Document 11349

Rider A, p. 72 (Akron}
lfp/ss 01/31/83
AKRON72 SALLY-POW
The question we must ask is whether the state interest
are significantly served by an arbitrary waiting period.
On balance, we think the answer is negative at least on
the record before us.
There is no evidence suggesting
that the abortion procedure is likely to be performed more
safely.
Nor, indeed, is there evidence that a period of
24 hours is likely to enhance a woman's appreciation of
the risks that justify state regulation.
Our prior cases
have not identified a legitimate state interest in a
legally enforceably delay.
In Roe and subsequently cases
we have repeatedly emphasized the importance of the role
of the physician.
If this is properly discharged, in
accordance with the ethical standards of the profession,
2.
the physician will defer the abortion where he thinks this
will be beneficial to the patient or when he thinks a
period of further reflection by the woman would be in her
best interest.
February 1, 1983
ASHl GINA-POW
Rider A page 9
In
Roe
the
Court
recognized
as
compelling
the
interest of a state in the life of a viable fetus: " ... the
state
in promoting
human
life
proscribe,
may,
its
if
abortion
interest
in
it
chooses,
except
where
the
potentiality of
regulate,
it
is
and
even
necessary,
in
appropriate medical judgment, for the preservation of the
life or health of the mother."
Missouri's
statutes
undertake
Roe at 165.
this
Several of
Post
regulation.
viability abortions are proscribed except when necessary
to preserve the life or
Rev. Stat. §188.030.1.
fatal
to the
procedures
pose
a
is
viable
greater
that
requires
fetus
risk
See Id., §188.030.2.
§188.030.3
Mo.
The state also forbids the use of
procedures
mother.
the health of the mother.
to
unless
the
alternative
health
of
the
The statute at issue here
the
attendance of
physician at the abortion of a viable fetus.
Appeals invalidated this requirement,
a
second
The Court of
agreeing with
the
District Court.
The plaintiffs (respondents here on this issue) urge
affirmance,
advancing
a number of arguments.
They say
2.
that this second-physician requirement is an aberration of
the
traditional
doctor-patient
relationship,
impractical, unnecessary, burdensome and costly.
and
is
No other
Missouri statute requires two physicians in attendance for
any other medical or surgical procedure,
including child
birth or delivery of a premature infant.
These are not
insubstantial arguments, and we view the issue as a close
one.
Our
cases
state's
repeatedly
interest
in
the
compelling.
It
the
regulations
type
of
have
held,
potential
therefore has
it
however,
is
substantial discretion
in
adopt
of
with
a
respect
abortions that are permissible after viability.
v.
Dole,
432
u.s.
438,
U.S. 113, 165 {1973).
445-446
the
fetus
may
life
that
{1977):
to
See Beale
Roe v. Wade,
410
The fetus is uniquely vulnerable at
this stage, and as recognized in Roe the abortion decision
no longer is solely one to be made between the mother and
her physician.
Roe 410
u.s.
at 166.
Section 188.030.3 provides that the second physician
"shall take control of and provide immediate medical care
for a child born as a result of the abortion".
Moreover,
the statute requires that ths physician "be in attendance"
during
the
abortion
and
"take
all
reasonable
steps
in
3.
keeping
with
good
medical
to
practice
preserve
the
life and health of the viable unborn child; provided that
it does not pose an increased risk to the life or health
of the woman".
clear
from
judgment
interested
Section 188.030.3.
these
that
in
provisions
there
are
performing
that
some
abortions
Seen. 4 supra.
Missouri
physicians
when
has
It is
made
a
primarily
desired
by
the
woman, and that there may be tension between this interest
and the state interest in protecting the potential life of
an unborn child.
*
* It is a matter of common knowledge that over the past
decade numerous physicians have specialized in abortion
practice, and clines solely devoted to this practice have
been opened in cities across our country. As evidenced by
the description of the type of clinic before the Court in
Bellotti I {citation), some of these clinics fairly may be
described as "abortion mills" in which a woman's demand
often is honored with little or no counseling. Moreover,
many such clinics lack facilities adequate to deal with
the problems and risks attended upon abortions when there
may be close questions as to viability. {Jim:
If you and
Mark think this is a proper and useful no~we should add
a cross-reference to the footnote in Simopoulos on the
Boston-type clinic).
4.
All
witnesses
(with
one
of
the
called
expert
by
the
exception)**,
testimony
plaintiffs
agreed
at
trial,
and
that
the
the
both
by
defendants
use
of
the
dilation and evaucation procedure (D & E) after viability
is usually fatal to the fetus.
The presence of a second
physician could be a safeguard against the
~nproper
use of
this procedure.
**
The one exception was the testimony of Dr. Robert
Crist.
Although
his
testimony
is
not
entirely
unambigious, it can be read as approving the use of the D
& E procedure at times close to if not after viability.
He also expressed the belief that honoring the wishes of
the woman may be more important than protecting the
potential life of a unborn child.
(Jim:
The AG of
Missouri suggests this - see p. 41. We should, of course,
check exactly what Dr. Crist said and my guess is this
will require some revision of what I have just dictated,
if not its omission).
5.
Perhaps the most persuasive argument relied on by the
plaintiffs is that the presence of a second physician is
not required for any other medical or surgical procedure,
including
childbirth or delivery of
a
premature
infant.
The answer given by the state to this argument, in effect,
is
that
abortion
are
unique.
In
other
situations
the
patient's primary interst is in preserving his or her own
health.
Exception to this, of course, are childbirth and
where an
infant must be delivered prematurely.
Yet,
in
these situations, the mother and physician are essentially
of
one mind.
delivery,
Having carried
the
mother
safely and healthy.
ardently
fetus
desires
to
the
that
it
time
be
of
born
She also naturally hopes to survive
herself in good health.
conflict of
the
interests
Thus, there rarely if ever is a
between
the principal actors.
The
situation is different with respect to the woman who on
her own initiative seeks an abortion.
This is a surgical
procedure she may desire for no health reason and solely
to avoid childbirth
To be sure, if told that the fetus
is or may be viable, this may determine many mothers who
otherwise would like to have an abortion.
deter
all mothers
and
the
state's
But it does not
assumption
that
some
physicians will accord primacy to the wishes of the woman
6.
cannot be viewed as unreasonable.
After all, the states
interest is compelling and this necessarily supports the
right of
choice
a state to
following
impose some burdens on the woman's
viability
of
the
fetus.
We
therefore
believe the second physician requirement "has both logical
and biological
justifications,"
id.
at 163, and bears a
reasonable relationship to the state interest.
the Court of Appeals on this issue.
We reverse
R ~ f J f ft vt.
second-trimester regulation.
