAT A FETUS IS ENTITLED TO FOURTEENTH AMENDMENT PROTECTION AS A PERSON, IT FACES A DILEMMA. NEITHER IN TEXAS NOR IN ANY OTHER STATE ARE ALL ABORTIONS PROHIBITED. DESPITE BROAD PROSCRIPTION, AN EXCEPTION ALWAYS EXISTS. THE EXCEPTION CONTAINED IN ART. 1196, FOR AN ABORTION PROCURED OR ATTEMPTED BY MEDICAL ADVICE FOR THE PURPOSE OF SAVING THE LIFE OF THE MOTHER, IS TYPICAL. BUT IF THE FETUS IS A PERSON WHO IS NOT TO BE DEPRIVED OF LIFE WITHOUT DUE PROCESS OF LAW, AND IF THE MOTHER’S CONDITION IS THE SOLE DETERMINANT, DOES NOT THE TEXAS EXCEPTION APPEAR TO BE OUT OF LINE WITH THE AMENDMENT’S COMMAND?
THERE ARE OTHER INCONSISTENCIES BETWEEN FOURTEENTH AMENDMENT STATUS AND THE TYPICAL ABORTION STATUTE. IT HAS ALREADY BEEN POINTED OUT, N. 49, SUPRA, THAT IN TEXAS THE WOMAN IS NOT A PRINCIPAL OR AN ACCOMPLICE WITH RESPECT TO AN ABORTION UPON HER. IF THE FETUS IS A PERSON, WHY IS THE WOMAN NOT A PRINCIPAL OR AN ACCOMPLICE? FURTHER, THE PENALTY FOR CRIMINAL ABORTION SPECIFIED BY ART. 1195 IS SIGNIFICANTLY LESS THAN THE MAXIMUM PENALTY FOR MURDER PRESCRIBED BY ART. 1257 OF THE TEXAS PENAL CODE. IF THE FETUS IS A PERSON, MAY THE PENALTIES BE DIFFERENT?
/55/ CF. THE WISCONSIN ABORTION STATUTE, DEFINING “UNBORN CHILD” TO MEAN “A HUMAN BEING FROM THE TIME OF CONCEPTION UNTIL IT IS BORN ALIVE,” WIS. STAT. SEC. 940.04(6) (1969), AND THE NEW CONNECTICUT STATUTE, PUB. ACT NO. 1 (MAY 1972 SPECIAL SESSION), DECLARING IT TO BE THE PUBLIC POLICY OF THE STATE AND THE LEGISLATIVE INTENT “TO PROTECT AND PRESERVE HUMAN LIFE FROM THE MOMENT OF CONCEPTION.”
/56/ EDELSTEIN 16.
/57/ LADER 97-99; D. FELDMAN, BIRTH CONTROL IN JEWISH LAW 251-294 (1968). FOR A STRICTER VIEW, SEE I. JAKOBOVITS, JEWISH VIEWS ON ABORTION, IN ABORTION AND THE LAW 124 (D. SMITH ED. 1967).
/58/ AMICUS BRIEF FOR THE AMERICAN ETHICAL UNION ET AL. FOR THE POSITION OF THE NATIONAL COUNCIL OF CHURCHES AND OF OTHER DENOMINATIONS, SEE LADER 99-101.
/59/ L. HELLMAN & J. PRITCHARD, WILLIAMS OBSTETRICS 493 (14TH ED. 1971); DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1689 (24TH ED. 1965).
/60/ HELLMAN & PRITCHARD, SUPRA, N. 59, AT 493.
/61/ FOR DISCUSSIONS OF THE DEVELOPMENT OF THE ROMAN CATHOLIC POSITION, SEE D. CALLAHAN, ABORTION: LAW, CHOICE, AND MORALITY 409-447 (1970); NOONAN 1.
/62/ SEE BRODIE, THE NEW BIOLOGY AND THE PRENATAL CHILD, 9 J. FAMILY L. 391, 397 (1970); GORNEY, THE NEW BIOLOGY AND THE FUTURE OF MAN, 15 U.C.L.A.L.REV. 273 (1968); NOTE; CRIMINAL LAW– ABORTION—THE “MORNING-AFTER PILL” AND OTHER PRE-IMPLANTATION BIRTH-CONTROL METHODS AND THE LAW, 46 ORE.L.REV. 211 (1967); G. TAYLOR, THE BIOLOGICAL TIME BOMB 32 (1968); A. ROSENFELD, THE SECOND GENESIS 138-139 (1969); SMITH, THROUGH A TEST TUBE DARKLY: ARTIFICIAL INSEMINATION AND THE LAW, 67 MICH.L.REV. 127 (1968); NOTE, ARTIFICIAL INSEMINATION AND THE LAW, 1968 U.ILL.L.F. 203.
/63/ W. PROSSER, THE LAW OF TORTS 335-338 (4TH ED. 1971); 2 F. HARPER & F. JAMES, THE LAW OF TORTS 1028-1031 (1956); NOTE, 63 HARV.L.REV. 173 (1949).
/64/ SEE CASES CITED IN PROSSER, SUPRA, N. 63, AT 336-338; ANNOTATION, ACTION FOR DEATH OF UNBORN CHILD, 15 A.L.R.3D 992 (1967).
/65/ PROSSER, SUPRA, N. 63, AT 338; NOTE, THE LAW AND THE UNBORN CHILD: THE LEGAL AND LOGICAL INCONSISTENCIES, 46 NOTRE DAME LAW. 349, 354-360 (1971).
/66/ LOUISELL, ABORTION, THE PRACTICE OF MEDICINE AND THE DUE PROCESS OF LAW, 16 U.C.L.A.L.REV. 233, 235-238 (1969); NOTE, 56 IOWA L.REV. 994, 999-1000 (1971); NOTE, THE LAW AND THE UNBORN CHILD, 46 NOTRE DAME LAW. 349, 351-354 (1971).
/67/ NEITHER IN THIS OPINION NOR IN DOE V. BOLTON, POST, P. 179, DO WE DISCUSS THE FATHER’S RIGHTS, IF ANY EXIST IN THE CONSTITUTIONAL CONTEXT, IN THE ABORTION DECISION. NO PATERNAL RIGHT HAS BEEN ASSERTED IN EITHER OF THE CASES, AND THE TEXAS AND THE GEORGIA STATUTES ON THEIR FACE TAKE NO COGNIZANCE OF THE FATHER. WE ARE AWARE THAT SOME STATUES RECOGNIZE THE FATHER UNDER CERTAIN CIRCUMSTANCES. NORTH CAROLINA, FOR EXAMPLE, N.C. GEN. STAT. SEC. 14-45.1 (SUPP. 1971), REQUIRES WRITTEN PERMISSION FOR THE ABORTION FROM THE HUSBAND WHEN THE WOMAN IS A MARRIED MINOR, THAT IS, WHEN SHE IS LESS THAN 18 YEARS OF AGE, 41 N.C.A.G. 489 (1971); IF THE WOMAN IS AN UNMARRIED MINOR, WRITTEN PERMISSION FROM THE PARENTS IS REQUIRED. WE NEED NOT NOW DECIDE WHETHER PROVISIONS OF THIS KIND ARE CONSTITUTIONAL.
MR. JUSTICE STEWART, CONCURRING.
IN 1963, THIS COURT, IN FERGUSON V. SKRUPA, 372 U.S. 726, PURPORTED TO SOUND THE DEATH KNELL FOR THE DOCTRINE OF SUBSTANTIVE DUE PROCESS, A DOCTRINE UNDER WHICH MANY STATE LAWS HAD IN THE PAST BEEN HELD TO VIOLATE THE FOURTEENTH AMENDMENT. AS MR. JUSTICE BLACK’S OPINION FOR THE COURT IN SKRUPA PUT IT: “WE HAVE RETURNED TO THE ORIGINAL CONSTITUTIONAL PROPOSITION THAT COURTS DO NOT SUBSTITUTE THEIR SOCIAL AND ECONOMIC BELIEFS FOR THE JUDGMENT OF LEGISLATIVE BODIES, WHO ARE ELECTED TO PASS LAWS.” ID., AT 730. /1/
BARELY TWO YEARS LATER, IN GRISWOLD V. CONNECTICUT, 381 U.S. 479, THE COURT HELD A CONNECTICUT BIRTH CONTROL LAW UNCONSTITUTIONAL. IN VIEW OF WHAT HAD BEEN SO RECENTLY SAID IN SKRUPA, THE COURT’S OPINION IN GRISWOLD UNDERSTANDABLY DID ITS BEST TO AVOID RELIANCE ON THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AS THE GROUND FOR DECISION.
YET, THE CONNECTICUT LAW DID NOT VIOLATE ANY PROVISION OF THE BILL OF RIGHTS, NOR ANY OTHER SPECIFIC PROVISION OF THE CONSTITUTION. /2/ SO IT WAS CLEAR TO ME THEN, AND IT IS EQUALLY CLEAR TO ME NOW, THAT THE GRISWOLD DECISION CAN BE RATIONALLY UNDERSTOOD ONLY AS A HOLDING THAT THE CONNECTICUT STATUTE SUBSTANTIVELY INVADED THE “LIBERTY” THAT IS PROTECTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. /3/ AS SO UNDERSTOOD, GRISWOLD STANDS AS ONE IN A LONG LINE OF PRE-SKRUPA CASES DECIDED UNDER THE DOCTRINE OF SUBSTANTIVE DUE PROCESS, AND I NOW ACCEPT IT AS SUCH.
“IN A CONSTITUTION FOR A FREE PEOPLE, THERE CAN BE NO DOUBT THAT THE MEANING OF ‘LIBERTY’ MUST BE BROAD INDEED.” BOARD OF REGENTS V. ROTH, 408 U.S. 564, 572. THE CONSTITUTION NOWHERE MENTIONS A SPECIFIC RIGHT OF PERSONAL CHOICE IN MATTERS OF MARRIAGE AND FAMILY LIFE, BUT THE “LIBERTY” PROTECTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT COVERS MORE THAN THOSE FREEDOMS EXPLICITLY NAMED IN THE BILL OF RIGHTS. SEE SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232, 238 239; PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510, 534-535; MEYER V. NEBRASKA, 262 U.S. 390, 399-400. CF. SHAPIRO V. THOMPSON, 394 U.S. 618, 629-630; UNITED STATES V. GUEST, 383 U.S. 745, 757-758; CARRINGTON V. RASH, 380 U.S. 89, 96; APTHEKER V. SECRETARY OF STATE, 378 U.S. 500, 505; KENT V. DULLES, 357 U.S. 116, 127; BOLLING V. SHARPE, 347 U.S. 497, 499-500; TRUAX V. RAICH, 239 U.S. 33, 41.
AS MR. JUSTICE HARLAN ONCE WROTE: “(THE FULL SCOPE OF THE LIBERTY GUARANTEED BY THE DUE PROCESS CLAUSE CANNOT BE FOUND IN OR LIMITED BY THE PRECISE TERMS OF THE SPECIFIC GUARANTEES ELSEWHERE PROVIDED IN THE CONSTITUTION. THIS ‘LIBERTY’ IS NOT A SERIES OF ISOLATED POINTS PRICKED OUT IN TERMS OF THE TAKING OF PROPERTY; THE FREEDOM OF SPEECH, PRESS, AND RELIGION; THE RIGHT TO KEEP AND BEAR ARMS; THE FREEDOM FROM UNREASONABLE SEARCHES AND SEIZURES; AND SO ON. IT IS A RATIONAL CONTINUUM WHICH, BROADLY SPEAKING, INCLUDES A FREEDOM FROM ALL SUBSTANTIAL ARBITRARY IMPOSITIONS AND PURPOSELESS RESTRAINTS . . . AND WHICH ALSO RECOGNIZES, WHAT A REASONABLE AND SENSITIVE JUDGMENT MUST, THAT CERTAIN INTERESTS REQUIRE PARTICULARLY CAREFUL SCRUTINY OF THE STATE NEEDS ASSERTED TO JUSTIFY THEIR ABRIDGMENT.” POE V. ULLMAN, 367 U.S. 497, 543 (OPINION DISSENTING FROM DISMISSAL OF APPEAL) (CITATIONS OMITTED).
IN THE WORDS OF MR. JUSTICE FRANKFURTHER, “GREAT CONCEPTS LIKE . . . ‘LIBERTY’ . . . WERE PURPOSELY LEFT TO GATHER MEANING FROM EXPERIENCE. FOR THEY RELATE TO THE WHOLE DOMAIN OF SOCIAL AND ECONOMIC FACT, AND THE STATESMEN WHO FOUNDED THIS NATION KNEW TOO WELL THAT ONLY A STAGNANT SOCIETY REMAINS UNCHANGED.” NATIONAL MUTUAL INS. CO. V. TIDEWATER TRANSFER CO., 337 U.S. 582, 646 (DISSENTING OPINION).
