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Summary of Doe v. Bolton
Doe v. Bolton
410 U.S. 179 (1973)
Roe v. Wade was modified by another case decided the same day: Doe v. Bolton. In
Doe v.
Bolton the Court ruled that a woman's right to an abortion could not be limited
by the state if
abortion was sought for reasons of maternal health. The Court defined health as
"all factors –
physical, emotional, psychological, familial, and the woman's age – relevant to
the well-being of
the patient." This health exception expanded the right to abortion for any
reason through all
three trimesters of pregnancy.
Exactly 40 years after the landmark abortion cases that
established a woman's right to choose, one of the original plaintiffs joined
HuffPost Live to discuss how the case affected her life with host Mike Sacks.
Sandra Cano's case Doe v. Bolton, handed down alongside Roe v. Wade, established
the constitutional right to abortion — but Cano herself is fiercely pro-life,
telling Sacks "abortion is something I don't believe in."
Cano said she never wanted to be a part of the case and was coerced into
participation, and is working to clear her name.
"My name should not be on that case," she told HuffPost Live. "I don't want the
world believing I believe something I don't."
Sandra Cano, Doe v. Bolton Plaintiff: 'Abortion
Is Something I Don't Believe In' (VIDEO)
To view video click link:
http://www.huffingtonpost.com/2013/01/22/sandra-cano-doe-v-bolton_n_2527521.html
DOE VS. BOLTON (1973)
BLACKMUN, J., Opinion of the Court
SUPREME COURT OF THE UNITED STATES
410 U.S. 179
Doe v. Bolton
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
GEORGIA
No. 70-40 Argued: December 13, 1971 --- Decided: January 22, 1973
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
In this appeal, the criminal abortion statutes recently enacted in Georgia are
challenged on constitutional grounds. The statutes are §§ 26-1201 through
26-1203 of the State's Criminal Code, formulated by Georgia Laws, 1968 Session,
pp. 1249, 1277-1280. In Roe v. Wade, ante p. 113, we today have struck down, as
constitutionally defective, the Texas criminal abortion statutes that are
representative of provisions long in effect [p182] in a majority of our States.
The Georgia legislation, however, is different and merits separate
consideration.
I
The statutes in question are reproduced as Appendix A, post, p. 202. [n1] As the
appellants acknowledge, [n2] the 1968 statutes are patterned upon the American
Law Institute's Model Penal Code, § 230.3 (Proposed Official Draft, 1962),
reproduced as Appendix B, post, p. 205. The ALI proposal has served as the model
for recent legislation in approximately one-fourth of our States. [n3] The new
Georgia provisions replaced statutory law that had been in effect for more than
90 years. Georgia Laws 1876, No. 130, § 2, at 113. [n4] The predecessor statute
paralleled [p183] the Texas legislation considered in Roe v. Wade, supra, and
made all abortions criminal except those necessary "to preserve the life" of the
pregnant woman. The new statutes have not been tested on constitutional grounds
in the Georgia state courts.
Section 26-1201, with a referenced exception, makes abortion a crime, and §
26-1203 provides that a person convicted of that crime shall be punished by
imprisonment for not less than one nor more than 10 years. Section 21202(a)
states the exception and removes from § 1201's definition of criminal abortion,
and thus makes noncriminal, an abortion "performed by a physician duly licensed"
in Georgia when,
based upon his best clinical judgment . . . an abortion is necessary because:
(1) A continuation of the pregnancy would endanger the life of the pregnant
woman or would seriously and permanently injure her health; or
(2) The fetus would very likely be born with a grave, permanent, and
irremediable mental or physical defect; or
(3) The pregnancy resulted from forcible or statutory rape. [n5]
Section 26-1202 also requires, by numbered subdivisions of its subsection (b),
that, for an abortion to be authorized [p184] or performed as a noncriminal
procedure, additional conditions must be fulfilled. These are (1) and (2)
residence of the woman in Georgia; (3) reduction to writing of the performing
physician's medical judgment that an abortion is justified for one or more of
the reasons specified by § 26-1202(a), with written concurrence in that judgment
by at least two other Georgia-licensed physicians, based upon their separate
personal medical examinations of the woman; (4) performance of the abortion in a
hospital licensed by the State Board of Health and also accredited by the Joint
Commission on Accreditation of Hospitals; (5) advance approval by an abortion
committee of not less than three members of the hospital's staff; (6)
certifications in a rape situation; and (7), (8), and (9) maintenance and
confidentiality of records. There is a provision (subsection (c)) for judicial
determination of the legality of a proposed abortion on petition of the judicial
circuit law officer or of a close relative, as therein defined, of the unborn
child, and for expeditious hearing of that petition. There is also a provision
(subsection (e)) giving a hospital the right not to admit an abortion patient
and giving any physician and any hospital employee or staff member the right, on
moral or religious grounds, not to participate in the procedure.
II
On April 16, 1970, Mary Doe, [n6] 23 other individuals (nine described as
Georgia-licensed physicians, seven as nurses registered in the State, five as
clergymen, and two as social workers), and two nonprofit Georgia corporations
that advocate abortion reform instituted this federal action in the Northern
District of Georgia against the State's attorney general, the district attorney
of [p185] Fulton County, and the chief of police of the city of Atlanta. The
plaintiffs sought a declaratory judgment that the Georgia abortion statutes were
unconstitutional in their entirety. They also sought injunctive relief
restraining the defendants and their successors from enforcing the statutes.
