Rosenfeld Susan. Encyclopedia of American Historical Documents

Подождите немного. Документ загружается.

“In order to meet the problem of jury nullification,

legislatures did not try, as before, to refine further the def-

inition of capital homicides. Instead they adopted the

method of forthrightly granting juries the discretion which

they had been exercising in fact.”

The Court concluded: “In light of history, experience,

and the present limitations of human knowledge, we find

it quite impossible to say that committing to the untram-

meled discretion of the jury the power to pronounce life or

death in capital cases is offensive to anything in the Con-

stitution.” . . .

The Court refused to find constitutional dimensions in

the argument that those who exercise their discretion to

send a person to death should be given standards by which

that discretion should be exercised. . . .

But those who advance that argument overlook McGau-

tha, supra.

We are now imprisoned in the McGautha holding.

Indeed the seeds of the present cases are in McGautha

Juries (or judges, as the case may be) have practically

untrammeled discretion to let an accused live or insist that

he die.

* * *

There is increasing recognition of the fact that the basic

theme of equal protection is implicit in “cruel and

unusual” punishments. “A penalty . . .*should be consid-

ered ‘unusually’ imposed if it is administered arbitrarily or

discriminatorily.” The same authors add that “[t]he

extreme rarity with which applicable death penalty provi-

sions are put to use raises a strong inference of arbitrari-

ness,” The President’s Commission on Law Enforcement

and Administration of Justice recently concluded:

“Finally there is evidence that the imposition of the

death sentence and the exercise of dispensing power by

the courts and the executive follow discriminatory pat-

terns. The death sentence is disproportionately imposed

and carried out on the poor, the Negro, and the members

of unpopular groups.”

A study of capital cases in Texas from 1924 to 1968

reached the following conclusions:

“Application of the death penalty is unequal: most of

those executed were poor, young, and ignorant.

“Seventy-five of the 460 cases involved codefen-

dants, who, under Texas law, were given separate trials.

In several instances where a white and a Negro were co-

defendants, the white was sentenced to life imprison-

ment or a term of years, and the Negro was given the

death penalty.

“Another ethnic disparity is found in the type of sen-

tence imposed for rape. The Negro convicted of rape is far

more likely to get the death penalty than a term sentence,

whereas whites and Latins are far more likely to get a term

sentence than the death penalty.”

Warden Lewis E. Lawes of Sing Sing said:

“Not only does capital punishment fail in its justifica-

tion, but no punishment could be invented with so many

inherent defects. It is an unequal punishment in the way it

is applied to the rich and to the poor. The defendant of

wealth and position never goes to the electric chair or to

the gallows. Juries do not intentionally favor the rich, the

law is theoretically impartial, but the defendant with

ample means is able to have his case presented with every

favorable aspect, while the poor defendant often has a

lawyer assigned by the court. Sometimes such assignment

is considered part of political patronage; usually the lawyer

assigned has had no experience whatever in a capital case.”

Former Attorney General Ramsey Clark has said, “It

is the poor, the sick, the ignorant, the powerless and the

hated who are executed.” One searches our chronicles in

vain for the execution of any member of the affluent strata

of this society. The Leopolds and Loebs are given prison

terms, not sentenced to death.

Jackson, a black, convicted of the rape of a white

woman, was 21 years old. A court-appointed psychiatrist

said that Jackson was of average education and average

intelligence, that he was not an imbecile, or schizophrenic,

or psychotic, that his traits were the product of environ-

mental influences, and that he was competent to stand

trial. Jackson had entered the house after the husband left

for work. He held scissors against the neck of the wife,

demanding money. She could find none and a struggle

ensued for the scissors, a battle which she lost; and she was

then raped, Jackson keeping the scissors pressed against

her neck. While there did not appear to be any long-term

traumatic impact on the victim, she was bruised and

abrased in the struggle but was not hospitalized. Jackson

was a convict who had escaped from a work gang in the

area, a result of a three-year sentence for auto theft. He

was at large for three days and during that time had com-

mitted several other offenses—burglary, auto theft, and

assault and battery.

Furman, a black, killed a householder while seeking to

enter the home at night. Furman shot the deceased

through a closed door. He was 26 years old and had fin-

ished the sixth grade in school. Pending trial, he was com-

mitted to the Georgia Central State Hospital for a

psychiatric examination on his plea of insanity tendered by

court-appointed counsel. The superintendent reported

that a unanimous staff diagnostic conference had con-

cluded “that this patient should retain his present diagno-

sis of Mental Deficiency, Mild to Moderate, with Psychotic

Episodes associated with Convulsive Disorder.” The physi-

cians agreed that “at present the patient is not psychotic,

but he is not capable of cooperating with his counsel in the

1642 ERA 9: Postwar United States

preparation of his defense”; and the staff believed “that

he is in need of further psychiatric hospitalization and

treatment.”