SEVERAL DECISIONS OF THIS COURT MAKE CLEAR THAT FREEDOM OF PERSONAL CHOICE IN MATTERS OF MARRIAGE AND FAMILY LIFE IS ONE OF THE LIBERTIES PROTECTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. LOVING V. VIRGINIA, 388 U.S. 1, 12; GRISWOLD V. CONNECTICUT, SUPRA; PIERCE V. SOCIETY OF SISTERS, SUPRA; MEYER V. NEBRASKA, SUPRA. SEE ALSO PRINCE V. MASSACHUSETTS, 321 U.S. 158, 166; SKINNER V. OKLAHOMA, 316 U.S. 535, 541. AS RECENTLY AS LAST TERM, IN EISENSTADT V. BAIRD, 405 U.S. 438, 453, WE RECOGNIZED “THE RIGHT OF THE INDIVIDUAL, MARRIED OR SINGLE, TO BE FREE FROM UNWARRANTED GOVERNMENTAL INTRUSION INTO MATTERS SO FUNDAMENTALLY AFFECTING A PERSON AS THE DECISION WHETHER TO BEAR OR BEGET A CHILD.” THAT RIGHT NECESSARILY INCLUDES THE RIGHT OF A WOMAN TO DECIDE WHETHER OR NOT TO TERMINATE HER PREGNANCY. “CERTAINLY THE INTERESTS OF A WOMAN IN GIVING OF HER PHYSICAL AND EMOTIONAL SELF DURING PREGNANCY AND THE INTERESTS THAT WILL BE AFFECTED THROUGHOUT HER LIFE BY THE BIRTH AND RAISING OF A CHILD ARE OF A FAR GREATER DEGREE OF SIGNIFICANCE AND PERSONAL INTIMACY THAN THE RIGHT TO SEND A CHILD TO PRIVATE SCHOOL PROTECTED IN PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510 (1925), OR THE RIGHT TO TEACH A FOREIGN LANGUAGE PROTECTED IN MEYER V. NEBRASKA, 262 U.S. 390 (1923).” ABELE V. MARKLE, 351 F.SUPP. 224, 227 (CONN. 1972).
CLEARLY, THEREFORE, THE COURT TODAY IS CORRECT IN HOLDING THAT THE RIGHT ASSERTED BY JANE ROE IS EMBRACED WITHIN THE PERSONAL LIBERTY PROTECTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.
IT IS EVIDENT THAT THE TEXAS ABORTION STATUTE INFRINGES THAT RIGHT DIRECTLY. INDEED, IT IS DIFFICULT TO IMAGINE A MORE COMPLETE ABRIDGMENT OF A CONSTITUTIONAL FREEDOM THAN THAT WORKED BY THE INFLEXIBLE CRIMINAL STATUTE NOW IN FORCE IN TEXAS. THE QUESTION THEN BECOMES WHETHER THE STATE INTERESTS ADVANCED TO JUSTIFY THIS ABRIDGMENT CAN SURVIVE THE “PARTICULARLY CAREFUL SCRUTINY” THAT THE FOURTEENTH AMENDMENT HERE REQUIRES.
THE ASSERTED STATE INTERESTS ARE PROTECTION OF THE HEALTH AND SAFETY OF THE PREGNANT WOMAN, AND PROTECTION OF THE POTENTIAL FUTURE HUMAN LIFE WITHIN HER. THESE ARE LEGITIMATE OBJECTIVES, AMPLY SUFFICIENT TO PERMIT A STATE TO REGULATE ABORTIONS MORE STRINGENTLY OR EVEN TO PROHIBIT THEM IN THE LATE STAGES OF PREGNANCY. BUT SUCH LEGISLATION IS NOT BEFORE US, AND I THINK THE COURT TODAY HAS THOROUGHLY DEMONSTRATED THAT THESE STATE INTERESTS CANNOT CONSTITUTIONALLY SUPPORT THE BROAD ABRIDGMENT OF PERSONAL LIBERTY WORKED BY THE EXISTING TEXAS LAW.
ACCORDINGLY, I JOIN THE COURT’S OPINION HOLDING THAT THAT LAW IS INVALID UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.
/1/ ONLY MR. JUSTICE HARLAN FAILED TO JOIN THE COURT’S OPINION, 372 U.S.,AT 733.
/2/ THERE IS NO CONSTITUTIONAL RIGHT OF PRIVACY, AS SUCH. “(THE FOURTH) AMENDMENT PROTECTS INDIVIDUAL PRIVACY AGAINST CERTAIN KINDS OF GOVERNMENT INTRUSION, BUT ITS PROTECTIONS GO FURTHER, AND OFTEN HAVE NOTHING TO DO WITH PRIVACY AT ALL. OTHER PROVISIONS OF THE CONSTITUTION PROTECT PERSONAL PRIVACY FROM OTHER FORMS OF GOVERNMENTAL INVASION. BUT THE PROTECTION OF A PERSON’S GENERAL RIGHT TO PRIVACY–HIS RIGHT TO BE LET ALONE BY OTHER PEOPLE– IS, LIKE THE PROTECTION OF HIS PROPERTY AND OF HIS VERY LIFE, LEFT LARGELY TO THE LAW OF THE INDIVIDUAL STATES.” KATZ V. UNITED STATES, 389 U.S. 347, 350-351 (FOOTNOTES OMITTED).
/3/ THIS WAS ALSO CLEAR TO MR. JUSTICE BLACK, 381 U.S.,AT 507 (DISSENTING OPINION); TO MR. JUSTICE HARLAN, 381 U.S.,AT 499 (OPINION CONCURRING IN THE JUDGMENT); AND TO MR. JUSTICE WHITE, 381 U.S.,AT 502 (OPINION CONCURRING IN THE JUDGMENT). SEE ALSO MR. JUSTICE HARLAN’S THOROUGH AND THOUGHTFUL OPINION DISSENTING FROM DISMISSAL OF THE APPEAL IN POE V. ULLMAN, 367 U.S. 497, 522.
MR. JUSTICE REHNQUIST, DISSENTING.
THE COURT’S OPINION BRINGS TO THE DECISION OF THIS TROUBLING QUESTION BOTH EXTENSIVE HISTORICAL FACT AND A WEALTH OF LEGAL SCHOLARSHIP. WHILE THE OPINION THUS COMMANDS MY RESPECT, I FIND MYSELF NONETHELESS IN FUNDAMENTAL DISAGREEMENT WITH THOSE PARTS OF IT THAT INVALIDATE THE TEXAS STATUTE IN QUESTION, AND THEREFORE DISSENT.
I
THE COURT’S OPINION DECIDES THAT A STATE MAY IMPOSE VIRTUALLY NO RESTRICTION ON THE PERFORMANCE OF ABORTIONS DURING THE FIRST TRIMESTER OF PREGNANCY. OUR PREVIOUS DECISIONS INDICATE THAT A NECESSARY PREDICATE FOR SUCH AN OPINION IS A PLAINTIFF WHO WAS IN HER FIRST TRIMESTER OF PREGNANCY AT SOME TIME DURING THE PENDENCY OF HER LAWSUIT. WHILE A PARTY MAY VINDICATE HIS OWN CONSTITUTIONAL RIGHTS, HE MAY NOT SEEK VINDICATION FOR THE RIGHTS OF OTHERS. MOOSE LODGE V. IRVIS, 407 U.S. 163 (1972); SIERRA CLUB V. MORTON, 405 U.S. 727 (1972). THE COURT’S STATEMENT OF FACTS IN THIS CASE MAKES CLEAR, HOWEVER, THAT THE RECORD IN NO WAY INDICATES THE PRESENCE OF SUCH A PLAINTIFF. WE KNOW ONLY THAT PLAINTIFF ROE AT THE TIME OF FILING HER COMPLAINT WAS A PREGNANT WOMAN; FOR AUGHT THAT APPEARS IN THIS RECORD, SHE MAY HAVE BEEN IN HER LAST TRIMESTER OF PREGNANCY AS OF THE DATE THE COMPLAINT WAS FILED.
NOTHING IN THE COURT’S OPINION INDICATES THAT TEXAS MIGHT NOT CONSTITUTIONALLY APPLY ITS PROSCRIPTION OF ABORTION AS WRITTEN TO A WOMAN IN THAT STAGE OF PREGNANCY. NONETHELESS, THE COURT USES HER COMPLAINT AGAINST THE TEXAS STATUTE AS A FULCRUM FOR DECIDING THAT STATES MAY IMPOSE VIRTUALLY NO RESTRICTIONS ON MEDICAL ABORTIONS PERFORMED DURING THE FIRST TRIMESTER OF PREGNANCY. IN DECIDING SUCH A HYPOTHETICAL LAWSUIT, THE COURT DEPARTS FROM THE LONGSTANDING ADMONITION THAT IT SHOULD NEVER “FORMULATE A RULE OF CONSTITUTIONAL LAW BROADER THAN IS REQUIRED BY THE PRECISE FACTS TO WHICH IT IS TO BE APPLIED.” LIVERPOOL, NEW YORK & PHILADELPHIA S.S. CO. V. COMMISSIONERS OF EMIGRATION, 113 U.S. 33, 39 (1885). SEE ALSO ASHWANDER V. TVA, 297 U.S. 288, 345 (1936) (BRANDEIS, J., CONCURRING).
II
EVEN IF THERE WERE A PLAINTIFF IN THIS CASE CAPABLE OF LITIGATING THE ISSUE WHICH THE COURT DECIDES, I WOULD REACH A CONCLUSION OPPOSITE TO THAT REACHED BY THE COURT. I HAVE DIFFICULTY IN CONCLUDING, AS THE COURT DOES, THAT THE RIGHT OF “PRIVACY” IS INVOLVED IN THIS CASE.
TEXAS, BY THE STATUTE HERE CHALLENGED, BARS THE PERFORMANCE OF A MEDICAL ABORTION BY A LICENSED PHYSICIAN ON A PLAINTIFF SUCH AS ROE. A TRANSACTION RESULTING IN AN OPERATION SUCH AS THIS IS NOT “PRIVATE” IN THE ORDINARY USAGE OF THAT WORD. NOR IS THE “PRIVACY” IN THE ORDINARY USAGE OF THAT WORD. NOR IS THE “PRIVACY” THAT THE COURT FINDS HERE EVEN A DISTANT RELATIVE OF THE FREEDOM FROM SEARCHES AND SEIZURES PROTECTED BY THE FOURTH AMENDMENT TO THE CONSTITUTION, WHICH THE COURT HAS REFERRED TO AS EMBODYING A RIGHT TO PRIVACY. KATZ V. UNITED STATES, 389 U.S. 347 (1967).
IF THE COURT MEANS BY THE TERM “PRIVACY” NO MORE THAN THAT THE CLAIM OF A PERSON TO BE FREE FROM UNWANTED STATE REGULATION OF CONSENSUAL TRANSACTIONS MAY BE A FORM OF “LIBERTY” PROTECTED BY THE FOURTEENTH AMENDMENT, THERE IS NO DOUBT THAT SIMILAR CLAIMS HAVE BEEN UPHELD IN OUR EARLIER DECISIONS ON THE BASIS OF THAT LIBERTY. I AGREE WITH THE STATEMENT OF MR. JUSTICE STEWARD IN HIS CONCURRING OPINION THAT THE “LIBERTY,” AGAINST DEPRIVATION OF WHICH WITHOUT DUE PROCESS THE FOURTEENTH AMENDMENT PROTECTS, EMBRACES MORE THAN THE RIGHTS FOUND IN THE BILL OF RIGHTS. BUT THAT LIBERTY IS NOT GUARANTEED ABSOLUTELY AGAINST DEPRIVATION, ONLY AGAINST DEPRIVATION WITHOUT DUE PROCESS OF LAW. THE TEST TRADITIONALLY APPLIED IN THE AREA OF SOCIAL AND ECONOMIC LEGISLATION IS WHETHER OR NOT A LAW SUCH AS THAT CHALLENGED HAS A RATIONAL RELATION TO A VALID STATE OBJECTIVE. WILLIAMSON V. LEE OPTICAL CO., 348 U.S. 483, 491 (1955).
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT UNDOUBTEDLY DOES PLACE A LIMIT, ALBEIT A BROAD ONE, ON LEGISLATIVE POWER TO ENACT LAWS SUCH AS THIS. IF THE TEXAS STATUTE WERE TO PROHIBIT AN ABORTION EVEN WHERE THE MOTHER’S LIFE IS IN JEOPARDY, I HAVE LITTLE DOUBT THAT SUCH A STATUTE WOULD LACK A RATIONAL RELATION TO A VALID STATE OBJECTIVE UNDER THE TEST STATED IN WILLIAMSON, SUPRA. BUT THE COURT’S SWEEPING INVALIDATION OF ANY RESTRICTIONS ON ABORTION DURING THE FIRST TRIMESTER IS IMPOSSIBLE TO JUSTIFY UNDER THAT STANDARD, AND THE CONSCIOUS WEIGHING OF COMPETING FACTORS THAT THE COURT’S OPINION APPARENTLY SUBSTITUTES FOR THE ESTABLISHED TEST IS FAR MORE APPROPRIATE TO A LEGISLATIVE JUDGMENT THAN TO A JUDICIAL ONE.
