8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
1/34
410 U.S. 179
93 S.Ct. 739
35 L.Ed.2d 201
Mary DOE et al., Appellants,
v.Arthur K. BOLTON, as Attorney General of the Stateof
Georgia, et al.
No. 70—40.
Argued Dec. 13, 1971.
Reargued Oct. 11, 1972.
Decided Jan. 22, 1973.
Rehearing Denied Feb. 26, 1973.
See 410 U.S. 959, 93 S.Ct. 1410.
Syllabus
Georgia law proscribes an abortion except as performed by a dulylicensedGeorgia physician when necessary in 'his best clinicaljudgment' because
continued pregnancy would endanger a pregnant woman's life orinjure
her health; the fetus would likely be born with a seriousdefect; or the
pregnancy resulted from rape. § 26—1202(a) of Ga. CriminalCode. In
addition to a requirement that the patient be a Georgia residentand certain
other requirements, the statutory scheme poses threeprocedural
conditions in § 26—1202(b): (1) that the abortion be performedin a
hospital accredited by the Joint Commission on Accreditation ofHospitals(JCAH); (2) that the procedure be approved by the hospitalstaff abortion
committee; and (3) that the performing physician's judgment beconfirmed
by independent examinations of the patient by two otherlicensed
physicians. Appellant Doe, an indigent married Georgiacitizen, who was
denied an abortion after eight weeks of pregnancy for failure tomeet any
of the § 26 1202(a) conditions, sought declaratory andinjunctive relief,
contending that the Georgia laws were unconstitutional. Othersjoining in
the complaint included Georgia-licensed physicians (who claimedthat theGeorgia statutes 'chilled and deterred' their practices),registered nurses,
clergymen, and social workers. Though holding that all theplaintiffs had
standing, the District Court ruled that only Doe presented ajusticiable
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
2/34
controversy. In Doe's case the court gave declaratory, but notinjunctive,
relief, invalidating as an infringement of privacy and personalliberty the
limitation to the three situations specified in § 26—1202(a) andcertain
other provisions but holding that the State's interest in healthprotection
and the existence of a 'potential of independent humanexistence' justified
regulation through § 26 1202(b) of the 'manner of performance aswell as
the quality of the final decision to abort.' The appellants,claimingentitlement to broader relief, directly appealed to thisCourt. Held:
1. Doe's case presents a live, justiciable controversy and shehas standing
to sue, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147,as do
the physician-appellants (who, unlike the physician in Wade,were not
charged with abortion violations), and it is thereforeunnecessary to
resolve the issue of the other appellants' standing. Pp.187—189.
2. A woman's constitutional right to an abortion is notabsolute. Roe v.
Wade, supra. P. 189.
3. The requirement that a physician's decision to perform anabortion must
rest upon 'his best clinical judgment' of its necessity isnot
unconstitutionally vague, since that judgment may be made in thelight of
all the attendant circ*mstances. United States v. Vuitch, 402U.S. 62, 71
—72, 91 S.Ct. 1294, 1298—1299, 28 L.Ed.2d 601. Pp.191—192.
4. The three procedural conditions in § 26—1202(b) violatethe
Fourteenth Amendment. Pp. 192—200.
(a) The JCAH-accreditation requirement is invalid, since theState has not
shown that only hospitals (let alone those with JCAHaccreditation) meet
its interest in fully protecting the patient; and a hospitalrequirement
failing to exclude the first trimester of pregnancy would beinvalid on that
ground alone, see Roe v. Wade, supra. Pp. 193—195.
(b) The interposition of a hospital committee on abortion, aprocedure not
applicable as a matter of state criminal law to other surgicalsituations, is
unduly restrictive of the patient's rights, which are alreadysafeguarded by
her personal physician. Pp. 195—198.
(c) Required acquiescence by two copractitioners also has norational
connection with a patient's needs and unduly infringes on herphysician's
right to practice. Pp. 198—200.
5. The Georgia residence requirement violates the Privilegesand
Immunities Clause by denying protection to persons who enterGeorgia
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
3/34
for medical services there. Pp. 200.
6. Appellants' equal protection argument centering on the threeprocedural
conditions in § 26—1202(b), invalidated on other grounds, iswithout
merit. Pp. 200—201.
7. No ruling is made on the question of injunctive relief. Cf.Roe v. Wade,supra. P. 201.
D.C., 319 F.Supp. 1048, modified and affirmed.
Margie Pitts Hames, Atlanta, Ga., for appellants.
Dorothy T. Beasley, Atlanta, Ga., for appellees.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1 In this appeal, the criminal abortion statutes recentlyenacted in Georgia are
challenged on constitutional grounds. The statutes are §§26—1201 through 26
—1203 of the State's Criminal Code, formulated by GeorgiaLaws, 1968
Session, pp. 1249, 1277 1280. In Roe v. Wade, 410 U.S. 113, 93S.Ct. 705, 35
L.Ed.2d 147, we today have struck down, as constitutionallydefective, the
Texas criminal abortion statutes that are representative ofprovisions long ineffect in a majority of our States. The Georgialegislation, however, is different
and merits separate consideration.
2 * The statutes in question are reproduced as Appendix A, post,p. 202. 1As the
appellants acknowledge,2the 1968 statutes are patternedupon the American
Law Institute's Model Penal Code, § 230.3 (Proposed OfficialDraft, 1962),
reproduced as Appendix B, post, p. 205. The ALI proposal hasserved as the
model for recent legislation in approximately one-fourth of ourStates.3Thenew Georgia provisions replaced statutory law thathad been in effect for more
than 90 years. Georgia Laws 1876, No. 130, § 2, at113.4The predecessor
statute paralleled the Texas legislation considered in Roe v.Wade, supra, and
made all abortions criminal except those necessary 'to preservethe life' of the
pregnant woman. The new statutes have not been tested onconstitutional
grounds in the Georgia state courts.
3 Section 26—1201, with a referenced exception, makes abortion acrime, and §26—1203 provides that a person convicted of that crimeshall be punished by
imprisonment for not less than one nor more than 10 years.Section 26—
1202(a) states the exception and removes from § 1201'sdefinition of criminal
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
4/34
II
abortion, and thus makes noncriminal, an abortion 'performed bya physician
duly licensed' in Georgia when, 'based upon his best clinicaljudgment . . . an
abortion is necessary because:
4 '(1) A continuation of the pregnancy would endanger the lifeof the pregnant
woman or would seriously and permanently injure her health;or
5 '(2) The fetus would very likely be born with a grave,permanent, and
irremediable mental or physical defect; or
6 '(3) The pregnancy resulted from forcible or statutoryrape.'5
7 Section 26—1202 also requires, by numbered subdivisions of itssubsection
(b), that, for an abortion to be authorized or performed as anoncriminalprocedure, additional conditions must befulfilled. These are (1) and (2)
residence of the woman in Georgia; (3) reduction to writing ofthe performing
physician's medical judgment that an abortion is justifiedfor one or more of the
reasons specified by § 26—1202(a), with written concurrence inthat judgment
by at least two other Georgia-licensed physicians, basedupon their separate
personal medical examinations of the woman; (4)performance of the abortion
in a hospital licensed by the State Board of Health and alsoaccredited by the
Joint Commission on Accreditation of Hospitals; (5) advanceapproval by anabortion committee of not less than three members ofthe hospital's staff; (6)
certifications in a rape situation; and (7), (8), and (9)maintenance and
confidentiality of records. There is a provision (subsection(c)) for judicial
determination of the legality of a proposed abortion on petitionof the judicial
circuit law officer or of a close relative, as therein defined,of the unborn child,
and for expeditious hearing of that petition. There is also aprovision
(subsection (e)) giving a hospital the right not to admit anabortion patient and
giving any physician and any hospital employee or staff memberthe right, on
moral or religious grounds, not to participate in theprocedure.
8 On April 16, 1970, Mary Doe, 623 other individuals (ninedescribed as
Georgia-licensed physicians, seven as nurses registered in theState, five as
clergymen, and two as social workers), and two nonprofit Georgiacorporations
that advocate abortion reform instituted this federal action inthe Northern
District of Georgia against the State's attorney general, thedistrict attorney of
Fulton County, and the chief of police of the city of Atlanta.The plaintiffs
sought a declaratory judgment that the Georgia abortion statuteswere
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
5/34
unconstitutional in their entirety. They also sought injunctiverelief restraining
the defendants and their successors from enforcing thestatutes.
Mary Doe alleged:
9 (1) She was a 22-year-old Georgia citizen, married, and nineweeks pregnant.
She had three living children. The two older ones had beenplaced in a foster
home because of Doe's poverty and inability to care for them.The youngest,
born July 19, 1969, had been placed for adoption. Herhusband had recently
abandoned her and she was forced to live with her indigentparents and their
eight children. She and her husband, however, had becomereconciled. He was
a construction worker employed only sporadically. She had been amental
patient at the State Hospital. She had been advised thatan abortion could be
performed on her with less danger to her health than ifshe gave birth to the
child she was carrying. She would be unable to care for orsupport the new
child.