Later, the superintendent reported that the staff diag-

nosis was Mental Deficiency, Mild to Moderate, with Psy-

chotic, Episodes associated with Convulsive Disorder. He

concluded, however, that Furman was “not psychotic at

present, knows right from wrong and is able to cooperate

with his counsel in preparing his defense.”

Branch, a black, entered the rural home of a 65-year-

old widow, a white, while she slept and raped her, holding

his arm against her throat. Thereupon he demanded

money and for 30 minutes or more the widow searched for

money, finding little. As he left, Jackson said if the widow

told anyone what happened, he would return and kill her.

The record is barren of any medical or psychiatric evi-

dence showing injury to her as a result of Branch’s attack.

He had previously been convicted of felony theft and

found to be a borderline mental deficient and well below

the average IQ of Texas prison inmates. He had the equiv-

alent of five and a half years of grade school education. He

had a “dull intelligence” and was in the lowest fourth per-

centile of his class.

We cannot say from facts disclosed in these records

that these defendants were sentenced to death because

they were black. Yet our task in not restricted to an effort

to divine what motives impelled these death penalties.

Rather, we deal with a system of law and of justice that

leaves to the uncontrolled discretion of judges or juries the

determination whether defendants committing these

crimes should die or be imprisoned. Under these laws no

standards govern the selection of the penalty. People live

or die, dependent on the whim of on man or of 12.

* * *

Those who wrote the Eighth Amendment knew what price

their forebears had paid for a system based, not on equal

justice, but on discrimination. In those days the target was

not the blacks or the poor, but the dissenters, those who

opposed absolutism in government, who struggled for a

parliamentary regime, and who opposed governments’

recurring efforts to foist a particular religion on the people.

. . . But the tool of capital punishment was used with

vengeance against the opposition and those unpopular

with the regime. One cannot read this history without real-

izing that the desire for equality was reflected in the ban

against “cruel and unusual punishments” contained in the

Eighth Amendment.

In a Nation committed to equal protection of the laws

there is no permissible “caste” aspect of law enforcement.

Yet we know that the discretion of judges and juries in

imposing the death penalty enables the penalty to be selec-

tively applied, feeding prejudices against the accused if he

is poor and despised, and lacking political clout, or if he is

a member of a suspect or unpopular minority, and saving

those who by social position may be in a more protected

position. In ancient Hindu law a Brahman was exempt

from capital punishment, and under that law, “[g]enerally,

in the law books, punishment increased in severity as social

status diminished.” We have, I fear, taken in practice the

same position, partially as a result of making the death

penalty discretionary and partially as a result of the ability

of the rich to purchase the services of the most respected

and most resourceful legal talent in the Nation.

The high service rendered by the “cruel and unusual”

punishment clause of the Eighth Amendment is to require

legislatures to write penal laws that are evenhanded, non-

selective, and nonarbitrary, and to require judges to see to

it that general laws are not applied sparsely, selectively, and

spottily to unpopular groups.

A law that stated that anyone making more than

$50,000 would be exempt from the death penalty would

plainly fall, as would a law that in terms said that blacks,

those who never went beyond the fifth grade in school,

those who made less than $3,000 a year, or those who were

unpopular or unstable should be the only people executed.

A law which in the overall view reaches that result in prac-

tice has no more sanctity than a law which in terms pro-

vides the same.

Thus, these discretionary statutes are unconstitutional

in their operation. They are pregnant with discrimination

and discrimination is an ingredient not compatible with

the idea of equal protection of the laws that is implicit in

the ban on “cruel and unusual” punishments.

Any law which is nondiscriminatory on its face may be

applied in such a way as to violate the Equal Protection

Clause of the Fourteenth Amendment. Yick Wo v. Hop-

kins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. Such con-

ceivably might be the fate of a mandatory death penalty,

where equal or lesser sentences were imposed on the elite,

a harsher one on the minorities or members of the lower

castes. Whether a mandatory death penalty would other-

wise by constitutional is a question I do not reach.

I concur in the judgments of the Court.

Source:

Supreme Court Reporter, Vol. 92, pp. 2,726–2,736.