Mary Doe alleged:
(1) She was a 22-year-old Georgia citizen, married, and nine weeks pregnant. She
had three living children. The two older ones had been placed in a foster home
because of Doe's poverty and inability to care for them. The youngest, born July
19, 1969, had been placed for adoption. Her husband had recently abandoned her,
and she was forced to live with her indigent parents and their eight children.
She and her husband, however, had become reconciled. He was a construction
worker employed only sporadically. She had been a mental patient at the State
Hospital. She had been advised that an abortion could be performed on her with
less danger to her health than if she gave birth to the child she was carrying.
She would be unable to care for or support the new child.
(2) On March 25, 1970, she applied to the Abortion Committee of Grady Memorial
Hospital, Atlanta, for a therapeutic abortion under § 26-1202. Her application
was denied 16 days later, on April 10, when she was eight weeks pregnant, on the
ground that her situation was not one described in § 26-1202(a). [n7]
(3) Because her application was denied, she was forced either to relinquish "her
right to decide when and how many children she will bear" or to seek an abortion
that was illegal under the Georgia statutes. This invaded her [p186] rights of
privacy and liberty in matters related to family, marriage, and sex, and
deprived her of the right to choose whether to bear children. This was a
violation of rights guaranteed her by the First, Fourth, Fifth, Ninth, and
Fourteenth Amendments. The statutes also denied her equal protection and
procedural due process and, because they were unconstitutionally vague, deterred
hospitals and doctors from performing abortions. She sued "on her own behalf and
on behalf of all others similarly situated."
The other plaintiffs alleged that the Georgia statutes "chilled and deterred"
them from practicing their respective professions and deprived them of rights
guaranteed by the First, Fourth, and Fourteenth Amendments. These plaintiffs
also purported to sue on their own behalf and on behalf of others similarly
situated.
A three-judge district court was convened. An offer of proof as to Doe's
identity was made, but the court deemed it unnecessary to receive that proof.
The case was then tried on the pleadings and interrogatories.
The District Court, per curiam, 319 F.Supp. 1048 (ND Ga.1970), held that all the
plaintiffs had standing, but that only Doe presented a justiciable controversy.
On the merits, the court concluded that the limitation in the Georgia statute of
the "number of reasons for which an abortion may be sought," id. at 1056,
improperly restricted Doe's rights of privacy articulated in Griswold v.
Connecticut, 381 U.S. 479 (1965), and of "personal liberty," both of which it
thought "broad enough to include the decision to abort a pregnancy," 319 F.Supp.
at 1055. As a consequence, the court held invalid those portions of §§
26-1202(a) and (b)(3) limiting legal abortions to the three situations
specified; § 26-1202(b)(6) relating to certifications in a rape situation; and §
26-1202(c) authorizing a court test. Declaratory relief was granted accordingly.
The court, however, held [p187] that Georgia's interest in protection of health,
and the existence of a "potential of independent human existence" (emphasis in
original), id. at 1055, justified state regulation of "the manner of performance
as well as the quality of the final decision to abort," id. at 1056, and it
refused to strike down the other provisions of the statutes. It denied the
request for an injunction, id. at 1057.
Claiming that they were entitled to an injunction and to broader relief, the
plaintiffs took a direct appeal pursuant to 28 U.S.C. § 1253. We postponed
decision on jurisdiction to the hearing on the merits. 402 U.S. 941 (1971). The
defendants also purported to appeal, pursuant to § 1253, but their appeal was
dismissed for want of jurisdiction. 402 U.S. 936 (1971). We are advised by the
appellees, Brief 42, that an alternative appeal on their part is pending in the
United States Court of Appeals for the Fifth Circuit. The extent, therefore, to
which the District Court decision was adverse to the defendants, that is, the
extent to which portions of the Georgia statutes were held to be
unconstitutional, technically is not now before us. [n8] Swarb v. Lennox, 405
U.S. 191, 201 (1972).
III
Our decision in Roe v. Wade, ante p. 113, establishes (1) that, despite her
pseudonym, we may accept as true, for this case, Mary Doe's existence and her
pregnant state on April 16, 1970; (2) that the constitutional issue is
substantial; (3) that the interim termination of Doe's and all other Georgia
pregnancies in existence in 1970 has not rendered the case moot; and (4) that
Doe presents a justiciable controversy, and has standing to maintain the action.
[p188]
Inasmuch as Doe and her class are recognized, the question whether the other
appellants -- physicians, nurses, clergymen, social workers, and corporations --
present a justiciable controversy and have standing is perhaps a matter of no
great consequence. We conclude, however, that the physician appellants, who are
Georgia-licensed doctors consulted by pregnant women, also present a justiciable
controversy, and do have standing despite the fact that the record does not
disclose that any one of them has been prosecuted, or threatened with
prosecution, for violation of the State's abortion statutes. The physician is
the one against whom these criminal statutes directly operate in the event he
procures an abortion that does not meet the statutory exceptions and conditions.
The physician appellants, therefore, assert a sufficiently direct threat of
personal detriment. They should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief. Crossen v. Breckenridge, 446
F.2d 833, 839-840 (CA6 1971); Poe v. Menghini, 339 F.Supp. 986, 990-991
(Kan.1972).
