1973

"1. Ancient attitudes. These are not capable of precise determination. We are told that, at the time of the Persian Empire, abortifacients were known, and that criminal abortions were severely punished. We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era, and that "it was resorted to without scruple." The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome's prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable. Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father's right to his offspring. Ancient religion did not bar abortion."

"The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. United States v. Munsingwear, Inc., 340 U. S. 36 (1950); Golden v. Zwickler, supra; SEC v. Medical Committee for Human Rights, 404 U. S. 403 (1972). But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of non-mootness. It truly could be "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911). See Moore v. Ogilvie, 394 U. S. 814, 816 (1969); Carroll v. Princess Anne, 393 U. S. 175, 178-179 (1968); United States v. W. T. Grant Co., 345 U. S. 629, 632-633 (1953). We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot."

"This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 179, present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast, and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue. We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion. In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem. Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection."

"This right of privacy... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy....[T]he word 'person', as used in the 14th Amendment, does not include the unborn."

"When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer”"

"In closing, I emphasize what the Court does not do by these decisions. The Court does not today hold that the Constitution compels abortion on demand. It does not today pronounce that a pregnant woman has an absolute right to an abortion. It does, for the first trimester of pregnancy, cast the abortion decision and the responsibility for it upon the attending physician, whose judgment is to be exercised, as always, upon long established medical standards. For the period following the first trimester, the decisions permit the state, if it chooses, to impose reasonable regulations for the protection of maternal health. And, after viability, they give the state full right to proscribe all abortions except those that may be necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."

"We thus strike a balance between the interests of the pregnant woman and the interests of the state in health and in potential life. Fortunately, these decisions come at a time when a majority of the legislatures of the states are in session. Presumably where these decisions cast doubt as to the constitutional validity of a state’s abortion statute, the legislature of that state may immediately review its statute and amend it to bring it into line with the constitutional requirements we have endeavored to spell out today. If this is done, there is no need whatsoever for any prolonged period of unregulated abortion practice."

"We conclude: 1. For that portion of the pregnancy stage prior to approximately the end of the first trimester, the woman’s privacy right dominates the interests of the state. It follows that, during this period, the abortion decision must be left to the medical judgment of the woman’s attending physician. 2. From that point on, however, the state, in promoting its interest in health, may, if it chooses, regulate the abortion procedure in ways that are appropriately related to maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility where the procedure is to be performed; and as to the licensing of the facility. 3. From and after viability, which, we judicially notice, is usually the end of approximately the 26th or 27th week, and which is the point at which the fetus has a reasonable chance of independent life if it were then born or removed from the mother, the state’s interest in protecting the potentiality of human life dominates the woman’s right to privacy. It follows that the state may, if it chooses, regulate and even prohibit abortion, except where it is necessary in appropriate medical judgment for the preservation of the life or health of the mother. 4. The state may define the term physician to mean only a licensed physician, and it may proscribe any abortion by a person who is not a physician We feel that this holding is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the attitude of the common law toward abortion, and with the demands of the profound problems of the present day. The states are thus left free to place increasing restrictions on abortion as the period of pregnancy lengthens so long as those restrictions are tailored to the recognized state interests. The decision, we also feel, vindicates the right of the physician and is consistent with the fact that abortion is essentially a medical decision until, of course, those points in pregnancy are reached when the state interests become dominant. Viewed under this analysis, the Texas statute must fall, and we, therefore, affirm, with one procedural exception, the judgment of the federal court of the Northern District of Texas. In the Georgia case we hold that the procedural requirements for J.C.A.H. accreditation for the hospital, for the hospital abortion committee, and for the additional two-doctor concurrence are unduly restrictive of the patient’s rights and of the attending physician’s rights. Similarly, we do not uphold the provision that the patient be a resident of Georgia. The remainder of the Georgia statute does not conflict with federal constitutional standards."

"There are, we feel, two important interests that a state possesses and that if it so desires, it may seek to protect by legislation. The first is the state’s interest in preserving and protecting the health of the pregnant woman. The second is the state’s interest in protecting the potentiality of human life, irrespective of the moment when life actually begins. These interests are separate and distinct. Each grows in substantiality as the woman approaches term, and at some point during pregnancy each becomes “compelling.”"

