Roe v. Wade (1973)
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 410 U. S. 179, present
constitutional challenges to state criminal abortion legislation....
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.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to
simplify the problem.
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, 198 U. S.
76 (1905):
"[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."
I
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's Penal Code. 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....
II
Jane Roe 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.
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....
V
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 (1965); Eisenstadt v. Baird,405 U. S.
438 (1972); id. at 405 U. S. 460 (WHITE, J., concurring in result); or among those rights reserved to the
people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S. at 381 U. S. 486 (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....
VII
Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the
19th century and to justify their continued existence. 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. 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.
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. This was particularly true prior
to the development of antisepsis....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.
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.
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.
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. 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 live 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....
VIII
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, 141 U. S. 251 (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, 394 U. S. 564 (1969); in
the Fourth and Fifth Amendments, Terry v. Ohio,392 U. S. 1, 392 U. S. 8-9 (1968), Katz v. United
States,389 U. S. 347, 389 U. S. 350 (1967), Boyd v. United States,116 U. S. 616 (1886), see Olmstead v.
United States,277 U. S. 438, 277 U. S. 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of
Rights, Griswold v. Connecticut, 381 U.S. at 381 U. S. 484-485; in the Ninth Amendment, id. at 381 U. S.
486 (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, 262 U. S. 399 (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, 302 U. S. 325 (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, 388 U. S. 12 (1967); procreation, Skinner v. Oklahoma,316 U. S.
535, 316 U. S. 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 405 U. S. 453-454; id. at
405 U. S. 460, 405 U. S. 463-465 (WHITE, J., concurring in result); family relationships, Prince v.
Massachusetts,321 U. S. 158, 321 U. S. 166 (1944); and childrearing and education, Pierce v. Society of
Sisters,268 U. S. 510, 268 U. S. 535 (1925), Meyer v. Nebraska, supra.
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty
and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth
Amendment's reservation of rights to the people, is broad 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.
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 (1905) (vaccination); Buck v. Bell,274 U. S. 200 (1927) ( sterilization).
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....
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,
395 U. S. 627 (1969); Shapiro v. Thompson,394 U. S. 618, 394 U. S. 634 (1969), Sherbert v. Verner,374 U.
S. 398, 374 U. S. 406 (1963), and that legislative enactments must be narrowly drawn to express only the
legitimate state interests at stake....
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
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.
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. [Footnote 51] On the other hand, the appellee conceded
on reargument [Footnote 52] that no case could be cited that holds that a fetus is a person within the
meaning of the Fourteenth Amendment.
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; [Footnote 53] in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause,
Art. I, § 9, cl. 8; in the Electors 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 post-natally. None indicates, with any assurance,
that it has any possible pre-natal application. [Footnote 54]
All this...persuades us that the word "person," as used in the Fourteenth Amendment, does not include
the unborn. [Footnote 55] This is in accord with the results reached in those few cases where the issue
has been squarely presented.
Ohio St.2d 65, 275 N.E.2d 599 (1971). Indeed, our decision in United States v. Vuitch,402 U. S. 62 (1971),
inferentially is to the same effect, for we there would not have indulged in statutory interpretation
favorable to abortion in specified circumstances if the necessary consequence was the termination of
life entitled to Fourteenth Amendment protection.
This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on
to other considerations.
B. The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if
one accepts the medical definitions of the developing young in the human uterus. See Dorland's
Illustrated Medical Dictionary 478-479, 547 (24th ed.1965). The situation therefore is inherently
different from marital intimacy, or bedroom possession of obscene material, or marriage, or
procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and
Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a
State to decide that, at some point in time another interest, that of health of the mother or that of
potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right
of privacy she possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present
throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life
from and after conception. We need not resolve the difficult question of when life begins. When those
trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any
consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to
speculate as to the answer.
