United States Case Law

"MRS. WEDDINGTON: As to mutilation, there, it seems to me, that the purpose of those statutes was to prevent the citizen from becoming a dependent or ward of the State, and also to insure that its citizens would be available for service in the military. In this particular instance, the rationale works just the opposite. Here a woman, because of her pregnancy, is often not a productive member of society. She cannot work, she cannot hold a job, she’s not eligible for welfare, she cannot get unemployment compensation. And furthermore, in fact, the pregnancy may produce a child who will become a ward of the State."

"QUESTION: Well, then, isn’t the only difference between the Texas statute and the D.C. statute that the Texas statute does not have the health factor? MRS. WEDDINGTON: That’s correct, which makes it much more difficult for the doctor to tell when it is – when he can -- QUESTION: But in Vuitch, unless the Court is prepared to overrule it, not a fact, the Texas statute would be valid if it was construed to include abortions for the protection of health, treating life as broad enough to do that. MRS. WEDDINGTON: Including mental and physical. But then the question is raised as to the right of privacy, which was not before the Court in the Vuitch case, and is before the Court in this particular situation. As to the Hippocratic oath, it seems to me that that oath was adopted at a time when abortion was extremely dangerous to the health of the woman; and, second, that the oath is to protect life, and here the question is: what does life mean in this particular context? It’s the sort of same vagueness, it seems to me, that you’re – well, okay, life there could be slightly different because of the constitutional implications here. It seems to me that -- QUESTION: Well, the Hippocratic oath went directly and specifically to providing procedures. MRS. WEDDINGTON: To providing a -- QUESTION: However life was defined. MRS. WEDDINGTON: That’s correct."

"MRS. WEDDINGTON: At this time there is no indication to show that the Constitution would give any protection prior to birth. That is not before the Court, and that is the question that -- QUESTION: Well, I don’t know whether it is or it isn’t."

"MRS. WEDDINGTON: I think Mr. Flowers well made the point when he said that no one can say, Here is the dividing line; Here is where life begins – life is here and life is not over here. In a situation where no one can prove where life begins, where no one can show that the Constitution was adopted, that it was meant to protect fetal life, in those situations where it is shown that that kind of decision is so fundamentally a part of individual life of the family, or such fundamental impact on the person."

"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."

"The Fundamental Rights to Marital and Personal Privacy Are Acknowledged in Decisions of This Court as Protected by the First, Fourth, Ninth, and Fourteenth Amendments."

"On another level as well, abortion is a safe procedure: it is without clinically significant psychiatric sequelae. A number of recent studies confirm that abortion does not produce serious psychological side-effects damaging to the mental wellbeing of the patient."

"[S]urgical dangers warned against any medical procedure. Induced abortion, in particular, involved internal use of surgical instruments, and the inevitable introduction of infection into the womb. Far better, the legislature obviously deemed, that a woman risk childbirth, than death on the operating table. Only when the risks cancelled themselves out did she have an option. Today the comparative risks weigh heavily in favor of permitting induced abortion, not as an emergency matter as in 1851, but as an elective medical procedure. Surgery in those times was almost always fatal. As the next section shows, medicine is a different science today. Induced abortion, in medical practice today, is a relatively minor surgical procedure, insofar as risks to the patient’s physical or mental well-being are concerned...."

"The law on abortion cannot be understood without reviewing the pertinent aspects of medical and legal history which gave rise to the law. When this is done, it becomes abundantly clear that public health considerations motivated this type of legislation, and that these factors no longer justify maintaining such stringent restrictions in the criminal code. In the 1820s when the first American abortion statutes were enacted, there was no medical profession as we know it. Physicians and quacks alike advertised their treatments and potions in the same marketplace. Both had little to offer the public. Medical science, an infant branch of learning in the 1800s, did not uncover the need for clean hands in gynecological examinations until the 1840s."

"Abortion is an accepted medical procedure for terminating pregnancy. Amici medical organizations recognize the acceptability of abortion, as their policy statements indicate; they draw no distinction between abortion and other medical procedures. The Texas abortion law effectively denies Appellants Roe and Doe access to health care. Jane Roe was forced to bear a pregnancy to term though an abortion would have involved considerably less risk to her health. Physicians who would otherwise be willing to perform an abortion in clinical surroundings are deterred by the fear of prosecution. Since Appellant Roe could not afford to travel elsewhere to secure a safe abortion, to avoid continuation of pregnancy she would have been forced to resort to an unskilled layman and accept all the health hazards attendant to such a procedure. Even had she been able to travel out of state, the time required to make financial and travel arrangements would have entailed greater health risks inherent in later abortions."