10 (2) On March 25, 1970, she applied to the Abortion Committeeof Grady
Memorial Hospital, Atlanta, for a therapeutic abortion under §26—1202. Her
application was denied 16 days later, on April 10, when she waseight weeks
pregnant, on the ground that her situation was not onedescribed in § 26—
1202(a).7
11 (3) Because her application was denied, she was forced eitherto relinquish 'her
right to decide when and how many children she will bear' or toseek an
abortion that was illegal under the Georgia statutes. Thisinvaded her rights of
privacy and liberty in matters related to family,marriage, and sex, and deprived
her of the right to choose whether to bear children. This was aviolation of
rights guaranteed her by the First, Fourth, Fifth, Ninth, andFourteenth
Amendments. The statutes also denied her equal protection andprocedural due
process and, because they were unconstitutionally vague,deterred hospitals and
doctors from performing abortions. She sued 'on her own behalfand on behalf
of all others similarly situated.'
12 The other plaintiffs alleged that the Georgia statutes'chilled and deterred' them
from practicing their respective professions and deprived themof rights
guaranteed by the First, Fourth, and Fourteenth Amendments.These plaintiffs
also purported to sue on their own behalf and on behalf ofothers similarlysituated.
13 A three-judge district court was convened. An offer of proofas to Doe's
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
6/34
III
identity was made, but the court deemed it unnecessary toreceive that proof.
The case was then tried on the pleadings andinterrogatories.
14 The District Court, per curiam, 319 F.Supp. 1048(N.D.Ga.1970), held that all
the plaintiffs had standing but that only Doe presented ajusticiable controversy.
On the merits, the court concluded that the limitation in theGeorgia statute of
the 'number of reasons for which an abortion may be sought,'id., at 1056,improperly restricted Doe's rights of privacyarticulated in Griswold v.
Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965),and of
'personal liberty,' both of which it thought 'broad enough toinclude the decision
to abort a pregnancy,' 319 F.Supp., at 1055. As a consequence,the court held
invalid those portions of §§ 26—1202(a) and (b)(3) limitinglegal abortions to
the three situations specified; § 26—1202(b)(6) relating tocertifications in a
rape situation; and § 26—1202(c) authorizing a court test.Declaratory relief
was granted accordingly. The court, however, held that Georgia'sinterest inprotection of health, and the existence of apotential of independent human
existence' (emphasis in original), id., at 1055, justified stateregulation of 'the
manner of performance as well as the quality of the finaldecision to abort,' id.,
at 1056, and it refused to strike down the other provisions ofthe statutes. It
denied the request for an injunction, id., at 1057.
15 Claiming that they were entitled to an injunction and tobroader relief, the
plaintiffs took a direct appeal pursuant to 28 U.S.C. §1253. We postponeddecision on jurisdiction to the hearing on themerits. 402 U.S. 941, 91 S.Ct.
1614, 29 L.Ed.2d 109 (1971). The defendants also purported toappeal,
pursuant to § 1253, but their appeal was dismissed forwant of jurisdiction. 402
U.S. 936, 91 S.Ct. 1614, 1633, 29 L.Ed.2d 104 (1971). We areadvised by the
appellees, Brief 42, that an alternative appeal on their part ispending in the
United States Court of Appeals for the Fifth Circuit. Theextent, therefore, to
which the District Court decision was adverse to the defendants,that is, the
extent to which portions of the Georgia statutes were held tobeunconstitutional, technically is not now before us.8Swarbv. Lennox, 405 U.S.
191, 201, 92 S.Ct. 767, 772, 31 L.Ed.2d 138 (1972).
16 Our decision in Roe v. Wade, ante, 410 U.S. 113, 93 S.Ct.705, 35 L.Ed.2d 147,
establishes (1) that, despite her pseudonym, we may accept astrue, for this
case, Mary Doe's existence and her pregnant state on April 16,1970; (2) thatthe constitutional issue is substantial; (3) that theinterim termination of Doe's
and all other Georgia pregnancies in existence in 1970 has notrendered the case
moot; and (4) that Doe presents a justiciable controversy andhas standing to
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
7/34
maintain the action.
17 Inasmuch as Doe and her class are recognized, the questionwhether the other
appellants—physicians, nurses, clergymen, social workers, andcorporations—
present a justiciable controversy and have standing isperhaps a matter of no
great consequence. We conclude, however, that thephysician-appellants, who
are Georgia-licensed doctors consulted by pregnant women, alsopresent ajusticiable controversy and do have standing despitethe fact that the record
does not disclose that any one of them has been prosecuted, orthreatened with
prosecution, for violation of the State's abortionstatutes. The physician is the
one against whom these criminal statutes directly operate in theevent he
procures an abortion that does not meet the statutoryexceptions and conditions.
The physician-appellants, therefore, assert a sufficientlydirect threat of
personal detriment. They should not be required to awaitand undergo a
criminal prosecution as the sole means of seeking relief.Crossen v.Breckenridge, 446 F.2d 833, 839—840 (CA6 1971); Poe v.Menghini, 339
F.Supp. 986, 990—991 (Kan.1972).
18 In holding that the physicians, while theoretically possessedof standing, did not
present a justiciable controversy, the District Courtseems to have relied
primarily on Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6L.Ed.2d 989
(1961). There, a sharply divided Court dismissed an appeal froma state court
on the ground that it presented no real controversy justifyingthe adjudication ofa constitutional issue. But the challengedConnecticut statute, deemed to
prohibit the giving of medical advice on the use ofcontraceptives, had been
enacted in 1879, and, apparently with a single exception, no onehad ever been
prosecuted under it. Georgia's statute, in contrast, isrecent and not moribund.
Furthermore, it is the successor to another Georgia abortionstatute under
which, we are told,9physicians were prosecuted. Thepresent case, therefore, is
closer to Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21L.Ed.2d 228
(1968), where the Court recognized the right of a schoolteacher, though not yetcharged criminally, to challenge her State'santi-evolution statute. See also
Griswold v. Connecticut, 381 U.S., at 481, 85 S.Ct. 1678.
19 The parallel claims of the nurse, clergy, social worker, andcorporation-
appellants are another step removed and as to them, the Georgiastatutes
operate less directly. Not being licensed physicians, the nursesand the others
are in no position to render medical advice. They would bereached by the
abortion statutes only in their capacity as accessories or ascounselor-conspirators. We conclude that we need not pass upon thestatus of these
additional appellants in this suit, for the issues aresufficiently and adequately
presented by Doe and the physician-appellants, and nothingis gained or lost by
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
8/34
IV
the presence or absence of the nurses, the clergymen, the socialworkers, and
the corporations. See Roe v. Wade, supra, 410 U.S., at 127, 93S.Ct., at 714.
20 The appellants attack on several grounds those portions ofthe Georgia abortion
statutes that remain after the District Court decision: unduerestriction of a rightto personal and marital privacy; vagueness;deprivation of substantive and
procedural due process; improper restriction to Georgiaresidents; and denial of
equal protection.
21 A. Roe v. Wade, supra, sets forth our conclusion that apregnant woman does
not have an absolute constitutional right to an abortion on herdemand. What is
said there is applicable here and need not be repeated.
22 B. The appellants go on to argue, however, that the presentGeorgia statutes
must be viewed historically, that is, from the fact that priorto the 1968 Act an
abortion in Georgia was not criminal if performed to 'preservethe life' of the
mother. It is suggested that the present statute, as well, hasthis emphasis on the
mother's rights, not on those of the fetus. Appellants contendthat it is thus clear
that Georgia has given little, and certainly not first,consideration to the unborn
child. Yet, it is the unborn child's rights that Georgia assertsin justification of
the statute. Appellants assert that this justification cannot beadvanced at thislate date.
23 Appellants then argue that the statutes do not adequatelyprotect the woman's
right. This is so because it would be physically and emotionallydamaging to
Doe to bring a child into her poor, 'fatherless'10family,and because advances in
medicine and medical techniques have made it safer for a womanto have a
medically induced abortion than for her to bear a child. Thus,'a statute that
requires a woman to carry an unwanted pregnancy to terminfringes not only on
a fundamental right of privacy but on the right to life itself.'Brief 27.
24 The appellants recognize that a century ago medical knowledgewas not so
advanced as it is today, that the techniques of antisepsis werenot known, and
that any abortion procedure was dangerous for the woman. Torestrict the
legality of the abortion to the situation where it was deemednecessary, in
medical judgment, for the preservation of the woman's life wasonly a natural
conclusion in the exercise of the legislative judgment of thattime. A State is not
to be reproached, however, for a past judgmental determinationmade in the
light of then-existing medical knowledge. It is perhaps unfairto argue, as the
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
9/34
appellants do, that because the early focus was on thepreservation of the
woman's life the State's present professed interest in theprotection of
See AlsoAmendments, Arkansas ConstitutionQuestions Islam Can't Answers - PDFCOFFEE.COMThe evolution deceit - [PDF Document]embryonic and fetal life is to be downgraded. That argumentdenies the State
the right to readjust its views and emphases in the light of theadvanced
knowledge and techniques of the day.