It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult
question. There has always been strong support for the view that life does not begin until live' birth. This
was the belief of the Stoics. [Footnote 56] It appears to be the predominant, though not the unanimous,
attitude of the Jewish faith. [Footnote 57] It may be taken to represent also the position of a large
segment of the Protestant community, insofar as that can be ascertained; organized groups that have
taken a formal position on the abortion issue have generally regarded abortion as a matter for the
conscience of the individual and her family. [Footnote 58] As we have noted, the common law found
greater significance in quickening. Physician and their scientific colleagues have regarded that event
with less interest and have tended to focus either upon conception, upon live birth, or upon the interim
point at which the fetus becomes "viable," that is, potentially able to live outside the mother's womb,
albeit with artificial aid. [Footnote 59] Viability is usually placed at about seven months (28 weeks) but
may occur earlier, even at 24 weeks. [Footnote 60] The Aristotelian theory of "mediate animation," that
held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman
Catholic dogma until the 19th century, despite opposition to this "ensoulment" theory from those in the
Church who would recognize the existence of life from the moment of conception. [Footnote 61] The
latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a
view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for
precise definition of this view are posed, however, by new embryological data that purport to indicate
that conception is a "process" over time, rather than an event, and by new medical techniques such as
menstrual extraction, the "morning-after" pill, implantation of embryos, artificial insemination, and even
artificial wombs.
In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we
recognize it, begins before live birth, or to accord legal rights to the unborn except in narrowly defined
situations and except when the rights are contingent upon live birth. For example, the traditional rule of
tort law denied recovery for prenatal injuries even though the child was born alive. [Footnote 63] That
rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only
if the fetus was viable, or at least quick, when the injuries were sustained, though few courts have
squarely so held. [Footnote 64] In a recent development, generally opposed by the commentators, some
States permit the parents of a stillborn child to maintain an action for wrongful death because of
prenatal injuries. [Footnote 65] Such an action, however, would appear to be one to vindicate the
parents' interest and is thus consistent with the view that the fetus, at most, represents only the
potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by
way of inheritance or other devolution of property, and have been represented by guardians ad litem.
[Footnote 66] Perfection of the interests involved, again, has generally been contingent upon live birth.
In short, the unborn have never been recognized in the law as persons in the whole sense.
X
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of
the pregnant woman that are at stake. We repeat, however, that the State does have an important and
legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a
resident of the State or a nonresident who seeks medical consultation and treatment there, and that it
has still another important and legitimate interest in protecting the potentiality of human life. These
interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a
point during pregnancy, each becomes "compelling."....
XI
To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a
lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without
recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth
Amendment.
(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.
(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.
(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 it is necessary, in appropriate
medical judgment, for the preservation of the life or health of the mother....
XII
Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a
unit, must fall. The exception of Art. 1196 cannot be struck down separately, for then the State would be
left with a statute proscribing all abortion procedures no matter how medically urgent the case....
It is so ordered.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 410 U. S. 179, present
constitutional challenges to state criminal abortion legislation....
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.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to
simplify the problem.
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, 198 U. S.
76 (1905):
"[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."
I
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's Penal Code. 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....
II
Jane Roe 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.
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....
V
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 (1965); Eisenstadt v. Baird,405 U. S.
438 (1972); id. at 405 U. S. 460 (WHITE, J., concurring in result); or among those rights reserved to the
people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S. at 381 U. S. 486 (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....
VII
Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the
19th century and to justify their continued existence. 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. 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.
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. This was particularly true prior
to the development of antisepsis....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.
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.
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.
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. 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 live 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....
VIII
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, 141 U. S. 251 (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, 394 U. S. 564 (1969); in
the Fourth and Fifth Amendments, Terry v. Ohio,392 U. S. 1, 392 U. S. 8-9 (1968), Katz v. United
States,389 U. S. 347, 389 U. S. 350 (1967), Boyd v. United States,116 U. S. 616 (1886), see Olmstead v.
United States,277 U. S. 438, 277 U. S. 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of
Rights, Griswold v. Connecticut, 381 U.S. at 381 U. S. 484-485; in the Ninth Amendment, id. at 381 U. S.
486 (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, 262 U. S. 399 (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, 302 U. S. 325 (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, 388 U. S. 12 (1967); procreation, Skinner v. Oklahoma,316 U. S.
535, 316 U. S. 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 405 U. S. 453-454; id. at
405 U. S. 460, 405 U. S. 463-465 (WHITE, J., concurring in result); family relationships, Prince v.
Massachusetts,321 U. S. 158, 321 U. S. 166 (1944); and childrearing and education, Pierce v. Society of
Sisters,268 U. S. 510, 268 U. S. 535 (1925), Meyer v. Nebraska, supra.
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty
and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth
Amendment's reservation of rights to the people, is broad 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.
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 (1905) (vaccination); Buck v. Bell,274 U. S. 200 (1927) ( sterilization).
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....
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,
395 U. S. 627 (1969); Shapiro v. Thompson,394 U. S. 618, 394 U. S. 634 (1969), Sherbert v. Verner,374 U.
S. 398, 374 U. S. 406 (1963), and that legislative enactments must be narrowly drawn to express only the
legitimate state interests at stake....
