Roe v. Wade

"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.”"

"First, the pregnant woman who searches out a person willing to perform an abortion and who consents to, if not pleads for, the procedure is guilty of no crime. Texas courts have repeatedly held that the woman is neither a principal nor an accomplice. Similarly, the women who travel from Texas to states with less restrictive abortion laws in order to secure medical abortions and avoid the alleged state interest in protecting the fetus are guilty of no crime. Moreover, self-abortion has never been treated as a criminal act. The State has failed to seek to deter through criminal sanctions the person whose interests are most likely to be adverse to those of the fetus. This suggests a statutory purpose other than protecting embryonic life. An unborn fetus is not a “human being” and killing a fetus is not murder or any other form of homicide. “Homicide” in Texas is defined as “the destruction of the life of one human being by the act, agency, procurement, or culpable omission of another.” Since the common law definition of “human being” is applicable, a fetus neither born nor in the process of birth is not a “human being” within the meaning of those words as they appear in the homicide statute. In Keeler v. Superior Court (Cal. 1970), a pregnant woman was assaulted by her former husband; a Caesarean section and examination in utero revealed that the fetus, of approximately thirty-five weeks gestation, had died of a severely fractured skull and resultant hemorrhaging. The California Supreme Court held the man could not be guilty of murder; the same result would apply in Texas. A fetus is not considered equal to a “human being,” and its destruction involves a significantly lesser penalty."

"As counsel for appellee admitted during oral argument, “the State only has one interest and that is the protection of the life of the unborn child.” The question then becomes whether this interest is sufficiently compelling to overcome the couple’s or woman’s fundamental right to privacy and autonomy. In this regard it is revealing to examine other aspects of the State’s attitude toward the fetus. Such an inquiry reveals that only in the area of abortion does the State exhibit an interest in the fetus or treat it as having legal personality."

"As shown earlier, medical abortion is a safe and simple procedure when performed during the early stages of pregnancy; indeed, it is safer than childbirth. This fact alone vitiates any contention that the statute here serves a public health interest. Numerous state and federal courts have taken notice of this fact and concurred that no health rationale supports a statute like the one here. See e.g. People v. Belous (Cal. 1969). Moreover, no concern for mental health justifies the statute, for it does not permit abortion even if a woman’s mental health is threatened. Such a view is untenable for the additional reason that abortion is a procedure without clinically significant psychiatric sequelae. Additional data reveal that statutes like the one here actually create “a public health problem of pandemic proportions” by denying women the opportunity to seek safe medical treatment. Severe infection, permanent sterility, pelvic disease, and other serious complications accompany the illegal abortions to which women are driven by laws like this one. Any notion that less restrictive abortion laws would produce excessive demands on medical resources and thereby endanger public health also is unfounded. The experience in New York City after one year under an elective abortion law dispels any such fears.... The absence of a public health problem accompanying less restrictive abortion is indicated by comparative mortality rates: for the first eleven months of operation, the mortality for abortion in New York City is approximately equal to that of tonsillectomy in the United States. Against this background of medical fact, there is no support whatever for the suggestion that public health is an interest protected by this statute."

"The state must demonstrate a legitimate interest to impair doctors’ rights to practice their profession. Historically, the interest asserted by the state is a health interest, and courts have upheld laws designed to ensure the quality of medical practice. Similarly, statutes have been upheld which require doctors’ intervention in sales of medically-related products in order to protect public health. None of the above interests are applicable here, however. The statute in question here does not protect the public from unqualified practitioners. Rather the statute applies to laymen and physicians alike. Indeed, it endangers patients’ health by unduly confining doctors’ exercise of medical judgment.... Further, the statute addresses no other legitimate state interest."

