(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DOBBS, STATE HEALTH OFFICER OF THE
MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v.
JACKSON WOMEN’S HEALTH ORGANIZATION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 19–1392. Argued December 1, 2021—Decided June 24, 2022
Mississippi’s Gestational Age Act provides that “[e]xcept in a medical
emergency or in the case of a severe fetal abnormality, a person shall
not intentionally or knowingly perform . . . or induce an abortion of an
unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.”
Miss. Code Ann. §41–41–191. Respondents—Jackson Women’s Health
Organization, an abortion clinic, and one of its doctors—challenged the
Act in Federal District Court, alleging that it violated this Court’s precedents establishing a constitutional right to abortion, in particular Roe
v. Wade, 410 U. S. 113, and Planned Parenthood of Southeastern Pa.
v. Casey, 505 U. S. 833. The District Court granted summary judgment in favor of respondents and permanently enjoined enforcement
of the Act, reasoning that Mississippi’s 15-week restriction on abortion
violates this Court’s cases forbidding States to ban abortion pre-viability. The Fifth Circuit affirmed. Before this Court, petitioners defend
the Act on the grounds that Roe and Casey were wrongly decided and
that the Act is constitutional because it satisfies rational-basis review.
Held: The Constitution does not confer a right to abortion; Roe and Casey
are overruled; and the authority to regulate abortion is returned to the
people and their elected representatives. Pp. 8–79.
(a) The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion. Casey’s controlling
opinion skipped over that question and reaffirmed Roe solely on the
basis of stare decisis. A proper application of stare decisis, however,
requires an assessment of the strength of the grounds on which Roe
2 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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was based. The Court therefore turns to the question that the Casey
plurality did not consider. Pp. 8–32.
(1) First, the Court reviews the standard that the Court’s cases
have used to determine whether the Fourteenth Amendment’s reference to “liberty” protects a particular right. The Constitution makes
no express reference to a right to obtain an abortion, but several constitutional provisions have been offered as potential homes for an implicit constitutional right. Roe held that the abortion right is part of a
right to privacy that springs from the First, Fourth, Fifth, Ninth, and
Fourteenth Amendments. See 410 U. S., at 152–153. The Casey Court
grounded its decision solely on the theory that the right to obtain an
abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause. Others have suggested that support can
be found in the Fourteenth Amendment’s Equal Protection Clause, but
that theory is squarely foreclosed by the Court’s precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the heightened scrutiny that applies
to such classifications. See Geduldig v. Aiello, 417 U. S. 484, 496,
n. 20; Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263, 273–
274. Rather, regulations and prohibitions of abortion are governed by
the same standard of review as other health and safety measures.
Pp. 9–11.
(2) Next, the Court examines whether the right to obtain an abortion is rooted in the Nation’s history and tradition and whether it is an
essential component of “ordered liberty.” The Court finds that the
right to abortion is not deeply rooted in the Nation’s history and tradition. The underlying theory on which Casey rested—that the Fourteenth Amendment’s Due Process Clause provides substantive, as well
as procedural, protection for “liberty”—has long been controversial.
The Court’s decisions have held that the Due Process Clause protects two categories of substantive rights—those rights guaranteed by
the first eight Amendments to the Constitution and those rights
deemed fundamental that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories,
the question is whether the right is “deeply rooted in [our] history and
tradition” and whether it is essential to this Nation’s “scheme of ordered liberty.” Timbs v. Indiana, 586 U. S. ___, ___ (internal quotation
marks omitted). The term “liberty” alone provides little guidance.
Thus, historical inquiries are essential whenever the Court is asked to
recognize a new component of the “liberty” interest protected by the
Due Process Clause. In interpreting what is meant by “liberty,” the
Court must guard against the natural human tendency to confuse
what the Fourteenth Amendment protects with the Court’s own ardent
views about the liberty that Americans should enjoy. For this reason,
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the Court has been “reluctant” to recognize rights that are not mentioned in the Constitution. Collins v. Harker Heights, 503 U. S. 115, 125.
Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the
Fourteenth Amendment clearly does not protect the right to an abortion. Until the latter part of the 20th century, there was no support in
American law for a constitutional right to obtain an abortion. No state
constitutional provision had recognized such a right. Until a few years
before Roe, no federal or state court had recognized such a right. Nor
had any scholarly treatise. Indeed, abortion had long been a crime in
every single State. At common law, abortion was criminal in at least
some stages of pregnancy and was regarded as unlawful and could
have very serious consequences at all stages. American law followed
the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time the Fourteenth
Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until
the day Roe was decided. Roe either ignored or misstated this history,
and Casey declined to reconsider Roe’s faulty historical analysis.
Respondents’ argument that this history does not matter flies in the
face of the standard the Court has applied in determining whether an
asserted right that is nowhere mentioned in the Constitution is nevertheless protected by the Fourteenth Amendment. The Solicitor General repeats Roe’s claim that it is “doubtful . . . abortion was ever firmly
established as a common-law crime even with respect to the destruction of a quick fetus,” 410 U. S., at 136, but the great common-law authorities—Bracton, Coke, Hale, and Blackstone—all wrote that a postquickening abortion was a crime. Moreover, many authorities asserted that even a pre-quickening abortion was “unlawful” and that,
as a result, an abortionist was guilty of murder if the woman died from
the attempt. The Solicitor General suggests that history supports an
abortion right because of the common law’s failure to criminalize abortion before quickening, but the insistence on quickening was not universal, see Mills v. Commonwealth, 13 Pa. 631, 633; State v. Slagle, 83
N. C. 630, 632, and regardless, the fact that many States in the late
18th and early 19th century did not criminalize pre-quickening abortions does not mean that anyone thought the States lacked the authority to do so.
Instead of seriously pressing the argument that the abortion right
itself has deep roots, supporters of Roe and Casey contend that the
abortion right is an integral part of a broader entrenched right. Roe
termed this a right to privacy, 410 U. S., at 154, and Casey described
it as the freedom to make “intimate and personal choices” that are
“central to personal dignity and autonomy,” 505 U. S., at 851. Ordered
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liberty sets limits and defines the boundary between competing interests. Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what
they termed “potential life.” Roe, 410 U. S., at 150; Casey, 505 U. S.,
at 852. But the people of the various States may evaluate those interests differently. The Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated. Pp. 11–30.
(3) Finally, the Court considers whether a right to obtain an abortion is part of a broader entrenched right that is supported by other
precedents. The Court concludes the right to obtain an abortion cannot
be justified as a component of such a right. Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s
“concept of existence” prove too much. Casey, 505 U. S., at 851. Those
criteria, at a high level of generality, could license fundamental rights
to illicit drug use, prostitution, and the like. What sharply distinguishes the abortion right from the rights recognized in the cases on
which Roe and Casey rely is something that both those decisions
acknowledged: Abortion is different because it destroys what Roe
termed “potential life” and what the law challenged in this case calls
an “unborn human being.” None of the other decisions cited by Roe
and Casey involved the critical moral question posed by abortion. Accordingly, those cases do not support the right to obtain an abortion,
and the Court’s conclusion that the Constitution does not confer such
a right does not undermine them in any way. Pp. 30–32.
(b) The doctrine of stare decisis does not counsel continued acceptance of Roe and Casey. Stare decisis plays an important role and
protects the interests of those who have taken action in reliance on a
past decision. It “reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation.”
Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 455. It “contributes to the actual and perceived integrity of the judicial process.”
Payne v. Tennessee, 501 U. S. 808, 827. And it restrains judicial hubris
by respecting the judgment of those who grappled with important
questions in the past. But stare decisis is not an inexorable command,
Pearson v. Callahan, 555 U. S. 223, 233, and “is at its weakest when
[the Court] interpretthe Constitution,” Agostini v. Felton, 521 U. S.
203, 235. Some of the Court’s most important constitutional decisions
have overruled prior precedents. See, e.g., Brown v. Board of Education, 347 U. S. 483, 491 (overruling the infamous decision in Plessy v.
Ferguson, 163 U. S. 537, and its progeny).
The Court’s cases have identified factors that should be considered
in deciding when a precedent should be overruled. Janus v. State,
County, and Municipal Employees, 585 U. S. ___, ___–___. Five factors
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discussed below weigh strongly in favor of overruling Roe and Casey.
Pp. 39–66.
(1) The nature of the Court’s error. Like the infamous decision in
Plessy v. Ferguson, Roe was also egregiously wrong and on a collision
course with the Constitution from the day it was decided. Casey perpetuated its errors, calling both sides of the national controversy to
resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the
State’s interest in fetal life—could no longer seek to persuade their
elected representatives to adopt policies consistent with their views.
The Court short-circuited the democratic process by closing it to the
large number of Americans who disagreed with Roe. Pp. 43–45.
(2) The quality of the reasoning. Without any grounding in the
constitutional text, history, or precedent, Roe imposed on the entire
country a detailed set of rules for pregnancy divided into trimesters
much like those that one might expect to find in a statute or regulation.
See 410 U. S., at 163–164. Roe’s failure even to note the overwhelming
consensus of state laws in effect in 1868 is striking, and what it said
about the common law was simply wrong. Then, after surveying history, the opinion spent many paragraphs conducting the sort of factfinding that might be undertaken by a legislative committee, and did
not explain why the sources on which it relied shed light on the meaning of the Constitution. As to precedent, citing a broad array of cases,
the Court found support for a constitutional “right of personal privacy.”
Id., at 152. But Roe conflated the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference. See Whalen v. Roe, 429
U. S. 589, 599–600. None of these decisions involved what is distinctive about abortion: its effect on what Roe termed “potential life.”
When the Court summarized the basis for the scheme it imposed on
the country, it asserted that its rules were “consistent with,” among
other things, “the relative weights of the respective interests involved”
and “the demands of the profound problems of the present day.” Roe,
410 U. S., at 165. These are precisely the sort of considerations that
legislative bodies often take into account when they draw lines that
accommodate competing interests. The scheme Roe produced looked
like legislation, and the Court provided the sort of explanation that
might be expected from a legislative body. An even more glaring deficiency was Roe’s failure to justify the critical distinction it drew between pre- and post-viability abortions. See id., at 163. The arbitrary
viability line, which Casey termed Roe’s central rule, has not found
much support among philosophers and ethicists who have attempted
to justify a right to abortion. The most obvious problem with any such
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argument is that viability has changed over time and is heavily dependent on factors—such as medical advances and the availability of
quality medical care—that have nothing to do with the characteristics
of a fetus.
When Casey revisited Roe almost 20 years later, it reaffirmed Roe’s
central holding, but pointedly refrained from endorsing most of its reasoning. The Court abandoned any reliance on a privacy right and instead grounded the abortion right entirely on the Fourteenth Amendment’s Due Process Clause. 505 U. S., at 846. The controlling opinion
criticized and rejected Roe’s trimester scheme, 505 U. S., at 872, and
substituted a new and obscure “undue burden” test. Casey, in short,
either refused to reaffirm or rejected important aspects of Roe’s analysis, failed to remedy glaring deficiencies in Roe’s reasoning, endorsed
what it termed Roe’s central holding while suggesting that a majority
might not have thought it was correct, provided no new support for the
abortion right other than Roe’s status as precedent, and imposed a new
test with no firm grounding in constitutional text, history, or precedent. Pp. 45–56.
(3) Workability. Deciding whether a precedent should be overruled depends in part on whether the rule it imposes is workable—that
is, whether it can be understood and applied in a consistent and predictable manner. Casey’s “undue burden” test has scored poorly on the
workability scale. The Casey plurality tried to put meaning into the
“undue burden” test by setting out three subsidiary rules, but these
rules created their own problems. And the difficulty of applying Casey’s new rules surfaced in that very case. Compare 505 U. S., at 881–
887, with id., at 920–922 (Stevens, J., concurring in part and dissenting in part). The experience of the Courts of Appeals provides further
evidence that Casey’s “line between” permissible and unconstitutional
restrictions “has proved to be impossible to draw with precision.” Janus, 585 U. S., at ___. Casey has generated a long list of Circuit conflicts. Continued adherence to Casey’s unworkable “undue burden”
test would undermine, not advance, the “evenhanded, predictable, and
consistent development of legal principles.” Payne, 501 U. S., at 827.
Pp. 56–62.
(4) Effect on other areas of law. Roe and Casey have led to the
distortion of many important but unrelated legal doctrines, and that
effect provides further support for overruling those decisions. See Ramos v. Louisiana, 590 U. S. ___, ___ (KAVANAUGH, J., concurring in
part). Pp. 62–63.
(5) Reliance interests. Overruling Roe and Casey will not upend
concrete reliance interests like those that develop in “cases involving
property and contract rights.” Payne, 501 U. S., at 828. In Casey, the
controlling opinion conceded that traditional reliance interests were
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not implicated because getting an abortion is generally “unplanned activity,” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.”
505 U. S., at 856. Instead, the opinion perceived a more intangible
form of reliance, namely, that “people [had] organized intimate relationships and made choices that define their views of themselves and
their places in society . . . in reliance on the availability of abortion in
the event that contraception should fail” and that “[t]he ability of
women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive
lives.” Ibid. The contending sides in this case make impassioned and
conflicting arguments about the effects of the abortion right on the
lives of women as well as the status of the fetus. The Casey plurality’s
speculative attempt to weigh the relative importance of the interests
of the fetus and the mother represent a departure from the “original
constitutional proposition” that “courts do not substitute their social
and economic beliefs for the judgment of legislative bodies.” Ferguson
v. Skrupa, 372 U. S. 726, 729–730.
The Solicitor General suggests that overruling Roe and Casey would
threaten the protection of other rights under the Due Process Clause.
The Court emphasizes that this decision concerns the constitutional
right to abortion and no other right. Nothing in this opinion should be
understood to cast doubt on precedents that do not concern abortion.
Pp. 63–66.
(c) Casey identified another concern, namely, the danger that the
public will perceive a decision overruling a controversial “watershed”
decision, such as Roe, as influenced by political considerations or public opinion. 505 U. S., at 866–867. But the Court cannot allow its decisions to be affected by such extraneous concerns. A precedent of this
Court is subject to the usual principles of stare decisis under which
adherence to precedent is the norm but not an inexorable command. If
the rule were otherwise, erroneous decisions like Plessy would still be
the law. The Court’s job is to interpret the law, apply longstanding
principles of stare decisis, and decide this case accordingly. Pp. 66–69.
(d) Under the Court’s precedents, rational-basis review is the appropriate standard to apply when state abortion regulations undergo constitutional challenge. Given that procuring an abortion is not a fundamental constitutional right, it follows that the States may regulate
abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot “substitute their social
and economic beliefs for the judgment of legislative bodies.” Ferguson,
372 U. S., at 729–730. That applies even when the laws at issue concern matters of great social significance and moral substance. A law
regulating abortion, like other health and welfare laws, is entitled to a
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“strong presumption of validity.” Heller v. Doe, 509 U. S. 312, 319. It
must be sustained if there is a rational basis on which the legislature
could have thought that it would serve legitimate state interests. Id.,
at 320.
Mississippi’s Gestational Age Act is supported by the Mississippi
Legislature’s specific findings, which include the State’s asserted interest in “protecting the life of the unborn.” §2(b)(i). These legitimate
interests provide a rational basis for the Gestational Age Act, and it
follows that respondents’ constitutional challenge must fail. Pp. 76–
78.
(e) Abortion presents a profound moral question. The Constitution
does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. The Court
overrules those decisions and returns that authority to the people and
their elected representatives. Pp. 78–79.
945 F. 3d 265, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which THOMAS, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., and KAVANAUGH, J., filed concurring opinions. ROBERTS, C. J., filed an opinion
concurring in the judgment. BREYER, SOTOMAYOR, and KAGAN, JJ., filed
a dissenting opinion.
_________________
_________________
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Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 19–1392
THOMAS E. DOBBS, STATE HEALTH OFFICER OF
THE MISSISSIPPI DEPARTMENT OF HEALTH,
ET AL., PETITIONERS v. JACKSON WOMEN’S
HEALTH ORGANIZATION, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 24, 2022]
JUSTICE ALITO delivered the opinion of the Court.
Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently
that a human person comes into being at conception and
that abortion ends an innocent life. Others feel just as
strongly that any regulation of abortion invades a woman’s
right to control her own body and prevents women from
achieving full equality. Still others in a third group think
that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of
views about the particular restrictions that should be imposed.
For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this
Court decided Roe v. Wade, 410 U. S. 113. Even though the
Constitution makes no mention of abortion, the Court held
that it confers a broad right to obtain one. It did not claim
that American law or the common law had ever recognized
2 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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such a right, and its survey of history ranged from the constitutionally irrelevant (e.g., its discussion of abortion in antiquity) to the plainly incorrect (e.g., its assertion that abortion was probably never a crime under the common law).
After cataloging a wealth of other information having no
bearing on the meaning of the Constitution, the opinion
concluded with a numbered set of rules much like those that
might be found in a statute enacted by a legislature.
Under this scheme, each trimester of pregnancy was regulated differently, but the most critical line was drawn at
roughly the end of the second trimester, which, at the time,
corresponded to the point at which a fetus was thought to
achieve “viability,” i.e., the ability to survive outside the
womb. Although the Court acknowledged that States had
a legitimate interest in protecting “potential life,”1 it found
that this interest could not justify any restriction on previability abortions. The Court did not explain the basis for
this line, and even abortion supporters have found it hard
to defend Roe’s reasoning. One prominent constitutional
scholar wrote that he “would vote for a statute very much
like the one the Court end[ed] up drafting” if he were “a
legislator,” but his assessment of Roe was memorable and
brutal: Roe was “not constitutional law” at all and gave “almost no sense of an obligation to try to be.”2
At the time of Roe, 30 States still prohibited abortion at
all stages. In the years prior to that decision, about a third
of the States had liberalized their laws, but Roe abruptly
ended that political process. It imposed the same highly
restrictive regime on the entire Nation, and it effectively
struck down the abortion laws of every single State.3 As
—————— 1 Roe v. Wade, 410 U. S. 113, 163 (1973). 2 J. Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82
Yale L. J. 920, 926, 947 (1973) (Ely) (emphasis deleted). 3L. Tribe, Foreword: Toward a Model of Roles in the Due Process of
Life and Law, 87 Harv. L. Rev. 1, 2 (1973) (Tribe).
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Opinion of the Court
Justice Byron White aptly put it in his dissent, the decision
represented the “exercise of raw judicial power,” 410 U. S.,
at 222, and it sparked a national controversy that has embittered our political culture for a half century.4
Eventually, in Planned Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833 (1992), the Court revisited Roe, but the
Members of the Court split three ways. Two Justices expressed no desire to change Roe in any way.5 Four others
wanted to overrule the decision in its entirety.6 And the
three remaining Justices, who jointly signed the controlling
opinion, took a third position.7 Their opinion did not endorse Roe’s reasoning, and it even hinted that one or more
of its authors might have “reservations” about whether the
Constitution protects a right to abortion.8 But the opinion
concluded that stare decisis, which calls for prior decisions
to be followed in most instances, required adherence to
what it called Roe’s “central holding”—that a State may not
constitutionally protect fetal life before “viability”—even if
that holding was wrong.9 Anything less, the opinion
claimed, would undermine respect for this Court and the
rule of law.
Paradoxically, the judgment in Casey did a fair amount
of overruling. Several important abortion decisions were
—————— 4See R. Ginsburg, Speaking in a Judicial Voice, 67 N. Y. U. L. Rev.
1185, 1208 (1992) (“Roe . . . halted a political process that was moving in
a reform direction and thereby, I believed, prolonged divisiveness and
deferred stable settlement of the issue”). 5See 505 U. S., at 911 (Stevens, J., concurring in part and dissenting
in part); id., at 922 (Blackmun, J., concurring in part, concurring in judgment in part, and dissenting in part). 6See id., at 944 (Rehnquist, C. J., concurring in judgment in part and
dissenting in part); id., at 979 (Scalia, J., concurring in judgment in part
and dissenting in part). 7See id., at 843 (joint opinion of O’Connor, Kennedy, and Souter, JJ.). 8 Id., at 853. 9 Id., at 860.
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overruled in toto, and Roe itself was overruled in part.10 Casey threw out Roe’s trimester scheme and substituted a new
rule of uncertain origin under which States were forbidden
to adopt any regulation that imposed an “undue burden” on
a woman’s right to have an abortion.11 The decision provided no clear guidance about the difference between a
“due” and an “undue” burden. But the three Justices who
authored the controlling opinion “call[ed] the contending
sides of a national controversy to end their national division” by treating the Court’s decision as the final settlement
of the question of the constitutional right to abortion.12
As has become increasingly apparent in the intervening
years, Casey did not achieve that goal. Americans continue
to hold passionate and widely divergent views on abortion,
and state legislatures have acted accordingly. Some have
recently enacted laws allowing abortion, with few restrictions, at all stages of pregnancy. Others have tightly
restricted abortion beginning well before viability. And in
this case, 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions.