Shirley Chisholm, Speech on the

Equal Rights Amendment (ERA), 1972

Speech about the Equal Rights Amendment (ERA) to the Con-

stitution given by Representative Shirley Chisholm (D, N.Y.),

the first African-American woman elected to Congress and the

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1643

first to be nominated for U.S. president by a major political

party. The amendment, initially proposed in 1923, would have

prohibited discrimination on the basis of gender. Addressing

the Speaker of the House in 1970, Chisholm strongly advo-

cated the amendment’s passage. She cited federal agencies

and institutions designed to prevent gender discrimination,

pronouncing them ineffective without “the authority of a con-

stitutional amendment.”

The original ERA was proposed by suffragist and feminist

Alice Paul of the National Woman’s Party on the 75th anniver-

sary of the Seneca Falls Convention. It simply stated that “Men

and women shall have equal rights throughout the United

States and every place subject to its jurisdiction.” The amend-

ment was introduced in Congress in 1923 but failed to pass.

While some women’s groups favored it, many opposed it on

the grounds that it would outlaw special legislation that pro-

tected women by keeping them from night-shift hours and

dangerous working conditions. However, the Fair Labor Stan-

dards Act, enacted in 1938, granted many protections previ-

ously applied only to women—such as a minimum wage and

a limitation on the number of hours required to be worked—

to men. Women’s organizations remained divided on the issue

into the 1970s. From 1940 to 1960, both the Democratic and

Republican parties included an endorsement of the ERA in

their party platforms. However, until 1972 it was unable to

gain enough support to get out of committee. In that year,

enough signatures were collected to bring the ERA to the

House floor under a discharge petition, and the ERA was

passed by Congress.

It read:

SEC. 1. Equality of rights under the law shall not be

denied or abridged by the United States or any State

on account of sex.

SEC. 2. The Congress shall have the power to enforce, by

appropriate legislation, the provisions of this article.

SEC. 3. This amendment shall take effect two years after

the date of ratification.

The brevity of the amendment is significant because its

opponents implied that it made mandatory such “horrors”as

unisex bathrooms and putting women into combat. Before the

end of 1973, 30 of the required 38 states ratified the amend-

ment. However, the preamble to the law required its ratifica-

tion within seven years from the date of its submission by the

Congress. Soon a well-organized and effective antifeminist

opposition developed that claimed, in addition to specific

“horrors,” that granting equal rights to women would destroy

American families. Although Congress extended the deadline

for ratification for three years, to June 30, 1982, it remained

three states short of ratification on the day of its demise. Since

1985, the Equal Rights Amendment has been reintroduced

during each session of Congress and held in committee.

Both before and after the ERA left Congress, legislation

has attempted to prevent discrimination against at least some

women. For example, President John F. Kennedy signed the

Equal Pay Act June 10, 1963, requiring equal pay for women,

but applying it only to companies engaged in interstate busi-

ness that employed more than 25 workers. It also barred labor

unions from forcing employers to discriminate in wages on the

basis of sex. A provision to prohibit firms from lowering the

wages of men in order to equalize wages was eliminated

before final passage. The failure of this provision, as well as

various affirmative measures helping women overcome past

discrimination, enabled employers to blame any policy that

appeared to hurt men collectively or individually on equal

rights for women. This perception fed a backlash that helped

defeat the Equal Rights Amendment and that has continued

into the 21st century. For example, universities have used the

excuse of equalizing men’s and women’s sports as a way of

eliminating the cost of men’s sports that do not produce rev-

enue, such as gymnastics or wrestling. (Court decisions have

favored parity even where far fewer women than men pursue

varsity athletics.)

Beginning in the mid-1960s, the National Organization

for Women (NOW), not only advocated overturning legisla-

tion but instituted a cultural change that would bring them not

only legal but social, political, and economic equality with

men. NOW’s statement of purpose, proclaimed at its founding

convention October 29, 1966, declared that its members

would seek to end discrimination against women wherever it

occurred as well as eliminate outdated stereotypes of women.

The statement asserted that NOW would not align itself with

any political party but would seek to ensure that only those

politicians and officials who supported full equality for

women would be elected or appointed to public office. Build-

ing on the black Civil Rights movement, as well as the tactics

of the suffragists of the early 20th century, NOW used demon-

strations, parades, and civil disobedience to promote its cause.

By the late 1960s and early 1970s more radical groups

developed that considered NOW too “establishment.” Loosely

organized, they advocated Marxist principles and some pro-

moted lesbianism. Although they occupied the fringes of the

women’s movement, they appeared to confirm the stereotypes

with which antifeminists tainted ERA promoters, leading to

negative connotations to

feminist

and helping bring down the

Equal Rights Amendment.

As late as 1974, lending institutions continued to dis-

criminate against single women and to insist that husbands

must sign or cosign loans to married women. The Equal Credit

Opportunity Act sought to rectify this by outlawing credit dis-

crimination due to sex or martial status.

