U.S. Supreme Court Doe v. Bolton, 410
U.S. 179 (1973) Doe v. Bolton No. 70-40 Argued December 13,
1971 Reargued October 11,
1972 Decided January 22,
1973 410
U.S. 179 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF
GEORGIA Syllabus Georgia law proscribes an abortion except as performed by a duly
licensed Georgia physician when necessary in "his best clinical
judgment" because continued pregnancy would endanger a pregnant
woman's life or injure her health; the fetus would likely be born
with a serious defect; or the pregnancy resulted from rape. §
26-1202(a) of Ga. Criminal Code. In addition to a requirement that
the patient be a Georgia resident and certain other requirements,
the statutory scheme poses three procedural conditions in §
26-1202(b): (1) that the abortion be performed in a hospital
accredited by the Joint Commission on Accreditation of Hospitals
(JCAH); (2) that the procedure be approved by the hospital staff
abortion committee; and (3) that the performing physician's
judgment be confirmed by independent examinations of the patient by
two other licensed physicians. Appellant Doe, an indigent married
Georgia citizen, who was denied an abortion after eight weeks of
pregnancy for failure to meet any of the § 26-1202(a) conditions,
sought declaratory and injunctive relief, contending that the
Georgia laws were unconstitutional. Others joining in the complaint
included Georgia-licensed physicians (who claimed that the Georgia
statutes "chilled and deterred" their practices), registered
nurses, clergymen, and social workers. Though holding that all the
plaintiffs had standing, the District Court ruled that only Doe
presented a justiciable controversy. In Doe's case the court gave
declaratory, but not injunctive, relief, invalidating as an
infringement of privacy and personal liberty the limitation to the
three situations specified in § 26-1202(a) and certain other
provisions, but holding that the State's interest in health
protection and the existence of a "potential of independent human
existence" justified regulation through § 26-1202(b) of the "manner
of performance as well as the quality of the final decision to
abort." The appellants, claiming entitlement to broader relief,
directly appealed to this Court. Held: 1. Doe's case presents a live, justiciable controversy and she
has standing to sue, Roe v. Wade, ante p. 410 U. S. 113 , as
do the physician Page 410 U. S. 180 appellants (who, unlike the physician in Wade, were not
charged with abortion violations), and it is therefore unnecessary
to resolve the issue of the other appellants' standing. Pp. 410 U. S.
187 -189.

															2. A woman's constitutional right to an abortion is not
absolute. Roe v. Wade, supra. P. 410 U. S.
189 .

															3. The requirement that a physician's decision to perform an
abortion must rest upon "his best clinical judgment" of its
necessity is not unconstitutionally vague, since that judgment may
be made in the light of all the attendant circumstances. United
States v. Vuitch, 402 U. S. 62 , 402 U. S. 71 -72.
Pp. 410 U. S.
191 -192.

															4. The three procedural conditions in § 26-1202(b) violate the
Fourteenth Amendment. Pp. 410 U. S.
192 -200.

															(a) The JCAH accreditation requirement is invalid, since the
State has not shown that only hospitals (let alone those with JCAH
accreditation) meet its interest in fully protecting the patient;
and a hospital requirement failing to exclude the first trimester
of pregnancy would be invalid on that ground alone, see Roe v.
Wade, supra. Pp. 410 U. S.
193 -195.

															(b) The interposition of a hospital committee on abortion, a
procedure not applicable as a matter of state criminal law to other
surgical situations, is unduly restrictive of the patient's rights,
which are already safeguarded by her personal physician. Pp. 410 U. S.
195 -198.

															(c) Required acquiescence by two copractitioners also has no
rational connection with a patient's needs, and unduly infringes on
her physician's right to practice. Pp. 410 U. S.
198 -200.

															5. The Georgia residence requirement violates the Privileges and
Immunities Clause by denying protection to persons who enter
Georgia for medical services there. P. 410 U. S.
200 .

															6. Appellants' equal protection argument centering on the three
procedural conditions in § 26-1202(b), invalidated on other
grounds, is without merit. Pp. 410 U. S.
200 -201.

															7. No ruling is made on the question of injunctive relief. Cf. Roe v. Wade, supra. P. 410 U. S.
201 .

															319 F. Supp. 1048, modified and affirmed.

															BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and DOUGLAS, BRENNAN, STEWART, MARSHALL, and POWELL,
JJ., joined. BURGER, C.J., post, p. 410 U. S. 207 ,
and DOUGLAS, J., post, p. 410 U. S. 209 ,
filed concurring opinions. WHITE, J., filed a dissenting opinion,
in which REHNQUIST, J., joined, post, p. 410 U. S. 221 .
REHNQUIST, J., filed a dissenting opinion, post, p. 410 U. S.
223 . Page 410 U. S. 181 MR. JUSTICE BLACKMUN delivered the opinion of the Court.

															In this appeal, the criminal abortion statutes recently enacted
in Georgia are challenged on constitutional grounds. The statutes
are §§ 26-1201 through 26-1203 of the State's Criminal Code,
formulated by Georgia Laws, 1968 Session, pp. 1249, 1277-1280. In Roe v. Wade, ante p. 410 U. S. 113 , we
today have struck down, as constitutionally defective, the Texas
criminal abortion statutes that are representative of provisions
long in effect Page 410 U. S. 182 in a majority of our States. The Georgia legislation, however,
is different and merits separate consideration. I The statutes in question are reproduced as Appendix A, post, p. 410 U. S. 202 .
[ Footnote 1 ] As the appellants
acknowledge, [ Footnote 2 ] the
1968 statutes are patterned upon the American Law Institute's Model
Penal Code, § 230.3 (Proposed Official Draft, 1962), reproduced as
Appendix B, post, p. 410 U. S. 205 .
The ALI proposal has served as the model for recent legislation in
approximately one-fourth of our States. [ Footnote 3 ] The new Georgia provisions replaced
statutory law that had been in effect for more than 90 years.
Georgia Laws 1876, No. 130, § 2, at 113. [ Footnote 4 ] The predecessor statute paralleled Page 410 U. S. 183 the Texas legislation considered in Roe v. Wade, supra, and made all abortions criminal except those necessary "to preserve
the life" of the pregnant woman. The new statutes have not been
tested on constitutional grounds in the Georgia state courts.

															Section 26-1201, with a referenced exception, makes abortion a
crime, and § 26-1203 provides that a person convicted of that crime
shall be punished by imprisonment for not less than one nor more
than 10 years. Section 21202(a) states the exception and removes
from § 1201's definition of criminal abortion, and thus makes
noncriminal, an abortion "performed by a physician duly licensed"
in Georgia when,

															based upon his best clinical judgment . . . an abortion is
necessary because:

															"(1) A continuation of the pregnancy would endanger the life of
the pregnant woman or would seriously and permanently injure her
health; or"

															"(2) The fetus would very likely be born with a grave,
permanent, and irremediable mental or physical defect; or"

															"(3) The pregnancy resulted from forcible or statutory rape.
[ Footnote 5 ]"

															Section 26-1202 also requires, by numbered subdivisions of its
subsection (b), that, for an abortion to be authorized Page 410 U. S. 184 or performed as a noncriminal procedure, additional conditions
must be fulfilled. These are (1) and (2) residence of the woman in
Georgia; (3) reduction to writing of the performing physician's
medical judgment that an abortion is justified for one or more of
the reasons specified by § 26-1202(a), with written concurrence in
that judgment by at least two other Georgia-licensed physicians,
based upon their separate personal medical examinations of the
woman; (4) performance of the abortion in a hospital licensed by
the State Board of Health and also accredited by the Joint
Commission on Accreditation of Hospitals; (5) advance approval by
an abortion committee of not less than three members of the
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 petition of 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 a provision (subsection (e)) giving a hospital the right
not to admit an abortion patient and giving any physician and any
hospital employee or staff member the right, on moral or religious
grounds, not to participate in the procedure. II On April 16, 1970, Mary Doe, [ Footnote 6 ] 23 other individuals (nine described as
Georgia-licensed physicians, seven as nurses registered in the
State, five as clergymen, and two as social workers), and two
nonprofit Georgia corporations that advocate abortion reform
instituted this federal action in the Northern District of Georgia
against the State's attorney general, the district attorney of Page 410 U. S. 185 Fulton County, and the chief of police of the city of Atlanta.
The plaintiffs sought a declaratory judgment that the Georgia
abortion statutes were unconstitutional in their entirety. They
also sought injunctive relief restraining the defendants and their
successors from enforcing the statutes.

