Blackmun, J. -- Opinion of the Court
[*116] MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This Texas federal appeal and its Georgia companion, Doe v. Bolton, post,
p. 179, present constitutional challenges to state criminal abortion
legislation. The Texas statutes under attack here are typical of those that
have been in effect in many States for approximately a century. The Georgia
statutes, in contrast, have a modern cast and are a legislative product
that, to an extent at least, obviously reflects the influences of recent
attitudinal change, of advancing medical knowledge and techniques, and of
new thinking about an old issue.
We forthwith acknowledge our awareness of the sensitive and emotional
nature of the abortion controversy, of the vigorous opposing views, even
among physicians, and of the deep and seemingly absolute convictions that
the subject inspires. One's philosophy, one's experiences, one's exposure
to the raw edges of human existence, one's religious training, one's
attitudes toward life and family and their values, and the moral standards
one establishes and seeks to observe, are all likely to influence and to
color one's thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones
tend to complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional measurement,
free of emotion and of predilection. We seek earnestly to do this, and,
because we do, we [*117] have inquired into, and in this opinion place some
emphasis upon, medical and medical-legal history and what that history
reveals about man's attitudes toward the abortion procedure over the
centuries. We bear in mind, too, Mr. Justice Holmes' admonition in his
now-vindicated dissent in Lochner v. New York, 198 U. S. 45, 76 (1905):
"[The Constitution] is made for people of fundamentally differing views,
and the accident of our finding certain opinions natural and familiar or
novel and even shocking ought not to conclude our judgment upon the
question whether statutes embodying them conflict with the Constitution of
the United States."
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the
State's Penal Code.(1) These make it a crime to "procure an abortion," as
therein [*118] defined, or to attempt one, except with respect to "an
abortion procured or attempted by medical advice for the purpose of saving
the life of the mother." Similar statutes are in existence in a majority of
[*119] Texas first enacted a criminal abortion statute in 1854. Texas Laws
1854 c. 49, § 1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898).
This was soon modified into language that has remained substantially
unchanged to the present time. See Texas Penal Code of 1857, c. 7 Arts.
531-536; G. Paschal, Laws of Texas, Arts. 2192-2197 (1866); Texas Rev.
Stat., c. 8, Arts. 536-541 (1879); Texas Rev. Crim. Stat., Arts. 1071-1076
(1911). The final article in each of these compilations provided the same
exception, as does the present Article 1196, for an abortion by "medical
advice for the purpose of saving the life of the mother."(3)[*120]
Jane Roe,(4) a single woman who was residing in Dallas County, Texas,
instituted this federal action in March 1970 against the District Attorney
of the county. She sought a declaratory judgment that the Texas criminal
abortion statutes were unconstitutional on their face, and an injunction
restraining the defendant from enforcing the statutes.
Roe alleged that she was unmarried and pregnant; that she wished to
terminate her pregnancy by an abortion "performed by a competent, licensed
physician, under safe clinical conditions"; that she was unable to get a
"legal" abortion in Texas because her life did not appear to be threatened
by the continuation of her pregnancy; and that she could not afford to
travel to another jurisdiction in order to secure a legal abortion under
safe conditions. She claimed that the Texas statutes were
unconstitutionally vague and that they abridged her right of personal
privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth
Amendments. By an amendment to her complaint Roe purported to sue "on
behalf of herself and all other women" similarly situated.
James Hubert Hallford, a licensed physician, sought and was granted leave
to intervene in Roe's action. In his complaint he alleged that he had been
arrested previously for violations of the Texas abortion statutes and
[*121] that two such prosecutions were pending against him. He described
conditions of patients who came to him seeking abortions, and he claimed
that for many cases he, as a physician, was unable to determine whether
they fell within or outside the exception recognized by Article 1196. He
alleged that, as a consequence, the statutes were vague and uncertain, in
violation of the Fourteenth Amendment, and that they violated his own and
his patients' rights to privacy in the doctor- patient relationship and his
own right to practice medicine, rights he claimed were guaranteed by the
First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
John and Mary Doe,(5) a married couple, filed a companion complaint to that
of Roe. They also named the District Attorney as defendant, claimed like
constitutional deprivations, and sought declaratory and injunctive relief.
The Does alleged that they were a childless couple; that Mrs. Doe was
suffering from a "neuralchemical" disorder; that her physician had "advised
her to avoid pregnancy until such time as her condition has materially
improved" (although a pregnancy at the present time would not present "a
serious risk" to her life); that, pursuant to medical advice, she had
discontinued use of birth control pills; and that if she should become
pregnant, she would want to terminate the pregnancy by an abortion
performed by a competent, licensed physician under safe, clinical
conditions. By an amendment to their complaint, the Does purported to sue
"on behalf of themselves and all couples similarly situated."