]1L
"L2
A
18. ~
479 F. Supp., at 1215.
Court of Appeals affirmed on a similar basis.
The
It was
persuaded by plaintiffs' argument that a hospitalization
requirement did not have a reasonable health justification
for at least part of the second trimester, but it declined
to "retreat from the 'bright line' in Roe v. Wade."
F.2d, at 1210. 18
651
We believe that the courts below
misinterpreted the prior decisions of the Court, and we
now hold that §1870.03 is unconstitutional.
A
In Roe v. Wade the Court held that after the end of
the first trimester of pregnancy the State's interest
becomes compelling, and it may "regulate the abortion
procedure to the extent that the regulation reasonably
relates to the preservation and protection of maternal
19.
health."
410 U.S., at 163.
One example given of
permissible regulation was requirements "as to the
facility in which the procedure is to be performed, that
is, whether it must be in a hospital or may be a clinic or
some other place of less-than-hospital status."
Ibid.
In the companion case of Doe v. Bolton the Court
invalidated a Georgia requirement that all abortions "be
performed in a hospital licensed by the State Board of
Health and accredited by the Joint Commission on
Accreditation of Hospitals."
410 U.S., at 203.
/i..,-1-
~$e
'
~r~~~
recognized the State's legitimate health interests in
establishing, for second-trimester abortions, "standards
for licensing all facilities where abortions may be
performed." Id., at 195.
We found, however, that "the
State must show more than it has in order to prove that
20.
only the full resources of a licensed hospital, rather
than those of some other appropriately licensed
institution, satisfy these health interests."
Ibid. 19
We
concluded that, in any event, Georgia's hospital
requirement was invalid because it applied to firsttrimester abortions.
~ rr ~&-£ ~e-i-sie:rn:; , ~e
think that the Court
~~vr~~
of Appeals misconstrued the significance of Roe's "'bright
~p
line.'"
651 F.2d, at 1210.
'-'
~ C ou r t
C~ktS4J
""
-4.R Roe held, and
:-
we reaffirm today, see supra at
, that a State's
interest in health regulation becomes compelling at
approximately
State may be entitled to enact significant regulations
governing the performance of abortions.
The existence of
3{
21.
a compelling state interest in health, however, is only
~
the be-Eji-m:H:Rg o f tJR! inquiry. {!he 8:1 ~ill ma~~
. "'A
c:;-
~~~
reason ab 1 y designed
<ie1Tmn:Ql!Al.l"!':!'1"4~-.r'""e::k-~
~+-t~A=a..,...t~Ar eg u la t i or~,\'
further that state interest.
~---
---
See Doe, 410
u.s.,
to
at 195.
The Court in Roe did not hold that it always is
reasonable for a State to adopt an abortion regulation
that applies to the entire second trimester.
It is true
that a State necessarily must have latitude in adopting
regulations of general applicability in this sensitive
(A..I~
/ area • . But if it appee~~ that during a substantial portion
of the second trimester the State's regulation "depart[s]
from sound medical practice," ante, at
, the regulation
WL.
~
/. I
)'
Cil.S ~,,,,eJ.
may not be up {! ~ simply because it may be reasonableA ~
a later portion of the trimester.
Rather, the State has
an obligation--in light of prevailing medical evidence--to
to
make a reasonable effort to limit the effect of its
regulations to the period in the pregnancy during which
its health interest will be furthered.
B
There can be no doubt that §1870.03's secondtrimester hospitalization requirement places a significant
obstacle in the path of women seeking an abortion.
A
primary burden created by the requirement is additional
cost to the woman.
The Court of Appeals noted that there
was testimony that a second-trimester abortion costs more
than twice as much in a hospital as in a clinic.
See 651
F.2d, at 1209 (in-hospital abortion costs $850-$900,
whereas a "dilatation and evacuation"
(D&E) abortion
performed in a clinic costs $350-$400) • 2 0
Moreover, the
court indicated that second-trimester hospital abortions
men
02/14/83
Rider A
A State, of course, must have latitude in enacting regulations of general applicability in this sensitive area.
Thus, a
regulation reasonable on its face, applicable to second-trimester
abortions,
consider
is presumptively valid.
whether
such
a
But the Court in Roe did not
regulation
could
be
validly
enforced
throughout the particular twelve weeks period.
We know from ex-
per ience
knowledge occur,
that significant advances
in medical
though unpredictable as to time and relevance.
If it is shown
that during a substantial portion of the trimester the State regulation "departs from [then established]
ante, at
, the regulation may not be upheld as applied to that
portion simply because it
~ ent
sound medical practice,
is reasonable as applied to a subse-
portion of the trimester.
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02/14/83
Rider A
A State, of course, must have latitude in enacting regulations of general applicability in this sensitive area.
Thus, a
regulation reasonable on its face, applicable to second-trimester
abortions,
consider
is presumptively valid.
whether
such
a
But the Court in Roe did not
regulation
could
be
validly
enforced
throughout the particular twelve weeks period.
We know from ex-
perience
knowledge occur,
that
significant advances
in medical
though unpredictable as to time and relevance.
If it is shown
that during a substantial portion of the trimester the State regulation "departs from [then established]
ante, at
sound medical practice,
, the regulation may not be upheld as applied to that
port ion simply because it
is reasonable as applied to a subse-
quent portion of the trimester.
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02/14/83
Rider A
A State, of course, must have latitude in enacting regulations of general applicability in this sensitive area.
Thus, a
regulation reasonable on its face, applicable to second-trimester
abortions,
consider
is presumptively valid.
whether
such
a
But the Court in Roe did not
regulation
could
be
validly
enforced
throughout the particular twelve weeks period.
We know from ex-
perience
knowledge occur,
that
significant advances
in medical
though unpredictable as to time and relevance.
If it is shown
that during a substantial portion of the trimester the State regulation "departs from [then established]
ante, at
sound medical practice,
, the regulation may not be upheld as applied to that
portion simply because it is reasonable as applied to a subsequent portion of the trimester.
'
justified requiring the physician personally to describe
the health risks.
Akron challenges this holding as
contrary to our cases that emphasize the importance of the
physician-patient relationship.
In Akron's view, as in
the view of the dissenting judge below, the "attending
physician" requirement "does no more than seek to ensure
that there is in fact a true physician-patient
relationship even for the woman who goes to an abortion
clinic."
651 F.2d, at 1217 (Kennedy, J., concurring in
~ttL
part and dissenting in part).
Requiring physicians
~iekm
personally~~ealth
with each patient may
of providing abortions}
~~~~
~
in~y cases
add to the cost
¥-8-t "!J:;;~.g... is tr~
that j n Roe
and subsequent cases we have "stressed repeatedly the
61.
\
central role of the physician, both in consulting with the
woman about whether or not to have an abortion, and in
determining how any abortion was to be carried out."
