Roe v. Wade

"QUESTION: Well, my historical impression is that following the Civil War Congress went through the procedure, at any rate, of readmitting the States which had seceded and passing on their constitutional provisions and that sort of thing. Did Texas have an abortion statute at that time? MR. FLOWERS: Yes, sir. It was passed in 1854, Your Honor. QUESTION: Do you know as a matter of historical fact when most of these abortion statutes came on the books? MR. FLOWERS: I think it was, most of them were in the mid-1800’s, Your Honor. QUESTION: In fact, the latter half of the Nineteenth Century? MR. FLOWERS: Yes, sir. QUESTION: Do you know why they all came on at that time? MR. FLOWERS: No, sir, I surely don’t. Question: So that the materials indicate that, during that period, they were enacted to protect the health and lives of pregnant women, because of the danger of operative procedures generally around that time? MR. FLOWERS: I’m sure that was a great factor, Your Honor. QUESTION: Well, isn’t it historically pretty well accepted as a fact that in the early period of the history of this country there was general reliance upon religious disciplines to preclude this kind of activity, abortions, and when that didn’t seem to cover it, then the States began to enact the statutes? MR. FLOWERS: Yes, sir. QUESTION: As had been done in England. MR. FLOWERS: Also in the exploration and the Indian days, if you wish, frontier days, I don’t imagine that too many abortions, intentional abortions were created in this, these United States. People were of such a necessity to develop the United States."

"MR. FLOWERS: [W]e feel that the treatment that the courts have given unborn children in dissent in distribution of property rights, tort laws, have all pointed out that they have, in the past have given credence to this concept. QUESTION: Mr. Flowers, doesn’t the fact that so many of the State abortion statutes do provide for exceptional situations in which an abortion may be performed, and presumably these date back a great number of years, following Mr. Justice Stewart’s comment, suggest that the absolute proposition that a fetus from the time of conception is a person just is at least against the weight of historical legal approach to the question? Mr. FLOWERS: Yes, sir, I would think possibly that that would indicate that. However, Your Honor, in this whole field of abortion here, we have, on the one hand, great clamoring for the liberalization of it. Perhaps this is good. Population explosion. We have just so many things that are arriving on the scene in the past few years, that might have some effect on producing this type of legislation, rather than facing the facts squarely. I don’t think anyone has faced the fact, in making a decision, whether this is a life, in a person concept."

"MR. FLOWERS: [I] find no way that I know that any court or any legislature or any doctor anywhere can say that there is the dividing line. Here is not a life, and here is a life, after conception. Perhaps it would be better left to that legislature. There they have the facilities to have some type of medical testimony brought before them, and the opinion of the people who are being governed by it. QUESTION: Well, if you’re right that an unborn fetus is a person, then you can’t leave it to the Legislature to play fast and loose dealing with that person. In other words, if you’re correct in our basic submission that an unborn fetus is a person, than abortion laws such as that which New York has are grossly unconstitutional, isn’t it?"

"QUESTION: -- did Judge Campbell rely on medical authorities in that statement you’re summarizing? MR. FLOWERS: Yes, sir, he did. This case was – the Court held there that really the problem could be answered on an extension of the Griswold case. And here’s what my dissenting judge had to say about that, which he adopt, Your Honor. He said: In citing Griswold, the majority concludes we could not distinguish the interest asserted by the plaintiff in this case from those asserted in Griswold. In other words, in their views there is no distinction that can be made between prohibiting the use of contraceptives and prohibiting the destruction of fetal life, which as explained above, may be construed to be a human life. I find this assertion incredible. Contraceptive prevents the creation of new life; abortion destroys existing life. Contraceptives and abortion are as distinguishable as thoughts and dreams are distinguishable from a reality."

"QUESTION: Now, you’re now quoting the judge, I want you to give me a medical, recognizable medical writing of any kind that says that at the time of conception the fetus is a person. MR. FLOWERS: I do not believe that I could give that to you, without researching through the briefs that have been filed in this case, Your Honor. I’m not sure that I could give it to you after research."

"QUESTION: [I]s there any medical testimony of any kind that says that a fetus is a person at the time of inception? MR. FLOWERS: Your Honor, I would lie to call the Court’s attention, in answering that question, to what I feel to believe one of the better culminations of the medical research, and that was Senior Judge Campbell’s dissenting opinion in the Doe vs. Scott, which is very similar to the case we have before us. He goes in chronological order of what the medical research has determined, from the chromosome structure at the time of conception, what the potential is, down through each day of life, until it’s born. QUESTION: But I understood you to say that the State of Texas says it extends from the date of inception until the child is born. MR. FLOWERS: The date of conception until the day of – yes sir."

