European Headlines: 11-15-2018

Germany (DW):Migrant arrivals in EU set to reach 5-year low;Illegal border crossings have continued to drop, putting this year’s rate on track to be the lowest since 2013, Frontex has said. Despite this, an EU dispute over the arrivals continues to feed anti-migrant sentiment.

(DW) Migrants refuse to disembark in Libya after being rescued at sea; The 94 passengers were rescued by a passing container ship last week as they were en-route to Italy. After being returned to Libya they have refused to get off the ship.

(DW)Alexei Navalny’s European court date puts pressure on Kremlin; The Russian dissident politician has been repeatedly arrested and tried for his protests. Each time, he has called on Europe’s human rights court for help. But will that path remain open after Thursday’s decision?

(DW) German prosecutors to investigate far-right AfD’s Alice Weidel over donations; Prosecutors have begun a probe into AfD leader Alice Weidel over the alleged use of foreign donations to pay for internet campaigning. The party received large sums of money from donors in Switzerland and Belgium.

(DW) Turkish court sentences German-Kurdish singer to six years in prison; A German woman has been found guilty of being a member of a terrorist organization by the Turkish government. She is the third German citizen in as many months to be sentenced to prison in Turkey.

(DW) Dutch court blocks bid to ban blackface Black Pete character; Activists wanted the court to block broadcasters from showing the character’s “racist characteristics.” One broadcaster justified airing images of Black Pete because he goes “down the chimney a lot.”

(DW) United States risks losing military edge, report says; A commission investigating Donald Trump’s defense strategy has said the US could lose a military conflict with China or Russia. It argued that the US’ ability to defend itself and its allies was in doubt.

(DW)Macedonian ex-PM escapes jail term, flees to Hungary; Hungarian strongman Viktor Orban and embattled former Macedonian PM Nikola Gruevski have long been allies. Facing extensive corruption allegations at home, Gruevski now appears set to request asylum in Budapest.

(DW) Massive Italian anti-mafia operation results in scores of arrests; Italy’s anti-mafia police have struck a major blow to the Italian mob in an international sting. Rival groups were said to have worked together to make billions through online gambling.

(DW)’These missiles can reach Berlin,’ warns Lithuania’s foreign minister; Lithuania’s Linas Linkevicius tells DW that Russia has been violating the terms of the INF nuclear arms treaty. He says action is necessary to force all parties to comply with the agreement.

France (France 24) France a ‘historic’ ally of US, not a vassal state, says Macron; French President Emmanuel Macron said in an interview on Wednesday two long-time allies like France and America should treat each other with respect, after US President Donald Trump attacked him on Twitter.

(France24) EU lawmakers seek checks on arms exports fueling Yemen conflict; Tougher checks on European Union arms exports are needed and sanctions should be imposed on those countries that flout the bloc’s rules, the European Parliament said on Wednesday.

(France24)UN Security Council lifts arms embargo, targeted sanctions on Eritrea; The UN Security Council on Wednesday lifted sanctions on Eritrea following a landmark peace deal with Ethiopia and a thaw with Djibouti that have buoyed hopes for positive change in the Horn of Africa.

(France24) Italy refuses to back down in budget standoff with EU; Italy’s populist government defied the European Commission Tuesday by sticking to its big-spending budget plan, risking financial sanctions in a high-stakes standoff with Brussels.

(France24) ‘Paris Call’: 51 states vow support for global rules on cyberweapons; Fifty-one states, including all EU members, have pledged their support for a new international agreement to set standards on cyberweapons and the use of the internet, the French government said Monday.

(France24) Deadly clashes erupt in Cameroon’s restive English-speaking region; Twenty-five separatists were killed Tuesday in fighting in a restive English-speaking region of Cameroon, security officials said Wednesday.

(France24) Ebola death toll in DR Congo tops 200; The death toll from an Ebola outbreak in eastern Democratic Republic of Congo has risen to more than 200, the health ministry said on Saturday.

THE COMMENTARY GAZETTE®

CONTRIBUTOR: Staff

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European Headlines: 11-13-2018

Germany: (DW) Gang accused of laundering millions in Germany; The group is said to have laundered drug money for South American cartels for years — above all in Germany. With the defendants facing trial today in Paris, German reporters unveil how they were able to pull it off.

(DW) Europe should focus on NATO; says Stolenberger; NATO Secretary General Jens Stoltenberg has told DW that European defense efforts should remain within the alliance. Stoltenberg also criticized Russia over its SSC-8 missile program, saying it breached the INF treaty.

(DW) Angela Merkel and the future of the EU; European Union leaders fear Angela Merkel’s weakened power could be a liability for the bloc. When it comes to political heavyweights in Europe, the German chancellor has long been top of the list.

(DW) Ethiopia: Dozens of top officials arrested; The high-profile arrests for abuse and corruption come as Prime Minister Abiy Ahmed implements reforms. The attorney general also accused intelligence figures of an assassination attempt against the new prime minister.

(DW) Italy host Libya summit to end crisis; Italy is trying to show leadership to end the Libya crisis in a bid to stem migration and promote stability in North Africa. It is the first time rival Libya factions and international powers have held talks since May.

(DW) German Foreign Minister Heiko Maas calls for China transparency; Despite warnings from China that Germany should not interfere in its internal affairs, Foreign Minister Heiko Maas called on Beijing to be transparent about the human rights conflict surrounding the Uighur Muslims.

(DW) Bulgaria opposes UN pact for safe and orderly migration; Bulgaria has said it opposes a UN pact on regulating the treatment of migrants and refugees. A growing number of EU states are voicing their reservations about the historic global agreement.

