1973

"The Court, in the years following Roe, policed the constitutional abortion right by declaring which of these new state regulations exceeded the leeway granted in Roe and which did not Some regulations carried criminal penalties, but no state attempted to ban abortion altogether at any stage of pregnancy. Instead, states used regulations to construct obstacle courses that women had to navigate before they could exercise their constitutionally protected abortion right. The Court, however, declared that certain regulations impermissibly infringed on the constitutional right. It held that a state could not require spousal consent to abortion or prohibit a particular method of abortion in the first trimester. It refused to allow states to require hospitalization for all second-trimester abortions or to require that a woman listen to a “parade of horribles” about abortion before she obtained one. And the Court refused to allow states to require doctors to exercise a prescribed degree of care to save the fetus in postviability abortions and to require that two doctors be present during postviability abortions."

"Nonetheless, the Court did approve a variety of regulations governing the practice of abortion. It held that the states were free to define “viability” and to require recordkeeping and of abortions. The Court permitted Congress and the states to discriminate against abortion in the dispensation of medical funding to the poor by denying funding for abortions. The Court permitted states to require parental consent for abortions sought by minors so long as the minor had access to an alternative judicial consent procedure. Finally, the Court permitted states to require the presence of two doctors at third-trimester abortions except in emergency situations and to require the submission of a pathology report for all abortions. These cases all involved state attempts to burden, rather than to bar, the exercise of the constitutional abortion right. In every one of these cases, at least a plurality of the Court declared continue allegiance to the right established in “Roe”. One case, however, “Colautti v. Franklin”’, did squarely confront a criminal-abortion law. Pennsylvania’s Abortion Control Act included a provision that subjected a doctor to criminal liability for failing to use a statutorily prescribed abortion technique when the fetus was “viable” or when there was “sufficient reason to believe the fetus may be viable.” The Court found two constitutional faults in this statute, both particular to the criminal law. First, the vagueness of the viability definition was found to condition “criminal liability on confusing and ambiguous criteria. It therefore present serious problems of notice, discriminatory application, and chilling effect on the exercise of constitutional rights.” Second, the statute subjected the doctor to “criminal liability without regard to fault,” thereby compounding the vagueness of the viability definition. The Colautti Court laced its opinion with references to the “Roe” abortion right and “Roe’s” deference to the role of the physician. But the Curt disposed of the case on criminal-law grounds. “Colautti” indicated that criminal sanctions did not fit comfortably, if at all, into the Court’s regime of permissible state regulation of abortion."

"Given the Court’s recent abortion decisions, adherence to “Roe” as the keystone of abortion jurisprudence appears impossible. For the Court to draw some as yet undefined and more circumscribed boundary around a surviving constitutional abortion right, thereby leaving the states free to regulate expansively on abortion, seems improbable at a time when some of the Justices increasingly disavow the construction of complicated, quasilegislative constitutional schemes such as the one established in “Roe” itself. The return of criminal abortion is a distinct probability. More pointedly, the states themselves have begun to act as if its return is inevitable."

"Following the Roe decision, several states enacted legislation imposing restrictions on a woman's right to an abortion, many of which were subsequently found to be unconstitutional under Roe. Among these unconstitutional restrictions were mandatory pre-abortion counseling, spousal and parental notification and consent requirements, and abortion clinic licensing limitations. In the 1989 decision of Webster v. Reproductive Health Services, however, a new majority of the Court signaled their willingness to uphold abortion restrictions. Three Justices expressed a desire to significantly modify and narrow Roe. One Justice called for an outright overruling of Roe. During the aftermath of the Webster decision, several states passed new legislation to protect the life of the unborn fetus and limit the right to an abortion."

"In Casey, the Supreme Court issued an elaborately splintered decision in which the joint opinion, written by Justice O'Connor and joined by Justices Kennedy and Souter, announced the judgment and opinion of the Court. The Casey joint opinion effected three principal changes to Supreme Court abortion jurisprudence: it reaffirmed "the essential holding of Roe v. Wade,"' struck down the Roe trimester framework, and replaced it with a new undue burden standard."