25 C. Appellants argue that § 26—1202(a) of the Georgiastatutes, as it has beenleft by the District Court's decision, isunconstitutionally vague. This argument
centers on the proposition that, with the District Court'shaving struck down the
statutorily specified reasons, it still remains a crime for aphysician to perform
an abortion except when, as § 26—1202(a) reads, it is vbasedupon his best
clinical judgment that an abortion is necessary.' The appellantscontend that the
word 'necessary' does not warn the physician of what conduct isproscribed;
that the statute is wholly without objective standards and issubject to diverse
interpretation; and that doctors will choose to err on the sideof caution and willbe arbitrary.
26 The net result of the District Court's decision is that theabortion determination,
so far as the physician is concerned, is made in the exercise ofhis professional,
that is, his 'best clinical,' judgment in the light of all theattendant
circ*mstances. He is not now restricted to the three situationsoriginally
specified. Instead, he may range farther afield wherever hismedical judgment,
properly and professionally exercised, so dictates anddirects him.
27 The vagueness argument is set at rest by the decision inUnited States v.
Vuitch, 402 U.S. 62, 71—72, 91 S.Ct. 1294, 1298 1299, 28 L.Ed.2d601
(1971), where the issue was raised with respect to a District ofColumbia statute
making abortions criminal 'unless the same were done asnecessary for the
preservation of the mother's life or health and under thedirection of a
competent licensed practitioner of medicine.' That statute hasbeen construed to
bear upon psychological as well as physical wellbeing.This being so, the Court
concluded that the term 'health' presented no problem ofvagueness. 'Indeed,
where a particular operation is necessary for a patient'sphysical or mental
health is a judgment that physicians are obviously called uponto make
routinely whenever surgery is considered.' Id., at 72, 91 S.Ct.,at 1299. This
conclusion is equally applicable here. Whether, in the words ofthe Georgia
statute, 'an abortion is necessary' is a professional judgmentthat the Georgia
physician will be called upon to make routinely.
28 We agree with the District Court, 319 F.Supp., at 1058, thatthe medical
judgment may be exercised in the light of all factorsphysical, emotional,
psychological, familial, and the woman's age relevant tothe well-being of the
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
10/34
patient. All these factors may relate to health. Thisallows the attending
physician the room he needs to make his best medicaljudgment. And it is room
that operates for the benefit, not the disadvantage, of thepregnant woman.
29 D. The appellants next argue that the District Court shouldhave declared
unconstitutional three procedural demands of the Georgiastatute: (1) that the
abortion be performed in a hospital accredited by the JointCommission onAccreditation of Hospitals:11(2) that theprocedure be approved by the hospital
staff abortion committee; and (3) that the performingphysician's judgment be
confirmed by the independent examinations of the patient by twoother licensed
physicians. The appellants attack these provisions notonly on the ground that
they unduly restrict the woman's right of privacy, but also onprocedural due
process and equal protection grounds. Thephysician-appellants also argue that,
by subjecting a doctor's individual medical judgment tocommittee approval
and to confirming consultations, the statute impermissiblyrestricts thephysician's right to practice his profession anddeprives him of due process.
30 1. JCAH accreditation. The Joint Commission on Accreditationof Hospitals is
an organization without governmental sponsorship or overtones.No question
whatever is raised concerning the integrity of the organizationor the high
purpose of the accreditation process.12That process,however, has to do with
hospital standards generally and has no present particularizedconcern with
abortion as a medical or surgical procedure.13In Georgia,there is no restrictionon the performance of nonabortion surgery ina hospital not yet accredited by
the JCAH so long as other requirements imposed by the State,such as licensing
of the hospital and of the operating surgeon, are met. SeeGeorgia Code §§ 88
—1901(a) and 88—1905 (1971) and 84—907 (Supp.1971).Furthermore,
accreditation by the Commission is not granted until a hospitalhas been in
operation at least one year. The Model Penal Code, § 230.3,Appendix B
hereto, contains no requirement for JCAH accreditation. And theUniform
Abortion Act (Final Draft, Aug. 1971),14approved by theAmerican BarAssociation in February 1972, contains noJCAH-accredited hospital
specification.15Some courts have held that aJCAH-accreditation requirement
is an overbroad infringement of fundamental righs because itdoes not relate to
the particular medical problems and dangers of the abortionoperation. E.g.,
Poe v. Menghini, 339 F.Supp., at 993 994.
31 We hold that the JCAH-accreditation requirement does notwithstand
constitutional scrutiny in the present context. It is arequirement that simply isnot 'based on differences that arereasonably related to the purposes of the Act
in which it is found.' Morey v. Doud, 354 U.S. 457, 465, 77S.Ct. 1344, 1350, 1
L.Ed.2d 1485 (1957).
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
11/34
32 This is not say that Georgia many not or should not, from andafter the end of
the first trimester, adopt standards for licensing allfacilities where abortions
may be performed so long as those standards are legitimatelyrelated to the
objective the State seeks to accomplish. The appellants contendthat such a
relationship would be lacking even in a lesser requirement thatan abortion be
performed in a licensed hospital, as opposed to afacility, such as a clinic, that
may be required by the State to possess all the staffing andservices necessaryto perform an abortion safely (including thoseadequate to handle serious
complications or other emergency, or arrangements with a nearbyhospital to
provide such services). Appellants and various amici havepresented us with a
mass of data purporting to demonstrate that some facilitiesother than hospitals
are entirely adequate to perform abortions if they possess thesequalifications.
The State, on the other hand, has not presented persuasive datato show that
only hospitals meet its acknowledged interest in insuring thequality of the
operation and the full protection of the patient. We feelcompelled to agree withappellants that the State must show morethan it has in order to prove that only
the full resources of a licensed hospital, rather than those ofsome other
appropriately licensed institution, satisfy these healthinterests. We hold that the
hospital requirement of the Georgia law, because it fails toexclude the first
trimester of pregnancy, see Roe v. Wade, 410 U.S., at 163, 93S.Ct., at 732, is
also invalid. In so holding we naturally express no opinion onthe medical
judgment involved in any particular case, that is, whetherthe patient's situation
is such that an abortion should be performed in a hospital,rather than in someother facility.
33 2. Committee approval. The second aspect of the appellants'procedural attack
relates to the hospital abortion committee and to the pregnantwoman's asserted
lack of access to that committee. Relying primarily on Goldbergv. Kelly, 397
U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), concerning thetermination of
welfare benefits, and Wisconsin v. Constantineau, 400 U.S. 433,91 S.Ct. 507,
27 L.Ed.2d 515 (1971), concerning the posting of an alcoholic'sname, Doefirst argues that she was denied due process because shecould not make a
presentation to the committee. It is not clear from therecord, however, whether
Doe's own consulting physician was or was not a member of thecommittee or
did or did not present her case, or, indeed, whether she herselfwas or was not
there. We see nothing in the Georgia statute that explicitlydenies access to the
committee by or on behalf of the woman. If the access pointalone were
involved, we would not be persuaded to strike down the committeeprovision
on the unsupported assumption that access is not provided.
34 Appellants attack the discretion the statute leaves to thecommittee. The most
concrete argument they advance is their suggestion that it isstill a badge of
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
12/34
infamy 'in many minds' to bear an illegitimate child, and thatthe Georgia
system enables the committee members' personal views as toextramarital sex
relations, and punishment therefor, to govern their decisions.This approach
obviously is one founded on suspicion and one that discloses alack of
confidence in the integrity of physicians. To say thatphysicians will be guided
in their hospital committee decisions by their predilections onextramarital sex
unduly narrows the issue to pregnancy outside marriage. (Doe'sown situationdid not involve extramarital sex and its product.) Theappellants' suggestion is
necessarily somewhat degrading to the conscientious physician,particularly the
obstetrician, whose professional activity is concerned with thephysical and
mental welfare, the woes, the emotions, and the concern of hisfemale patients.
He, perhaps more than anyone else, is knowledgeable in this areaof patient
care, and he is aware of human fraitly, so-called 'error,' andneeds. The good
physician—despite the presence of rascals in the medicalprofession, as in all
others, we trust that most physicians are 'good'—will havesympathy andunderstanding for the pregnant patient that probablyare not exceeded by those
who participate in other areas of professional counseling.
35 It is perhaps worth noting that the abortion committee has afunction of its own.
It is a committee of the hospital and it is composed of membersof the
institution's medical staff. The membership usually is achanging one. In this
way, its work burden is shared and is more readily accepted. Thecommittee's
function is protective. It enables the hospital appropriately tobe advised that itsposture and activities are in accord withlegal requirements. It is to be
remembered that the hospital is an entity and that it, too, haslegal rights and
legal obligations.