Colautti v. Franklin, 439
u.s.
379, 387 (1979).
Moreover,
we have left no doubt that, to ensure the safety of the
abortion procedure, the States may mandate that only
physicians perform abortions.
423 U.S. 9, 11 (1975); Roe, 410
See Connecticut v. Menillo,
u.s.,
at 165.
We are not convinced, however, that there is as vital
a state need for insisting that the physician performing
the abortion, or for that matter any physician, personally
~
vH- Hu.. ~ a- ')(.£.~
counsel the patient.
The State's interest is in ensuring
"
that the woman's consent is informed
~·./
an~~neoereed;
the
critical factor is whether she obtains the necessary
~~
informatio~from
a qualified person, not the identity of
lfp/ss 02/22/83
Rider A, p.
(Akron)
AKRONA SALLY-POW
Counseling connotes more than a recital of
pertinent medical facts.
The needs of patients for
information and an opportunity to discuss the abortion
decision will vary.
The mere providing the patient with a
printed statement of relevant information is not counseling.
Cf. Simopoulos v. Commonwealth of Virginia, post, at
62.
~_!)
the person from whom she obtains it.
Akron and
intervenors strongly urge that the nonphysician
counsellors at the plaintiff abortion clinics are not
trained or qualified to perform this important function.
The courts below made no such findings, however, and on
the record before us we cannot say that the woman's
consent to the abortion will not be informed if a
physician delegates the informational task to another
qualified individual.
In so holding, we do not suggest that the State is
powerless to vindicate its interest in making certain the
"important" and "stressful" decision to abort "is made
with full knowledge of its nature and consequences."
Danforth, 428
u.s.,
at 67. [ Nor do we
imply that a
.e:&••• '
'
zp
lA
; t9
~
physician may abdicate his essential role as the person
...4.r::-
63.
ultimately responsible for the medical decision to perform
4'
the
abortion.~
A State may define the physician's
responsibility to include verification that adequate
counseling has been provided and that the woman's consent
q-o
is informed.~
In addition, the State may establish
reasonable minimum qualifications for those people who
/f
~~
3 ftThis
Court'
consistent
recognition
of
the
critical role of th physician in the abortion procedure
has been based
an ideal model of the competent,
conscientious, and thical physician.
See Doe, 410 u.s.,
at 196-197. We are aware that, as in all professions, the
degree of adherence to ideal medical and ethical standards
may vary considerably. Experience in the decade following
our decision in Roe suggests that at some clinics
abortions may be performed after only limited attention to
the patient's individual needs and with
virtually no
involvment by the physician other than performance of the
abortion itself.
See, e.g., Danforth, 428 u.s., at 91,
n.2 (Stewart, J., concurring).
Such cursory treatment is
neither consistent with the woman's need to understand
fully
the nature of her
decision,
nor,
we
trust,
compatible with the . hi§hest standards of the. 1edical
profession.
{~
t.f'O
.a-9cf. ACOG Standards 54 ("If counseling has been
provided elsewhere, ~he physician performing the abortion
should verify that the counseling has taken place.").
I .
64.
I
perform
Doe, 410
the~ counseling
u.s.,
411
function. 40
See, e.g.,
at 195 (State may require a medical
facility "to possess all the staffing and services
necessary to perform an abortion safely"}.
In light of
these alternatives, we believe that it is unreasonable for
~
~~~~
a State to insist thatj a physician p9rsenally provide the
~
~~
"
"'
information relevant to informed consent.
/
We affirm the
judgment of the Court of Appeals that §1870.06(C} is
Lfl
40 The
importance
of
well-trained
and
competent
counselors is not in dispute. See, e.g., APHA Recommended
Guide 654 ("Abortion counselors may be highly skilled
physicians as well as trained, sympathetic individuals
working
under
appropriate
supervision."};
National
Abortion Federal Standards 2 (1981} (counselors must be
trained initially at least in the following subjects:
sexual and
reproductive health;
abortion technology;
contraceptive technology; short-term counseling skills;
community resources and referrals;
informed consent;
agency policies and practices."}. Nor is it disputed that
individual counseling should be available
for
those
persons who desire or need i~
See, e.g., National
Abortion
Federal
Standards,
su a,
at
1;
Planned
Parenthood
of
Metropolitan
Wa ington,
D.C. ,
Inc. ,
Guidelines for Operation, Main
ance, and Evaluation of
First Trimester Outpatient Ab tion Facilities 5 (1980}.
65.
~
\.Hl.GQJ'IM it M
i Olfctl •
VI
The Akron ordinance prohibits a physician from
performing an abortion until twenty-four hours after the
4
Rider A, p. 28 (Akron)
lfp/ss 02/26/83
AKRON SALLY-POW
This type of information certainly is not objectionable,
and probably is routinely made available to the patient.
We are not persuaded, however, to sever these subsections
a.U- rj,
from §1870.06 (B).
They require that the information be
1\
given orally by the attending physician when much, if not
all of it, could be
~i ~ n
by a qualified person assisting
-_4- 3 -o
-~
l...
~ t~'fYI1
JM --·
the physicianA f~ c;!;n;;t assume that the
physician will
ll:
--=
li
ignore fhis professional responsibility to inform the
l
.
~ \/-1
pat1ent.
)
~ ~'
lfp/ss 02/26/83
MARKA
Akron, p. 15
SALLY-POW
Memo to Mark:
As indicated on my copy of the first printed
draft, I would omit the "bright line" sentences.
It is a
bit inconsistent to talk about a bright line and in the
next paragraph demonstrate that the line is not bright at
all.
I believe the first three sentences in the
"bright line" paragraph simply can be omitted, followed by
the changes I suggest.
You may conclude that a smoother
transition can be made.
L • .F.P., Jr.
ss
lfp/ss 02/26/83
Rider A, p. 28 (Akron)
AKRON SALLY-POW
This type of information certainly is not objectionable,
and probably is routinely made available to the patient.
We are not persuaded, however, to sever these subsections
from §1870.06(B).
They require that the information be
given orally by the attending physician when much, if not
all of it, could be given by a qualified person assisting
the physician.
We cannot assume that the physician will
ignore this professional responsibility to inform the
patient.
lfp/ss 02/26/83
MARKA
Akron, p. 15
SALLY-POW
Memo to Mark:
As indicated on my copy of the first printed
draft, I would omit the "bright line" sentences.
It is a
bit inconsistent to talk about a bright line and in the
next paragraph demonstrate that the line is not bright at
all.
I believe the first three sentences in the
"bright line" paragraph simply can be omitted, followed by
the changes I suggest.
You may conclude that a smoother
transition can be made.