"In reaffirming the essential holding of Roe, the joint opinion specifically upheld what Justice O'Connor described as its "three parts": one, the right of a woman to choose and obtain an abortion before viability without undue interference from the state; two, the state power to restrict abortions after fetal viability, as long as exceptions to protect a woman's life or health are provided; and three, the state interests in protecting the health of the woman and the life of the fetus.2 By discussing the essential holding of Roe as a combination of rights and interests, the joint opinion effectively laid the groundwork for moving abortion jurisprudence away from a discussion of fundamental rights and strict scrutiny, and instead toward a balancing of interests typical of rational basis review."

"Each of the organizations and individuals urges upon the Court the position that laws restricting or regulating abortion as a special procedure violate the Thirteenth Amendment by imposing involuntary servitude without due conviction for a crime and without the justification of serving any current national or public need...."

"Discrimination in employment on account of age is now forbidden by federal law which enunciates a strong public policy. And while age may be a reasonable criterion for determining the right to vote or to drive a car, it can hardly be contended that it is a reasonable basis for determining whether one has a right to continue living. The child in the womb should have the same right as his older brother or sister not to be killed where it is unnecessary to save the life of his mother. Nor should the fact that he temporarily reposes in his mother’s womb rather than in an incubator or a crib operate to deprive the child of the right to continue living...."

"The right to live is more basic even than the right to procreate. And there is “no redemption” for the aborted child in the womb. The abortion is to his “irreparable injury” and by it he “is forever deprived of a basic liberty.” Any law which interferes with the right to live must therefore be carefully scrutinized. It is appropriate to apply here the principles which govern the application of the Equal Protection Clause to another basic right—the right to be free from racial discrimination.... There is no sufficient necessity which justifies a law which permits the killing of the child in the womb where it is not necessary to save the life of his mother. We are not concerned in this appeal with the question of whether a state law can constitutionally allow abortion where it is necessary to save the life of the mother. Rather the issue is whether the constitution permits the child in the womb to be killed where it is not necessary to save the life of his mother. To permit the child in the womb to be killed in such a case improperly discriminates against him on account of his age and situation. For the law does not allow a born child or an adult to be killed at the discretion of another or in any other situation where his killing is not necessary to save the life of another."

"IF THE LAW WERE TO ALLOW THE CHILD IN THE WOMB TO BE KILLED WHERE IT IS NOT NECESSARY TO SAVE THE LIFE OF HIS MOTHER, IT WOULD MAKE HIM THE VICTIM OF AN UNREASONABLE CLASSIFICATION AND AN INVIDIOUS DISCRIMINATION IN VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT."

"Suffice it to say that the child in the womb satisfies the three criteria for personhood he is human, he lives and he has his being—enunciated in Levy v. Louisiana. He is clearly alive and in being. As the living offspring of human parents, he can be nothing else but human. As a living human being he is therefore a person within the meaning of the Equal Protection Clause. Even if one somehow does not concede that the child in the womb is a living human being, one ought at least to give him the benefit of the doubt. Our law does not permit the execution, or imprisonment under sentence, of a criminal unless his guilt of the crime charged is proven beyond a reasonable doubt. The innocent child in the womb is entitled to have us resolve in his favor any doubts we may feel as to his living humanity and his personhood."

"The character of the child in the womb as a person is clearly recognized in the law of torts.... It is significant that a majority of courts, keeping pace with advancing scientific knowledge, now hold that even a stillborn child may maintain a wrongful death action where his death was caused by a prenatal injury. A similar trend can be seen in the law of property.... The law of property has long recognized the rights of the child in the womb for purposes which affect the property rights of that child.... For purposes of equity, too, the law has recognized the existence of the child in the womb. An unborn child, for example, can compel his father to provide him support. He can compel his mother to undergo a blood transfusion for his benefit, even where such transfusion is forbidden by the mother’s religious beliefs..."