36 Saying all this, however, does not settle the issue of theconstitutional propriety
of the committee requirement. Viewing the Georgia statute as awhole, we see
no constitutionally justifiable pertinence in the structure forthe advance
approval by the abortion committee. With regard to theprotection of potentiallife, the medical judgment is alreadycompleted prior to the committee stage,
and review by a committee once removed from diagnosis isbasically
redundant. We are not cited to any other surgical procedure madesubject to
committee approval as a matter of state criminal law. Thewoman's right to
receive medical care in accordance with her licensed physician'sbest judgment
and the physician's right to administer it are substantiallylimited by this
statutorily imposed overview. And the hospital itself isotherwise fully
protected. Under § 26—1202(e), the hospital is free not toadmit a patient foran abortion. It is even free not to havean abortion committee. Further a
physician or any other employee has the right to refrain,for moral or religious
reasons, from participating in the abortion procedure. Theseprovisions
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
13/34
obviously are in the statute in order to afford appropriateprotection to the
individual and to the denominational hospital. Section26—1202(e) affords
adequate protection to the hospital, and little more is providedby the
committee prescribed by § 26—1202(b)(5).
37 We conclude that the interposition of the hospital abortioncommittee is unduly
restrictive of the patient's rights and needs that, at thispoint, have already beenmedically delineated and substantiated byher personal physician. To ask more
serves neither the hospital nor the State.
38 3. Two-doctor concurrence. The third aspect of theappellants' attack centers on
the 'time and availability of adequate medical facilities andpersonnel.' It is said
that the system imposes substantial and irrational roadblocksand 'is patently
unsuited' to prompt determination of the abortion decision.Time, of course, is
critical in abortion. Risks during the first trimester ofpregnancy are admittedly
lower than during later months.
39 The appellants purport to show by a local study16ofGrady Memorial Hospital
(serving indigent residents in Fulton and DeKalb Counties) thatthe 'mechanics
of the system itself forced . . . discontinuance of the abortionprocess' because
the median time for the workup was 15 days. The same studyshows, however,
that 27% of the candidates for abortion were already 13 or moreweeks
pregnant at the time of application, that is, they were atthe end of or beyond
the first trimester when they made their applications. It is toomuch to say, as
appellants do, that these particular persons 'were victims of asystem over which
they (had) no control.' If higher risk was incurred because ofabortions in the
second rather than the first trimester, much of that risk wasdue to delay in
application, and not to the alleged cumbersomeness of thesystem. We note, in
passing, that appellant Doe had no delay problem herself;the decision in her
case was made well within the first trimester.
40 It should be manifest that our rejection of theaccredited-hospital requirement
and, more important, of the abortion committee's advanceapproval eliminates
the major grounds of the attack based on the system's delay andthe lack of
facilities. There remains, however, the required confirmation bytwo Georgia-
licensed physicians in addition to the recommendation of thepregnant woman's
own consultant (making under the statute, a total of sixphysicians involved,
including the three on the hospital's abortion committee). Weconclude that this
provision, too, must fall.
41 The statute's emphasis, as has been repetitively noted, is onthe attending
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
14/34
physician's 'best clinical judgment that an abortion isnecessary.' That should be
sufficient. The reasons for the presence of the confirmationstep in the statute
are perhaps apparent, but they are insufficient to withstandconstitutional
challenge. Again, no other voluntary medical or surgicalprocedure for which
Georgia requires confirmation by two other physicians has beencited to us. If a
physician is licensed by the State, he is recognized bythe State as capable of
exercising acceptable clinical judgment. If he fails in this,professional censureand deprivation of his license are availableremedies. Required acquiescence by
co-practitioners has no rational connection with a patient'sneeds and unduly
infringes on the physician's right to practice. The attendingphysician will know
when a consultation is advisable—the doubtful situation, theneed for assurance
when the medical decision is a delicate one, and the like.Physicians have
followed this routine historically and know its usefulness andbenefit for all
concerned. It is still true today that '(r)eliance must beplaced upon the
assurance given by his license, issued by an authority competentto judge inthat respect, that he (the physician) possesses therequisite qualifications.' Dent
v. West Virginia, 129 U.S. 114, 122—123, 9 S.Ct. 231, 233, 32L.Ed. 623
(1889). See United States v. Vuitch, 402 U.S., at 71, 91 S.Ct.at 1298.
42 E. The appellants attack the residency requirement of theGeorgia law, §§ 26—
1202(b)(1) and (b)(2), as violative of the right to travelstressed in Shapiro v.
Thompson, 394 U.S. 618, 629 631, 89 S.Ct. 1322, 1328—1330, 22L.Ed.2d 600
(1969), and other cases. A requirement of this kind, of course,could be deemedto have some relationship to the availability ofpost-procedure medical care for
the aborted patient.
43 Nevertheless, we do not uphold the constitutionality ofthe residence
requirement. It is not based on any policy of preservingstate-supported
facilities for Georgia residents, for the bar also applies toprivate hospitals and
to privately retained physicians. There is no intimation,either, that Georgia
facilities are utilized to capacity in caring for Georgiaresidents. Just as thePrivileges and Immunities Clause, Const. Art.IV, § 2, protects persons who
enter other States to ply their trade, Ward v. Maryland, 12Wall. 418, 430, 20
L.Ed. 449 (1871); Blake v. McClung, 172 U.S. 239, 248—256, 19S.Ct. 165,
168—172, 43 L.Ed. 432 (1898), so must it protect persons whoenter Georgia
seeking the medical services that are available there. SeeToomer v. Witsell,
334 U.S. 385, 396—397, 68 S.Ct. 1156, 1162—1163, 92 L.Ed. 1460(1948). A
contrary holding would mean that a State could limit to its ownresidents the
general medical care available within its borders. This we couldnot approve.
44 F. The last argument on this phase of the case is one thatoften is made, namely,
that the Georgia system is violative of equal protection becauseit discriminates
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
15/34
V
APPENDIX A TO OPINION OF THE COURT
Criminal Code of Georgia
against the poor. The appellants do not urge that abortionsshould be performed
by persons other than licensed physicians, so we have noargument that because
the wealthy can better afford physicians, the poor should havenon-physicians
made available to them. The appellants acknowledged that theprocedures are
'nondiscriminatory in . . . express terms' but they suggest thatthey have
produced invidious discriminations. The District Courtrejected this approach
out of hand. 319 F.Supp., at 1056. It rests primarily on theaccreditation andapproval and confirmation requirements, discussedabove, and on the assertion
that most of Georgia's counties have no accredited hospital. Wehave set aside
the accreditation, approval, and confirmation requirements,however, and with
that, the discrimination argument collapses in all significantaspects.
45 The appellants complain, finally, of the District Court'sdenial of injunctiverelief. A like claim was made in Roe v. Wade,410 U.S. 113, 93 S.Ct. 705, 35
L.Ed.2d 147. We declined decision there insofar as injunctiverelief was
concerned, and we decline it here. We assume that Georgia'sprosecutorial
authorities will give full recognition to the judgment of thisCourt.
46 In summary, we hold that the JCAH-accredited hospitalprovision and the
requirements as to approval by the hospital abortion committee,as to
confirmation by two independent physicians, and as to residencein Georgia areall violative of the Fourteenth Amendment.Specifically, the following portions
of § 26—1202(b), remaining after the District Court's judgment,are invalid:
47 (1) Subsections (1) and (2).
48 (2) That portion of Subsection (3) following the words'(s)uch physician's
judgment is reduced to writing.'
49 (3) Subsections (4) and (5).
50 The judgment of the District Court is modified accordinglyand, as so modified,
is affirmed. Costs are allowed to the appellants.
51 (The italicized portions are those held unconstitutional bythe District Court)
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
16/34
CHAPTER 26—12. ABORTION.52
53 26—1201. Criminal Abortion. Except as otherwise provided insection 26—
1202, a person commits criminal abortion when he administers anymedicine,
drug or other substance whatever to any woman or when he usesany instrument
or other means whatever upon any woman with intent to produce amiscarriage
or abortion.
54 26—1202. Exception. (a) Section 26—1201 shall not apply to anabortion
performed by a physician duly licensed to practicemedicine and surgery
pursuant to Chapter 84—9 or 84—12 of the Code of Georgiaof 1933, as
amended, based upon his best clinical judgment that an abortionis necessary
because:
55 (1) A continuation of the pregnancy would endanger the lifeof the pregnant
woman or would seriously and permanently injure her health;or
56 (2) The fetus would very likely be born with a grave,permanent, and
irremediable mental or physical defect; or
57 (3) The pregnancy resulted from forcible or statutoryrape.
58 (b) No abortion is authorized or shall be performed underthis section unless
each of the following conditions is met:
59 (1) The pregnant woman requesting the abortion certifies inwriting under oath
and subject to the penalties of false swearing to the physicianwho proposes to
perform the abortion that she is a bona fide legalresident of the State of
Georgia.