"MR. FLOWERS: I believe that the Court must take these, the medical research, and apply it to our Constitution the best they can. I said I’m without envy of the burden that the Court has. I think that possibly we have an opportunity to make one of the worst mistakes here that we’ve ever made, from the – I’m sorry. QUESTION: But there’s no medical testimony that backs up your statement that it goes from inception, is there?"

"MR. FLOWERS: This Court has been diligent in protecting the rights of the minority. And, gentlemen, we say that this is a minority, a silent minority, the true silent minority. Who is speaking for these children? Where is the counsel for these unborn children, whose life is being taken? Where is the safeguard of the right to trial by jury? Are we to place this power in the hands of a mother and a doctor? All of the constitutional rights, if this person has the person concept. What would keep a Legislature under this ground from deciding who else might or might not be a human being, or might not be a person? QUESTION: Well, generally speaking, I think you agree that up until now the test has been whether or not somebody has been born or not, and that’s the word used in the Fourteenth Amendment. MR. FLOWERS: Yes, sir. QUESTION: That’s what would keep the Legislature, I suppose, form classifying people that have been born as not persons. MR. FLOWERS: Your Honor, it seems to me that the physical act of being born – I’m not playing it down, I know it’s -- [Laughter.] -- a very momentous incident. But what changes? Is it a non-human and changing, by the act of birth, into a human? Or would -- QUESTION: Well, that’s been the theory up until now on the lawbooks. [Laughter.] MR. FLOWERS: Well, in other words, it has been the theory that we have, deriving from non-human material, a human being, after conception."

"QUESTION: Do you think the case is over for you? You’ve lost your case, then, if the fetus or the embryo is not a person, is that it MR. FLOWERS: Yes, sir, I would say so. QUESTION: You mean the State has no interest of its own that it can assert, and -- MR. FLOWERS: Oh, we have interests, Your Honor, preventing promiscuity, say maybe that’s -- QUESTION: Mr. Flowers, your Legislature apparently, or you’re asserting that your State law wants to protect the life of the fetus. MR FLOWERS: Yes, sir. QUESTION: And under State law there is some right - MR. FLOWERS: Yes, sir. QUESTION: And under State law there is some right – that there are some rights given to the fetus. MR. FLOWERS: Yes, sir. QUESTION: And you are asserting those rights against the right of the mother. MR. FLOWERS: Balancing against the Ninth Amendment rights of the mother within the framework -- QUESTION: But that’s wholly aside from whether the fetus is a person under the federal Constitution. You can still assert those rights, whether the fetus is a person or not. MR. FLOWERS: Yes, sir."

"MR. FLOWERS: Gentlemen, we feel that the concept of a fetus being within the concept of a person, within the framework of the United States Constitution and the Texas Constitution, is an extremely fundamental thing. QUESTION: Of course, if you’re right about that, you can sit down, you’ve won your case. MR. FLOWERS: You Honor, -- QUESTION: Except insofar as maybe the Texas abortion law presently goes too far in allowing abortions. MR. FLOWERS: Yes, sir. That’s exactly right. We feel that this is the only question, really, that this Court has to answer."

"QUESTION: Is there any statute in Texas that prohibits the doctor from performing any operation other than an abortion? MR. FLOWERS I don’t – I don’t think so, sir, and there is another thrust of our argument. If we declare, as the appellees in this case have asked this Court to declare, that an embryo or a fetus is a mass of protoplasm similar to a tumor, then, of course, the State has no compelling interest whatsoever. QUESTION: But there is no – the only operation that a doctor can possibly commit that will bring on a criminal penalty is an abortion? MR. FLOWERS: Yes, sir. QUESTION: Why? MR. FLOWERS: As far as – 'QUESTION: Well, why don’t you limit some other operations? MR. FLOWERS: Because this is the only type of operation that would take another human life. QUESTION: Well, a brain operation could. MR. FLOWERS: Well, there again, that would be – I think that in every feat that a doctor performs that he is constantly making this judgment. QUESTION: Well, if a doctor performs a brain operation and doe it improperly, he could be guilty of manslaughter, couldn’t he? MR. FLOWERS: I would think so, if he was negligent. QUESTION: Well, why couldn’t you charge him with manslaughter if he commits an abortion? MR. FLOWERS: In effect, Your Honor, we did. In the statute 1195, that has been very carefully avoided all throughout these proceeding, it’s not attacked as unconstitutional, for some reason."