"The First, Ninth, and Fourteenth Amendments protect the right of every citizen to follow any lawful calling, business, or profession he may choose, subject only to rational regulation by the state as necessary for the protection of legitimate public interests. In reviewing legislation affecting the medical profession, courts have particularly respected the knowledge and skill necessary for medical practice, the broad professional discretion necessary to apply it, and the concomitant state interest in guaranteeing the quality of medical practitioners.... Similarly, courts have been alert to protect medical practice from rash or arbitrary legislative interference.... Most recently, this Court, in United States v. Vuitch (1971), recognized that “doctors are encouraged by society’s expectations...and by their own professional standards to give their patients such treatment as is necessary to preserve their health.” The Vuitch decision went on to construe the term health to encompass “psychological as well as physical health,” and “‘the state of being sound in body or mind.’” Here, the practice of medicine clearly includes the treatment of pregnancy and conditions associated with it. However, the Texas statute prohibits physicians from administering the appropriate remedy to preserve the patient’s health or well-being. Physicians are not required to forego the right to make medically sound judgments and to act upon them with respect to any other human disease or condition. With appropriate consents they may administer electric shock therapy, excise vital organs, perform prefrontal lobotomies and take any other drastic action they believe indicated. They are not indictable for these actions. However, obstetricians and gynecologists who are asked to abort their patients for sound medical reasons risk a prison sentence if they do so. The statute severely infringes their practice and seriously compromises their professional judgments."

"The decisions of this Court which implicitly recognize rights of marital and personal privacy have been followed by state and federal court decisions expressly holding the decision of abortion to be within the sphere of constitutionally protected privacy. That there is a fundamental constitutional right to abortion was the conclusion of the court below in the instant case.... That view has been shared by a number of other courts which have considered the question and have affirmed that this is a fundamental right.... Without the ability to control their reproductive capacity, women and couples are largely unable to control determinative aspects of their lives and marriages. If the concept of “fundamental rights” means anything, it must surely include the right to determine when and under what circumstances to have children."

"When pregnancy begins, a woman is faced with a governmental mandate compelling her to serve as an incubator for months and then as an ostensibly willing mother for up to twenty or more years. She must often forego further education or a career and often must endure economic and social hardships. Under the present law of Texas she is given no other choice. Continued pregnancy is compulsory, unless she can persuade the authorities that she is potentially suicidal or that her life is otherwise endangered. The law impinges severely upon her dignity, her life plan and often her marital relationship. The Texas abortion law constitutes an invasion of her privacy with irreparable consequences. Absent the right to remedy contraceptive failure, other rights of personal and marital privacy are largely diluted."

"Pregnancy obviously does have an overwhelming impact on the woman. The most readily observable impact of pregnancy, of course, is that of carrying the pregnancy for nine months. Additionally there are numerous more subtle but no less drastic impacts. Without the right to respond to unwanted pregnancy, a woman is at the mercy of possible contraceptive failure, particularly if she is unable or unwilling to utilize the most effective measures. Failure to use contraceptives effectively, if pregnancy ensues, exacts an exceedingly high price."

"This Court has previously upheld the right to use contraceptives to avoid unwanted pregnancy [Griswold v. Connecticut (1965)]. As did the law considered in Griswold, “[t]his law...operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.” The Texas abortion law in forbidding resort to the procedure of medical abortion, has a maximum destructive impact upon the marriage relationship. In addition to rights associated with marital privacy, an overlapping body of precedent extends significant constitutional protection to the citizen’s sovereignty over his or her own physical person."

"Under the Fourteenth Amendment to the Constitution, no state shall “...deprive any person of life, liberty, or property without due process of law.” The courts have not yet, however, begun to come to grips with the fact that approximately one half of our citizenry is systematically being denied those guarantees of the Fourteenth Amendment. That is exactly the effect of the abortion laws of Texas and Georgia, and nearly every other state in the United States. Amici urge this Court not to shrink from redressing the constitutional wrongs perpetrated on women. For the first time, this Court has the opportunity to give serious and full consideration to the degree to which laws such as those challenged herein, in denying women the control of their reproductive life, violate their most basic constitutional rights.... The decision by a woman of whether and when she will bear children may be the most fundamental decision of her life because of its far-reaching significance, affecting almost every aspect of her life from the earliest days of her pregnancy."