In holding that the physicians, while theoretically possessed of standing, did
not present a justiciable controversy, the District Court seems to have relied
primarily on Poe v. Ullman, 367 U.S. 497 (1961). There, a sharply divided Court
dismissed an appeal from a state court on the ground that it presented no real
controversy justifying the adjudication of a constitutional issue. But the
challenged Connecticut statute, deemed to prohibit the giving of medical advice
on the use of contraceptives, had been enacted in 1879, and, apparently with a
single exception, no one had ever been prosecuted under it. Georgia's statute,
in contrast, is recent and not moribund. Furthermore, it is the successor to
another [p189] Georgia abortion statute under which, we are told, [n9]
physicians were prosecuted. The present case, therefore, is closer to Epperson
v. Arkansas, 393 U.S. 97 (1968), where the Court recognized the right of a
school teacher, though not yet charged criminally, to challenge her State's
anti-evolution statute. See also Griswold v. Connecticut, 381 U.S. at 481.
The parallel claims of the nurse, clergy, social worker, and corporation
appellants are another step removed, and, as to them, the Georgia statutes
operate less directly. Not being licensed physicians, the nurses and the others
are in no position to render medical advice. They would be reached by the
abortion statutes only in their capacity as accessories or as
counselor-conspirators. We conclude that we need not pass upon the status of
these additional appellants in this suit, for the issues are sufficiently and
adequately presented by Doe and the physician appellants and nothing is gained
or lost by the presence or absence of the nurses, the clergymen, the social
workers, and the corporations. See Roe v. Wade, ante at 127.
IV
The appellants attack on several grounds those portions of the Georgia abortion
statutes that remain after the District Court decision: undue restriction of a
right to personal and marital privacy; vagueness; deprivation of substantive and
procedural due process; improper restriction to Georgia residents; and denial of
equal protection.
A. Roe v. Wade, supra, sets forth our conclusion that a pregnant woman does not
have an absolute constitutional right to an abortion on her demand. What is said
there is applicable here, and need not be repeated. [p190]
B. The appellants go on to argue, however, that the present Georgia statutes
must be viewed historically, that is, from the fact that, prior to the 1968 Act,
an abortion in Georgia was not criminal if performed to "preserve the life" of
the mother. It is suggested that the present statute, as well, has this emphasis
on the mother's rights, not on those of the fetus. Appellants contend that it is
thus clear that Georgia has given little, and certainly not first, consideration
to the unborn child. Yet it is the unborn child's rights that Georgia asserts in
justification of the statute. Appellants assert that this justification cannot
be advanced at this late date.
Appellants then argue that the statutes do not adequately protect the woman's
right. This is so because it would be physically and emotionally damaging to Doe
to bring a child into her poor, "fatherless" [n10] family, and because advances
in medicine and medical techniques have made it safer for a woman to have a
medically induced abortion than for her to bear a child. Thus,
a statute that requires a woman to carry an unwanted pregnancy to term infringes
not only on a fundamental right of privacy, but on the right to life itself.
Brief 27.
The appellants recognize that, a century ago, medical knowledge was not so
advanced as it is today, that the techniques of antisepsis were not known, and
that any abortion procedure was dangerous for the woman. To restrict the
legality of the abortion to the situation where it was deemed necessary, in
medical judgment, for the preservation of the woman's life was only a natural
conclusion in the exercise of the legislative judgment of that time. A State is
not to be reproached, however, for a past judgmental determination made in the
light of then-existing medical knowledge. It is perhaps unfair to argue, as the
appellants do, that, because the early focus [p191] was on the preservation of
the woman's life, the State's present professed interest in the protection of
embryonic and fetal life is to be downgraded. That argument denies the State the
right to readjust its views and emphases in the light of the advanced knowledge
and techniques of the day.
C. Appellants argue that § 26-1202(a) of the Georgia statutes, as it has been
left by the District Court's decision, is unconstitutionally vague. This
argument centers on the proposition that, with the District Court's having
struck down the statutorily specified reasons, it still remains a crime for a
physician to perform an abortion except when, as § 26-1202(a) reads, it is
"based upon his best clinical judgment that an abortion is necessary." The
appellants contend that the word "necessary" does not warn the physician of what
conduct is proscribed; that the statute is wholly without objective standards
and is subject to diverse interpretation; and that doctors will choose to err on
the side of caution and will be arbitrary.
The net result of the District Court's decision is that the abortion
determination, so far as the physician is concerned, is made in the exercise of
his professional, that is, his "best clinical," judgment in the light of all the
attendant circumstances. He is not now restricted to the three situations
originally specified. Instead, he may range farther afield wherever his medical
judgment, properly and professionally exercised, so dictates and directs him.
The vagueness argument is set at rest by the decision in United States v. Vuitch,
402 U.S. 62, 71-72 (1971), where the issue was raised with respect to a District
of Columbia statute making abortions criminal
unless the same were done as necessary for the preservation of the mother's life
or health and under the direction of a competent licensed practitioner of
medicine.
That statute has been construed to bear upon psychological as [p192] well as
physical wellbeing. This being so, the Court concluded that the term "health"
presented no problem of vagueness.
Indeed, whether a particular operation is necessary for a patient's physical or
mental health is a judgment that physicians are obviously called upon to make
routinely whenever surgery is considered.