"MR. FLOWERS: On the seventh day, I think that the heart, in some form, starts beating. On the twentieth day, practically all the facilities are there that you and I have, Your Honor. Your Honor. I think that -- QUESTION: Well, if you’re correct that the fetus is a person, then I don’t suppose you’d have – the State would have great trouble permitting an abortion, would it? MR. FLOWERS: Yes, sir. QUESTION: In any circumstance? MR. FLOWERS: It would, yes, sir. QUESTION: To save the life of a mother or her health or anything else? MR. FLOWERS: Well, there would be the balancing of the two lives, and I think that -- QUESTION: Well, what would you choose? Would you choose to kill the innocent one, or what? MR. FLOWERS: Well, in our statute the State did choose that way, Your Honor. QUESTION: Well, -- MR. FLOWERS: The protection of the mother. QUESTION: Well, did the State of Tesas say that if it is for the benefit of the health of the wife to kill the husband? [Laughter.] MR. FLOWERS: I’m sorry, I didn’t understand your question. QUESTION: Could Texas say if it confronts the situation for the benefit of the health of the wife, that the husband has to die; could they kill him? MR. FLOWERS: I wouldn’t think so, sir."

"QUESTION: Is it not true, or is it true that the medical profession itself is not in agreement as to when life begins? MR. FLOWERS: I think that’s true, sir. But from a layman’s standpoint, medically speaking, we would say that at the moment of conception from the chromosomes, every potential that anybody in this room has is present, from the moment of conception."

"QUESTION: Mr. Flowers, when you quote Blackstone, is it not true that in Blacstone’s time abortion as not a felony? MR. FLOWERS: That’s true, Your Honor. But my point there was to see the thinking of the framers of the Constitution, from the people they learned from, and the general attitudes of the times."

"QUESTION: Do you know of any case anywhere that’s held that an unborn fetus is a person within the meaning of the Fourteenth Amendment? MR. FLOWERS: No, sir, we can only go back to what the framers of our Constitution had in mind. QUESTION: Well, these weren’t the framers that wrote the Fourteenth Amendment. It came along much later. MR. FLOWERS: No, sir. I understand. But the Fifth Amendment, under the Fifth Amendment: no one shall be deprived of the right to life, liberty, and property without the due process of law. QUESTION: Yes, but then the Fourteenth Amendment defines “person” as somebody who’s born, doesn’t it? MR. FLOWERS: I’m not sure about that, sir. I -- QUESTION: All right. Any person born or naturalized in the United States. MR. FLOWERS: Yes, sir. QUESTION: It doesn’t – that’s not the definition of a “person” but that’s the definition of a “citizen”. MR. FLOWERS: Your Honor it’s our position that the definition of a person is so basic, it’s so fundamental that the framers of the Constitution had not even set out to define. We can only go to what the teachings at the time the Constitution was framed. We have numerous listings in the brief by Mr. Joe Witherspoon, a professor at the University of Texas, that tries to trace back what was in their mind when they had the “person” concept when they drew up the Constitution. He quoted Blackstone here in 1765, and he observed, in his commentaries, that: “Life. This right is inherent by nature in every individual, and exists even before the child is born.”"

"MR. FLOWERS: It is impossible for me to trace, within my allocated time, the development of the fetus from the date of conception to the date of its birth. But it is the position of the State of Texas that upon conception we have a human being, a person within the conception we have a human being, a person within the concept of the Constitution of the United States and that of Texas, also. QUESTION: Now, how should that question be decided, is it a legal question, a constitutional question, a medical question, a philosophical question, or a religious question, or what is it? MR. FLOWERS: Your Honor, we feel that it could be best decided by a Legislature in view of the fact that they can bring before it the medical testimony, the actual people who do the research. But we do have -- QUESTION: So then it’s basically a medical question? MR. FLOWERS: From a constitutional standpoint, no sir. I think it’s fairly and squarely before this Court. We don’t envy the Court for having to make this decision."

"MR. FLOWERS: The lower court in Dallas held the Texas abortion law unconstitutional primarily on the two grounds that have just been discussed, on the vagueness question and the rights of the mother under the Ninth Amendment. The thrust of the whole argument of the State of Texas is against the rights of the mother under the Ninth Amendment, that it certainly is a balancing effect. There must be or, on the other side of the coin, Texas has no State."