The two actions were consolidated and heard together by a duly convened
three-judge district court. The suits thus presented the situations of the
pregnant single woman, the childless couple, with the wife not pregnant,
[*122] and the licensed practicing physician, all joining in the attack on
the Texas criminal abortion statutes. Upon the filing of affidavits,
motions were made for dismissal and for summary judgment. The court held
that Roe and members of her class, and Dr. Hallford, had standing to sue
and presented justiciable controversies, but that the Does had failed to
allege facts sufficient to state a present controversy and did not have
standing. It concluded that, with respect to the requests for a declaratory
judgment, abstention was not warranted. On the merits, the District Court
held that the "fundamental right of single women and married persons to
choose whether to have children is protected by the Ninth Amendment,
through the Fourteenth Amendment," and that the Texas criminal abortion
statutes were void on their face because they were both unconstitutionally
vague and constituted an overbroad infringement of the plaintiffs' Ninth
Amendment rights. The court then held that abstention was warranted with
respect to the requests for an injunction. It therefore dismissed the Does'
complaint, declared the abortion statutes void, and dismissed the
application for injunctive relief. 314 F. Supp. 1217, 1225 (ND Tex. 1970).
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.
S. C. § 1253, have appealed to this Court from that part of the
District Court's judgment denying the injunction. The defendant District
Attorney has purported to cross-appeal, pursuant to the same statute, from
the court's grant of declaratory relief to Roe and Hallford. Both sides
also have taken protective appeals to the United States Court of Appeals
for the Fifth Circuit. That court ordered the appeals held in abeyance
pending decision here. We postponed decision on jurisdiction to the hearing
on the merits. 402 U.S. 941 (1971). [*123]
It might have been preferable if the defendant, pursuant to our Rule 20,
had presented to us a petition for certiorari before judgment in the Court
of Appeals with respect to the granting of the plaintiffs' prayer for
declaratory relief. Our decisions in Mitchell v. Donovan, 398 U.S. 427
(1970), and Gunn v. University Committee, 399 U.S. 383 (1970), are to the
effect that § 1253 does not authorize an appeal to this Court from the
grant or denial of declaratory relief alone. We conclude, nevertheless,
that those decisions do not foreclose our review of both the injunctive and
the declaratory aspects of a case of this kind when it is properly here, as
this one is, on appeal under § 1253 from specific denial of injunctive
relief, and the arguments as to both aspects are necessarily identical. See
Carter v. Jury Comm'n, 396 U.S. 320 (1970); Florida Lime Growers v.
Jacobsen, 362 U.S. 73, 80-81 (1960). It would be destructive of time and
energy for all concerned were we to rule otherwise. Cf. Doe v. Bolton,
post, p. 179.
We are next confronted with issues of justiciability, standing, and
abstention. Have Roe and the Does established that "personal stake in the
outcome of the controversy," Baker v. Carr, 369 U.S. 186, 204 (1962), that
insures that "the dispute sought to be adjudicated will be presented in an
adversary context and in a form historically viewed as capable of judicial
resolution," Flast v. Cohen, 392 U.S. 83, 101 (1968), and Sierra Club v.
Morton, 405 U.S. 727, 732 (1972)? And what effect did the pendency of
criminal abortion charges against Dr. Hallford in state court have upon the
propriety of the federal court's granting relief to him as a
A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that
Roe is a fictitious person. For purposes of her case, we accept as true,
and as established, her existence; her pregnant state, as of the inception
of her suit in March 1970 and as late as May 21 of that year when she filed
an alias affidavit with the District Court; and her inability to obtain a
legal abortion in Texas.
Viewing Roe's case as of the time of its filing and thereafter until as
late as May, there can be little dispute that it then presented a case or
controversy and that, wholly apart from the class aspects, she, as a
pregnant single woman thwarted by the Texas criminal abortion laws, had
standing to challenge those statutes. Abele v. Markle, 452 F.2d 1121, 1125
(CA2 1971); Crossen v. Breckenridge, 446 F.2d 833, 838-839 (CA6 1971); Poe
v. Menghini, 339 F. Supp. 986, 990-991 (Kan. 1972). See Truax v. Raich, 239
U.S. 33 (1915). Indeed, we do not read the appellee's brief as really
asserting anything to the contrary. The "logical nexus between the status
asserted and the claim sought to be adjudicated," Flast v. Cohen, 392 U.S.,
at 102, and the necessary degree of contentiousness, Golden v. Zwickler,
394 U.S. 103 (1969), are both present.
The appellee notes, however, that the record does not disclose that Roe was
pregnant at the time of the District Court hearing on May 22, 1970,(6) or
on the following June 17 when the court's opinion and judgment were filed.