________________________

_______________________

Mr. Speaker, House Joint Resolution 264, before us today,

which provides for equality under the law for both men

1644 ERA 9: Postwar United States

and women, represents one of the most clear-cut opportu-

nities we are likely to have to declare our faith in the prin-

ciples that shaped our Constitution. It provides a legal

basis for attack on the most subtle, most pervasive and

most institutionalized form of prejudice that exists. Dis-

crimination against women, solely on the basis of their sex,

is so widespread that it seems to many persons normal,

natural and right. Legal expression of prejudice on the

grounds of religious or political belief has become a minor

problem in our society. Prejudice on the basis of race is, at

least, under systematic attack. There is reason for opti-

mism that it will start to die with the present older gener-

ation. It is time we act to assure full equality of opportunity

to those citizens who, although in a majority, suffer the

restrictions that are commonly imposed on minorities, to

women.

The argument that this amendment will not solve the

problem of sex discrimination is not relevant. If the argu-

ment were used against a civil rights bill—as it has been

used in the past—the prejudice that lies behind it would

be embarrassing. Of course laws will not eliminate preju-

dice from the hearts of human beings. But that is no rea-

son to allow prejudice to continue to be enshrined in our

laws—to perpetuate injustice through inaction.

The amendment is necessary to clarify countless

ambiguities and inconsistencies in our legal system. For

instance, the Constitution guarantees due process of law,

in the Fifth and Fourteenth amendments. But the applica-

bility of due process of sex distinctions is not clear: Women

are excluded from some state colleges and universities. In

some states, restrictions are placed on a married woman

who engages in an independent business. Women may not

be chosen for some juries. Women even receive heavier

criminal penalties than men who commit the same crime.

What would the legal effects of the equal rights

amendment really be? The equal rights amendment would

govern only the relationship between the State and its cit-

izens—not relationships between private citizens.

The amendment would be largely self-executing, that

is, any Federal or State laws in conflict would be ineffec-

tive one year after date of ratification without further

action by the Congress or State legislatures.

Opponents of the amendment claim its ratification

would throw the law into a state of confusion and would

result in much litigation to establish its meaning. This

objection overlooks the influence of legislative history in

determining intent and the recent activities of many

groups preparing for legislative changes in this direction.

State labor laws applying only to women, such as those

limiting hours of work and weights to be lifted would

become inoperative unless the legislature amended them

to apply to men. As of early 1970 most States would have

some laws that would be affected. However, changes are

being made so rapidly as a result of Title VII of the Civil

Rights Act of 1964, it is likely that by the time the equal

rights amendment would become effective, no conflicting

State laws would remain.

In any event, there has for years been great contro-

versy as to the usefulness to women of these State labor

laws. There has never been any doubt that they worked a

hardship on women who need or want to work overtime

and on women who need or want better paying jobs, and

there has been no persuasive evidence as to how many

women benefit from the archaic policy of the laws. After

the Delaware hours law was repealed in 1966, there were

no complaints from women to any of the State agencies

that might have been approached.

Jury service laws not making women equally liable for

jury service would have to be revised.

The selective service law would have to include

women, but women would not be required to serve in the

Armed Forces where they are not fitted any more than

men are required to serve. Military service, while a great

responsibility, is not without benefits, particularly for

young men with limited education or training. Since Octo-

ber 1966, 246,000 young men who did not meet the nor-

mal mental or physical requirements have been given

opportunities for training and correcting physical prob-

lems. This opportunity is not open to their sisters. Only

girls who have completed high school and meet high stan-

dards on the educational test can volunteer. Ratification of

the amendment would not permit application of higher

standards to women.

Survivorship benefits would be available to husbands

of female workers on the same basis as to wives of male

workers. The Social Security Act and the civil service and

military service retirement acts are in conflict.

Public schools and universities could not be limited to

one sex and could not apply different admission standards

to men and women. Laws requiring longer prison sen-

tences for women than men would be invalid, and equal

opportunities for rehabilitation and vocational training

would have to be provided in public correctional institu-

tions.

Different ages of majority based on sex would have to

be harmonized.

Federal, State, and other governmental bodies would

be obligated to follow nondiscriminatory practices in all

aspects of employment, including public school teachers

and State university and college faculties.

What would be the economic effects of the equal

rights amendment? Direct economic effects would be

minor. If any labor laws applying only to women still re-

mained, their amendment or appeal would provide oppor-

tunity for women in better-paying jobs in manufacturing.

More opportunities in public vocational and graduate

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1645

schools for women would also tend to open up opportuni-

ties in better jobs for women.