"In Levy v. Louisiana (1968), the Court said: “We start from the premise that illegitimate children are not ‘nonpersons.’ They are humans, live, and have their being. They are clearly ‘persons’ within the meaning of the Equal Protection Clause of the Fourteenth Amendment.” The child in the womb meets these criteria of personhood under the Equal Protection Clause. He is human, he lives and he has his being. That is, he is a living human being. As the highest court of New Jersey summarized the state of scientific knowledge, “Medical authorities have long recognized that a child is in existence from the moment of conception.” Smith v. Brennan (N.J. 1960)."

"The abortion laws invade the fundamental individual liberty reserved by the Constitution to conduct one’s personal life without unwarranted governmental interference, and the laws’ infringement of that liberty is not warranted by any overriding valid state interest."

"In Griswold v. Connecticut, the Court held that the right of privacy, whether drawn from the penumbras of the First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments, or protected by the Due Process Clause of the Fourteenth Amendment, protects the free exercise of one’s views (whether of religious or secular origin) on birth control. State laws such as the abortion laws at issue cannot be justified on the ground that they comport with one group’s “moral” condemnation of the exercise of the guaranteed freedom by others."

"The real basis of the claim of state interest in the foetus is a doctrinaire “moral” concern for the “potential of independent human existence.” The theoretical moral concern is effected only by permitting a greater moral outrage: the deep human suffering of adults and children alike, that results from compelling one to continue an unwanted pregnancy, to give birth to an unwanted child, and to assume the burdens of unwanted parenthood. To many minds the “moral” concern for the foetus is misplaced. Reflective judges, scholars and commentators have perceived and deplored the fact that religious beliefs underlie the retention of abortion laws.... No argument is needed to show that the police power cannot be employed in the service of sectarian moral views without violating the Establishment Clause of the First Amendment...."

"The brief of the Amici stresses that the States may not unreasonably interfere with the constitutional right of an individual to determine the course of his or her own life and that the Georgia and Texas abortion laws constitute such an interference. The Amici present related issues that Appellants have not discussed in their Jurisdictional Statements—namely that there is no constitutional right of birth and that the States may not justify the abortion laws’ interference with the personal liberty of all persons on the ground of moral precepts not shared by all. The Georgia and Texas abortion laws unjustifiably restrict the reserved constitutional liberty of all persons to conduct their private lives without unwarranted governmental interference. The religious view that the product of every conception is sacred may not validly be urged by the States as a justification for limiting the exercise of constitutional liberties, for that would be an establishment of religion."

"The Amici do not advocate abortion. They do advocate the right of an individual to be free from State interference in the conduct of his or her private life. That freedom includes the determination whether or not to have a child."

"In the late 1960s and early 1970s, lawyers were advancing the claim that discrimination on the basis of wealth violated equal protection, an argument that the Supreme Court rejected in 1973 in a case concerning the financing of public education. The lawyers who signed this brief were Alan F. Charles and Susan Grossman Alexander of the UCLA School of Law."

"The freedom to be the master of her own body, and thus of her own fate, is as fundamental a right as a woman can possess. The Texas statute, by forcing a woman to carry to full term an embryo—regardless of her wishes, her health, her circumstances, her finances, her family or her future—is the most severe and extreme invasion of her right to privacy. She is forced to function as a baby factory for an unwanted child. In addition to the gross invasion by the state into a pregnant woman’s physical autonomy, the law imposes enormous additional obligations on this woman toward her child once it is born. Furthermore, these obligations, involuntarily assumed, continue for many years throughout the child’s minority. It is unthinkable for a state to compel reproduction against a woman’s wishes. The right of a woman to avoid pregnancy following conception has been recently recognized in State and Federal Courts."

"A doctor has a direct, personal, substantial interest for his decision may send him to jail. Not only does the State prevent the physician from making an impartial decision about terminating his patient’s pregnancy, it unfairly influences this decision in a shocking way. The State says that only if the physician wrongly decides that the operation is needed to preserve her life is he criminally liable. If he wrongly decides the operation is not needed to preserve her life, he is subject to no criminal penalties. The State of Texas thus requires that all errors in a doctor’s evaluation of his patient’s need for termination of pregnancy be on the side of her death... A physician practising medicine under the Texas statute cannot keep as his sole concern his patient’s life. A doctor would have to be superhuman if he were able to ignore the fact that his decision can be second-guessed by a jury which may totally disregard medical evidence. Therefore, his patient cannot receive the impartial decision required by due process of law...."