L • .F.P., Jr.
ss
•
•
)v
L----
We turn next to Akron's parental consent requirement,
§l870.05(B), which provides:
"(B) No physician shall perform or induce an
abortion upon a minor pregnant woman under the
age of fifteen (15) years without first having
obtained the informed written consent of the
minor pregnant woman in accordance with Section
1870.06 of this Chapter, and
(1) First having obtained the informed
written consent of one of her parents or her
legal guardian in accordance with Section
1870.06 of this Chapter , or
•
(2) The minor pregnant woman first having
obtained an order from a court having
jurisdiction over he r that the abortion be
performed or induced . "
The District Court invalidated this provision because "it
does not establish a procedure by which a minor can avoid
a parental veto of her abortion decision by demonstrating
that her decision is, in fact,
informed.
Rather, it
requires, in all cases, both the minor's informed consent
and either parental consent or a court order."
Supp., at
1201.
479 F.
The Court of Appeals affirmed on the
45 •
•
same basis. 33
The relevant legal standards are not in dispute.
The
Court has held that "the State may not impose a blanket
provision
•
requiring the consent of a parent or person
33 For essentially the same reasons, the District
Court
held
that
§1870.05(A) 's
parental notification
requirement was unconstitutional.
479 F. Supp., at 1202.
The Court of Appeals reversed.
Relying on H.L. v.
Matheson, 450 u.s.
398
(1981),
the court held that
subsect1on
(A)
"is
a
constitutionally
permissible
regulation insofar as it applies to immature minors who
li ~
eir parents, are dependent upon them and are
not emancipat~by marriage or otherwise."
651 F.2d, at
1206. The courtJjete~mineo that it did-not ne~ to decide
the validity of applying the statute to a mature or
emancipated minor since neither the plaintiffs (abortion
clinics and a physician) nor the defendant-intervenors
(parents of minor females) represented the interests of
such persons.
This conclusion seems anomalous, given that the Court
of Appeals ruled at the same time that §1870. 05 (B)'s
parental consent requirement was unconstitutional because
it did not establish a procedure by which a mature or
emancipated minor
could
obtain
an abortion
without
obtaining another party's consent.
If the plaintiffs and
defendant-intervenors did not represent the interests of
mature minors for purposes of parental notice, it is
difficult to see why they nonetheless could raise those
interests in challenging the facial constitutionality of
the parental consent provision.
In any event, plaintiffs
did not seek review of the Court of Appeals' decision on
the
parental
notification provision,
and
the
issue
therefore is not before the Court.
46 •
•
in loco parentis as a condition for abortion of an
unmarried minor."
Danforth, 428 U.S., at 74.
v. Baird, 443 U.S. 622 (1979)
In Bellotti
(Bellotti II), a majority of
the Court indicated that a State's interest in protecting
immature minors will sustain a requirement of a consent
substitute, either parental or judicial.
See id., at 640-
642 (plurality opinion for four Justices); id., at 656-657
•
(WHITE, J., dissenting)
parental or judicial consent requirement).
'
Danforth, 428 U.S., at 102-105 (STEVENS,
J., concurring in
/~(--- ,J4 l~
,,
. ... '
.
t--J /..-' -.
f
See also
7
!?~tA6-
...
(expressing approval of absolute
/
part and dissenting in part).
The Bellotti II plurality
cautioned, however, that the State at a minimum must
!
• I
,
, : I t' ·
provide an alternative procedure whereby a pregnant minor
C. t.
..
, .'
may demonstrate that she is suffciently mature to make the
abortion decision herself or that, despite her immaturity,
47 .
•
an abortion would be in her best interests.
443
u.s.,
at
643-644.
Under these decisions , it is clear that Akron may not
make a blanket determination that all minors under the age
~~~~~~~~~~~fo
~----~
of fifteen
- ~c/
~~-
~p~
r~
·~r.~~
7
claims that the courts below erroneously assumed
could not be provided under Ohio law. 34
~~~
.L~
dispute this, but
that the alternative procedure required in Bellotti II
~rtJ!~~
~-~.#
r v~ ~~
ar~mat~e.
•
Akron relies on
----
34 Plaintiffs
assert that the Court of Appeals'
~
holding as to §1870. 05 (B) is not properly before the
1 ~fi r
-'tr'
. • J:u I
~ .Q;· •
Court.
They point out that the District Court's ruling
~~
that §1870.05(B) was unconstitutional was appealed not by
1
tv' , ·1'1}the
city,
but
by
the
defendant-intervenors.
In
-~~~~~
plaintiffs'
view, Akron therefore is foreclosed from
OV~
raising the issue in this Court.
Even in that event, the
issue normally could be raised by defendant-interevenors,
who are respondents here under this Court's Rule 19.6.
But
plaintiffs
now
challenge
defendant-intervenors'
~~s tanding~~ppeal the parental consent issue to the Court
... --~ ~
\
of Appeals, tV th.Gtl.g.b..____t.he~~enge
1
~ ~~~ :.~~~
below.
Plaintiffs state that since intervenors did not
_;-r--~~
/
allege that their daughters were pregnant or lik e ly to
~·
become pregnant or to seek an abortion in Akron, they
J~ ___ /
lacked standing to appeal.
This would mean that the
- -=parental consent issue was not properly before the Court
Footnote continued on next page .
/vrv· ..
· J
•
48 .
•
H.L. v. Matheson, 450
u.s.
298 (1981), in which a pregnant
of Appeals.
Plaintiffs therefore request that we dismiss
the writ of certiorari on this issue.
We believe the issue properly is before the Court.
It is true that a party who acquiesces in an adverse
judgment by a district court may not raise that issue on a
petition for a writ of certiorari to the court of appeals,
where other affected parties have not sought review of the
decision below.
See O'Bannon v. Town Court Nursing
Center, 447 u.s. 773, 783 n.l4 (1980).
In this case Akron
noticed an appeal from the District Court's judgment, but
apparently failed to raise the parental consent issue in
its brief in the Court of Appeals.
Yet there is no doubt
that Akron had an interest in defending §l870.05(B) and in
seeking to overturn the decision below, and it may be
assumed
that
Akron's
failure
to
brief
the
issue
represented a decision to reduce its workload by leaving
the parental consent issue to the defendant-intervenors.
The more important point is that the record does not
indicate that Akron actually acquiesced in the judgment of
the District Court. Akron argued on behalf of §1870.05(B)
in the Court of Appeals, without apparent objection by
either the court or the opposing parties.
See Tr. Oral
Argument at 8-9, 50.
Given this uncertain record, as well as the lack of
any discuss ion of these issues in the court below, we
cannot say that the parental consent issue was not
properly before the Court of Appeals. Accordingly, Akron
ma y seek review of it in this Court.