60 (2) The physician certifies that he believes the woman is abona fide resident of
this State and that he has no information which should lead himto believe
otherwise.
61 (3) Such physician's judgment is reduced to writing andconcurred in by at least
two other physicians duly licensed to practice medicine andsurgery pursuant to
Chapter 84—9 of the Code of Georgia of 1933, as amended, whocertify inwriting that based upon their separate personal medicalexaminations of the
pregnant woman, the abortion is, in their judgment,necessary because of one or
more of the reasons enumerated above.
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
17/34
62 (4) Such abortion is performed in a hospital licensed by theState Board of
Health and accredited by the Joint Commission on Accreditationof Hospitals.
63(5) The performance of the abortion has been approved inadvance by a
committee of the medical staff of the hospital in which theoperation is to be
performed. This committee must be one established andmaintained in
accordance with the standards promulgated by the JointCommission on theAccreditation of Hospitals, and its approval mustbe by a majority vote of a
membership of not less than three members of the hospital'sstaff; the physician
proposing to perform the operation may not be counted as amember of the
committee for this purpose.
64 (6) If the proposed abortion is considered necessary becausethe woman has
been raped, the woman makes a written statement underoath, and subject to the
penalties of false swearing, of the date, time and placeof the rape and the name
of the rapist, if known. There must be attached to thisstatement a certified copy
of any report of the rape made by any law enforcement officer oragency and a
statement by the solicitor general of the judicial circuit wherethe rape occurred
or allegedly occurred that, according to his best information,there is probable
cause to believe that the rape did occur.
65 (7) Such written opinions, statements, certificates, andconcurrences are
maintained in the permanent files of such hospital and areavailable at all
reasonable times to the solicitor general of the judicialcircuit in which the
hospital is located.
66 (8) A copy of such written opinions, statements,certificates, and concurrences
is filed with the Director of the State Department of PublicHealth within 10
days after such operation is performed.
67 (9) All written opinions, statements, certificates, andconcurrences filed and
maintained pursuant to paragraphs (7) and (8) of this subsectionshall be
confidential records and shall not be made available for publicinspection at any
time.
68 (c) Any solicitor general of the judicial circuit in which anabortion is to be
performed under this section, or any person who would be arelative of the
child within the second degree of consanguinity, may petitionthe superiorcourt of the county in which the abortion is tobe performed for a declaratory
judgment whether the performance of such abortion wouldviolate any
constitutional or other legal rights of the fetus. Suchsolicitor general may also
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
18/34
APPENDIX B TO OPINION OF THE COURT
American Law Institute
MODEL PENAL CODE
Section 230.3. Abortion.
petition such court for the purpose of taking issue withcompliance with the
requirements of this section. The physician who proposes toperform the
abortion and the pregnant woman shall be respondents. Thepetition shall be
heard expeditiously and if the court adjudges that such abortionwould violate
the constitutional or other legal rights of the fetus, the courtshall so declare and
shall restrain the physician from performing the abortion.
69 (d) If an abortion is performed in compliance with thissection, the death of the
fetus shall not give rise to any claim for wrongful death.
70 (e) Nothing in this section shall require a hospital to admitany patient under the
provisions hereof for the purpose of performing anabortion, nor shall any
hospital be required to appoint a committee such as contemplatedunder
subsection (b)(5). A physician, or any other person who is amember of or
associated with the staff of a hospital, or any employee of ahospital in which an
abortion has been authorized, who shall state in writing anobjection to such
abortion on moral or religious grounds shall not be required toparticipate in the
medical procedures which will result in the abortion, and therefusal of any
such person to participate therein shall not form the basis ofany claim for
damages on account of such refusal or for any disciplinary orrecriminatory
action against such person.
71 26—1203. Punishment. A person convicted of criminal abortionshall be
punished by imprisonment for not less than one nor morethan 10 years.
72
73 (1) Unjustified Abortion. A person who purposely andunjustifiably terminates
the pregnancy of another otherwise than by a live birth commitsa felony of the
third degree or, where the pregnancy has continued beyond thetwenty-sixth
week, a felony of the second degree.
74 (2) Justifiable Abortion. A licensed physician is justifiedin terminating apregnancy if he believes there is substantialrisk that continuance of the
pregnancy would gravely impair the physical or mentalhealth of the mother or
that the child would be born with grave physical or mentaldefect, or that the
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
19/34
pregnancy resulted from rape, incest, or other feloniousintercourse. All illicit
intercourse with a girl below the age of 16 shall be deemedfelonious for
purposes of this subsection. Justifiable abortions shallbe performed only in a
licensed hospital except in case of emergency when hospitalfacilities are
unavailable. (Additional exceptions from the requirement ofhospitalization
may be incorporated here to take account of situations insparsely settled areas
where hospitals are not generally accessible.)
75 (3) Physicians' Certificates; Presumption fromNon-Compliance. No abortion
shall be performed unless two physicians, one of whom may be theperson
performing the abortion, shall have certified in writingthe circ*mstances which
they believe to justify the abortion. Such certificate shall besubmitted before
the abortion to the hospital where it is to be performed and, inthe case of
abortion following felonious intercourse, to the prosecutingattorney or the
police. Failure to comply with any of the requirements ofthis Subsection givesrise to a presumption that the abortion wasunjustified.
76 (4) Self-Abortion. A woman whose pregnancy has continuedbeyond the
twenty-sixth week commits a felony of the third degree if shepurposely
terminates her own pregnancy otherwise than by a live birth, orif she uses
instruments, drugs or violence upon herself for that purpose.Except as justified
under Subsection (2), a person who induces or knowingly aids awoman to use
instruments, drugs or violence upon herself for the purpose ofterminating herpregnancy otherwise than by a live birthcommits a felony of the third degree
whether or not the pregnancy has continued beyond thetwenty-sixth week.
77 (5) Pretended Abortion. A person commits a felony of thethird degree if,
representing that it is his purpose to perform an abortion, hedoes an act
adapted to cause abortion in a pregnant woman although the womanis in fact
not pregnant, or the actor does not believe she is. A personcharged with
unjustified abortion under Subsection (1) or an attempt tocommit that offense
may be convicted thereof upon proof of conduct prohibited bythis Subsection.
78 (6) Distribution of Abortifacients. A person who sells,offers to sell, possesses
with intent to sell, advertises, or displays for sale anythingspecially designed to
terminate a pregnancy, or held out by the actor as useful forthat purpose,
commits a misdemeanor, unless:
79 (a) the sale, offer or display is to a physician or druggistor to an intermediary in
a chain of distribution to physicians or druggists; or
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
20/34
80 (b) the sale is made upon prescription or order of aphysician; or
81 (c) the possession is with intent to sell as authorized inparagraphs (a) and (b);
or
82 (d) the advertising is addressed to persons named inparagraph (a) and confinedto trade or professional channels notlikely to reach the general public.
83 (7) Section Inapplicable to Prevention of Pregnancy. Nothingin this Section
shall be deemed applicable to the prescription, administrationor distribution of
drugs or other substances for avoiding pregnancy, whether bypreventing
implantation of a fertilized ovum or by any other method thatoperates before,
at or immediately after fertilization.
84 Mr. Chief Justice BURGER, concurring.
85 I agree that, under the Fourteenth Amendment to theConstitution, the abortion
statutes of Georgia and Texas impermissibly limit theperformance of abortions
necessary to protect the health of pregnant women, using theterm health in its
broadest medical context. See United States v. Vuitch, 402U.S. 62, 71—72, 91
S.Ct. 1294, 1298—1299, 28 L.Ed.2d 601 (1971). I am somewhattroubled that
the Court has taken notice of various scientific and medicaldata in reaching its
conclusion; however, I do not believe that the Court hasexceeded the scope of
judicial notice accepted in other contexts.
86 In oral argument, counsel for the State of Texas informed theCourt that early
abortion procedures were routinely permitted in certainexceptional cases, such
as nonconsensual pregnancies resulting from rape and incest. Inthe face of a
rigid and narrow statute, such as that of Texas, no one in thesecirc*mstances
should be placed in a posture of dependence on a prosecutorialpolicy or
prosecutorial discretion. Of course, States must havebroad power, within the
limits indicated in the opinions, to regulate the subject ofabortions, but where
the consequences of state intervention are so severe,uncertainty must be
avoided as much as possible. For my part, I would be inclined toallow a State
to require the certification of two physicians to support anabortion, but the
Court holds otherwise. I do not believe that such a procedure isunduly
burdensome, as are the complex steps of the Georgiastatute, which require as
many as six doctors and the use of a hospital certified by theJCAH.
87 I do not read the Court's holdings today as having thesweeping consequences
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
21/34
attributed to them by the dissenting Justices; the dissentingviews discount the
reality that the vast majority of physicians observe thestandards of their
profession, and act only on the basis of carefullydeliberated medical judgments
relating to life and health. Plainly, the Court today rejectsany claim that the
Constitution requires abortions on demand.