"Statement of Interest During the past two years the question of the constitutionality of abortion laws—of the right of a woman to control her own body and life—has become one of the most burning issues for women throughout the country. As women have become aware of the myriad levels of unconstitutional discrimination they face daily, they have become most acutely aware of the primary role which restrictions on abortions plays in that discrimination. As a result, women throughout the country have become determined to free themselves of the crippling and unconstitutional restrictions on their lives. As a major part of their efforts, thousands of women have sought and continue to seek the aid of federal and state courts in their challenges to abortion statutes...."

"Finally, the suggestion that laws against abortion were enacted by men to constrain the behavior of women has nothing to support it except the historical accident that most of the criminal statutes, including abortion laws, were enacted by male legislators in the 19th Century when women were unable to vote. It is not evident how this general condition of political freedom influenced abortion laws more than it influenced other developments in the criminal law."

"So far as any alleged problem of overpopulation is concerned, abortion, whether on the free demand of a woman or on the intimidating command of the State, appears as a completely ineffective and extremely dangerous way to deal with such a problem, if it exists. For instance, one side effect of the repeal of abortion statutes and the fostering of abortion through state auspices is that no group will be more likely to feel the sting more bitingly than the mothers of illegitimate children. Already, laws making the birth of illegitimate children a crime suggest the squeeze to which the poor mother might be subjected in an age of unrestricted, and state-sponsored, abortion."

"Sweden, a country not unlike ours, and the nation which has had the longest experience with state-regulated abortions in Western Europe, has produced no evidence that criminal abortions, estimated at 20,000 a year when the law was passed in 1938, have been substantially reduced since that time. Other studies confirm the belief that liberalization of abortion laws effect no reduction in the rate of criminal abortions and all that is done is to increase the total number of abortions."

"Many criminal laws in actual practice do bear with unequal severity upon the poor. It is they who are more likely than the rich to be caught, to be unable to post bail bond, to be prosecuted, to be unskillfully defended, to be convicted and to be punished. However, the remedy for these injustices of society lies in the elimination or mitigation of the conditions and causes of poverty and in the reform of the administration of criminal justice, not by the selective invalidation of otherwise lawfully enacted criminal statutes."

"Of course, departing from the facts of the two cases, it might be argued abstractly that (1) a poor woman finds it more difficult than a rich woman to leave Texas or Georgia in order to get an abortion in a jurisdiction where that might be legal, and (2) she cannot afford treatment by a private physician who, some might say, would be more inclined to find a legal reason for the abortion. Hence, the two statutes bear unequally upon the poor. However, the same theoretical argument could be made of many types of conduct proscribed by the criminal laws of Texas and Georgia. There are jurisdictions to which wealthy persons may travel in order to indulge in the doubtful pleasures of gambling at will, using narcotics without restraint, and enjoying a plurality of wives. Could these doubtful “advantages” on the part of the rich be relied on as any basis to set aside the criminal statutes of Texas or Georgia proscribing such activities within those jurisdictions?"

"In both cases, the doctor-appellants alleged that the particular statute in question “chills and defers plaintiffs from practicing their profession as medical practitioners” and thus offends rights guaranteed by the First and Fourteenth Amendments. The dispositive answer to these contentions is that neither statute proscribes speech or medical advice but prohibits the commission of the criminal acts specified in the statute."

"If, despite all the medical evidence and legal history on the point, the unborn child is not to be considered a person within contemplation of the law with legally protectable interests, then Griswold possibly might be stretched to serve as a precedent for the result that the appellants urge this Court to reach. On the other hand, if terminating pregnancy is something different from preventing it, if abortion is different from cosmetic surgery, if the fetus is not in the same class as the wart, and if we are dealing with something other than an inhuman organism, then Griswold is totally inapposite. As medical knowledge of prenatal life has expanded, the rights of the unborn child have been enlarged. And even if it could still be argued that the fetus is not fully the equal of the adult, the law, through centuries of judicial decision and legislation, and following the lead supplied by medical science, has raised the equivalency of that life to such a status that the unborn child may not be deprived of it, absent the demonstrated necessity of protecting a reasonably equivalent interest on the part of the mother. Griswold, of course, presented no such conflict and therefore is not controlling in this case...."