We note that,
"although we would not normally allow a party to make an
argument it had not raised below, the fact that the same
argument
was
vigorously
asserted
by
[defendantintervenors] and fully addressed by the Court of Appeals
removes any prudential barrier to review that might
otherwise exist."
O'Bannon, supra, at 783 n.l4.
We
therefore express no view as
to whether defendantintervenors would have had constitutional standing to
appeal the District Court's decision if the city of Akron
had refused to contest that decision .
•
•
minor
~Utah's
abortion consent requirement on
the ground that it impermissibly applied to mature or
emancipated minors.
held that the plaintiff
lacked standing to raj
she had not
alleged that she or a
emancipated.
~-------;'" ~d
Y
jV ~V v).
./~ /
J~""'
, .-'1 I
v1
'
u.!
noted that ..-tbis- \
/ /
with the prudential rule
a~-r·
-""" - ~
'
unconstrued state statu-te
'ble of a construction )
/--
I
'·
·..........______
\
by the state---judiciary that would
\
~-tional
void
\j
sr= a,~-er~~ (
I
problem.
Id.,
~
physician plaintiff, who is subject to potential criminal
liability for failure to compl y with the requirements of
§l870.05(B), has standing to raise the claims of his minor
•
)-{
r
I
~ \
--
I,
--
---~
./
h / / a £a:ral court
\
9 . . -<l consti tu_ti6n;;_ .. ruling where an
I
~
----
should
!
4 50
3s was mature or
50 .
•
patients.
410
u.s.,
See Danforth, 428 U.S., at 62; Doe v. Bolton,
at 188-189; Bellotti II, 443 U.S., at 627 n.5
(plurarity opinion).
Nor do we think that the courts
below erred in refusing to abstain from deciding the
constitutionality of the consent requirement.
It may be
reasonable to assume, as we did in Bellotti v. Baird, 428
U.S.
•
~'
supra, and Matheson, supra, that a state court
presented with a statute specifically governing abortion
consent proceedings for pregnant minors will attempt to
construe the statute consistently with constitutional
requirements.
See also Planned Parenthood of Central
Missouri v. Ashcroft, post, at
(upholding Missouri
statute governing minors' abortions where reasonable
construction is consistent with constitutional
requirements).
•
But this case is quite different.
As part
51 .
•
of a city ordinance, §l870 . 05(B) does not create any
judicial procedures for making the necessary
determinations .
Akron instead asserts that the Ohio
Juvenile Court will serve as a "court having jurisdiction"
to make the proper determination of maturity.
But the
Ohio statute governing juvenile proceedings does not
•
mention minors ' abortions at all , and nothing in the
statute remotely suggests that the Ohio Juvenile Court has
authority to inquire into a minor's maturity or
emancipation. 35
In these circumstances, we do not think
35 The Ohio Juvenile Court has jurisdiction over any
child
"alleged
to be a
juvenile traffic offender,
delinquent, unruly,
abused, neglected, or dependent."
Ohio Rev. Code Ann. §2151. 23.
The only category that
arguably could encompass a pregnant minor desiring an
abortion would be the "neglected" child category.
A
neglected child is defined as one "[w]hose parents,
guardian or custodian neglects or refuses to provide him
with proper or necessary subsistence, education, medical
or surgical care, or other care necessary for his health,
morals, or well being." §2151.03. Even assuming that the
Footnote continued on next page .
•
52 •
.
•
that the Akron ordinance, as applied in Ohio juvenile
proceedings, is reasonably susceptible of being construed
to create an "opportunity for case-by-case evaluations of
the maturity of pregnant minors."
at 643 n.23.
Bellotti II, 443 U.S.,
We therefore affirm the Court of Appeals'
judgment that §l870.05(B)
is unconstitutional •
•
~~
provis~s as permitting
Ohio courts would construe these
a minor to obtain judicial approval ;j._or the "proper or
necessary . . . medical or surgical c9re" of an abortion,
where her parents had refused to prqvide that care, the
statute ~~ elearly makes no provision for a mature or
emancipated minor~~~ to avoidj parental involvement_
b.y-demen.st.r-a tin g --to-the -sa t -i-s f act.-ion--OL - t h.e-e_ou r ..t_th a..t._s he
is capable of exercising her constitutional right to
choose an abortion. On the contrary, the statute requires
that the minor's parents be notified once a petition has
been filed, §2151.28, a requirement that in the case of a
mature
minor
seeking
an
abortion
would
be
unconstitutional. See H.L. v. Matheson, 450 U.S. 398, 420
( 1 981)
(POWELL,
J.,
concurring);
id.,
at
428
n. 3
(MA RSHALL, J., dissenting).
-'
•
.
-
---- ---- - - - -- ----------
:---- 1
procedures, "only the full resources of a licensed
hospital, rather than those of some other appropriat ly
licensed
institutionG~~~~~~~ealth~~t~~~~
Doe, 410
u.s.,
v -- ---
'"---
______.,
Akron
at 195.
nonetheless urges that "[t]he fact that some
I
(
mid-trimester abortions may be done in a minimally
equipped clinic does not invalidate the regulatton:"
!
Reply Brief at 19.
\
hospital requirement
\
The city thus implies that its
may~~
be sustained because it is
)
reasonable as applied to later D&E abortions or to all
.
/
•
..
I
.
.
.
. 11 at1on
secon d -tr1mester
1nst1
a b or t.1ons. 3 0
30 rt is clear that D&E abortions are much safer than
instillation abortions, see n.
supra, and the evidence
before us concerning the need for hospitalization concerns
onl y the D&E method.
See 651 F.2d, at 1208-1210; Planned
Parenthood of Central Missouri v. Ashcroft, 664 F.2d 687,
688-6 9 0 (CAS 1 98 1 ) .
At least some authorities believe
that other second-trimester procedures should be performed
in h o s pi tal s .
See , e . g . , Cates & Gr i me s , Morbid i t y and
Footnote continued on next page.
i :
'. '
I
•
I
\
~
_,._.-
...
# /
!
we canna t
I •
• I
t
I
o
'
..
42.
:,
~
t"D~ •\1'\
•
agree. ~t
t':f"&\t·ooD.
:>~
Jv£\- tJ t · Al
is true that a State abortion regulation is not
unconstitutional simply because it does not perfectly
correspond to the asserted State
interes~ But
the lines
drawn in a State regulation must be reasonable, and this
cannot be said of the city of Akron's requirement that all
second-trimester abortions be performed in a hospita1.
31
Mortaility, Second Trimester Abortions, supra n. , at 163178;
Second
Trimester
Abortion:
A
Symposium
by
Correspondence, 16 J.
Reprod. Med.
47,
55-56
(1976)
(recommending that all amnio-infusions be performed in
hospitals).