88 Mr. Justice DOUGLAS, concurring.
89 While I join the opinion of the Court,1I add a fewwords.
90 * The questions presented in the present cases go far beyondthe issues of
vagueness, which we considered in United States v. Vuitch, 402U.S. 62, 91
S.Ct. 1294, 28 L.Ed.2d 601. They involve the right of privacy,one aspect of
which we considered in Griswold v. Connecticut, 381 U.S. 479,484, 85 S.Ct.1678, 1681, 14 L.Ed.2d 510, when we held that variousguarantees in the Bill
of Rights create zones of privacy.2
91 The Griswold case involved a law forbidding the use ofcontraceptives. We
held that law as applied to married people unconstitutional:
92 'We deal with a right of privacy older than the Bill ofRights—older than our
political parties, older than our school system. Marriageis a coming togetherfor better or for worse, hopefullyenduring, and intimate to the degree of being
sacred.' Id., at 486, 85 S.Ct. at 1682.
93 The District Court in Doe held that Griswold and relatedcases 'establish a
Constitutional right to privacy broad enough to encompass theright of a woman
to terminate an unwanted pregnancy in its early stages, byobtaining an
abortion.' 319 F.Supp. 1048, 1054.
94 The Supreme Court of California expressed the same view inPeople v.
Belous,371 Cal.2d 954, 963, 80 Cal.Rptr. 354, 359, 458P.2d 194, 199.
95 The Ninth Amendment obviously does not create federallyenforceable rights. It
merely says, 'The enumeration in the Constitution, of certainrights, shall not be
construed to deny or disparage others retained by the people.'But a catalogue of
these rights includes customary, traditional, and time-honoredrights, amenities,
privileges, and immunities that come within the sweep of'the Blessings of
Liberty' mentioned in the preamble to the Constitution. Many ofthem, in my
view, come within the meaning of the term 'liberty' as used inthe Fourteenth
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
22/34
Amendment.
96 First is the autonomous control over the development andexpression of one's
intellect, interests, tastes, and personality.
97 These are rights protected by the First Amendment and, in myview, they are
absolute, permitting of no exceptions. See Terminiello v.Chicago, 337 U.S. 1,
69 S.Ct. 894, 93 L.Ed. 1131; Roth v. United States, 354 U.S.476, 508, 77 S.Ct.
1304, 1321, 1 L.Ed.2d 1498 (dissent); Kingsley Pictures Corp. v.Regents, 360
U.S. 684, 697, 79 S.Ct. 1362, 1369, 3 L.Ed.2d 1512 (concurring);New York
Times Co. v. Sullivan, 376 U.S. 254, 293, 84 S.Ct. 710, 733, 11L.Ed.2d 686
(Black, J., concurring, in which I joined). The Free ExerciseClause of the First
Amendment is one facet of this constitutional right. The rightto remain silent as
respects one's own beliefs, Watkins v. United States, 354 U.S.178, 196 199, 77
S.Ct. 1173, 1183—1185, 1 L.Ed.2d 1273, is protected by the Firstand the
Fifth. The First Amendment grants the privacy of first-classmail, United States
v. Van Leeuwen, 397 U.S. 249, 253, 90 S.Ct. 1029, 1032, 25L.Ed.2d 282. All
of these aspects of the right of privacy are rights 'retained bythe people' in the
meaning of the Ninth Amendment.
98 Second is freedom of choice in the basic decisions of one'slife respecting
marriage, divorce, procreation, contraception, and the educationand upbringing
of children.
99 These rights, unlike those protected by the First Amendment,are subject to
some control by the police power. Thus, the Fourth Amendmentspeaks only of
'unreasonable searches and seizures' and of 'probable cause.'These rights are
'fundamental,' and we have held that in order to supportlegislative action the
statute must be narrowly and precisely drawn and that a'compelling state
interest' must be shown in support of the limitation. E.g.,Kramer v. Union Free
School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583;Shapiro v.
Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600;Carrington v. Rash,
380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675; Sherbert v. Verner,374 U.S. 398,
83 S.Ct. 1790, 10 L.Ed.2d 965; NAACP v. Alabama ex rel.Patterson, 357 U.S.
449, 78 S.Ct. 1163, 2 L.Ed.2d 1488.
100 The liberty to marry a person of one's own choosing, Lovingv. Virginia, 388
U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010; the right ofprocreation, Skinner v.Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86L.Ed. 1655; the liberty to direct the
education of one's children, Pierce v. Society of Sisters, 268U.S. 510, 45 S.Ct.
571, 69 L.Ed. 1070, and the privacy of the marital relation,Griswold v.
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
23/34
Connecticut, supra, are in this category.4Only last Termin Eisenstadt v. Baird,
405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349, anothercontraceptive case, we
expanded the concept of Griswold by saying:
101 'It is true that in Griswold the right of privacy inquestion inhered in the marital
relationship. Yet the marital couple is not an independententity with a mind
and heart of its own, but an association of two individuals eachwith a separateintellectual and emotional make up. If the right ofprivacy means anything, it is
the right of the individual, married or single, to be free fromunwarranted
governmental intrusion into matters so fundamentally affecting aperson as the
decision whether to bear or beget a child.' Id., at 453.
102 This right of privacy was called by Mr. Justice Brandeis theright 'to be let
alone.' Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct.564, 572, 72
L.Ed. 944 (dissenting opinion). That right includes theprivilege of an
individual to plan his own affairs, for, "outside areas ofplainly harmful
conduct, every American is left to shape his own life as hethinks best, do what
he pleases, go where he pleases." Kent v. Dulles, 357 U.S. 116,126, 78 S.Ct.
1113, 1118, 2 L.Ed.2d 1204.
103 Third is the freedom to care for one's health and person,freedom from bodily
restraint or compulsion, freedom to walk, stroll, or loaf.
104 These rights, though fundamental, are likewise subject toregulation on a
showing of 'compelling state interest.' We stated inPapachristou v. City of
Jacksonville, 405 U.S. 156, 164, 92 S.Ct. 839, 844, 31 L.Ed.2d110, that
walking, strolling, and wandering 'are historically part of theamenities of life as
we have known (them).' As stated in Jacobson v. Massachusetts,197 U.S. 11,
29, 25 S.Ct. 358, 362, 49 L.Ed. 643:
105 'There is, of course, a sphere within which the individualmay assert the
supremacy of his own will and rightfully dispute the authorityof any human
government, especially of any free government existing under awritten
constitution, to interfere with the exercise of that will.'
106 In Union Pacific R. Co. v. Botsford, 141 U.S. 250, 252, 11S.Ct. 1000, 1001, 35
L.Ed. 734, the Court said, 'The inviolability of the person isas much invaded
by a compulsory stripping and exposure as by a blow.'
107 In Terry v. Ohio, 392 U.S. 1, 8—9, 88 S.Ct. 1868, 1873, 20L.Ed.2d 889, the
Court, in speaking of the Fourth Amendment, stated, 'Thisinestimable right of
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
24/34
II
personal security belongs as much to the citizen on thestreets of our cities as to
the homeowner closeted in his study to dispose of his secretaffairs.'
108 Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 510,19 L.Ed.2d 576,
emphasizes that the Fourth Amendment 'protects individualprivacy against
certain kinds of governmental intrusion.'
109In Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626,67 L.Ed. 1042, the
Court said:
110 'Without doubt, (liberty) denotes not merely freedom frombodily restraint but
also the right of the individual to contract, to engage in anyof the common
occupations of life, to acquire useful knowledge, to marry,establish a home and
bring up children, to worship God according to thedictates of his ownconscience, and generally to enjoy thoseprivileges long recognized at common
law as essential to the orderly pursuit of happiness by freemen.'
111 The Georgia statute is at war with the clear message ofthese cases—that a
woman is free to make the basic decision whether to bear anunwanted child.
Elaborate argument is hardly necessary to demonstrate thatchildbirth may
deprive a woman of her preferred lifestyle and force upon her aradically
different and undesired future. For example, rejected applicantsunder theGeorgia statute are required to endure the discomforts ofpregnancy; to incur
the pain, higher mortality rate, and aftereffects of childbirth;to abandon
educational plans; to sustain loss of income; to forgo thesatisfactions of
careers; to tax further mental and physical health in providingchild care; and,
in some cases, to bear the lifelong stigma of unwed motherhood,a badge which
may haunt, if not deter, later legitimate familyrelationships.
112 Such a reasoning is, however, only the beginning of theproblem. The State has
interests to protect. Vaccinations to prevent epidemics are oneexample, as
Jacobson, supra, holds. The Court held that compulsorysterilization of
imbeciles afflicted with hereditary forms of insanity orimbecility is another.
Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000.Abortion affects
another. While childbirth endangers the lives of some women,voluntary
abortion at any time and place regardless of medical standardswould impinge
on a rightful concern of society. The woman's health is part ofthat concern; as
is the life of the fetus after quickening. These concernsjustify the State in
treating the procedure as a medical one.