Indirect effects could be much greater. The focusing

of public attention on the gross legal, economic, and social

discrimination against women by hearings and debates in

the Federal and State legislatures would result in changes

in attitude of parents, educators, and employers that would

bring about substantial economic changes in the long run.

Sex prejudice cuts both ways. Men are oppressed by

the requirements of the Selective Service Act, by enforced

legal guardianship of minors, and by alimony laws. Each

sex, I believe, should be liable when necessary to serve and

defend this country.

Each has a responsibility for the support of children.

There are objections raised to wiping out laws pro-

tecting women workers. No one would condone exploita-

tion. But what does sex have to do with it? Working

conditions and hours that are harmful to women are harm-

ful to men; wages that are unfair for women are unfair for

men. Laws setting employment limitations on the basis of

sex are irrational, and the proof of this is their inconsis-

tency from State to State. The physical characteristics of

men and women are not fixed, but cover two wide spans

that have a great deal of overlap. It is obvious, I think, that

a robust woman could be more fit for physical labor than a

weak man. The choice of occupation would be determined

by individual capabilities, and the rewards for equal work

should be equal.

This is what it comes down to: artificial distinctions

between persons must be wiped out of the law. Legal dis-

crimination between the sexes is, in almost every instance,

founded on outmoded views of society and the prescien-

tific beliefs about psychology and physiology. It is time to

sweep away these relics of the past and set future genera-

tions free of them.

Federal agencies and institutions responsible for the

enforcement of equal opportunity laws need the authority

of a Constitutional amendment. The 1964 Civil Rights

Act and the 1963 Equal Pay Act are not enough; they are

limited in their coverage—for instance, one excludes

teachers, and the other leaves out administrative and pro-

fessional women. The Equal Employment Opportunity

Commission has not proven to be an adequate device, with

its powers limited to investigation, conciliation and recom-

mendation to the Justice Department. In its cases involv-

ing sexual discrimination, it has failed in more than

one-half. The Justice Department has been even less

effective. It has intervened in only one case involving dis-

crimination on the basis of sex, and this was on a procedu-

ral point. In a second case, in which both sexual and racial

discrimination were alleged, the racial bias charge was

given far greater weight.

Evidence of discrimination on the basis of sex should

hardly have to be cited here. It is in the Labor Depart-

ment’s employment and salary figures for anyone who

is still in doubt. Its elimination will involve so many

changes in our State and Federal laws that, without the

authority and impetus of this proposed amendment, it

will perhaps take another 194 years. We cannot be parties

to continuing a delay. The time is clearly now to put

this House on record for the fullest expression of that

equality of opportunity which our founding fathers pro-

fessed.

They professed it, but they did not assure it to their

daughters, as they tried to do for their sons.

The Constitution they wrote was designed to protect

the rights of white, male citizens. As there were no black

Founding Fathers, there were no founding mothers—a

great pity, on both counts. It is not too late to complete the

work they left undone. Today, here, we should start to do so.

In closing I would like to make one point. Social and

psychological effects will be initially more important than

legal or economic results. As Leo Kanowitz has pointed

out:

Rules of law that treat of the sexes per se inevitably

produce far-reaching effects upon social, psychological and

economic aspects of male-female relations beyond the lim-

ited confines of legislative chambers and courtrooms. As

long as organized legal systems, at once the most respected

and most feared of social institutions, continue to differen-

tiate sharply, in treatment or in words, between men and

women on the basis of irrelevant and artificially created

distinctions, the likelihood of men and women coming to

regard one another primarily as fellow human beings and

only secondarily as representatives of another sex will con-

tinue to be remote. When men and women are prevented

from recognizing one another’s essential humanity by sex-

ual prejudices, nourished by legal as well as social institu-

tions, society as a whole remains less than it could

otherwise become.

Source:

African-American History and Culture. CD-ROM. Facts On

File, Inc., 1999.

Roe v. Wade, 1973

Controversial, U.S. Supreme Court decision issued January 22,

1973, ruling that the Fourteenth Amendment gave an adult

woman the right to terminate her pregnancy during the first

trimester without any government interference, and that dur-

ing the second trimester the state may limit that right only to

safeguard a woman’s health.

1646 ERA 9: Postwar United States

The way was cleared for

Roe

in 1965 in

Griswold v. Con-

necticut

(381 U.S. 479), issued June 7, 1965, in which the U.S.

Supreme Court for the first time referred to the right of privacy.

Writing for the majority, Justice William O. Douglas over-

turned a Connecticut statute forbidding the use of contracep-

tives and the dissemination of medical advice on their use.