We express no view on whether it would be
reasonable for a State to mandate that all such abortions
be performed in a general hospital.
31 As noted above, Akron defines "hospital" as a
hospital
accredited
by
the
JCAH
or
the
American
- . . I 'f~· Q(~
, __
'
11(_, ,...., '
Osteopathic Association.
§1870.0l(B).
The city has not
"'
provided a rationale for using accreditation as the
·, , , {..." )-,,
standard, though we assume the city's intent was to
{ v',j' ·
.
confine abortions to full-scale hospitals.
In Doe v.
''·'A/v
Bolton,
we
indicated
that
a
State
reasonably
might
adopt
/I
.
l_;;:/ ·
,:;_.-!.-- 1 icens ing standards
for
abort ion
faci 1 it ies,
but we
'-"
,, .
~rejected JCAH accreditation as a reasonable standard.
We,
/) .:..,!--· i----.
,. 1 , ·1 ,·.-.~>- ·
found that provision of the comprehensive services related
. /, ,,., ~~;...-'·
to JCAH accreditation simply had nothing to do with the
£.-.;"
~ r, .::
standa rds that a State legitimately might establish for
/~,
the performance of abortions. See 410, at 193-194. Akron
r-·
-~ - haSJ not
pr_ov.ide.cL- any reason for retreating from our
4-:---.:. : · .,:... ;-! ' " • .,.
hold.i ng in Doe. Thus, we note that Akron's use of JCAH or
___
Footnote continued on next page.
--~
l
43.
By preventing the performance of D&E abortions in a
I
I
nonhospital
r
setting,~kron
has imposed a heavy, and
I
entirely unnecessary, burden on women's access to a
relatively inexpensive, otherwise accessible, and safe
u
.,.I·'.
abortion procedure 3
Sect ion 1870.03 "has the effect of
-
inhibiting ... the vast majority of abortions after the
I
\
\
first 12 weeks," Planned Parenthood of Central Missouri v.
I
I
Danforth, 428 U.S. 52, 79 (1976), and therefore violates
the Constitution.
.· IV
----..,
.r-
American Osteopathic Association accreditation to define
"hospital" is an additional flaw in its ordinance.
32 rn
the United States during 1981, 82.1% of all
early second-trimester abortions (13-15 weeks) and 54% of
all second-trimester abortions from 13-20 weeks were
performed by the D&E method. See 1978 Center for Disease
Control, supra n. , at Table 14; Cates & Grimes, Deaths
from
Second
Trimester
Abortion
by
Dilatation
and
Evacuation:
Causes,
Prevention
and
Facilities,
58
Obstetrics & Gynecology 401 (1981).
,
Today, the dissenting opinion rejects the basic
premise of Roe and its progeny.
Curiously, the dissent
stops short of arguing forthrightly that Roe should be
overruled, but then adopts reasoning that would accomplish
precisely that for all practical purposes.
The dissent
says that "even assuming that there is a fundamental right
to terminate pregnancy in some limited situations," the
State's compelling interests in maternal health and
potential human life "are present throughout pregnancy."
1ssent then proceeds to find that ea h
at issue is
effect of the dissent's analysis on the woman's "limi ed
right" is made most clear by the startling suggestio
that
requiring second-trimester abortions to be performed in an
----====
----
-:.
2.
I
w
acute-care, general hospital does not impose a burden on
the abortion decision.
See post, at 15-16.
It requires
no great familiarity with the cost and limited
availability of such hospitals to appreciate that the
effect of the dissent's views could be to drive the
performance of many abortions back underground free of
effective regulation and often without the attendance of
the physician
It seems evident that the dissent v1ew
recognized in Roe as more "limited" than
"
-
~r£4~~e....c-<-4~L ~--e,.e. ~ _, d
z*(-
~ ~ ~
c:za
t?
4
rkc.. ~ ~4~'~-A.. ~
aaz
~ A.,~.
i
/Z.<._..._..
~
Lf-
~~~
~ •• ' -ed ~4 ....st. ~~ ~ ~
\·----
=11
.,.,u!!~ ~
,.,t
t
e ,, a-q
~~ .. ~,, • • ./GAl.<_
~ . 'iri!P ~~--'-~ r--c..L.~:,....C,.C.....c...4~
~ ~ ~,L.t,~~ dl~ ~
~ ~ '"W w"~,4~u_.£.. ~~.«ttl2e4A..''
•
AKRON CENTER v. AKRON, OHIO
See folder with all the abortion cases.
~4~
~ ~a\tot.)
CYN
~~cA~~~
~
DOE v. BOLTON
179
Opinion of the Court
committee approval and to confirming consultations, the
statute impermissibly restricts the physician's right to
practice his profession and deprives him of due process.
1. JCAH accreditation. The Joint Commission on 1-k.~
Accreditation of Hospit~ls is an organization with~ut -h~· /.J.JJ - ~ ~ ~
governmental sponsorship or overtones. No question D .~
whatever is raised concerning the integrity of the organi- j- C /1 )..f
~ .
12
zation or the high purpose of the accreditation process. ~
That process, however, has to do with hospital standards
,
:-!..,.,;..u~=~
gener~lly and has ~o present ~articularized concern with A"'U~~
abortiOn as a medical or surgical procedure. 13 In Geor- ., ---1 ·
gia, there is no restriction on the performance of nonabortion surgery in a hospital not yet accredited by the
JCAH so long as othe_r requirements imposed by the
State, such as licensing of the hospital and of the operating surgeon, are met. See Georgia Code §§ 83-1901 (a)
:
12
Since its founding, JCAH has pursued the "elusive goal" of
defining the "optimal setting" for "quality of service in hospitals."
JCAH, Accreditation Manual for Hospitals, Foreword (Dec. 1970).
The Manual's Introduction states the organization's purpose to establish standards and conduct accreditation programs that will afford
quality medical care "to give patients the optimal benefits that medical science has to offer." This ambitious and admirable goal is
illustrated by JCAH's decision in 1966 "[t]o raise and strengthen the
standards from their present level of minimum essential to the level
of optimum achievable .... " Some of these "optimum achievable"
standards required are: disclosure of hospital ownership and control; a dietetic service and written dietetic policies; a written disaster plan for mass emergencies; a nuclear medical services program;
faciliti es for hematology, chemistry, microbiology, clinical microscopy,
and sera-immunology; a professional library and document delivery
service; a radiology program; a social services plan administered by
a qualified social worker; and a special care unit .
13
"The Joint Commission neither advocates nor opposes any
particular position with respect to elective abortions." Letter dated
July 9, 1971, from John I. Brewer, M. D., Commissioner, JCAH,
to the Rockefeller Foundation. Brief for amici curiae, American
College of Obstetricians and Gynecologists et a!., p. A-3.