(DW) Is the EU kowtowing to the Kremlin on Magnitsky sanctions; Bill Browder has spent nine years campaigning to punish Russian officials responsible for killing his friend Sergei Magnitsky. He hopes Moscow’s increased aggression will convince Europe it’s time to act.

France: (France24) France to use social media to track down tax cheats; French Budget Minister Gérald Darmanin unveiled on Sunday a plan to extend the use of social media in the fight against tax evasion, a tactic that was first successfully tried in the UK.

(France24) France to mark anniversary of deadliest terrorist attack; France on Tuesday is marking the third anniversary of the country’s deadliest ever terrorist attacks with a procession linking the areas in and around Paris that were struck by jihadist gunmen on November 13, 2015.

(France24) Death toll mounts as violence between Israel and Hamas escalates; Israel’s military said it was carrying out air strikes “throughout the Gaza Strip” on Monday after a barrage of rocket fire from the Palestinian enclave towards its territory, with casualties on both sides.

THE COMMENTARY GAZETTE®

CONTRIBUTOR: Staff

Hypocrisy of the Press and Media on classified documents

Since the President of the United States has decided to declassify the contents of a FISA warrant the press has all but called the act “criminal”. Claiming it endangers the security of the nation with in its context if released.  I find this strange, as I have witness more blatant security risks by their release of classified secrets in the printed press. 1971 the New York Time released the ‘Pentagon Papers’ by Daniel Ellsberg, these were CLASSIFIED documents dealing with secret information concerning the conduct of the Vietnam War. Wasn’t any condemnation of this act, even though it breached national security. As a matter of fact it was touted by them as the public’s right to know, and presented as an act of patriotism. Then again more recently with Edward Snowden (National Security Agency, 4 laptops with terra bits of CLASSIFIED information) and Chelsea Manning (United States Army, more than 750, 000 CLASSIFIED documents), both hailed as heroes of the people. But which people? Not my hero’s, traitors I call them. Sworn to up hold the laws of the nation to which they betrayed. Yet the press applauded and even awarded them. Academia even bestowed laurels on Snowden, even international awards. Of course most of it came from foreign nations, and why not, it only denuded the United States of their security, not theirs. (P.S. ever notice how all the Russian hacking started after Snowden landed in Russia?)Manning even received a Presidential Commutation of Sentence (January 2017)from Barack Obama, amazing.

But the press or the media did not scream outrage at any of those above, yet praised them in their acts of courage to confront their own government in a dishonorable act. Yet the President which has the authority under the Constitution to make public what information to which he believes is a benefit for the people to know, is ridiculed, berated and slandered. America are you truly that naïve? 

Thank you for taking the time to read this

THE COMMENTARY GAZETTE®

CONTRIBUTOR: Eddy Toorall

The Nolan Act & John Kerry

Since it has come to light than former Secretary of State John Kerry has been meeting with the government of Iran, which seems to be in response to the cancelation of the Iran nuclear agreement that he negotiated during the Obama administration. Some in the Congress have raised the question as to whether he is in violation of the “Nolan Act”. I now present the statute as it is written.

United States Code Title 18; Part 1-Crimes; Chapter 45

 §953. Private correspondence with foreign governments
Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.
This section shall not abridge the right of a citizen to apply, himself or his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects.
(June 25, 1948, ch. 645, 62 Stat. 744 ; Pub. L. 103–322, title XXXIII, §330016(1)(K), Sept. 13, 1994, 108 Stat. 2147 .)
Historical and Revision Notes
Based on title 18, U.S.C., 1940 ed., §5 (Mar. 4, 1909, ch. 321, §5, 35 Stat. 1088 ; Apr. 22, 1932, ch. 126, 47 Stat. 132 ).
The reference to any citizen or resident within the jurisdiction of the United States not duly authorized “who counsels, advises or assists in such correspondence with such intent” was omitted as unnecessary in view of definition of principal in section 2.
Mandatory punishment provision was rephrased in the alternative.
Minor changes of arrangement and in phraseology were made.
Amendments
1994-Pub. L. 103–322 substituted “fined under this title” for “fined not more than $5,000” in first par.

§954. False statements influencing foreign government
Whoever, in relation to any dispute or controversy between a foreign government and the United States, willfully and knowingly makes any untrue statement, either orally or in writing, under oath before any person authorized and empowered to administer oaths, which the affiant has knowledge or reason to believe will, or may be used to influence the measures or conduct of any foreign government, or of any officer or agent of any foreign government, to the injury of the United States, or with a view or intent to influence any measure of or action by the United States or any department or agency thereof, to the injury of the United States, shall be fined under this title or imprisoned not more than ten years, or both.
(June 25, 1948, ch. 645, 62 Stat. 744 ; Pub. L. 103–322, title XXXIII, §330016(1)(K), Sept. 13, 1994, 108 Stat. 2147 .)
Historical and Revision Notes
Based on section 231 of title 22, U.S.C., 1940 ed., Foreign Relations and Intercourse (June 15, 1917, ch. 30, title VIII, §1, 40 Stat. 226 ; Mar. 28, 1940, ch. 72, §6, 54 Stat. 80 ).
Mandatory punishment provision was rephrased in the alternative.
Words “department or agency” were added to eliminate any possible ambiguity as to scope of section. (See definitive section 6 of this title.)
Minor changes were made in phraseology.
Amendments
1994-Pub. L. 103–322 substituted “fined under this title” for “fined not more than $5,000”.