The seven-person majority agreed that the statute infringed on

a constitutionally protected right to privacy by married per-

sons, even though the constitution did not explicitly include

such a right.

The case involved “Jane Roe” (a pseudonym), an impov-

erished Texas woman who wished to terminate a pregnancy

resulting from a rape. In its 7-2 decision, the Supreme Court

declared a Texas antiabortion statute to be unconstitutional,

as a violation of a woman’s right to personal privacy. It stated

that the fetus was not a person within the meaning of the

Fourteenth Amendment and said that the state had no “com-

pelling interest” in protecting prenatal life until viability. The

decision did not decide the question of when life actually

begins. The ruling aroused a storm of controversy and led to

proposals for a constitutional amendment to prohibit abor-

tions. Despite yearly marches by antiabortion foes every Jan-

uary 22, and a strong antiabortion movement, the decision

remained in effect in the early 21st century. However, the

Court majority approved such limitations as parental consent

for minors and a waiting period before an abortion could take

place—a hardship on wage earners who had to travel long

distances to have an abortion. Republican administrations

prevented federal funds from going to international programs

that might conduct abortion, even if the funds went to other

purposes.

Antiabortion foes became so vociferous that Congress

passed, and the Court upheld, a law limiting how close they

could come to an abortion clinic. Nevertheless, abortion foes

resorted to civil disobedience to obstruct abortion clinics, and

some engaged in terrorism by burning clinics down and

wounding and even assassinating abortion clinic workers.

Both abortion foes and advocates of a woman’s right to choose

in the Senate used the position on abortion by judicial nomi-

nees (among other things) as a litmus test as to whether or not

they would be approved. As a result, a large number of vacan-

cies have gone unfulfilled halfway through the George W.

Bush administration.

Along with Roe, Dr. James Hubert Hallford, under crimi-

nal prosecution in Texas for performing abortions, sought

standing to participate in the case on the grounds that the

statute was too vague to permit him to know whether the

abortions he performed were legal (saving the life of the

mother) or illegal. His part in the case was dismissed. Another

couple, Mr. and Mrs. “Doe” also wanted the law overturned.

They were married, but Mrs. Doe had been warned that a

pregnancy could endanger her health. Therefore, they

claimed that the possibility of either carrying an unwanted

pregnancy to term or seeking an illegal abortion affected their

marital relations. The Court upheld a lower court’s dismissal

of their claim.

A companion case,

Doe v. Bolton

, 410 U.S. 179, was also

decided. It concerned Georgia legislation 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.

________________________

_______________________

Mr. Justice Blackmun delivered the opinion of the Court.

This Texas federal appeal and its Georgia companion,

present constitutional challenges to state criminal abortion

legislation. The Texas statutes under attack here are typi-

cal of those that have been in effect in many States for

approximately a century. 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 stan-

dards 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 constitu-

tional 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 his-

tory reveals about man’s attitudes toward the abortion pro-

cedure over the centuries. We bear in mind, too, Mr.

Justice Holmes’ admonition in his now vindicated dissent

in Lochner v. New York . . . (1905):

“[The Constitution] is made for people of fundamen-

tally differing views, and the accident of our finding certain

opinions natural and familiar, or novel, and even shocking,

ought not to conclude or judgment upon the question

whether statutes embodying them conflict with the Con-

stitution of the United States.”

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

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1647

the life of the mother.” Similar statutes are in existence in

a majority of the States.

Texas first enacted a criminal abortion statute in 1854.

This was soon modified into language that has remained

substantially unchanged to the present time. . . . 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.”

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 injunc-

tion 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 Four-

teenth Amendments. By an amendment to her complaint

Roe purported to sue “on behalf of herself and all other

women: similarly situated. . . .

* * *

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. . .or among those rights

reserved to the people by the Ninth Amendment. 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.

It perhaps is not generally appreciated that the restric-

tive criminal abortion laws in effect in a majority of States

today are of relatively recent vintage. Those laws, generally

proscribing abortion or its attempt at any time during

pregnancy except when necessary to preserve the pregnant

woman’s life, are not of ancient or even of common-law

origin. Instead, they derive from statutory changes

effected, for the most part, in the latter half of the 19th

century.