Before us now is one such state law. The State of Mississippi asks us to uphold the constitutionality of a law that
generally prohibits an abortion after the 15th week of pregnancy—several weeks before the point at which a fetus is
now regarded as “viable” outside the womb. In defending
this law, the State’s primary argument is that we should
reconsider and overrule Roe and Casey and once again allow
each State to regulate abortion as its citizens wish. On the
other side, respondents and the Solicitor General ask us to
—————— 10 Id., at 861, 870, 873 (overruling Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983), and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986)). 11 505 U. S., at 874.
12 Id., at 867.
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Opinion of the Court
reaffirm Roe and Casey, and they contend that the Mississippi law cannot stand if we do so. Allowing Mississippi to
prohibit abortions after 15 weeks of pregnancy, they argue,
“would be no different than overruling Casey and Roe entirely.” Brief for Respondents 43. They contend that “no
half-measures” are available and that we must either reaffirm or overrule Roe and Casey. Brief for Respondents 50.
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right
is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey
now chiefly rely—the Due Process Clause of the Fourteenth
Amendment. That provision has been held to guarantee
some rights that are not mentioned in the Constitution, but
any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered
liberty.” Washington v. Glucksberg, 521 U. S. 702, 721
(1997) (internal quotation marks omitted).
The right to abortion does not fall within this category.
Until the latter part of the 20th century, such a right was
entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the
States made abortion a crime at all stages of pregnancy.
The abortion right is also critically different from any other
right that this Court has held to fall within the Fourteenth
Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate
sexual relations, contraception, and marriage, but abortion
is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal
life” and what the law now before us describes as an “unborn human being.”13
Stare decisis, the doctrine on which Casey’s controlling
—————— 13Miss. Code Ann. §41–41–191(4)(b) (2018).
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opinion was based, does not compel unending adherence to
Roe’s abuse of judicial authority. Roe was egregiously
wrong from the start. Its reasoning was exceptionally
weak, and the decision has had damaging consequences.
And far from bringing about a national settlement of the
abortion issue, Roe and Casey have enflamed debate and
deepened division.
It is time to heed the Constitution and return the issue of
abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to
be resolved like most important questions in our democracy: by citizens trying to persuade one another and then
voting.” Casey, 505 U. S., at 979 (Scalia, J., concurring in
judgment in part and dissenting in part). That is what the
Constitution and the rule of law demand.
I
The law at issue in this case, Mississippi’s Gestational
Age Act, see Miss. Code Ann. §41–41–191 (2018), contains
this central provision: “Except in a medical emergency or in
the case of a severe fetal abnormality, a person shall not
intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational
age of the unborn human being has been determined to be
greater than fifteen (15) weeks.” §4(b).14
To support this Act, the legislature made a series of factual findings. It began by noting that, at the time of enactment, only six countries besides the United States “permit[ted] nontherapeutic or elective abortion-on-demand
after the twentieth week of gestation.”15 §2(a). The legisla-
—————— 14The Act defines “gestational age” to be “the age of an unborn human
being as calculated from the first day of the last menstrual period of the
pregnant woman.” §3(f ). 15Those other six countries were Canada, China, the Netherlands,
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Opinion of the Court
ture then found that at 5 or 6 weeks’ gestational age an “unborn human being’s heart begins beating”; at 8 weeks the
“unborn human being begins to move about in the womb”;
at 9 weeks “all basic physiological functions are present”; at
10 weeks “vital organs begin to function,” and “[h]air, fingernails, and toenails . . . begin to form”; at 11 weeks “an
unborn human being’s diaphragm is developing,” and he or
she may “move about freely in the womb”; and at 12 weeks
the “unborn human being” has “taken on ‘the human form’
in all relevant respects.” §2(b)(i) (quoting Gonzales v. Carhart, 550 U. S. 124, 160 (2007)). It found that most abortions after 15 weeks employ “dilation and evacuation procedures which involve the use of surgical instruments to
crush and tear the unborn child,” and it concluded that the
“intentional commitment of such acts for nontherapeutic or
elective reasons is a barbaric practice, dangerous for the
maternal patient, and demeaning to the medical profession.” §2(b)(i)(8).
Respondents are an abortion clinic, Jackson Women’s
Health Organization, and one of its doctors. On the day the
Gestational Age Act was enacted, respondents filed suit in
Federal District Court against various Mississippi officials,
alleging that the Act violated this Court’s precedents establishing a constitutional right to abortion. The District
——————
North Korea, Singapore, and Vietnam. See A. Baglini, Charlotte Lozier
Institute, Gestational Limits on Abortion in the United States Compared
to International Norms 6–7 (2014); M. Lee, Is the United States One of
Seven Countries That “Allow Elective Abortions After 20 Weeks of Pregnancy?” Wash. Post (Oct. 8, 2017), http://www.washingtonpost.com/news/factchecker/wp/2017/10/09/is-the-united-states-one-of-seven-countries-thatallow-elective-abortions-after-20-weeks-of-preganacy (stating that the
claim made by the Mississippi Legislature and the Charlotte Lozier Institute was “backed by data”). A more recent compilation from the Center for Reproductive Rights indicates that Iceland and Guinea-Bissau are
now also similarly permissive. See The World’s Abortion Laws, Center
for Reproductive Rights (Feb. 23, 2021), Center for Reproductive Rights
maps/worlds-abortion-laws/.
8 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
Court granted summary judgment in favor of respondents
and permanently enjoined enforcement of the Act, reasoning that “viability marks the earliest point at which the
State’s interest in fetal life is constitutionally adequate to
justify a legislative ban on nontherapeutic abortions” and
that 15 weeks’ gestational age is “prior to viability.” Jackson Women’s Health Org. v. Currier, 349 F. Supp. 3d 536,
539–540 (SD Miss. 2019) (internal quotation marks omitted). The Fifth Circuit affirmed. 945 F. 3d 265 (2019).
We granted certiorari, 593 U. S. ___ (2021), to resolve the
question whether “all pre-viability prohibitions on elective
abortions are unconstitutional,” Pet. for Cert. i. Petitioners’ primary defense of the Mississippi Gestational Age Act
is that Roe and Casey were wrongly decided and that “the
Act is constitutional because it satisfies rational-basis review.” Brief for Petitioners 49. Respondents answer that
allowing Mississippi to ban pre-viability abortions “would
be no different than overruling Casey and Roe entirely.”
Brief for Respondents 43. They tell us that “no halfmeasures” are available: We must either reaffirm or overrule Roe and Casey. Brief for Respondents 50.
II
We begin by considering the critical question whether the
Constitution, properly understood, confers a right to obtain
an abortion. Skipping over that question, the controlling
opinion in Casey reaffirmed Roe’s “central holding” based
solely on the doctrine of stare decisis, but as we will explain,
proper application of stare decisis required an assessment
of the strength of the grounds on which Roe was based. See
infra, at 45–56.
We therefore turn to the question that the Casey plurality
did not consider, and we address that question in three
steps. First, we explain the standard that our cases have
used in determining whether the Fourteenth Amendment’s
reference to “liberty” protects a particular right. Second,
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Opinion of the Court
we examine whether the right at issue in this case is rooted
in our Nation’s history and tradition and whether it is an
essential component of what we have described as “ordered
liberty.” Finally, we consider whether a right to obtain an
abortion is part of a broader entrenched right that is supported by other precedents.
A
1
Constitutional analysis must begin with “the language of
the instrument,” Gibbons v. Ogden, 9 Wheat. 1, 186–189
(1824), which offers a “fixed standard” for ascertaining
what our founding document means, 1 J. Story, Commentaries on the Constitution of the United States §399, p. 383
(1833). The Constitution makes no express reference to a
right to obtain an abortion, and therefore those who claim
that it protects such a right must show that the right is
somehow implicit in the constitutional text.
Roe, however, was remarkably loose in its treatment of
the constitutional text. It held that the abortion right,
which is not mentioned in the Constitution, is part of a right
to privacy, which is also not mentioned. See 410 U. S., at
152–153. And that privacy right, Roe observed, had been
found to spring from no fewer than five different constitutional provisions—the First, Fourth, Fifth, Ninth, and
Fourteenth Amendments. Id., at 152.
The Court’s discussion left open at least three ways in
which some combination of these provisions could protect
the abortion right. One possibility was that the right was
“founded . . . in the Ninth Amendment’s reservation of
rights to the people.” Id., at 153. Another was that the
right was rooted in the First, Fourth, or Fifth Amendment,
or in some combination of those provisions, and that this
right had been “incorporated” into the Due Process Clause
of the Fourteenth Amendment just as many other Bill of
Rights provisions had by then been incorporated. Ibid; see
10 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
also McDonald v. Chicago, 561 U. S. 742, 763–766 (2010)
(majority opinion) (discussing incorporation). And a third
path was that the First, Fourth, and Fifth Amendments
played no role and that the right was simply a component
of the “liberty” protected by the Fourteenth Amendment’s
Due Process Clause. Roe, 410 U. S., at 153. Roe expressed
the “feel[ing]” that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that
the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.16 The Casey Court did not defend this
unfocused analysis and instead grounded its decision solely
on the theory that the right to obtain an abortion is part of
the “liberty” protected by the Fourteenth Amendment’s Due
Process Clause.
We discuss this theory in depth below, but before doing
so, we briefly address one additional constitutional provision that some of respondents’ amici have now offered as
yet another potential home for the abortion right: the Fourteenth Amendment’s Equal Protection Clause. See Brief for
United States as Amicus Curiae 24 (Brief for United
States); see also Brief for Equal Protection Constitutional
Law Scholars as Amici Curiae. Neither Roe nor Casey saw
fit to invoke this theory, and it is squarely foreclosed by our
precedents, which establish that a State’s regulation of
abortion is not a sex-based classification and is thus not
subject to the “heightened scrutiny” that applies to such
classifications.17 The regulation of a medical procedure that
—————— 16The Court’s words were as follows: “This right of privacy, whether it
be founded in the Fourteenth Amendment’s concept of personal liberty
and restrictions upon state action, as we feel it is, or, as the District Court
determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to
terminate her pregnancy.” 410 U. S., at 153. 17See, e.g., Sessions v. Morales-Santana, 582 U. S. 47, ___ (2017) (slip
op., at 8).
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only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretex[t] designed to effect an invidious discrimination against
members of one sex or the other.” Geduldig v. Aiello, 417
U. S. 484, 496, n. 20 (1974). And as the Court has stated,
the “goal of preventing abortion” does not constitute “invidiously discriminatory animus” against women. Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263, 273–274
(1993) (internal quotation marks omitted). Accordingly,
laws regulating or prohibiting abortion are not subject to
heightened scrutiny. Rather, they are governed by the
same standard of review as other health and safety
measures.18
With this new theory addressed, we turn to Casey’s bold
assertion that the abortion right is an aspect of the “liberty”
protected by the Due Process Clause of the Fourteenth
Amendment. 505 U. S., at 846; Brief for Respondents 17;
Brief for United States 21–22.
2
The underlying theory on which this argument rests—
that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for “liberty”—has long been controversial. But our decisions have
held that the Due Process Clause protects two categories of
substantive rights.
The first consists of rights guaranteed by the first eight
Amendments. Those Amendments originally applied only
to the Federal Government, Barron ex rel. Tiernan v. Mayor
of Baltimore, 7 Pet. 243, 247–251 (1833) (opinion for the
Court by Marshall, C. J.), but this Court has held that the
Due Process Clause of the Fourteenth Amendment “incorporates” the great majority of those rights and thus makes
them equally applicable to the States. See McDonald, 561
—————— 18We discuss this standard in Part VI of this opinion.
12 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
U. S., at 763–767, and nn. 12–13. The second category—
which is the one in question here—comprises a select list of
fundamental rights that are not mentioned anywhere in the
Constitution.
In deciding whether a right falls into either of these categories, the Court has long asked whether the right is
“deeply rooted in [our] history and tradition” and whether
it is essential to our Nation’s “scheme of ordered liberty.”
Timbs v. Indiana, 586 U. S. ___, ___ (2019) (slip op., at 3)
(internal quotation marks omitted); McDonald, 561 U. S.,
at 764, 767 (internal quotation marks omitted); Glucksberg,
521 U. S., at 721 (internal quotation marks omitted).19 And
in conducting this inquiry, we have engaged in a careful
analysis of the history of the right at issue.
Justice Ginsburg’s opinion for the Court in Timbs is a recent example. In concluding that the Eighth Amendment’s
protection against excessive fines is “fundamental to our
scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition,” 586 U. S., at ___ (slip op., at 7)
(internal quotation marks omitted), her opinion traced the
right back to Magna Carta, Blackstone’s Commentaries,
and 35 of the 37 state constitutions in effect at the ratification of the Fourteenth Amendment. 586 U. S., at ___–___
(slip op., at 3–7).
A similar inquiry was undertaken in McDonald, which
held that the Fourteenth Amendment protects the right to
keep and bear arms. The lead opinion surveyed the origins
of the Second Amendment, the debates in Congress about
—————— 19See also, e.g., Duncan v. Louisiana, 391 U. S. 145, 148 (1968) (asking
whether “a right is among those ‘fundamental principles of liberty and
justice which lie at the base of our civil and political institutions’ ”); Palko
v. Connecticut, 302 U. S. 319, 325 (1937) (requiring “a ‘principle of justice
so rooted in the traditions and conscience of our people as to be ranked
as fundamental’ ” (quoting Snyder v. Massachusetts, 291 U. S. 97, 105
(1934))).
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Opinion of the Court
the adoption of the Fourteenth Amendment, the state constitutions in effect when that Amendment was ratified (at
least 22 of the 37 States protected the right to keep and bear
arms), federal laws enacted during the same period, and
other relevant historical evidence. 561 U. S., at 767–777.
Only then did the opinion conclude that “the Framers and
ratifiers of the Fourteenth Amendment counted the right to
keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” Id., at 778; see also
id., at 822–850 (THOMAS, J., concurring in part and concurring in judgment) (surveying history and reaching the same
result under the Fourteenth Amendment’s Privileges or Immunities Clause).
Timbs and McDonald concerned the question whether
the Fourteenth Amendment protects rights that are expressly set out in the Bill of Rights, and it would be anomalous if similar historical support were not required when a
putative right is not mentioned anywhere in the Constitution. Thus, in Glucksberg, which held that the Due Process
Clause does not confer a right to assisted suicide, the Court
surveyed more than 700 years of “Anglo-American common
law tradition,” 521 U. S., at 711, and made clear that a fundamental right must be “objectively, deeply rooted in this
Nation’s history and tradition,” id., at 720–721.
Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the “liberty” protected by the Due Process Clause because the term
“liberty” alone provides little guidance. “Liberty” is a capacious term. As Lincoln once said: “We all declare for Liberty; but in using the same word we do not all mean the
same thing.”20 In a well-known essay, Isaiah Berlin reported that “[h]istorians of ideas” had cataloged more than
—————— 20Address at Sanitary Fair at Baltimore, Md. (Apr. 18, 1864), reprinted
in 7 The Collected Works of Abraham Lincoln 301 (R. Basler ed. 1953).
14 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
200 different senses in which the term had been used.21
In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the
natural human tendency to confuse what that Amendment
protects with our own ardent views about the liberty that
Americans should enjoy. That is why the Court has long
been “reluctant” to recognize rights that are not mentioned
in the Constitution. Collins v. Harker Heights, 503 U. S.
115, 125 (1992). “Substantive due process has at times been
a treacherous field for this Court,” Moore v. East Cleveland,
431 U. S. 494, 503 (1977) (plurality opinion), and it has
sometimes led the Court to usurp authority that the Constitution entrusts to the people’s elected representatives.
See Regents of Univ. of Mich. v. Ewing, 474 U. S. 214, 225–
226 (1985). As the Court cautioned in Glucksberg, “[w]e
must . . . exercise the utmost care whenever we are asked
to break new ground in this field, lest the liberty protected
by the Due Process Clause be subtly transformed into the
policy preferences of the Members of this Court.” 521 U. S.,
at 720 (internal quotation marks and citation omitted).
On occasion, when the Court has ignored the “[a]ppropriate limits” imposed by “‘respect for the teachings of history,’” Moore, 431 U. S., at 503 (plurality opinion), it has
fallen into the freewheeling judicial policymaking that
characterized discredited decisions such as Lochner v. New
York, 198 U. S. 45 (1905). The Court must not fall prey to
such an unprincipled approach. Instead, guided by the history and tradition that map the essential components of our
Nation’s concept of ordered liberty, we must ask what the
Fourteenth Amendment means by the term “liberty.” When
we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect
—————— 21Four Essays on Liberty 121 (1969).
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Opinion of the Court
the right to an abortion.22
B
1
Until the latter part of the 20th century, there was no
support in American law for a constitutional right to obtain
an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed
down, no federal or state court had recognized such a right.
Nor had any scholarly treatise of which we are aware. And
although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was
published only a few years before Roe.23
—————— 22That is true regardless of whether we look to the Amendment’s Due
Process Clause or its Privileges or Immunities Clause. Some scholars
and Justices have maintained that the Privileges or Immunities Clause
is the provision of the Fourteenth Amendment that guarantees substantive rights. See, e.g., McDonald v. Chicago, 561 U. S. 742, 813–850
(2010) (THOMAS, J., concurring in part and concurring in judgment); Duncan, 391 U. S., at 165–166 (Black, J., concurring); A. Amar, Bill of Rights:
Creation and Reconstruction 163–180 (1998) (Amar); J. Ely, Democracy
and Distrust 22–30 (1980); 2 W. Crosskey, Politics and the Constitution
in the History of the United States 1089–1095 (1953). But even on that
view, such a right would need to be rooted in the Nation’s history and
tradition. See Corfield v. Coryell, 6 F. Cas. 546, 551–552 (No. 3,230) (CC
ED Pa. 1823) (describing unenumerated rights under the Privileges and
Immunities Clause, Art. IV, §2, as those “fundamental” rights “which
have, at all times, been enjoyed by the citizens of the several states”);
Amar 176 (relying on Corfield to interpret the Privileges or Immunities
Clause); cf. McDonald, 561 U. S., at 819–820, 832, 854 (opinion of
THOMAS, J.) (reserving the question whether the Privileges or Immunities Clause protects “any rights besides those enumerated in the Constitution”). 23See R. Lucas, Federal Constitutional Limitations on the Enforcement and Administration of State Abortion Statutes, 46 N. C. L. Rev. 730
(1968) (Lucas); see also D. Garrow, Liberty and Sexuality 334–335 (1994)
(Garrow) (stating that Lucas was “undeniably the first person to fully
16 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
Not only was there no support for such a constitutional
right until shortly before Roe, but abortion had long been a
crime in every single State. At common law, abortion was
criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common
law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the
adoption of the Fourteenth Amendment, three-quarters of
the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.
Roe either ignored or misstated this history, and Casey
declined to reconsider Roe’s faulty historical analysis. It is
therefore important to set the record straight.
2
a
We begin with the common law, under which abortion
was a crime at least after “quickening”—i.e., the first felt
movement of the fetus in the womb, which usually occurs
between the 16th and 18th week of pregnancy.24
——————
articulate on paper” the argument that “a woman’s right to choose abortion was a fundamental individual freedom protected by the U. S. Constitution’s guarantee of personal liberty”).
24The exact meaning of “quickening” is subject to some debate. Compare Brief for Scholars of Jurisprudence as Amici Curiae 12–14, and
n. 32 (emphasis deleted) (“ ‘a quick child’ ” meant simply a “live” child,
and under the era’s outdated knowledge of embryology, a fetus was
thought to become “quick” at around the sixth week of pregnancy), with
Brief for American Historical Association et al. as Amici Curiae 6, n. 2
(“quick” and “quickening” consistently meant “the woman’s perception of
fetal movement”). We need not wade into this debate. First, it suffices
for present purposes to show that abortion was criminal by at least the
16th or 18th week of pregnancy. Second, as we will show, during the
relevant period—i.e., the period surrounding the enactment of the Fourteenth Amendment—the quickening distinction was abandoned as
States criminalized abortion at all stages of pregnancy. See infra, at 21–
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Opinion of the Court
The “eminent common-law authorities (Blackstone,
Coke, Hale, and the like),” Kahler v. Kansas, 589 U. S. ___,
___ (2020) (slip op., at 7), all describe abortion after quickening as criminal. Henry de Bracton’s 13th-century treatise explained that if a person has “struck a pregnant
woman, or has given her poison, whereby he has caused
abortion, if the foetus be already formed and animated, and
particularly if it be animated, he commits homicide.” 2 De
Legibus et Consuetudinibus Angliae 279 (T. Twiss ed.