Id. at 72. This conclusion is equally applicable here. Whether, in the words of
the Georgia statute, "an abortion is necessary" is a professional judgment that
the Georgia physician will be called upon to make routinely.
We agree with the District Court, 319 F.Supp. at 1058, that the medical judgment
may be exercised in the light of all factors --physical, emotional,
psychological, familial, and the woman's age -- relevant to the wellbeing of the
patient. All these factors may relate to health. This allows the attending
physician the room he needs to make his best medical judgment. And it is room
that operates for the benefit, not the disadvantage, of the pregnant woman.
D. The appellants next argue that the District Court should have declared
unconstitutional three procedural demand of the Georgia statute: (1) that the
abortion be performed in a hospital accredited by the Joint Commission on
Accreditation of Hospitals: [n11] (2) that the procedure be approved by the
hospital staff abortion committee; and (3) that the performing physician's
judgment be confirmed by the independent examinations of the patient by two
other licensed physicians. The appellants attack these provisions not only on
the ground that they unduly restrict the woman's right of privacy, but also on
procedural due process and equal protection grounds. The physician appellants
also argue that, by subjecting a doctor's individual medical judgment to [p193]
committee approval and to confirming consultations, the statute impermissibly
restricts the physician's right to practice his profession and deprives him of
due process.
1. JCAH accreditation. The Joint Commission on Accreditation of Hospitals is an
organization without governmental sponsorship or overtones. No question whatever
is raised concerning the integrity of the organization or the high purpose of
the accreditation process. [n12] That process, however, has to do with hospital
standards generally and has no present particularized concern with abortion as a
medical or surgical procedure. [n13] In Georgia, there is no restriction on the
performance of nonabortion surgery in a hospital not yet accredited by the JCAH
so long as other requirements imposed by the State, such as licensing of the
hospital and of the operating surgeon, are met. See Georgia Code §§ 88-1901(a)
[p194] and 88-1905 (1971) and 84-907 (Supp. 1971). Furthermore, accreditation by
the Commission is not granted until a hospital has been in operation at least
one year. The Model Penal Code, § 230.3, Appendix B hereto, contains no
requirement for JCAH accreditation. And the Uniform Abortion Act (Final Draft,
Aug.1971), [n14] approved by the American Bar Association in February, 1972,
contains no JCAH-accredited hospital specification. [n15] Some courts have held
that a JCAH accreditation requirement is an overbroad infringement of
fundamental rights because it does not relate to the particular medical problems
and dangers of the abortion operation. E.g., Poe v. Menghini, 339 F.Supp. at
993-994.
We hold that the JCAH accreditation requirement does not withstand
constitutional scrutiny in the present context. It is a requirement that simply
is not "based on differences that are reasonably related to the purposes of the
Act in which it;s found." Morey v. Doud, 354 U.S. 457, 465 (1957).
This is not to say that Georgia may not or should not from and after the end of
the first trimester, adopt [p195] standards for licensing all facilities where
abortions may be performed so long as those standards are legitimately related
to the objective the State seeks to accomplish. The appellants contend that such
a relationship would be lacking even in a lesser requirement that an abortion be
performed in a licensed hospital, as opposed to a facility, such as a clinic,
that may be required by the State to possess all the staffing and services
necessary to perform an abortion safely (including those adequate to handle
serious complications or other emergency, or arrangements with a nearby hospital
to provide such services). Appellants and various amici have presented us with a
mass of data purporting to demonstrate that some facilities other than hospitals
are entirely adequate to perform abortions if they possess these qualifications.
The State, on the other hand, has not presented persuasive data to show that
only hospitals meet its acknowledged interest in insuring the quality of the
operation and the full protection of the patient. We feel compelled to agree
with appellants that the State must show more than it has in order to prove that
only the full resources of a licensed hospital, rather than those of some other
appropriately licensed institution, satisfy these health interests. We hold that
the hospital requirement of the Georgia law, because it fails to exclude the
first trimester of pregnancy, see Roe v. Wade, ante at 163, is also invalid. In
so holding we naturally express no opinion on the medical judgment involved in
any particular case, that is, whether the patient's situation is such that an
abortion should be performed in a hospital, rather than in some other facility.
2. Committee approval. The second aspect of the appellants' procedural attack
relates to the hospital abortion committee and to the regnant woman's asserted
[p196] lack of access to that committee. Relying primarily on Goldberg v. Kelly,
397 U.S. 254 (1970), concerning the termination of welfare benefits, and
Wisconsin v. Constantineau, 400 U.S. 433 (1971), concerning the posting of an
alcoholic's name, Doe first argues that she was denied due process because she
could not make a presentation to the committee. It is not clear from the record,
however, whether Doe's own consulting physician was or was not a member of the
committee or did or did not present her case, or, indeed whether she herself was
or was not there. We see nothing in the Georgia statute that explicitly denies
access to the committee by or on behalf of the woman. If the access point alone
were involved, we would not be persuaded to strike down the committee provision
on the unsupported assumption that access is not provided.
Appellants attack the discretion the statute leaves to the committee. The most
concrete argument they advance is their suggestion that it is still a badge of
infamy "in many minds" to bear an illegitimate child, and that the Georgia
system enables the committee members' personal views as to extramarital sex
relations, and punishment therefor, to govern their decisions. This approach
obviously is one founded on suspicion, and one that discloses a lack of
confidence in the integrity of physicians. To say that physicians will be guided
in their hospital committee decisions by their predilections on extramarital sex
unduly narrows the issue to pregnancy outside marriage. (Doe's own situation did
not involve extramarital sex and its product.) The appellants' suggestion is
necessarily somewhat degrading to the conscientious physician, particularly the
obstetrician, whose professional activity is concerned with the physical and
mental welfare, the woes, the emotions, and the concern of his female patients.