THE COURT ESCHEWS THE HISTORY OF THE FOURTEENTH AMENDMENT IN ITS RELIANCE ON THE “COMPELLING STATE INTEREST” TEST. SEE WEBER V. AETNA CASUALTY & SURETY CO., 406 U.S. 164, 179 (1972) (DISSENTING OPINION).
BUT THE COURT ADDS A NEW WRINKLE TO THIS TEST BY TRANSPOSING IT FROM THE LEGAL CONSIDERATIONS ASSOCIATED WITH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THIS CASE ARISING UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. UNLESS I MISAPPREHEND THE CONSEQUENCES OF THIS TRANSPLANTING OF THE “COMPELLING STATE INTEREST TEST,” THE COURT’S OPINION WILL ACCOMPLISH THE SEEMINGLY IMPOSSIBLE FEAT OF LEAVING THIS AREA OF THE LAW MORE CONFUSED THAN IT FOUND IT.
WHILE THE COURT’S OPINION QUOTES FROM THE DISSENT OF MR. JUSTICE HOLMES IN LOCHNER V. NEW YORK, 198 U.S. 45, 74 (1905), THE RESULT IT REACHES IS MORE CLOSELY ATTUNED TO THE MAJORITY OPINION OF MR. JUSTICE PECKHAM IN THAT CASE. AS IN LOCHNER AND SIMILAR CASES APPLYING SUBSTANTIVE DUE PROCESS STANDARDS TO ECONOMIC AND SOCIAL WELFARE LEGISLATION, THE ADOPTION OF THE COMPELLING STATE INTEREST STANDARD WILL INEVITABLY REQUIRE THE COURT TO EXAMINE THE LEGISLATIVE POLICIES AND PASS ON THE WISDOM OF THESE POLICIES IN THE VERY PROCESS OF DECIDING WHETHER A PARTICULAR STATE INTEREST PUT FORWARD MAY OR MAY NOT BE “COMPELLING.” THE DECISION HERE TO BREAK PREGNANCY INTO THREE DISTINCT TERMS AND TO OUTLINE THE PERMISSIBLE RESTRICTIONS THE STATE MAY IMPOSE IN EACH ONE, FOR EXAMPLE, PARTAKES MORE OF JUDICIAL LEGISLATION THAN IT DOES OF A DETERMINATION OF THE INTENT OF THE DRAFTERS OF THE FOURTEENTH AMENDMENT.
THE FACT THAT A MAJORITY OF THE STATES REFLECTING, AFTER ALL, THE MAJORITY SENTIMENT IN THOSE STATES, HAVE HAD RESTRICTIONS ON ABORTIONS FOR AT LEAST A CENTURY IS A STRONG INDICATION, IT SEEMS TO ME, THAT THE ASSERTED RIGHT TO AN ABORTION IS NOT “SO ROOTED IN THE TRADITIONS AND CONSCIENCE OF OUR PEOPLE AS TO BE RANKED AS FUNDAMENTAL,” SNYDER V. MASSACHUSETTS, 291 U.S. 97, 105 (1934). EVEN TODAY, WHEN SOCIETY’S VIEWS ON ABORTION ARE CHANGING THE VERY EXISTENCE OF THE DEBATE IS EVIDENCE THAT THE “RIGHT TO AN ABORTION IS NOT SO UNIVERSALLY ACCEPTED AS THE APPELLANT WOULD HAVE US BELIEVE.
TO REACH ITS RESULT, THE COURT NECESSARILY HAS HAD TO FIND WITHIN THE SCOPE OF THE FOURTEENTH AMENDMENT A RIGHT THAT WAS APPARENTLY COMPLETELY UNKNOWN TO THE DRAFTERS OF THE AMENDMENT. AS EARLY AS 1821, THE FIRST STATE LAW DEALING DIRECTLY WITH ABORTION WAS ENACTED BY THE CONNECTICUT LEGISLATURE. CONN. STAT., TIT. 22, SECS. 14, 16.
BY THE TIME OF THE ADOPTION OF THE FOURTEENTH AMENDMENT IN 1868, THERE WERE AT LEAST 36 LAWS ENACTED BY STATE OR TERRITORIAL LEGISLATURES LIMITING ABORTION. /1/ WHILE MANY STATE HAVE AMENDED OR UPDATED THEIR LAWS, 21 OF THE LAWS ON THE BOOKS IN 1868 REMAIN IN EFFECT TODAY. /2/ INDEED, THE TEXAS STATUTE STRUCK DOWN TODAY WAS, AS THE MAJORITY NOTES, FIRST ENACTED IN 1857 AND “HAS REMAINED SUBSTANTIALLY UNCHANGED TO THE PRESENT TIME.” ANTE, AT 119.
THERE APPARENTLY WAS NO QUESTION CONCERNING THE VALIDITY OF THIS PROVISION OR OF ANY OF THE OTHER STATE STATUTES WHEN THE FOURTEENTH AMENDMENT WAS ADOPTED. THE ONLY CONCLUSION POSSIBLE FROM THIS HISTORY IS THAT THE DRAFTERS DID NOT INTEND TO HAVE THE FOURTEENTH AMENDMENT WITHDRAW FROM THE STATES THE POWER TO LEGISLATE WITH RESPECT TO THIS MATTER.
III
EVEN IF ONE WERE TO AGREE THAT THE CASE THAT THE COURT DECIDES WERE HERE, AND THAT THE ENUNCIATION OF THE SUBSTANTIVE CONSTITUTIONAL LAW IN THE COURT’S OPINION WERE PROPER, THE ACTUAL DISPOSITION OF THE CASE BY THE COURT IS STILL DIFFICULT TO JUSTIFY. THE TEXAS STATUTE IS STRUCK DOWN IN TOTO, EVEN THOUGH THE COURT APPARENTLY CONCEDES THAT AT LATER PERIODS OF PREGNANCY TEXAS MIGHT IMPOSE THESE SELFSAME STATUTORY LIMITATIONS ON ABORTION. MY UNDERSTANDING OF PAS PRACTICE IS THAT A STATUTE FOUND TO BE INVALID AS APPLIED TO A PARTICULAR PLAINTIFF, BUT NOT UNCONSTITUTIONAL AS A WHOLE, IS NOT SIMPLY “STRUCK DOWN” BUT IS, INSTEAD, DECLARED UNCONSTITUTIONAL AS APPLIED TO THE FACT SITUATION BEFORE THE COURT. YICK WO V. HOPKINS, 118 U.S. 356 (1886); STREET V. NEW YORK, 394 U.S. 576 (1969).
FOR ALL OF THE FOREGOING REASONS, I RESPECTFULLY DISSENT.
/1/ JURISDICTIONS HAVING ENACTED ABORTION LAWS PRIOR TO THE ADOPTION OF THE FOURTEENTH AMENDMENT IN 1868:
1. ALABAMA– ALA. ACTS, C. 6, SEC. 2 (1840).
2. ARIZONA– HOWELL CODE, C. 10, SEC. 45 (1865).
3. ARKANSAS– ARK. REV. STAT., C. 44, DIV. III, ART. II, SEC. 6 (1838).
4. CALIFORNIA– CAL. SESS. LAWS, C. 99, SEC. 45, P. 233 (1849-1850).
5. COLORADO (TERR.)– COLO. GEN. LAWS OF TERR. OF COLO., 1ST SESS., SEC. 42, PP. 296-297 (1861).
6. CONNECTICUT– CONN. STAT., TIT. 20, SECS. 14, 16 (1821). BY 1868, THIS STATUTE HAD BEEN REPLACED BY ANOTHER ABORTION LAW. CONN. PUB. ACTS, C. 71, SECS. 1, 2, P. 65 (1860).
7. FLORIDA– FLA. ACTS 1ST SESS., C. 1637, SUBC. 3, SECS. 10, 11, SUBC. 8, SECS. 9, 10, 11 (1868), AS AMENDED, NOW FLA. STAT. ANN. SECS. 782.09, 782.10, 797.01, 797.02, 782.16 (1965).
8. GEORGIA– GA. PEN. CODE, 4TH DIV., SEC. 20 (1833).
9. KINGDOM OF HAWAII– HAWAII PEN. CODE, C. 12, SECS. 1, 2, 3 (1850).
10. IDAHO (TERR.)– IDAHO (TERR.) LAWS, CRIMES AND PUNISHMENTS SECS. 33, 34, 42, PP. 441, 443 (1863).
11. ILLINOIS– ILL. REV. CRIMINAL CODE SECS. 40, 41, 46, PP. 130,
131 (1827). BY 1868, THIS STATUTE HAD BEEN REPLACED BY A SUBSEQUENT ENACTMENT. ILL. PUB. LAWS SECS. 1, 2, 3, P. 89 (1867).
12. INDIANA– IND. REV. STAT. SECS. 1, 3, P. 224 (1838). BY 1868 THIS STATUTE HAD BEEN SUPERSEDED BY A SUBSEQUENT ENACTMENT. IND. LAWS, C. LXXXI, SEC. 2 (1859).
13. IOWA (TERR.)– IOWA (TERR.) STAT., 1ST LEGIS., 1ST SESS., SEC. 18, P. 145 (1838). BY 1868, THIS STATUTE HAD BEEN SUPERSEDED BY A SUBSEQUENT ENACTMENT. IOWA (TERR.) REV. STAT., C. 49, SECS. 10, 13 (1843).
14. KANSAS (TERR.)– KAN. (TERR.) STAT., C. 48 SECS. 9, 10, 39 (1855). KAN. (TERR.) LAWS, C. 28, SEC. 9, 10, 37 (1859). 4
15.LOUISIANA– LA. REV. STAT., CRIMES AND OFFENSES SEC. 24, P. 138 (1856).
16. MAINE– ME. REV. STAT., C. 160, SECS. 11, 12, 13, 14 (1840).
17. MARYLAND– MD. LAWS, C. 179, SEC. 2, P. 315 (1868).
18. MASSACHUSETTS– MASS. ACTS & RESOLVES, C. 27 (1845).
19. MICHIGAN– MICH. REV. STAT., C. 153 SECS. 32, 33, 34, P. 662 (1846).
20. MINNESOTA (TERR.)– MINN. (TERR.) REV. STAT., C. 100, SECS. 10, 11, P. 493 (1851).
21. MISSISSIPPI– MISS. CODE, C. 64, SECS. 8, 9, P. 958 (1848).
22. MISSOURI– MO. REV. STAT., ART. II, SECS. 9, 10, 36, PP. 168, 172 (1835).
23. MONTANA (TERR.)– MONT. (TERR.) LAWS, CRIMINAL PRACTICE ACTS SEC. 41, P. 184 (1864).
24. NEVADA (TERR.) — NEV. (TERR.) LAWS, C. 28, SEC. 42, P. 63 (1861).
25. NEW HAMPSHIRE– N.H. LAWS, C. 743, SEC. 1, P. 708 (1848).
26. NEW JERSEY– N.J. LAWS, P. 266 (1849).
27. NEW YORK– N.Y. REV. STAT., PT. 4, C. 1, TIT. 2, SECS.8, 9, PP. 12-13 (1828). BY 1868, THIS STATUTE HAD BEEN SUPERSEDED. N.Y. LAWS, C. 260, SECS. 1-6, PP. 285-286 (1845); N.Y. LAWS, C. 22, SEC. 1 P. 19 (1846).
28. OHIO– OHIO GEN. STAT. SECS. 111(1), 112(2), P. 252 (1841).
29. OREGON– ORE. GEN. LAWS, CRIM. CODE, C. 43, SEC. 509,P. 528 (1845-1864).
30. PENNSYLVANIA– PA. LAWS NO. 374, SECS. 87, 88, 89 (1860).
31. TEXAS– TEX. GEN. STAT. DIG., C. VII, ARTS. 531-536, P. 524 (OLDHAM & WHITE 1859).
32. VERMONT– VT. ACTS NO. 33, SEC. 1 (1846). BY 1868, THIS STATUTE HAD BEEN AMENDED. VT. ACTS. NO. 57, SECS. 1, 3 (1867).
33. VIRGINIA– VA. ACTS, TIT. II, C. 3, SEC. 9, P. 96 (1848).
34. WASHINGTON (TERR.)– WASH. (TERR.) STATS., C. II, SECS. 37, 38, P. 81 (1854). 35. WEST VIRGINIA– SEE VA. ACTS., TIT. II, C. 3, SEC. 9, P. 96 (1848); W.VA. CONST., ART. XI, PAR. 8 (1863).
36. WISCONSIN– WIS. REV. STAT., C. 133, SECS. 10, 11 (1849). BY 1868, THIS STATUTE HAD BEEN SUPERSEDED. WIS. REV. STAT., C. 164, SECS. 10, 11; C. 169, SECS. 58, 59 (1858).
/2/ ABORTION LAWS IN EFFECT IN 1868 AND STILL APPLICABLE AS OF AUGUST 1970:
1. ARIZONA (1865).
2. CONNECTICUT (1860).
3. FLORIDA (1868). 4. IDAHO (1863).
5. INDIANA (1838).
6. IOWA (1843.
7. MAINE (1840).
8. MASSACHUSETTS (1845).
9. MICHIGAN (1846).
10. MINNESOTA (1851).
11. MISSOURI (1835).
12. MONTANA (1864).
13. NEVADA (1861).
14. NEW HAMPSHIRE (1848).
15. NEW JERSEY (1849).
16. OHIO (1841).
17. PENNSYLVANIA (1860).
18. TEXAS (1859).
19. VERMONT (1867).
20. WEST VIRGINIA (1863).
21. WISCONSIN (1858).
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.
..END