1879); see also 1 Fleta, c. 23, reprinted in 72 Selden Soc. 60–
61 (H. Richardson & G. Sayles eds. 1955) (13th-century
treatise).25
Sir Edward Coke’s 17th-century treatise likewise asserted that abortion of a quick child was “murder” if the
“childe be born alive” and a “great misprision” if the “childe
dieth in her body.” 3 Institutes of the Laws of England 50–
51 (1644). (“Misprision” referred to “some heynous offence
under the degree of felony.” Id., at 139.) Two treatises by
Sir Matthew Hale likewise described abortion of a quick
child who died in the womb as a “great crime” and a “great
misprision.” Pleas of the Crown 53 (P. Glazebrook ed.
1972); 1 History of the Pleas of the Crown 433 (1736) (Hale).
And writing near the time of the adoption of our Constitution, William Blackstone explained that abortion of a
“quick” child was “by the ancient law homicide or manslaughter” (citing Bracton), and at least a very “heinous
misdemeanor” (citing Coke). 1 Commentaries on the Laws
of England 129–130 (7th ed. 1775) (Blackstone).
English cases dating all the way back to the 13th century
corroborate the treatises’ statements that abortion was a
crime. See generally J. Dellapenna, Dispelling the Myths
——————
25. 25Even before Bracton’s time, English law imposed punishment for the
killing of a fetus. See Leges Henrici Primi 222–223 (L. Downer ed. 1972)
(imposing penalty for any abortion and treating a woman who aborted a
“quick” child “as if she were a murderess”).
18 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
of Abortion History 126, and n. 16, 134–142, 188–194, and
nn. 84–86 (2006) (Dellapenna); J. Keown, Abortion, Doctors
and the Law 3–12 (1988) (Keown). In 1732, for example,
Eleanor Beare was convicted of “destroying the Foetus in
the Womb” of another woman and “thereby causing her to
miscarry.”26 For that crime and another “misdemeanor,”
Beare was sentenced to two days in the pillory and three
years’ imprisonment.27
Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal
right. Cf. Glucksberg, 521 U. S., at 713 (removal of “common law’s harsh sanctions did not represent an acceptance
of suicide”). Quite to the contrary, in the 1732 case mentioned above, the judge said of the charge of abortion (with
no mention of quickening) that he had “never met with a
case so barbarous and unnatural.”28 Similarly, an indictment from 1602, which did not distinguish between a prequickening and post-quickening abortion, described abortion as “pernicious” and “against the peace of our Lady the
Queen, her crown and dignity.” Keown 7 (discussing R. v.
Webb, Calendar of Assize Records, Surrey Indictments 512
(1980)).
That the common law did not condone even prequickening abortions is confirmed by what one might call a
proto-felony-murder rule. Hale and Blackstone explained a
way in which a pre-quickening abortion could rise to the
level of a homicide. Hale wrote that if a physician gave a
woman “with child” a “potion” to cause an abortion, and the
woman died, it was “murder” because the potion was given
“unlawfully to destroy her child within her.” 1 Hale 429–
430 (emphasis added). As Blackstone explained, to be
—————— 26 2 Gentleman’s Magazine 931 (Aug. 1732).
27 Id., at 932. 28 Ibid.
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“murder” a killing had to be done with “malice aforethought, . . . either express or implied.” 4 Blackstone 198
(emphasis deleted). In the case of an abortionist, Blackstone wrote, “the law will imply [malice]” for the same reason that it would imply malice if a person who intended to
kill one person accidentally killed a different person:
“f one shoots at A and misses him, but kills B, this is
murder; because of the previous felonious intent, which
the law transfers from one to the other. The same is
the case, where one lays poison for A; and B, against
whom the prisoner had no malicious intent, takes it,
and it kills him; this is likewise murder. So also, if one
gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman,
this is murder in the person who gave it.” Id., at 200–
201 (emphasis added; footnote omitted).29
Notably, Blackstone, like Hale, did not state that this
proto-felony-murder rule required that the woman be “with
quick child”—only that she be “with child.” Id., at 201. And
it is revealing that Hale and Blackstone treated abortionists differently from other physicians or surgeons who
caused the death of a patient “without any intent of doing
[the patient] any bodily hurt.” Hale 429; see 4 Blackstone
197. These other physicians—even if “unlicensed”—would
not be “guilty of murder or manslaughter.” Hale 429. But
a physician performing an abortion would, precisely because his aim was an “unlawful” one.
In sum, although common-law authorities differed on the
severity of punishment for abortions committed at different
—————— 29Other treatises restated the same rule. See 1 W. Russell & C.
Greaves, Crimes and Misdemeanors 540 (5th ed. 1845) (“So where a person gave medicine to a woman to procure an abortion, and where a person put skewers into the woman for the same purpose, by which in both
cases the women were killed, these acts were clearly held to be murder”
(footnotes omitted)); 1 E. East, Pleas of the Crown 230 (1803) (similar).
20 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
points in pregnancy, none endorsed the practice. Moreover,
we are aware of no common-law case or authority, and the
parties have not pointed to any, that remotely suggests a
positive right to procure an abortion at any stage of pregnancy.
b
In this country, the historical record is similar. The “most
important early American edition of Blackstone’s Commentaries,” District of Columbia v. Heller, 554 U. S. 570, 594
(2008), reported Blackstone’s statement that abortion of a
quick child was at least “a heinous misdemeanor,” 2 St.
George Tucker, Blackstone’s Commentaries 129–130
(1803), and that edition also included Blackstone’s discussion of the proto-felony-murder rule, 5 id., at 200–201.
Manuals for justices of the peace printed in the Colonies in
the 18th century typically restated the common-law rule on
abortion, and some manuals repeated Hale’s and Blackstone’s statements that anyone who prescribed medication
“unlawfully to destroy the child” would be guilty of murder
if the woman died. See, e.g., J. Parker, Conductor Generalis
220 (1788); 2 R. Burn, Justice of the Peace, and Parish Officer 221–222 (7th ed. 1762) (English manual stating the
same).30
—————— 30For manuals restating one or both rules, see J. Davis, Criminal Law
96, 102–103, 339 (1838); Conductor Generalis 194–195 (1801) (printed in
Philadelphia); Conductor Generalis 194–195 (1794) (printed in Albany);
Conductor Generalis 220 (1788) (printed in New York); Conductor Generalis 198 (1749) (printed in New York); G. Webb, Office and Authority
of a Justice of Peace 232 (1736) (printed in Williamsburg); Conductor
Generalis 161 (1722) (printed in Philadelphia); see also J. Conley, Doing
It by the Book: Justice of the Peace Manuals and English Law in Eighteenth Century America, 6 J. Legal Hist. 257, 265, 267 (1985) (noting that
these manuals were the justices’ “primary source of legal reference” and
of “practical value for a wider audience than the justices”).
For cases stating the proto-felony-murder rule, see, e.g., Commonwealth v. Parker, 50 Mass. 263, 265 (1845); People v. Sessions, 58 Mich.
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The few cases available from the early colonial period corroborate that abortion was a crime. See generally Dellapenna 215–228 (collecting cases). In Maryland in 1652,
for example, an indictment charged that a man “Murtherously endeavoured to destroy or Murther the Child by
him begotten in the Womb.” Proprietary v. Mitchell, 10 Md.
Archives 80, 183 (1652) (W. Browne ed. 1891). And by the
19th century, courts frequently explained that the common
law made abortion of a quick child a crime. See, e.g., Smith
v. Gaffard, 31 Ala. 45, 51 (1857); Smith v. State, 33 Me. 48,
55 (1851); State v. Cooper, 22 N. J. L. 52, 52–55 (1849); Commonwealth v. Parker, 50 Mass. 263, 264–268 (1845).
c
The original ground for drawing a distinction between
pre- and post-quickening abortions is not entirely clear, but
some have attributed the rule to the difficulty of proving
that a pre-quickening fetus was alive. At that time, there
were no scientific methods for detecting pregnancy in its
early stages,31 and thus, as one court put it in 1872: “ntil
the period of quickening there is no evidence of life; and
whatever may be said of the feotus, the law has fixed upon
this period of gestation as the time when the child is endowed with life” because “foetal movements are the first
clearly marked and well defined evidences of life.” Evans v.
People, 49 N. Y. 86, 90 (emphasis added); Cooper, 22
N. J. L., at 56 (“In contemplation of law life commences at
the moment of quickening, at that moment when the embryo gives the first physical proof of life, no matter when it
first received it” (emphasis added)).
——————
594, 595–596, 26 N. W. 291, 292–293 (1886); State v. Moore, 25 Iowa 128,
131–132 (1868); Smith v. State, 33 Me. 48, 54–55 (1851). 31See E. Rigby, A System of Midwifery 73 (1841) (“Under al
Here you go carl
https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DOBBS, STATE HEALTH OFFICER OF THE
MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v.
JACKSON WOMEN’S HEALTH ORGANIZATION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 19–1392. Argued December 1, 2021—Decided June 24, 2022
Mississippi’s Gestational Age Act provides that “[e]xcept in a medical
emergency or in the case of a severe fetal abnormality, a person shall
not intentionally or knowingly perform . . . or induce an abortion of an
unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.”
Miss. Code Ann. §41–41–191. Respondents—Jackson Women’s Health
Organization, an abortion clinic, and one of its doctors—challenged the
Act in Federal District Court, alleging that it violated this Court’s precedents establishing a constitutional right to abortion, in particular Roe
v. Wade, 410 U. S. 113, and Planned Parenthood of Southeastern Pa.
v. Casey, 505 U. S. 833. The District Court granted summary judgment in favor of respondents and permanently enjoined enforcement
of the Act, reasoning that Mississippi’s 15-week restriction on abortion
violates this Court’s cases forbidding States to ban abortion pre-viability. The Fifth Circuit affirmed. Before this Court, petitioners defend
the Act on the grounds that Roe and Casey were wrongly decided and
that the Act is constitutional because it satisfies rational-basis review.
Held: The Constitution does not confer a right to abortion; Roe and Casey
are overruled; and the authority to regulate abortion is returned to the
people and their elected representatives. Pp. 8–79.
(a) The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion. Casey’s controlling
opinion skipped over that question and reaffirmed Roe solely on the
basis of stare decisis. A proper application of stare decisis, however,
requires an assessment of the strength of the grounds on which Roe
2 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Syllabus
was based. The Court therefore turns to the question that the Casey
plurality did not consider. Pp. 8–32.
(1) First, the Court reviews the standard that the Court’s cases
have used to determine whether the Fourteenth Amendment’s reference to “liberty” protects a particular right. The Constitution makes
no express reference to a right to obtain an abortion, but several constitutional provisions have been offered as potential homes for an implicit constitutional right. Roe held that the abortion right is part of a
right to privacy that springs from the First, Fourth, Fifth, Ninth, and
Fourteenth Amendments. See 410 U. S., at 152–153. The Casey Court
grounded its decision solely on the theory that the right to obtain an
abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause. Others have suggested that support can
be found in the Fourteenth Amendment’s Equal Protection Clause, but
that theory is squarely foreclosed by the Court’s precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the heightened scrutiny that applies
to such classifications. See Geduldig v. Aiello, 417 U. S. 484, 496,
n. 20; Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263, 273–
274. Rather, regulations and prohibitions of abortion are governed by
the same standard of review as other health and safety measures.
Pp. 9–11.
(2) Next, the Court examines whether the right to obtain an abortion is rooted in the Nation’s history and tradition and whether it is an
essential component of “ordered liberty.” The Court finds that the
right to abortion is not deeply rooted in the Nation’s history and tradition. The underlying theory on which Casey rested—that the Fourteenth Amendment’s Due Process Clause provides substantive, as well
as procedural, protection for “liberty”—has long been controversial.
The Court’s decisions have held that the Due Process Clause protects two categories of substantive rights—those rights guaranteed by
the first eight Amendments to the Constitution and those rights
deemed fundamental that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories,
the question is whether the right is “deeply rooted in [our] history and
tradition” and whether it is essential to this Nation’s “scheme of ordered liberty.” Timbs v. Indiana, 586 U. S. ___, ___ (internal quotation
marks omitted). The term “liberty” alone provides little guidance.
Thus, historical inquiries are essential whenever the Court is asked to
recognize a new component of the “liberty” interest protected by the
Due Process Clause. In interpreting what is meant by “liberty,” the
Court must guard against the natural human tendency to confuse
what the Fourteenth Amendment protects with the Court’s own ardent
views about the liberty that Americans should enjoy. For this reason,
Cite as: 597 U. S. ____ (2022) 3
Syllabus
the Court has been “reluctant” to recognize rights that are not mentioned in the Constitution. Collins v. Harker Heights, 503 U. S. 115, 125.
Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the
Fourteenth Amendment clearly does not protect the right to an abortion. Until the latter part of the 20th century, there was no support in
American law for a constitutional right to obtain an abortion. No state
constitutional provision had recognized such a right. Until a few years
before Roe, no federal or state court had recognized such a right. Nor
had any scholarly treatise. Indeed, abortion had long been a crime in
every single State. At common law, abortion was criminal in at least
some stages of pregnancy and was regarded as unlawful and could
have very serious consequences at all stages. American law followed
the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time the Fourteenth
Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until
the day Roe was decided. Roe either ignored or misstated this history,
and Casey declined to reconsider Roe’s faulty historical analysis.
Respondents’ argument that this history does not matter flies in the
face of the standard the Court has applied in determining whether an
asserted right that is nowhere mentioned in the Constitution is nevertheless protected by the Fourteenth Amendment. The Solicitor General repeats Roe’s claim that it is “doubtful . . . abortion was ever firmly
established as a common-law crime even with respect to the destruction of a quick fetus,” 410 U. S., at 136, but the great common-law authorities—Bracton, Coke, Hale, and Blackstone—all wrote that a postquickening abortion was a crime. Moreover, many authorities asserted that even a pre-quickening abortion was “unlawful” and that,
as a result, an abortionist was guilty of murder if the woman died from
the attempt. The Solicitor General suggests that history supports an
abortion right because of the common law’s failure to criminalize abortion before quickening, but the insistence on quickening was not universal, see Mills v. Commonwealth, 13 Pa. 631, 633; State v. Slagle, 83
N. C. 630, 632, and regardless, the fact that many States in the late
18th and early 19th century did not criminalize pre-quickening abortions does not mean that anyone thought the States lacked the authority to do so.
Instead of seriously pressing the argument that the abortion right
itself has deep roots, supporters of Roe and Casey contend that the
abortion right is an integral part of a broader entrenched right. Roe
termed this a right to privacy, 410 U. S., at 154, and Casey described
it as the freedom to make “intimate and personal choices” that are
“central to personal dignity and autonomy,” 505 U. S., at 851. Ordered
4 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Syllabus
liberty sets limits and defines the boundary between competing interests. Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what
they termed “potential life.” Roe, 410 U. S., at 150; Casey, 505 U. S.,
at 852. But the people of the various States may evaluate those interests differently. The Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated. Pp. 11–30.
(3) Finally, the Court considers whether a right to obtain an abortion is part of a broader entrenched right that is supported by other
precedents. The Court concludes the right to obtain an abortion cannot
be justified as a component of such a right. Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s
“concept of existence” prove too much. Casey, 505 U. S., at 851. Those
criteria, at a high level of generality, could license fundamental rights
to illicit drug use, prostitution, and the like. What sharply distinguishes the abortion right from the rights recognized in the cases on
which Roe and Casey rely is something that both those decisions
acknowledged: Abortion is different because it destroys what Roe
termed “potential life” and what the law challenged in this case calls
an “unborn human being.” None of the other decisions cited by Roe
and Casey involved the critical moral question posed by abortion. Accordingly, those cases do not support the right to obtain an abortion,
and the Court’s conclusion that the Constitution does not confer such
a right does not undermine them in any way. Pp. 30–32.
(b) The doctrine of stare decisis does not counsel continued acceptance of Roe and Casey. Stare decisis plays an important role and
protects the interests of those who have taken action in reliance on a
past decision. It “reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation.”
Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 455. It “contributes to the actual and perceived integrity of the judicial process.”
Payne v. Tennessee, 501 U. S. 808, 827. And it restrains judicial hubris
by respecting the judgment of those who grappled with important
questions in the past. But stare decisis is not an inexorable command,
Pearson v. Callahan, 555 U. S. 223, 233, and “is at its weakest when
[the Court] interpretthe Constitution,” Agostini v. Felton, 521 U. S.
203, 235. Some of the Court’s most important constitutional decisions
have overruled prior precedents. See, e.g., Brown v. Board of Education, 347 U. S. 483, 491 (overruling the infamous decision in Plessy v.
Ferguson, 163 U. S. 537, and its progeny).
The Court’s cases have identified factors that should be considered
in deciding when a precedent should be overruled. Janus v. State,
County, and Municipal Employees, 585 U. S. ___, ___–___. Five factors
Cite as: 597 U. S. ____ (2022) 5
Syllabus
discussed below weigh strongly in favor of overruling Roe and Casey.
Pp. 39–66.
(1) The nature of the Court’s error. Like the infamous decision in
Plessy v. Ferguson, Roe was also egregiously wrong and on a collision
course with the Constitution from the day it was decided. Casey perpetuated its errors, calling both sides of the national controversy to
resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the
State’s interest in fetal life—could no longer seek to persuade their
elected representatives to adopt policies consistent with their views.
The Court short-circuited the democratic process by closing it to the
large number of Americans who disagreed with Roe. Pp. 43–45.
(2) The quality of the reasoning. Without any grounding in the
constitutional text, history, or precedent, Roe imposed on the entire
country a detailed set of rules for pregnancy divided into trimesters
much like those that one might expect to find in a statute or regulation.
See 410 U. S., at 163–164. Roe’s failure even to note the overwhelming
consensus of state laws in effect in 1868 is striking, and what it said
about the common law was simply wrong. Then, after surveying history, the opinion spent many paragraphs conducting the sort of factfinding that might be undertaken by a legislative committee, and did
not explain why the sources on which it relied shed light on the meaning of the Constitution. As to precedent, citing a broad array of cases,
the Court found support for a constitutional “right of personal privacy.”
Id., at 152. But Roe conflated the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference. See Whalen v. Roe, 429
U. S. 589, 599–600. None of these decisions involved what is distinctive about abortion: its effect on what Roe termed “potential life.”
When the Court summarized the basis for the scheme it imposed on
the country, it asserted that its rules were “consistent with,” among
other things, “the relative weights of the respective interests involved”
and “the demands of the profound problems of the present day.” Roe,
410 U. S., at 165. These are precisely the sort of considerations that
legislative bodies often take into account when they draw lines that
accommodate competing interests. The scheme Roe produced looked
like legislation, and the Court provided the sort of explanation that
might be expected from a legislative body. An even more glaring deficiency was Roe’s failure to justify the critical distinction it drew between pre- and post-viability abortions. See id., at 163. The arbitrary
viability line, which Casey termed Roe’s central rule, has not found
much support among philosophers and ethicists who have attempted
to justify a right to abortion. The most obvious problem with any such
6 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Syllabus
argument is that viability has changed over time and is heavily dependent on factors—such as medical advances and the availability of
quality medical care—that have nothing to do with the characteristics
of a fetus.
When Casey revisited Roe almost 20 years later, it reaffirmed Roe’s
central holding, but pointedly refrained from endorsing most of its reasoning. The Court abandoned any reliance on a privacy right and instead grounded the abortion right entirely on the Fourteenth Amendment’s Due Process Clause. 505 U. S., at 846. The controlling opinion
criticized and rejected Roe’s trimester scheme, 505 U. S., at 872, and
substituted a new and obscure “undue burden” test. Casey, in short,
either refused to reaffirm or rejected important aspects of Roe’s analysis, failed to remedy glaring deficiencies in Roe’s reasoning, endorsed
what it termed Roe’s central holding while suggesting that a majority
might not have thought it was correct, provided no new support for the
abortion right other than Roe’s status as precedent, and imposed a new
test with no firm grounding in constitutional text, history, or precedent. Pp. 45–56.
(3) Workability. Deciding whether a precedent should be overruled depends in part on whether the rule it imposes is workable—that
is, whether it can be understood and applied in a consistent and predictable manner. Casey’s “undue burden” test has scored poorly on the
workability scale. The Casey plurality tried to put meaning into the
“undue burden” test by setting out three subsidiary rules, but these
rules created their own problems. And the difficulty of applying Casey’s new rules surfaced in that very case. Compare 505 U. S., at 881–
887, with id., at 920–922 (Stevens, J., concurring in part and dissenting in part). The experience of the Courts of Appeals provides further
evidence that Casey’s “line between” permissible and unconstitutional
restrictions “has proved to be impossible to draw with precision.” Janus, 585 U. S., at ___. Casey has generated a long list of Circuit conflicts. Continued adherence to Casey’s unworkable “undue burden”
test would undermine, not advance, the “evenhanded, predictable, and
consistent development of legal principles.” Payne, 501 U. S., at 827.