And he suggests that Roe's case must now be moot because she and all other
members of her class are no longer subject to any 1970 pregnancy. [*125]
The usual rule in federal cases is that an actual controversy must exist at
stages of appellate or certiorari review, and not simply at the date the
action is initiated. United States v. Munsingwear, Inc., 340 U.S. 36
(1950); Golden v. Zwickler, supra; SEC v. Medical Committee for Human
Rights, 404 U.S. 403 (1972).
But when, as here, pregnancy is a significant fact in the litigation, the
normal 266-day human gestation period is so short that the pregnancy will
come to term before the usual appellate process is complete. If that
termination makes a case moot, pregnancy litigation seldom will survive
much beyond the trial stage, and appellate review will be effectively
denied. Our law should not be that rigid. Pregnancy often comes more than
once to the same woman, and in the general population, if man is to
survive, it will always be with us. Pregnancy provides a classic
justification for a conclusion of nonmootness. It truly could be "capable
of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC,
219 U.S. 498, 515 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816 (1969);
Carroll v. Princess Anne, 393 U.S. 175, 178-179 (1968); United States v. W.
T. Grant Co., 345 U.S. 629, 632-633 (1953).
We, therefore, agree with the District Court that Jane Roe had standing to
undertake this litigation, that she presented a justiciable controversy,
and that the termination of her 1970 pregnancy has not rendered her case
B. Dr. Hallford. The doctor's position is different. He entered Roe's
litigation as a plaintiff- intervenor, alleging in his complaint that he:
"[I]n the past has been arrested for violating the Texas Abortion
Laws and at the present time stands charged by indictment with
violating said laws in the Criminal District Court of Dallas
County, Texas to-wit: (1) The State of Texas vs. James H.
Hallford, No. C-69-5307-IH, and (2) The State of Texas vs. [*126]
James H. Hallford, No. C-69-2524-H. In both cases the defendant
is charged with abortion ...."
In his application for leave to intervene, the doctor made like
representations as to the abortion charges pending in the state court.
These representations were also repeated in the affidavit he executed and
filed in support of his motion for summary judgment.
Dr. Hallford is, therefore, in the position of seeking, in a federal court,
declaratory and injunctive relief with respect to the same statutes under
which he stands charged in criminal prosecutions simultaneously pending in
state court. Although he stated that he has been arrested in the past for
violating the State's abortion laws, he makes no allegation of any
substantial and immediate threat to any federally protected right that
cannot be asserted in his defense against the state prosecutions. Neither
is there any allegation of harassment or bad-faith prosecution. In order to
escape the rule articulated in the cases cited in the next paragraph of
this opinion that, absent harassment and bad faith, a defendant in a
pending state criminal case cannot affirmatively challenge in federal court
the statutes under which the State is prosecuting him, Dr. Hallford seeks
to distinguish his status as a present state defendant from his status as a
"potential future defendant" and to assert only the latter for standing
We see no merit in that distinction. Our decision in Samuels v. Mackell,
401 U. S. 66 (1971), compels the conclusion that the District Court erred
when it granted declaratory relief to Dr. Hallford instead of refraining
from so doing. The court, of course, was correct in refusing to grant
injunctive relief to the doctor. The reasons supportive of that action,
however, are those expressed in Samuels v. Mackell, supra, and in Younger
v. [*127] Harris, 401 U. S. 37 (1971); Boyle v. Landry, 401 U. S. 77
(1971); Perez v. Ledesma, 401 U. S. 82 (1971); and Byrne v. Karalexis, 401
U. S. 216 (1971). See also Dombrowski v. Pfister, 380 U. S. 479 (1965). We
note, in passing, that Younger and its companion cases were decided after
the three-judge District Court decision in this case.
Dr. Hallford's complaint in intervention, therefore, is to be dismissed.(7)
He is remitted to his defenses in the state criminal proceedings against
him. We reverse the judgment of the District Court insofar as it granted
Dr. Hallford relief and failed to dismiss his complaint in intervention.
C. The Does. In view of our ruling as to Roe's standing in her case, the
issue of the Does' standing in their case has little significance. The
claims they assert are essentially the same as those of Roe, and they
attack the same statutes. Nevertheless, we briefly note the Does' posture.
