Footnotes to majority opinion in Roe v. Wade:
[Footnote 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 [410 U.S. 113,
118] 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 or by an
attempt to effect the same it is murder."
"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."
[Footnote 2] Ariz. Rev. Stat. Ann. 13-211 (1956); Conn. Pub. Act No. 1 (May 1972
special session) (in 4 Conn. Leg. Serv. 677 (1972)), and Conn. Gen. Stat. Rev.
53-29, 53-30 (1968) (or unborn child); Idaho Code 18-601 (1948); Ill. Rev.
Stat., c. 38, 23-1 (1971); Ind. Code 35-1-58-1 (1971); Iowa Code 701.1 (1971);
Ky. Rev. Stat. 436.020 (1962); La. Rev. Stat. 37:1285 (6) (1964) (loss of
medical license) (but see 14:87 (Supp. 1972) containing no exception for the
life of the mother under the criminal statute); Me. Rev. Stat. Ann., Tit. 17, 51
(1964); Mass. Gen. Laws Ann., c. 272, 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 750.14
(1948); Minn. Stat. 617.18 (1971); Mo. Rev. Stat. 559.100 (1969); Mont. Rev.
Codes Ann. 94-401 (1969); Neb. Rev. Stat. 28-405 (1964); Nev. Rev. Stat. 200.220
(1967); N. H. Rev. Stat. Ann. 585:13 (1955); N. J. Stat. Ann. 2A:87-1 (1969)
("without lawful justification"); N. D. Cent. Code 12-25-01, 12-25-02 (1960);
Ohio Rev. Code Ann. 2901.16 (1953); Okla. Stat. Ann., Tit. 21, 861 (1972-1973
Supp.); Pa. Stat. Ann., Tit. 18, [410 U.S. 113, 119] 4718, 4719 (1963)
("unlawful"); R. I. Gen. Laws Ann. 11-3-1 (1969); S. D. Comp. Laws Ann. 22-17-1
(1967); Tenn. Code Ann. 39-301, 39-302 (1956); Utah Code Ann. 76-2-1, 76-2-2
(1953); Vt. Stat. Ann., Tit. 13, 101 (1958); W. Va. Code Ann. 61-2-8 (1966);
Wis. Stat. 940.04 (1969); Wyo. Stat. Ann. 6-77, 6-78 (1957).
[Footnote 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 [410 U.S. 113, 120] 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).
[Footnote 4] The name is a pseudonym.
[Footnote 5] These names are pseudonyms.
[Footnote 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.
[Footnote 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.
[Footnote 8] A. Castiglioni, A History of Medicine 84 (2d ed. 1947), E.
Krumbhaar, translator and editor (hereinafter Castiglioni).
[Footnote 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 (1961) (hereinafter Quay).
[Footnote 10] L. Edelstein, The Hippocratic Oath 10 (1943) (hereinafter
Edelstein). But see Castiglioni 227.
[Footnote 11] Edelstein 12; Ricci 113-114, 118-119; Noonan 5.
[Footnote 12] Edelstein 13-14.
[Footnote 13] Castiglioni 148.
[Footnote 14] Id., at 154.
[Footnote 15] Edelstein 3.
[Footnote 16] Id., at 12, 15-18.
[Footnote 17] Id., at 18; Lader 76.
[Footnote 18] Edelstein 63.
[Footnote 19] Id., at 64.
[Footnote 20] Dorland's Illustrated Medical Dictionary 1261 (24th ed. 1965).
[Footnote 21] E. Coke, Institutes III *50; 1 W. Hawkins, Pleas of the Crown, c.
31, 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 [410 U.S. 113, 133] 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.
[Footnote 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, Hist. 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, [410 U.S. 113, 134] 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).
[Footnote 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).
[Footnote 24] E. Coke, Institutes III *50.
[Footnote 25] 1 W. Blackstone, Commentaries *129-130.
[Footnote 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, 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."
[Footnote 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. [410 U.S. 113, 136] 527, 532, 25 So. 144, 145 (1898); State v.
Alcorn, 7 Idaho 599, 606, 64 P. 1014, 1016 (1901); Edwards v. 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).
[Footnote 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).
[Footnote 29] Conn. Stat., Tit. 20, 14 (1821).