Pp. 56–62.
(4) Effect on other areas of law. Roe and Casey have led to the
distortion of many important but unrelated legal doctrines, and that
effect provides further support for overruling those decisions. See Ramos v. Louisiana, 590 U. S. ___, ___ (KAVANAUGH, J., concurring in
part). Pp. 62–63.
(5) Reliance interests. Overruling Roe and Casey will not upend
concrete reliance interests like those that develop in “cases involving
property and contract rights.” Payne, 501 U. S., at 828. In Casey, the
controlling opinion conceded that traditional reliance interests were
Cite as: 597 U. S. ____ (2022) 7
Syllabus
not implicated because getting an abortion is generally “unplanned activity,” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.”
505 U. S., at 856. Instead, the opinion perceived a more intangible
form of reliance, namely, that “people [had] organized intimate relationships and made choices that define their views of themselves and
their places in society . . . in reliance on the availability of abortion in
the event that contraception should fail” and that “[t]he ability of
women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive
lives.” Ibid. The contending sides in this case make impassioned and
conflicting arguments about the effects of the abortion right on the
lives of women as well as the status of the fetus. The Casey plurality’s
speculative attempt to weigh the relative importance of the interests
of the fetus and the mother represent a departure from the “original
constitutional proposition” that “courts do not substitute their social
and economic beliefs for the judgment of legislative bodies.” Ferguson
v. Skrupa, 372 U. S. 726, 729–730.
The Solicitor General suggests that overruling Roe and Casey would
threaten the protection of other rights under the Due Process Clause.
The Court emphasizes that this decision concerns the constitutional
right to abortion and no other right. Nothing in this opinion should be
understood to cast doubt on precedents that do not concern abortion.
Pp. 63–66.
(c) Casey identified another concern, namely, the danger that the
public will perceive a decision overruling a controversial “watershed”
decision, such as Roe, as influenced by political considerations or public opinion. 505 U. S., at 866–867. But the Court cannot allow its decisions to be affected by such extraneous concerns. A precedent of this
Court is subject to the usual principles of stare decisis under which
adherence to precedent is the norm but not an inexorable command. If
the rule were otherwise, erroneous decisions like Plessy would still be
the law. The Court’s job is to interpret the law, apply longstanding
principles of stare decisis, and decide this case accordingly. Pp. 66–69.
(d) Under the Court’s precedents, rational-basis review is the appropriate standard to apply when state abortion regulations undergo constitutional challenge. Given that procuring an abortion is not a fundamental constitutional right, it follows that the States may regulate
abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot “substitute their social
and economic beliefs for the judgment of legislative bodies.” Ferguson,
372 U. S., at 729–730. That applies even when the laws at issue concern matters of great social significance and moral substance. A law
regulating abortion, like other health and welfare laws, is entitled to a
8 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Syllabus
“strong presumption of validity.” Heller v. Doe, 509 U. S. 312, 319. It
must be sustained if there is a rational basis on which the legislature
could have thought that it would serve legitimate state interests. Id.,
at 320.
Mississippi’s Gestational Age Act is supported by the Mississippi
Legislature’s specific findings, which include the State’s asserted interest in “protecting the life of the unborn.” §2(b)(i). These legitimate
interests provide a rational basis for the Gestational Age Act, and it
follows that respondents’ constitutional challenge must fail. Pp. 76–
78.
(e) Abortion presents a profound moral question. The Constitution
does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. The Court
overrules those decisions and returns that authority to the people and
their elected representatives. Pp. 78–79.
945 F. 3d 265, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which THOMAS, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., and KAVANAUGH, J., filed concurring opinions. ROBERTS, C. J., filed an opinion
concurring in the judgment. BREYER, SOTOMAYOR, and KAGAN, JJ., filed
a dissenting opinion.
_________________
_________________
Cite as: 597 U. S. ____ (2022) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 19–1392
THOMAS E. DOBBS, STATE HEALTH OFFICER OF
THE MISSISSIPPI DEPARTMENT OF HEALTH,
ET AL., PETITIONERS v. JACKSON WOMEN’S
HEALTH ORGANIZATION, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 24, 2022]
JUSTICE ALITO delivered the opinion of the Court.
Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently
that a human person comes into being at conception and
that abortion ends an innocent life. Others feel just as
strongly that any regulation of abortion invades a woman’s
right to control her own body and prevents women from
achieving full equality. Still others in a third group think
that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of
views about the particular restrictions that should be imposed.
For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this
Court decided Roe v. Wade, 410 U. S. 113. Even though the
Constitution makes no mention of abortion, the Court held
that it confers a broad right to obtain one. It did not claim
that American law or the common law had ever recognized
2 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
such a right, and its survey of history ranged from the constitutionally irrelevant (e.g., its discussion of abortion in antiquity) to the plainly incorrect (e.g., its assertion that abortion was probably never a crime under the common law).
After cataloging a wealth of other information having no
bearing on the meaning of the Constitution, the opinion
concluded with a numbered set of rules much like those that
might be found in a statute enacted by a legislature.
Under this scheme, each trimester of pregnancy was regulated differently, but the most critical line was drawn at
roughly the end of the second trimester, which, at the time,
corresponded to the point at which a fetus was thought to
achieve “viability,” i.e., the ability to survive outside the
womb. Although the Court acknowledged that States had
a legitimate interest in protecting “potential life,”1 it found
that this interest could not justify any restriction on previability abortions. The Court did not explain the basis for
this line, and even abortion supporters have found it hard
to defend Roe’s reasoning. One prominent constitutional
scholar wrote that he “would vote for a statute very much
like the one the Court end[ed] up drafting” if he were “a
legislator,” but his assessment of Roe was memorable and
brutal: Roe was “not constitutional law” at all and gave “almost no sense of an obligation to try to be.”2
At the time of Roe, 30 States still prohibited abortion at
all stages. In the years prior to that decision, about a third
of the States had liberalized their laws, but Roe abruptly
ended that political process. It imposed the same highly
restrictive regime on the entire Nation, and it effectively
struck down the abortion laws of every single State.3 As
—————— 1 Roe v. Wade, 410 U. S. 113, 163 (1973). 2 J. Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82
Yale L. J. 920, 926, 947 (1973) (Ely) (emphasis deleted). 3L. Tribe, Foreword: Toward a Model of Roles in the Due Process of
Life and Law, 87 Harv. L. Rev. 1, 2 (1973) (Tribe).
Cite as: 597 U. S. ____ (2022) 3
Opinion of the Court
Justice Byron White aptly put it in his dissent, the decision
represented the “exercise of raw judicial power,” 410 U. S.,
at 222, and it sparked a national controversy that has embittered our political culture for a half century.4
Eventually, in Planned Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833 (1992), the Court revisited Roe, but the
Members of the Court split three ways. Two Justices expressed no desire to change Roe in any way.5 Four others
wanted to overrule the decision in its entirety.6 And the
three remaining Justices, who jointly signed the controlling
opinion, took a third position.7 Their opinion did not endorse Roe’s reasoning, and it even hinted that one or more
of its authors might have “reservations” about whether the
Constitution protects a right to abortion.8 But the opinion
concluded that stare decisis, which calls for prior decisions
to be followed in most instances, required adherence to
what it called Roe’s “central holding”—that a State may not
constitutionally protect fetal life before “viability”—even if
that holding was wrong.9 Anything less, the opinion
claimed, would undermine respect for this Court and the
rule of law.
Paradoxically, the judgment in Casey did a fair amount
of overruling. Several important abortion decisions were
—————— 4See R. Ginsburg, Speaking in a Judicial Voice, 67 N. Y. U. L. Rev.
1185, 1208 (1992) (“Roe . . . halted a political process that was moving in
a reform direction and thereby, I believed, prolonged divisiveness and
deferred stable settlement of the issue”). 5See 505 U. S., at 911 (Stevens, J., concurring in part and dissenting
in part); id., at 922 (Blackmun, J., concurring in part, concurring in judgment in part, and dissenting in part). 6See id., at 944 (Rehnquist, C. J., concurring in judgment in part and
dissenting in part); id., at 979 (Scalia, J., concurring in judgment in part
and dissenting in part). 7See id., at 843 (joint opinion of O’Connor, Kennedy, and Souter, JJ.). 8 Id., at 853. 9 Id., at 860.
4 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
overruled in toto, and Roe itself was overruled in part.10 Casey threw out Roe’s trimester scheme and substituted a new
rule of uncertain origin under which States were forbidden
to adopt any regulation that imposed an “undue burden” on
a woman’s right to have an abortion.11 The decision provided no clear guidance about the difference between a
“due” and an “undue” burden. But the three Justices who
authored the controlling opinion “call[ed] the contending
sides of a national controversy to end their national division” by treating the Court’s decision as the final settlement
of the question of the constitutional right to abortion.12
As has become increasingly apparent in the intervening
years, Casey did not achieve that goal. Americans continue
to hold passionate and widely divergent views on abortion,
and state legislatures have acted accordingly. Some have
recently enacted laws allowing abortion, with few restrictions, at all stages of pregnancy. Others have tightly
restricted abortion beginning well before viability. And in
this case, 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions.
Before us now is one such state law. The State of Mississippi asks us to uphold the constitutionality of a law that
generally prohibits an abortion after the 15th week of pregnancy—several weeks before the point at which a fetus is
now regarded as “viable” outside the womb. In defending
this law, the State’s primary argument is that we should
reconsider and overrule Roe and Casey and once again allow
each State to regulate abortion as its citizens wish. On the
other side, respondents and the Solicitor General ask us to
—————— 10 Id., at 861, 870, 873 (overruling Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983), and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986)). 11 505 U. S., at 874.
12 Id., at 867.
Cite as: 597 U. S. ____ (2022) 5
Opinion of the Court
reaffirm Roe and Casey, and they contend that the Mississippi law cannot stand if we do so. Allowing Mississippi to
prohibit abortions after 15 weeks of pregnancy, they argue,
“would be no different than overruling Casey and Roe entirely.” Brief for Respondents 43. They contend that “no
half-measures” are available and that we must either reaffirm or overrule Roe and Casey. Brief for Respondents 50.
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right
is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey
now chiefly rely—the Due Process Clause of the Fourteenth
Amendment. That provision has been held to guarantee
some rights that are not mentioned in the Constitution, but
any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered
liberty.” Washington v. Glucksberg, 521 U. S. 702, 721
(1997) (internal quotation marks omitted).
The right to abortion does not fall within this category.
Until the latter part of the 20th century, such a right was
entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the
States made abortion a crime at all stages of pregnancy.
The abortion right is also critically different from any other
right that this Court has held to fall within the Fourteenth
Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate
sexual relations, contraception, and marriage, but abortion
is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal
life” and what the law now before us describes as an “unborn human being.”13
Stare decisis, the doctrine on which Casey’s controlling
—————— 13Miss. Code Ann. §41–41–191(4)(b) (2018).
6 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
opinion was based, does not compel unending adherence to
Roe’s abuse of judicial authority. Roe was egregiously
wrong from the start. Its reasoning was exceptionally
weak, and the decision has had damaging consequences.
And far from bringing about a national settlement of the
abortion issue, Roe and Casey have enflamed debate and
deepened division.
It is time to heed the Constitution and return the issue of
abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to
be resolved like most important questions in our democracy: by citizens trying to persuade one another and then
voting.” Casey, 505 U. S., at 979 (Scalia, J., concurring in
judgment in part and dissenting in part). That is what the
Constitution and the rule of law demand.
I
The law at issue in this case, Mississippi’s Gestational
Age Act, see Miss. Code Ann. §41–41–191 (2018), contains
this central provision: “Except in a medical emergency or in
the case of a severe fetal abnormality, a person shall not
intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational
age of the unborn human being has been determined to be
greater than fifteen (15) weeks.” §4(b).14
To support this Act, the legislature made a series of factual findings. It began by noting that, at the time of enactment, only six countries besides the United States “permit[ted] nontherapeutic or elective abortion-on-demand
after the twentieth week of gestation.”15 §2(a). The legisla-
—————— 14The Act defines “gestational age” to be “the age of an unborn human
being as calculated from the first day of the last menstrual period of the
pregnant woman.” §3(f ). 15Those other six countries were Canada, China, the Netherlands,
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Opinion of the Court
ture then found that at 5 or 6 weeks’ gestational age an “unborn human being’s heart begins beating”; at 8 weeks the
“unborn human being begins to move about in the womb”;
at 9 weeks “all basic physiological functions are present”; at
10 weeks “vital organs begin to function,” and “[h]air, fingernails, and toenails . . . begin to form”; at 11 weeks “an
unborn human being’s diaphragm is developing,” and he or
she may “move about freely in the womb”; and at 12 weeks
the “unborn human being” has “taken on ‘the human form’
in all relevant respects.” §2(b)(i) (quoting Gonzales v. Carhart, 550 U. S. 124, 160 (2007)). It found that most abortions after 15 weeks employ “dilation and evacuation procedures which involve the use of surgical instruments to
crush and tear the unborn child,” and it concluded that the
“intentional commitment of such acts for nontherapeutic or
elective reasons is a barbaric practice, dangerous for the
maternal patient, and demeaning to the medical profession.” §2(b)(i)(8).
Respondents are an abortion clinic, Jackson Women’s
Health Organization, and one of its doctors. On the day the
Gestational Age Act was enacted, respondents filed suit in
Federal District Court against various Mississippi officials,
alleging that the Act violated this Court’s precedents establishing a constitutional right to abortion. The District
——————
North Korea, Singapore, and Vietnam. See A. Baglini, Charlotte Lozier
Institute, Gestational Limits on Abortion in the United States Compared
to International Norms 6–7 (2014); M. Lee, Is the United States One of
Seven Countries That “Allow Elective Abortions After 20 Weeks of Pregnancy?” Wash. Post (Oct. 8, 2017), http://www.washingtonpost.com/news/factchecker/wp/2017/10/09/is-the-united-states-one-of-seven-countries-thatallow-elective-abortions-after-20-weeks-of-preganacy (stating that the
claim made by the Mississippi Legislature and the Charlotte Lozier Institute was “backed by data”). A more recent compilation from the Center for Reproductive Rights indicates that Iceland and Guinea-Bissau are
now also similarly permissive. See The World’s Abortion Laws, Center
for Reproductive Rights (Feb. 23, 2021), Center for Reproductive Rights
maps/worlds-abortion-laws/.
8 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
Court granted summary judgment in favor of respondents
and permanently enjoined enforcement of the Act, reasoning that “viability marks the earliest point at which the
State’s interest in fetal life is constitutionally adequate to
justify a legislative ban on nontherapeutic abortions” and
that 15 weeks’ gestational age is “prior to viability.” Jackson Women’s Health Org. v. Currier, 349 F. Supp. 3d 536,
539–540 (SD Miss. 2019) (internal quotation marks omitted). The Fifth Circuit affirmed. 945 F. 3d 265 (2019).
We granted certiorari, 593 U. S. ___ (2021), to resolve the
question whether “all pre-viability prohibitions on elective
abortions are unconstitutional,” Pet. for Cert. i. Petitioners’ primary defense of the Mississippi Gestational Age Act
is that Roe and Casey were wrongly decided and that “the
Act is constitutional because it satisfies rational-basis review.” Brief for Petitioners 49. Respondents answer that
allowing Mississippi to ban pre-viability abortions “would
be no different than overruling Casey and Roe entirely.”
Brief for Respondents 43. They tell us that “no halfmeasures” are available: We must either reaffirm or overrule Roe and Casey. Brief for Respondents 50.
II
We begin by considering the critical question whether the
Constitution, properly understood, confers a right to obtain
an abortion. Skipping over that question, the controlling
opinion in Casey reaffirmed Roe’s “central holding” based
solely on the doctrine of stare decisis, but as we will explain,
proper application of stare decisis required an assessment
of the strength of the grounds on which Roe was based. See
infra, at 45–56.
We therefore turn to the question that the Casey plurality
did not consider, and we address that question in three
steps. First, we explain the standard that our cases have
used in determining whether the Fourteenth Amendment’s
reference to “liberty” protects a particular right. Second,
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Opinion of the Court
we examine whether the right at issue in this case is rooted
in our Nation’s history and tradition and whether it is an
essential component of what we have described as “ordered
liberty.” Finally, we consider whether a right to obtain an
abortion is part of a broader entrenched right that is supported by other precedents.
A
1
Constitutional analysis must begin with “the language of
the instrument,” Gibbons v. Ogden, 9 Wheat. 1, 186–189
(1824), which offers a “fixed standard” for ascertaining
what our founding document means, 1 J. Story, Commentaries on the Constitution of the United States §399, p. 383
(1833). The Constitution makes no express reference to a
right to obtain an abortion, and therefore those who claim
that it protects such a right must show that the right is
somehow implicit in the constitutional text.
Roe, however, was remarkably loose in its treatment of
the constitutional text. It held that the abortion right,
which is not mentioned in the Constitution, is part of a right
to privacy, which is also not mentioned. See 410 U. S., at
152–153. And that privacy right, Roe observed, had been
found to spring from no fewer than five different constitutional provisions—the First, Fourth, Fifth, Ninth, and
Fourteenth Amendments. Id., at 152.
The Court’s discussion left open at least three ways in
which some combination of these provisions could protect
the abortion right. One possibility was that the right was
“founded . . . in the Ninth Amendment’s reservation of
rights to the people.” Id., at 153. Another was that the
right was rooted in the First, Fourth, or Fifth Amendment,
or in some combination of those provisions, and that this
right had been “incorporated” into the Due Process Clause
of the Fourteenth Amendment just as many other Bill of
Rights provisions had by then been incorporated. Ibid; see
10 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
also McDonald v. Chicago, 561 U. S. 742, 763–766 (2010)
(majority opinion) (discussing incorporation). And a third
path was that the First, Fourth, and Fifth Amendments
played no role and that the right was simply a component
of the “liberty” protected by the Fourteenth Amendment’s
Due Process Clause. Roe, 410 U. S., at 153. Roe expressed
the “feel[ing]” that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that
the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.16 The Casey Court did not defend this
unfocused analysis and instead grounded its decision solely
on the theory that the right to obtain an abortion is part of
the “liberty” protected by the Fourteenth Amendment’s Due
Process Clause.
We discuss this theory in depth below, but before doing
so, we briefly address one additional constitutional provision that some of respondents’ amici have now offered as
yet another potential home for the abortion right: the Fourteenth Amendment’s Equal Protection Clause. See Brief for
United States as Amicus Curiae 24 (Brief for United
States); see also Brief for Equal Protection Constitutional
Law Scholars as Amici Curiae. Neither Roe nor Casey saw
fit to invoke this theory, and it is squarely foreclosed by our
precedents, which establish that a State’s regulation of
abortion is not a sex-based classification and is thus not
subject to the “heightened scrutiny” that applies to such
classifications.17 The regulation of a medical procedure that
—————— 16The Court’s words were as follows: “This right of privacy, whether it
be founded in the Fourteenth Amendment’s concept of personal liberty
and restrictions upon state action, as we feel it is, or, as the District Court
determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to
terminate her pregnancy.” 410 U. S., at 153. 17See, e.g., Sessions v. Morales-Santana, 582 U. S. 47, ___ (2017) (slip
op., at 8).
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only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretex[t] designed to effect an invidious discrimination against
members of one sex or the other.” Geduldig v. Aiello, 417
U. S. 484, 496, n. 20 (1974). And as the Court has stated,
the “goal of preventing abortion” does not constitute “invidiously discriminatory animus” against women. Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263, 273–274
(1993) (internal quotation marks omitted). Accordingly,
laws regulating or prohibiting abortion are not subject to
heightened scrutiny. Rather, they are governed by the
same standard of review as other health and safety
measures.18
With this new theory addressed, we turn to Casey’s bold
assertion that the abortion right is an aspect of the “liberty”
protected by the Due Process Clause of the Fourteenth
Amendment. 505 U. S., at 846; Brief for Respondents 17;
Brief for United States 21–22.
2
The underlying theory on which this argument rests—
that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for “liberty”—has long been controversial. But our decisions have
held that the Due Process Clause protects two categories of
substantive rights.