															Mary Doe alleged:

															(1) She was a 22-year-old Georgia citizen, married, and nine
weeks pregnant. She had three living children. The two older ones
had been placed 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. Her husband had recently abandoned her,
and she was forced to live with her indigent parents and their
eight children. She and her husband, however, had become
reconciled. He was a construction worker employed only
sporadically. She had been a mental patient at the State Hospital.
She had been advised that an abortion could be performed on her
with less danger to her health than if she gave birth to the child
she was carrying. She would be unable to care for or support the
new child.

															(2) On March 25, 1970, she applied to the Abortion Committee of
Grady Memorial Hospital, Atlanta, for a therapeutic abortion under
§ 26-1202. Her application was denied 16 days later, on April 10,
when she was eight weeks pregnant, on the ground that her situation
was not one described in § 26-1202(a). [ Footnote 7 ]

															(3) Because her application was denied, she was forced either to
relinquish "her right to decide when and how many children she will
bear" or to seek an abortion that was illegal under the Georgia
statutes. This invaded her Page 410 U. S. 186 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 a violation of rights guaranteed her by
the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The
statutes also denied her equal protection and procedural due
process and, because they were unconstitutionally vague, deterred
hospitals and doctors from performing abortions. She sued "on her
own behalf and on behalf of all others similarly situated."

															The other plaintiffs alleged that the Georgia statutes "chilled
and deterred" them from practicing their respective professions and
deprived them of rights guaranteed by the First, Fourth, and
Fourteenth Amendments. These plaintiffs also purported to sue on
their own behalf and on behalf of others similarly situated.

															A three-judge district court was convened. An offer of proof as
to Doe's identity was made, but the court deemed it unnecessary to
receive that proof. The case was then tried on the pleadings and
interrogatories.

															The District Court, per curiam, 319 F. Supp. 1048 (ND Ga.1970),
held that all the plaintiffs had standing, but that only Doe
presented a justiciable controversy. On the merits, the court
concluded that the limitation in the Georgia statute of the "number
of reasons for which an abortion may be sought," id. at
1056, improperly restricted Doe's rights of privacy articulated in Griswold v. Connecticut, 381 U. S. 479 (1965), and of "personal liberty," both of which it thought "broad
enough to include 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) limiting legal abortions to the three
situations specified; § 26-1202(b)(6) relating to certifications in
a rape situation; and § 26-1202(c) authorizing a court test.
Declaratory relief was granted accordingly. The court, however,
held Page 410 U. S. 187 that Georgia's interest in protection of health, and the
existence of a " potential of independent human existence"
(emphasis in original), id. at 1055, justified state
regulation of "the manner of performance as well as the quality of
the final decision to abort," id. at 1056, and it refused
to strike down the other provisions of the statutes. It denied the
request for an injunction, id. at 1057.

															Claiming that they were entitled to an injunction and to broader
relief, the plaintiffs took a direct appeal pursuant to 28 U.S.C. §
1253. We postponed decision on jurisdiction to the hearing on the
merits. 402 U.S. 941 (1971). The defendants also purported to
appeal, pursuant to § 1253, but their appeal was dismissed for want
of jurisdiction. 402 U. S. 936 (1971). We are advised by the appellees, Brief 42, that an
alternative appeal on their part is pending in the United States
Court of Appeals for the Fifth Circuit. The extent, 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 to be unconstitutional, technically is not now before us.
[ Footnote 8 ] Swarb v.
Lennox, 405 U. S. 191 , 405 U. S. 201 (1972). III Our decision in Roe v. Wade, ante p. 410 U. S. 113 ,
establishes (1) that, despite her pseudonym, we may accept as true,
for this case, Mary Doe's existence and her pregnant state on April
16, 1970; (2) that the constitutional issue is substantial; (3)
that the interim termination of Doe's and all other Georgia
pregnancies in existence in 1970 has not rendered the case moot;
and (4) that Doe presents a justiciable controversy, and has
standing to maintain the action. Page 410 U. S. 188 Inasmuch as Doe and her class are recognized, the question
whether the other appellants -- physicians, nurses, clergymen,
social workers, and corporations -- present a justiciable
controversy and have standing is perhaps a matter of no great
consequence. We conclude, however, that the physician appellants,
who are Georgia-licensed doctors consulted by pregnant women, also
present a justiciable controversy, and do have standing despite the
fact that the record does not disclose that any one of them has
been prosecuted, or threatened with prosecution, for violation of
the State's abortion statutes. The physician is the one against
whom these criminal statutes directly operate in the event he
procures an abortion that does not meet the statutory exceptions
and conditions. The physician appellants, therefore, assert a
sufficiently direct threat of personal detriment. They should not
be required to await and 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).

															In holding that the physicians, while theoretically possessed of
standing, did not present a justiciable controversy, the District
Court seems to have relied primarily on Poe v. Ullman, 367 U. S. 497 (1961). There, a sharply divided Court dismissed an appeal from a
state court on the ground that it presented no real controversy
justifying the adjudication of a constitutional issue. But the
challenged Connecticut statute, deemed to prohibit the giving of
medical advice on the use of contraceptives, had been enacted in
1879, and, apparently with a single exception, no one had ever been
prosecuted under it. Georgia's statute, in contrast, is recent and
not moribund. Furthermore, it is the successor to another Page 410 U. S. 189 Georgia abortion statute under which, we are told, [ Footnote 9 ] physicians were prosecuted.
The present case, therefore, is closer to Epperson v.
Arkansas, 393 U. S. 97 (1968), where the Court recognized the right of a school teacher,
though not yet charged criminally, to challenge her State's
anti-evolution statute. See also Griswold v. Connecticut, 381 U.S. at 381 U. S.
481 .

															The parallel claims of the nurse, clergy, social worker, and
corporation appellants are another step removed, and, as to them,
the Georgia statutes operate less directly. Not being licensed
physicians, the nurses and the others are in no position to render
medical advice. They would be reached by the abortion statutes only
in their capacity as accessories or as counselor-conspirators. We
conclude that we need not pass upon the status of these additional
appellants in this suit, for the issues are sufficiently and
adequately presented by Doe and the physician appellants and
nothing is gained or lost by the presence or absence of the nurses,
the clergymen, the social workers, and the corporations. See
Roe v. Wade, ante at 410 U. S.
127 . IV The appellants attack on several grounds those portions of the
Georgia abortion statutes that remain after the District Court
decision: undue restriction of a right to personal and marital
privacy; vagueness; deprivation of substantive and procedural due
process; improper restriction to Georgia residents; and denial of
equal protection.

															A. Roe v. Wade, supra, sets forth our conclusion that a
pregnant woman does not have an absolute constitutional right to an
abortion on her demand. What is said there is applicable here, and
need not be repeated. Page 410 U. S. 190 B. The appellants go on to argue, however, that the present
Georgia statutes must be viewed historically, that is, from the
fact that, prior to the 1968 Act, an abortion in Georgia was not
criminal if performed to "preserve the life" of the mother. It is
suggested that the present statute, as well, has this emphasis on
the mother's rights, not on those of the fetus. Appellants contend
that 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 asserts in justification of the
statute. Appellants assert that this justification cannot be
advanced at this late date.

															Appellants then argue that the statutes do not adequately
protect the woman's right. This is so because it would be
physically and emotionally damaging to Doe to bring a child into
her poor, "fatherless" [ Footnote
10 ] family, and because advances in medicine and medical
techniques have made it safer for a woman to 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 term infringes not only on a fundamental right of privacy, but
on the right to life itself."

															Brief 27.

															The appellants recognize that, a century ago, medical knowledge
was not so advanced as it is today, that the techniques of
antisepsis were not known, and that any abortion procedure was
dangerous for the woman. To restrict the legality of the abortion
to the situation where it was deemed necessary, in medical
judgment, for the preservation of the woman's life was only a
natural conclusion in the exercise of the legislative judgment of
that time. A State is not to be reproached, however, for a past
judgmental determination made in the light of then-existing medical
knowledge. It is perhaps unfair to argue, as the appellants do,
that, because the early focus Page 410 U. S. 191 was on the preservation of the woman's life, the State's present
professed interest in the protection of embryonic and fetal life is
to be downgraded. That argument denies the State the right to
readjust its views and emphases in the light of the advanced
knowledge and techniques of the day.

															C. Appellants argue that § 26-1202(a) of the Georgia statutes,
as it has been left by the District Court's decision, is
unconstitutionally vague. This argument centers on the proposition
that, with the District Court's having struck down the statutorily
specified reasons, it still remains a crime for a physician to
perform an abortion except when, as § 26-1202(a) reads, it is
"based upon his best clinical judgment that an abortion is
necessary." The appellants contend that the word "necessary" does
not warn the physician of what conduct is proscribed; that the
statute is wholly without objective standards and is subject to
diverse interpretation; and that doctors will choose to err on the
side of caution and will be arbitrary.