He, perhaps more than anyone else, is knowledgeable in this area of patient
care, and he is aware of human frailty, [p197] so-called "error," and needs. The
good physician -- despite the presence of rascals in the medical profession, as
in all others, we trust that most physicians are "good" -- will have sympathy
and understanding for the pregnant patient that probably are not exceeded by
those who participate in other areas of professional counseling.
It is perhaps worth noting that the abortion committee has a function of its
own. It is a committee of the hospital, and it is composed of members of the
institution's medical staff. The membership usually is a changing one. In this
way, its work burden is shared and is more readily accepted. The committee's
function is protective. It enables the hospital appropriately to be advised that
its posture and activities are in accord with legal requirements. It is to be
remembered that the hospital is an entity, and that it, too, has legal rights
and legal obligations.
Saying all this, however, does not settle the issue of the constitutional
propriety of the committee requirement. Viewing the Georgia statute as a whole,
we see no constitutionally justifiable pertinence in the structure for the
advance approval by the abortion committee. With regard to the protection of
potential life, the medical judgment is already completed prior to the committee
stage, and review by a committee once removed from diagnosis is basically
redundant. We are not cited to any other surgical procedure made subject to
committee approval as a matter of state criminal law. The woman's right to
receive medical care in accordance with her licensed physician's best judgment
and the physician's right to administer it are substantially limited by this
statutorily imposed overview. And the hospital itself is otherwise fully
protected. Under § 26-1202(e), the hospital is free not to admit a patient for
an abortion. It is even free not to have an abortion committee. Further, a
physician or any other employee has the right to refrain, [p198] for moral or
religious reasons, from participating in the abortion procedure. These
provisions obviously are in the statute in order to afford appropriate
protection to the individual and to the denominational hospital. Section
21202(e) affords adequate protection to the hospital, and little more is
provided by the committee prescribed by § 26-1202(b)(5).
We conclude that the interposition of the hospital abortion committee is unduly
restrictive of the patient's rights and needs that, at this point, have already
been medically delineated and substantiated by her personal physician. To ask
more serves neither the hospital nor the State.
3. Two-doctor concurrence. The third aspect of the appellants' attack centers on
the "time and availability of adequate medical facilities and personnel." It is
said that the system imposes substantial and irrational roadblocks and "is
patently unsuited" to prompt determination of the abortion decision. Time, of
course, is critical in abortion. Risks during the first trimester of pregnancy
are admittedly lower than during later months.
The appellants purport to show by a local study [n16] of Grady Memorial Hospital
(serving indigent residents in Fulton and DeKalb Counties) that the "mechanics
of the system itself forced . . . discontinuance of the abortion process"
because the median time for the workup was 15 days. The same study shows,
however, that 27% of the candidates for abortion were already 13 or more weeks
pregnant at the time of application, that is, they were at the end of or beyond
the first trimester when they made their applications. It is too much to say, as
appellants do, that these particular persons "were victims of a system over
which they [had] no control." If higher risk was incurred because of abortions
in the [p199] second, rather than the first, trimester, much of that risk was
due to delay in application, and not to the alleged cumbersomeness of the
system. We note, in passing, that appellant Doe had no delay problem herself;
the decision in her case was made well within the first trimester.
It should be manifest that our rejection of the accredited hospital requirement
and, more important, of the abortion committee's advance approval eliminates the
major grounds of the attack based on the system's delay and the lack of
facilities. There remains, however, the required confirmation by two
Georgia-licensed physicians in addition to the recommendation of the pregnant
woman's own consultant (making under the statute, a total of six physicians
involved, including the three on the hospital's abortion committee). We conclude
that this provision, too, must fall.
The statute's emphasis, as has been repetitively noted, is on the attending
physician's "best clinical judgment that an abortion is necessary." That should
be sufficient. The reasons for the presence of the confirmation step in the
statute are perhaps apparent, but they are insufficient to withstand
constitutional challenge. Again, no other voluntary medical or surgical
procedure for which Georgia requires confirmation by two other physicians has
been cited to us. If a physician is licensed by the State, he is recognized by
the State as capable of exercising acceptable clinical judgment. If he fails in
this, professional censure and deprivation of his license are available
remedies. Required acquiescence by co-practitioners has no rational connection
with a patient's needs, and unduly infringes on the physician's right to
practice. The attending physician will know when a consultation is advisable --
the doubtful situation, the need for assurance when the medical decision is a
delicate one, and the like. Physicians have followed this routine historically,
and [p200] know its usefulness and benefit for all concerned. It is still true
today that
[r]eliance must be placed upon the assurance given by his license, issued by an
authority competent to judge in that respect, that he [the physician] possesses
the requisite qualifications.
Dent v. West Virginia, 129 U.S. 114, 122-123 (1889). See United States v. Vuitch,
402 U.S. at 71.
E. The appellants attack the residency requirement of the Georgia law, §§
26-1202(b)(1) and (b)(2), as violative of the right to travel stressed in
Shapiro v. Thompson, 394 U.S. 618, 629-631 (1969), and other cases. A
requirement of this kind, of course, could be deemed to have some relationship
to the availability of post-procedure medical care for the aborted patient.