The first consists of rights guaranteed by the first eight
Amendments. Those Amendments originally applied only
to the Federal Government, Barron ex rel. Tiernan v. Mayor
of Baltimore, 7 Pet. 243, 247–251 (1833) (opinion for the
Court by Marshall, C. J.), but this Court has held that the
Due Process Clause of the Fourteenth Amendment “incorporates” the great majority of those rights and thus makes
them equally applicable to the States. See McDonald, 561
—————— 18We discuss this standard in Part VI of this opinion.
12 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
U. S., at 763–767, and nn. 12–13. The second category—
which is the one in question here—comprises a select list of
fundamental rights that are not mentioned anywhere in the
Constitution.
In deciding whether a right falls into either of these categories, the Court has long asked whether the right is
“deeply rooted in [our] history and tradition” and whether
it is essential to our Nation’s “scheme of ordered liberty.”
Timbs v. Indiana, 586 U. S. ___, ___ (2019) (slip op., at 3)
(internal quotation marks omitted); McDonald, 561 U. S.,
at 764, 767 (internal quotation marks omitted); Glucksberg,
521 U. S., at 721 (internal quotation marks omitted).19 And
in conducting this inquiry, we have engaged in a careful
analysis of the history of the right at issue.
Justice Ginsburg’s opinion for the Court in Timbs is a recent example. In concluding that the Eighth Amendment’s
protection against excessive fines is “fundamental to our
scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition,” 586 U. S., at ___ (slip op., at 7)
(internal quotation marks omitted), her opinion traced the
right back to Magna Carta, Blackstone’s Commentaries,
and 35 of the 37 state constitutions in effect at the ratification of the Fourteenth Amendment. 586 U. S., at ___–___
(slip op., at 3–7).
A similar inquiry was undertaken in McDonald, which
held that the Fourteenth Amendment protects the right to
keep and bear arms. The lead opinion surveyed the origins
of the Second Amendment, the debates in Congress about
—————— 19See also, e.g., Duncan v. Louisiana, 391 U. S. 145, 148 (1968) (asking
whether “a right is among those ‘fundamental principles of liberty and
justice which lie at the base of our civil and political institutions’ ”); Palko
v. Connecticut, 302 U. S. 319, 325 (1937) (requiring “a ‘principle of justice
so rooted in the traditions and conscience of our people as to be ranked
as fundamental’ ” (quoting Snyder v. Massachusetts, 291 U. S. 97, 105
(1934))).
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Opinion of the Court
the adoption of the Fourteenth Amendment, the state constitutions in effect when that Amendment was ratified (at
least 22 of the 37 States protected the right to keep and bear
arms), federal laws enacted during the same period, and
other relevant historical evidence. 561 U. S., at 767–777.
Only then did the opinion conclude that “the Framers and
ratifiers of the Fourteenth Amendment counted the right to
keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” Id., at 778; see also
id., at 822–850 (THOMAS, J., concurring in part and concurring in judgment) (surveying history and reaching the same
result under the Fourteenth Amendment’s Privileges or Immunities Clause).
Timbs and McDonald concerned the question whether
the Fourteenth Amendment protects rights that are expressly set out in the Bill of Rights, and it would be anomalous if similar historical support were not required when a
putative right is not mentioned anywhere in the Constitution. Thus, in Glucksberg, which held that the Due Process
Clause does not confer a right to assisted suicide, the Court
surveyed more than 700 years of “Anglo-American common
law tradition,” 521 U. S., at 711, and made clear that a fundamental right must be “objectively, deeply rooted in this
Nation’s history and tradition,” id., at 720–721.
Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the “liberty” protected by the Due Process Clause because the term
“liberty” alone provides little guidance. “Liberty” is a capacious term. As Lincoln once said: “We all declare for Liberty; but in using the same word we do not all mean the
same thing.”20 In a well-known essay, Isaiah Berlin reported that “[h]istorians of ideas” had cataloged more than
—————— 20Address at Sanitary Fair at Baltimore, Md. (Apr. 18, 1864), reprinted
in 7 The Collected Works of Abraham Lincoln 301 (R. Basler ed. 1953).
14 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
200 different senses in which the term had been used.21
In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the
natural human tendency to confuse what that Amendment
protects with our own ardent views about the liberty that
Americans should enjoy. That is why the Court has long
been “reluctant” to recognize rights that are not mentioned
in the Constitution. Collins v. Harker Heights, 503 U. S.
115, 125 (1992). “Substantive due process has at times been
a treacherous field for this Court,” Moore v. East Cleveland,
431 U. S. 494, 503 (1977) (plurality opinion), and it has
sometimes led the Court to usurp authority that the Constitution entrusts to the people’s elected representatives.
See Regents of Univ. of Mich. v. Ewing, 474 U. S. 214, 225–
226 (1985). As the Court cautioned in Glucksberg, “[w]e
must . . . exercise the utmost care whenever we are asked
to break new ground in this field, lest the liberty protected
by the Due Process Clause be subtly transformed into the
policy preferences of the Members of this Court.” 521 U. S.,
at 720 (internal quotation marks and citation omitted).
On occasion, when the Court has ignored the “[a]ppropriate limits” imposed by “‘respect for the teachings of history,’” Moore, 431 U. S., at 503 (plurality opinion), it has
fallen into the freewheeling judicial policymaking that
characterized discredited decisions such as Lochner v. New
York, 198 U. S. 45 (1905). The Court must not fall prey to
such an unprincipled approach. Instead, guided by the history and tradition that map the essential components of our
Nation’s concept of ordered liberty, we must ask what the
Fourteenth Amendment means by the term “liberty.” When
we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect
—————— 21Four Essays on Liberty 121 (1969).
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Opinion of the Court
the right to an abortion.22
B
1
Until the latter part of the 20th century, there was no
support in American law for a constitutional right to obtain
an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed
down, no federal or state court had recognized such a right.
Nor had any scholarly treatise of which we are aware. And
although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was
published only a few years before Roe.23
—————— 22That is true regardless of whether we look to the Amendment’s Due
Process Clause or its Privileges or Immunities Clause. Some scholars
and Justices have maintained that the Privileges or Immunities Clause
is the provision of the Fourteenth Amendment that guarantees substantive rights. See, e.g., McDonald v. Chicago, 561 U. S. 742, 813–850
(2010) (THOMAS, J., concurring in part and concurring in judgment); Duncan, 391 U. S., at 165–166 (Black, J., concurring); A. Amar, Bill of Rights:
Creation and Reconstruction 163–180 (1998) (Amar); J. Ely, Democracy
and Distrust 22–30 (1980); 2 W. Crosskey, Politics and the Constitution
in the History of the United States 1089–1095 (1953). But even on that
view, such a right would need to be rooted in the Nation’s history and
tradition. See Corfield v. Coryell, 6 F. Cas. 546, 551–552 (No. 3,230) (CC
ED Pa. 1823) (describing unenumerated rights under the Privileges and
Immunities Clause, Art. IV, §2, as those “fundamental” rights “which
have, at all times, been enjoyed by the citizens of the several states”);
Amar 176 (relying on Corfield to interpret the Privileges or Immunities
Clause); cf. McDonald, 561 U. S., at 819–820, 832, 854 (opinion of
THOMAS, J.) (reserving the question whether the Privileges or Immunities Clause protects “any rights besides those enumerated in the Constitution”). 23See R. Lucas, Federal Constitutional Limitations on the Enforcement and Administration of State Abortion Statutes, 46 N. C. L. Rev. 730
(1968) (Lucas); see also D. Garrow, Liberty and Sexuality 334–335 (1994)
(Garrow) (stating that Lucas was “undeniably the first person to fully
16 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
Not only was there no support for such a constitutional
right until shortly before Roe, but abortion had long been a
crime in every single State. At common law, abortion was
criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common
law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the
adoption of the Fourteenth Amendment, three-quarters of
the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.
Roe either ignored or misstated this history, and Casey
declined to reconsider Roe’s faulty historical analysis. It is
therefore important to set the record straight.
2
a
We begin with the common law, under which abortion
was a crime at least after “quickening”—i.e., the first felt
movement of the fetus in the womb, which usually occurs
between the 16th and 18th week of pregnancy.24
——————
articulate on paper” the argument that “a woman’s right to choose abortion was a fundamental individual freedom protected by the U. S. Constitution’s guarantee of personal liberty”).
24The exact meaning of “quickening” is subject to some debate. Compare Brief for Scholars of Jurisprudence as Amici Curiae 12–14, and
n. 32 (emphasis deleted) (“ ‘a quick child’ ” meant simply a “live” child,
and under the era’s outdated knowledge of embryology, a fetus was
thought to become “quick” at around the sixth week of pregnancy), with
Brief for American Historical Association et al. as Amici Curiae 6, n. 2
(“quick” and “quickening” consistently meant “the woman’s perception of
fetal movement”). We need not wade into this debate. First, it suffices
for present purposes to show that abortion was criminal by at least the
16th or 18th week of pregnancy. Second, as we will show, during the
relevant period—i.e., the period surrounding the enactment of the Fourteenth Amendment—the quickening distinction was abandoned as
States criminalized abortion at all stages of pregnancy. See infra, at 21–
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The “eminent common-law authorities (Blackstone,
Coke, Hale, and the like),” Kahler v. Kansas, 589 U. S. ___,
___ (2020) (slip op., at 7), all describe abortion after quickening as criminal. Henry de Bracton’s 13th-century treatise explained that if a person has “struck a pregnant
woman, or has given her poison, whereby he has caused
abortion, if the foetus be already formed and animated, and
particularly if it be animated, he commits homicide.” 2 De
Legibus et Consuetudinibus Angliae 279 (T. Twiss ed.
1879); see also 1 Fleta, c. 23, reprinted in 72 Selden Soc. 60–
61 (H. Richardson & G. Sayles eds. 1955) (13th-century
treatise).25
Sir Edward Coke’s 17th-century treatise likewise asserted that abortion of a quick child was “murder” if the
“childe be born alive” and a “great misprision” if the “childe
dieth in her body.” 3 Institutes of the Laws of England 50–
51 (1644). (“Misprision” referred to “some heynous offence
under the degree of felony.” Id., at 139.) Two treatises by
Sir Matthew Hale likewise described abortion of a quick
child who died in the womb as a “great crime” and a “great
misprision.” Pleas of the Crown 53 (P. Glazebrook ed.
1972); 1 History of the Pleas of the Crown 433 (1736) (Hale).
And writing near the time of the adoption of our Constitution, William Blackstone explained that abortion of a
“quick” child was “by the ancient law homicide or manslaughter” (citing Bracton), and at least a very “heinous
misdemeanor” (citing Coke). 1 Commentaries on the Laws
of England 129–130 (7th ed. 1775) (Blackstone).
English cases dating all the way back to the 13th century
corroborate the treatises’ statements that abortion was a
crime. See generally J. Dellapenna, Dispelling the Myths
——————
25. 25Even before Bracton’s time, English law imposed punishment for the
killing of a fetus. See Leges Henrici Primi 222–223 (L. Downer ed. 1972)
(imposing penalty for any abortion and treating a woman who aborted a
“quick” child “as if she were a murderess”).
18 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
of Abortion History 126, and n. 16, 134–142, 188–194, and
nn. 84–86 (2006) (Dellapenna); J. Keown, Abortion, Doctors
and the Law 3–12 (1988) (Keown). In 1732, for example,
Eleanor Beare was convicted of “destroying the Foetus in
the Womb” of another woman and “thereby causing her to
miscarry.”26 For that crime and another “misdemeanor,”
Beare was sentenced to two days in the pillory and three
years’ imprisonment.27
Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal
right. Cf. Glucksberg, 521 U. S., at 713 (removal of “common law’s harsh sanctions did not represent an acceptance
of suicide”). Quite to the contrary, in the 1732 case mentioned above, the judge said of the charge of abortion (with
no mention of quickening) that he had “never met with a
case so barbarous and unnatural.”28 Similarly, an indictment from 1602, which did not distinguish between a prequickening and post-quickening abortion, described abortion as “pernicious” and “against the peace of our Lady the
Queen, her crown and dignity.” Keown 7 (discussing R. v.
Webb, Calendar of Assize Records, Surrey Indictments 512
(1980)).
That the common law did not condone even prequickening abortions is confirmed by what one might call a
proto-felony-murder rule. Hale and Blackstone explained a
way in which a pre-quickening abortion could rise to the
level of a homicide. Hale wrote that if a physician gave a
woman “with child” a “potion” to cause an abortion, and the
woman died, it was “murder” because the potion was given
“unlawfully to destroy her child within her.” 1 Hale 429–
430 (emphasis added). As Blackstone explained, to be
—————— 26 2 Gentleman’s Magazine 931 (Aug. 1732).
27 Id., at 932. 28 Ibid.
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“murder” a killing had to be done with “malice aforethought, . . . either express or implied.” 4 Blackstone 198
(emphasis deleted). In the case of an abortionist, Blackstone wrote, “the law will imply [malice]” for the same reason that it would imply malice if a person who intended to
kill one person accidentally killed a different person:
“f one shoots at A and misses him, but kills B, this is
murder; because of the previous felonious intent, which
the law transfers from one to the other. The same is
the case, where one lays poison for A; and B, against
whom the prisoner had no malicious intent, takes it,
and it kills him; this is likewise murder. So also, if one
gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman,
this is murder in the person who gave it.” Id., at 200–
201 (emphasis added; footnote omitted).29
Notably, Blackstone, like Hale, did not state that this
proto-felony-murder rule required that the woman be “with
quick child”—only that she be “with child.” Id., at 201. And
it is revealing that Hale and Blackstone treated abortionists differently from other physicians or surgeons who
caused the death of a patient “without any intent of doing
[the patient] any bodily hurt.” Hale 429; see 4 Blackstone
197. These other physicians—even if “unlicensed”—would
not be “guilty of murder or manslaughter.” Hale 429. But
a physician performing an abortion would, precisely because his aim was an “unlawful” one.
In sum, although common-law authorities differed on the
severity of punishment for abortions committed at different
—————— 29Other treatises restated the same rule. See 1 W. Russell & C.
Greaves, Crimes and Misdemeanors 540 (5th ed. 1845) (“So where a person gave medicine to a woman to procure an abortion, and where a person put skewers into the woman for the same purpose, by which in both
cases the women were killed, these acts were clearly held to be murder”
(footnotes omitted)); 1 E. East, Pleas of the Crown 230 (1803) (similar).
20 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion of the Court
points in pregnancy, none endorsed the practice. Moreover,
we are aware of no common-law case or authority, and the
parties have not pointed to any, that remotely suggests a
positive right to procure an abortion at any stage of pregnancy.
b
In this country, the historical record is similar. The “most
important early American edition of Blackstone’s Commentaries,” District of Columbia v. Heller, 554 U. S. 570, 594
(2008), reported Blackstone’s statement that abortion of a
quick child was at least “a heinous misdemeanor,” 2 St.
George Tucker, Blackstone’s Commentaries 129–130
(1803), and that edition also included Blackstone’s discussion of the proto-felony-murder rule, 5 id., at 200–201.
Manuals for justices of the peace printed in the Colonies in
the 18th century typically restated the common-law rule on
abortion, and some manuals repeated Hale’s and Blackstone’s statements that anyone who prescribed medication
“unlawfully to destroy the child” would be guilty of murder
if the woman died. See, e.g., J. Parker, Conductor Generalis
220 (1788); 2 R. Burn, Justice of the Peace, and Parish Officer 221–222 (7th ed. 1762) (English manual stating the
same).30
—————— 30For manuals restating one or both rules, see J. Davis, Criminal Law
96, 102–103, 339 (1838); Conductor Generalis 194–195 (1801) (printed in
Philadelphia); Conductor Generalis 194–195 (1794) (printed in Albany);
Conductor Generalis 220 (1788) (printed in New York); Conductor Generalis 198 (1749) (printed in New York); G. Webb, Office and Authority
of a Justice of Peace 232 (1736) (printed in Williamsburg); Conductor
Generalis 161 (1722) (printed in Philadelphia); see also J. Conley, Doing
It by the Book: Justice of the Peace Manuals and English Law in Eighteenth Century America, 6 J. Legal Hist. 257, 265, 267 (1985) (noting that
these manuals were the justices’ “primary source of legal reference” and
of “practical value for a wider audience than the justices”).
For cases stating the proto-felony-murder rule, see, e.g., Commonwealth v. Parker, 50 Mass. 263, 265 (1845); People v. Sessions, 58 Mich.
Cite as: 597 U. S. ____ (2022) 21
Opinion of the Court
The few cases available from the early colonial period corroborate that abortion was a crime. See generally Dellapenna 215–228 (collecting cases). In Maryland in 1652,
for example, an indictment charged that a man “Murtherously endeavoured to destroy or Murther the Child by
him begotten in the Womb.” Proprietary v. Mitchell, 10 Md.
Archives 80, 183 (1652) (W. Browne ed. 1891). And by the
19th century, courts frequently explained that the common
law made abortion of a quick child a crime. See, e.g., Smith
v. Gaffard, 31 Ala. 45, 51 (1857); Smith v. State, 33 Me. 48,
55 (1851); State v. Cooper, 22 N. J. L. 52, 52–55 (1849); Commonwealth v. Parker, 50 Mass. 263, 264–268 (1845).
c
The original ground for drawing a distinction between
pre- and post-quickening abortions is not entirely clear, but
some have attributed the rule to the difficulty of proving
that a pre-quickening fetus was alive. At that time, there
were no scientific methods for detecting pregnancy in its
early stages,31 and thus, as one court put it in 1872: “ntil
the period of quickening there is no evidence of life; and
whatever may be said of the feotus, the law has fixed upon
this period of gestation as the time when the child is endowed with life” because “foetal movements are the first
clearly marked and well defined evidences of life.” Evans v.
People, 49 N. Y. 86, 90 (emphasis added); Cooper, 22
N. J. L., at 56 (“In contemplation of law life commences at
the moment of quickening, at that moment when the embryo gives the first physical proof of life, no matter when it
first received it” (emphasis added)).
——————
594, 595–596, 26 N. W. 291, 292–293 (1886); State v. Moore, 25 Iowa 128,
131–132 (1868); Smith v. State, 33 Me. 48, 54–55 (1851). 31See E. Rigby, A System of Midw
410 U.S. 113
93 S.Ct. 705
35 L.Ed.2d 147
Jane ROE, et al., Appellants,
v.
Henry WADE.
No. 70-18.
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. 1409.
Syllabus
A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene. A childless married couple (the Does), the wife not being pregnant, separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health. A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justiciable controversies. Ruling that declaratory, though not injunctive, relief was warranted, the court declared the abortion statutes void as vague and overbroadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does' complaint not justiciable. Appellants directly appealed to this Court on the injunctive rulings, and appellee cross-appealed from the District Court's grant of declaratory relief to Roe and Hallford. Held:
1. While 28 U.S.C. § 1253 authorizes no direct appeal to this Court from the grant or denial of declaratory relief alone, review is not foreclose when the case is properly before the Court on appeal from specific denial of injunctive relief and the arguments as to both injunctive and declaratory relief are necessarily identical. P. 123.
2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129.
(a) Contrary to appellee's contention, the natural termination of Roe's pregnancy did not moot her suit. Litigation involving pregnancy, which is 'capable of repetition, yet evading review,' is an exception to the usual federal rule that an actual controversy must exist at review stages and not simply when the action is initiated. Pp. 124-125.
(b) The District Court correctly refused injunctive, but erred in granting declaratory, relief to Hallford, who alleged no federally protected right not assertable as a defense against the good-faith state prosecutions pending against him. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688. Pp. 125-127.
(c) The Does' complaint, based as it is on contingencies, any one or more of which may not occur, is too speculative to present an actual case or controversy. Pp. 127-129.
3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a 'compelling' point at various stages of the woman's approach to term. Pp. 147-164.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. Pp. 163-164.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Pp. 163-164.
(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 163-164; 164—165.
4. The State may define the term 'physician' to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. P. 165.
5. It is unnecessary to decide the injunctive relief issue since the Texas authorities will doubtless fully recognize the Court's ruling that the Texas criminal abortion statutes are unconstitutional. P. 166.
314 F.Supp. 1217, affirmed in part and reversed in part.
Sarah R. Weddington, Austin, Tex., for appellants.
Robert C. Flowers, Asst. Atty. Gen. of Texas, Austin, Tex., for appellee on reargument.
Jay Floyd, Asst. Atty. Gen., Austin, Tex., for appellee on original argument.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This Texas federal appeal and its Georgia companion, Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue.
2
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.
3
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.
4
Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes' admonition in his now-vindicated dissent in Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 547, 49 L.Ed. 937 (1905):
5
'(The Constitution) is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.'