THE COMMENTARY GAZETTE®

SOURCE: (HoR) Office of the Law Revision Council: United States Code
CONTRIBUTOR: Eddy Toorall

For Prosperities Sake

Internal resistance (1. opposition to somebody or something 2. refusal to accept or comply with something) to the elected administration of any government is called subversion (an action, plan, or activity intended to undermine or overthrow a government or other institution). Taking in to account the so called good intentions of the acts which hinder or thwart the actions of said government; this is still a very dangerous method of preventing the governmental control. This definitely is not the way in the United States or any democratic government. Disagreement and /or opposition to political ideologies are basic for a democracy, you say ‘yes’ I say ‘no’. But to actively work for the failure of instead of correcting the actions of a government is insurrection (a rebellion against the government or rulers of a country, often involving armed conflict) this in no way can be justified.

Advocating the assassination (which many celebrities have done) or the call for open populist resistance in the form of “push back”, as meaning a physical obstruction of the members of an opposite political party (in public) or the government officials of a dis-affectionate political party in open session blatantly flaunting the ‘rule of law’ by boasting about breaking the laws to which they swore an oath to protect, to me this is sedition (actions or words intended to provoke or incite rebellion against government authority, or actual rebellion against government authority).

These actions are contrary to all the ideas of the founding of the United States. The Constitution was established to address all the failings of government and to adjust or correct such. Congress should be the more aware of this than any other, they take the oath to support and defend the constitution, they make the laws which govern the nation in accordance to the constitution, and they should not be the ones to boast about violating it.

If this sets precedence for this administration what can we expect in the next? To what lengths will the parties resort to in future elects? Shall we see the military guarding voting stations, shall we read about candidates being assassinated, as we see I other countries? Perhaps we will witness the discontented senators breaking away and forming a rebellious sub-nation, as we have endured once before? These things are happening all around the world now. We have the greatest instrument of democracy to readjust the working of government the Constitution. Instead of working for the downfall of a government let us use this instrument to create the government we can all benefit from.

Congress you are entrusted by the people to be the guardian of the law, do so. The Supreme Court you are entrusted by the people to be the interpreter of the law, do so.

Those that disregard the law have failed to live up to the ideas of the founders of this republic and disgraced your selves in the eyes of the people. Resist all that you can instead of working to repair what you see as a flaw, and prosperity will be the judges never doubt that.

I would sign this as anonymous (lacking individuality or distinctiveness) but then you would have thought this was penned by a 6th grader working on a social studies project.

P.S. If you have read the true story of the Spartacus rebellion 73-71 B.C.E., then you know he was not a hero but a butcher of humanity.

Thank you for taking the time to read this

THE COMMENTARY GAZETTE®

CONTIBUTOR: Eddy Toorall

Internal Governmental Resistance or the fall of governments

Fears of a Non-Democratic Government; With the recent so called revelations in an anonymous letter to a newspaper purportedly by a member of the Presidential staff, and the admitted violation of Senate Rules of secrecy and disclosure from a sitting Senator currently on the Judiciary Committee (Corey Booker D-NJ), both stun and alarm me as a citizen. Has the so called “resistance” turned in to an insurgency with in the government? If so, do they truly understand the ramifications of such a movement? Coup is nasty word in the English language, associated with third world countries with depot dictators, but history teaches us different, even a modern western civilized democratic country can become the victim of a political coup, as in Germany January 30, 1933. So much talk these days is given to the supposition of the reemergence of fascists, but is any one fully aware how the first transition of NAZI power took place. It was not open rebellion, it was not an armed revolution as in Russia 1917; it was a slow process over years of political maneuverings. Adolph Hitler was not elected he was appointed by an elected President with the consent of an elected governing body (Reichstag, the German Congressional body), to which Hermann Wilhelm Gӧring was the elected President of that body (equal as to the Speaker of the House). This is a political coup from within the duly elected government, a resistance to the democratically elected government by the people with the in sole intent to over throw and said government, and affects the “seizure of power” from that government. Hermann Wilhelm Gӧring said as much in his own words at the Nurnberg Military Tribunal of Major War Crimes Trials 1945-46.

The following are exerts from that trial which detail the “seizure of power” from within the German government in a legal manner by ‘insurgence resistance’.

Volume IX  77th Day 11 March 1946

JUSTICE JACKSON: I notice that you use here, as you have used in your interrogations by the United States, the expression “seizure of power.” That was the common expression used in your group, was it not, to describe the coming to power of Adolf Hitler?

BӦDENSCHÄTZ: It cannot be used in this sense. At that time it was completely legal because the National Socialist Party was then the strongest party, and the strongest party nominated the Reich Chancellor, and the strongest party had, as such, the greatest influence. It must not be interpreted to mean that they usurped the power, but that they had the most influential and prominent position among the parties, that is, by the completely legal means of election.

Volume IX  79th day 12 March 1946

STAHMER: What do you know about the institution of the Secret State Police, the Gestapo?

KӦRNER: In the first months after the seizure of power the Secret State Police evolved from the Political Police Department Ia. Basically the Political Police Department remained; it was only reorganized under the name of Secret State Police.

Volume IX 80th Day 13 March 1946

STAHMER: What was your position in the Party during the period from 1928 until the seizure of power?

GӦRING: I had no office in the Party. I was never a political leader in the Party-that is perhaps strange-either in the Reich party Directorate or elsewhere. I was first of all, as I said, a member of the Reichstag and thereby a member of the Reichstag faction of the Party. At the same time I was the Party speaker, that is, I travelled from city to city and tried to do whatever I could to extend the Party, to strengthen it, to recruit and convince new members, and especially to win over to our side Communist and Marxist adherents in order to create a broad base among the people and not to have Rightist circles only, which were nationalist of themselves.