•
--7'-,...c--
OCTOBER TERM, 1972
194
Opinion of the Court
410
u.s.
and 88-1905 (1971) and 84-907 (Supp. 1971). Furthermore, accreditation by the Commission is not granted
until a hospital has been in operation at least one year.
The Model Penal Code, § 230.3, Appendix B hereto, contains no requirement for JCAH accreditation. And the
Uniform Abortion Act (Final Draft, Aug. 1971),t• approved .,bi' the American Bar Association in February
1972, con't.ains no JCAH-accredited hospital specification.15 Some courts have held that a JCAH-accreditation requirement is an overbroad infringement of fundamental rights because it does not relate to the particular
medical problems and dangers of the abortion operation.
E.~v. Menghini, 339 F. Supp., at 993-994.
~that the JCAH-accreditation requirement.£2_es
not withstand constitutional scrut~ in the present context. It is a requirement that simply is not "based on
differences that are reason ably related to the purposes of
the Act in which it is found." Morey v. Doud, 354 U. S.
457,465 (1957).
This is not to say that Georgia may not or should not,
~Q._aJt_e_L_the end of the first trimester, adopt
14
See Roe v. Wa.de, ante, at 146-147·, n. 40.
15 Some state statutes do not have the JCAH-accreditation requirement. Alaska Stat. § 11.15.060 (i970); Hawaii Rev. Stat.
§ 453-16 (Supp. 1971); N. Y. Penal Code § 125.05, subd . 3 (Supp.
1972-1973). Washington has the requirement but couples it with
the alternative of "a medical facility approved . . . by the state
board of health." ·wash. Rev. Code § 9.02.070 (Supp. 1972). Florida's new statute has a similar provision. Law of Apr. 13, 1972, c.
72-196, § 1 (2). Others contain the specification . Ark. Stat. Ann.
§§ 41-303 to 41-310 (Supp. 1971); Calif. H ealth & Safety Code
§§ 25950-25955.5 (Supp. 1972) ; Colo. Rev. Stat. Ann. §§ 40-2-50
to 40-2-53 (Cum. Supp. 1967) ; Kan. Stat. Ann. § 21-3407 (Supp.
1971); Md. Ann. Code, Art. 43, §§ 137-139 (1971). Cf. Del. Code
Ann., Tit. 24, §§ 1790-1793 (Supp. 1972), specifying '·:\ nationally
recognized medical or hospital accreditation authority," § 1790 (a).
DOE v. BOLTON
179
195
Opinion of the Court
standards for licensing all facilities where abortions may
be pert ormed so long as those starl'da!ds a_re legj_ti!ll~!l.
related to the obj ective the State seeks to accomplish.
·T he appellan"t;7o';;t;;d~~h -~ r~latfOnshTp"Wou d
be lacking even in a lesser requirement that an abortion
be performed in a licensed hospital, as opposed to a facility, such as a clinic, that may be required by the State
to possess all the staffing and services necessary to perform an abortion safely (including those adequate to
handle serious complications or other emergency, or arrangements with a ·nearby hospital to provide such services). Appellants l}nd various amici have presented us
with a mass of data purporting to demonstrate that some
facilities other than· hospitals are entirely adequate to
perform abortions if they possess these qualifications.
The State, on the other hand, has not presented__2ersuaj
sivedat'a to show that '6nly hospital~eet its ar nowleoged'Interest in insuring the quality of the operatio
and thel uli protection of the patient. We feel compelled
to agree with appellants that the State must show more
than it has in order to~prove tl1at only the full resources
If
'"'""'_._..
of a licensed hospital, rather than those of some oth:er
appropnately.lic.ensedinstitution, satisfy these health inv
terests. We hold that the hospital requirement of the
'Georgi~ law, because it fails to exclude the first trimester
of pre~nancy, see Roe v. Wade, ante, at 163, is als
invalid. I~ so holding we naturally express no opinion
on the medical judgment involved in any particular case,
that is, whether the patient's situation is such that an
abortion should be performed in a hospital, rather than
in some other facility.
2. Committee approval. The second aspect of the
appellants' procedural attack relates to the hospital abortion committee and to the oregnant woman's asserted
ROE v. WADE
113
153
Opinion of the Court
465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944);
and child rearing and education, Pierce v. Society of
Sisters, 268 U. S. 510, 535 ( 1925), Meyer v. Nebraska,
supra.
This right of privacy, whether it be founded in the
Fourteenth Amendment's concept of personal liberty
and restrictions upon state action, as we feel it is, or, as
the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad
enou h to encompass /'woman's decision whether ornot
t~~mat~!:..J~~g~~~?Y·
e etrrmerittliiit'tlle
State wmila impose upon the pregnant woman by denying this choice a..ti.2g~~r is apparent. Specific and
direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and
future. Psychological harm may be imminent. Mental
and physical health may be taxed by child care. There
is also the distress, for all concerned, associated with
the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically
and otherwise, to care for it. In other cases, as in this
one, the additional difficulties and continuing stigma
of unwed motherhood may be involved. All these are
factors the woman and her responsible physician necessarily will consider in consultation.
On the basis of elements such as these, appellant and
some amici ar ue that the woman's ri ht is a olute
and that e is entitle to terminate her . pregnancy at
whatever time, in whatever way, and for whatever reason
she alone chooses. With this we do noJ. agree. Appellant's arguments that Texas eiiFier has no valid interest
at all in regulating the abortion decision, or no interest strong enough to support any limitation upon
the woman's sole determination, are unpersuasive. The
154
~
)7
?~/ Court's
OCTOBER TERM, 1972 1
Opinion of the Court
~~· ,~
1/~u.~::;,-t. t"'
decisions recognizing a right of privacy ars6 '
acknowledge that some state
ulation in areas protected by t at right 1~ As noted above, a
State may properly assert important interests in safe'guarding health, in maintaining medical standards, and
~-"-) in J!rotecting pote~~iallife. At some point in pregnancy,
... """
the~ mterests become sufficiently compelling
to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore,
cannot be said to be absolute. In fact, it is not clear
to us that the claim asserted by some amici that one has
an unlimited right to do with one's body as one pleases
bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court
has refused to recognize an unlimited right of this kind
in the past. Jacobson v. Massachusetts, 197 U. S. 11
(1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927)
(sterilization).
'\ We, therefore, conclude that the right of personal pri- ., vacy includes the abortion decision, but that this ri,ght
/ \is n~alifi~d ~~sidered against imporU~lflAr~#C"I!ftr,J.c..AJ
tta'lliState interests in regulation.