Their [*128] pleadings present them as a childless married couple, the
woman not being pregnant, who have no desire to have children at this time
because of their having received medical advice that Mrs. Doe should avoid
pregnancy, and for "other highly personal reasons." But they "fear . . .
they may face the prospect of becoming parents." And if pregnancy ensues,
they "would want to terminate" it by an abortion. They assert an inability
to obtain an abortion legally in Texas and, consequently, the prospect of
obtaining an illegal abortion there or of going outside Texas to some place
where the procedure could be obtained legally and competently.
We thus have as plaintiffs a married couple who have, as their asserted
immediate and present injury, only an alleged "detrimental effect upon
[their] marital happiness" because they are forced to "the choice of
refraining from normal sexual relations or of endangering Mary Doe's health
through a possible pregnancy." Their claim is that sometime in the future
Mrs. Doe might become pregnant because of possible failure of contraceptive
measures, and at that time in the future she might want an abortion that
might then be illegal under the Texas statutes.
This very phrasing of the Does' position reveals its speculative character.
Their alleged injury rests on possible future contraceptive failure,
possible future pregnancy, possible future unpreparedness for parenthood,
and possible future impairment of health. Any one or more of these several
possibilities may not take place and all may not combine. In the Does'
estimation, these possibilities might have some real or imagined impact
upon their marital happiness. But we are not prepared to say that the bare
allegation of so indirect an injury is sufficient to present an actual case
or controversy. Younger v. Harris, 401 U. S., at 41-42; Golden v. Zwickler,
394 U. S., at 109-110; Abele v. Markle, 452 F. 2d, at 1124-1125; Crossen v.
Breckenridge, 446 F. 2d, at 839. The Does' claim falls far short of those
resolved otherwise in the cases that the Does urge upon us, namely,
Investment Co. Institute v. Camp, 401 U. S. 617 (1971); Data Processing
Service v. Camp, 397 U. S. 150 (1970); [*129] and Epperson v. Arkansas, 393
U. S. 97 (1968). See also Truax v. Raich, 239 U. S. 33 (1915).
The Does therefore are not appropriate plaintiffs in this litigation. Their
complaint was properly dismissed by the District Court, and we affirm that
[Next section of opinion]
[Case overview (Syllabus)]
"Article 1191. Abortion "If any person shall designedly
administer to a pregnant woman or knowingly procure to be
administered with her consent any drug or medicine, or shall use
towards her any violence or means whatever externally or
internally applied, and thereby procure an abortion, he shall be
confined in the penitentiary not less than two nor more than five
years; if it be done without her consent, the punishment shall be
doubled. By `abortion' is meant that the life of the fetus or
embryo shall be destroyed in the woman's womb or that a premature
birth thereof be caused.
"Art. 1192. Furnishing the means "Whoever furnishes the means for
procuring an abortion knowing the purpose intended is guilty as
"Art. 1193. Attempt at abortion
"If the means used shall fail to produce an abortion, the
offender is nevertheless guilty of an attempt to produce
abortion, provided it be shown that such means were calculated to
produce that result, and shall be fined not less than one hundred
nor more than one thousand dollars.
"Art. 1194. Murder in producing abortion
"If the death of the mother is occasioned by an abortion so
produced or by an attempt to effect the same it is murder."
"Art. 1196. By medical advice
"Nothing in this chapter applies to an abortion procured or
attempted by medical advice for the purpose of saving the life of
The foregoing Articles, together with Art. 1195, compose Chapter 9 of Title
15 of the Penal Code. Article 1195, not attacked here, reads:
"Art. 1195. Destroying unborn child
"Whoever shall during parturition of the mother destroy the
vitality or life in a child in a state of being born and before
actual birth, which child would otherwise have been born alive,
shall be confined in the penitentiary for life or for not less
than five years."
[Return to text]
2 Ariz. Rev. Stat. Ann. § 13-211 (1956); Conn. Pub. Act No. 1 (May
1972 special session) (in 4 Conn. Leg. Serv. 677 (1972)), and Conn. Gen.
Stat. Rev. §§ 53-29, 53- 30 (1968) (or unborn child); Idaho Code
§ 18-601 (1948); Ill. Rev. Stat., c. 38, § 23-1 (1971); Ind. Code
§ 35-1-58-1 (1971); Iowa Code § 701.1 (1971); Ky. Rev. Stat.