"QUESTION: Could Texas constitutionally, in your view, declare that, by statute, that the fetus is a person for all constitutional purposes after the third month of gestation? MRS. WEDDINGTON: I do not believe that the State Legislature can determine the meaning of the federal Constitution. It is up to this Court to make that determination. QUESTION: The States have to deal with statutes, don’t they? MRS. WEDDINGTON: The State could obviously adopt that kind of statute, and then the question would have to be adjudicated as to whether for all purposes that statute is constitutional. We are not alleging that there cannot be some kind of protection. For example, the property rights, which, again, are contingent upon being born alive. It can be retroactive to the period prior to birth. But in this particular situation we are alleging that this statute is unconstitutional. QUESTION: But that has been recognized in the period before birth for purposes of injury claims, and you put that, I take it, in the property category? MRS. WEDDINGTON: In Texas it is only when they are born alive. And the fact that there is a – you know, the wrongful conduct of another is not the same as in this situation. As for property rights, for example, there are even property rights that relate back to prior to conception; children that are not yet conceived, who later inherit. But that did not prevent this Court in Griswold from holding people had the right to birth control."

"QUESTION: Well, do I get from this, then, that your case depends primarily on the proposition that the fetus has no constitutional rights? MRS. WEDDINGTON: It depends on saying that the woman had a fundamental constitutional right and that the State has not proved any compelling interest for regulation in the area. Even if the Court at some point determined the fetus to be entitled to constitutional protection, you would still get back into the weighing of one life against another. QUESTION: That’s what’s involved in this case? Weighing one life against another? MRS. WEDDINGTON: No, Your Honor. I say that would be what would be involved if the facts were different, and the State could prove that there was a person, for the constitutional right. QUESTION: Well, if – if – it were established that an unborn fetus is a person within the protection of the Fourteenth Amendment, you would have almost an impossible case here, would you not? MRS. WEDDINGTON: I would have a very difficult case. QUESTION: I’m sure you would. So if you had the same kind of thing, you’d have to say that this would be the equivalent after the child was born if the mother thought it bothered her health any having the child around, she could have it killed. Isn’t that correct? MRS. WEDDINGTON: That’s correct."

"QUESTION: I think – I may have missed it, but I find no reference to it in this – in your brief or in the voluminous briefs that we’re overwhelmed with here. Do you have any comment about the Hippocratic oath? MRS. WEDDINGTON: I think two things could be said. The first would be that situations and understandings change. In this case, for example, we have before the Court a medical amicus brief that was joined by all the deans of the public medical schools in Texas. It was joined by numerous other professors off medicine. It was joined by the American college of Obstetricians and Gynecologists. QUESTION: Of course there are other briefs on the other side joined by equally outstanding physicians."

"QUESTION: Mrs. Weddington, you’re attacking the statute on two grounds, are you not, vagueness- MRS. WEDDINGTON: That’s correct. QUESTION: -- and the Ninth Amendment. Do you base any weight on one argument as against the other? MRS. WEDDINGTON: Our Texas Court of Criminal Appeals, in Thompson vs. State, -- QUESTION: That’s a recent case? MRS. WEDDINGTON: Yes. In November of last year. QUESTION: Again on vagueness. MRS. WEDDINGTON: Yes. That particular case held that the Texas statute was not vague citing Vuitch. It’s my opinion that that reliance was misplaced. That in Vuitch, this Court had before it the D.C. statute which allowed abortion for the purpose of saving the life or the health, and this Court adapted the interpretation that health meant both mental and physical health And it seemed to me the Court’s language in that case talked a great deal about the fact that the doctor’s judgment goes to saving the health of the woman, that that that’s the kind of judgment he is used to making. In Texas that’s not the judgment he’s forced to make. The judgment in Texas is, is this necessary for the purpose of preserving the life of the woman. And the language of that statute has never been interpreted. That’s not the kind of judgment that a doctor is accustomed or perhaps even able to make."

"MRS. WEDDINGTON: If the State could show that the fetus was a person under the Fourteenth Amendment, or under some other Amendment, or part of the Constitution then you would have the situation of trying – you would have State compelling interest which, in some instances, can outweigh a fundamental right. This is not the case in this particular situation."

"QUESTION: I’m just asking you, under the federal Constitution. Is the fetus a person for the protection of due process? MRS. WEDDINGTON: All of the cases, the prior history of this statute, the common law history would indicate that it is not. The State has shown no -- QUESTION: Well, what about – would you lose your case if the fetus was a person. MRS. WEDDINGTON: Then you would have a balancing of interest."

"MRS. WEDDINGTON: There have been two cases decided since the September 13th argument that expressly hold that a fetus has no constitutional right, one being Byrn vs. New York the other being the Magee-Women’s Hospital case. In both situations persons sought to bring that very question to the court: does a fetus – in the one instance, Byrn was a challenge to the New York Revised Statutes; the other was a situation where a person sought to prevent Magee-Women’s Hospital from allowing further abortions to be done in that hospital. And in both cases it was held that the fetus had no constitutional rights. Several of the briefs before this Court would also argue that this Court, in deciding the Vuitch case, which has allowed abortion to continue in the District of Columbia, certainly the Court would not have made that kind of decision if it felt there were any ingrained rights of the fetus within the Constitution."