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
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.
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. [Footnote 51] On the other hand, the appellee conceded
on reargument [Footnote 52] that no case could be cited that holds that a fetus is a person within the
meaning of the Fourteenth Amendment.
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; [Footnote 53] in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause,
Art. I, § 9, cl. 8; in the Electors 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 post-natally. None indicates, with any assurance,
that it has any possible pre-natal application. [Footnote 54]
All this...persuades us that the word "person," as used in the Fourteenth Amendment, does not include
the unborn. [Footnote 55] This is in accord with the results reached in those few cases where the issue
has been squarely presented.
Ohio St.2d 65, 275 N.E.2d 599 (1971). Indeed, our decision in United States v. Vuitch,402 U. S. 62 (1971),
inferentially is to the same effect, for we there would not have indulged in statutory interpretation
favorable to abortion in specified circumstances if the necessary consequence was the termination of
life entitled to Fourteenth Amendment protection.
This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on
to other considerations.
B. The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if
one accepts the medical definitions of the developing young in the human uterus. See Dorland's
Illustrated Medical Dictionary 478-479, 547 (24th ed.1965). The situation therefore is inherently
different from marital intimacy, or bedroom possession of obscene material, or marriage, or
procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and
Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a
State to decide that, at some point in time another interest, that of health of the mother or that of
potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right
of privacy she possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present
throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life
from and after conception. We need not resolve the difficult question of when life begins. When those
trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any
consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to
speculate as to the answer.
It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult
question. There has always been strong support for the view that life does not begin until live' birth. This
was the belief of the Stoics. [Footnote 56] It appears to be the predominant, though not the unanimous,
attitude of the Jewish faith. [Footnote 57] It may be taken to represent also the position of a large
segment of the Protestant community, insofar as that can be ascertained; organized groups that have
taken a formal position on the abortion issue have generally regarded abortion as a matter for the
conscience of the individual and her family. [Footnote 58] As we have noted, the common law found
greater significance in quickening. Physician and their scientific colleagues have regarded that event
with less interest and have tended to focus either upon conception, upon live birth, or upon the interim
point at which the fetus becomes "viable," that is, potentially able to live outside the mother's womb,
albeit with artificial aid. [Footnote 59] Viability is usually placed at about seven months (28 weeks) but
may occur earlier, even at 24 weeks. [Footnote 60] The Aristotelian theory of "mediate animation," that
held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman
Catholic dogma until the 19th century, despite opposition to this "ensoulment" theory from those in the
Church who would recognize the existence of life from the moment of conception. [Footnote 61] The
latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a
view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for
precise definition of this view are posed, however, by new embryological data that purport to indicate
that conception is a "process" over time, rather than an event, and by new medical techniques such as
menstrual extraction, the "morning-after" pill, implantation of embryos, artificial insemination, and even
artificial wombs.
In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we
recognize it, begins before live birth, or to accord legal rights to the unborn except in narrowly defined
situations and except when the rights are contingent upon live birth. For example, the traditional rule of
tort law denied recovery for prenatal injuries even though the child was born alive. [Footnote 63] That
rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only
if the fetus was viable, or at least quick, when the injuries were sustained, though few courts have
squarely so held. [Footnote 64] In a recent development, generally opposed by the commentators, some
States permit the parents of a stillborn child to maintain an action for wrongful death because of
prenatal injuries. [Footnote 65] Such an action, however, would appear to be one to vindicate the
parents' interest and is thus consistent with the view that the fetus, at most, represents only the
potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by
way of inheritance or other devolution of property, and have been represented by guardians ad litem.
[Footnote 66] Perfection of the interests involved, again, has generally been contingent upon live birth.
In short, the unborn have never been recognized in the law as persons in the whole sense.
X
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of
the pregnant woman that are at stake. We repeat, however, that the State does have an important and
legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a
resident of the State or a nonresident who seeks medical consultation and treatment there, and that it
has still another important and legitimate interest in protecting the potentiality of human life. These
interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a
point during pregnancy, each becomes "compelling."....
XI
To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a
lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without
recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth
Amendment.
(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.
(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.
(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 it is necessary, in appropriate
medical judgment, for the preservation of the life or health of the mother....
XII
Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a
unit, must fall. The exception of Art. 1196 cannot be struck down separately, for then the State would be
left with a statute proscribing all abortion procedures no matter how medically urgent the case....
It is so ordered.