"A state may not require that a citizen impair his or her health, even if the individual’s right to good health and medical care infringes upon some legitimate state interest. The State of Texas may not in pursuit of its policy infringe upon the constitutionally protected right of its pregnant citizens to the medical treatment they require to maintain their good health. The anti-abortion statute denies women their right to secure the best medical treatment available and, further, positively and seriously impairs their health by forcing them to turn to illegal abortionists, most of whom are not licensed physicians and do not have the most advanced and safest medical techniques available for their use. Statistics are necessarily uncertain, but a frequent estimate is that over one million criminal abortions occur in the United States each year, resulting in an estimated 5,000 maternal deaths annually. That 5,000 American women a year should be denied medically safe procedures and thus be driven to their untimely deaths to avoid bearing unwanted children is unconscionable. Death due to complications following illegal abortion procedures are only part of the problem. Many thousands of other women needlessly suffer serious infections following these procedures in addition to pain, suffering and emotional trauma...."

"The statute forbids all abortions except those necessary to save the life of the mother. Construing the statute to intend its narrowest possible meaning, i.e., that abortions are lawful only when they will prevent certain and imminent death, it is clear that the operation of the statute may deny women abortions when the abortion would prevent injury or safeguard or preserve the patient’s mental or physical health. Thus a woman suffering from heart disease, diabetes or cancer whose pregnancy worsens the underlying pathology may be denied a medically indicated therapeutic abortion under the statute because death is not certain. Such a patient is effectively denied a fundamental constitutional right reserved to her under the Ninth Amendment—the right to medical treatment..."

"Unquestionably there is a constitutionally protected right to practice one’s chosen profession. The practice of medicine clearly includes the treatment of pregnancy and its attendant conditions. The statute interferes with a physician’s practice of medicine by substituting the mandate of a vague legalism for the doctor’s best professional judgment as to the medically indicated treatment for his pregnant patients. Physicians and surgeons in many special branches of medicine routinely make extremely serious decisions regarding their patients’ best medical welfare, often with life or death in the balance. But those physicians treating pregnant women run the risk of criminal charges as the result of their professional decisions. The statute unfairly discriminates against those physicians treating pregnant women and thus denies these physicians equal protection of the laws...."

"If a patient threatens suicide, physicians do not know if they may rely upon the threat as a basis for abortion to save life. Psychiatric consultation may not be available because the woman may refuse such treatment. The non-psychiatrist may then be forced to evaluate the probability of suicide. The physician does not know how he may determine safely whether the patient is sincere in her threat. Furthermore, a woman who does not overtly threaten may be as inclined toward suicide as one who makes clear her threat. The non-psychiatrist doctor is not told whether he may consider suicidal tendencies whether they are stated by his patient, or not. If a doctor may properly consider the fact that his patient may take her own life unless she receives an abortion, the question is opened whether he may consider the fact that she may seriously imperil her life by obtaining an illegal abortion. For a doctor to consider his patient’s threat to obtain an illegal abortion by an unlicensed person is a logical step from his considering her threat of suicide, because such illegal abortions are extremely hazardous and are in fact a common cause of maternal deaths. Physicians are unable to agree on the meaning of the statute because its words have no medical meaning. Medical standards have been established for treating patients and for terminating pregnancy as part of that treatment. The statute cuts across those standards and requires physicians to apply an unclear legal test which supersedes and may negate their medical judgment."

"He must guess whether the statute allows abortion only if his patient would otherwise die before delivery or if it is sufficient that her life would be significantly shortened thereafter."

"Physicians have a professional obligation to preserve and advance the health of their patients. Assuming arguendo that the statute should be read as requiring a judgment by the physician that without an abortion the patient will die, the statute conflicts with the physician’s obligation because it commands him to ignore all the health interests of his patient with respect to termination of pregnancy unless he can predict that she will die without an abortion. Moreover, the statute does not tell the doctor what factors he may properly consider in making this prediction; nor how certain his prediction must be before he may decide to terminate his patient’s pregnancy; nor how soon she must die if she does not have an abortion."