"MRS. WEDDINGTON: The State has alleged, and its only alleged interest in this statute is the interest in protecting the life of the unborn. However, the State has not been able to point to any authority, or any nature whatsoever, that would demonstrate that this statute was in fact adopted for that purpose. We have some indication that other State statutes were adopted for the purpose of protecting the health of the woman. We have an 1880 case in Texas, shortly after the 1854 statue was adopted, that stated that the women is the victim of the crime, and is the only victim that the court talks about. We have all the contradictions in the statute, and the way so many things that just don’t make sense. If the statute was adopted for that purpose, for example, why is the woman guilt of no crime? If the statute was adopted for that purpose, why is it that the penalty for abortion is determined by whether or not you have the woman’s consent?"

"MRS. WEDDINGTON: This case does come under the exceptions in that there is great, immediate, irreparable injury, where there is no other forum, it is something that, as far as these women are concerned, can never be adjudicated in a criminal prosecution, much less in a single criminal prosecution. It certainly is an instance of a situation that is capable of repetition yet evading review. The judiciary simply does not move fast enough for the case to be decided within the period of gestation, much less within the period within which an abortion would be medically safe for those women."

"MRS. WEDDINGTON: Again, this is a very special type of case for the women, because of the very nature of the injury involved. It is an irreparable injury. Once pregnancy has started, certainly this is not the kind of injury that can be later adjudicated, it is not the kind of injury that can later be compensated by some sort of monetary reward. These women who have now gone through pregnancy and the women who continue to be forced through pregnancy and the women who continue to be forced through pregnancy have certainly gone through something that is irreparable, that can never be changed for them. It is certainly great and it is certainly immediate. There is no other forum available to them, as we talked last time, they are not subject in Texas to any kind of criminal prosecution, whether the woman performs self-abortion, whether she goes to a doctor, finds someone who will perform it on her, she is guilt of no crime whatsoever. And yet the State tries to allege that its purpose in this statute was to protect the fetus. If that’s true, the fact that the woman is guilty of no crime is not a reasonable kind of – it does not reasonably follow. The women are not able to have any kind of declatory judgment in Texas, because of our special declaratory judgment statutes in our concurring criminal and civil courts, the two different lines of cases that we have. So the federal court was the only court to which the women had any kind of access, and it was to the federal courts they came, and it’s the federal court, in my judgment, that should determine this case."

"MRS. WEDDINGTON: As to the women, this is their only forum. They are in a very unique situation, for several reasons: First, because of the very nature of the interest involved. Their primary interest being the interest associated with the question of whether or not they will be forced by the State to continue an unwanted pregnancy. In our original brief we alleged a number of constitutional grounds. The man one that we are relying on before this Court are the Fifth, the Ninth, and the Fourteenth Amendments. There is a great body of precedents. Certainly we cannot say that there is in the Constitution, so stated, the right to an abortion. Neither is there stated the right to travel, or some of the other very basic rights that this Court has held are under the United States Constitution. The Court has in the past, for example, held that it is the right of the parents and of the individual to determine whether or not they will send their child to private school, whether or not their children will be taught foreign languages, whether or not they will have offspring, the Skinner case, whether – the right to determine for themselves whom they will marry, the Loving case, and even in Boddie vs. Connecticut, the choice of saying that marriage itself is so important that the State cannot interfere with termination of a marriage, just because the woman is unable to pay the cost. Griswold, of course, is the primary case, holding that the State could not interfere in the question of whether or not a married couple would use birth control; and since then this Court, of course, has held that the individual has the right to determine whether they are married or single, whether they will use birth control. So there is a great body of cases decided in the past by this Court in the areas of marriage, sex, contraception, propriation, child-rearing, and education of children. Which says that there are certain things are so much a part of the individual concern that they should be left to the determination of the individual."

"MRS. WEDDINGTON: [T]here is a supplemental brief filed by an amicus party, Harriet Pilpel, on behalf of Planned Parenthood of New York, that seeks to point out to the Court, at pages 6 and 7 and subsequent pages, some of the changing medical statistics available regarding the procedure of abortion. For example, that brief points out that the over-all maternal death rate from legal abortion in New York dropped to 3.7 per 100,000 abortions in the last half of 1971. And that, in fact, is less than half the death rate associated with live delivery for women. That, in fact, the maternal mortality rate has decreased by about two-thirds to a record low in new York in 1971. That now, in 1871, New York recorded the lowest infant mortality rate ever in that State. That during the first 18 months of – well, from July 1st, 1970, to December 31st, 1971, out-of-wedlock pregnancies have dropped by 14 percent. We now have other statistics coming from California and other States that show that not only had the over-all birth rate declined, but the welfare birth rate has also declined accordingly."