* * *

5. The American law. In this country, the law in effect in all

but a few States until mid-19th century was the pre-exist-

ing English common law. Connecticut, the first State to

enact abortion legislation, adopted in 1821 that part of

Lord Ellenborough’s Act that related to a woman “quick

with child.” The death penalty was not imposed. Abortion

before quickening was made a crime in that State only in

1860. In 1828, New York enacted legislation that, in two

respects, was to serve as a model for early anti-abortion

statutes. First, while barring destruction of an unquick-

ened fetus as well as a quick fetus, it made the former only

a misdemeanor, but the latter second-degree manslaugh-

ter. Second, it incorporated a concept of therapeutic abor-

tion by providing that an abortion was excused if it “shall

have been necessary to preserve the life of such mother, or

shall have been advised by two physicians to be necessary

for such purpose.” By 1840, when Texas had received the

common law, only eight American States had statutes deal-

ing with abortion. It was not until after the War Between

the States that legislation began generally to replace the

common law. Most of these initial statutes dealt severely

with abortion after quickening but were lenient with it

before quickening. Most punished attempts equally with

completed abortions. While many statutes included the

exception for an abortion thought by one or more physi-

cians to be necessary to save the mother’s life, that provi-

sion soon disappeared and the typical law required that the

procedure actually be necessary for that purpose.

Gradually, in the middle and late 19th century the

quickening distinction disappeared from the statutory law

of most States and the degree of the offense and the penal-

ties were increased. By the end of the 1950’s a large major-

ity of the jurisdictions banned abortion, however and

whenever performed, unless done to save or preserve the

life of the mother. The exceptions, Alabama and the Dis-

trict of Columbia, permitted abortion to preserve the

mother’s health. Three States permitted abortions that

were not “unlawfully” performed or that were not “without

lawful justification,” leaving interpretation of those stan-

dards to the courts. In the past several years, however, a

trend toward liberalization of abortion statutes has

resulted in adoption, by about one-third of the States, of

less stringent laws. . .

It is thus apparent that at common law, at the time of

the adoption of our Constitution, and throughout the

major portion of the 19th century, abortion was viewed

with less disfavor than under most American statutes cur-

rently in effect. Phrasing it another way, a woman enjoyed

1648 ERA 9: Postwar United States

a substantially broader right to terminate a pregnancy than

she does in most States today. At least with respect to the

early stage of pregnancy, and very possibly without such a

limitation, the opportunity to make this choice was present

in this country well into the 19th century. Even later, the

law continued for some time to treat less punitively an

abortion procured in early pregnancy.

* * *

VII

Three reasons have been advanced to explain historically

the enactment of criminal abortion laws in the 19th cen-

tury and to justify their continued existence.

It has been argued occasionally that these laws were

the product of a Victorian an 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 moth-

ers.

A second reason is concerned with abortion as a med-

ical 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 develop-

ment of antisepsis. Antiseptic techniques, of course, were

based on discoveries by Lister, Pasteur, and others first

announced in 1867, but were not generally accepted and

employed until about the turn of the century. Abortion

mortality was high. Even after 1900, and perhaps until as

late as the development of antibiotics in the 1940’s, stan-

dard modern techniques such as dilation and curettage

were not nearly so safe as they are today. Thus, it has been

argued that a State’s real concern in enacting a criminal

abortion law was to protect the pregnant woman, that is, to

restrain her from submitting to a procedure that placed

her life in serious jeopardy.

Modern medical techniques altered this situation.

Appellants and various amici refer to medical data indi-

cating 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 abor-

tion, like any other medical procedure, is performed

under circumstances that insure maximum safety for the

patient. This interest obviously extends at least to the per-

forming 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 inter-

est 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 with 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.

Parties challenging state abortion laws have sharply

disputed in some courts the contention that a purpose of

these laws, when enacted, was to protect prenatal life.

Pointing to the absence of legislative history to support the

contention, they claim that most state laws were designed

solely to protect the woman. Because medical advances

have lessened this concern, at least with respect to abor-

tion in early pregnancy, they argue that with respect to

such abortions the laws can no longer be justified by any

state interest. There is some scholarly support for this view

of original purpose. The few state courts called upon to

interpret their laws in the late 19th and early 20th cen-

turies did focus on the State’s interest in protecting the

woman’s health rather than in preserving the embryo and

fetus. Proponents of this view point out that in many

States, including Texas, by statute or judicial interpreta-

tion, the pregnant woman herself could not be prosecuted

for self-abortion or for cooperating in an abortion per-

formed upon her by another. They claim that adoption of

the “quickening” distinction through received common

law and state statutes tacitly recognizes the greater health

hazards inherent in late abortion and impliedly repudiates

the theory that life begins at conception.

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1649

It is with these interests, and the weight to be attached

to them, that this case is concerned.