"Amici contend that the phrase “for the purpose of saving the life” is so indefinite and vague that physicians must guess at its meaning and do in fact differ as to the meaning of the phrase. The word “save” has a broad range of possible meanings. The Random House Dictionary lists, inter alia, “to rescue from danger or possible harm...to avoid...the waste of...to treat carefully in order to reduce wear, fatigue, etc....” ...Life may mean the vitality, the joy, the spirit of existence, as well as merely not dying. The possible interpretations of the statute range therefore from a test requiring imminence of death to one which would permit abortion if desirable to preserve an enjoyable life, i.e., a test under which the physician could consider the effect of pregnancy upon the quality of the patient’s life and not merely upon the fact of life as not death. The statute forces the physician to decide at his peril whether a strict or liberal interpretation, or one in between, is the one intended by the statute. It forces him at his peril to make a decision which may be gainsaid by a jury of non-peer laymen whose guess will be as good as his as to the meaning of this statute. In sum the statute fails to provide the certainty required of penal laws."

"Under Texas law, abortion is permitted only “for the purpose of saving the life of the mother.” If, following the performance of an abortion, under this law, a physician is brought to trial and the jury disagrees with the physician’s interpretation of the meaning of these quoted words, the physician is liable to imprisonment for from two to five years in the penitentiary. This Court has declared that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Under this standard the statute must fall, because amici respectfully submit that neither they, nor Dr. Hallford nor any other similarly situated physician receive proper notice from the statute of what acts and consultations in their daily practice of medicine will subject them to criminal liability."

"The Board of Trustees of the APA on December 12–13, 1969, upon recommendation of the Committee on Psychiatry and Law, approved the following: Position Statement on Abortion A decision to perform an abortion should be regarded as strictly a medical decision and a medical responsibility. It should be removed entirely from the jurisdiction of criminal law. Criminal penalties should be reserved for persons who perform abortions without medical license or qualification to do so. A medical decision to perform an abortion is based on the careful and informed judgments of the physician and the patient. Among other factors to be considered in arriving at the decision is the motivation of the patient. Often psychiatric consultation can help clarify motivational problems and thereby contribute to the patient’s welfare."

"The American Psychiatric Association is a non-profit, tax exempt, scientific and educational medical organization, comprised of those 18,783 qualified Doctors of Medicine who specialize as psychiatrists in the diagnosis, care and treatment of mental diseases and defects of the mind. Abortions are of prime interest to psychiatrists because pregnancy, child bearing, birth and abortions can have material effects upon the mental processes of patients requiring psychiatric diagnosis, evaluation and care."

"The individuals whose names are appended here to as amici curiae are deans and vice presidents of medical schools, heads of departments of obstetrics, gynecology and pediatrics in medical schools, practicing physicians and surgeons who are specialists in those fields, and other physicians and psychiatrists having a particular interest in the subject matter of this brief. The organizations whose names are appended hereto are among the largest, oldest and most respected national organizations in the medical profession. These organizations are devoted to the promotion of the highest possible quality health care and it is toward that end that they join in this brief as amici. They include many leaders in the medical profession and renowned teachers in medical schools. As teachers, they are impelled to seek to protect the right of their students—the future generations of doctors—to give their patients the benefit of knowledge acquired in the medical schools. As practicing physicians, amici are bound by oath to give their patients the benefit of the best medical knowledge. These physicians are concerned that the Texas antiabortion law prevents them from fulfilling their sworn duties and responsibilities in the highest traditions of their profession. They believe that the Texas anti-abortion statute is wrong in principle, fundamentally unsound in the light of present day medical and surgical knowledge, and a serious obstacle to good medical practice. Amici believe that the restrictions imposed by the Texas statute on the performance of medically indicated therapeutic abortions interfere with the physician-patient relationship and with the ability of physicians to practice medicine in accordance with the highest professional standards. Amici are also concerned with the burden the law places on physicians to interpret, at their peril, a statute whose meaning and scope are not clear. Accordingly, amici deem it appropriate to offer arguments with respect to this area of law which is of vital concern to them."