We note that those federal and state courts that have
recently considered abortion law challenges have reached
the same conclusion. A majority, in addition to the
District Court in the present case, have held state laws
unconstitutional, at least in part, because of vagueness or because of overbreadth and abridgment of rights.
Abele v. Markle, 342 F. Supp. 800 (Conn. 1972) , appeal docketed, No. 72-56; Abele v. Markle, 351 F . Supp.
224 (Conn. 1972), appeal docketed, No. 72-730; Doe v.
Bolton, 319 F. Supp. 1048 (ND Ga. 1970), appeal decided today, post, p. 179; Doe v. Scott, 321 F. Supp. 1385
(ND Ill. 1971), appeal docketed, No. 70--105; Poe v.
Menghini, 339 F. Supp. 986 (Kan. 1972); YWCA v.
Kugler, 342 F. Supp. 1048 (NJ 1972); Babbitz v. McCann,
./ I
/',.
/
1f.,J/
ROE v. WADE
113
155
Opinion of the Court
310 F. Supp. 293 (ED Wis. 1970) , appeal dismissed, 400
U. S. 1 (1970); People v. Belous, 71 Cal. 2d 954, 458 P.
2d 194 (1969) , cert. denied, 397 U. S. 915 (1970); State
v. Barquet, 262 So. 2d 431 (Fla. 1972).
Others have sustained state statutes. Crossen v.
Attorney General, 344 F. Supp. 587 (ED Ky. 1972),
appeal docketed, No. 72-256; Rosen v. Louisiana State
Board of Medical Examiners, 318 F. Supp. 1217 (ED
La. 1970), appeal docketed, No. 70-42; Corkey- v. Edwards, 322 F. Supp. 1248 (WDNC 1971) , appeal docketed, No. 71-92; Steinberg v. Brown, 321 F. Supp. 741
(ND Ohio 1970); Doe v. Rampton (Utah 1971 ), appeal
Ind. - ,
docketed, No. 71-5666; Cheaney v. State, 285 N. E. 2d 265 (1972); Spears v. State, 257 So. 2d 876
(Miss. 1972); State v. Munson, 86 S. D. 663, 201
N. W. 2d 123 (1972), appeal docketed, No. 72-631.
Although the results are divided, most of these courts
have agreed that the right of privacy, however based,
is broad enough to cover the abortion decision; that the
right, nonetheless, is not absolute and is subject to some
limitations; and that at some point the state interests }
as to protection of health, medical standards, and prenatal life, become dominant. We agree with this
approach.
Where certain "fundamental rights" are involved, the
Court has held that regulation limiting these rights may
be justified only by a "compelling state interest," Kramer
v. Union Free School DisTrt'gf,"39·sctf1f.t>2i , 627 (1969);
Shapiro v. Thompson, 394 U. S. 618, 634 (1969), Sherbert v. Verner, 374 U. S. 398, 406 (1963) , and that
legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. Griswold v. Connecticut, 381 U. S., at 485; Aptheker v.
Secretary of State, 378 U. S. 500, 508 ( 1964) ; Cant·well v. Connecticut, 310 U. S. 296, 307-308 (1940); see
,J
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F
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162
OCTOBER TERM, 1972
Opinion of the Court
410 u.s.
courts have squarely so held.u In a recent development,
generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action
for wrongful death because of prenatal injuries. 6 5 Such
an action, however, would appear to be one to vindicate
the parents' interest and is thus consistent with the
view that the fetus, a.t most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been
represented by guardians ad litem. 66 Perfection of the
interests involved, again, has generally been contingent
upon live birth. In short, the unborn have never been
recognized in the law as persons in the whole sense.
X
In view of all this, we do not agree that, by adopting
one theory of life, Texas may override the rights of the
pregnant woman that are at stake. We repeat, however,
that the State does have an important and legitimate
A'/(_
interest in preserving and protecting the ~h of the
· \ ~~pregnant woman, whether she be a resident of the State
or a nonresident who seeks medical consultation and
(Y \,( treatment there, and that it has still another important
"!:_ .·,: 1 an_!}eg~te inte~est _in protecting the potiitfalil<~-..of
... /
lhl.!_!!l~~ ~ese !rit~~sare 8epatate 'and distinct.
·Each grow m substantiality as the woman approaches
\v, (
!j
See cases cited in Prosser, supra, n. 63, at 336-338; Annotation,
Action for Death of Unborn Child, 15 A. L. R. 3d 992 (1967) .
65 Prosser, supra, n. 63, at 338; Note, The Law and the Unborn
Child: The Legal and Logical Inconsistencies, 46 Notre Dame Law.
349, 354-360 (1971).
66 Louisell, Abortion, The Practice of Medicine and the Due
Process of Law, 16 U. C. L. A. L. Rev. 233, 235-238 (1969) ; Note, 56
Iowa L. Rev. 994, 999-1000 (1971); Note, The Law and the Unborn
Child, 46 Notre Dame Law. 349, 351-354 (1971) .
64
ROE v. WADE
113
Opinion of the Court
term and, at a point during pregnancy, each becomes
"compelling."
With respect to the State's important and legitimate
interest in the health of the mother, the "compelling"
point, in the light of present medical knowledge, is at
approximately the end of the first trimester. This is so
because of the now-established medical fact, referred to
above at 149, that until the end of the first trimester mo:r.; /"vi -, . . ~
tality in abortion may be teSStTian mortahty in normal ~{~
chTidbtrth. It follows that, from and after this poipt, /'!.f-r L,
a Stat~ay regu!a_.te the abortion procedure to the extent
f rr.
that t e regulation reasonably relates to the preservation and protection of maternal health. ~xam,E_les.... of
permissible st te re ula ·on in this area are requirements
as O~Ua 1 ca 10n~f the person who is to perform
the abortion ; as to t~icensure of that person; as to
g~acility in which the procedure is to be performed,
that is,~~ethe!J!. ~.Lb! a hos,WtD-l.,g,r ~~-~sli!!.ic
or some other place of less-than-hospi~al status; as to
the licensing of the facility; and the like.
,
~
This means, on the other hand, that, for the period of
pregnancy prior to this "compelling" point, the attending J - __
physician, in consultation with his patient, is free to '·-r>.... 1
d'eter"m!ne, without "l-egti1atH)n lJy"tlle S tate, that, in- his /; ";ti ~ } -'.../
medical judgment, the patient's pregnancy should be
terminated. If that decision is reached, the judgment
may be effectuated by an abortion free of interference by
the State.
With respect to the State's important and legitimate
interest in potential life, the "compelling" point is at
viability. This is so because the fetus then presumably
has the capability of meaningful life outside the mother's
womb. State regulation protective of fetal life after
viability thus has both logical and biological justifications. If the State is interested in protecting fetal life
after viability, it may go so far as to proscribe abortion
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