From the middle of 1932 on, after we had weathered countless elections and for all of these elections had had to participate in the campaigns by holding speeches, for example, often three in one evening, often the whole night long; I, as a member d the Party, or better said, because our Party had the strongest representation in the Reichstag, was chosen President of the Reichstag and thereby took over a generally political task.

Shortly before, at the end of 1931, when I saw that the Party had grown to an extraordinary extent and was gaining, the Führer said to me that he would very much like to have a direct representative who was independent of a Party office and who could C-out political negotiations. This person was not to be tied down to any particular Party office. He asked me whether I would take over this function, especially as I was living in the capital of the Reich anyway.

I took over this commission-it was not an office, but rather a commission of-a general nature. In a few sentences he gave me the liberty to negotiate with all parties from the Communists to the extreme Rightists, in order, let us say, to undertake specific joint action in the Reichstag, or other suitable political steps. Naturally also I was given in this connection, the task of effecting the dissemination and the penetration of our ideals in all circles. To these circles belonged, as has already been mentioned, the industrial and intellectual groups. Since I had connections with and access to all these circles, it was quite natural that the Führer considered me especially suited for this task, as he could depend upon me absolutely in this respect and knew that I would use all my powers to advance Our ideas. When I became President of the Reichstag my task in this capacity was greatly eased, for now I was, so to speak, legally authorized and even obliged to participate in political events. If, for instance, a government resigned in the Reichstag or fell through a vote of no confidence, it was my duty as President of the Reichstag, to suggest to the Reich President, after having negotiated with the parties, what the possibilities were in my opinion for a new coalition government. Thus the Reich President was always bound to receive me in this capacity with regard to these matters so I was able to create a rather close connection between the Reich President and myself. But I should like to emphasize that this connection had already existed before; it was a matter of course that Field Marshal Von Hindenburg, if I requested it, would always receive me, because he had known me in the First World War.

STAHMER: What part did you play in the appointment of Hitler as Reich Chancellor?

GӦRING: I should just like to explain first that when I said that I held no office in the Party, no political office, my position had nevertheless naturally become stronger and stronger, especially since the end of 1931, from which time on I worked more and more closely with the Führer and was considered his special exponent but only on the basis of normal and natural authority which increased greatly after the seizure of power.

As to my part in the appointment of Hitler: If I am to explain this to the Tribunal I must first describe the situation briefly. The balance among the parliamentary parties had been disturbed as early as the end of 1931 or the beginning of 1932. Things were going badly in Germany and no proper enduring parliamentary majority could actually be procured, and already the Enabling Act then in force had come into play to the exclusion, in part, of the Constitution. I call to mind the Brining cabinet which had to work to a large extent with the Enabling Act and which at the time was also greatly concerned with Article 48 of the Reich Constitution. Then there followed the Cabinet of Von Papen, which also could not put itself on a parliamentary basis, on a more lasting or firmer basis. Herr Von Papen at that time tried to make that possible and, in order to get a parliamentary basis, he asked the National Socialists, the strongest party at that time, to establish such a basis together with the other parties. There was some talk-Von Papen’s name had been given to the President as a nominee for Reich Chancellor that Hitler should become the Vice Chancellor in this Cabinet. I remember that I told Herr Von Papen at that time that Hitler could become any number of things, but never Vice If he were to be made anything, he would naturally have to .be in the highest position and it would be completely unbearable and unthinkable to place our Führer in any sort of second position. We would then have had to play the role of governing, but possibly not all according to our lights, and Hitler as a representative of the strongest party would have had to be responsible for these things. This we declined categorically. I do not emphasize that because Herr Von Papen is in the dock with me. He knows that we always respected him personally, but I told him then, after this gesture had come to naught, that we would not only not support him, but would also oppose his Cabinet in the Reichstag to the utmost, just as we would consistently fight every succeeding cabinet which did not give us a leading influence in the Chancellery.

There came then-I do not remember exactly for how many months Herr Von Papen held the reins-the well-known clash between him and me, he as Reich Chancellor, I as the President of the Reichstag, in which it was my intention to bring about the fall of his government, and I knew there was to be a motion of “no confidence” by the Communists, in which practically everybody would participate. It was necessary for this vote of “no confidence” to be expressed under all circumstances in order to show the Reich President that one could not govern with such cabinets without some sort of strong reserve. I saw the “red portfolio” and knew that the order for dissolution was in it, but let the voting be carried through first. Thirty-two votes were for Von Papen and about five hundred were against him. The Cabinet of Von Papen resigned.

Up to that point all the parties had drawn up cabinets, apart from the few small fragmentary parties. All men who were available had already been presented to the people at some time. Towards the end, Reich Defense Minister Von Schleicher, the political figure behind the scenes, had played an increasingly important part.

There were therefore only two possibilities: Either the actual proportion of power would be taken into account and the leader of the strongest party, as is generally customary, would be brought into conferences and entrusted with the power, or else the man who was operating behind the scenes, the only possibility that was left, would be brought forward. And this happened. Herr Von Schleicher himself took over the chancellorship in conjunction with-and this is important-the office of Reich Defense Minister. It was clear to us, not only to us but also to the other parties, that as Herr Von Schleicher had far fewer personal sympathizers than Herr Von Papen and could not bring about a majority, a military dictatorship was finally aimed at by Von Schleicher. I had discussions with Herr Von Schleicher and told him that at this moment it was even possible to form a parliamentary majority. Through conferences I had succeeded in bringing together the German Nationals, National Socialists, Center, German People’s Party and smaller supporting groups, to form a majority. It was clear to me that such a majority could be only temporary because the conflicting interests were too great. But it was a matter of indifference to me whether I brought our Party to power this way or that-if by means of parliamentary negotiations, very good; if by the Reich President’s summons, all the better.