															The net result of the District Court's decision is that the
abortion determination, so far as the physician is concerned, is
made in the exercise of his professional, that is, his "best
clinical," judgment in the light of all the attendant
circumstances. He is not now restricted to the three situations
originally specified. Instead, he may range farther afield wherever
his medical judgment, properly and professionally exercised, so
dictates and directs him.

															The vagueness argument is set at rest by the decision in United States v. Vuitch, 402 U. S. 62 , 402 U. S. 71 -72
(1971), where the issue was raised with respect to a District of
Columbia statute making abortions criminal

															"unless the same were done as necessary for the preservation of
the mother's life or health and under the direction of a competent
licensed practitioner of medicine."

															That statute has been construed to bear upon psychological
as Page 410 U. S. 192 well as physical wellbeing. This being so, the Court concluded
that the term "health" presented no problem of vagueness.

															"Indeed, whether a particular operation is necessary for a
patient's physical or mental health is a judgment that physicians
are obviously called upon to make routinely whenever surgery is
considered." Id. at 402 U. S. 72 .
This conclusion is equally applicable here. Whether, in the words
of the Georgia statute, "an abortion is necessary" is a
professional judgment that the Georgia physician will be called
upon to make routinely.

															We agree with the District Court, 319 F.
Supp. at 1058 , that the medical judgment may be exercised in
the light of all factors --physical, emotional, psychological,
familial, and the woman's age -- relevant to the wellbeing of the
patient. All these factors may relate to health. This allows the
attending physician the room he needs to make his best medical
judgment. And it is room that operates for the benefit, not the
disadvantage, of the pregnant woman.

															D. The appellants next argue that the District Court should have
declared unconstitutional three procedural demand of the Georgia
statute: (1) that the abortion be performed in a hospital
accredited by the Joint Commission on Accreditation of Hospitals:
[ Footnote 11 ] (2) that the
procedure be approved by the hospital staff abortion committee; and
(3) that the performing physician's judgment be confirmed by the
independent examinations of the patient by two other licensed
physicians. The appellants attack these provisions not only on the
ground that they unduly restrict the woman's right of privacy, but
also on procedural due process and equal protection grounds. The
physician appellants also argue that, by subjecting a doctor's
individual medical judgment to Page 410 U. S. 193 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
Accreditation of Hospitals is an organization without governmental
sponsorship or overtones. No question whatever is raised concerning
the integrity of the organization or the high purpose of the
accreditation process. [ Footnote
12 ] That process, however, has to do with hospital standards
generally and has no present particularized concern with abortion
as a medical or surgical procedure. [ Footnote 13 ] In Georgia, there is no restriction on the
performance of nonabortion surgery in a 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. See Georgia Code §§ 88-1901(a) Page 410 U. S. 194 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), [ Footnote 14 ] approved by the
American Bar Association in February, 1972, contains no
JCAH-accredited hospital specification. [ Footnote 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.g.,
Poe v. Menghini, 339 F. Supp. at 993-994.

															We hold that the JCAH accreditation requirement does not
withstand constitutional scrutiny in the present context. It is a
requirement that simply is not "based on differences that are
reasonably related to the purposes of the Act in which it;s found." Morey v. Doud, 354 U. S. 457 , 354 U. S. 465 (1957).

															This is not to say that Georgia may not or should not from and
after the end of the first trimester, adopt Page 410 U. S. 195 standards for licensing all facilities where abortions may be
performed so long as those standards are legitimately related to
the objective the State seeks to accomplish. The appellants contend
that such a relationship would 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 and 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 persuasive data to
show that only hospitals meet its acknowledged interest in insuring
the quality of the operation and the full protection of the
patient. We feel compelled to agree with appellants that the State
must show more than it has in order to prove that only the full
resources of a licensed hospital, rather than those of some other
appropriately licensed institution, satisfy these health interests.
We hold that the hospital requirement of the Georgia law, because
it fails to exclude the first trimester of pregnancy, see Roe
v. Wade, ante at 410 U. S. 163 ,
is also invalid. In 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 regnant woman's asserted Page 410 U. S. 196 lack of access to that committee. Relying primarily on Goldberg v. Kelly, 397 U. S. 254 (1970), concerning the termination of welfare benefits, and Wisconsin v. Constantineau, 400 U.
S. 433 (1971), concerning the posting of an alcoholic's
name, Doe first argues that she was denied due process because she
could not make a presentation to the committee. It is not clear
from the record, however, whether Doe's own consulting physician
was or was not a member of the committee or did or did not present
her case, or, indeed whether she herself was or was not there. We
see nothing in the Georgia statute that explicitly denies access to
the committee by or on behalf of the woman. If the access point
alone were involved, we would not be persuaded to strike down the
committee provision on the unsupported assumption that access is
not provided.

															Appellants attack the discretion the statute leaves to the
committee. The most concrete argument they advance is their
suggestion that it is still a badge of infamy "in many minds" to
bear an illegitimate child, and that the Georgia system enables the
committee members' personal views as to extramarital sex relations,
and punishment therefor, to govern their decisions. This approach
obviously is one founded on suspicion, and one that discloses a
lack of confidence in the integrity of physicians. To say that
physicians will be guided in their hospital committee decisions by
their predilections on extramarital sex unduly narrows the issue to
pregnancy outside marriage. (Doe's own situation did not involve
extramarital sex and its product.) The appellants' suggestion is
necessarily somewhat degrading to the conscientious physician,
particularly the obstetrician, whose professional activity is
concerned with the physical and mental welfare, the woes, the
emotions, and the concern of his female patients. He, perhaps more
than anyone else, is knowledgeable in this area of patient care,
and he is aware of human frailty, Page 410 U. S. 197 so-called "error," and needs. The good physician -- despite the
presence of rascals in the medical profession, as in all others, we
trust that most physicians are "good" -- will have sympathy and
understanding for the pregnant patient that probably are not
exceeded by those who participate in other areas of professional
counseling.

															It is perhaps worth noting that the abortion committee has a
function of its own. It is a committee of the hospital, and it is
composed of members of the institution's medical staff. The
membership usually is a changing one. In this way, its work burden
is shared and is more readily accepted. The committee's function is
protective. It enables the hospital appropriately to be advised
that its posture and activities are in accord with legal
requirements. It is to be remembered that the hospital is an
entity, and that it, too, has legal rights and legal
obligations.

															Saying all this, however, does not settle the issue of the
constitutional propriety of the committee requirement. Viewing the
Georgia statute as a whole, we see no constitutionally justifiable
pertinence in the structure for the advance approval by the
abortion committee. With regard to the protection of potential
life, the medical judgment is already completed prior to the
committee stage, and review by a committee once removed from
diagnosis is basically redundant. We are not cited to any other
surgical procedure made subject to committee approval as a matter
of state criminal law. The woman's right to receive medical care in
accordance with her licensed physician's best judgment and the
physician's right to administer it are substantially limited by
this statutorily imposed overview. And the hospital itself is
otherwise fully protected. Under § 26-1202(e), the hospital is free
not to admit a patient for an abortion. It is even free not to have
an abortion committee. Further, a physician or any other employee
has the right to refrain, Page 410 U. S. 198 for moral or religious reasons, from participating in the
abortion procedure. These provisions obviously are in the statute
in order to afford appropriate protection to the individual and to
the denominational hospital. Section 21202(e) affords adequate
protection to the hospital, and little more is provided by the
committee prescribed by § 26-1202(b)(5).

															We conclude that the interposition of the hospital abortion
committee is unduly restrictive of the patient's rights and needs
that, at this point, have already been medically delineated and
substantiated by her personal physician. To ask more serves neither
the hospital nor the State.

															3. Two-doctor concurrence. The third aspect of the
appellants' attack centers on the "time and availability of
adequate medical facilities and personnel." It is said that the
system imposes substantial and irrational roadblocks and "is
patently unsuited" to prompt determination of the abortion
decision. Time, of course, is critical in abortion. Risks during
the first trimester of pregnancy are admittedly lower than during
later months.

															The appellants purport to show by a local study [ Footnote 16 ] of Grady Memorial Hospital
(serving indigent residents in Fulton and DeKalb Counties) that the
"mechanics of the system itself forced . . . discontinuance of the
abortion process" because the median time for the workup was 15
days. The same study shows, however, that 27% of the candidates for
abortion were already 13 or more weeks pregnant at the time of
application, that is, they were at the end of or beyond the first
trimester when they made their applications. It is too much to say,
as appellants do, that these particular persons "were victims of a
system over which they [had] no control." If higher risk was
incurred because of abortions in the Page 410 U. S. 199 second, rather than the first, trimester, much of that risk was
due to delay in application, and not to the alleged cumbersomeness
of the system. We note, in passing, that appellant Doe had no delay
problem herself; the decision in her case was made well within the
first trimester.