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 . . . (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 . . . ; in the Fourth and

Fifth Amendments . . . ; in the penumbras of the Bill of

Rights . . . ; in the Ninth Amendment . . . ; or in the con-

cept of liberty guaranteed by the first section of the Four-

teenth Amendment. . . . These decisions make it clear that

only personal rights that can be deemed “fundamental” or

“implicit in the concept of ordered liberty” . . . are in-

cluded in this guarantee of personal privacy. They also

make it clear that the right has some extension to activities

relating to marriage . . . ; procreation . . . ; contraception,

. . . ; family relationships . . . ; and child rearing and edu-

cation. . . .

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 Dis-

trict Court determined, in the Ninth Amendment’s reser-

vation 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 alto-

gether 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 con-

cerned, 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 physi-

cian 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 sup-

port 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. . . .

We, therefore, conclude that the right of personal pri-

vacy includes the abortion decision, but that this right is

not unqualified and must be considered against important

state interests in regulation.

We note that those federal and state courts that have

recently considered abortion law challenges have reached

the same conclusion. A majority, in addition to the District

Court in the present case, have held state laws unconstitu-

tional, at least in part, because of vagueness or because of

overbreadth and abridgment of rights. . . .

Others have sustained state statutes. . . .

Although the result are divided, most of these courts

have agreed that the right of privacy, however based, is

broad enough to cover the abortion decision; that the

right, nonetheless, is not absolute and is subject to some

limitations; and that at some point the state interests as to

protection of health, medical standards, and parental life,

become dominant. We agree with this approach.

Where certain “fundamental rights” are involved, the

Court has held that regulation limiting these rights may be

justified only by a “compelling state interest,” . . . 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 pro-

tecting 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.

The district Court held that the appellee failed to meet his

burden of demonstrating that the Texas statute’s infringe-

ment upon Roe’s rights was necessary to support a com-

pelling state interest, and that, although the appellee

1650 ERA 9: Postwar United States

presented “several compelling justifications for state pres-

ence in the area of abortions,” the statutes outstripped

these justifications and swept “far beyond any areas of

compelling state interest.” . . . Appellant and appellee both

contest that holding. Appellant, as has been indicated,

claims as 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. . . .

The appellee and certain amici argue that the fetus is

a “person” within the language and meaning of the Four-

teenth Amendment. In support of this, they outline at

length and in detail the well-known facts of fetal devel-

opment. 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 rear-

gument. On the other hand, the appellee conceded on

reargument 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 “citi-

zens,” 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, Sec-

tion 2, cl. 2, and Section 3, cl. 3; in the Apportionment

Clause, Art. I, Section 2, cl. 3; in the Migration and Impor-

tation provision, Art I, Section 9, cl. 1; in the Emolument

Clause, Art. I, Section 9, cl. 8; in the Electors provisions

Art. II, Section 1, cl. 2, and the superseded cl. 3; in the

provision outlining qualifications for the office of the Pres-

ident, Art, II, Section 1, cl. 5; in the Extradition provisions,

Art, IV, Section 2, cl. 2, and the superseded Fugitive Slave

Clause 3; and in the Fifth, Twelfth, and Twenty-second

Amendments, as well as in SectionSection 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 prenatal application.

All this, together with our observation, supra, that

throughout the major portion of the 19th century prevail-

ing legal abortion practices were far freer than they are

today, persuades us that the word “person,” as used in the

Fourteenth Amendment, does not include the unborn.

This is in accord with the results reached in those few

cases where the issue has been squarely presented. . . .

Indeed, our decision in United States v. Vuitch . . . (1971),

inferentially is to the same effect, for we there would not

have indulged in statutory interpretation favorable to abor-

tion in specified circumstances if the necessary conse-

quence 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. . . .

The pregnant woman cannot be isolated in her pri-

vacy. She carried an embryo and, later, a fetus, if one

accepts the medical definitions of the developing young in

the human uterus. . . . The situation therefore is inherently

different from marital intimacy, or bedroom possession of

obscene material, or marriage, or procreation, or educa-

tion, with which Eisenstadt and Grisworld, Stanley, Lov-

ing, 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 pri-

vacy she possesses must be measured accordingly.

Texas urges that, apart from the Fourteenth Amend-

ment, 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 develop-

ment of man’s knowledge, is not in a position to speculate

as to the answer.

It should be sufficient to note briefly the wide diver-

gence 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. It appears to be the predominant,

though not the unanimous, attitude of the Jewish faith. It

may be taken to represent also the position of a large seg-

ment of the Protestant community, insofar at 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. As we have noted, the common law found

greater significance in quickening. Physicians 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 out-

side the mother’s womb, albeit with artificial aid. Viability

is usually placed at about seven months (28 weeks) but

may occur earlier, even at 24 weeks. The Aristotelian the-

ory of “mediate animation,” that held sway throughout

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1651