These negotiations were turned down by Herr Von Schleicher because he knew that he would then not be able to remain chancellor. Then again there were Emergency Laws and Enabling Acts. Parliament had thus been more or less excluded even before our seizure of power.

I immediately issued the same challenge to Herr Von Schleicher in the Reichstag, much, more emphatically than previously to Herr Von Papen. In the meantime the presidential election had taken place and after that a Reichstag election, in which, after the dissolution of Von Papen’s Cabinet we lost several seats. We were reduced from 232 to 196 seats. Then in January there were further elections, which showed an extraordinary rise in favor of our Party and proved that the short crisis had been surmounted and that the Party was on the upgrade more strongly than ever before.

[Chancellorship: Beginnings 22 January 1933]

On Sunday, the 22nd of January 1933-the 30th was a Monday I was in Dresden at a large political meeting, when I was summoned in the morning by the Führer to motor to Berlin immediately. I arrived that afternoon, and he told me, which I already knew, that the Reich President was no longer satisfied with Von Schleicher and saw that political matters could not continue in this way; nothing was ever accomplished; the Reich President had independently arrived at the conclusion that somehow some responsibility must now be given to the strongest Party. Before that time, in a very clever way, a wrong personal impression of the Führer had been created in the old gentleman’s mind and he was prejudiced he probably took offense at the word socialism, because he understood that in a different way.

Briefly, Hitler revealed to me that day, that that evening I was to speak to the Field Marshal’s son at the home d Herr Von Ribbentrop. I believe Herr Von Papen was to be present also and-I am not sure about this-Meissner, who was the State Secretary of the Reich President. The Field Marshal’s son wanted to inquire on behalf of his father what the possibilities were of Hitler as chancellor and the inclusion of the Party in responsibility. In a rather lengthy conversation I declared to the son that he should tell his father that, one way or another, Von Schleicher would lead to shipwreck. I explained to him the new basic conditions for forming a new government, and how I had heard now of the Field Marshal’s willingness to entrust’ Hitler with the chancellorship, thereby regarding the Party as a main basis for a future government majority if Adolf Hitler were also able to succeed on this occasion in drawing in the German Nationals and the Stahlhelm-for he wanted to see a definite national basis. The Stahlhelm was not a parliamentary party but it had many followers. The German Nationals under Hugenberg were a parliamentary party.

We did not discuss very much more that evening. I told Von Hindenburg’s son that he could tell his father that I would undoubtedly bring that about, and the Führer gave me orders to undertake negotiations during the coming week with these parties on the one hand and with the Reich President on the other. There were difficulties here and there. I found that our conceding…

A recess was take

STAHMER: You were dealing with the question of your participation in the appointment of Hitler as Reich Chancellor. Would you continue?

(Failed efforts to form a government)

GÖRING: I had arrived at the last decisive period. The negotiations had become somewhat difficult. The Field Marshal, Reich President Von Hindenburg, who, until then, had come to know the Führer personally only through two conversations and who had not yet overcome his distrust of him-a distrust which had been instilled and nourished for many years by a variety of influences, simply because he did not know him-had at that time demanded some severe restrictions, so that we, the strongest and now the leading party, which would have to be responsible to the nation for future measures, would be relatively very restricted and, in comparison with our strength, weakly represented in the government.

One must not forget that at this moment Germany had arrived at the lowest point of her downward trend. There were 8 million unemployed; all programs had failed; confidence in the parties existed no more; there was a very strong rise on the part of the revolutionary Leftist side; and political insecurity. Therefore those measures were necessary which the people would expect of US, if we were in the government, and for which we had to stand. So it was a very heavy burden to take over such a responsibility with such severe political conditions imposed.

First condition: The Reich president wanted, under, all circumstances, that Herr Von Papen should become Vice Chancellor in this Cabinet. Apart from his sympathetic personality Herr Von Papen did not bring us anything, because there was no party behind him. But the Reich President demanded, beyond that, that Herr Von Papen should attend the presentation of the reports which the Führer, after being appointed Reich Chancellor, would have to make to the Reich President. But this was abandoned very quickly, and by the Reich President himself.

Secondly, the Reich President desired that the Foreign Office, independent of all parties, should be in the hands of Herr Von Neürath. Herr Von Neürath also brought us nothing in the way political power, apart from his knowledge and ability.

Thirdly, the position of Prüssian Prime Minister which, next to that of the Reich Chancellor was always the most important in Germany during the period after the World War was likewise to be filled by the person of Herr Von Papen. Before the World War, as it is known, the offices of Reich Chancellor and Prüssian Prime Minister were for these reasons always combined in one person.

Fourthly, the Reich President demanded that the office of Reich Deikense Minister should also be in the hands of an independent person, a soldier; and he himself chose him, without our having anything to do with it, namely, General Von Blomberg, who at that time was at the Disarmament Conference in Geneva. Herr Von Blomberg was not known personally either to the Führer or to me at that time.

Even though the essential and definitely most important posts in the Cabinet were thus already filled by persons in whose choice we had had no influence, still further demands developed in the course of the week. It was demanded that the Finance Ministry should be in the hands of Count Schwerin von Krosigk, again a man backed by no political party. The Ministry of Transportation was to be under Herr Von Eltz, to whom the same applied. The leader of the Stahlhelm, Seldte, was to be taken into the Cabinet. Certainly the Stahlhelm was a large and extensive movement, but not politically, and it was not represented by a single delegate in the Reichstag.