6
* The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's Penal Code,1 Vernon's Ann.P.C. These make it a crime to 'procure an abortion,' as therein defined, or to attempt one, except with respect to 'an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.' Similar statutes are in existence in a majority of the States.2
7
Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49, § 1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon modified into language that has remained substantially unchanged to the present time. See Texas Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal, Laws of Texas, Arts. 2192-2197 (1866); Texas Rev.Stat., c. 8, Arts. 536-541 (1879); Texas Rev.Crim.Stat., Arts. 1071-1076 (1911). The final article in each of these compilations provided the same exception, as does the present Article 1196, for an abortion by 'medical advice for the purpose of saving the life of the mother.'3
II
8
Jane Roe,4 a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes.
9
Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion 'performed by a competent, licensed physician, under safe, clinical conditions'; that she was unable to get a 'legal' abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint Roe purported to sue 'on behalf of herself and all other women' similarly situated.
10
James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe's action. In his complaint he alleged that he had been arrested previously for violations of the Texas abortion statutes and that two such prosecutions were pending against him. He described conditions of patients who came to him seeking abortions, and he claimed that for many cases he, as a physician, was unable to determine whether they fell within or outside the exception recognized by Article 1196. He alleged that, as a consequence, the statutes were vague and uncertain, in violation of the Fourteenth Amendment, and that they violated his own and his patients' rights to privacy in the doctor-patient relationship and his own right to practice medicine, rights he claimed were guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
11
John and Mary Doe,5 a married couple, filed a companion complaint to that of Roe. They also named the District Attorney as defendant, claimed like constitutional deprivations, and sought declaratory and injunctive relief. The Does alleged that they were a childless couple; that Mrs. Doe was suffering from a 'neural-chemical' disorder; that her physician had 'advised her to avoid pregnancy until such time as her condition has materially improved' (although a pregnancy at the present time would not present 'a serious risk' to her life); that, pursuant to medical advice, she had discontinued use of birth control pills; and that if she should become pregnant, she would want to terminate the pregnancy by an abortion performed by a competent, licensed physician under safe, clinical conditions. By an amendment to their complaint, the Does purported to sue 'on behalf of themselves and all couples similarly situated.'
12
The two actions were consolidated and heard together by a duly convened three-judge district court. The suits thus presented the situations of the pregnant single woman, the childless couple, with the wife not pregnant, and the licensed practicing physician, all joining in the attack on the Texas criminal abortion statutes. Upon the filing of affidavits, motions were made for dismissal and for summary judgment. The court held that Roe and members of her class, and Dr. Hallford, had standing to sue and presented justiciable controversies, but that the Does had failed to allege facts sufficient to state a present controversy and did not have standing. It concluded that, with respect to the requests for a declaratory judgment, abstention was not warranted. On the merits, the District Court held that the 'fundamental right of single women and married persons to choose where to have children is protected by the Ninth Amendment, through the Fourteenth Amendment,' and that the Texas criminal abortion statutes were void on their face because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs' Ninth Amendment rights. The court then held that abstention was warranted with respect to the requests for an injunction. It therefore dismissed the Does' complaint, declared the abortion statutes void, and dismissed the application for injunctive relief. 314 F.Supp. 1217, 1225 (N.D.Tex.1970).
13
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C. § 1253, have appealed to this Court from that part of the District Court's judgment denying the injunction. The defendant District Attorney has purported to cross-appeal, pursuant to the same statute, from the court's grant of declaratory relief to Roe and Hallford. Both sides also have taken protective appeals to the United States Court of Appeals for the Fifth Circuit. That court ordered the appeals held in abeyance pending decision here. We postponed decision on jurisdiction to the hearing on the merits. 402 U.S. 941, 91 S.Ct. 1610, 29 L.Ed. 108 (1971).
III
14
It might have been preferable if the defendant, pursuant to our Rule 20, had presented to us a petition for certiorari before judgment in the Court of Appeals with respect to the granting of the plaintiffs' prayer for declaratory relief. Our decisions in Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970), and Gunn v. University Committee, 399 U.S. 383, 90 S.Ct. 2013, 26 L.Ed.2d 684 (1970), are to the effect that § 1253 does not authorize an appeal to this Court from the grant or denial of declaratory relief alone. We conclude, nevertheless, that those decisions do not foreclose our review of both the injunctive and the declaratory aspects of a case of this kind when it is property here, as this one is, on appeal under § 1253 from specific denial of injunctive relief, and the arguments as to both aspects are necessarily identical. See Carter v. Jury Comm'n, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Florida Lime and Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73; 80-81, 80 S.Ct. 568, 573-574, 4 L.Ed.2d 568 (1960). It would be destructive of time and energy for all concerned were we to rule otherwise. Cf. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201.
IV
15
We are next confronted with issues of justiciability, standing, and abstention. Have Roe and the Does established that 'personal stake in the outcome of the controversy,' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), that insures that 'the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution,' Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972)? And what effect did the pendency of criminal abortion charges against Dr. Hallford in state court have upon the propriety of the federal court's granting relief to him as a plaintiff-intervenor? A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe is a fictitious person. For purposes of her case, we accept as true, and as established, her existence; her pregnant state, as of the inception of her suit in March 1970 and as late as May 21 of that year when she filed an alias affidavit with the District Court; and her inability to obtain a legal abortion in Texas.
16
Viewing Roe's case as of the time of its filing and thereafter until as late as May, there can be little dispute that it then presented a case or controversy and that, wholly apart from the class aspects, she, as a pregnant single woman thwarted by the Texas criminal abortion laws, had standing to challenge those statutes. Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971); Crossen v. Breckenridge, 446 F.2d 833, 8380-839 (CA6 1971); Poe v. Menghini, 339 F.Supp. 986, 990-991 (D.C.Kan. 1972). See Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1951). Indeed, we do not read the appellee's brief as really asserting anything to the contrary. The 'logical nexus between the status asserted and the claim sought to be adjudicated,' Flast v. Cohen, 392 U.S., at 102, 88 S.Ct., at 1953, and the necessary degree of contentiousness, Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), are both present.
17
The appellee notes, however, that the record does not disclose that Roe was pregnant at the time of the District Court hearing on May 22, 1970,6 or on the following June 17 when the court's opinion and judgment were filed. And he suggests that Roe's case must now be moot because she and all other members of her class are no longer subject to any 1970 pregnancy.
18
The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950); Golden v. Zwickler, supra; SEC v. Medical Committee for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972).
19
But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be 'capable of repetition, yet evading review.' Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969); Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 178-179, 89 S.Ct. 347, 350, 351, 21 L.Ed.2d 325 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 897-898, 97 L.Ed. 1303 (1953).
20
We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot.
21
B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation as a plaintiff-intervenor, alleging in his complaint that he:
22
'(I)n the past has been arrested for violating the Texas Abortion Laws and at the present time stands charged by indictment with violating said laws in the Criminal District Court of Dallas County, Texas to-wit: (1) The State of Texas vs.
23
James H. Hallford, No. C-69-5307-IH, and (2) The State of Texas vs. James H. Hallford, No. C-69-2524-H. In both cases the defendant is charged with abortion . . .'
24
In his application for leave to intervene, the doctor made like representations as to the abortion charges pending in the state court. These representations were also repeated in the affidavit he executed and filed in support of his motion for summary judgment.
25
Dr. Hallford is, therefore, in the position of seeking, in a federal court, declaratory and injunctive relief with respect to the same statutes under which he stands charged in criminal prosecutions simultaneously pending in state court. Although he stated that he has been arrested in the past for violating the State's abortion laws, he makes no allegation of any substantial and immediate threat to any federally protected right that cannot be asserted in his defense against the state prosecutions. Neither is there any allegation of harassment or bad-faith prosecution. In order to escape the rule articulated in the cases cited in the next paragraph of this opinion that, absent harassment and bad faith, a defendant in a pending state criminal case cannot affirmatively challenge in federal court the statutes under which the State is prosecuting him, Dr. Hallford seeks to distinguish his status as a present state defendant from his status as a 'potential future defendant' and to assert only the latter for standing purposes here.
26
We see no merit in that distinction. Our decision in Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), compels the conclusion that the District Court erred when it granted declaratory relief to Dr. Hallford instead of refraining from so doing. The court, of course, was correct in refusing to grant injunctive relief to the doctor. The reasons supportive of that action, however, are those expressed in Samuels v. Mackell, supra, and in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); and Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971). See also Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). We note, in passing, that Younger and its companion cases were decided after the three-judge District Court decision in this case.
27
Dr. Hallford's complaint in intervention, therefore, is to be dismissed.7 He is remitted to his defenses in the state criminal proceedings against him. We reverse the judgment of the District Court insofar as it granted Dr. Hallford relief and failed to dismiss his complaint in intervention.
28
C. The Does. In view of our ruling as to Roe's standing in her case, the issue of the Does' standing in their case has little significance. The claims they assert are essentially the same as those of Roe, and they attack the same statutes. Nevertheless, we briefly note the Does' posture.
29
Their pleadings present them as a childless married couple, the woman not being pregnant, who have no desire to have children at this time because of their having received medical advice that Mrs. Doe should avoid pregnancy, and for 'other highly personal reasons.' But they 'fear . . . they may face the prospect of becoming parents.' And if pregnancy ensues, they 'would want to terminate' it by an abortion. They assert an inability to obtain an abortion legally in Texas and, consequently, the prospect of obtaining an illegal abortion there or of going outside Texas to some place where the procedure could be obtained legally and competently.
30
We thus have as plaintiffs a married couple who have, as their asserted immediate and present injury, only an alleged 'detrimental effect upon (their) marital happiness' because they are forced to 'the choice of refraining from normal sexual relations or of endangering Mary Doe's health through a possible pregnancy.' Their claim is that sometime in the future Mrs. Doe might become pregnant because of possible failure of contraceptive measures, and at that time in the future she might want an abortion that might then be illegal under the Texas statutes.
31
This very phrasing of the Does' position reveals its speculative character. Their alleged injury rests on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health. Any one or more of these several possibilities may not take place and all may not combine. In the Does' estimation, these possibilities might have some real or imagined impact upon their marital happiness. But we are not prepared to say that the bare allegation of so indirect an injury is sufficient to present an actual case or controversy. Younger v. Harris, 401 U.S., at 41-42, 91 S.Ct., at 749; Golden v. Zwickler, 394 U.S., at 109-110, 89 S.Ct., at 960; Abele v. Markle, 452 F.2d, at 1124-1125; Crossen v. Breckenridge, 446 F.2d, at 839. The Does' claim falls far short of those resolved otherwise in the cases that the Does urge upon us, namely, investment Co. Institute v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); and Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). See also Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915).
32
The Does therefore are not appropriate plaintiffs in this litigation. Their complaint was properly dismissed by the District Court, and we affirm that dismissal.
V
33
The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal 'liberty' embodied in the Fourteenth Amendment's Due Process Clause; or in personal marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id., at 460, 92 S.Ct. 1029, at 1042, 31 L.Ed.2d 349 (White, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S., at 486, 85 S.Ct., at 1682 (Goldberg, J., concurring). Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws.
VI
34
It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman's life, are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.
35
1. Ancient attitudes. These are not capable of precise determination. We are told that at the time of the Persian Empire abortifacients were known and that criminal abortions were severely punished.8 We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era,9 and that 'it was resorted to without scruple.'10 The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome's prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable.11 Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father's right to his offspring. Ancient religion did not bar abortion.12
36
2. The Hippocratic Oath. What then of the famous Oath that has stood so long as the ethical guide of the medical profession and that bears the name of the great Greek (460(?)-377(?) B.C.), who has been described as the Father of Medicine, the 'wisest and the greatest practitioner of his art,' and the 'most important and most complete medical personality of antiquity,' who dominated the medical schools of his time, and who typified the sum of the medical knowledge of the past?13 The Oath varies somewhat according to the particular translation, but in any translation the content is clear: 'I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion,'14 or 'I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy.'15
37
Although the Oath is not mentioned in any of the principal briefs in this case or in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, it represents the apex of the development of strict ethical concepts in medicine, and its influence endures to this day. Why did not the authority of Hippocrates dissuade abortion practice in his time and that of Rome? The late Dr. Edelstein provides us with a theory:16 The Oath was not uncontested even in Hippocrates' day; only the Pythagorean school of philosophers frowned upon the related act of suicide. Most Greek thinkers, on the other hand, commended abortion, at least prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however, it was a matter of dogma. For them the embryo was animate from the moment of conception, and abortion meant destruction of a living being. The abortion clause of the Oath, therefore, 'echoes Pythagorean doctrines,' and '(i)n no other stratum of Greek opinion were such views held or proposed in the same spirit of uncompromising austerity.'17
38
Dr. Edelstein then concludes that the Oath originated in a group representing only a small segment of Greek opinion and that it certainly was not accepted by all ancient physicians. He points out that medical writings down to Galen (A.D. 130-200) 'give evidence of the violation of almost every one of its injunctions.'18 But with the end of antiquity a decided change took place. Resistance against suicide and against abortion became common. The Oath came to be popular. The emerging teachings of Christianity were in agreement with the Phthagorean ethic. The Oath 'became the nucleus of all medical ethics' and 'was applauded as the embodiment of truth.' Thus, suggests Dr. Edelstein, it is 'a Pythagorean manifesto and not the expression of an absolute standard of medical conduct.'19
39
This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath's apparent rigidity. It enables us to understand, in historical context, a long-accepted and reversed statement of medical ethics.
40
3. The common law. It is undisputed that at common law, abortion performed before 'quickening'-the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy20-was not an indictable offense.21 The absence of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became 'formed' or recognizably human, or in terms of when a 'person' came into being, that is, infused with a 'soul' or 'animated.' A loose concensus evolved in early English law that these events occurred at some point between conception and live birth.22 This was 'mediate animation.' Although Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas' definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country.
41
Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed. Bracton, writing early in the 13th century, thought it homicide.23 But the later and predominant view, following the great common-law scholars, has been that it was, at most, a lesser offense. In a frequently cited passage, Coke took the position that abortion of a woman 'quick with childe' is 'a great misprision, and no murder.'24 Blackstone followed, saying that while abortion after quickening had once been considered manslaughter (though not murder), 'modern law' took a less severe view.25 A recent review of the common-law precedents argues, however, that those precedents contradict Coke and that even post-quickening abortion was never established as a common-law crime.26 This is of some importance because while most American courts ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law,27 others followed Coke in stating that abortion of a quick fetus was a 'misprision,' a term they translated to mean 'misdemeanor.'28 That their reliance on Coke on this aspect of the law was uncritical and, apparently in all the reported cases, dictum (due probably to the paucity of common-law prosecutions for post-quickening abortion), makes it now appear doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.
42
4. The English statutory law. England's first criminal abortion statute, Lord Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick fetus, § 1, a capital crime, but in § 2 it provided lesser penalties for the felony of abortion before quickening, and thus preserved the 'quickening' distinction. This contrast was continued in the general revision of 1828, 9 Geo. 4, c. 31, § 13. It disappeared, however, together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85, § 6, and did not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, § 59, that formed the core of English anti-abortion law until the liberalizing reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was upon the destruction of 'the life of a child capable of being born alive.' It made a willful act performed with the necessary intent a felony. It contained a proviso that one was not to be found guilty of the offense 'unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.'
43
A seemingly notable development in the English law was the case of Rex v. Bourne, (1939) 1 K.B. 687. This case apparently answered in the affirmative the question whether an abortion necessary to preserve the life of the pregnant woman was excepted from the criminal penalties of the 1861 Act. In his instructions to the jury, Judge MacNaghten referred to the 1929 Act, and observed that that Act related to 'the case where a child is killed by a willful act at the time when it is being delivered in the ordinary course of nature.' Id., at 691. He concluded that the 1861 Act's use of the word 'unlawfully,' imported the same meaning expressed by the specific proviso in the 1929 Act, even though there was no mention of preserving the mother's life in the 1861 Act. He then construed the phrase 'preserving the life of the mother' broadly, that is, 'in a reasonable sense,' to include a serious and permanent threat to the mother's health, and instructed the jury to acquit Dr. Bourne if it found he had acted in a good-faith belief that the abortion was necessary for this purpose. Id., at 693-694. The jury did acquit.
44
Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an abortion where two other licensed physicians agree (a) 'that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated,' or (b) 'that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.' The Act also provides that, in making this determination, 'account may be taken of the pregnant woman's actual or reasonably foreseeable environment.' It also permits a physician, without the concurrence of others, to terminate a pregnancy where he is of the good-faith opinion that the abortion 'is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.'
45
5. The American law. In this country, the law in effect in all but a few States until mid-19th century was the pre-existing English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough's Act that related to a woman 'quick with child.'29 The death penalty was not imposed. Abortion before quickening was made a crime in that State only in 1860.30 In 1828, New York enacted legislation31 that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickend fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it '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.' By 1840, when Texas had received the common law,32 only eight American States had statutes dealing with abortion.33 It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening. Most punished attempts equally with completed abortions. While many statutes included the exception for an abortion thought by one or more physicians to be necessary to save the mother's life, that provision soon disappeared and the typical law required that the procedure actually be necessary for that purpose.
46
Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950's a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother.34 The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother's health.35 Three States permitted abortions that were not 'unlawfully' performed or that were not 'without lawful justification,' leaving interpretation of those standards to the courts.36 In the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws, most of them patterned after the ALI Model Penal Code, § 230.3,37 set forth as Appendix B to the opinion in Doe v. Bolton, 410 U.S. 205, 93 S.Ct. 754.
47
It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.
48
6. The position of the American Medical Association. The anti-abortion mood prevalent in this country in the late 19th century was shared by the medical profession. Indeed, the attitude of the profession may have played a significant role in the enactment of stringent criminal abortion legislation during that period.
49
An AMA Committee on Criminal Abortion was appointed in May 1857. It presented its report, 12 Trans. of the Am.Med.Assn. 73-78 (1859), to the Twelfth Annual Meeting. That report observed that the Committee had been appointed to investigate criminal abortion 'with a view to its general suppression.' It deplored abortion and its frequency and it listed three causes of 'this general demoralization':
50
'The first of these causes is a wide-spread popular ignorance of the true character of the crime-a belief, even among mothers themselves, that the foetus is not alive till after the period of quickening.
51
'The second of the agents alluded to is the fact that the profession themselves are frequently supposed careless of foetal life. . . .
52
'The third reason of the frightful extent of this crime is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas. With strange inconsistency, the law fully acknowledges the foetus in utero and its inherent rights, for civil purposes; while personally and as criminally affected, it fails to recognize it, and to its life as yet denies all protection.' Id., at 75-76.
53
The Committee then offered, and the Association adopted, resolutions protesting 'against such unwarrantable destruction of human life,' calling upon state legislatures to revise their abortion laws, and requesting the cooperation of state medical societies 'in pressing the subject.' Id., at 28, 78.
54
In 1871 a long and vivid report was submitted by the Committee on Criminal Abortion. It ended with the observation, 'We had to deal with human life. In a matter of less importance we could entertain no compromise. An honest judge on the bench would call things by their proper names. We could do no less.' 22 Trans. of the Am.Med.Assn. 258 (1871). It proffered resolutions, adopted by the Association, id., at 38-39, recommending, among other things, that it 'be unlawful and unprofessional for any physician to induce abortion or premature labor, without the concurrent opinion of at least one respectable consulting physician, and then always with a view to the safety of the child-if that be possible,' and calling 'the attention of the clergy of all denominations to the perverted views of morality entertained by a large class of females-aye, and men also, on this important question.'
55
Except for periodic condemnation of the criminal abortionist, no further formal AMA action took place until 1967. In that year, the Committee on Human Reproduction urged the adoption of a stated policy of opposition to induced abortion, except when there is 'documented medical evidence' of a threat to the health or life of the mother, or that the child 'may be born with incapacitating physical deformity or mental deficiency,' or that a pregnancy 'resulting from legally established statutory or forcible rape or incest may constitute a threat to the mental or physical health of the patient,' two other physicians 'chosen because of their recognized professional competency have examined the patient and have concurred in writing,' and the procedure 'is performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals.' The providing of medical information by physicians to state legislatures in their consideration of legislation regarding therapeutic abortion was 'to be considered consistent with the principles of ethics of the American Medical Association.' This recommendation was adopted by the House of Delegates. Proceedings of the AMA House of Delegates 40-51 (June 1967).
