BoatBanter.com - This is not a test

On Sep 1, 11:10*am, BAR wrote:
hk wrote:
Fred J. McCall wrote:
hk wrote:
:
:Of course not. If I were "pushing" my beliefs, I'd be actively
seeking :judicial or legislative solutions, :

And Roe v Wade is certainly nothing like that...

You know, you're as big an ass as the people you attack.

D'oh. Roe v. Wade is the law of the land.

Roe vs. Wade is a judicial interpretation. If Congress ever grew a pair
and enacted legislation Roe vs. Wade would disappear with the stroke of
a pen.

Looks like a law to me, do you have a citation that says otherwise?

http://caselaw.lp.findlaw.com/script...l=410&page=113

U.S. Supreme Court
ROE v. WADE, 410 U.S. 113 (1973)
410 U.S. 113

ROE ET AL. v. WADE, DISTRICT ATTORNEY OF DALLAS COUNTY
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF
TEXAS
No. 70-18.

Argued December 13, 1971 Reargued October 11, 1972
Decided January 22, 1973

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 foreclosed 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 [410
U.S. 113, 114] 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 . 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 [410 U.S. 113, 115] that the Texas criminal abortion statutes
are unconstitutional. P. 166.

314 F. Supp. 1217, affirmed in part and reversed in part.

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.
J., and DOUGLAS, BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined.
BURGER, C. J., post, p. 207, DOUGLAS, J., post, p. 209, and STEWART,
J., post, p. 167, filed concurring opinions. WHITE, J., filed a
dissenting opinion, in which REHNQUIST, J., joined, post, p. 221.
REHNQUIST, J., filed a dissenting opinion, post, p. 171.

Sarah Weddington reargued the cause for appellants. With her on the
briefs were Roy Lucas, Fred Bruner, Roy L. Merrill, Jr., and Norman
Dorsen.

Robert C. Flowers, Assistant Attorney General of Texas, argued the
cause for appellee on the reargument. Jay Floyd, Assistant Attorney
General, argued the cause for appellee on the original argument. With
them on the brief were Crawford C. Martin, Attorney General, Nola
White, First Assistant Attorney General, Alfred Walker, Executive
Assistant Attorney General, Henry Wade, and John B. Tolle. * [410
U.S. 113, 116]

[ Footnote * ] Briefs of amici curiae were filed by Gary K. Nelson,
Attorney General of Arizona, Robert K. Killian, Attorney General of
Connecticut, Ed W. Hancock, Attorney General of Kentucky, Clarence A.
H. Meyer, Attorney General of Nebraska, and Vernon B. Romney, Attorney
General of Utah; by Joseph P. Witherspoon, Jr., for the Association of
Texas Diocesan Attorneys; by Charles E. Rice for Americans United for
Life; by Eugene J. McMahon for Women for the Unborn et al.; by Carol
Ryan for the American College of Obstetricians and Gynecologists et
al.; by Dennis J. Horan, Jerome A. Frazel, Jr., Thomas M. Crisham, and
Dolores V. Horan for Certain Physicians, Professors and Fellows of the
American College of Obstetrics and Gynecology; by Harriet F. Pilpel,
Nancy F. Wechsler, and Frederic S. Nathan for Planned Parenthood
Federation of America, Inc., et al.; by Alan F. Charles for the
National Legal Program on Health Problems of the Poor et al.; by
Marttie L. Thompson for State Communities Aid Assn.; by [410 U.S. 113,
116] Alfred L. Scanlan, Martin J. Flynn, and Robert M. Byrn for the
National Right to Life Committee; by Helen L. Buttenwieser for the
American Ethical Union et al.; by Norma G. Zarky for the American
Association of University Women et al.; by Nancy Stearns for New Women
Lawyers et al.; by the California Committee to Legalize Abortion et
al.; and by Robert E. Dunne for Robert L. Sassone.

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

This Texas federal appeal and its Georgia companion, Doe v. Bolton,
post, p. 179, 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.

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 [410 U.S. 113, 117] 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 (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. 1 These make it a crime to "procure an
abortion," as therein [410 U.S. 113, 118] 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
[410 U.S. 113, 119]

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 [410 U.S. 113, 120]

II

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.

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.

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 [410 U.S. 113, 121] 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.

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."

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, [410 U.S. 113, 122] 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 whether 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 (ND Tex. 1970).

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 (1971).
[410 U.S. 113, 123]

III
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