There was left, as a really political party, only the German National Party, with 36 seats-our only parliamentary ally, so to speak. Here too, extraordinary demands were made, which were in no correct proportion to the smallness of that party. In the end we, as the strongest party at that time with 232 seats, were given only the following, as far as I remember: The office of Reich Chancellor of course; then Dr. Frick as Reich Minister of the Interior, in the Cabinet; and I third in the Reich Cabinet, with an assignment as Reich Commissioner for Aviation, a very small subordinate division, an insignificant branch of a small Aviation Department in the Ministry of Transport, but no department otherwise. But then I succeeded in becoming, without conditions attached, Prüssian Minister of the Interior and thereby a political minister of the largest German state, for in the end Prussia was actually the place where the rise to internal power started.

It was so far an extraordinarily difficult affair. At the last moment the forming of the Cabinet threatened to fail because of two factors. The Führer had made the unconditional demand that shortly after the appointment of the new Cabinet a new Reichstag election should take place, knowing correctly that the Party would be greatly strengthened thereby and possibly could represent a majority by itself, and thus be in a position to form the government platform by parliamentary means.

Hugenberg, as leader of the German National Party, absolutely opposed this, knowing that his party would probably disappear more or less in this election. Even 5 minutes before the meeting of the Cabinet there was still danger that it would break up because of this. It was pure chance that at this moment the Reich President to administer the oath to the new ministers; and so the Cabinet was formed.

The second danger threatened from Schleicher who, through his confidant, on the Sunday made the following offer to the Führer and me: He wanted to emphasize that the Reich President was not a sure factor as far as the new government was concerned; it would serve the purpose better if he-even though he had withdrawn the day before were to join us to form a government now quite definitely not on a parliamentary basis of any kind, but rather on the basis of an entirely new situation, a coalition of the Reichswehr and the NSDAP. The Führer refused, recognizing that this would be impossible and that the intentions were not honest.

When Herr Von Blomberg arrived at the railroad station from Geneva on the Monday morning, he was given two orders, one from Herr Von Hammerstein, Chief of the Army Command and his superior, to come to him immediately; the other from Hindenburg, his commander-in-chief, to come to him immediately. There was at that time, known only to a few, the threat of a Putsch by Schleicher and Hammerstein with the Potsdam Garrison.

(Third Reich: the seizure of governmental authority)

On the Sunday evening I mentioned that to Reich President Van Hindenburg, and that is the reason why, 2 hours before the rest of the Cabinet, Herr Von Blomberg was appointed Minister of War, or at that time Reich Defense Minister, in order to prevent any wrong move by the Reichswehr. At 11o’clock on the morning of the 30th the Cabinet was formed and Hitler appointed Reich Chancellor.

STAHMER: Had the Party come to power in a legal way, in your opinion?

GӦRING: Of course the Party had come to power in an entirely legal way, because the Party had been called upon by the Reich President according to the Constitution, and according to the principles in force the Party should have been called upon much earlier than that. The Party gained strength and came to power only by of normal elections and the franchise law then valid.

STAHMER: What measures were now taken to strengthen Power after Hitler’s appointment?

GӦRING: It was a matter of course for us that once we had come into power we were determined to keep that power under all circumstances. We did not want power and governmental authority for power’s sake, but we needed power and governmental authority in order to make Germany free and great. We did not want to leave this any longer to chance, to elections, and parliamentary majorities, but we wanted to carry out the task to which we considered ourselves called.

In order to consolidate this power now, it was necessary to reorganize the political relationship of power. That was carried out in such a manner that, shortly after the seizure of governmental authority in the Reich and in Prussia, the other states followed automatically and more or less strong National Socialist governments were formed everywhere.

Secondly, the so-called political officials who according to the Reich Constitution could be recalled at any time, or could be dismissed, would naturally have to be replaced now, according to custom, by people from the strongest party.

As far as legality, that is, the opinion that we came to power legally, is concerned, I should like to emphasize two considerations in particular.

Firstly: in the years 1925 to 1932 no fewer than 30 Reichstag, Landtag, and presidential elections took place in Germany. The very fact that 37 parties had candidates in one Reichstag election alone gives a clear picture of, how it happened that one strong coalition formed the so-called government majority, and another strong grouping formed the opposition, each with an entirely different point of view. Just think of an opposition formed in common by Communists and National Socialists for example, and the fact that one small party which had eight representatives altogether was now the decisive factor, and in two readings of a law, especially of a decisive law-every law had to have three readings-voted against the government and then secured sufficient political and material advantages to force the law through for the government at its third, final reading. This may give a picture of the conditions.

The second point which I want to emphasize especially in regard to the legality of our coming to power is the following:

Had the democratic election system of England or the United States of America existed in Germany, then the National Socialist German Workers Party would, at the end of 1931 already, have legally possessed all seats in the Reichstag, without exception. For in every electoral district in Germany at that time, or at the beginning of 1932 at the latest, in every one-I emphasize this once more-the NSDAP was the strongest party; that is to say, given an electoral system as it is in Great Britain or in the United States as these weaker parties would have failed to gain any seats and from this time on we would have had only National Socialists in the Reich, in a perfectly legal way according to the democratic of these two great democracies.