"If it be true that the compelling state interest in prohibiting or regulating abortion did not exist at one time in the stage of history, under the result of the findings and research of modern medicine, a different legal conclusion can now be reached. The fact that a statute or law may originally have been enacted to serve one purpose does not serve to condemn it when the same statute, with the passage of time, serves a different but equally valid public purpose."

"It is most seriously argued that the “life” protected by the Due Process of Law Clause of the Fifth Amendment includes the life of the unborn child. Further, it would be a denial of equal protection of law not to accord protection of the life of a person who had not yet been born but still in the womb of its mother. If it is a denial of equal protection for a statute to distinguish between a thief and an embezzler under a statute providing for the sterilization of the one and not the other, then it is surely a denial of equal protection for either the state or federal government to distinguish between a person who has been born and one living in the womb of its mother. [Note: in 1942 in Skinner v. Oklahoma, the Court had ruled that it violated equal protection for the state to punish by sterilization a person convicted of three or more “felonies involving moral turpitude” while not similarly punishing a felon convicted of embezzlement.]"

"The State of Texas Has a Legitimate Interest in Prohibiting Abortion Except by Medical Advice for the Purpose of “Saving the Life of the Mother” There seems little argument necessary if one can conclude the unborn child is a human being with birth but a convenient landmark in a continuing process—a bridge between two stages of life. The basic postulates from which the Appellees’ arguments proceed are: (1) the pregnant woman has a right of control over her own body as a matter of privacy guaranteed to her by the Constitution of the United States; and (2) this right cannot be interfered with by the state since the state cannot demonstrate any compelling interest to justify its intrusion. The contrary position is the state’s interest in preventing the arbitrary and unjustified destruction of an unborn child—a living human being in the very earliest stages of its development. Whatever personal right of privacy a pregnant woman may have with respect to the disposition and use of her body must be balanced against the personal right of the unborn child to life. Whatever the metaphysical view of it is, or may have been, it is beyond argument that legal concepts as to the nature and rights of the unborn child have drastically changed, based on expanded medical knowledge, over the last 2,500 years."

"This review of the current medical status of the unborn serves us several purposes. Firstly, it shows conclusively the humanity of the fetus by showing that human life is a continuum which commences in the womb. There is no magic in birth. The child is as much a child in those several days before birth as he is those several days after. The maturation process, commenced in the womb, continues through the post-natal period, infancy, adolescence, maturity and old age. Dr. Arnold Gesell points out in his work that no king ever had any other beginning than have had all of us in our mother’s womb. [Arnold Gesell, The Embryology of Behavior (Harper & Bros., 1945.)] Quickening is only a relative concept which depends upon the sensitivity of the mother, the position of the placenta, and the size of the child."

"In the sixth month, the child develops a strong muscular grip with his hands. He also starts to breathe regularly and can maintain respiratory response for twenty-four hours if born prematurely. He may even have a slim chance of surviving in an incubator. The youngest children known to survive were between twenty to twenty-five weeks old. The concept of viability is not a static one."

"In the fifth month, the baby gains two inches in height and ten ounces in weight. By the end of the month he will be about one foot tall and will weigh one pound. Fine baby hair begins to grow on his eyebrows and on his head and a fringe of eyelashes appear. Most of the skeleton hardens. The baby’s muscles become much stronger, and as the child becomes larger his mother finally perceives his many activities. The child’s mother comes to recognize the movement and can feel the baby’s head, arms and legs. She may even perceive a rhythmic jolting movement—fifteen to thirty per minute. This is due to the child. The doctor can now hear the heartbeat with his stethoscope. The baby sleeps and wakes just as it will after birth. When he sleeps he invariably settles into his favorite position called his “lie.” Each baby has a characteristic lie. When he awakens he moves about freely in the buoyant fluid turning from side to side, and frequently head over heel.... The child hears and recognizes his mother’s voice before birth. Movements of the mother, whether locomotive, cardiac or respiratory, are communicated to the child."