"MRS. WEDDINGTON: In fact, we pointed out in our supplemental brief filed here that there have been something like 1600 Texas women who have gone to New York City alone for abortions in the first nine months of 1971. In addition, I think the Court would recognize there are many other women going to other parts of the country. One of the objections that our opponents have raised, the same in this Court, is moot, because, of course, the woman is no longer pregnant. It’s been almost three years since we institute the original action. And yet we can certainly show that it is a continuing problem to Texas women. There still are unwanted pregnancies. There are still women who, for various reasons, do not wish to continue the pregnancy, whether because of personal health considerations whether because of their family situation, whether because of financial situations, education, working situations, some of the many things we discussed at the last hearing."

"QUESTION: Prosecutions of doctors, you’re speaking of? MRS. WEDDINGTON: Prosecutions of doctors, yes, sir. The Problem that we face in Texas is that even though we were granted a declatory judgment, ruling the law unconstitutional, even though we’ve been before this Court once in the past, in Texas women still are not able to receive abortions from licensed doctors, because doctors still fear that they will be prosecuted under the statute. So if the declatory judgment was any relief at all, it was an almost meaningful relief, because the women of Texas still must either travel to other States, if they are that sophisticated and can afford it, or they must resort to some other less – some other very undesirable alternatives."

"MRS. WEDDINGTON: We are once again before this Court to ask relief against the continued enforcement of the Texas abortion statute. And I ask that you affirm the ruling of the three—judge below which held our statute unconstitutional for two reasons: The first that it was vague, and the second that it interfered with the Ninth Amendment rights of a woman to determine whether or not she would continue or terminate a pregnancy."

"If these laws are held to be constitutional, their wisdom will continue to be debated in our state and national legislatures. If any doubt exists, would it not be better to allow the discussion to continue?"

"Until some kind of definite evidence is available concerning the social pattern that is emerging in those states which have removed all restrictions on abortion, should a final decision be made which would extend abortion-on-demand to the entire country?"

"The easy solution of abortion discourages more constructive solutions. Even if one overlooks the biological evidence concerning the unborn child, or the psychological testimony that most women seeking to take the life of their unborn baby, like most persons seeking to take their own life, desire to be stopped by someone, is abortion really a satisfactory solution to any social problem? Will the availability of the easier abortion “solution” discourage our society from seeking deeper and more permanent solutions? Such a fear appears to lie behind the opposition to abortion-on-demand within the black community. Despite assurances by abortion advocates, many members of the black community seem to suspect that numerous abortion clinics in ghetto areas could end up as the “white man’s” solution to the problems of poverty and race. When the poor cry out for bread, what response will they receive? The more difficult response—an equitable distribution of society’s resources? Or the easier response—a list of centers where abortions can be performed on those who would not seek them except for their desperate poverty? While these two responses are not mutually exclusive, to what extent will the availability of the second lessen society’s incentive to seek the first?"

"[B]oth the moral and the legal arguments for abortion-on-demand have attained popularity only within the last few years. Since the test of time has not been applied, should a final decision be made which would extend abortion-on-demand to the entire country?"

"(1) The unborn child is a distinct individual. Modern genetics has confirmed scientifically what women have long felt intuitively—the presence of another human life, a life to be reverenced and protected. (2) Many women who seek abortions are acting from an overpowering but temporary fear. Most of these women really desire to have their baby, and they will later be glad that their effort to secure an abortion was unsuccessful. In order to react constructively to the stresses and tensions of pregnancy, women need the support of society—not the address of the nearest abortion clinic. (3) While abortion is an easy solution for many social problems, it is not a true solution for any. Its availability may prevent more constructive solutions from emerging. (4) The social consequences of unlimited abortion are as yet unknown."

"Oral contraceptives (OCs) of the combined type are "almost 100 percent effective" when "taken according to the prescribed regimen." But the oral contraceptives have disadvantages such as side effects during their early use. Moreover, their use is medically contraindicated for certain patients, particularly those with a history of thromboembolic disease.... [E]ven the theoretically most effective or highly effective methods of contraception are not always actually effective for a number of reasons. Except for voluntary sterilization which many people will not use, even the most effective or highly effective methods have shortcomings either in terms of method failures or in terms of side effects or medical contraindications. In addition some of the methods are so difficult to practice regularly and correctly that they have little practical utility."