															It should be manifest that our rejection of the accredited
hospital requirement and, more important, of the abortion
committee's advance approval eliminates the major grounds of the
attack based on the system's delay and the lack of facilities.
There remains, however, the required confirmation by two
Georgia-licensed physicians in addition to the recommendation of
the pregnant woman's own consultant (making under the statute, a
total of six physicians involved, including the three on the
hospital's abortion committee). We conclude that this provision,
too, must fall.

															The statute's emphasis, as has been repetitively noted, is on
the attending physician's "best clinical judgment that an abortion
is necessary." That should be sufficient. The reasons for the
presence of the confirmation step in the statute are perhaps
apparent, but they are insufficient to withstand constitutional
challenge. Again, no other voluntary medical or surgical procedure
for which Georgia requires confirmation by two other physicians has
been cited to us. If a physician is licensed by the State, he is
recognized by the State as capable of exercising acceptable
clinical judgment. If he fails in this, professional censure and
deprivation of his license are available remedies. Required
acquiescence by co-practitioners has no rational connection with a
patient's needs, and unduly infringes on the physician's right to
practice. The attending physician will know when a consultation is
advisable -- the doubtful situation, the need for assurance when
the medical decision is a delicate one, and the like. Physicians
have followed this routine historically, and Page 410 U. S. 200 know its usefulness and benefit for all concerned. It is still
true today that

															"[r]eliance must be placed upon the assurance given by his
license, issued by an authority competent to judge in that respect,
that he [the physician] possesses the requisite
qualifications." Dent v. West Virginia, 129 U.
S. 114 , 129 U. S.
122 -123 (1889). See United States v. Vuitch, 402 U.S. at 402 U. S.
71 .

															E. The appellants attack the residency requirement of the
Georgia law, §§ 26-1202(b)(1) and (b)(2), as violative of the right
to travel stressed in Shapiro v. Thompson, 394 U.
S. 618 , 394 U. S.
629 -631 (1969), and other cases. A requirement of this
kind, of course, could be deemed to have some relationship to the
availability of post-procedure medical care for the aborted
patient.

															Nevertheless, we do not uphold the constitutionality of the
residence requirement. It is not based on any policy of preserving
state supported facilities for Georgia residents, for the bar also
applies to private hospitals and to privately retained physicians.
There is no intimation, either, that Georgia facilities are
utilized to capacity in caring for Georgia residents. Just as the
Privileges and Immunities Clause, Const. Art. IV, § 2, protects
persons who enter other States to ply their trade, Ward v.
Maryland , 12 Wall. 418, 79 U. S. 430 (1871); Blake v. McClung, 172 U.
S. 239 , 172 U. S.
248 -256 (1898), so must it protect persons who enter
Georgia seeking the medical services that are available there. See Toomer v. Witsell, 334 U. S. 385 , 334 U. S.
396 -397 (1948). A contrary holding would mean that a
State could limit to its own residents the general medical care
available within its borders. This we could not approve.

															F. The last argument on this phase of the case is one that often
is made, namely, that the Georgia system is violative of equal
protection because it discriminates against the poor. The
appellants do not urge that abortions Page 410 U. S. 201 should be performed by persons other than licensed physicians,
so we have no argument that, because the wealthy can better afford
physicians, the poor should have nonphysicians made available to
them. The appellants acknowledged that the procedures are
"nondiscriminatory in . . . express terms," but they suggest that
they have produced invidious discriminations. The District Court
rejected this approach out of hand. 319 F. Supp. at 1056. It rests
primarily on the accreditation and approval and confirmation
requirements, discussed above, and on the assertion that most of
Georgia's counties have no accredited hospital. We have set aside
the accreditation, approval, and confirmation requirements,
however, and with that, the discrimination argument collapses in
all significant aspects. V The appellants complain, finally, of the District Court's denial
of injunctive relief. A like claim was made in Roe v. Wade,
ante, p. 410 U. S. 113 . We
declined decision there insofar as injunctive relief was concerned,
and we decline it here. We assume that Georgia's prosecutorial
authorities will give full recognition to the judgment of this
Court.

															In summary, we hold that the JCAH-accredited hospital provision
and the requirements as to approval by the hospital abortion
committee, as to confirmation by two independent physicians, and as
to residence in Georgia are all violative of the Fourteenth
Amendment. Specifically, the following portions of § 26-1202(b),
remaining after the District Court's judgment, are invalid:

															(1) Subsections (1) and (2).

															(2) That portion of Subsection (3) following the words "[s]uch
physician's judgment is reduced to writing."

															(3) Subsections (4) and (5). Page 410 U. S. 202 The judgment of the District Court is modified accordingly and,
as so modified, is affirmed. Costs are allowed to the
appellants.

															| 410
U.S. 179 appa| APPENDIX A TO OPINION OF THE COURT Criminal Code of Georgia (The italicized portions are those held
unconstitutional by the District Court) CHAPTER 26-12. ABORTION. 26-1201. Criminal Abortion. Except as otherwise provided in
section 26-1202, a person commits criminal abortion when he
administers any medicine, drug or other substance whatever to any
woman or when he uses any instrument or other means whatever upon
any woman with intent to produce a miscarriage or abortion.

															26-1202. Exception. (a) Section 26-1201 shall not apply to an
abortion performed by a physician duly licensed to practice
medicine and surgery pursuant to Chapter 84-9 or 84-12 of the Code
of Georgia of 1933, as amended, based upon his best clinical
judgment that an abortion is necessary because:

															" (1) A continuation of the pregnancy would endanger the life
of the pregnant woman or would seriously and permanently injure her
health; or "

															" (2) The fetus would very likely be born with a grave,
permanent, and irremediable mental or physical defect; or "

															" (3) The pregnancy resulted from forcible or statutory
rape. "

															"(b) No abortion is authorized or shall be performed under this
section unless each of the following conditions is met: "

															"(1) The pregnant woman requesting the abortion certifies in
writing under oath and subject to the penalties Page 410 U. S. 203 of false swearing to the physician who proposes to perform the
abortion that she is a bona fide legal resident of the State of
Georgia."

															"(2) The physician certifies that he believes the woman is a
bona fide resident of this State and that he has no information
which should lead him to believe otherwise."

															"(3) Such physician's judgment is reduced to writing and
concurred in by at least two other physicians duly licensed to
practice medicine and surgery pursuant to Chapter 84-9 of the Code
of Georgia of 1933, as amended, who certify in writing that, based
upon their separate personal medical examinations of the pregnant
woman, the abortion is, in their judgment, necessary because of one
or more of the reasons enumerated above."

															"(4) Such abortion is performed in a hospital licensed by the
State Board of Health and accredited by the Joint Commission on
Accreditation of Hospitals."

															"(5) The performance of the abortion has been approved in
advance by a committee of the medical staff of the hospital in
which the operation is to be performed. This committee must be one
established and maintained in accordance with the standards
promulgated by the Joint Commission on the Accreditation of
Hospitals, and its approval must be by a majority vote of a
membership of not less than three members of the hospital's staff;
the physician proposing to perform the operation may not be counted
as a member of the committee for this purpose."

															" (6) If the proposed abortion is considered necessary
because the woman has been raped, the woman makes a written
statement under oath, and subject to the penalties of false
swearing, of the date, time and place of the rape and the name of
the rapist, if known. There must be attached to this statement a
certified copy of any report of the rape made by any law
enforcement officer or agency and a statement by the solicitor
general of the Page 410 U. S. 204 judicial circuit where the rape occurred or allegedly
occurred that, according to his best information, there is probable
cause to believe that the rape did occur. "

															"(7) Such written opinions, statements, certificates, and
concurrences are maintained in the permanent files of such hospital
and are available at all reasonable times to the solicitor general
of the judicial circuit in which the hospital is located."

															"(8) A copy of such written opinions, statements, certificates,
and concurrences is filed with the Director of the State Department
of Public Health within 10 days after such operation is
performed."

															"(9) All written opinions, statements, certificates, and
concurrences filed and maintained pursuant to paragraphs (7) and
(8) of this subsection shall be confidential record and shall not
be made available for public inspection at any time."