"Every child shows a distinct individuality in his behavior by the end of the third month. This is because the actual structure of the muscles varies from baby to baby. The alignment of the muscles of the face, for example, follow an inherited pattern. The facial expressions of the baby in his third month are already similar to the facial expressions of his parents. Further refinements are noted in the third month. The fingernails appear. The child’s face becomes much prettier. His eyes, previously far apart, now move closer together. The eyelids close over the eyes. Sexual differentiation is apparent in both internal and external sex organs, and primitive eggs and sperm are formed. The vocal cords are completed. In the absence of air they cannot produce sound; the child cannot cry aloud until birth, although he is capable of crying long before."

"The development of the child, while very rapid, is also very specific. The genetic pattern set down in the first day of life instructs the development of a specific anatomy. The ears are formed by seven weeks and are specific, and may resemble a family pattern. The lines in the hands start to be engraved by eight weeks and remain a distinctive feature of the individual. The primitive skeletal system has completely developed by the end of six weeks. This marks the end of the child’s embryonic (from Greek, to swell or teem within) period. From this point, the child will be called a fetus (Latin, young one or offspring). In the third month, the child becomes very active. By the end of the month he can kick his legs, turn his feet, curl and fan his toes, make a fist, move his thumb, bend his wrist, turn his head, squint, frown, open his mouth, press his lips tightly together. He can swallow and drinks the amniotic fluid that surrounds him. Thumb sucking is first noted at this age. The first respiratory motions move fluid in and out of his lungs with inhaling and exhaling respiratory movements."

"From conception the child is a complex, dynamic, rapidly growing organism. By a natural and continuous process the single fertilized ovum will, over approximately nine months, develop into the trillions of cells of the newborn. The natural end of the sperm and ovum is death unless fertilization occurs. At fertilization a new and unique being is created which, although receiving one-half of its chromosomes from each patient, it really unlike either."

"The crux of the moral and legal debate over abortion is, in essence, the right of the woman to determine whether or not she should bear a particular child versus the right of the child to life. The proponents of liberalization of abortion laws speak of the fetus as “a blob of protoplasm” and feel it has no right to life until it has reached a certain stage of development. On the other hand, the opponents of liberalization maintain the fetus is human from the time of conception, and so interruption of pregnancy cannot be justified from the time of fertilization. It most certainly seems logical that from the stage of differentiation, after which neither twinning nor re-combination will occur, the fetus implanted in the uterine wall deserves respect as a human life. If we take the definition of life as being said to be present when an organism shows evidence of individual animate existence, then from the blastocyst stage the fetus qualifies for respect. It is alive because it has the ability to reproduce dying cells. It is human because it can be distinguished from other non-human species, and once implanted in the uterine wall it requires only nutrition and time to develop into one of us. The recent recognition of autonomy of the unborn child has led to the development of new medical specialties concerning the unborn child from the earliest stages of the pregnancy. Modern obstetrics has discarded as unscientific the concept that the child in the womb is but tissue of the mother.... Yet the attack on the Texas statute assumes this discredited scientific concept and argues that abortions should be considered no differently than any medical measure taken to protect maternal health (see appellant’s brief), thus completely ignoring the developing human being in the mother’s womb."

"Personal privacy is an exalted right but, as in marital privacy, it has never been regarded as absolute. A person may be subjected to a “stop and frisk” though it constitutes an intrusion upon his person, or a person may be required to submit to a vaccination, and a blood sample may forcibly be extracted from the body of an individual arrested for suspicion of driving while intoxicated. A woman has been required to submit to a blood transfusion necessary to preserve her life in order that her small child shall not be left without a mother. The “right of privacy” is a highly cherished right—however one which is nowhere expressly mentioned in the Constitution of the United States or its amendments."