"Appellant Jane Roe sued as an unmarried pregnant adult woman on behalf of herself “and all other women who have sought, are seeking, or in the future will seek to obtain a legal, medically safe abortion but whose lives are not critically threatened by the pregnancy.” At the time the action was filed, Jane Roe had been “unable to secure a legal abortion in Dallas County because of the existence of the Texas Abortion Laws.” She had sought this medical procedure “because of the economic hardship which pregnancy entailed and because of the social stigma attached to the bearing of illegitimate children in our society.” Miss Roe admitted that insofar as her own interpretation of Texas law was concerned, her “life [did] not appear to be threatened by the continuation of her pregnancy,” other than in a qualitative sense, and in the “extreme difficulty in securing employment of any kind” because of her pregnant condition. ane Roe suffered emotional trauma when unable to obtain a legal abortion in Texas. She regarded herself as a law-abiding citizen and did not want to participate in a felony offense by obtaining an illegal abortion. Also, she had only a tenth grade education and no well-paying job which might provide sufficient funds to travel to another jurisdiction for a legal abortion in a safe, clinical setting."

"Although this Court has not expressly delineated a right to seek health care, the importance of such care has been recognized and the existence of such a right suggested. In United States v. Vuitch (1971), this Court reaffirmed society’s expectation that patients receive “such treatment as is necessary to preserve their health.” In this Court’s invalidation of Connecticut’s proscription against contraception, Justice White noted that statute’s intrusion upon “access to medical assistance...in respect to proper methods of birth control.” Griswold v. Connecticut (1965) (White, J., concurring)."

"The Constitution does not specifically enumerate a “right to seek abortion,” or a “right of privacy.” That such a right is not enumerated in the Constitution is no impediment to the existence of the right. Other rights not specifically enumerated have been recognized as fundamental rights entitled to constitutional protection including the right to marry, the right to have offspring, the right to use contraceptives to avoid having offspring, the right to direct the upbringing and education of one’s children, as well as the right to travel."

"Appellants contend that fundamental rights entitled to constitutional protection are involved in the instant case, namely the right of individuals to seek and receive health care unhindered by arbitrary state restraint; the right of married couples and of women to privacy and autonomy in the control of reproduction; and the right of physicians to practice medicine according to the highest professional standards. These asserted rights meet constitutional standards arising from several sources and expressed in decisions of this Court. The Texas abortion law infringes these rights, and since the law is not supported by a compelling justification, it is therefore unconstitutional."

"The Right to Seek and Receive Medical Care for the Protection of Health and Well-Being Is a Fundamental Personal Liberty Recognized by Decisions of This Court and by International and National Understanding."

"The Provisions in the Texas Penal Code, Articles 1191–1194 and 1196, Which Prohibit the Medical Procedure of Induced Abortion Unless “procured or attempted by medical advice for the purpose of saving the life of the mother,” Abridge Fundamental Personal Rights of Appellants Secured by the First, Fourth, Ninth, and Fourteenth Amendments, and Do Not Advance a Narrowly Drawn, Compelling State Interest."

"Evidence of American standards of medical practice respecting induced abortion is found in the policy statements of professional organizations. Both the American Medical Association and the American College of Obstetricians and Gynecologists have set standards of professional practice in recent years. ACOG policy sanctions therapeutic and elective abortion “to safeguard the patient’s health or improve her family life situation.” ACOG recognizes that “abortion may be performed at the patient’s request....” A very similar position was taken by the American Medical Association. The AMA at one time had followed the A.L.I. model, listing four or five vaguely defined situations for sanctioned abortion. This proved unworkable, and the policy was changed in order not to limit the physicians’ traditional responsibility for evaluating “the merits of each individual case....”"

"Today, only abortions performed in non-medical environments present significant risks of morbidity and mortality; with proper medical supervision, abortions are safe and simple procedures. In keeping with modern medical practice, this Court would reinforce the purpose of early abortion legislation if it invalidated the statute. This would permit abortions to be done by licensed physicians in adequate medical facilities and discourage abortions by unskilled practitioners. Moreover, it would preserve the 117-year-old purpose of the law, and the common law."

"For the court, diversity’s value lies not in its capacity to remedy past and ongoing racism and exclusion but in its ability to produce student-citizens prepared for an increasingly global workforce and for military global security service. The work of diversity, then, is not meant to transform social institutions but to insert bodies into existing structures. ... The shifting logic of affirmative action from redress to diversity has led many scholars, including Sara Ahmed and Roderick Ferguson, to imagine diversity as a kind of “non-performative” ... “benign variation” that “bypasses power as well as history to suggest a harmonious empty pluralism.”"

"The Law School’s claim of a compelling interest is further bolstered by its amici, who point to the educational benefits that flow from student body diversity.… Numerous studies show that student body diversity promotes learning outcomes, and “better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.” These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, “[b]ased on [their] decades of experience,” a “highly qualified, racially diverse officer corps … is essential to the military’s ability to fulfill its principal mission to provide national security.”"

"Because the United States is still such a deeply segregated nation, universities have become an important site on which battles over the future racial formation of the country are being fought. ... The significance of this has been recognized by the right as well as by liberals, as confirmed by the timing of President George W. Bush's direct intervention in support of the white plaintiffs in the University of Michigan's affirmative action case on January 15, 2003, Martin Luther King's birthday. I would argue that this case is not really about the white students who claim that their admission to the university was unfairly rejected, but that the suit is actually about halting in its tracks any potential for imagining the radical transformation of the racial formation of the United States."

"Slavery lives in this country not because of any paper Constitution, but in the moral blindness of the American people, who persuade themselves that they are safe, though the rights of others may be struck down."