56
In 1970, after the introduction of a variety of proposed resolutions, and of a report from its Board of Trustees, a reference committee noted 'polarization of the medical profession on this controversial issue'; division among those who had testified; a difference of opinion among AMA councils and committees; 'the remarkable shift in testimony' in six months, felt to be influenced 'by the rapid changes in state laws and by the judicial decisions which tend to make abortion more freely available;' and a feeling 'that this trend will continue.' On June 25, 1970, the House of Delegates adopted preambles and most of the resolutions proposed by the reference committee. The preambles emphasized 'the best interests of the patient,' 'sound clinical judgment,' and 'informed patient consent,' in contrast to 'mere acquiescence to the patient's demand.' The resolutions asserted that abortion is a medical procedure that should be performed by a licensed physician in an accredited hospital only after consultation with two other physicians and in conformity with state law, and that no party to the procedure should be required to violate personally held moral principles.38 Proceedings of the AMA House of Delegates 220 (June 1970). The AMA Judicial Council rendered a complementary opinion.39
57
7. The position of the American Public Health Association. In October 1970, the Executive Board of the APHA adopted Standards for Abortion Services. These were five in number:
58
'a. Rapid and simple abortion referral must be readily available through state and local public health departments, medical societies, or other non-profit organizations.
59
'b. An important function of counseling should be to simplify and expedite the provision of abortion services; if should not delay the obtaining of these services.
60
'c. Psychiatric consultation should not be mandatory. As in the case of other specialized medical services, psychiatric consultation should be sought for definite indications and not on a routine basis.
61
'd. A wide range of individuals from appropriately trained, sympathetic volunteers to highly skilled physicians may qualify as abortion counselors.
62
'e. Contraception and/or sterilization should be discussed with each abortion patient.' Recommended Standards for Abortion Services, 61 Am.J.Pub.Health 396 (1971).
63
Among factors pertinent to life and health risks associated with abortion were three that 'are recognized as important':
64
'a. the skill of the physician,
65
'b. the environment in which the abortion is performed, and above all
66
'c. The duration of pregnancy, as determined by uterine size and confirmed by menstrual history.' Id., at 397.
67
It was said that 'a well-equipped hospital' offers more protection 'to cope with unforeseen difficulties than an office or clinic without such resources. . . . The factor of gestational age is of overriding importance.' Thus, it was recommended that abortions in the second trimester and early abortions in the presence of existing medical complications be performed in hospitals as inpatient procedures. For pregnancies in the first trimester, abortion in the hospital with or without overnight stay 'is probably the safest practice.' An abortion in an extramural facility, however, is an acceptable alternative 'provided arrangements exist in advance to admit patients promptly if unforeseen complications develop.' Standards for an abortion facility were listed. It was said that at present abortions should be performed by physicians or osteopaths who are licensed to practice and who have 'adequate training.' Id., at 398.
68
8. The position of the American Bar Association. At its meeting in February 1972 the ABA House of Delegates approved, with 17 opposing votes, the Uniform Abortion Act that had been drafted and approved the preceding August by the Conference of Commissioners on Uniform State Laws. 58 A.B.A.J. 380 (1972). We set forth the Act in full in the margin.40 The Conference has appended an enlightening Prefatory Note.41
VII
69
Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.
70
It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously.42 The appellants and amici contend, moreover, that this is not a proper state purpose at all and suggest that, if it were, the Texas statutes are overbroad in protecting it since the law fails to distinguish between married and unwed mothers.
71
A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman.43 This was particularly true prior to the development of antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister, Pasteur, and others first announced in 1867, but were not generally accepted and employed until about the turn of the century. Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940's, standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been argued that a State's real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.
72
Modern medical techniques have altered this situation. Appellants and various amici refer to medical data indicating that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth.44 Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain. The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal 'abortion mills' strengthens, rather than weakens, the State's interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman's own health and safety when an abortion is proposed at a late stage of pregnancy,
73
The third reason is the State's interest-some phrase it in terms of duty-in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception.45 The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to life birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.
74
Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life.46 Pointing to the absence of legislative history to support the contention, they claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws can no longer be justified by any state interest. There is some scholarly support for this view of original purpose.47 The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State's interest in protecting the woman's health rather than in preserving the embryo and fetus.48 Proponents of this view point out that in many States, including Texas,49 by statute or judicial interpretation, the pregnant woman herself could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another.50 They claim that adoption of the 'quickening' distinction through received common law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception.
75
It is with these interests, and the weight to be attached to them, that this case is concerned.
VIII
76
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868, 1872-1873, 20 L.Ed.2d 889 (1968), Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 510, 19 L.Ed.2d 576 (1967); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), see Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485, 85 S.Ct., at 1681-1682; in the Ninth Amendment, id., at 486, 85 S.Ct. at 1682 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). These decisions make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542, 62 S.Ct. 1110, 1113-1114, 86 L.Ed. 1655 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454, 92 S.Ct., at 1038-1039; id., at 460, 463465, 92 S.Ct. at 1042, 1043-1044 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925), Meyer v. Nebraska, supra.
77
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
78
On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905) (vaccination); Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927) (sterilization).
79
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.
80
We note that those federal and state courts that have recently considered abortion law challenges have reached the same conclusion. A majority, in addition to the District Court in the present case, have held state laws unconstitutional, at least in part, because of vagueness or because of overbreadth and abridgment of rights. Abele v. Markle, 342 F.Supp. 800 (D.C.Conn.1972), appeal docketed, No. 72-56; Abele v. Markle, 351 F.Supp. 224 (D.C.Conn.1972), appeal docketed, No. 72-730; Doe v. Bolton, 319 F.Supp. 1048 (N.D.Ga.1970), appeal decided today, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201; Doe v. Scott, 321 F.Supp. 1385 (N.D.Ill.1971), appeal docketed, No. 70-105; Poe v. Menghini, 339 F.Supp. 986 (D.C.Kan.1972); YWCA v. Kugler, 342 F.Supp. 1048 (D.C.N.J.1972); Babbitz v. McCann, 310 F.Supp. 293 (E.D.Wis.1970), appeal dismissed, 400 U.S. 1, 91 S.Ct. 12, 27 L.Ed.2d 1 (1970); People v. Belous, 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194 (1969), cert. denied, 397 U.S. 915, 90 S.Ct. 920, 25 L.Ed.2d 96 (1970); State v. Barquet, 262 So.2d 431 (Fla.1972).
81
Others have sustained state statutes. Crossen v. Attorney General, 344 F.Supp. 587 (E.D.Ky.1972), appeal docketed, No. 72-256; Rosen v. Louisiana State Board of Medical Examiners, 318 F.Supp. 1217 (E.D.La.1970), appeal docketed, No. 70-42; Corkey v. Edwards, 322 F.Supp. 1248 (W.D.N.C.1971), appeal docketed, No. 71-92; Steinberg v. Brown, 321 F.Supp. 741 (N.D.Ohio 1970); Doe v. Rampton, 366 F.Supp. 189 (Utah 1971), appeal docketed, No. 71-5666; Cheaney v. State, Ind., 285 N.E.2d 265 (1972); Spears v. State, 257 So.2d 876 (Miss.1972); State v. Munson, S.D., 201 N.W.2d 123 (1972), appeal docketed, No. 72-631.
82
Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.
83
Where certain 'fundamental rights' are involved, the Court has held that regulation limiting these rights may be justified only by a 'compelling state interest,' Kramer v. Union Free School District, 395 U.S. 621, 627, 89 S.Ct. 1886, 1890, 23 L.Ed.2d 583 (1969); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969); Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963), and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. Griswold v. Connecticut, 381 U.S., at 485, 85 S.Ct., at 1682; Aptheker v. Secretary of State, 378 U.S. 500, 508, 84 S.Ct. 1659, 1664, 12 L.Ed.2d 992 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307-308, 60 S.Ct. 900, 904-905, 84 L.Ed. 1213 (1940); see Eisenstadt v. Baird, 405 U.S., at 460, 463-464, 92 S.Ct., at 1042, 1043-1044 (White, J., concurring in result).
84
In the recent abortion cases, cited above, courts have recognized these principles. Those striking down state laws have generally scrutinized the State's interests in protecting health and potential life, and have concluded that neither interest justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy. Courts sustaining state laws have held that the State's determinations to protect health or prenatal life are dominant and constitutionally justifiable.
IX
85
The District Court held that the appellee failed to meet his burden of demonstrating that the Texas statute's infringement upon Roe's rights was necessary to support a compelling state interest, and that, although the appellee presented 'several compelling justifications for state presence in the area of abortions,' the statutes outstripped these justifications and swept 'far beyond any areas of compelling state interest.' 314 F.Supp., at 1222-1223. Appellant and appellee both contest that holding. Appellant, as has been indicated, claims an absolute right that bars any state imposition of criminal penalties in the area. Appellee argues that the State's determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation.
86
A. The appellee and certain amici argue that the fetus is a 'person' within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument.51 On the other hand, the appellee conceded on reargument52 that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.
87
The Constitution does not define 'person' in so many words. Section 1 of the Fourteenth Amendment contains three references to 'person.' The first, in defining 'citizens,' speaks of 'persons born or naturalized in the United States.' The word also appears both in the Due Process Clause and in the Equal Protection Clause. 'Person' is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art, I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3;53 in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emoulument Clause, Art, I, § 9, cl. 8; in the Electros provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application.54
88
All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn.55 This is in accord with the results reached in those few cases where the issue has been squarely presented. McGarvey v. Magee-Womens Hospital, 340 F.Supp. 751 (W.D.Pa.1972); Byrn v. New York City Health & Hospitals Corp., 31 N.Y.2d 194, 335 N.Y.S.2d 390, 286 N.E.2d 887 (1972), appeal docketed, No. 72-434; Abele v. Markle, 351 F.Supp. 224 (D.C.Conn.1972), appeal dockete
Can anybody locate the language in the constitution pertaining to abortion? Can't seem to find it.
guys, if i keep it private that i murdered someone, it's my right to privacy
let me help u out here
410 U.S. 113
93 S.Ct. 705
35 L.Ed.2d 147
Jane ROE, et al., Appellants,
v.
Henry WADE.
No. 70-18.
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. 1409.
Syllabus
A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene. A childless married couple (the Does), the wife not being pregnant, separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health. A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justiciable controversies. Ruling that declaratory, though not injunctive, relief was warranted, the court declared the abortion statutes void as vague and overbroadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does' complaint not justiciable. Appellants directly appealed to this Court on the injunctive rulings, and appellee cross-appealed from the District Court's grant of declaratory relief to Roe and Hallford. Held:
1. While 28 U.S.C. § 1253 authorizes no direct appeal to this Court from the grant or denial of declaratory relief alone, review is not foreclose when the case is properly before the Court on appeal from specific denial of injunctive relief and the arguments as to both injunctive and declaratory relief are necessarily identical. P. 123.
2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129.
(a) Contrary to appellee's contention, the natural termination of Roe's pregnancy did not moot her suit. Litigation involving pregnancy, which is 'capable of repetition, yet evading review,' is an exception to the usual federal rule that an actual controversy must exist at review stages and not simply when the action is initiated. Pp. 124-125.
(b) The District Court correctly refused injunctive, but erred in granting declaratory, relief to Hallford, who alleged no federally protected right not assertable as a defense against the good-faith state prosecutions pending against him. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688. Pp. 125-127.
(c) The Does' complaint, based as it is on contingencies, any one or more of which may not occur, is too speculative to present an actual case or controversy. Pp. 127-129.
3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a 'compelling' point at various stages of the woman's approach to term. Pp. 147-164.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. Pp. 163-164.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Pp. 163-164.
(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 163-164; 164—165.
4. The State may define the term 'physician' to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. P. 165.
5. It is unnecessary to decide the injunctive relief issue since the Texas authorities will doubtless fully recognize the Court's ruling that the Texas criminal abortion statutes are unconstitutional. P. 166.
314 F.Supp. 1217, affirmed in part and reversed in part.
Sarah R. Weddington, Austin, Tex., for appellants.
Robert C. Flowers, Asst. Atty. Gen. of Texas, Austin, Tex., for appellee on reargument.
Jay Floyd, Asst. Atty. Gen., Austin, Tex., for appellee on original argument.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This Texas federal appeal and its Georgia companion, Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue.
2
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.
3
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.
4
Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes' admonition in his now-vindicated dissent in Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 547, 49 L.Ed. 937 (1905):
5
'(The Constitution) is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.'
6
* The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's Penal Code,1 Vernon's Ann.P.C. These make it a crime to 'procure an abortion,' as therein defined, or to attempt one, except with respect to 'an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.' Similar statutes are in existence in a majority of the States.2
7
Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49, § 1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon modified into language that has remained substantially unchanged to the present time. See Texas Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal, Laws of Texas, Arts. 2192-2197 (1866); Texas Rev.Stat., c. 8, Arts. 536-541 (1879); Texas Rev.Crim.Stat., Arts. 1071-1076 (1911). The final article in each of these compilations provided the same exception, as does the present Article 1196, for an abortion by 'medical advice for the purpose of saving the life of the mother.'3
II
8
Jane Roe,4 a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes.
9
Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion 'performed by a competent, licensed physician, under safe, clinical conditions'; that she was unable to get a 'legal' abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint Roe purported to sue 'on behalf of herself and all other women' similarly situated.
10
James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe's action. In his complaint he alleged that he had been arrested previously for violations of the Texas abortion statutes and that two such prosecutions were pending against him. He described conditions of patients who came to him seeking abortions, and he claimed that for many cases he, as a physician, was unable to determine whether they fell within or outside the exception recognized by Article 1196. He alleged that, as a consequence, the statutes were vague and uncertain, in violation of the Fourteenth Amendment, and that they violated his own and his patients' rights to privacy in the doctor-patient relationship and his own right to practice medicine, rights he claimed were guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
11
John and Mary Doe,5 a married couple, filed a companion complaint to that of Roe. They also named the District Attorney as defendant, claimed like constitutional deprivations, and sought declaratory and injunctive relief. The Does alleged that they were a childless couple; that Mrs. Doe was suffering from a 'neural-chemical' disorder; that her physician had 'advised her to avoid pregnancy until such time as her condition has materially improved' (although a pregnancy at the present time would not present 'a serious risk' to her life); that, pursuant to medical advice, she had discontinued use of birth control pills; and that if she should become pregnant, she would want to terminate the pregnancy by an abortion performed by a competent, licensed physician under safe, clinical conditions. By an amendment to their complaint, the Does purported to sue 'on behalf of themselves and all couples similarly situated.'
12
The two actions were consolidated and heard together by a duly convened three-judge district court. The suits thus presented the situations of the pregnant single woman, the childless couple, with the wife not pregnant, and the licensed practicing physician, all joining in the attack on the Texas criminal abortion statutes. Upon the filing of affidavits, motions were made for dismissal and for summary judgment. The court held that Roe and members of her class, and Dr. Hallford, had standing to sue and presented justiciable controversies, but that the Does had failed to allege facts sufficient to state a present controversy and did not have standing. It concluded that, with respect to the requests for a declaratory judgment, abstention was not warranted. On the merits, the District Court held that the 'fundamental right of single women and married persons to choose where to have children is protected by the Ninth Amendment, through the Fourteenth Amendment,' and that the Texas criminal abortion statutes were void on their face because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs' Ninth Amendment rights. The court then held that abstention was warranted with respect to the requests for an injunction. It therefore dismissed the Does' complaint, declared the abortion statutes void, and dismissed the application for injunctive relief. 314 F.Supp. 1217, 1225 (N.D.Tex.1970).
13
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C. § 1253, have appealed to this Court from that part of the District Court's judgment denying the injunction. The defendant District Attorney has purported to cross-appeal, pursuant to the same statute, from the court's grant of declaratory relief to Roe and Hallford. Both sides also have taken protective appeals to the United States Court of Appeals for the Fifth Circuit. That court ordered the appeals held in abeyance pending decision here. We postponed decision on jurisdiction to the hearing on the merits. 402 U.S. 941, 91 S.Ct. 1610, 29 L.Ed. 108 (1971).
III
14
It might have been preferable if the defendant, pursuant to our Rule 20, had presented to us a petition for certiorari before judgment in the Court of Appeals with respect to the granting of the plaintiffs' prayer for declaratory relief. Our decisions in Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970), and Gunn v. University Committee, 399 U.S. 383, 90 S.Ct. 2013, 26 L.Ed.2d 684 (1970), are to the effect that § 1253 does not authorize an appeal to this Court from the grant or denial of declaratory relief alone. We conclude, nevertheless, that those decisions do not foreclose our review of both the injunctive and the declaratory aspects of a case of this kind when it is property here, as this one is, on appeal under § 1253 from specific denial of injunctive relief, and the arguments as to both aspects are necessarily identical. See Carter v. Jury Comm'n, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Florida Lime and Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73; 80-81, 80 S.Ct. 568, 573-574, 4 L.Ed.2d 568 (1960). It would be destructive of time and energy for all concerned were we to rule otherwise. Cf. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201.
IV
15
We are next confronted with issues of justiciability, standing, and abstention. Have Roe and the Does established that 'personal stake in the outcome of the controversy,' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), that insures that 'the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution,' Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972)? And what effect did the pendency of criminal abortion charges against Dr. Hallford in state court have upon the propriety of the federal court's granting relief to him as a plaintiff-intervenor? A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe is a fictitious person. For purposes of her case, we accept as true, and as established, her existence; her pregnant state, as of the inception of her suit in March 1970 and as late as May 21 of that year when she filed an alias affidavit with the District Court; and her inability to obtain a legal abortion in Texas.
16
Viewing Roe's case as of the time of its filing and thereafter until as late as May, there can be little dispute that it then presented a case or controversy and that, wholly apart from the class aspects, she, as a pregnant single woman thwarted by the Texas criminal abortion laws, had standing to challenge those statutes. Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971); Crossen v. Breckenridge, 446 F.2d 833, 8380-839 (CA6 1971); Poe v. Menghini, 339 F.Supp. 986, 990-991 (D.C.Kan. 1972). See Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1951). Indeed, we do not read the appellee's brief as really asserting anything to the contrary. The 'logical nexus between the status asserted and the claim sought to be adjudicated,' Flast v. Cohen, 392 U.S., at 102, 88 S.Ct., at 1953, and the necessary degree of contentiousness, Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), are both present.
17
The appellee notes, however, that the record does not disclose that Roe was pregnant at the time of the District Court hearing on May 22, 1970,6 or on the following June 17 when the court's opinion and judgment were filed. And he suggests that Roe's case must now be moot because she and all other members of her class are no longer subject to any 1970 pregnancy.
18
The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950); Golden v. Zwickler, supra; SEC v. Medical Committee for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972).
19
But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be 'capable of repetition, yet evading review.' Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969); Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 178-179, 89 S.Ct. 347, 350, 351, 21 L.Ed.2d 325 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 897-898, 97 L.Ed. 1303 (1953).
20
We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot.
21
B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation as a plaintiff-intervenor, alleging in his complaint that he:
22
'(I)n the past has been arrested for violating the Texas Abortion Laws and at the present time stands charged by indictment with violating said laws in the Criminal District Court of Dallas County, Texas to-wit: (1) The State of Texas vs.
23
James H. Hallford, No. C-69-5307-IH, and (2) The State of Texas vs. James H. Hallford, No. C-69-2524-H. In both cases the defendant is charged with abortion . . .'
24
In his application for leave to intervene, the doctor made like representations as to the abortion charges pending in the state court. These representations were also repeated in the affidavit he executed and filed in support of his motion for summary judgment.
25
Dr. Hallford is, therefore, in the position of seeking, in a federal court, declaratory and injunctive relief with respect to the same statutes under which he stands charged in criminal prosecutions simultaneously pending in state court. Although he stated that he has been arrested in the past for violating the State's abortion laws, he makes no allegation of any substantial and immediate threat to any federally protected right that cannot be asserted in his defense against the state prosecutions. Neither is there any allegation of harassment or bad-faith prosecution. In order to escape the rule articulated in the cases cited in the next paragraph of this opinion that, absent harassment and bad faith, a defendant in a pending state criminal case cannot affirmatively challenge in federal court the statutes under which the State is prosecuting him, Dr. Hallford seeks to distinguish his status as a present state defendant from his status as a 'potential future defendant' and to assert only the latter for standing purposes here.
26
We see no merit in that distinction. Our decision in Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), compels the conclusion that the District Court erred when it granted declaratory relief to Dr. Hallford instead of refraining from so doing. The court, of course, was correct in refusing to grant injunctive relief to the doctor. The reasons supportive of that action, however, are those expressed in Samuels v. Mackell, supra, and in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); and Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971). See also Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). We note, in passing, that Younger and its companion cases were decided after the three-judge District Court decision in this case.
27
Dr. Hallford's complaint in intervention, therefore, is to be dismissed.7 He is remitted to his defenses in the state criminal proceedings against him. We reverse the judgment of the District Court insofar as it granted Dr. Hallford relief and failed to dismiss his complaint in intervention.
28
C. The Does. In view of our ruling as to Roe's standing in her case, the issue of the Does' standing in their case has little significance. The claims they assert are essentially the same as those of Roe, and they attack the same statutes. Nevertheless, we briefly note the Does' posture.