"Proponents of abortion-on-demand assert that anti-abortion laws unlawfully intrude into the privacy of the physician-patient relationship. They assume necessarily that the doctor treating a pregnancy owes an obligation of good medical care to only one patient, the pregnant woman.... As a patient of the obstetrician, the child may recover damages for a prenatal injury suffered as the result of the negligence of his doctor. It is elemental that a doctor cannot be freed from legal restraints in making socio-moral judgments. The state may regulate the medical profession to protect the health and welfare of all its citizens. Appellants’ contentions of intrusion upon physician-patient relationship are not self-sustaining and must be associated with and connected to a violation of some basic right."

"VI. The Constitution of the United States Does Not Guarantee a Woman the Right to Abort an Unborn Fetus. One must recognize the interest of a husband and wife in preserving their conjugal relations from state interference, an interest which, in Griswold v. Connecticut (1965), was found to be violated by Connecticut’s statute forbidding the use of contraceptives. This law interfered with the most private aspect of the marital relation, sexual intercourse, making it criminal for a couple to engage in sexual intercourse when using contraceptives. In contrast, the usual statute restricting abortions does not affect the sexual relations of a couple except under some circumstances and only for a limited time. Prevention of abortion does not entail, therefore, state interference with the right of marital intercourse, nor does enforcement of the statute requiring invasions of the conjugal bedroom. Assuming arguendo that there are other marital rights the state must respect, may it then be urged that the right of marital privacy includes the freedom of a married couple to raise and educate a child they do not want, or commit infanticide, incest, engage in pandering and the like. Family privacy, like personal privacy, is highly valued, but not absolute. The news media may publicize the events that occur when a family is victimized by criminals though they seek seclusion. The family may not practice polygamy, may not prohibit schooling for a child, or prohibit the child’s labor, or expose the community or a child to communicable disease."

"It is obvious that the legislative decision forbidding abortions also destroys potential life—that of the pregnant woman—just as a legislative decision to permit abortions destroys potential life. The question then becomes not one of destroying or preserving potential, but one of who shall make the decision. Obviously some decisions are better left to a representative process since individual decisions on medical facilities, wars, or the release of a convict would tend toward the chaotic. It is our contention that the decision on abortion is exactly the opposite. A representative or majority decision making process has led to chaos. Indeed, in the face of two difficult, unresolvable choices—to destroy life potential in either a fetus or its host—the choice can only be left to one of the entities whose potential is threatened. The above argument is perhaps only another way of stating that when fundamental rights are infringed upon, the State bears the burden of demonstrating a compelling interest for doing so. The question of the life of the fetus versus the woman’s right to choose whether she will be the host for that life is incapable of answer through the legislative fact-finding process. Whether one considers the fetus a human being is a problem of definition rather than fact. Given a decision which cannot be reached on the basis of fact, the State must give way to the individual for it can never bear its burden of demonstrating that facts exist which set up a compelling state interest for denying individual rights."

"Once the fact that science can offer no guidance on the question of when human life begins is conceded, arguments concerning preservation of the fetus almost always fall back to the proposition of potential life."

"Thus science only leads to a worse quandary for obviously if one goes far enough back along the continuum of human development one encounters the existence of sub-microscopic double-helix molecules which have human life potential. When does something become human?"

"It is sometimes argued that scientific discoveries show that human life exists in the fetus. Scientific studies in embryology have greatly expanded our understanding of the process of fertilization and development of the fetus and studies relating to the basic elements of life have shown that life is not only present in the fertilized egg, sperm and ova but that each cell contains elements which could conceivably constitute the beginning of a new human organism. Such studies are significant to science but only confuse the problem of defining human life."

"The State does not require that a pregnant woman with a history of spontaneous abortion go into seclusion in an attempt to save the pregnancy. No pregnant woman having knowingly engaged in conduct which she reasonably could have foreseen would result in injury to the fetus (such as skiing in late pregnancy) has ever been charged with negligent homicide. No formalities of death are observed regarding a fetus of less than five months gestation. Property rights are contingent upon being born alive. There has never been a tort recovery in Texas as the result of injury to a fetus not born alive. No benefits are given prior to birth in situations, such as workman’s compensation, where benefits are normally allowed for “children.”"