THE COMMENTARY GAZETTE®

SOURCE: United States Department of Commerce / NTIS
CONTRIBUTOR: Eddy Toorall

Democracy – Socialism: Not compatible

The words Democratic Socialist do not belong in the same sentence, they are totally at odds with each other. Most people believe that the Russian Revolution of 1917 began as a Communist/Socialist movement, it didn’t. Lenin was in exile in Switzerland at the beginnings of the upheaval and only later appeared (under the covert workings of the German Government) in Petrograd to hijack the Democratic attempts at government.

The original revolt began in Petrograd during February 24 (March 8) involving food riots, forcing the Czar (Nicolas II) to abdicate the throne March 2 (March 15). In this void the Duma (the peoples congress) formed a provisional government, more or less on a democratic format, contested by a rival political group the Petrograd Soviet of Workers and Soldiers Deputies. The Provisional Government reorganized 4 times between March – October, on June 3 / June 16 convening the First All-Russian Congress (July Kerensky had been appointed the head) until the Bolsheviks under Lenin in a bloodless coup (October 24-25 / November 6-7) took control of all the government office building in Petrograd, effectively becoming the ruling government. Convening the Second All-Russian Congress of Soviets (November 7 thru 9), confirming the enablement of the communist. Kerensky then fled the country, the demise of democracy resulted in a Civil war which for years brought death and destruction on its people.

Socialism under the proletariat stifled freedoms, destroyed industrial grow, produced years of starvation with millions dead, and isolated the state from the rest of the world. Vladimir Ilyich Ulyanov (Lenin) became the supreme leader of the Soviet Union, as it became to be known. It had one philosophy, enslavement of the people to the state.

Cuba, Venezuela embrace the same ideas, and its doesn’t work, if it did then why would their own people seek to flee those countries. Cuba was an armed revolution in the Russian sense, while Venezuela was a cry for reform in a electoral tradition. But the results of both was the destruction of all democratic freedoms, bankruptcy of the country, and depriving the people of the necessary basics of life. Utopia is; as promoted by the socialist is unattainable, all the free services they promote have to be financed by some one, if you work entirely for the state, by the state, were are the benefits to life, just another worker bee.

The following are few quotes attributed to Lenin:

No amount of political freedom will satisfy the hungry masses.

The goal of socialism is communism.

 It is necessary to be able to withstand all this, to agree to any and every sacrifice, and even if need be to resort to all sorts of stratagems, maneuvers and illegal methods, to evasion and subterfuges in order to penetrate the trade unions, to remain in them, and to carry on Communist work in them at all costs

Literature must become party literature. Down with unpartisan litterateurs! Down with the superman of literature! Literature must become a part of the general cause of the proletariat

Give us the child for 8 years and it will be a Bolshevik forever

The best way to destroy the capitalist system is to debauch the currency

His successor (Stalin) followed through with the communist ideology with brutal effect, once started down that road, it takes long years of suffering to overcome, Russia it lasted 70 years, Cuba continues after over 50 years, Venezuela just the beginning.

THE COMMENTARY GAZETTE®

CONTRIBUTOR: Eddy Toorall

Peloponnesian War: The State of Greece before the war

Thucydides, an Athenian, wrote the history of the war between the Peloponnesians and the Athenians, beginning at the moment that it broke out, and believing that it would be a great war and more worthy of relation than any that had preceded it. This belief was not without its grounds. The preparations of both the combatants were in every department in the last state of perfection; and he could see the rest of the Hellenic race taking sides in the quarrel; those who delayed doing so at once having it in contemplation. Indeed this was the greatest movement yet known in history, not only of the Hellenes, but of a large part of the barbarian world—I had almost said of mankind.

For though the events of remote antiquity, and even those that more immediately preceded the war, could not from lapse of time be clearly ascertained, yet the evidences which an inquiry carried as far back as was practicable leads me to trust, all point to the conclusion that there was nothing on a great scale, either in war or in other matters.