29
Their pleadings present them as a childless married couple, the woman not being pregnant, who have no desire to have children at this time because of their having received medical advice that Mrs. Doe should avoid pregnancy, and for 'other highly personal reasons.' But they 'fear . . . they may face the prospect of becoming parents.' And if pregnancy ensues, they 'would want to terminate' it by an abortion. They assert an inability to obtain an abortion legally in Texas and, consequently, the prospect of obtaining an illegal abortion there or of going outside Texas to some place where the procedure could be obtained legally and competently.
30
We thus have as plaintiffs a married couple who have, as their asserted immediate and present injury, only an alleged 'detrimental effect upon (their) marital happiness' because they are forced to 'the choice of refraining from normal sexual relations or of endangering Mary Doe's health through a possible pregnancy.' Their claim is that sometime in the future Mrs. Doe might become pregnant because of possible failure of contraceptive measures, and at that time in the future she might want an abortion that might then be illegal under the Texas statutes.
31
This very phrasing of the Does' position reveals its speculative character. Their alleged injury rests on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health. Any one or more of these several possibilities may not take place and all may not combine. In the Does' estimation, these possibilities might have some real or imagined impact upon their marital happiness. But we are not prepared to say that the bare allegation of so indirect an injury is sufficient to present an actual case or controversy. Younger v. Harris, 401 U.S., at 41-42, 91 S.Ct., at 749; Golden v. Zwickler, 394 U.S., at 109-110, 89 S.Ct., at 960; Abele v. Markle, 452 F.2d, at 1124-1125; Crossen v. Breckenridge, 446 F.2d, at 839. The Does' claim falls far short of those resolved otherwise in the cases that the Does urge upon us, namely, investment Co. Institute v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); and Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). See also Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915).
32
The Does therefore are not appropriate plaintiffs in this litigation. Their complaint was properly dismissed by the District Court, and we affirm that dismissal.
V
33
The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal 'liberty' embodied in the Fourteenth Amendment's Due Process Clause; or in personal marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id., at 460, 92 S.Ct. 1029, at 1042, 31 L.Ed.2d 349 (White, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S., at 486, 85 S.Ct., at 1682 (Goldberg, J., concurring). Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws.
VI
34
It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman's life, are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.
35
1. Ancient attitudes. These are not capable of precise determination. We are told that at the time of the Persian Empire abortifacients were known and that criminal abortions were severely punished.8 We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era,9 and that 'it was resorted to without scruple.'10 The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome's prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable.11 Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father's right to his offspring. Ancient religion did not bar abortion.12
36
2. The Hippocratic Oath. What then of the famous Oath that has stood so long as the ethical guide of the medical profession and that bears the name of the great Greek (460(?)-377(?) B.C.), who has been described as the Father of Medicine, the 'wisest and the greatest practitioner of his art,' and the 'most important and most complete medical personality of antiquity,' who dominated the medical schools of his time, and who typified the sum of the medical knowledge of the past?13 The Oath varies somewhat according to the particular translation, but in any translation the content is clear: 'I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion,'14 or 'I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy.'15
37
Although the Oath is not mentioned in any of the principal briefs in this case or in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, it represents the apex of the development of strict ethical concepts in medicine, and its influence endures to this day. Why did not the authority of Hippocrates dissuade abortion practice in his time and that of Rome? The late Dr. Edelstein provides us with a theory:16 The Oath was not uncontested even in Hippocrates' day; only the Pythagorean school of philosophers frowned upon the related act of suicide. Most Greek thinkers, on the other hand, commended abortion, at least prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however, it was a matter of dogma. For them the embryo was animate from the moment of conception, and abortion meant destruction of a living being. The abortion clause of the Oath, therefore, 'echoes Pythagorean doctrines,' and '(i)n no other stratum of Greek opinion were such views held or proposed in the same spirit of uncompromising austerity.'17
38
Dr. Edelstein then concludes that the Oath originated in a group representing only a small segment of Greek opinion and that it certainly was not accepted by all ancient physicians. He points out that medical writings down to Galen (A.D. 130-200) 'give evidence of the violation of almost every one of its injunctions.'18 But with the end of antiquity a decided change took place. Resistance against suicide and against abortion became common. The Oath came to be popular. The emerging teachings of Christianity were in agreement with the Phthagorean ethic. The Oath 'became the nucleus of all medical ethics' and 'was applauded as the embodiment of truth.' Thus, suggests Dr. Edelstein, it is 'a Pythagorean manifesto and not the expression of an absolute standard of medical conduct.'19
39
This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath's apparent rigidity. It enables us to understand, in historical context, a long-accepted and reversed statement of medical ethics.
40
3. The common law. It is undisputed that at common law, abortion performed before 'quickening'-the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy20-was not an indictable offense.21 The absence of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became 'formed' or recognizably human, or in terms of when a 'person' came into being, that is, infused with a 'soul' or 'animated.' A loose concensus evolved in early English law that these events occurred at some point between conception and live birth.22 This was 'mediate animation.' Although Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas' definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country.
41
Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed. Bracton, writing early in the 13th century, thought it homicide.23 But the later and predominant view, following the great common-law scholars, has been that it was, at most, a lesser offense. In a frequently cited passage, Coke took the position that abortion of a woman 'quick with childe' is 'a great misprision, and no murder.'24 Blackstone followed, saying that while abortion after quickening had once been considered manslaughter (though not murder), 'modern law' took a less severe view.25 A recent review of the common-law precedents argues, however, that those precedents contradict Coke and that even post-quickening abortion was never established as a common-law crime.26 This is of some importance because while most American courts ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law,27 others followed Coke in stating that abortion of a quick fetus was a 'misprision,' a term they translated to mean 'misdemeanor.'28 That their reliance on Coke on this aspect of the law was uncritical and, apparently in all the reported cases, dictum (due probably to the paucity of common-law prosecutions for post-quickening abortion), makes it now appear doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.
42
4. The English statutory law. England's first criminal abortion statute, Lord Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick fetus, § 1, a capital crime, but in § 2 it provided lesser penalties for the felony of abortion before quickening, and thus preserved the 'quickening' distinction. This contrast was continued in the general revision of 1828, 9 Geo. 4, c. 31, § 13. It disappeared, however, together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85, § 6, and did not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, § 59, that formed the core of English anti-abortion law until the liberalizing reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was upon the destruction of 'the life of a child capable of being born alive.' It made a willful act performed with the necessary intent a felony. It contained a proviso that one was not to be found guilty of the offense 'unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.'
43
A seemingly notable development in the English law was the case of Rex v. Bourne, (1939) 1 K.B. 687. This case apparently answered in the affirmative the question whether an abortion necessary to preserve the life of the pregnant woman was excepted from the criminal penalties of the 1861 Act. In his instructions to the jury, Judge MacNaghten referred to the 1929 Act, and observed that that Act related to 'the case where a child is killed by a willful act at the time when it is being delivered in the ordinary course of nature.' Id., at 691. He concluded that the 1861 Act's use of the word 'unlawfully,' imported the same meaning expressed by the specific proviso in the 1929 Act, even though there was no mention of preserving the mother's life in the 1861 Act. He then construed the phrase 'preserving the life of the mother' broadly, that is, 'in a reasonable sense,' to include a serious and permanent threat to the mother's health, and instructed the jury to acquit Dr. Bourne if it found he had acted in a good-faith belief that the abortion was necessary for this purpose. Id., at 693-694. The jury did acquit.
44
Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an abortion where two other licensed physicians agree (a) 'that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated,' or (b) 'that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.' The Act also provides that, in making this determination, 'account may be taken of the pregnant woman's actual or reasonably foreseeable environment.' It also permits a physician, without the concurrence of others, to terminate a pregnancy where he is of the good-faith opinion that the abortion 'is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.'
45
5. The American law. In this country, the law in effect in all but a few States until mid-19th century was the pre-existing English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough's Act that related to a woman 'quick with child.'29 The death penalty was not imposed. Abortion before quickening was made a crime in that State only in 1860.30 In 1828, New York enacted legislation31 that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickend fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it '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.' By 1840, when Texas had received the common law,32 only eight American States had statutes dealing with abortion.33 It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening. Most punished attempts equally with completed abortions. While many statutes included the exception for an abortion thought by one or more physicians to be necessary to save the mother's life, that provision soon disappeared and the typical law required that the procedure actually be necessary for that purpose.
46
Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950's a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother.34 The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother's health.35 Three States permitted abortions that were not 'unlawfully' performed or that were not 'without lawful justification,' leaving interpretation of those standards to the courts.36 In the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws, most of them patterned after the ALI Model Penal Code, § 230.3,37 set forth as Appendix B to the opinion in Doe v. Bolton, 410 U.S. 205, 93 S.Ct. 754.
47
It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.
48
6. The position of the American Medical Association. The anti-abortion mood prevalent in this country in the late 19th century was shared by the medical profession. Indeed, the attitude of the profession may have played a significant role in the enactment of stringent criminal abortion legislation during that period.
49
An AMA Committee on Criminal Abortion was appointed in May 1857. It presented its report, 12 Trans. of the Am.Med.Assn. 73-78 (1859), to the Twelfth Annual Meeting. That report observed that the Committee had been appointed to investigate criminal abortion 'with a view to its general suppression.' It deplored abortion and its frequency and it listed three causes of 'this general demoralization':
50
'The first of these causes is a wide-spread popular ignorance of the true character of the crime-a belief, even among mothers themselves, that the foetus is not alive till after the period of quickening.
51
'The second of the agents alluded to is the fact that the profession themselves are frequently supposed careless of foetal life. . . .
52
'The third reason of the frightful extent of this crime is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas. With strange inconsistency, the law fully acknowledges the foetus in utero and its inherent rights, for civil purposes; while personally and as criminally affected, it fails to recognize it, and to its life as yet denies all protection.' Id., at 75-76.
53
The Committee then offered, and the Association adopted, resolutions protesting 'against such unwarrantable destruction of human life,' calling upon state legislatures to revise their abortion laws, and requesting the cooperation of state medical societies 'in pressing the subject.' Id., at 28, 78.
54
In 1871 a long and vivid report was submitted by the Committee on Criminal Abortion. It ended with the observation, 'We had to deal with human life. In a matter of less importance we could entertain no compromise. An honest judge on the bench would call things by their proper names. We could do no less.' 22 Trans. of the Am.Med.Assn. 258 (1871). It proffered resolutions, adopted by the Association, id., at 38-39, recommending, among other things, that it 'be unlawful and unprofessional for any physician to induce abortion or premature labor, without the concurrent opinion of at least one respectable consulting physician, and then always with a view to the safety of the child-if that be possible,' and calling 'the attention of the clergy of all denominations to the perverted views of morality entertained by a large class of females-aye, and men also, on this important question.'
55
Except for periodic condemnation of the criminal abortionist, no further formal AMA action took place until 1967. In that year, the Committee on Human Reproduction urged the adoption of a stated policy of opposition to induced abortion, except when there is 'documented medical evidence' of a threat to the health or life of the mother, or that the child 'may be born with incapacitating physical deformity or mental deficiency,' or that a pregnancy 'resulting from legally established statutory or forcible rape or incest may constitute a threat to the mental or physical health of the patient,' two other physicians 'chosen because of their recognized professional competency have examined the patient and have concurred in writing,' and the procedure 'is performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals.' The providing of medical information by physicians to state legislatures in their consideration of legislation regarding therapeutic abortion was 'to be considered consistent with the principles of ethics of the American Medical Association.' This recommendation was adopted by the House of Delegates. Proceedings of the AMA House of Delegates 40-51 (June 1967).
56
In 1970, after the introduction of a variety of proposed resolutions, and of a report from its Board of Trustees, a reference committee noted 'polarization of the medical profession on this controversial issue'; division among those who had testified; a difference of opinion among AMA councils and committees; 'the remarkable shift in testimony' in six months, felt to be influenced 'by the rapid changes in state laws and by the judicial decisions which tend to make abortion more freely available;' and a feeling 'that this trend will continue.' On June 25, 1970, the House of Delegates adopted preambles and most of the resolutions proposed by the reference committee. The preambles emphasized 'the best interests of the patient,' 'sound clinical judgment,' and 'informed patient consent,' in contrast to 'mere acquiescence to the patient's demand.' The resolutions asserted that abortion is a medical procedure that should be performed by a licensed physician in an accredited hospital only after consultation with two other physicians and in conformity with state law, and that no party to the procedure should be required to violate personally held moral principles.38 Proceedings of the AMA House of Delegates 220 (June 1970). The AMA Judicial Council rendered a complementary opinion.39
57
7. The position of the American Public Health Association. In October 1970, the Executive Board of the APHA adopted Standards for Abortion Services. These were five in number:
58
'a. Rapid and simple abortion referral must be readily available through state and local public health departments, medical societies, or other non-profit organizations.
59
'b. An important function of counseling should be to simplify and expedite the provision of abortion services; if should not delay the obtaining of these services.
60
'c. Psychiatric consultation should not be mandatory. As in the case of other specialized medical services, psychiatric consultation should be sought for definite indications and not on a routine basis.
61
'd. A wide range of individuals from appropriately trained, sympathetic volunteers to highly skilled physicians may qualify as abortion counselors.
62
'e. Contraception and/or sterilization should be discussed with each abortion patient.' Recommended Standards for Abortion Services, 61 Am.J.Pub.Health 396 (1971).
63
Among factors pertinent to life and health risks associated with abortion were three that 'are recognized as important':
64
'a. the skill of the physician,
65
'b. the environment in which the abortion is performed, and above all
66
'c. The duration of pregnancy, as determined by uterine size and confirmed by menstrual history.' Id., at 397.
67
It was said that 'a well-equipped hospital' offers more protection 'to cope with unforeseen difficulties than an office or clinic without such resources. . . . The factor of gestational age is of overriding importance.' Thus, it was recommended that abortions in the second trimester and early abortions in the presence of existing medical complications be performed in hospitals as inpatient procedures. For pregnancies in the first trimester, abortion in the hospital with or without overnight stay 'is probably the safest practice.' An abortion in an extramural facility, however, is an acceptable alternative 'provided arrangements exist in advance to admit patients promptly if unforeseen complications develop.' Standards for an abortion facility were listed. It was said that at present abortions should be performed by physicians or osteopaths who are licensed to practice and who have 'adequate training.' Id., at 398.
68
8. The position of the American Bar Association. At its meeting in February 1972 the ABA House of Delegates approved, with 17 opposing votes, the Uniform Abortion Act that had been drafted and approved the preceding August by the Conference of Commissioners on Uniform State Laws. 58 A.B.A.J. 380 (1972). We set forth the Act in full in the margin.40 The Conference has appended an enlightening Prefatory Note.41
VII
69
Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.
70
It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously.42 The appellants and amici contend, moreover, that this is not a proper state purpose at all and suggest that, if it were, the Texas statutes are overbroad in protecting it since the law fails to distinguish between married and unwed mothers.
71
A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman.43 This was particularly true prior to the development of antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister, Pasteur, and others first announced in 1867, but were not generally accepted and employed until about the turn of the century. Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940's, standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been argued that a State's real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.
72
Modern medical techniques have altered this situation. Appellants and various amici refer to medical data indicating that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth.44 Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain. The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal 'abortion mills' strengthens, rather than weakens, the State's interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman's own health and safety when an abortion is proposed at a late stage of pregnancy,
73
The third reason is the State's interest-some phrase it in terms of duty-in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception.45 The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to life birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.
74
Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life.46 Pointing to the absence of legislative history to support the contention, they claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws can no longer be justified by any state interest. There is some scholarly support for this view of original purpose.47 The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State's interest in protecting the woman's health rather than in preserving the embryo and fetus.48 Proponents of this view point out that in many States, including Texas,49 by statute or judicial interpretation, the pregnant woman herself could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another.50 They claim that adoption of the 'quickening' distinction through received common law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception.
75
It is with these interests, and the weight to be attached to them, that this case is concerned.
VIII
76
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868, 1872-1873, 20 L.Ed.2d 889 (1968), Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 510, 19 L.Ed.2d 576 (1967); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), see Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485, 85 S.Ct., at 1681-1682; in the Ninth Amendment, id., at 486, 85 S.Ct. at 1682 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). These decisions make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542, 62 S.Ct. 1110, 1113-1114, 86 L.Ed. 1655 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454, 92 S.Ct., at 1038-1039; id., at 460, 463465, 92 S.Ct. at 1042, 1043-1044 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925), Meyer v. Nebraska, supra.
77
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
78
On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905) (vaccination); Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927) (sterilization).
79
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.
80
We note that those federal and state courts that have recently considered abortion law challenges have reached the same conclusion. A majority, in addition to the District Court in the present case, have held state laws unconstitutional, at least in part, because of vagueness or because of overbreadth and abridgment of rights. Abele v. Markle, 342 F.Supp. 800 (D.C.Conn.1972), appeal docketed, No. 72-56; Abele v. Markle, 351 F.Supp. 224 (D.C.Conn.1972), appeal docketed, No. 72-730; Doe v. Bolton, 319 F.Supp. 1048 (N.D.Ga.1970), appeal decided today, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201; Doe v. Scott, 321 F.Supp. 1385 (N.D.Ill.1971), appeal docketed, No. 70-105; Poe v. Menghini, 339 F.Supp. 986 (D.C.Kan.1972); YWCA v. Kugler, 342 F.Supp. 1048 (D.C.N.J.1972); Babbitz v. McCann, 310 F.Supp. 293 (E.D.Wis.1970), appeal dismissed, 400 U.S. 1, 91 S.Ct. 12, 27 L.Ed.2d 1 (1970); People v. Belous, 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194 (1969), cert. denied, 397 U.S. 915, 90 S.Ct. 920, 25 L.Ed.2d 96 (1970); State v. Barquet, 262 So.2d 431 (Fla.1972).
81
Others have sustained state statutes. Crossen v. Attorney General, 344 F.Supp. 587 (E.D.Ky.1972), appeal docketed, No. 72-256; Rosen v. Louisiana State Board of Medical Examiners, 318 F.Supp. 1217 (E.D.La.1970), appeal docketed, No. 70-42; Corkey v. Edwards, 322 F.Supp. 1248 (W.D.N.C.1971), appeal docketed, No. 71-92; Steinberg v. Brown, 321 F.Supp. 741 (N.D.Ohio 1970); Doe v. Rampton, 366 F.Supp. 189 (Utah 1971), appeal docketed, No. 71-5666; Cheaney v. State, Ind., 285 N.E.2d 265 (1972); Spears v. State, 257 So.2d 876 (Miss.1972); State v. Munson, S.D., 201 N.W.2d 123 (1972), appeal docketed, No. 72-631.
82
Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.
83
Where certain 'fundamental rights' are involved, the Court has held that regulation limiting these rights may be justified only by a 'compelling state interest,' Kramer v. Union Free School District, 395 U.S. 621, 627, 89 S.Ct. 1886, 1890, 23 L.Ed.2d 583 (1969); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969); Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963), and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. Griswold v. Connecticut, 381 U.S., at 485, 85 S.Ct., at 1682; Aptheker v. Secretary of State, 378 U.S. 500, 508, 84 S.Ct. 1659, 1664, 12 L.Ed.2d 992 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307-308, 60 S.Ct. 900, 904-905, 84 L.Ed. 1213 (1940); see Eisenstadt v. Baird, 405 U.S., at 460, 463-464, 92 S.Ct., at 1042, 1043-1044 (White, J., concurring in result).
84
In the recent abortion cases, cited above, courts have recognized these principles. Those striking down state laws have generally scrutinized the State's interests in protecting health and potential life, and have concluded that neither interest justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy. Courts sustaining state laws have held that the State's determinations to protect health or prenatal life are dominant and constitutionally justifiable.
IX
85
The District Court held that the appellee failed to meet his burden of demonstrating that the Texas statute's infringement upon Roe's rights was necessary to support a compelling state interest, and that, although the appellee presented 'several compelling justifications for state presence in the area of abortions,' the statutes outstripped these justifications and swept 'far beyond any areas of compelling state interest.' 314 F.Supp., at 1222-1223. Appellant and appellee both contest that holding. Appellant, as has been indicated, claims an absolute right that bars any state imposition of criminal penalties in the area. Appellee argues that the State's determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation.
86
A. The appellee and certain amici argue that the fetus is a 'person' within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument.51 On the other hand, the appellee conceded on reargument52 that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.
87
The Constitution does not define 'person' in so many words. Section 1 of the Fourteenth Amendment contains three references to 'person.' The first, in defining 'citizens,' speaks of 'persons born or naturalized in the United States.' The word also appears both in the Due Process Clause and in the Equal Protection Clause. 'Person' is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art, I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3;53 in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emoulument Clause, Art, I, § 9, cl. 8; in the Electros provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application.54
88
All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn.55 This is in accord