"Although contraceptive services are legally available in all states to married persons and in almost all states without regard to marital status, in fact contraceptives are not readily available to a substantial portion of the population. This is particularly true of urban and rural poor in many areas of the country. In some of these areas even non-prescription and relatively ineffective contraceptives cannot be obtained. Even if some form of contraception is available there is likelihood of unwanted pregnancy since the most effective and practical contraceptives, such as the birth control pill, the intrauterine device, and the diaphragm can be obtained only on the prescription of a doctor whose services are denied to hundreds of thousands of poor...."

"This commitment to the principle that safe abortions should be available to all who seek them is a necessary corollary of Planned Parenthood’s activities in the area of birth control. While Planned Parenthood does not view abortion as an alternative to contraception, it recognizes that abortion services are essential to protect women where contraception is unavailable, where it has not been used or where it has failed. Planned Parenthood believes that abortions must also be available to women who have been raped and in cases where the fetus may be deformed as a result of the mother’s exposure to rubella, her use of drugs which affect fetal development or as a result of other factors."

"Planned Parenthood's concern with family planning and family health necessarily includes concern with the availability of abortion and with the compelling problems which result from restrictive abortion laws which make medically safe, legal abortions unavailable to many women. Planned Parenthood has adopted a policy on abortion which states in part: The optimum method of birth control is the consistent employment of effective contraception but in practice this goal is sometimes not achieved. It is, therefore, desirable that provisions respecting abortion not be contained in state Criminal Codes. Planned Parenthood believes that since abortion is a medical procedure, it should be governed by the same rules as apply to other medical procedures in general when performed by properly qualified physicians with reasonable medical safeguards."

"Millions of women are now becoming truly conscious of the manifold forms of oppression and discrimination of their sex in our society. They are beginning to publicly express their outrage at what they have always known—that bearing and raising a child that they do not want is indeed cruel and unusual punishment. Such punishment involves not only an indeterminate sentence and a loss of citizenship rights as an independent person...great physical hardship and emotional damage disproportionate to the crime of participating equally in sexual activity with a man...but is punishment for her status as a woman and a potential child-bearer.... Abortion laws reinforce the legally legitimized indignities that women have already suffered under for too long and bear witness to the inferior position to which women are relegated. The total destruction of a woman’s status in society results from compelling her to take sole responsibility for having the illegal abortion or bear the unwanted child, and suffer the physical hardship and mental anguish whichever she chooses. Only the woman is punished by society for an act in which she has participated equally, only she is punished for her "status" as child-bearer. In light of “evolving standards of decency that mark the progress of a maturing society,” the basis of the Eighth Amendment...the struggle of women for full and meaningful equality in society over the last hundred years indicates that it would indeed be a sign of the immaturity of our social development if these laws were upheld. White persons have had to readjust their thinking and actions to question whether laws which discriminated against blacks were unconstitutional. Men (of whom the legislatures and courts are almost exclusively composed) must now learn that they may not constitutionally impose the cruel penalties of unwanted pregnancy and motherhood on women, where the penalties fall solely on them...."

"Laws which force women to endure unwanted pregnancy and motherhood against their will or to become criminals and take the risks to physical and mental health resulting from an illegal abortion are disproportionate to the act for which they are being punished—an act which, in many instances, is not even illegal. Further, amici contend that abortions, in fact if not in theory, punish women for private, sexual activity for which only women bear the repercussions of pregnancy therefore punishing them for their status as women and potential child-bearers. The pain and suffering associated with an unwanted pregnancy or child, is not solely physical pain. The emotional pain and scarring which accompanies an unwanted pregnancy is an equally important and far more lasting form of pain which must be considered in the context of guarantees of the Eighth Amendment, and the emphasis given to mental anguish as a crucial component of “cruel and unusual punishment.” According to Dr. Natalie Shainess, who has devoted the majority of her 25-year practice as a psychoanalyst and psychiatrist to the area of feminine psychology and particularly with experience of being a mother, a woman who does not want her pregnancy suffers depression through nearly the entire pregnancy and often that depression is extremely severe. Furthermore, according to Dr. Shainess that depression continues even after birth may even go into psychotic states, and may result in permanent emotional damage to the woman. Such potential permanent emotional damage, the risks to physical health and safety which may also result in permanent physical harm, and the burdens of taking care of an unwanted child, constitute a form of long-term imprisonment. Such long term imprisonment “could be so disproportionate to the offense as to fall within the inhibition” of the Eighth Amendment...."