For instance, it is evident that the country now called Hellas had in ancient times had no settled population; on the contrary, migrations were of frequent occurrence, the several tribes readily abandoning their homes under the pressure of superior numbers. Without commerce, without freedom of communication either by land or sea, cultivating no more of their territory than the exigencies of life required, destitute of capital, never planting their land (for they could not tell when an invader might not come and take it all away, and when he did come they had no walls to stop him), thinking that the necessities of daily sustenance could be supplied at one place as well as another, they cared little for shifting their habitation, and consequently neither built large cities nor attained to any other form of greatness. The richest soils were always most subject to this change of masters; such as the district now called Thessaly, Boeotia, most of the Peloponnese, Arcadia excepted, and the most fertile parts of the rest of Hellas. The goodness of the land favoured the aggrandizement of particular individuals, and thus created faction which proved a fertile source of ruin. It also invited invasion. Accordingly Attica, from the poverty of its soil enjoying from a very remote period freedom from faction, never changed its inhabitants. And here is no inconsiderable exemplification of my assertion that the migrations were the cause of there being no correspondent growth in other parts. The most powerful victims of war or faction from the rest of Hellas took refuge with the Athenians as a safe retreat; and at an early period, becoming naturalized, swelled the already large population of the city to such a height that Attica became at last too small to hold them, and they had to send out colonies to Ionia.
There is also another circumstance that contributes not a little to my conviction of the weakness of ancient times. Before the Trojan war there is no indication of any common action in Hellas, nor indeed of the universal prevalence of the name; on the contrary, before the time of Hellen, son of Deucalion, no such appellation existed, but the country went by the names of the different tribes, in particular of the Pelasgian. It was not till Hellen and his sons grew strong in Phthiotis, and were invited as allies into the other cities, that one by one they gradually acquired from the connection the name of Hellenes; though a long time elapsed before that name could fasten itself upon all. The best proof of this is furnished by Homer. Born long after the Trojan War, he nowhere calls all of them by that name, nor indeed any of them except the followers of Achilles from Phthiotis, who were the original Hellenes: in his poems they are called Danaans, Argives, and Achaeans. He does not even use the term barbarian, probably because the Hellenes had not yet been marked off from the rest of the world by one distinctive appellation. It appears therefore that the several Hellenic communities, comprising not only those who first acquired the name, city by city, as they came to understand each other, but also those who assumed it afterwards as the name of the whole people, were before the Trojan war prevented by their want of strength and the absence of mutual intercourse from displaying any collective action.
Indeed, they could not unite for this expedition till they had gained increased familiarity with the sea. And the first person known to us by tradition as having established a navy is Minos. He made himself master of what is now called the Hellenic sea, and ruled over the Cyclades, into most of which he sent the first colonies, expelling the Karians and appointing his own sons governors; and thus did his best to put down piracy in those waters, a necessary step to secure the revenues for his own use.
For in early times the Hellenes and the barbarians of the coast and islands, as communication by sea became more common, were tempted to turn pirates, under the conduct of their most powerful men; the motives being to serve their own cupidity and to support the needy. They would fall upon a town unprotected by walls, and consisting of a mere collection of villages, and would plunder it; indeed, this came to be the main source of their livelihood, no disgrace being yet attached to such an achievement, but even some glory. An illustration of this is furnished by the honour with which some of the inhabitants of the continent still regard a successful marauder, and by the question we find the old poets everywhere representing the people as asking of voyagers—”Are they pirates?”—as if those who are asked the question would have no idea of disclaiming the imputation, or their interrogators of reproaching them for it. The same rapine prevailed also by land.
And even at the present day many of Hellas still follows the old fashion, the Ozolian Lokrians for instance, the Aetolians, the Akarnanians, and that region of the continent; and the custom of carrying arms is still kept up among these continentals, from the old piratical habits. The whole of Hellas used once to carry arms, their habitations being unprotected and their communication with each other unsafe; indeed, to wear arms was as much a part of everyday life with them as with the barbarians. And the fact that the people in these parts of Hellas are still living in the old way points to a time when the same mode of life was once equally common to all. The Athenians were the first to lay aside their weapons, and to adopt an easier and more luxurious mode of life; indeed, it is only lately that their rich old men left off the luxury of wearing undergarments of linen, and fastening a knot of their hair with a tie of golden grasshoppers, a fashion which spread to their Ionian kindred and long prevailed among the old men there. On the contrary, a modest style of dressing, more in conformity with modern ideas, was first adopted by the Lacedaemonians, the rich doing their best to assimilate their way of life to that of the common people. They also set the example of contending naked, publicly stripping and anointing themselves with oil in their gymnastic exercises. Formerly, even in the Olympic contests, the athletes who contended wore belts across their middles; and it is but a few years since that the practice ceased. To this day among some of the barbarians, especially in Asia, when prizes for boxing and wrestling are offered, belts are worn by the combatants. And there are many other points in which a likeness might be shown between the life of the Hellenic world of old and the barbarian of to-day.
With respect to their towns, later on, at an era of increased facilities of navigation and a greater supply of capital, we find the shores becoming the site of walled towns, and the isthmuses being occupied for the purposes of commerce and defense against a neighbor. But the old towns, on account of the great prevalence of piracy, were built away from the sea, whether on the islands or the continent, and still remain in their old sites. For the pirates used to plunder; one another and indeed all coast populations whether seafaring or not.
The islanders, too, were great pirates. These islanders were Karians and Phoenicians, by whom most of the islands were colonized, as was proved by the following fact. During the purification of Delos by Athens in this war all the graves in the island were taken up, and it was found that above half their inmates were Karians: they were identified by the fashion of the arms buried with them, and by the method of interment, which was the same as the Karians still follow. But as soon as Minos had formed his navy, communication by sea became easier, as he colonized most of the islands, and thus expelled the malefactors. The coast population now began to apply themselves more closely to the acquisition of wealth, and their life became more settled; some even began to build themselves walls on the strength of their newly acquired riches. For the love of gain would reconcile the weaker to the dominion of the stronger; and the possession of capital enabled the more powerful to reduce the smaller towns to subjection. And it was at a somewhat later stage of this development that they went on the expedition against Troy.
What enabled Agamemnon to raise the armament was more, in my opinion, his superiority in strength, than the oaths of Tyndareus, which bound the suitors to follow him. Indeed, the account given by those Peloponnesians who have been the recipients of the most credible tradition is this. First of all Pelops, arriving among a needy population from Asia with vast wealth, acquired such power that, stranger though he was, the country was called after him; and this power fortune saw fit materially to increase in the hands of his descendants. Eurystheus had been killed in Attica by the Heraclids. Atreus was his mother’s brother; and to the hands of his relation, who had left his father on account of the death of Khrysippus, Eurystheus, when he set out on his expedition, had committed Mycenae and the government. As time went on and Eurystheus did not return, Atreus complied with the wishes of the Mycenaeans, who were influenced by fear of the Heraclids—besides, his power seemed considerable, and he had not neglected to court the favour of the populace—and assumed the sceptre of Mycenae and the rest of the dominions of Eurystheus. And so the power of the descendants of Pelops came to be greater than that of the descendants of Perseus. To all this Agamemnon succeeded. He had also a navy far stronger than his contemporaries, so that, in my opinion, fear was quite as strong an element as love in the formation of the confederate expedition. The strength of his navy is shown by the fact that his own was the largest contingent, and that of the Arcadians was furnished by him; this at least is what Homer says, if his testimony is deemed sufficient. Besides, in his account of the transmission of the scepter, he calls him “Of many an isle and of all Argos king”. Now Agamemnon’s was a continental power; and he could not have been master of any except the adjacent islands (and these would not be many), but through the possession of a fleet.
And from this expedition we may infer the character of earlier enterprises. Now Mycenae may have been a small place, and many of the towns of that age may appear comparatively insignificant, but no exact observer would therefore feel justified in rejecting the estimate given by the poets and by tradition of the magnitude of the armament. For I suppose if Lacedaemon were to become desolate, and the temples and the foundations of the public buildings were left, that as time went on there would be a strong disposition with posterity to refuse to accept her fame as a true exponent of her power. And yet they occupy two-fifths of Peloponnese and lead the whole, not to speak of their numerous allies without. Still, as the city is neither built in a compact form nor adorned with magnificent temples and public edifices, but composed of villages after the old fashion of Hellas, there would be an impression of inadequacy. Whereas, if Athens were to suffer the same misfortune, I suppose that any inference from the appearance presented to the eye would make her power to have been twice as great as it is. We have therefore no right to be skeptical, nor to content ourselves with an inspection of a town to the exclusion of a consideration of its power; but we may safely conclude that the armament in question surpassed all before it, as it fell short of modern efforts; if we can here also accept the testimony of Homer’s poems, in which, without allowing for the exaggeration which a poet would feel himself licensed to employ, we can see that it was far from equaling ours. He has represented it as consisting of twelve hundred vessels; the Boeotian complement of each ship being a hundred and twenty men, that of the ships of Philoctetes fifty. By this, I conceive, he meant to convey the maximum and the minimum complement: at any rate, he does not specify the amount of any others in his catalogue of the ships. That they were all rowers as well as warriors we see from his account of the ships of Philoctetes, in which all the men at the oar are bowmen. Now it is improbable that many supernumeraries sailed, if we accept the kings and high officers; especially as they had to cross the open sea with munitions of war, in ships, moreover, that had no decks, but were equipped in the old piratical fashion. So that if we strike the average of the largest and smallest ships, the number of those who sailed will appear inconsiderable, representing, as they did, the whole force of Hellas. And this was due not so much to scarcity of men as of money. Difficulty of subsistence made the invaders reduce the numbers of the army to a point at which it might live on the country during the prosecution of the war. Even after the victory they obtained on their arrival—and a victory there must have been, or the fortifications of the naval camp could never have been built—there is no indication of their whole force having been employed; on the contrary, they seem to have turned to cultivation of the Chersonese and to piracy from want of supplies. This was what really enabled the Trojans to keep the field for ten years against them; the dispersion of the enemy making them always a match for the detachment left behind. If they had brought plenty of supplies with them, and had persevered in the war without scattering for piracy and agriculture, they would have easily defeated the Trojans in the field, since they could hold their own against them with the division on service. In short, if they had stuck to the siege, the capture of Troy would have cost them less time and less trouble. But as want of money proved the weakness of earlier expeditions, so from the same cause even the one in question, more famous than its predecessors, may be pronounced on the evidence of what it effected to have been inferior to its renown and to the current opinion about it formed under the tuition of the poets.
Even after the Trojan War, Hellas was still engaged in removing and settling, and thus could not attain to the quiet which must precede growth. The late return of the Hellenes from Ilium caused many revolutions, and factions ensued almost everywhere; and it was the citizens thus driven into exile who founded the cities. Sixty years after the capture of Ilium, the modern Boeotians were driven out of Arne by the Thessalians, and settled in the present Boeotia, the former Kadmeis; though there was a division of them there before, some of whom joined the expedition to Ilium. Twenty years later, the Dorians and the Heraclids became masters of Peloponnese; so that much had to be done and many years had to elapse before Hellas could attain to a durable tranquility undisturbed by removals, and could begin to send out colonies, as Athens did to Ionia and most of the islands, and the Peloponnesians to most of Italy and Sicily and some places in the rest of Hellas. All these places were founded subsequently to the war with Troy.
But as the power of Hellas grew, and the acquisition of wealth became more an object, the revenues of the states increasing, tyrannies were by their means established almost everywhere—the old form of government being hereditary monarchy with definite prerogatives—and Hellas began to fit out fleets and apply herself more closely to the sea. It is said that the Corinthian’s were the first to approach the modern style of naval architecture, and that Corinth was the first place in Hellas where galleys were built; and we have Ameinocles, a Corinthian shipwright, making four ships for the Samians. Dating from the end of this war, it is nearly three hundred years ago that Ameinocles went to Samos. Again, the earliest sea-fight in history was between the Corinthians and Korkyraeans; this was about two hundred and sixty years ago, dating from the same time. Planted on an isthmus, Corinth had from time out of mind been a commercial emporium; as formerly almost all communication between the Hellenes within and without Peloponnese was carried on overland, and the Corinthian territory was the highway through which it travelled. She had consequently great money resources, as is shown by the epithet “wealthy” bestowed by the old poets on the place, and this enabled her, when traffic by sea became more common, to procure her navy and put down piracy; and as she could offer a mart for both branches of the trade, she acquired for herself all the power which a large revenue affords. Subsequently the Ionians attained to great naval strength in the reign of Cyrus, the first king of the Persians, and of his son Cambyses, and while they were at war with the former commanded for a while the Ionian sea. Polycrates also, the tyrant of Samos, had a powerful navy in the reign of Cambyses, with which he reduced many of the islands, and among them Rhenea, which he consecrated to the Delian Apollo. About this time also the Phokaeans, while they were founding Marseilles, defeated the Carthaginians in a sea-fight. These were the most powerful navies. And even these, although so many generations had elapsed since the Trojan War, seem to have been principally composed of the old fifty-oars and long-boats, and to have counted few galleys among their ranks. Indeed it was only shortly the Persian war, and the death of Darius the successor of Cambyses, that the Sicilian tyrants and the Corcyraeans acquired any large number of galleys. For after these there were no navies of any account in Hellas till the expedition of Xerxes; Aegina, Athens, and others may have possessed a few vessels, but they were principally fifty-oars. It was quite at the end of this period that the war with Aegina and the prospect of the barbarian invasion enabled Themistocles to persuade the Athenians to build the fleet with which they fought at Salamis; and even these vessels had not complete decks.
The navies, then, of the Hellenes during the period we have traversed were what I have described. All their insignificance did not prevent their being an element of the greatest power to those who cultivated them, alike in revenue and in dominion. They were the means by which the islands were reached and reduced, those of the smallest area falling the easiest prey. Wars by land there were none, none at least by which power was acquired; we have the usual border contests, but of distant expeditions with conquest for object we hear nothing among the Hellenes. There was no union of subject cities round a great state, no spontaneous combination of equals for confederate expeditions; what fighting there was consisted merely of local warfare between rival neighbors. The nearest approach to a coalition took place in the old war between Chalcis and Eretria; this was a quarrel in which the rest of the Hellenic name did to some extent take sides.
Various, too, were the obstacles which the national growth encountered in various localities. The power of the Ionians was advancing with rapid strides, when it came into collision with Persia, under King Cyrus, who, after having dethroned Croesus and overrun everything between the Halys and the sea, stopped not till he had reduced the cities of the coast; the islands being only left to be subdued by Darius and the Phoenician navy.
Again, wherever there were tyrants, their habit of providing simply for themselves, of looking solely to their personal comfort and family aggrandizement, made safety the great aim of their policy, and prevented anything great proceeding from them; though they would each have their affairs with their immediate neighbors. All this is only true of the mother country, for in Sicily they attained to very great power. Thus for a long time everywhere in Hellas do we find causes which make the states alike incapable of combination for great and national ends, or of any vigorous action of their own.
But at last a time came when the tyrants of Athens and the far older tyrannies of the rest of Hellas were, with the exception of those in Sicily, once and for all put down by Lacedaemon; for this city, though after the settlement of the Dorians, its present inhabitants, it suffered from factions for an unparalleled length of time, still at a very early period obtained good laws, and enjoyed a freedom from tyrants which was unbroken; it has possessed the same form of government for more than four hundred years, reckoning to the end of the late war, and has thus been in a position to arrange the affairs of the other states. Not many years after the deposition of the tyrants, the battle of Marathon was fought between the Medes and the Athenians. Ten years afterwards, the barbarian returned with the armada for the subjugation of Hellas. In the face of this great danger, the command of the confederate Hellenes was assumed by the Lacedaemonians in virtue of their superior power; and the Athenians, having made up their minds to abandon their city, broke up their homes, threw themselves into their ships, and became a naval people. This coalition, after repulsing the barbarian, soon afterwards split into two sections, which included the Hellenes who had revolted from the King, as well as those who had aided him in the war. At the end of the one stood Athens, at the head of the other Lacedaemon, one the first naval, the other the first military power in Hellas. For a short time the league held together, till the Lacedaemonians and Athenians quarreled and made war upon each other with their allies, a duel into which all the Hellenes sooner or later were drawn, though some might at first remain neutral. So that the whole period from the Median war to this, with some peaceful intervals, was spent by each power in war, either with its rival, or with its own revolted allies, and consequently afforded them constant practice in military matters, and that experience which is learnt in the school of danger.
The policy of Lacedaemon was not to exact tribute from her allies, but merely to secure their subservience to her interests by establishing oligarchies among them; Athens, on the contrary, had by degrees deprived hers of their ships, and imposed instead contributions in money on all except Chios and Lesbos. Both found their resources for this war separately to exceed the sum of their strength when the alliance flourished intact.
Having now given the result of my inquiries into early times, I grant that there will be a difficulty in believing every particular detail. The way that most men deal with traditions, even traditions of their own country, is to receive them all alike as they are delivered, without applying any critical test whatever. The general Athenian public fancy that Hipparchus was tyrant when he fell by the hands of Harmodius and Aristogiton, not knowing that Hippias, the eldest of the sons of Pisistratus, was really supreme, and that Hipparchus and Thessalus were his brothers; and that Harmodius and Aristogiton suspecting, on the very day, nay at the very moment fixed on for the deed, that information had been conveyed to Hippias by their accomplices, concluded that he had been warned, and did not attack him, yet, not liking to be apprehended and risk their lives for nothing, fell upon Hipparchus near the temple of the daughters of Leos, and slew him as he was arranging the Panathenaic procession.
There are many other unfounded ideas current among the rest of the Hellenes, even on matters of contemporary history, which have not been obscured by time. For instance, there is the notion that the Lacedaemonian kings have two votes each, the fact being that they have only one; and that there is a company of Pitane, there being simply no such thing. So little pains do the vulgar take in the investigation of truth, accepting readily the first story that comes to hand. On the whole, however, the conclusions I have drawn from the proofs quoted may, I believe, safely be relied on. Assuredly they will not be disturbed either by the lays of a poet displaying the exaggeration of his craft, or by the compositions of the chroniclers that are attractive at truth’s expense; the subjects they treat of being out of the reach of evidence, and time having robbed most of them of historical value by enthroning them in the region of legend. Turning from these, we can rest satisfied with having proceeded upon the clearest data, and having arrived at conclusions as exact as can be expected in matters of such antiquity. To come to this war: despite the known disposition of the actors in a struggle to overrate its importance, and when it is over to return to their admiration of earlier events, yet an examination of the facts will show that it was much greater than the wars which preceded it.
With reference to the speeches in this history, some were delivered before the war began, others while it was going on; some I heard myself, others I got from various quarters; it was in all cases difficult to carry them word for word in one’s memory, so my habit has been to make the speakers say what was in my opinion demanded of them by the various occasions, of course adhering as closely as possible to the general sense of what they really said. And with reference to the narrative of events, far from permitting myself to derive it from the first source that came to hand, I did not even trust my own impressions, but it rests partly on what I saw myself, partly on what others saw for me, the accuracy of the report being always tried by the most severe and detailed tests possible. My conclusions have cost me some labor from the want of coincidence between accounts of the same occurrences by different eye-witnesses, arising sometimes from imperfect memory, sometimes from undue partiality for one side or the other. The absence of romance in my history will, I fear, detract somewhat from its interest; but if it be judged useful by those inquirers who desire an exact knowledge of the past as an aid to the interpretation of the future, which in the course of human things must resemble if it does not reflect it, I shall be content. In fine, I have written my work, not as an essay which is to win the applause of the moment, but as a possession for all time.
The Median War, the greatest achievement of past times, yet found a speedy decision in two actions by sea and two by land. The Peloponnesian War was prolonged to an immense length, and, long as it was, it was short without parallel for the misfortunes that it brought upon Hellas. Never had so many cities been taken and laid desolate, here by the barbarians, here by the parties contending (the old inhabitants being sometimes removed to make room for others); never was there so much banishing and blood-shedding, now on the field of battle, now in the strife of faction. Old stories of occurrences handed down by tradition, but scantily confirmed by experience, suddenly ceased to be incredible; there were earthquakes of unparalleled extent and violence; eclipses of the sun occurred with a frequency unrecorded in previous history; there were great droughts in sundry places and consequent famines, and that most calamitous and awfully fatal visitation, the plague. All this came upon them with the late war, which was begun by the Athenians and Peloponnesians by the dissolution of the thirty years’ truce made after the conquest of Euboea. To the question why they broke the treaty, I answer by placing first an account of their grounds of complaint and points of difference, which no one may ever have to ask the immediate cause which plunged the Hellenes into a war of such magnitude. The real cause I consider to be the one which was formally most kept out of sight. The growth of the power of Athens and the alarm which this inspired in Lacedaemon, made war inevitable. Still it is well to give the grounds alleged by either side which led to the dissolution of the treaty and the breaking out of the war