															" (c) Any solicitor General of the judicial circuit in which
an abortion is to be performed under this section, or any person
who would be a relative of the child within the second degree of
consanguinity, may petition the superior court of the county in
which the abortion is to be performed for a declaratory judgment
whether the performance of such abortion would violate any
constitutional or other legal rights of the fetus. Such solicitor
General may also petition such court for the purpose of taking
issue with compliance with the requirements of this section. The
physician who proposes to perform the abortion and the pregnant
woman shall be respondents. The petition shall be heard
expeditiously, and if the court adjudges that such abortion would
violate the constitutional or other legal rights of the fetus, the
court shall so declare and shall restrain the physician from
performing the abortion. "

															(d) If an abortion is performed in compliance with this section,
the death of the fetus shall not give rise to any claim for
wrongful death. Page 410 U. S. 205 (e) Nothing in this section shall require a hospital to admit
any patient under the provisions hereof for the purpose of
performing an abortion, nor shall any hospital be required to
appoint a committee such as contemplated under subsection (b)(5). A
physician, or any other person who is a member of or associated
with the staff of a hospital, or any employee of a hospital in
which an abortion has been authorized, who shall state in writing
an objection to such abortion on moral or religious grounds shall
not be required to participate in the medical procedures which will
result in the abortion, and the refusal of any such person to
participate therein shall not form the basis of any claim for
damages on account of such refusal or for any disciplinary or
recriminatory action against such person.

															26-1203. Punishment. A person convicted of criminal abortion
shall be punished by imprisonment for not less than one nor more
than 10 years.

															| 410
U.S. 179 appb| APPENDIX B TO OPINION OF THE COURT American Law Institute MODEL PENAL CODE Section 230.3. Abortion.

															(1) Unjustified Abortion. A person who purposely and
unjustifiably terminates the pregnancy of another otherwise than by
a live birth commits a felony of the third degree or, where the
pregnancy has continued beyond the twenty-sixth week, a felony of
the second degree.

															(2) Justifiable Abortion. A licensed physician is
justified in terminating a pregnancy if he believes there is
substantial risk that continuance of the pregnancy would gravely
impair the physical or mental health of the mother or that the
child would be born with grave physical or mental defect, or that
the pregnancy resulted from rape, incest, or other felonious
intercourse. All Page 410 U. S. 206 illicit intercourse with a girl below the age of 16 shall be
deemed felonious for purposes of this subsection. Justifiable
abortions shall be performed only in a licensed hospital except in
case of emergency when hospital facilities are unavailable.
[Additional exceptions from the requirement of hospitalization may
be incorporated here to take account of situations in sparsely
settled areas where hospitals are not generally accessible.]

															(3) Physicians' Certificates; Presumption from
Non-Compliance. No abortion shall be performed unless two
physicians, one of whom may be the person performing the abortion,
shall have certified in writing the circumstances which they
believe to justify the abortion. Such certificate shall be
submitted before the abortion to the hospital where it is to be
performed and, in the case of abortion following felonious
intercourse, to the prosecuting attorney or the police. Failure to
comply with any of the requirements of this Subsection gives rise
to a presumption that the abortion was unjustified.

															(4) Self-Abortion. A woman whose pregnancy has
continued beyond the twenty-sixth week commits a felony of the
third degree if she purposely terminates her own pregnancy
otherwise than by a live birth, or if she uses instruments, drugs
or violence upon herself for that purpose. Except as justified
under Subsection (2), a person who induces or knowingly aids a
woman to use instruments, drugs or violence upon herself for the
purpose of terminating her pregnancy otherwise than by a live birth
commits a felony of the third degree whether or not the pregnancy
has continued beyond the twenty-sixth week.

															(5) Pretended Abortion. A person commits a felony of
the third degree if, representing that it is his purpose to perform
an abortion, he does an act adapted to cause abortion in a pregnant
woman although the woman is in fact, not pregnant, or the actor
does not believe she is. Page 410 U. S. 207 A person charged with unjustified abortion under Subsection (1)
or an attempt to commit that offense may be convicted thereof upon
proof of conduct prohibited by this Subsection.

															(6) Distribution of Abortifacients. A person who sells,
offers to sell, possesses with intent to sell, advertises, or
displays for sale anything specially designed to terminate a
pregnancy, or held out by the actor as useful for that purpose,
commits a misdemeanor, unless:

															(a) the sale, offer or display is to a physician or druggist or
to an intermediary in a chain of distribution to physicians or
druggists; or

															(b) the sale is made upon prescription or order of a physician;
or

															(c) the possession is with intent to sell as authorized in
paragraphs (a) and (b); or

															(d) the advertising is addressed to persons named in paragraph
(a) and confined to trade or professional channels not likely to
reach the general public.

															(7) Section Inapplicable to Prevention of Pregnancy. Nothing in this Section shall be deemed applicable to the
prescription, administration or distribution of drugs or other
substances for avoiding pregnancy, whether by preventing
implantation of a fertilized ovum or by any other method that
operates before, at or immediately after fertilization.

															[ Footnote 1 ]

															The portions italicized in 410
U.S. 179 appa|>Appendix A are those held unconstitutional by
the District Court.

															[ Footnote 2 ]

															Brief for Appellants 25 n. 5; Tr. of Oral Arg. 9.

															[ Footnote 3 ] See Roe v. Wade, ante p. 410 U. S. 113 , at
140 n. 37.

															[ Footnote 4 ]

															The pertinent provisions of the 1876 statute were:

															"Section I. Be it enacted, etc., That from and after
the passage of this Act, the willful killing of an unborn child, so
far developed as to be ordinarily called 'quick,' by any injury to
the mother of such child, which would be murder if it resulted in
the death of such mother, shall be guilty of a felony, and
punishable by death or imprisonment for life, as the jury trying
the case may recommend."

															"Sec. II. Be it further enacted, That every person who
shall administer to any woman pregnant with a child, any medicine,
drug, or substance whatever, or shall use or employ any instrument
or other means, with intent thereby to destroy such child, unless
the same shall have been necessary to preserve the life of such
mother, or shall have been advised by two physicians to be
necessary for such purpose, shall, in case the death of such child
or mother be thereby produced, be declared guilty of an assault
with intent to murder."

															"Sec. III. Be it further enacted, That any person who
shall willfully administer to any pregnant woman any medicine, drug
or substance, or anything whatever, or shall employ any instrument
or means whatever, with intent thereby to procure the miscarriage
or abortion of any such woman, unless the same shall have been
necessary to preserve the life of such woman, or shall have been
advised by two physicians to be necessary for that purpose, shall,
upon conviction, be punished as prescribed in section 4310 of the
Revised Code of Georgia."

															It should be noted that the second section, in contrast to the
first, 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).

															[ Footnote 5 ]

															In contrast with the ALI model, the Georgia statute makes no
specific reference to pregnancy resulting from incest. We were
assured by the State at reargument that this was because the
statute's reference to "rape" was intended to include incest. Tr.
of Oral Rearg. 32.

															[ Footnote 6 ]

															Appellants by their complaint, App. 7, allege that the name is a
pseudonym.

															[ Footnote 7 ]

															In answers to interrogatories, Doe stated that her application
for an abortion was approved at Georgia Baptist Hospital on May 5,
1970, but that she was not approved as a charity patient there, and
had no money to pay for an abortion. App. 64.

															[ Footnote 8 ]

															What we decide today obviously has implications for the issues
raised in the defendants' appeal pending in the Fifth Circuit.

															[ Footnote 9 ]

															Tr. of Oral Arg. 21-22.

															[ Footnote 10 ]

															Brief for Appellants 25.

															[ Footnote 11 ]

															We were advised at reargument, Tr. of Oral Rearg. 10, that only
54 of Georgia's 159 counties have a JCAH-accredited hospital.

															[ Footnote 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; facilities for hematology,
chemistry, microbiology, clinical microscopy, and sero-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.

															[ Footnote 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
al., p. A-3.

															[ Footnote 14 ] See Roe v. Wade, ante at 410 U. S.
146 -147, n. 40.

															[ Footnote 15 ]

															Some state statutes do not have the JCAH accreditation
requirement. Alaska Stat. § 11.15.060 (1970); 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.Health & 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 "a nationally
recognized medical or hospital accreditation authority," §
1790(a).

															[ Footnote 16 ]

															L. Baker & M. Freeman, Abortion Surveillance at Grady
Memorial Hospital Center for Disease Control (June and July 1971)
(U.S. Dept. of HEW, Public Health Service).

															MR. CHIEF JUSTICE BURGER, concurring * I agree that, under the Fourteenth Amendment to the
Constitution, the abortion statutes of Georgia and Texas
impermissibly limit the performance of abortions necessary to
protect the health of pregnant women, using Page 410 U. S. 208 the term health in its broadest medical context. See United
States v. Vuitch, 402 U. S. 62 , 402 U. S. 71 -72
(1971). I am somewhat troubled that the Court has taken notice of
various scientific and medical data in reaching its conclusion;
however, I do not believe that the Court has exceeded the scope of
judicial notice accepted in other contexts.