"The abortion issue, of course, is a most sensitive, emotional and controversial one, perhaps one of the most emotional that has reached the Court for some time. The issue is one of great public interest not confined to lawyers and their lawsuits. Convictions are firmly rooted and firmly held. At the same time, attitudes by no means are uniform. We are aware of this, and we are fully aware that, however the Court decides these cases, the controversy will continue. Our task, however, is to decide the cases on constitutional principles as we perceive those principles to be. In the Texas case we have filed a lengthy opinion that attempts to review the history of attitudes toward abortion, popular, legal, civic, and moral, from ancient times down to the present. We cannot escape noting, too, the change in attitudes—in recent years—of professional bodies such as the American Medical Association, the American Public Health Association, and the American Bar Association, and, indeed, the changing attitudes among the courts of this country, both state and federal. This historical approach has revealed a number of interesting things. One is the fact, already alluded to, that nearly all the strict state abortion statutes were enacted about a hundred years ago. Another is the conclusion that it is very doubtful that abortion was ever firmly established as a common law crime, even with respect to the destruction of a quick fetus. A third is that there is little consensus, even among religious or medical groups, as to when life begins. Some would fix it at the moment of conception. Others would focus on quickening. Still others would regard live birth as the significant point. We have concluded again, as the Court has done before, that there is a right of personal privacy under, and implicit in, the Constitution. It is not spelled out in so many words, but the Court has recognized this right before in varying contexts. We feel that it is founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action. We further conclude that this right of personal privacy includes the abortion decision, but, as we say that, we emphasize that the right is not unqualified and that it must be considered against important state interests in regulation abortion."

"The Texas statue is representative of those presently in effect in a majority of our states and that, for the most past, were enacted during the last half of the nineteenth century. The Texas statue prohibits any abortion, or any attempt at an abortion, except where is it procured by medical advice for the purpose of saving the life of the woman. It makes no reference to health, as does the District of Columbia statute considered in United States v. Vuitch decided here in the 1970 Term. The Georgia statute, on the other hand, was enacted only in 1968. It is a modern statute patterned after the American Law Institute’s Model Penal Code. It is representative of recent legislation enacted in approximately one-quarter of our states. It makes an abortion a criminal act with certain exceptions. These exceptions are where the abortion is performed by a licensed physician and, “based upon his best clinical judgment,” the abortion is necessary because the pregnancy if continued would endanger the life or health of the woman, or the fetus would very likely be born with a grave and permanent mental or physical defect, or the pregnancy resulted from forcible or statutory rape. The Georgia statute also imposes certain procedural conditions for the obtaining of the abortion. These are several in number, but among them are (1) Georgia residence, (2) concurrence in the abortion decision by two licensed physicians in addition to the attending [physician], (3) performance of the procedure in a hospital both licensed by the state and accredited by the Joint Commission on Accreditation of Hospitals, and (4) approval by a hospital abortion committee of 3 physicians. So much for the statutes. The Texas federal court held that a woman had a right, protected by the Ninth and Fourteen[th] Amendments, to choose whether to have children and that the Texas statute was therefore void on its face. The Georgia federal court invalidated certain parts of the Georgia statute including the portion specifying the particular circumstances in which an abor-tion may be sought, but upheld most of the remainder of that state’s statute."

"QUESTION: But any doctor, I suppose, you would say, may refuse her? MRS. WEDDINGTON: Certainly, Your Honor. He may refuse any kind of medical procedure whatsoever. QUESTION: But the State may not; yes. MRS. WEDDINGTON: Here it’s the question of whether or not the State, by the statute, will force the woman to continue. The woman should be given that freedom, just as the doctor has the freedom to decide what procedures he will carry out and what he will refuse to his patients. QUESTION: To be sure that I get your argument in focus, I take it from recent remarks that you are urging upon us abortion on demand of the woman alone, not in conjunction with her physician? MRS. WEDDINGTON: I am urging that in this particular context this statute is unconstitutional. That in the Baird vs. Eisenstadt case this Court said, “If the right of privacy is to mean anything, it is the right of the individual, whether married or single, to make determinations for themselves.” It seems to me that you cannot say this is a woman of this particular doctor, and this particular woman. It is, it seems to me, -- QUESTION: Well, doesn’t it follow from that, then, that a woman can come into a doctor’s office and say, “I want an abortion”. MRS. WEDDINGTON: And he can say “I’m sorry, I don’t perform them.” QUESTION: And then what does she do? MRS. WEDDINGTON: She goes elsewhere, if she so chooses. If she stays with that – you know, that’s an impossible question. Certainly, I don’t think the State could say the first doctor a woman goes to shall make that determination and she cannot go elsewhere."

"MRS. WEDDINGTON: We are not here to advocate abortion. We do not ask this Court to rule that abortion is good or desirable in any particular situation. We are here to advocate that the decision as to whether or not a particular woman will continue to carry or will terminate a pregnancy is a decision that should be made by that individual, that in fact she has a constitutional right to make that decision for herself, and that the State has shown no interest in interfering with that decision. Our supplemental brief, on page 14, points out that the brief of the opposition can’t quite decide when life does begin. At one point they suggest it’s when there’s implantation. A few pages later they suggest it’s with conception."

"MRS. WEDDINGTON: In this case, this Court is faced with a situation where there have been fourteen three-judge courts that have ruled on the constitutionality of abortion statues. Nine courts have favored the woman, five have gone against her. Twenty-five judges have favored the woman, seventeen have gone against her. Nine Circuit Judges have favored the woman, five have gone against her. Sixteen District Court judges have favored the woman, ten have gone against her. No one is more keenly aware of the gravity of the issues or the moral implications of this case, that it is a case that must be decided on the Constitution. We do not disagree that there is a progression of fetal development. It is the conclusion to be drawn from that upon which we disagree."

"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."

"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."