"The Eighth Amendment to the United States Constitution protects all persons against the infliction of “cruel and unusual punishment.” Amici contend that the expanding constitutional concern, as expressed by this Court, with practices which “offend the dignity of man,” are contrary to “the evolving standards of decency that mark the progress of a maturing society” and punishment “disproportionate to the offense committed” as violative of the Eighth Amendment necessitates a finding that laws restricting abortion are unconstitutional...."

"Forcing a woman to bear a child against her will is indeed a form of punishment, a result of society’s ambivalent attitude towards female sexuality. The existence of the sexual “double standard” has created the social response that when a woman becomes pregnant accidentally, she must be “punished” for her transgression, particularly if she is single. This punishment falls solely on the woman: she must face the physical burdens and emotional strains of an unwanted pregnancy, the degrading experience of having an illegal abortion “often in filthy motel rooms at the mercy of quacks who are charging exorbitant fees,” and if unable to get such an abortion, the responsibilities and trauma involved in raising an unwanted child. The man equally responsible for the pregnancy faces no such punishment...."

"To understand what having an unwanted pregnancy and child means to a woman, it may be best to consider the following analogy: a group of people are walking along the street. Half the group crosses; the remainder are stopped by a red light. Those stopped by the light are told the following: From now on, for about nine months, you are going to have to carry a twenty-five pound pack on your back. now, you will have to endure it, whether you develop ulcers under the load whether your spine becomes deformed, no matter how exhausted you get, you and this are inseparable. Then, after nine months you may drop this load, but from then on you are going to have it tied to your wrist. so that, where ever you go this is going to be with you the rest of your life and if, by some accident, the rope is cut or the chain is cut, that piece of rope is always going to be tied to you to remind you of it. Of course, this analogy is not complete. It does not include the extreme, some- times excruciating pain and risk of death involved with the process of transferring the pack from your back to your wrist, nor does it fully describe the limitations placed on your liberty by having that load chained to your wrist for a substantial portion, if not all of your life. It does, however, begin to give some picture of the pain and burden of pregnancy and motherhood when both are involuntary."

"There is yet another way in which women are denied the equal protection of the laws. This Court has shown great concern with the “conception of political equality” and particularly with “questions of alleged ‘invidious discriminations against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.’” Because of this concern, in a line of cases the court has sought to guarantee that each citizen is fairly and equally represented in the legislature which make laws governing his or her life. Nevertheless, in the instance of abortion laws one finds the grossest form of lack of representation. This court can surely take judicial notice of the fact that the state legislatures in Texas and Georgia, like state legislatures throughout the country are composed almost exclusively of men.... Therefore we have a situation in which persons are making laws which could never possibly affect them...."

"If such a broad range of disabilities are permitted to attach to the status of pregnancy and motherhood, that status must be one of choice. And it is not sufficient to say that the women “chose” to have sexual intercourse, for she did not choose to become pregnant. As long as she is forced to bear such an extraordinarily disproportionate share of the pains and burdens of childrearing (including, of course, pregnancy and childbirth), then, to deprive her of the ultimate choice as to whether she will in fact bear those burdens violates the most basic aspects of “our American ideal of fairness” guaranteed and enshrined in the Fourteenth Amendment."

"As we have discussed at length above, a woman who has a child is subject to a whole range of de jure and de facto punishments, disabilities and limitations to her freedom from the earliest stages of pregnancy. In the most obvious sense she alone must bear the pains and hazards of pregnancy and childbirth. She may be suspended or expelled from school and thus robbed of her opportunity for education and self-development. She may be fired or suspended from her employment and thereby denied the right to earn a living and, if single and without independent income, forced into the degrading position of living on welfare.... If a woman is unmarried, unless she succeeds in obtaining an abortion, she has no choice but to bear the child, while the man who shares responsibility for her pregnancy can, and often does, just walk away.... Having been forced to give birth to a child she did not want, a woman may be subject to criminal sanctions for child neglect if she does not care for the child to the satisfaction of the state...."

"It is often said that if men could become pregnant or if women sat in the legislatures there would no longer be laws prohibiting abortion. This is not said in jest. It reaches to the heart of the unequal position of women with respect to the burdens of bearing and raising children and the fact that they are robbed of the ability to choose whether they wish to bear those burdens. And the woman carries an unequal and greater share of the burden, not merely for nine months, but for many years, all in violation of the equal protection of the laws, as we shall discuss below. The abortion laws therefore present a rather unusual constitutional situation. At first glance, it would appear that the concept of equal protection of the laws might not even apply to abortion since the laws relate only to women. However, when we look beyond the face of the laws to their effect, we see that the constitutional test of equal protection must be applied. For the effect of the laws is to force women, against their will, into a position in which they will be subjected to a whole range of de facto forms of discrimination based on the status of pregnancy and motherhood."