Nevertheless, we do not uphold the constitutionality of the residence
requirement. It is not based on any policy of preserving state supported
facilities for Georgia residents, for the bar also applies to private hospitals
and to privately retained physicians. There is no intimation, either, that
Georgia facilities are utilized to capacity in caring for Georgia residents.
Just as the Privileges and Immunities Clause, Const. Art. IV, § 2, protects
persons who enter other States to ply their trade, Ward v. Maryland, 12 Wall.
418, 430 (1871); Blake v. McClung, 172 U.S. 239, 248-256 (1898), so must it
protect persons who enter Georgia seeking the medical services that are
available there. See Toomer v. Witsell, 334 U.S. 385, 396-397 (1948). A contrary
holding would mean that a State could limit to its own residents the general
medical care available within its borders. This we could not approve.
F. The last argument on this phase of the case is one that often is made,
namely, that the Georgia system is violative of equal protection because it
discriminates against the poor. The appellants do not urge that abortions [p201]
should be performed by persons other than licensed physicians, so we have no
argument that, because the wealthy can better afford physicians, the poor should
have nonphysicians made available to them. The appellants acknowledged that the
procedures are "nondiscriminatory in . . . express terms," but they suggest that
they have produced invidious discriminations. The District Court rejected this
approach out of hand. 319 F.Supp. at 1056. It rests primarily on the
accreditation and approval and confirmation requirements, discussed above, and
on the assertion that most of Georgia's counties have no accredited hospital. We
have set aside the accreditation, approval, and confirmation requirements,
however, and with that, the discrimination argument collapses in all significant
aspects.
V
The appellants complain, finally, of the District Court's denial of injunctive
relief. A like claim was made in Roe v. Wade, ante, p. 113. We declined decision
there insofar as injunctive relief was concerned, and we decline it here. We
assume that Georgia's prosecutorial authorities will give full recognition to
the judgment of this Court.
In summary, we hold that the JCAH-accredited hospital provision and the
requirements as to approval by the hospital abortion committee, as to
confirmation by two independent physicians, and as to residence in Georgia are
all violative of the Fourteenth Amendment. Specifically, the following portions
of § 26-1202(b), remaining after the District Court's judgment, are invalid:
(1) Subsections (1) and (2).
(2) That portion of Subsection (3) following the words "[s]uch physician's
judgment is reduced to writing."
(3) Subsections (4) and (5). [p202]
The judgment of the District Court is modified accordingly and, as so modified,
is affirmed. Costs are allowed to the appellants.
APPENDIX A TO OPINION OF THE COURT
Criminal Code of Georgia(The italicized portions are those held
unconstitutionalby the District Court)CHAPTER 26-12. ABORTION.
26-1201. Criminal Abortion. Except as otherwise provided in section 26-1202, a
person commits criminal abortion when he administers any medicine, drug or other
substance whatever to any woman or when he uses any instrument or other means
whatever upon any woman with intent to produce a miscarriage or abortion.
26-1202. Exception. (a) Section 26-1201 shall not apply to an abortion performed
by a physician duly licensed to practice medicine and surgery pursuant to
Chapter 84-9 or 84-12 of the Code of Georgia of 1933, as amended, based upon his
best clinical judgment that an abortion is necessary because:
(1) A continuation of the pregnancy would endanger the life of the pregnant
woman or would seriously and permanently injure her health; or
(2) The fetus would very likely be born with a grave, permanent, and
irremediable mental or physical defect; or
(3) The pregnancy resulted from forcible or statutory rape.
(b) No abortion is authorized or shall be performed under this section unless
each of the following conditions is met:
(1) The pregnant woman requesting the abortion certifies in writing under oath
and subject to the penalties [p203] of false swearing to the physician who
proposes to perform the abortion that she is a bona fide legal resident of the
State of Georgia.
(2) The physician certifies that he believes the woman is a bona fide resident
of this State and that he has no information which should lead him to believe
otherwise.
(3) Such physician's judgment is reduced to writing and concurred in by at least
two other physicians duly licensed to practice medicine and surgery pursuant to
Chapter 84-9 of the Code of Georgia of 1933, as amended, who certify in writing
that, based upon their separate personal medical examinations of the pregnant
woman, the abortion is, in their judgment, necessary because of one or more of
the reasons enumerated above.
(4) Such abortion is performed in a hospital licensed by the State Board of
Health and accredited by the Joint Commission on Accreditation of Hospitals.
(5) The performance of the abortion has been approved in advance by a committee
of the medical staff of the hospital in which the operation is to be performed.
This committee must be one established and maintained in accordance with the
standards promulgated by the Joint Commission on the Accreditation of Hospitals,
and its approval must be by a majority vote of a membership of not less than
three members of the hospital's staff; the physician proposing to perform the
operation may not be counted as a member of the committee for this purpose.
(6) If the proposed abortion is considered necessary because the woman has been
raped, the woman makes a written statement under oath, and subject to the
penalties of false swearing, of the date, time and place of the rape and the
name of the rapist, if known. There must be attached to this statement a
certified copy of any report of the rape made by any law enforcement officer or
agency and a statement by the solicitor general of the [p204] judicial circuit
where the rape occurred or allegedly occurred that, according to his best
information, there is probable cause to believe that the rape did occur.