[Footnote 30] Conn. Pub. Acts, c. 71, 1 (1860).
[Footnote 31] N. Y. Rev. Stat., pt. 4, c. 1, Tit. 2, Art. 1, 9, p. 661, and Tit.
6, 21, p. 694 (1829).
[Footnote 32] Act of Jan. 20, 1840, 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).
[Footnote 33] The early statutes are discussed in Quay 435-438. See also Lader
85-88; Stern 85-86; and Means II 375-376.
[Footnote 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.
[Footnote 35] Ala. Code, Tit. 14, 9 (1958); D.C. Code Ann. 22-201 (1967).
[Footnote 36] Mass. Gen. Laws Ann., c. 272, 19 (1970); N. J. Stat. Ann. 2A:87-1
(1969); Pa. Stat. Ann., Tit. 18, 4718, 4719 (1963).
[Footnote 37] Fourteen States have adopted some form of the ALI statute. See
Ark. Stat. Ann. 41-303 to 41-310 (Supp. 1971); Calif. Health & Safety Code
25950-25955.5 (Supp. 1972); Colo. Rev. Stat. Ann. 40-2-50 to 40-2-53 (Cum. Supp.
1967); Del. Code Ann., Tit. 24, 1790-1793 (Supp. 1972); Florida Law of Apr. 13,
1972, c. 72-196, 1972 Fla. Sess. Law Serv., pp. 380-382; Ga. Code 26-1201 to
26-1203 (1972); Kan. Stat. Ann. 21-3407 (Supp. 1971); Md. Ann. Code, Art. 43,
137-139 (1971); Miss. Code Ann. 2223 (Supp. 1972); N. M. Stat. Ann. 40A-5-1 to
40A-5-3 (1972); N.C. Gen. Stat. 14-45.1 (Supp. 1971); Ore. Rev. Stat. 435.405 to
435.495 (1971); S. C. Code Ann. 16-82 to 16-89 (1962 and Supp. 1971); Va. Code
Ann. 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. 11.15.060 (1970); Haw.
Rev. Stat. 453-16 (Supp. 1971); N. Y. Penal Code 125.05, subd. 3 (Supp.
1972-1973); Wash. Rev. Code 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.
[Footnote 38] "Whereas, Abortion, like any other medical procedure, should not
be performed when contrary to the best interests of the patient [410 U.S. 113,
144] 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).
[Footnote 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."
[Footnote 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 [410 U.S. 113, 147] 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
________________."
[Footnote 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 [410 U.S. 113, 148] 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."
[Footnote 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.
[Footnote 43] See C. Haagensen & W. Lloyd, A Hundred Years of Medicine 19
(1943).
[Footnote 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.
[Footnote 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.
[Footnote 46] See, e. g., Abele v. Markle, 342 F. Supp. 800 (Conn. 1972), appeal
docketed, No. 72-56.
[Footnote 47] See discussions in Means I and Means II.
[Footnote 48] See, e. g., State v. Murphy, 27 N. J. L. 112, 114 (1858).
[Footnote 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.
[Footnote 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 207.11, at 158 and nn.
35-37 (Tent. Draft No. 9, 1959).
[Footnote 51] Tr. of Oral Rearg. 20-21.
[Footnote 52] Tr. of Oral Rearg. 24.
[Footnote 53] We are not aware that in the taking of any census under this
clause, a fetus has ever been counted.
[Footnote 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 [410 U.S. 113, 158] 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?
[Footnote 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. 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."
[Footnote 56] Edelstein 16.
[Footnote 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).
[Footnote 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.
[Footnote 59] L. Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed.
1971); Dorland's Illustrated Medical Dictionary 1689 (24th ed. 1965).
[Footnote 60] Hellman & Pritchard, supra, n. 59, at 493.
[Footnote 61] For discussions of the development of the Roman Catholic position,
see D. Callahan, Abortion: Law, Choice, and Morality 409-447 (1970); Noonan 1.
[Footnote 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.
[Footnote 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).
[Footnote 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).
[Footnote 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).
[Footnote 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).
[Footnote 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 statutes recognize the father under certain
circumstances. North Carolina, for example, N.C. Gen. Stat. 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. |