For the further seizure of power the main political offices were now filled by new holders, as is the case in other lands when there has been a change-over of power among the political parties. Besides the ministers there were first of all-taking Prussia as an example the administrative heads of the provinces, the official heads of administrative districts, the police commissioners, county heads (Landrate). In addition there was a certain further grade1 believe down to ministerial directors-who were considered political officials. District attorneys were considered political officials. This on the whole describes the range of offices which were filled anew when a shift in political power took place and had previously been bargained out among the parties having the majority. It did not go so far as in other countries-all the way down to the letter carrier. There was a change of office holders, but only of the most important posts.

In spite of that we did very little in this direction at first. First of all, I requested Herr Von Papen to relinquish to me the position of Prüssian Prime Minister, as he, having no party behind him, could not very well undertake this re-shuffling, but rather I, that is, one of us, should undertake it. We agreed at once. Thereupon I filled some, a relatively small part, of the highest administrative Prüssian offices with National Socialists. At the same time I generously allowed Social Democrats to remain in these posts for many weeks. I filled a few important provincial offices with leading Catholic persons who were much closer to the Center Party than to us. But slowly, by degrees, in the course of time these offices, to the extent that they were key administrative positions were, of course, filled with National Socialists-it could hardly be otherwise in the further course of the change-over, since these offices at the same time corresponded to the political districts. Even until the very end district heads remained in part National Socialists, in part, however, simply officials. The same was true of the Landrate. In the case of police commissioners, I should like to emphasize for the information of the Tribunal that the police Commissioner’s at first had nothing to do with the Gestapo. A police Commissioner in the bigger cities had the same function as a Landrate in the country, in part at least. These police commissioner posts had always been filled by the largest political parties until the seizure of power. Thus I found Social Democrats in these positions who could not, with the best of intentions, remain, as they had always been our opponents up to that date. That would have been absurd. I filled these police commissioner posts partly with National

Socialists but partly, however, with people who had nothing to do with the Party. I remember that to the most important police commissioner post in the whole German Reich, the one in Berlin, I appointed Admiral Von Levetzow, retired, who was not a member of the Party. In some of these offices I put former SA leaders.

(Consolidation of power)

For the purpose of consolidation of power, which seemed very important not only to me but all of us because that was to form the basic condition for our further work, a still stronger influence came into the Reich Cabinet. New National Socialists received positions as ministers. New ministries were created. In addition came a number of new basic laws.

It was indeed clear: to everyone who had concerned himself with German conditions, either abroad or especially in Germany, that we would put an end to the Communist Party as quickly as possible, It was an absolutely necessary consequence that it should be prohibited. We were convinced that if the Communist Party, which was the strongest next to us, had succeeded in coming to power, it would certainly not have taken any National Socialists into its cabinet or tolerated them elsewhere. We were aware that we would have been eliminated in an entirely different manner.

A further point in the consolidation of power was to eliminate to a certain extent the Reichstag as a parliament, at least for a period of time during the reorganization, because its influence was increasing until then. That, however, had happened owing to the fact that we had an absolute majority in the Reichstag after the new election. In some cases we suggested to the former parties that they should dissolve themselves, because they no longer had any purpose, and those which could not dissolve themselves were dissolved by us. I was speaking of the Communist Party and the Social Democratic Party. Beyond that, we wanted finally to fulfill an old, old longing of the German people and now not only appear to have the structure of a Reich, but at last, really become a unified German Reich. This purpose was served by firmly establishing the Reich idea and the Reich’s power throughout the countless states and provinces. If it had been difficult for a fervent German patriot before the first World War to get along with a heap of petty princes, it was even worse with those who took their places, for in the place of one small will there now appeared the most various, party-bound officials.

In the Reich there was a majority based on one thing; in Prussia, on another; in Bavaria, on yet another; and in Hesse, on something quite different. It was impossible in this manner to establish Reich sovereignty and a Reich which could be great again.

Therefore I suggested to the Führer that the state parliaments should be dissolved and done away with as a matter of principle. In Prüssia I began with the elimination of state parliaments, which I considered entirely superfluous, for the simple reason that the principle “Reich dominion, not state authority” was already in force. I saw no reason why so many different authorities should exist which, with their unnecessary frictions and discussions merely hindered constructive work. Yet, however much I wanted to see and make the Reich structurally unified, I, and the Führer above all, always supported the idea that within the German states and provinces cultural life should remain many-sided and bound to local traditions; that is to say, all the old centers of culture, which, as is well known, had formed around Münich, Dresden, Weimar, and so on, should continue to exist in that way and be supported.

For the further consolidation of power those laws were created which would first of all eliminate any further obstacle .to progress, that is to say, on the basis of Paragraph 48, the law did away with the so-called freedoms. The conception of these freedoms is a matter of controversy. The “Law for the Protection d People and State” was created, a law which was most urgently needed. 1n the past years much had been prohibited which could have stimulated patriotic activity, yet a senseless defamation had been allowed, of the German people, its history, the German State, and those symbols and objects which are, after all, very holy things to a patriot; and they were not protected in any way.

It is a matter of course that in connection with the concept of “conformity” which arose at this time, very many unnecessary and excessive things were done, for after the seizure of power the whole movement developed along revolutionary lines, although not in the way of revolutions as they had been known in history until then, such as the French Revolution, or the great Bolshevist Revolution that is to say, not by way of great conflicts and cruel changes, revolutionary tribunals that executed people by hundreds of thousands-but still with a strong revolutionary aim in the direction of unity of State, Party, and National Socialism as the basis of leadership and of ideology.