(7) Such written opinions, statements, certificates, and concurrences are
maintained in the permanent files of such hospital and are available at all
reasonable times to the solicitor general of the judicial circuit in which the
hospital is located.
(8) A copy of such written opinions, statements, certificates, and concurrences
is filed with the Director of the State Department of Public Health within 10
days after such operation is performed.
(9) All written opinions, statements, certificates, and concurrences filed and
maintained pursuant to paragraphs (7) and (8) of this subsection shall be
confidential record and shall not be made available for public inspection at any
time.
(c) Any solicitor General of the judicial circuit in which an abortion is to be
performed under this section, or any person who would be a relative of the child
within the second degree of consanguinity, may petition the superior court of
the county in which the abortion is to be performed for a declaratory judgment
whether the performance of such abortion would violate any constitutional or
other legal rights of the fetus. Such solicitor General may also petition such
court for the purpose of taking issue with compliance with the requirements of
this section. The physician who proposes to perform the abortion and the
pregnant woman shall be respondents. The petition shall be heard expeditiously,
and if the court adjudges that such abortion would violate the constitutional or
other legal rights of the fetus, the court shall so declare and shall restrain
the physician from performing the abortion.
(d) If an abortion is performed in compliance with this section, the death of
the fetus shall not give rise to any claim for wrongful death. [p205]
(e) Nothing in this section shall require a hospital to admit any patient under
the provisions hereof for the purpose of performing an abortion, nor shall any
hospital be required to appoint a committee such as contemplated under
subsection (b)(5). A physician, or any other person who is a member of or
associated with the staff of a hospital, or any employee of a hospital in which
an abortion has been authorized, who shall state in writing an objection to such
abortion on moral or religious grounds shall not be required to participate in
the medical procedures which will result in the abortion, and the refusal of any
such person to participate therein shall not form the basis of any claim for
damages on account of such refusal or for any disciplinary or recriminatory
action against such person.
26-1203. Punishment. A person convicted of criminal abortion shall be punished
by imprisonment for not less than one nor more than 10 years.
APPENDIX B TO OPINION OF THE COURT
American Law Institute
MODEL PENAL CODE
Section 230.3. Abortion.
(1) Unjustified Abortion. A person who purposely and unjustifiably terminates
the pregnancy of another otherwise than by a live birth commits a felony of the
third degree or, where the pregnancy has continued beyond the twenty-sixth week,
a felony of the second degree.
(2) Justifiable Abortion. A licensed physician is justified in terminating a
pregnancy if he believes there is substantial risk that continuance of the
pregnancy would gravely impair the physical or mental health of the mother or
that the child would be born with grave physical or mental defect, or that the
pregnancy resulted from rape, incest, or other felonious intercourse. All [p206]
illicit intercourse with a girl below the age of 16 shall be deemed felonious
for purposes of this subsection. Justifiable abortions shall be performed only
in a licensed hospital except in case of emergency when hospital facilities are
unavailable. [Additional exceptions from the requirement of hospitalization may
be incorporated here to take account of situations in sparsely settled areas
where hospitals are not generally accessible.]
(3) Physicians' Certificates; Presumption from Non-Compliance. No abortion shall
be performed unless two physicians, one of whom may be the person performing the
abortion, shall have certified in writing the circumstances which they believe
to justify the abortion. Such certificate shall be submitted before the abortion
to the hospital where it is to be performed and, in the case of abortion
following felonious intercourse, to the prosecuting attorney or the police.
Failure to comply with any of the requirements of this Subsection gives rise to
a presumption that the abortion was unjustified.
(4) Self-Abortion. A woman whose pregnancy has continued beyond the twenty-sixth
week commits a felony of the third degree if she purposely terminates her own
pregnancy otherwise than by a live birth, or if she uses instruments, drugs or
violence upon herself for that purpose. Except as justified under Subsection
(2), a person who induces or knowingly aids a woman to use instruments, drugs or
violence upon herself for the purpose of terminating her pregnancy otherwise
than by a live birth commits a felony of the third degree whether or not the
pregnancy has continued beyond the twenty-sixth week.
(5) Pretended Abortion. A person commits a felony of the third degree if,
representing that it is his purpose to perform an abortion, he does an act
adapted to cause abortion in a pregnant woman although the woman is in fact, not
pregnant, or the actor does not believe she is. [p207] A person charged with
unjustified abortion under Subsection (1) or an attempt to commit that offense
may be convicted thereof upon proof of conduct prohibited by this Subsection.
(6) Distribution of Abortifacients. A person who sells, offers to sell,
possesses with intent to sell, advertises, or displays for sale anything
specially designed to terminate a pregnancy, or held out by the actor as useful
for that purpose, commits a misdemeanor, unless:
(a) the sale, offer or display is to a physician or druggist or to an
intermediary in a chain of distribution to physicians or druggists; or
(b) the sale is made upon prescription or order of a physician; or
(c) the possession is with intent to sell as authorized in paragraphs (a) and
(b); or
(d) the advertising is addressed to persons named in paragraph (a) and confined
to trade or professional channels not likely to reach the general public.
(7) Section Inapplicable to Prevention of Pregnancy. Nothing in this Section
shall be deemed applicable to the prescription, administration or distribution
of drugs or other substances for avoiding pregnancy, whether by preventing
implantation of a fertilized ovum or by any other method that operates before,
at or immediately after fertilization.