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
25/34
113 One difficulty is that this statute as construed and appliedapparently does not
give full sweep to the 'psychological as well as physicalwell-being' of women
patients which saved the concept 'health' from being voidfor vagueness in
United States v. Vuitch, 402 U.S., at 72, 91 S.Ct., at 1299.But, apart from that,
Georgia's enactment has a constitutional infirmity because, asstated by the
District Court, it 'limits the number of reasons for which anabortion may be
sought.' I agree with the holding of the District Court, 'Thisthe State may notdo, because such action unduly restricts adecision sheltered by the
Constitutional right to privacy.' 319 F.Supp., at 1056.
114 The vicissitudes of life produce pregnancies which may beunwanted, or which
may impair 'health' in the broad Vuitch sense of the term, orwhich may imperil
the life of the mother, or which in the full setting of the casemay create such
suffering, dislocations, misery, or tragedy as to make an earlyabortion the only
civilized step to take. These hardships may be properly embracedin the 'health'factor of the mother as appraised by a person ofinsight. Or they may be part of
a broader medical judgment based on what is 'appropriate' in agiven case,
though perhaps not 'necessary' in a strict sense.
115 The 'liberty' of the mother, though rooted as it is in theConstitution, may be
qualified by the State for the reasons we have stated. But wherefundamental
personal rights and liberties are involved, the correctivelegislation must be
'narrowly drawn to prevent the supposed evil,' Cantwell v.Connecticut, 310U.S. 296, 307, 60 S.Ct. 900, 905, 84 L.Ed. 1213,and not be dealt with in an
'unlimited and indiscriminate' manner. Shelton v. Tucker, 364U.S. 479, 490, 81
S.Ct. 247, 253, 5 L.Ed.2d 231. And see Talley v. California, 362U.S. 60, 80
S.Ct. 536, 4 L.Ed.2d 559. Unless regulatory measures are soconfined and are
addressed to the specific areas of compelling legislativeconcern, the police
power would become the great leveler of constitutionalrights and liberties.
116 There is no doubt that the State may require abortions to beperformed by
qualified medical personnel. The legitimate objective ofpreserving the
mother's health clearly supports such laws. Their impact uponthe woman's
privacy is minimal. But the Georgia statute outlaws lawsvirtually all such
operations—even in the earliest stages of pregnancy. In light ofmodern
medical evidence suggesting that an early abortion is saferhealthwise than
childbirth itself,5it cannot be seriously urged that socomprehensive a ban is
aimed at protecting the woman's health. Rather, this expansiveproscription of
all abortions along the temporal spectrum can rest only on apublic goal ofpreserving both embryonic and fetallife.
117 The present statute has struck the balance between thewoman's and the State's
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
26/34
III
interests wholly in favor of the latter. I am not prepared tohold that a State may
equate, as Georgia has done, all phases of maturation precedingbirth. We held
in Griswold that the States may not preclude spouses fromattempting to avoid
the joinder of sperm and egg. If this is true, it is difficultto perceive any
overriding public necessity which might attach precisely at themoment of
conception. As Mr. Justice Clark has said:6
118'To say that life is present at conception is to giverecognition to the potential,
rather than the actual. The unfertilized egg has life, and iffertilized, it takes on
human proportions. But the law deals in reality, notobscurity—the known
rather than the unknown. When sperm meets egg life mayeventually form, but
quite often it does not. The law does not deal in speculation.The phenomenon
of life takes time to develop, and until it is actually present,it cannot be
destroyed. Its interruption prior to formation would hardly behomicide, and as
we have seen, society does not regard it as such. The rites ofBaptism are notperformed and death certificates are notrequired when a miscarriage occurs.
No prosecutor has ever returned a murder indictmentcharging the taking of the
life of a fetus.7
119 This would not be the case if the fetus constituted humanlife.'
120 In summary, the enactment is overbroad. It is not closelycorrelated to the aim
of preserving prenatal life. In fact, it permits its destructionin several cases,
including pregnancies resulting from sex acts in which unmarriedfemales are
below the statutory age of consent. At the same time,however, the measure
broadly proscribes aborting other pregnancies which maycause severe mental
disorders. Additionally, the statute is overbroad because itequates the value of
embryonic life immediately after conception with the worth oflife immediately
before birth.
121 Under the Georgia Act, the mother's physician is not thesole judge as to
whether the abortion should be performed. Two other licensedphysicians must
concur in his judgment.8Moreover, the abortion must beperformed in a
licensed hospital;9and the abortion must be approved inadvance by a
committee of the medical staff of that hospital.10
122 Physicians, who speak to us in Doe through an amicus brief,complain of the
Georgia Act's interference with their practice of theirprofession.
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
27/34
-
patient relationship, unless it be in the priest-penitentrelationship.
124 It is one thing for a patient to agree that her physicianmay consult with another
physician about her case. It is quite a different matterfor the State compulsorily
to impose on that physician-patient relationship another layeror, as in this case,
still a third layer of physicians. The right of privacy—theright to care for one'shealth and person and to seek out aphysician of one's own choice protected by
the Fourteenth Amendment—becomes only a matter of theory, not areality,
when a multiple-physician-approval system is mandated by theState.
125 The State licenses a physician. If he is derelict orfaithless, the procedures
available to punish him or to deprive him of his license arewell known. He is
entitled to procedural due process before professionaldisciplinary sanctions
may be imposed. See In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222,20 L.Ed.2d117. Crucial here, however, is state-imposed control overthe medical decision
whether pregnancy should be interrupted. The good-faith decisionof the
patient's chosen physician is overriden and the finaldecision passed on to
others in whose selection the patient has no part. This is atotal destruction of
the right of privacy between physician and patient and theintimacy of relation
which that entails.
126 The right to seek advice on one's health and the right toplace reliance on thephysician of one's choice are basic toFourteenth Amendment values. We deal
with fundamental rights and liberties, which, as already noted,can be contained
or controlled only by discretely drawn legislation thatpreserves the 'liberty' and
regulates only those phases of the problem of compellinglegislative concern.
The imposition by the State of group controls over thephysician-patient
relationship is not made on any medical procedure apart fromabortion, no
matter how dangerous the medical step may be. The oversightimposed on the
physician and patient in abortion cases denies them their'liberty,' viz., theirright of privacy, without anycompelling, discernible state interest.
127 Georgia has constitutional warrant in treating abortion as amedical problem.
To protect the woman's right of privacy, however, the controlmust be through
the physician of her choice and the standards set for hisperformance.
128 The protection of the fetus when it has acquired life is alegitimate concern of
the State. Georgia's law makes no rational, discernible decisionon that score.11For under the Code, the developmental stage of thefetus is irrelevant when
pregnancy is the result of rape, when the fetus will verylikely be born with a
permanent defect, or when a continuation of the pregnancywill endanger the
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
28/34
life of the mother or permanently injure her health. When lifeis present is a
question we do not try to resolve. While basically a questionfor medical
experts, as stated by Mr. Justice Clark,12it is, ofcourse, caught up in matters of
religion and morality.
129 In short, I agree with the Court that endangering the lifeof the woman or
seriously and permanently injuring her health are standards toonarrow for theright of privacy that is at stake.
130 I also agree that the superstructure of medical supervisionwhich Georgia has
erected violates the patient's right of privacy inherent in herchoice of her own
physician.
131 Mr. Justice WHITE, with whom Mr. Justice REHNQUIST joins,dissenting.
132 At the heart of the controversy in these cases are thoserecurring pregnancies
that pose no danger whatsoever to the life or health of themother but are,
nevertheless, unwanted for any one or more of a variety ofreasons—
convenience, family planning, economics, dislike of children,the
embarrassment of illegitimacy, etc., The common claim before usis that for
any one of such reasons, or for no reason at all, and withoutasserting or
claiming any threat to life or health, any woman is entitled toan abortion at herrequest if she is able to find a medicaladvisor willing to undertake the
procedure.
133 The Court for the most part sustains this position: Duringthe period prior to the
time the fetus becomes viable, the Constitution of the UnitedStates values the
convenience, whim, or caprice of the pregnant woman more thanthe life or
potential life of the fetus; the Constitution, therefore,guarantees the right to an
abortion as against any state law or policy seeking to protectthe fetus from anabortion not prompted by more compelling reasonsof the mother.
134 With all due respect, I dissent. I find nothing in thelanguage or history of the
Constitution to support the Court's judgments. The Court simplyfashions and
announces a new constitutional right for pregnant women and,with scarcely
any reason or authority for its action, invests that right withsufficient substance
to override most existing state abortion statutes. The upshot isthat the people
and the legislatures of the 50 States are constitutionallydisentitled to weigh therelative importance of the continuedexistence and development of the fetus, on
the one hand, against a spectrum of possible impacts on themother, on the
other hand. As an exercise of raw judicial power, the Courtperhaps has
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
29/34
authority to do what it does today; but in my view its judgmentis an
improvident and extravagant exercise of the power of judicialreview that the
Constitution extends to this Court.