This “conformity” which I have just mentioned was then affected in detail; but, as I have said, on the occasion of such drastic political transformations people will always overstep the mark here and there. Personally I did not consider it necessary that every organization should now become National Socialist or that-if I am to express myself quite drastically-every club or similar organization should absolutely have to have a National Socialist chairman. But in decisive political matters, and in matters of principle, our ideas and our ideology had to be recognized more and more; for that was the basic condition for the rebuilding, establishing, and Strengthening of the Reich.

(Führer and Reich Chancellor 1934)

An additional strengthening, which occurred only after the death of Reich President Von Hindenburg in 1934, was the confirmation of the head of the state and the Reich Chancellor in one person. To this I should like to add that on this occasion I had a long conversation with the Führer. Right from the beginning we had discussed whether Hitler would and should take over the position of head of the State, and whether I should take over the chancel lordship. In view of the Führer’s temperament and attitude it was unthinkable that the Führer, sitting on a throne above the political clouds, so to speak, should appear only as head of the State. He was definitely a political leader and hence a leader of the government. Also the thought of putting in some other person as a puppet head of the State we considered unworthy of the situation.

The Führer told me then that the simplest thing to do would be to take as example the United States of America, where the head of the state is at the same time also the head of the government. Thus, following the example of the United States, we combined the position of the head of the State with the head of the government, and he called himself “Führer of the German People and Reich Chancellor of the German Reich.”

That he thereby automatically became also the Commander-in-Chief of the German Armed Forces followed as a matter of course, according to the Constitution, and also according to the previous Constitution, just as is the case in other countries also.

That was the position, broadly speaking, apart from a number of other .developments which probably will have to be mentioned later in my testimony-as for instance, the establishment of police power, the basic element of the consolidation of power, and so on.

In conclusion I wish to say:

1) It is correct that I-and I can speak only for myself-have done everything which was at all within my personal power to strengthen the National Socialist movement, to increase it, and have worked unceasingly to bring it to power under all circumstances and as the one and only authority.

2) I have done everything to secure for the Führer the place as Reich Chancellor which rightfully belonged to him.

3) When I look back, I believe I have not failed to do anything to consolidate our power to such an extent that it would not have to yield to the chances of the political game or to violent actions, but would rather in the further course of reconstruction, become the only factor of power, which would lead the Reich and lead ‘it-as we hoped-to a great development.

[COMMENT: This shows that a covert attempt to overthrow a government from the inside is possible and can be achieved, and the use of propaganda as a cover story to deceive and misdirect can be effective. Sometimes what you think is being done isn’t necessarily true. Democracies fall from within more often than from without, liberty is a fragile thing and sometimes lost freely and willing by the people. An internal resistance to the established government is never a good thing, nor beneficial to the nation or its people.]

Thank you for taking the time to read this

Who they are:

Robert H. Jackson Associate Justice of the Supreme Court of the United States

Karl Bӧdenschätz: was liaison officer between the Commander-in-Chief of the Luftwaffe and the Führer’s headquarters

Dr. Otto Stahmer: Defense attorney, the counsel for Hermann Gӧring

THE COMMENTARY GAZETTE®

SOURCE: Military Tribunal of Major War Crimes (LOC)
CONTRIBUTOR: Eddy Toorall

American anarchy in action

After watching the disruptive displays of contempt for the United States Congress and the disregard for the lawful workings of government, I feel compelled to speak. During the Judicial Committees hearings of Bret Kavanaugh for a seat of the Supreme Court for the last two days the attempts to disrupt, influence or just totally discredit the procedures of the government, came to the full light of day. This was not a protest, a protest presents an opposition view in a peaceful orderly and lawful manner, where as an anarchist has contempt for the rule of law or decorum and works to achieve their aims regardless of whose rights they violate in the attempt. The attempts (which in no way was spontaneous, clearly seen as one was led out, another stood, showing me planning and coordination) to prevent the Committee to fulfil it responsibly to the people, not only prolonged the session but did a disservice to the nation as a whole. The radical resistance to the government that the Democratic Party has so passionately embraced in an effort to discredit the current administration has come home to roost, in the fact that the outburst from the visitors show they neither trust nor accept the Congressional procedure.  Notwithstanding of the behavior of the setting Senators at the opening even before the Chairman had outlined the proceedings.

At no point is this acceptably as a rational conduct for either the proceeding or the conduct of the members or visitors. In the attempt to unlawfully prevent a governmental inquiry by vocal or physical actions is an act of anarchy, obviously orchestrated by an organized group with the intent to stall or close the hearings.  They did not consider the rights of the people to hear and evaluate the worth of this candidate for the Supreme Court. This in its self is a violation of ours and his constitutional rights to free speech. The First Amendment not only guarantees the right to speak but also the right to be heard.

Concerning the so called rebuffed hand shake of the father of a gun-violence victim, I find this as a media unfair attempt to de-humanize Mr. Kavanuagh, when in a point of fact considering the atmosphere of the hearings and the fact that he did not know the person involved, I see no rebuff but a self-defense response.  I don’t shake hands with strangers who come up on me unawares; I don’t think those reporting the incident do either. But I see it as another staged act to promote dissention.

Race, sex, murder sells newspapers, or boost ratings. It’s all about the ratings and money. What the media should remember is that during the Tributes parades of the Roman generals there rode a person behind the general on the chariot, while holding the laurels of victory and glory above his head also whispered into his ear “glory is fleeting”. As so many in the media have lately come to find true.

The American people still, I believe hold the fundamental ideas of this nation in high regard, and are not impressed or swayed by the riotous behavior of a few, but the media never address these people. Why, because they don’t sell newspapers, or make sensational story lines.

Thank you for taking the time to read this

THE COMMENTARY GAZETTE®

CONTRIBUTOR: Eddy Toorall

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

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