§ 436.020 (1962); La. Rev. Stat. § 37:1285(6) (1964) (loss of
medical license) (but see § 14:87 (Supp. 1972) containing no exception
for the life of the mother under the criminal statute); Me. Rev. Stat.
Ann., Tit. 17, § 51 (1964); Mass. Gen. Laws Ann., c. 272, § 19
(1970) (using the term "unlawfully," construed to exclude an abortion to
save the mother's life, Kudish v. Bd. of Registration, 356 Mass. 98, 248
N.E.2d 264 (1969)); Mich. Comp. Laws § 750.14 (1948); Minn. Stat.
§ 617.18 (1971); Mo. Rev. Stat. § 559.100 (1969); Mont. Rev.
Codes Ann. § 94-401 (1969); Neb. Rev. Stat. § 28-405 (1964); Nev.
Rev. Stat. § 200.220 (1967); N.H. Rev. Stat. Ann. § 585:13
(1955); N.J. Stat. Ann. § 2A:87-1 (1969) ("without lawful
justification"); N.D. Cent. Code §§ 12- 25-01, 12-25-02 (1960);
Ohio Rev. Code Ann. § 2901.16 (1953); Okla. Stat. Ann., Tit. 21,
§ 861 (1972- 1973 Supp.); Pa. Stat. Ann., Tit. 18, §§ 4718,
4719 (1963) ("unlawful"); R.I. Gen. Laws Ann. § 11-3-1 (1969); S.D.
Comp. Laws Ann. § 22-17-1 (1967); Tenn. Code Ann. §§ 39-301,
39-302 (1956); Utah Code Ann. §§ 76-2-1, 76-2-2 (1953); Vt. Stat.
Ann., Tit. 13, § 101 (1958); W. Va. Code Ann. § 61-2-8 (1966);
Wis. Stat. § 940.04 (1969); Wyo. Stat. Ann. §§ 6-77, 6-78
(1957). [Return to text]
3 Long ago, a suggestion was made that the Texas statutes were
unconstitutionally vague because of definitional deficiencies. The Texas
Court of Crimmal Appeals disposed of that suggestion peremptorily, saying
"It is also insisted in the motion in arrest of judgment that the
statute is unconstitutional and void in that it does not
sufficiently define or describe the offense of abortion. We do
not concur in respect to this question." Jackson v. State, 55
Tex. Cr. R. 79, 89, 115 S.W. 262, 268 (1908).
The same court recently has held again that the State's abortion statutes
are not unconstitutionally vague or overbroad. Thompson v. State (Ct. Crim.
App. Tex. 1971), appeal docketed, No. 71-1200. The court held that "the
State of Texas has a compelling interest to protect fetal life"; that Art.
1191 "is designed to protect fetal life"; that the Texas homicide statutes,
particularly Art. 1205 of the Penal Code, are intended to protect a person
"in existence by actual birth" and thereby implicitly recognize other human
life that is not "in existence by actual birth"; that the definition of
human life is for the legislature and not the courts; that Art. 1196 "is
more definite than the District of Columbia statute upheld in [United
States v.] Vuitch" (402 U.S. 62); and that the Texas statute "is not vague
and indefinite or overbroad." A physician's abortion conviction vras
In Thompson, n. 2, the court observed that any issue as to the burden of
proof under the exemption of Art. 1196 "is not before us." But see Veevers
v. State, 172 Tex. Cr. R. 162, 168-169, 354 S.W.2d 161, 166-167 (1962). Cf.
United States v. Vuitch, 402 U.S. 62, 69- 71 (1971). [Return to text]
4 The name is a pseudonym. [Return to text]
5 These names are pseudonyms. [Return to text]
6 The appellee twice states in his brief that the hearing before the
District Court was held on July 22, 1970. Brief for Appellee 13. The docket
entries, App. 2, and the transcript, App. 76, reveal this to be an error.
The July date appears to be the time of the reporter's transcription. See
App. 77. [Return to text]
7 We need not consider what different result, if any, would follow if Dr.
Hallford's intervention were on behalf of a class. His complaint in
intervention does not purport to assert a class suit and makes no reference
to any class apart from an allegation that he "and others similarly
situated" must necessarily guess at the meaning of Art. 1196. His
application for leave to intervene goes somewhat further, for it asserts
that plaintiff Roe does not adequately protect the interest of the doctor
"and the class of people who are physicians ... [and] the class of people
who are ... patients ...."
The leave application, however, is not the complaint. Despite the District
Court's statement to the contrary, 314 F. Supp., at 1225, we fail to
perceive the essentials of a class suit in the Hallford complaint. [Return