THE COMMENTARY GAZETTE®

REFERENCE: History of the Peloponnesian War; BY Thucydides
Translated by Richard Crawley
CONTRIBUTOR: John Hague

Peloponnesian War: Dispute Over Epidamnus (435-3 B.C.E.) the beginning

The city of Edidamnus is on the right approach to the Ionic Gulf. It is in foreign territory that is in habited by an Illyrian race called the Taulantians. The place is a colony of Korkyra and it was founded by Phalius, the son of Eraocleides, a Korinthian of the family of the Heraclids. In accordance with the old custom, the founder had been invited from the mother city. Among the colonist there were also a certain number of Korinthians and some other Dorians.

As time went on Epidamnus became both powerful and populous; but there followed many years of political unrest, caused, they say, by a war with the foreign inhabitants of the country. As a result of this Epidamnus declined and lost most of her power. Finally, just before the war between Athens and Sparta, the democratic party drove out the aristocratic party, who then went over to the foreign enemies of the city and joined them in making piratical attacks on it both by sea and by land. The Democrats inside the city now found themselves in difficulties and sent an embassy to Korkyra, begging their mother country not to allow them to perish, and asking for help both in making some settlement with the exiled party and in putting an end to the war with the foreigners. The ambassador’s took up their position in the temple of Hera in Korkyra, and there made their requests, but the people of Korykra refused to receive the ambassadors and sent them back without having achieved anything.

When the people in Epidamnus realized that no help was forthcoming from Korkrya, they were at a loss how to deal with the situation. They therefore sent to Delphi to inquire from the god whether they should hand over their city to the Korinthians, who had founded it, and so get help from that quarter. The reply from Delphi was that they should hand over their city and accept the leadership of Korinth, and make over the colony to the Korinthians. They pointed out that the original founder had come from Korinth; they made public the reply which they had received from Delphi, and they begged the Korinthians to come to their help and not allow them to be destroyed.

The Korinthians agreed to come to their assistance. They felt they had a good right to do so, since they regarded the colony as belonging just as much to them as to Korkrya; and at the same time they hated the Korkryaeans because they failed to show Korinth the respect due from a colony to the mother city. Unlike their other colonies, the Korkryaeans did not give to Korinthians the usual rights and honours at public festivals or allow them the correct facilities for making sacrifices. Instead they looked down upon their mother country, claiming that their financial power at this time made them equal with the richest states in Hellas and that their military resources were greater than those of Korinth. In particular they boasted of their naval superiority, sometimes even basing this claim on the ground that those famous sailors the Phaeacians had inhabited Korkrya before them. This belief did in fact encourage to give particular attention to their navy, which was by no means as inconsiderable one. They had, at the outbreak of war, a fleet of 120 triremes.

All this caused ill feelings, and so the Korinthians were glad enough to send to Epidamnus the help required. They advertised for volunteers to settle there, and sent out a force consisting of Ambraciots, Leucadians, and their own citizens. This force marched by land to Apollonia, a Korinthian colony, avoiding the sea route out of fear that they might be intercepted by the Korkyraeans.

When the Korkyraeans discovered that the settlers and the troops arrived at Epidamnus and that the colony hand been handed over to Korinth, they reacted violently. As soon as the news arrived they put to sea and with twenty-five ships, which were soon followed by another fleet. Sailing up to Epidamnus, they demanded in the most threating and abusive language first that the Epidamnians should reinstate the exiled party. These exiles meanwhile, had come to Korkyra, had appealed to the claims of their family connections (pointing out the tombs of their own ancestors there), and begging for help in being brought back. Secondly they demanded that the Epidamnians should away the troops and settlers that had come from Korinth.

The Epidamnians rejected both demands, and the Korkyraeans began operations against them with a fleet of forty ships. They had with them the exiles, whom they promised to restore to power, and also the Illyrian army. Taking up their positions in front of the city, they proclaimed an offer of immunity to all, whether citizens or not, who would abandon the city; those who failed to take advantage of the opportunity would be treated as enemies. Then, since there was no response to this offer, they began to besiege the city, which stands on the isthmus.

Messengers soon arrived at Korinth with the news that Epidamnus was being besieged, and the Korinthians began to equip a relief force. At the same time they advertised for volunteers to form a new colony at Epidamnus. Those who went out there were to have absolutely equal rights, and those who were not prepared to sail at once, but still wanted to have a share in the colony, could buy this share, together with the right of remaining behind, by putting doe the sum of fifty Korinthian drachmae. There was a wide response to this offer both from people who wanted to sail at once and from people who paid the deposit. Various cities were asto help with ships to escort the convoy in case the Korkyraeans attempted to intercept it. Megara provided eith ships; Pale the Cephallenian city, provided four; five ships came from the Epidaurus, one form Herione, two from Troezen, ten from Leucas, and eight from Ambracia. The Thebans and Phliasians were asked to provide money, the Eleans were asked for money and also for hulls. The Korinthians themselves equipped a fleet of thirty ships and 3,000 hoplites.

When the Korkyraeans heard of these preparations they sent an embassy to Korinth, accompanied by some envoys from Sparta and Sikyon to support them. There they demanded that Korinth should withdrawal her troops and colonists from Epidamus, since Epidamnus was no concern of theirs. They were prepared, however, if Korinth wished to put in a counter claim, to accept arbitration. Cities in the Peloponnese should be chosen by mutual agreement to act as arbitrators, and the colony should go to whichever side the arbitrators awarded it. Alternatively, they proposed referring the matter to the oracle of Delphi. They urged Korinth not to start a war, say that, if she did, they themselves, through no fault of their own, would be forced in sheer self-defense to make friends elsewhere and in quarters where they had no wish to make friends.

The Korinthian reply to this was that if Korkyra withdrew the fleet and foreign army from Epidamnus, then discussion might be profitable, but it was quite absurd to talk of arbitration while the city was still besieged.

The Korkyraeans countered by saying that if the Korinthians also withdraw their forces from Epidamnus, they would do as was suggested. Or, they were prepared to let both sides stay in their present positions and to arrange an armistice to remain in operation until the result of the arbitration was declared.

None of these proposals was acceptable to the Korinthians. By this time their ships were manned and their allies were ready. They sent in front of them a herald to declare war, and then set sail with a force of seventy-five ships and 2,000 hoplites to fight against the Korkryaeans at Epidamnus. The fleet was under the command of Aristeus, son of Pellichas, Callicrates, son of Callias, andTimanor, son of Timanthes. The land forces were commanded by Archetimus, son of Eutytimus and Isarchidas, the son of Isarchus.