															In oral argument, counsel for the State of Texas informed the
Court that early abortion procedures were routinely permitted in
certain exceptional cases, such as nonconsensual pregnancies
resulting from rape and incest. In the face of a rigid and narrow
statute, such as that of Texas, no one in these circumstances
should be placed in a posture of dependence on a prosecutorial
policy or prosecutorial discretion. Of course, States must have
broad power, within the limits indicated in the opinions, to
regulate the subject of abortions, 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 to allow a State
to require the certification of two physicians to support an
abortion, but the Court holds otherwise. I do not believe that such
a procedure is unduly burdensome, as are the complex steps of the
Georgia statute, which require as many as six doctors and the use
of a hospital certified by the JCAH.

															I do not read the Court's holdings today as having the sweeping
consequences attributed to them by the dissenting Justices; the
dissenting views discount the reality that the vast majority of
physicians observe the standards of their profession, and act only
on the basis of carefully deliberated medical judgments relating to
life and health. Plainly, the Court today rejects any claim that
the Constitution requires abortions on demand. Page 410 U. S. 209 * [This opinion applies also to No. 718, Roe v. Wade,
ante p. 410 U. S.
113 .]

															MR. JUSTICE DOUGLAS, concurring*

															While I join the opinion of the Court, [ Footnote 2/1 ] I add a few words. I The questions presented in the present cases go far beyond the
issues of vagueness, which we considered in United States v.
Vuitch, 402 U. S. 62 . They
involve the right of privacy, one aspect of which we considered in Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 484 ,
when we held that various guarantees in the Bill of Rights create
zones of privacy. [ Footnote
2/2 ] Page 410 U. S. 210 The Griswold case involved a law forbidding the use of
contraceptives. We held that law as applied to married people
unconstitutional:

															"We deal with a right of privacy older than the Bill of Rights
-- older than our political parties, older than our school system.
Marriage is a coming together for better or for worse, hopefully
enduring, and intimate to the degree of being sacred."

															" Id. at 381 U. S. 486 ."

															The District Court in Doe held that Griswold and related cases

															"establish a Constitutional right to privacy broad enough to
encompass the right of a woman to terminate an unwanted pregnancy
in its early stages, by obtaining an abortion."

															319 F. Supp. 1048, 1054.

															The Supreme Court of California expressed the same view in People v. Belous, [ Footnote
2/3 ] 71 Cal. 2d
954 , 963, 4&8 P.2d 194, 199.

															The Ninth Amendment obviously does not create federally
enforceable rights. It merely says, "The enumeration in the
Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people." But a catalogue of these
rights includes customary, traditional, and time-honored rights,
amenities, privileges, and immunities that come within the sweep of
"the Blessings of Liberty" mentioned in the preamble to the
Constitution. Many of them, in my view, come Page 410 U. S. 211 within the meaning of the term "liberty" as used in the
Fourteenth Amendment. First is the autonomous control over the development and
expression of one's intellect, interests, tastes, and
personality. These are rights protected by the First Amendment and, in my
view, they are absolute, permitting of no exceptions. See
Terminiello v. Chicago, 337 U. S. 1 ; Roth v. United States, 354 U. S. 476 , 354 U. S. 508 (dissent); Kingsley Pictures Corp. v. Regents, 360 U. S. 684 , 360 U. S. 697 (concurring); New York Times Co. v. Sullivan, 376 U.
S. 254 , 376 U. S. 293 (Black, J., concurring, in which I joined). The Free Exercise
Clause of the First Amendment is one facet of this constitutional
right. The right to remain silent as respects one's own beliefs, Watkins v. United States, 354 U.
S. 178 , 354 U. S.
196 -199, is protected by the First and the Fifth. The
First Amendment grants the privacy of first-class mail, United
States v. Van Leeuwen, 397 U. S. 249 , 397 U. S. 253 .
All of these aspects of the right of privacy are rights "retained
by the people" in the meaning of the Ninth Amendment. Second is freedom of choice in the basic decisions of one's
life respecting marriage, divorce, procreation, contraception, and
the education and upbringing of children. These rights, unlike those protected by the First Amendment, are
subject to some control by the police power. Thus, the Fourth
Amendment speaks only of "unreasonable searches and seizures" and
of "probable cause." These rights are "fundamental," and we have
held that, in order to support legislative 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 ; Shapiro v. Thompson, 394 U.
S. 618 ; Page 410 U. S. 212 Carrington v. Rash, 380 U. S. 89 ; Sherbert v. Verner, 374 U. S. 398 ; NAACP v. Alabama, 357 U. S. 449 .

															The liberty to marry a person of one' own choosing, Loving
v. Virginia, 388 U. S. 1 ; the
right of procreation, Skinner v. Oklahoma, 316 U.
S. 535 ; the liberty to direct the education of one's
children, Pierce v. Society of Sisters, 268 U.
S. 510 , and the privacy of the marital relation, Griswold v. Connecticut, supra, are in this category.
[ Footnote 2/4 ] Page 410 U. S. 213 Only last Term, in Eisenstadt v. Baird, 405 U.
S. 438 , another contraceptive case, we expanded the
concept of Griswold by saying:

															"It is true that, in Griswold, the right of privacy in
question inhered in the marital relationship. Yet the marital
couple is not an independent entity, with a mind and heart of its
own, but an association of two individuals, each with a separate
intellectual and emotional makeup. If the right of privacy means
anything, it is the right of the individual, married or single, to
be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or
beget a child." Id. at 405 U. S.
453 .

															This right of privacy was called by Mr. Justice Brandeis the
right "to be let alone." Olmstead v. United States, 277 U. S. 438 , 277 U. S. 478 (dissenting opinion). That right includes the privilege of an
individual to plan his own affairs, for,

															"'outside areas of plainly harmful conduct, every American is
left to shape his own life as he thinks best, do what he pleases,
go where he pleases.'" Kent v. Dulles, 357 U. S. 116 , 357 U. S.
126 . Third is the freedom to care for one's health and person,
freedom from bodily restraint or compulsion, freedom to walk,
stroll, or loaf. These rights, though fundamental, are likewise subject to
regulation on a showing of "compelling state interest." We stated
in Papachristou v. City of Jacksonville, 405 U.
S. 156 , 405 U. S. 164 ,
that walking, strolling, and wandering "are historically part of
the amenities of life as we have known them." As stated in Jacobson v. Massachusetts, 197 U. S.
11 , 197 U. S.
29 :

															"There is, of course, a sphere within which the individual may
assert the supremacy of his own will Page 410 U. S. 214 and rightfully dispute the authority of any human government,
especially of any free government existing under a written
constitution, to interfere with the exercise of that will."

															In Union Pacific R. Co. v. Botsford, 141 U.
S. 250 , 141 U. S. 252 ,
the Court said, "The inviolability of the person is as much invaded
by a compulsory stripping and exposure as by a blow."

															In Terry v. Ohio, 392 U. S. 1 , 392 U. S. 8 -9, the
Court, in speaking of the Fourth Amendment stated,

															"This inestimable right of personal security belongs as much to
the citizen on the streets of our cities as to the homeowner
closeted in his study to dispose of his secret affairs." Katz v. United States, 389 U.
S. 347 , 389 U. S. 350 ,
emphasizes that the Fourth Amendment "protects individual privacy
against certain kinds of governmental intrusion."

															In Meyer v. Nebraska, 262 U. S. 390 , 262 U. S. 399 ,
the Court said:

															"Without doubt, [liberty] denotes not merely freedom from bodily
restraint, but also the right of the individual to contract, to
engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to
worship God according to the dictates of his own conscience, and
generally to enjoy those privileges long recognized at common law
as essential to the orderly pursuit of happiness by free men."

															The Georgia statute is at war with the clear message of these
cases -- that a woman is free to make the basic decision whether to
bear an unwanted child. Elaborate argument is hardly necessary to
demonstrate that childbirth may deprive a woman of her preferred
lifestyle and force upon her a radically different and undesired
future. For example, rejected applicants under the Georgia statute
are required to endure the Page 410 U. S. 215 discomforts of pregnancy; to incur the pain, higher mortality
rate, and after-effects of childbirth; to abandon educational
plans; to sustain loss of income; to forgo the satisfactions of
careers; to tax further mental and physical health in providing
child care; and, in some cases, to bear the lifelong stigma of
unwed motherhood, a badge which may haunt, if not deter, later
legitimate family relationships. II Such reasoning is, however, only the beginning of the problem.
The State has interests to protect. Vaccinations to prevent
epidemics are one example, as Jacobson, supra, holds. The
Court held that compulsory sterilization of imbeciles afflicted
with hereditary forms of insanity or imbecility is another. Buck v. Bell, 274 U. S. 200 .
Abortion affects another. While childbirth endangers the lives of
some women, voluntary abortion at any time and place regardless of
medical standards would impinge on a rightful concern of society.
The woman's health is part of that concern; as is the life of the
fetus after quickening. These concerns justify the State in
treating the procedure as a medical one.