1. The portions italicized in Appendix A are those held unconstitutional by the
District Court.
2. Brief for Appellants 25 n. 5; Tr. of Oral Arg. 9.
3. See Roe v. Wade, ante p. 113, at 140 n. 37.
4. The pertinent provisions of the 1876 statute were:
Section I. Be it enacted, etc., That from and after the passage of this Act, the
willful killing of an unborn child, so far developed as to be ordinarily called
"quick," by any injury to the mother of such child, which would be murder if it
resulted in the death of such mother, shall be guilty of a felony, and
punishable by death or imprisonment for life, as the jury trying the case may
recommend.
Sec. II. Be it further enacted, That every person who shall administer to any
woman pregnant with a child, any medicine, drug, or substance whatever, or shall
use or employ any instrument or other means, with intent thereby to destroy such
child, unless the same shall have been necessary to preserve the life of such
mother, or shall have been advised by two physicians to be necessary for such
purpose, shall, in case the death of such child or mother be thereby produced,
be declared guilty of an assault with intent to murder.
Sec. III. Be it further enacted, That any person who shall willfully administer
to any pregnant woman any medicine, drug or substance, or anything whatever, or
shall employ any instrument or means whatever, with intent thereby to procure
the miscarriage or abortion of any such woman, unless the same shall have been
necessary to preserve the life of such woman, or shall have been advised by two
physicians to be necessary for that purpose, shall, upon conviction, be punished
as prescribed in section 4310 of the Revised Code of Georgia.
It should be noted that the second section, in contrast to the first, made no
specific reference to quickening. The section was construed, however, to possess
this line of demarcation. Taylor v. State, 105 Ga. 846, 33 S.E.190 (1899).
5. In contrast with the ALI model, the Georgia statute makes no specific
reference to pregnancy resulting from incest. We were assured by the State at
reargument that this was because the statute's reference to "rape" was intended
to include incest. Tr. of Oral Rearg. 32.
6. Appellants by their complaint, App. 7, allege that the name is a pseudonym.
7. In answers to interrogatories, Doe stated that her application for an
abortion was approved at Georgia Baptist Hospital on May 5, 1970, but that she
was not approved as a charity patient there, and had no money to pay for an
abortion. App. 64.
8. What we decide today obviously has implications for the issues raised in the
defendants' appeal pending in the Fifth Circuit.
9. Tr. of Oral Arg. 21-22.
10. Brief for Appellants 25.
11. We were advised at reargument, Tr. of Oral Rearg. 10, that only 54 of
Georgia's 159 counties have a JCAH-accredited hospital.
12. Since its founding, JCAH has pursued the "elusive goal" of defining the
"optimal setting" for "quality of service in hospitals." JCAH, Accreditation
Manual for Hospitals, Foreword (Dec.1970). The Manual's Introduction states the
organization's purpose to establish standards and conduct accreditation programs
that will afford quality medical care "to give patients the optimal benefits
that medical science has to offer." This ambitious and admirable goal is
illustrated by JCAH's decision in 1966 "[t]o raise and strengthen the standards
from their present level of minimum essential to the level of optimum
achievable. . . ." Some of these "optimum achievable" standards required are:
disclosure of hospital ownership and control; a dietetic service and written
dietetic policies; a written disaster plan for mass emergencies; a nuclear
medical services program; facilities for hematology, chemistry, microbiology,
clinical microscopy, and sero-immunology; a professional library and document
delivery service; a radiology program; a social services plan administered by a
qualified social worker; and a special care unit.
13. "The Joint Commission neither advocates nor opposes any particular position
with respect to elective abortions." Letter dated July 9, 1971, from John I.
Brewer, M.D., Commissioner, JCAH, to the Rockefeller Foundation. Brief for amici
curiae, American College of Obstetricians and Gynecologists et al., p. A-3.
14. See Roe v. Wade, ante at 146-147, n. 40.
15. Some state statutes do not have the JCAH accreditation requirement. Alaska
Stat. § 11.15.060 (1970); Hawaii Rev.Stat. § 453-16 (Supp. 1971); N.Y.Penal Code
§ 125.05, subd. 3 (Supp. 1972-1973). Washington has the requirement, but couples
it with the alternative of "a medical facility approved . . . by the state board
of health." Wash.Rev.Code § 9.02.070 (Supp. 1972). Florida's new statute has a
similar provision. Law of Apr. 13, 1972, c. 72-196, § 1(2). Others contain the
specification. Ark.Stat.Ann. §§ 41-303 to 41-310 (Supp. 1971); Calif.Health &
Safety Code §§ 25950-25955.5 (Supp. 1972); Colo.Rev.Stat.Ann. §§ 40-2-50 to
40-2-53 (Cum.Supp. 1967); Kan.Stat.Ann. § 21-3407 (Supp. 1971); Md.Ann.Code,
Art. 43, §§ 137-139 (1971). Cf. Del.Code Ann., Tit. 24, §§ 1790-1793 (Supp.
1972), specifying "a nationally recognized medical or hospital accreditation
authority," § 1790(a).
16. L. Baker & M. Freeman, Abortion Surveillance at Grady Memorial Hospital
Center for Disease Control (June and July 1971) (U.S. Dept. of HEW, Public
Health Service).
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