They sailed on as far as Actium in Anactoria, at the mouth Ambracian Gulf, where the temple of Apollo stands. Here they were met by a herald from the Korkryaeans who had sailed out in a light boat with instructions to urge them not to attack. At the same time the Korkyraeans were manning their ships; they had fitted new crossbeams in the old vessels to make them sea-worthy and had seen to it that the rest of their fleet was ready for action.

By the time their herald had returned and reported that his offers of peace had been rejected, the ships, eighty of them in all, were manned (forty were still engaged in the siege of Epidamnus). They then put out to sea against the enemy, formed a line, and went into action. The result of the engagement was a decisive victory for the Korkyraeans, who destroyed fifteen Korinthain ships. It happened that on that very same day the besiegers of Epidamnus had forced the city to surrender, the terms being that all foreign troops and settlers in the garrison should be sold as slaves and that Korinthian citizens should be held as prisoners pending further decision.

After the battle the Korkyraeans put up a trophy on Leukimme, a headland of Korkyra. They then put all their prisoners to death, with the exception of the Korinthians, whom they still kept in custody.

The Korinthian and their allies went back home after their defeat in the sea battle, and now Korkyra had complete control of the seas in her own area. A Korkyraean fleet decended on Leukas, a colony of Korinth, and laid its territory waste. They also burnt Cyllene, the Elean port, because the Eeans had provided Korinth with ships and money. So for the most time after the battle the Korkyraeans kept control of the sea and sent fleets to attack the allies of Korinth. Finally, however, at the beginning of the following summer, Korinth, seeing the difficulties in which her allies were placed, sent out a fleet and army. This force, in order to protect Leikas and other friendly cities, held and fortified positions at Actium and around Chimerium in Thesprotis. The Korkyraeans, also with naval and land forces, took up positions opposite them at Leukimme. Here they stayed for the rest of the summer, neither side making any move, and it was not until the beginnings of winter that they retired to their home bases.

THE COMMENTARY GAZETTE®

Source: History of the Peloponnesian War; (Book 1) By Thucydides
Translated by: Rex Warner
CONTRIBUTOR: John Hague

Blackmailers are just people too

The question I ask myself while watching the evening news, about the “hush money” pay offs Michael Cohen is alleged to have made. Then watching Lanny Davis (P.S.> I like the fact he has started a gofundme site to get paid, can see where his priorities lay) gleefully boast about his client’s underhanded dealings, about what seems to me to have been a consensual romantic romp. Why aren’t these two women (Karen McDougal & Stormy Daniels) being prosecuted for Blackmail and Extortion? Instead of being promoted as model citizens who’ve been wronged.

BLACKMAIL [(1)the act of forcing somebody to pay money or do something by threatening to reveal shameful or incriminating facts about him or her. (2) unfair threatening or incriminating of somebody, as a way of achieving a result] EXTORTION [ (1) criminal law the crime of obtaining something such as money or information from somebody by using force, threats, or other unacceptable methods (2) the acquisition of something through the use of force or threats]

They surely fit the requirements for either or both charges. But no one seems interested in those facts. The major story is the President, on how despicable he was in the even considering the liaison. Frothing at the mouth; spitting out the word “Impeachment” with spittle spraying everywhere. Never mind the circumstances concerning the original story, never mind the criminality of demanding  money under threats, never mind the fact it has nothing what so ever to do with Russia. Just focus on the fact that this is so un-american, racist, sexist, and promotes fascism, and this is the only president that has befouled the office, no wait, I thought Bill Clinton did that when Monica left a spot on the rug.

So, why hasn’t the charges been filed, I don’t know, unless this has become an accepted way of gaining money for former porn and ex-playboy models. Perhaps it’s because if the opposition party and the mad dog media don’t deem it a crime to blackmail the soon to be president, its only relevant if his attorney pays up, that’s a crime.

It’s bewildering to understand the logic behind that train of thought, where the victim of a criminal act is under investigation while the perpetrator of the act is viewed as the aggrieved party. Even to the point of given celebrity status, talk shows, interviews and (which I am sure were paid appearances) again it’s just an old time shake down. I not only question the justice system for its failure to open an inquiry into this legal issue, but also the news media for allowing the glorification of a criminal act.

Thank you for taking the time to read this.

THE COMMENTARY GAZETTE®

CONTIBUTOR: Eddy Toorall

A Personal view of History

History has the final judgement of world and life events. Once I settled in too an appreciation of the written word, reading books, I found that the reality of human events far outweighed the fiction that any mind could conceive. As I progressed into my studies to my great surprise did I find that the some of the better fictional stories had their base in factional persons, events, and places. It was the great authors who in their own right were professors of the arts, pertaining to the histories of peoples long lost to our present knowledge which wrote the enduring fictions around said peoples.

Also true is the fact that I now know, that as the events unfold in our own life time seem confusing and contradictive, that in 50 or a 100 years to come, after all the facts hidden from us today shall be revealed. The truth will come to light, the facts will be known and vindication or condemnation shall be assigned accordingly. The times we live in at present are filled with new discoveries each day in the path of humanity’s social advancement from our darkest past, due to the curiosity and dedication of persons with that thirst for the three basic questions of humanity, WHO were they, WHAT did they do, WHERE did they came from and to whence did they go.

I am confident in the knowledge that somewhere somehow perhaps in darkened musky archives the truth shall lay until some inquisitive mind will inadvertently stumble across. Maybe not the answers to questions which originated the enquires they came for, but the deeper they peruse the more intrigued they become. That unquenchable search for truth to which all historians are addicted too, shall finally ignite their detective urges, for historians are not merely scribes of the present but investigators of the past.

Though perhaps neither you nor I shall ever know the absolute truth of today’s events, be assured that it shall be exposed to generations yet to come. Censorship is the greatest foe to history for its presentation in the present, but oral transmission of information has always been the mainstay of humanity, I still have faith in this. I still have faith in that human need for knowledge, for the truth and the eventual uncovering of such.

A saying I have always found interesting is “those who forget the past, are doomed to repeat it” (cannot recall who said it or if that is the direct quote, but it carries the jest of it). Another quote I hold dear is from Abraham Lincoln in the banner of this blog, pause a moment and reflect on those words.

From myself and staff contributors we thank you for taking the time to read the articles presented here and hope they are informative and entertaining.

THE COMMENTARY GAZETTE®

CONTRIBUTOR: Eddy Toorall

Roman Empire: End of the German Revolt (Part 29)

After the severe reverse at Trier Civilis recruited his army in Germany, and pitched his camp near Vetera. The position was a safe one, and he hoped to inspirit his native troops with the memory of their former victories there. Cerialis followed in his footsteps, with forces now doubled by the arrival of the Second,[Adiutrix] Thirteenth, and Fourteenth legions, besides auxiliary troops, both horse and foot,[Before this Cerialis had five legions, I, IV, XVI, XXI, and XXII, but of these only XXI was in full force, so these new reinforcements may have doubled his army. The auxiliaries had been called out by Hordeonius Flaccus] who had long received their summons and came hurrying on the news of victory. Neither general was dilatory, but a vast plain lay between them. It was by nature swampy, and Civilis had built a dam projecting into the Rhine, which stemmed the current and flooded the adjacent fields. The treacherous nature of the ground, where the shallows were hard to find, told against our men, who were heavily armed and afraid of swimming. The Germans, on the other hand, were used to rivers, lightly armed, and tall enough to keep their heads above water.

Provoked by the Batavi, the bravest of our troops opened the engagement at once, but soon fell into a panic when their arms and horses began to sink in the deep marshes. The Germans, who knew the fords, came leaping across them, often leaving our front alone and running round to the flanks or the rear. It was not like an infantry engagement at close quarters, but more like a naval battle. The men floundered about in the water or, finding firm foothold, strove with all their might for possession of it. Thus, wounded and whole, those who could swim and those who could not, struggled helplessly with each other and perished all alike. However, considering the confusion, our loss was less than might have been expected, for the Germans, not daring to venture out of the marsh, withdrew to their camp. The result of this engagement gave each of the generals a different motive for hastening on a decisive battle. Civilis wanted to follow up his success, Cerialis to wipe out his disgrace. Success stimulated the pride of the Germans; the Romans thrilled with shame. The natives spent the night singing uproariously, while our men muttered angry threats.

At daybreak Cerialis formed up his cavalry and the auxiliary cohorts on his front, with the legions behind them, while he himself held a picked body in reserve for emergencies. Civilis did not deploy his line, but halted them in columns, [Perhaps ‘in wedge-formation’] with the Batavi and Cugerni on his right, and the forces from across the Rhine[Bructeri, Tencteri] near the river on the left. Neither general followed the usual custom of haranguing the whole army. They rode along and addressed their various divisions in turn. Cerialis spoke of the ancient glory of the Roman name and of all their victories old and new. He urged them ‘to blot out for ever their treacherous and cowardly enemy whom they had already beaten. They had to punish not to fight them. They had just fought against superior numbers and had yet routed the Germans, and, moreover, the pick of their troops. This remnant had their hearts full of panic and all their wounds behind them.’ He then gave special encouragement to each of the legions, calling the Fourteenth the conquerors of Britain, reminding the Sixth that the influence of their example had set Galba on the throne, and telling the Second that in the coming fight they would for the first time dedicate their new colours and their new eagle to Rome’s service.[They had been newly enrolled] Then riding along to the German army, [i.e. the Roman army of occupation which had joined the Gauls and come over again] he pointed with his hand and bade them recover their own river-bank and their own camp[Vetera] at the enemy’s expense. They all cheered with hearts the lighter for his words. Some longed for battle after a long spell of quiet: others were weary of war and pined for peace, hoping that the future would bring them rest and recompense.

Nor was there silence in Civilis’ lines. As he formed them up he appealed to the spot as evidence of their valour. The Germans and Batavians were standing, he told them, ‘on the field of their glory, trampling the charred bones of Roman soldiers under foot. Wherever the Romans turned their eyes they saw nothing but menacing reminders of surrender and defeat. They must not be alarmed by that sudden change of fortune in the battle at Trier. It was their own victory which hampered the Germans there: they had dropped their weapons and filled their hands with loot. Since then everything had gone in their favour and against the Romans. He had taken every possible precaution, as befitted a cunning general. They themselves were familiar with these soaking plains, but the swamps would be a deadly trap for the enemy. They had the Rhine and the gods of Germany before their eyes, and in the might of these they must go to battle, remembering their wives and parents and their fatherland. This day would either gild the glory of their ancestors or earn the execration of posterity.’ They applauded his words according to their custom by dancing and clashing their arms, and then opened the battle with showers of stones and leaden balls and other missiles, trying to lure on our men, who had not yet entered the marsh.

Their missiles exhausted, the enemy warmed to their work and made an angry charge. Thanks to their great height and their very long spears they could thrust from some distance at our men, who were floundering and slipping about in the marsh. While this went on, a column of Batavi swam across from the dam which, as we described above, [Stationed in the Rhine] had been built out into the Rhine. This started a panic and the line of our auxiliaries began to be driven back. Then the legions took up the fight and equalized matters by staying the enemy’s wild charge. Meanwhile a Batavian deserter approached Cerialis, avowing that he could take the enemy in the rear if the cavalry were sent round the edge of the swamp: the ground was solid there, and the Cugerni, whose task it was to keep watch, were off their guard. Two squadrons of horse were sent with the deserter, and succeeded in outflanking the unsuspecting enemy. The legions in front, when the din told them what had happened, redoubled their efforts. The Germans were beaten and fled to the Rhine. This day might have brought the war to an end, had the Roman fleet arrived in time. As it was, even the cavalry were prevented from pursuit by a sudden downpour of rain shortly before nightfall.