135 The Court apparently values the convenience of the pregnantwoman more than
the continued existence and development of the life or potentiallife that she
carries. Whether or not I might agree with that marshaling ofvalues, I can in noevent join the Court's judgment because I findno constitutional warrant for
imposing such an order of priorities on the people andlegislatures of the States.
In a sensitive area such as this, involving as it does issuesover which
reasonable men may easily and heatedly differ, I cannot acceptthe Court's
exercise of its clear power of choice by interposing aconstitutional barrier to
state efforts to protect human life and by investing women anddoctors with the
constitutionally protected right to exterminate it. This issue,for the most part,
should be left with the people and to the political processesthe people havedevised to govern their affairs.
136 It is my view, therefore, that the Texas statute is notconstitutionally infirm
because it denies abortions to those who seek to serveonly their convenience
rather than to protect their life or health. Nor is thisplaintiff, who claims no
threat to her mental or physical health, entitled to assert thepossible rights of
those women whose pregnancy assertedly implicates their health.This, together
with United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28L.Ed.2d 601(1971), dictates reversal of the judgment of theDistrict Court.
137 Likewise, because Georgia may constitutionally forbidabortions to pregnant
women who, like the plaintiff in this case, do not fall withinthe reach of § 26—
1202(a) of its criminal code, I have no occasion, and theDistrict Court had
none, to consider the constitutionality of the proceduralrequirements of the
Georgia statute as applied to those pregnancies posingsubstantial hazards to
either life or health. I would reverse the judgment of theDistrict Court in the
Georgia case.
138 Mr. Justice REHNQUIST, dissenting.
139 The holding in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35L.Ed.2d 147, that
state abortion laws can withstand constitutional scrutiny onlyif the State can
demonstrate a compelling state interest, apparently compels theCourt's closescrutiny of the various provisions in Georgia'sabortion statute. Since, as
indicated by my dissent in Wade, I view thecompelling-state-interest standard
as an inappropriate measure of the constitutionality of stateabortion laws, I
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
30/34
The portions italicized in Appendix A are those heldunconstitutional by the
District Court.
Brief for Appellants 25 n. 5; Tr. of Oral Arg. 9.
See Roe v. Wade, 410 U.S. 113, at 140 n. 37, 93 S.Ct. 705, at720 n. 37.
The pertinent provisions of the 1876 statute were:
'Section I. Be it enacted, etc., That from and after the passageof this Act, the
wilful killing of an unborn child, so far developed as to beordinarily called
'quick,' by any injury to the mother of such child, which wouldbe murder if itresulted in the death of such mother, shall beguilty of a felony, and punishable
by death or imprisonment for life, as the jury trying thecase may recommend.
'Sec. II. Be it further enacted, That every person who shalladminister to any
woman pregnant with a child, any medicine, drug, or substancewhatever, or
shall use or employ any instrument or other means, with intentthereby to
destroy such child, unless the same shall have been necessary topreserve the
life of such mother, or shall have been advised by twophysicians to be
necessary for such purpose, shall, in case the death of suchchild or mother be
thereby produced, be declared guilty of an assault with intentto murder.
'Sec. III. Be it further enacted, That any person who shallwilfully administer to
any pregnant woman any medicine, drug or substance, or anythingwhatever, or
shall employ any instrument or means whatever, with intentthereby to procure
the miscarriage or abortion of any such woman, unless the sameshall have been
necessary to preserve the life of such woman, or shall have beenadvised by two
physicians to be necessary for that purpose, shall, uponconviction, be punishedas prescribed in section 4310 of the RevisedCode of Georgia.'
It should be noted that the second section, in contrast to thefirst, made no
specific reference to quickening. The section was construed,however, to
possess this line of demarcation. Taylor v. State, 105 Ga.846, 33 S.E. 190
(1899).
In contrast with the ALI model, the Georgia statute makes nospecific referenceto pregnancy resulting from incest. We wereassured by the State at reargument
that this was because the statute's reference to 'rape' wasintended to include
incest. Tr. of Oral Rearg. 32.
respectfully dissent from the majority's holding.
1
2
3
4
5
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
31/34
Appellants by their complaint, App. 7, allege that the name is apseudonym.
In answers to interrogatories, Doe stated that her applicationfor an abortion
was approved at Georgia Baptist Hospital on May 5, 1970, butthat she was not
approved as a charity patient there and had no money to pay foran abortion.
App. 64.
What we decide today obviously has implications for the issuesraised in the
defendants' appeal pending in the Fifth Circuit.
Tr. of Oral Arg. 21—22.
Brief for Appellants 25.
We were advised at reargument, Tr. of Oral Aearg. 19, that only54 of Georgia's
119 counties have a JCAH-accredited hospital.
Since its founding, JCAH has pursued the 'elusive goal' ofdefining the 'optimal
setting' for 'quality of service in hospitals.' JCAH,Accreditation Manual for
Hospitals, Foreword (Ded. 1970). The Manual's Introductionstates the
organization's purpose to establish standards and conductaccreditation
programs that will afford quality medical care 'to givepatients the optimal
benefits that medical science has to offer.' Thisambitious and admirable goal is
illustrated by JCAH's decision in 1966 '(t)o raise andstrengthen the standardsfrom their present level of minimumessential to the level of optimum
achievable . . ..' Some of these 'optimum achievable' standardsrequired are:
disclosure of hospital ownership and control; a dietetic serviceand written
dietetic policies; a written disaster plan for mass emergencies;a nuclear
medical services program; facilities for hematology, chemistry,microbiology,
clinical microsocopy, and scro-immunology; a professionallibrary and
document delivery service; a radiology program; a socialservices plan
administered by a qualified social worker; and a special careunit.
'The Joint Commission neither advocates nor opposes anyparticular 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 Gynecolgistset al., p. A—
3.
See Roe v. Wade, ante, 410 U.S., at 146—147, n. 40, 93 S.Ct., at723—724, n.
40.
Some state statutes do not have the JCAH-accreditationrequirement. Alaska
Stat. § 11.15.060 (1970); Hawaii Rev.Stat. § 453—16 (Supp.1971);N.Y. Penal
6
7
8
9
10
11
12
13
14
15
8/17/2019 Doe v. Bolton, 410 U.S. 179 (1973)
32/34
Code § 125.05, subd. 3 (McKinney's Consol.Laws, c. 40,Supp.1972—1973).
Washington has the requirement but couples it with thealternative 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. Lawof Apr. 13,
1972, c. 72—196, § 1(2). Others contain the specification.Ark.Stat.Ann. §§ 41
—303 to 41—310 (Supp.1971); Calif.Health & Safety Code§§ 25950—
25955.5 (Supp.1972); Colo.Rev.Stat.Ann. §§ 40—2—50 to40—2—53(Cum.Supp.1967); Kan.Stat.Ann. § 21—3407 (Supp.1971);Md.Ann.Code, Art.
43, §§ 137—139 (1971). Cf. 24 Del.Code Ann., Tit. 24, §§ 17901793
(Supp.1972) specifying 'a nationally recognized medical orhospital
accreditation authority,' § 1790(a).
L. Baker & M. Freeman, Abortion Surveillance at GradyMemorial Hospital
Center for Disease Control (June and July 1971) (U.S.Dept. ofHEW, Public
Health Service).
I disagree with the dismissal of Dr. Hallford's complaint inintervention in Roe
v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, becausemy
disagreement with Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746,27 L.Ed.2d
669, revealed in my dissent in that case, still persists andextends to the progeny
of that case.
There is no mention of privacy in our Bill of Rights but ourdecisions have
recognized it as one of the fundamental values those amendmentsweredesigned to protect. The fountainhead case is Boyd v. UnitedStates, 116 U.S.
616, 6 S.Ct. 524, 29 L.Ed. 746, holding that a federal statutewhich authorized a
court in tax cases to require a taxpayer to produce his recordsor to concede the
Government's allegations offended the Fourth and FifthAmendments. Mr.
Justice Bradley, for the Court, found that the measure undulyintruded into the
'sanctity of a man's home and the privacies of life.' Id., at630, 6 S.Ct., at 532.
Prior to Boyd, in Kilbourn v. Thompson, 103 U.S. 168, 190, 26L.Ed. 377, Mr.
Justice Miller held for the Court that neither House of Congress'possesses thegeneral power of making inquiry into the privateaffairs of the citizen.' Of
Kilbourn, Mr. Justice Field later said, 'This case will standfor all time as a
bulwark against the invasion of the right of the citizento protection in his
![Doe v. Bolton, 410 U.S. 179 (1973) - [PDF Document] (2024)](data:image/png;base64,iVBORw0KGgoAAAANSUhEUgAAAAEAAAABCAQAAAC1HAwCAAAAC0lEQVR42mP8/h8AAvMB+NzmkbcAAAAASUVORK5CYII=)