															One difficulty is that this statute as construed, and applied
apparently does not give full sweep to the "psychological, as well
as physical wellbeing" of women patients which saved the concept
"health" from being void for vagueness in United States v.
Vuitch, 402 U.S. at 402 U. S. 72 .
But, apart from that, Georgia's enactment has a constitutional
infirmity because, as stated by the District Court, it "limits the
number of reasons for which an abortion may be sought." I agree
with the holding of the District Court, "This the State may not do,
because such action unduly restricts a decision sheltered by the
Constitutional right to privacy." 319 F. Supp. at 1056.

															The vicissitudes of life produce pregnancies which may be
unwanted, or which may impair "health" in Page 410 U. S. 216 the broad Vuitch sense of the term, or which may
imperil the life of the mother, or which, in the full setting of
the case, may create such suffering, dislocations, misery, or
tragedy as to make an early abortion the only civilized step to
take. These hardships may be properly embraced in the "health"
factor of the mother as appraised by a person of insight. Or they
may be part of a broader medical judgment based on what is
"appropriate" in a given case, though perhaps not "necessary" in a
strict sense.

															The "liberty" of the mother, though rooted as it is in the
Constitution, may be qualified by the State for the reasons we have
stated. But where fundamental personal rights and liberties are
involved, the corrective legislation must be "narrowly drawn to
prevent the supposed evil," Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 307 ,
and not be dealt with in an "unlimited and indiscriminate" manner. Shelton v. Tucker, 364 U. S. 479 , 364 U. S. 490 . And see Talley v. California, 362 U. S.
60 . Unless regulatory measures are so confined and are
addressed to the specific areas of compelling legislative concern,
the police power would become the great leveler of constitutional
rights and liberties.

															There is no doubt that the State may require abortions to be
performed by qualified medical personnel. The legitimate objective
of preserving the mother's health clearly supports such laws. Their
impact upon the woman's privacy is minimal. But the Georgia statute
outlaws virtually all such operations -- even in the earliest
stages of pregnancy. In light of modern medical evidence suggesting
that an early abortion is safer healthwise than childbirth itself,
[ Footnote 2/5 ] it cannot be
seriously Page 410 U. S. 217 urged that so comprehensive a ban is aimed at protecting the
woman's health. Rather, this expansive proscription of all
abortions along the temporal spectrum can rest only on a public
goal of preserving both embryonic and fetal life.

															The present statute has struck the balance between the woman's
and the State's interests wholly in favor of the latter. I am not
prepared to hold that a State may equate, as Georgia has done, all
phases of maturation preceding birth. We held in Griswold that the States may not preclude spouses from attempting to avoid
the joinder of sperm and egg. If this is true, it is difficult to
perceive any overriding public necessity which might attach
precisely at the moment of conception. As Mr. Justice Clark has
said: [ Footnote 2/6 ]

															"To say that life is present at conception is to give
recognition to the potential, rather than the actual. The
unfertilized egg has life, and if fertilized, it takes on human
proportions. But the law deals in reality, not obscurity -- the
known, rather than the unknown. When sperm meets egg, life may
eventually form, but quite often it does not. The law does not deal
in speculation. The phenomenon of Page 410 U. S. 218 life takes time to develop, and, until it is actually present,
it cannot be destroyed. Its interruption prior to formation would
hardly be homicide, and as we have seen, society does not regard it
as such. The rites of Baptism are not performed and death
certificates are not required when a miscarriage occurs. No
prosecutor has ever returned a murder indictment charging the
taking of the life of a fetus. [ Footnote 2/7 ] This would not be the case if the fetus
constituted human life."

															In summary, the enactment is overbroad. It is not closely
correlated to the aim of preserving prenatal life. In fact, it
permits its destruction in several cases, including pregnancies
resulting from sex acts in which unmarried females are below the
statutory age of consent. At the same time, however, the measure
broadly proscribes aborting other pregnancies which may cause
severe mental disorders. Additionally, the statute is overbroad
because it equates the value of embryonic life immediately after
conception with the worth of life immediately before birth. III Under the Georgia Act, the mother's physician is not the sole
judge as to whether the abortion should be performed. Two other
licensed physicians must concur in his judgment. [ Footnote 2/8 ] Moreover, the abortion must be
performed in a licensed hospital; [ Footnote 2/9 ] and the abortion must be Page 410 U. S. 219 approved in advance by a committee of the medical staff of that
hospital. [ Footnote 2/10 ]

															Physicians, who speak to us in Doe through an amicus brief, complain of the Georgia Act's interference with their
practice of their profession.

															The right of privacy has no more conspicuous place than in the
physician-patient relationship, unless it be in the priest-penitent
relationship.

															It is one thing for a patient to agree that her physician may
consult with another physician about her case. It is quite a
different matter for the State compulsorily to impose on that
physician-patient relationship another layer or, as in this case,
still a third layer of physicians. The right of privacy -- the
right to care for one's health and person and to seek out a
physician of one's own choice protected by the Fourteenth Amendment
-- becomes only a matter of theory, not a reality, when a "multiple
physician approval" system is mandated by the State.

															The State licenses a physician. If he is derelict or faithless,
the procedures available to punish him or to deprive him of his
license are well known. He is entitled to procedural due process
before professional disciplinary sanctions may be imposed. See
In re Ruffalo, 390 U. S. 544 .
Crucial here, however, is state-imposed control over the medical
decision whether pregnancy should be interrupted. The good faith
decision of the patient's chosen physician is overridden and the
final decision passed on to others in whose selection the patient
has no part. This is a total destruction of the right of privacy
between physician and patient and the intimacy of relation which
that entails.

															The right to seek advice on one's health and the right to place
reliance on the physician of one's choice are Page 410 U. S. 220 basic to Fourteenth Amendment values. We deal with fundamental
rights and liberties, which, as already noted, can be contained or
controlled only by discretely drawn legislation that preserves the
"liberty" and regulates only those phases of the problem of
compelling legislative concern. The imposition by the State of
group controls over the physician-patient relationship is not made
on any medical procedure apart from abortion, no matter how
dangerous the medical step may be. The oversight imposed on the
physician and patient in abortion cases denies them their
"liberty," viz., their right of privacy, without any
compelling, discernible state interest.

															Georgia has constitutional warrant in treating abortion as a
medical problem. To protect the woman's right of privacy, however,
the control must be through the physician of her choice and the
standards set for his performance.

															The protection of the fetus when it has acquired life is a
legitimate concern of the State. Georgia's law makes no rational,
discernible decision on that score. [ Footnote 2/11 ] For under the Code, the developmental
stage of the fetus is irrelevant when pregnancy is the result of
rape, when the fetus will very likely be born with a permanent
defect, or when a continuation of the pregnancy will endanger the
life of the mother or permanently injure her health. When life is
present is a question we do not try to resolve. While basically a
question for medical experts, as stated by Mr. Justice Clark,
[ Footnote 2/12 ] it is, of course,
caught up in matters of religion and morality.

															In short, I agree with the Court that endangering the life of
the woman or seriously and permanently injuring Page 410 U. S. 221 her health are standards too narrow for the right of privacy
that is at stake.

															I also agree that the superstructure of medical supervision
which Georgia has erected violates the patient's right of privacy
inherent in her choice of her own physician.

															* [This opinion applies also to No. 70-18, Roe v. Wade,
ante p. 410 U. S.
113 .]

															[ Footnote 2/1 ]

															I disagree with the dismissal of Dr. Hallford's complaint in
intervention in Roe v. Wade, ante p. 410 U. S. 113 ,
because my disagreement with Younger v. Harris, 401 U. S. 37 ,
revealed in my dissent in that case, still persists and extends to
the progeny of that case.