On the next day the Fourteenth legion were sent to join Annius Gallus in Upper Germany, and their place in Cerialis’ army was filled by the Tenth from Spain. Civilis was reinforced by the Chauci. Feeling that he was not strong enough to hold the Batavian capital, [Cleves] he took whatever was portable with him, burnt everything else, and retired into the island. He knew that the Romans had not enough ships to build a bridge, and that they had no other means of getting across. He also destroyed the mole built by Drusus Germanicus. [This mole, begun by Drusus in A.D. 9, was built out from the left bank of the Rhine near Cleves. It turned most of the water into the Lek, thus making the island easily accessible from the Roman side and barring access from the north. Civilis now reversed this position. His friends were now on the north. The swollen Waal would be an obstacle to the Romans] As the bed of the Rhine here falls towards Gaul, his removal of all obstacles gave it free course; the river was practically diverted, and the channel between the Germans and the island became so small and dry as to form no barrier between them. Tutor and Classicus also crossed the Rhine, [i.e. the Waal] together with a hundred and thirteen town-councillors from Trier, among whom was Alpinius Montanus, who, as we have already seen, had been sent by Antonius Primus into Gaul. He was accompanied by his brother. By arousing sympathy and by offering presents, the others, too, were all busy raising reinforcements among these eagerly adventurous tribes.

The war was far from being over. Dividing his forces, Civilis suddenly made a simultaneous attack on all four Roman garrisons—the Tenth at Arenacum, the Second at Batavodurum, and the auxiliary horse and foot at Grinnes and at Vada. [These places cannot be certainly identified. They must have lain on the south of the Waal, probably east and west of Nymwegen] Civilis himself, Verax his nephew, Classicus and Tutor each led one of the attacking parties. They could not hope all to be successful, but reckoned that, if they made several ventures, fortune would probably favour one or the other. Besides, Cerialis, they supposed, was off his guard; on receiving news from several places at once he would hurry from one garrison to another, and might be cut off on his way. The party told off against the Tenth considered it no light task to storm a legion, so they fell on the soldiers, who had come outside to cut timber, and killed the camp-prefect, five senior centurions, and a handful of the men. The rest defended themselves in the trenches. Meanwhile another party of Germans endeavoured to break the bridge [Across the now swollen Waal] which had been begun at Batavodurum, but nightfall put an end to the battle before it was won.

The attack on Grinnes and Vada proved more formidable. Civilis led the assault on Vada, Classicus on Grinnes. Nothing could stop them. The bravest of the defenders had fallen, among them, commanding a cavalry squadron, Briganticus, whom we have seen already, as a faithful ally of Rome and a bitter enemy of his uncle Civilis. However, when Cerialis came to the rescue with a picked troop of horse, the tables were turned, and the Germans were driven headlong into the river. While Civilis was trying to stop the rout he was recognized, and finding himself a target, he left his horse and swam across the river. Verax escaped in the same way, while some boats put in to fetch Tutor and Classicus.

Even now the Roman fleet had not joined the army. They had, indeed, received orders, but fear held them back, and the rowers were employed on various duties elsewhere. It must be admitted, also, that Cerialis did not give them time enough to carry out his orders. He was a man of sudden resolves and brilliant successes. Even when his strategy had failed, good luck always came to his rescue. Thus neither he nor his army cared much about discipline. A few days later, again, he narrowly escaped being taken prisoner and did not escape disgrace.

He had gone to Novaesium and Bonn to inspect the winter quarters that were being built for his legions, and was returning with the fleet. [Which he had found on his way] The Germans noticed that his escort [Marching along the bank] straggled, and that watch was carelessly kept at night. So they planned a surprise. Choosing a night black with clouds they slipped down stream and made their way unmolested into the camp. [Pitched on the left bank somewhere between Novaesium and Vetera. The German assailants were probably Tencteri] For the first onslaught they called cunning to their aid. They cut the tent-ropes and slaughtered the soldiers as they struggled under their own canvas. Another party fell on the ships, threw hawsers aboard, and towed them off. Having surprised the camp in dead silence when once the carnage began they added to the panic by making the whole place ring with shouts. Awakened by their wounds the Romans hunted for weapons and rushed along the streets, [Dividing the different portions of the camp] some few in uniform, most of them with their clothes wrapped round their arms and a drawn sword in their hand. The general, who was half-asleep and almost naked, was only saved by the enemy’s mistake. His flag-ship being easily distinguishable, they carried it off, thinking he was there. But Cerialis had been spending the night elsewhere; as most people believed, carrying on an intrigue with a Ubian woman named Claudia Sacrata. The sentries sheltered their guilt under the general’s disgrace, pretending that they had orders to keep quiet and not disturb him: so they had dispensed with the bugle-call and the challenge on rounds, and dropped off to sleep themselves. In full daylight the enemy sailed off with their captive vessels and towed the flag-ship up the Lippe as an offering to Veleda.

Civilis was now seized with a desire to make a naval display. He manned all the available biremes and all the ships with single banks of oars, and added to this fleet an immense number of small craft. These carry thirty or forty men apiece and are rigged like Illyrian cruisers. The small craft he had captured [But the ships captured by Civilis were not small craft. Perhaps “luntres” is here repeated from the preceding sentence by mistake for “naves” or “puppes] were worked with bright, parti-colored plaids, which served as sails and made a fine show. He chose for review the miniature sea of water where the Rhine comes pouring down to the ocean through the mouth of the Maas. [The de Noord channel carries the combined waters of the Maas and the Waal into the Lek a few miles above Rotterdam. From the point of this confluence to the sea the Lek takes the name of Maas] His reason for the demonstration–apart from Batavian vanity–was to scare away the provision-convoys that were already on their way from Gaul. Cerialis, who was less alarmed than astonished, at once formed up a fleet. Though inferior in numbers, he had the advantage of larger ships, experienced rowers, and clever pilots. The Romans had the stream with them, the Germans the wind. So they sailed past each other, and after trying a few shots with light missiles they parted. Civilis without more ado retired across the Rhine. [Into the country of the Frisii up toward the Zuyder Zee] Cerialis vigorously laid waste the island of the Batavi, and employed the common device of leaving Civilis’s houses and fields untouched. [To make his party suspect that he was in league with the Romans] They were now well into autumn. The heavy equinoctial rains had set the river in flood and thus turned the marshy, low-lying island into a sort of lake. Neither fleet nor provision-convoys had arrived, and their camp on the flat plain began to be washed away by the force of the current.

Civilis afterwards claimed that at this point the Germans could have crushed the Roman legions and wanted to do so, but that he had cunningly dissuaded them. Nor does this seem far from true, since his surrender followed in a few days’ time. Cerialis had been sending secret messages, promising the Batavians peace and Civilis pardon, urging Veleda and her relatives to change the fortune of a war that had only brought disaster after disaster, by doing a timely service to Rome. [i.e. by betraying Civilis to them] ‘The Trevirii,’ he reminded them, ‘had been slaughtered; the allegiance of the Ubii recovered; the Batavians robbed of their home. By supporting Civilis they had gained nothing but bloodshed, banishment, and bereavement. He was a fugitive exile, a burden to those who harboured him. Besides, they had earned blame enough by crossing the Rhine so often: if they took any further steps,–from the one side they might expect insult and injury, from the other vengeance and the wrath of heaven.’

Thus Cerialis mingled threats and promises. The loyalty of the tribes across the Rhine was shaken, and murmurs began to make themselves heard among the Batavi. ‘How much further is our ruin to go?’ they asked. ‘One tribe cannot free the whole world from the yoke. What good have we done by slaughtering and burning Roman legions except to bring out others, larger and stronger? If it was to help Vespasian that we have fought so vigorously, Vespasian is master of the world. If we are challenging Rome–what an infinitesimal fraction of the human race we Batavians are! We must remember what burdens Raetia and Noricum and all Rome’s other allies bear. From us they levy no tribute, only our manhood and our men. [Tacitus remarks in the “Germania” (chap. 29) that the Batavi do not suffer the indignity of paying tribute, but, ‘like armour and weapons are reserved for use in war] That is next door to freedom. And, after all, if we have to choose our masters, it is less disgrace to put up with Roman emperors than with German priestesses.’ Thus the common people: the chieftains used more violent language. ‘It was Civilis’ lunacy that had driven them to war. He wanted to remedy his private troubles by ruining his country. The Batavians had incurred the wrath of heaven by blockading Roman legions, murdering Roman officers, and plunging into a war which was useful for one of them and deadly for the rest. Now they had reached the limit, unless they came to their senses and openly showed their repentance by punishing the culprit.’

Civilis was well aware of their changed feelings and determined to forestall them. He was tired of hardship, and he felt, besides, that desire to live which so often weakens the resolution of the bravest spirits. He demanded an interview. The bridge over the river Nabalia [Perhaps the Neue Yssel, near Arnhem] was broken down in the middle, and the two generals advanced on to the broken ends. Civilis began as follows: ‘If I were defending myself before one of Vitellius’ officers, I could expect neither pardon for my conduct nor credence for my words. Between him and me there has been nothing but hatred. He began the quarrel, I fostered it. Towards Vespasian I have from the beginning shown respect. When he was a private citizen, we were known as friends. Antonius Primus was aware of this when he wrote urging me to take up arms to prevent the legions from Germany and the Gallic levies from crossing the Alps. The instructions which Antonius gave in his letter Hordeonius Flaccus ratified by word of mouth. I raised the standard in Germania, as did Mucianus in Syria, Aponius in Moesia, Flavianus in Pannonia….'[The rest is lost.]

THE COMMENTARY GAZETTE®

REFERENCE: The Histories (Book 5) of Publius Cornelius Tacitus: Translated w/Notation: By W. HAMILTON FYFE (1912)
CONTRIBUTOR: Callum McCormick

Iranians amongst us or don’t sweat the Mueller investigation

While CNN, MSNBC and the rest of the United States are engrossed with the Mueller Russian escapade, just what is the rest of the world doing. Well, according to the BBC (British Broadcasting Company) they are spying on us and little of it is reported by the national news networks, so much for “BREAKING NEWS”. The following is an out take from the BBC article.

[The two, Iranian-US citizen Ahmadreza Mohammadi Doostdar and Majid Ghorbani, an Iranian living in California, were arrested on 9 August.

“Doostdar and Ghorbani are alleged to have acted on behalf of Iran, including by conducting surveillance of political opponents and engaging in other activities that could put Americans at risk,” said Assistant Attorney General for National Security John Demers.

In or around July 2017, Mr Doostdar, 38, travelled to the US from Iran to collect information about organizations Iran sees as enemies, the indictment alleges.(US Justice Department)

These included Jewish and Israeli interests and the opposition Mujahideen-e Khalq (MEK), which Iran calls a terrorist organization bent on overthrowing the government

Mr Doostdar took photographs of the Jewish Rohr Chabad House, including its security features, it is alleged.

Mr Ghorbani, 59, attended an MEK rally in New York in September of last year, the documents say, where he photographed people taking part in a protest against the Iranian leadership.

Three months later, he was paid $2,000 (£1,500) by Mr Doostdar for the photographs, many with notes about the individuals pictured.

The transaction took place in the Los Angeles area after Mr Doostdar returned from a visit to Iran, prosecutors say.

According to the indictment, the pictures and a receipt for $2,000 were found in his luggage at a US airport as he returned to Iran last December.

Mr Ghorbani is said to have made a trip to Iran in March 2018 to give an “in-person briefing” and receive instructions on infiltrating the MEK.

Two months later, he is alleged to have attended an MEK-linked Iran Freedom Convention for Human Rights in Washington.

He is said to have photographed speakers and others attending before discussing with Mr Doostdar how to covertly get the information back to Iran]

I just wonder what other little mischiefs they were up to.

Thank you for taking the time to read this.

THE COMMENTARY GAZETTE®

RESOURSE: British Broadcasting Company (News)

CONTRIBUTOR: Eddy Toorall