															[ Footnote 2/2 ]

															There is no mention of privacy in our Bill of Rights, but our
decisions have recognized it as one of the fundamental values those
amendments were designed to protect. The fountainhead case is Boyd v. United States, 116 U. S. 616 ,
holding that a federal statute which authorized a court in tax
cases to require a taxpayer to produce his records or to concede
the Government's allegations offended the Fourth and Fifth
Amendments. Mr. Justice Bradley, for the Court, found that the
measure unduly intruded into the "sanctity of a man's home and the
privacies of life." Id.. at 116 U. S. 630 .
Prior to Boyd, in Kilbourn v. Thompson, 103 U. S. 168 , 103 U. S. 190 ,
Mr. Justice Miller held for the Court that neither House of
Congress "possesses the general power of making inquiry into the
private affairs of the citizen." Of Kilbourn, Mr. Justice
Field later said,

															"This case will stand for all time as a bulwark against the
invasion of the right of the citizen to protection in his private
affairs against the unlimited scrutiny of investigation by a
congressional committee." In re Pacific Railway Comm'n, 32 F. 241, 253 (cited
with approval in Sinclair v. United States, 279 U.
S. 263 , 279 U. S.
293 ). Mr. Justice Harlan, also speaking for the Court in ICC v. Brimson, 154 U. S. 447 , 154 U. S. 478 ,
thought the same was true of administrative inquiries, saying that
the Constitution did not permit a "general power of making inquiry
into the private affairs of the citizen." In a similar vein were Harriman v. ICC, 211 U. S. 407 ; United States v. Louisville & Nashville R. Co., 236 U. S. 318 , 236 U. S. 335 ;
and FTC v. American Tobacco Co., 264 U.
S. 298 .

															[ Footnote 2/3 ]

															The California abortion statute, held unconstitutional in the Belous case, made it a crime to perform or help perform an
abortion "unless the same is necessary to preserve [the mother's]
life." 71 Cal. 2d at 959, 458 P.2d at 197.

															[ Footnote 2/4 ]

															My Brother STEWART, writing in Roe v. Wade, supra, says
that our decision in Griswold reintroduced substantive due
process that had been rejected in Ferguson v. Skrupa, 372 U. S. 726 . Skrupa involved legislation governing a business
enterprise; and the Court in that case, as had Mr. Justice Holmes
on earlier occasions, rejected the idea that "liberty" within the
meaning of the Due Process Clause of the Fourteenth Amendment was a
vessel to be filled with one's personal choices of values, whether
drawn from the laissez faire school, from the socialistic
school, or from the technocrats. Griswold involved
legislation touching on the marital relation and involving the
conviction of a licensed physician for giving married people
information concerning contraception. There is nothing specific in
the Bill of Rights that covers that item. Nor is there anything in
the Bill of Rights that, in terms, protects the right of
association or the privacy in one's association. Yet we found those
rights in the periphery of the First Amendment. NAACP v.
Alabama, 357 U. S. 449 , 357 U. S. 462 .
Other peripheral rights are the right to educate one's children as
one chooses, Pierce v. Society of Sisters, 268 U.
S. 510 , and the right to study the German language, Meyer v. Nebraska, 262 U. S. 390 .
These decisions, with all respect, have nothing to do with
substantive due process. One may think they are not peripheral to
other rights that are expressed in the Bill of Rights. But that is
not enough to bring into play the protection of substantive due
process.

															There are, of course, those who have believed that the reach of
due process in the Fourteenth Amendment included all of the Bill of
Rights but went further. Such was the view of Mr. Justice Murphy
and Mr. Justice Rutledge. See Adamson v. California, 332 U. S. 46 , 332 U. S. 123 , 332 U. S. 124 (dissenting opinion). Perhaps they were right, but it is a bridge
that neither I nor those who joined the Court's opinion in Griswold crossed.

															[ Footnote 2/5 ]

															Many studies show that it is safer for a woman to have a
medically induced abortion than to bear a child. In the first 11
months of operation of the New York abortion law, the mortality
rate associated with such operations was six per 100,000
operations. Abortion Mortality, 20 Morbidity and Mortality 208, 209
(June 1971) (U.S. Dept. of HEW, Public Health Service). On the
other hand, the maternal mortality rate associated with childbirths
other than abortions was 18 per 100,000 live births. Tietze,
Mortality with Contraception and Induced Abortion, 45 Studies in
Family Planning 6 (1969). See also Tietze & Lehfeldt,
Legal Abortion in Eastern Europe, 175 J.A.M.A. 1149, 1152
(Apr.1961); Kolblova, Legal Abortion in Czechoslovakia, 196
J.A.M.A. 371 (Apr.1968); Mehland, Combating Illegal Abortion in the
Socialist Countries of Europe, 13 World Med. J. 84 (1966).

															[ Footnote 2/6 ]

															Religion, Morality, and Abortion: A Constitutional Appraisal, 2
Loyola U. (L.A.) L.Rev. 1, 9-10 (1969).

															[ Footnote 2/7 ]

															In Keeler v. Superior Court, 2 Cal. 3d 619 ,
470 P.2d 617, the California Supreme Court held in 1970 that the
California murder statute did not cover the killing of an unborn
fetus, even though the fetus be "viable," and that it was beyond
judicial power to extend the statute to the killing of an unborn.
It held that the child must be "born alive before a charge of
homicide can be sustained." Id. at 639, 470 P.2d at
630.

															[ Footnote 2/8 ] See Ga.Code Ann. § 26-1202(b)(3).

															[ Footnote 2/9 ] See id. § 26-1202(b)(4).

															[ Footnote 2/10 ] Id. § 26-1202(b)(5).

															[ Footnote 2/11 ] See Rochat, Tyler, & Schoenbucher, An
Epidemiological Analysis of Abortion in Georgia, 61 Am.J. of Public
Health 543 (1971).

															[ Footnote 2/12 ] Supra, 410
U.S. 179 fn2/6|>n. 6, at 10.

															MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins,
dissenting.*

															At the heart of the controversy in these cases are those
recurring pregnancies that pose no danger whatsoever to the life or
health of the mother but are, nevertheless, unwanted for any one or
more of a variety of reasons -- convenience, family planning,
economics, dislike of children, the embarrassment of illegitimacy,
etc. The common claim before us is that, for any one of such
reasons, or for no reason at all, and without asserting or claiming
any threat to life or health, any woman is entitled to an abortion
at her request if she is able to find a medical advisor willing to
undertake the procedure.

															The Court, for the most part, sustains this position: during the
period prior to the time the fetus becomes viable, the Constitution
of the United States values the convenience, whim, or caprice of
the putative mother more than the 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 protect the
fetus from an abortion not prompted by more compelling reasons of
the mother.

															With all due respect, I dissent. I find nothing in the language
or history of the Constitution to support the Court's judgment. The
Court simply fashions and announces a new constitutional right for
pregnant mothers Page 410 U. S. 222 and, with scarcely any reason or authority for its action,
invests that right with sufficient substance to override most
existing state abortion statutes. The upshot is that the people and
the legislatures of the 50 States are constitutionally dissentitled
to weigh the relative importance of the continued existence and
development of the fetus, on the one hand, against a spectrum of
possible impacts on the mother, on the other hand. As an exercise
of raw judicial power, the Court perhaps has authority to do what
it does today; but, in my view, its judgment is an improvident and
extravagant exercise of the power of judicial review that the
Constitution extends to this Court.

															The Court apparently values the convenience of the pregnant
mother more than the continued existence and development of the
life or potential life that she carries. Whether or not I might
agree with that marshaling of values, I can in no event join the
Court's judgment because I find no constitutional warrant for
imposing such an order of priorities on the people and legislatures
of the States. In a sensitive area such as this, involving as it
does issues over which reasonable men may easily and heatedly
differ, I cannot accept the Court's exercise of its clear power of
choice by interposing a constitutional barrier to state efforts to
protect human life and by investing mothers and doctors with the
constitutionally protected right to exterminate it. This issue, for
the most part, should be left with the people and to the political
processes the people have devised to govern their affairs.

															It is my view, therefore, that the Texas statute is not
constitutionally infirm because it denies abortions to those who
seek to serve only their convenience, rather than to protect their
life or health. Nor is this plaintiff, who claims no threat to her
mental or physical health, entitled to assert the possible rights
of those women Page 410 U. S. 223 whose pregnancy assertedly implicates their health. This,
together with United States v. Vuitch, 402 U. S.
62 (1971), dictates reversal of the judgment of the
District Court.

															Likewise, because Georgia may constitutionally forbid abortions
to putative mothers who, like the plaintiff in this case, do not
fall within the reach of § 26-1202(a) of its criminal code, I have
no occasion, and the District Court had none, to consider the
constitutionality of the procedural requirements of the Georgia
statute as applied to those pregnancies posing substantial hazards
to either life or health. I would reverse the judgment of the
District Court in the Georgia case.

															* [This opinion applies also to No. 718, Roe v. Wade,
ante p. 410 U. S.
113 .]

															MR. JUSTICE REHNQUIST, dissenting.

															The holding in Roe v. Wade, ante p. 410 U. S. 113 ,
that state abortion laws can withstand constitutional scrutiny only
if the State can demonstrate a compelling state interest,
apparently compels the Court's close scrutiny of the various
provisions in Georgia's abortion statute. Since, as indicated by my
dissent in Wade, I view the compelling state interest
standard as an inappropriate measure of the constitutionality of
state abortion laws, I respectfully dissent from the majority's
holding.