Transcript Of Reargument Before The U.S. Supreme
Court In Jane Roe, et al. Appellants v. Henry Wade
October 11, 1972
Transcribed by The Oyez Projectat Northwestern University
MS. WEDDINGTON: Mr. Chief Justice, and may it please the
We are once again before this Court to ask relief against
the continued enforcement of the Texas abortion statute. And
I ask that you affirm the ruling of the three judge court
below which held our statute unconstitutional for two
reasons: The first, that it was vague; and the second, that
it interfered with the Ninth Amendment rights of a woman to
determine whether or not she would continue or terminate a
As you will recall, there are three- four- three plaintiffs
and one intervenor involved here. The first plaintiff was
Jane Roe, an unmarried, pregnant girl who had sought an
abortion in the State of Texas and was denied it because of
the Texas abortion statute, which provides an abortion is
lawful only for the purpose of saving the life of the woman.
In the original action she was joined by a married couple,
John and Mary Doe. Ms. Doe had a medical condition. Her
doctor had recommended, first, that she not get pregnant;
and, second, that she not take the pill.
After this cause was instituted, and after, in fact, the
three judge court had been granted, those three plaintiffs
were joined by an intervenor, Dr. Hallford, who was, at the
time he intervened, under a pending State criminal
prosecution under the statute. He did not ask that his
prosecution be stopped by the court, but rather joined in
the original request for a declaratory judgment and
injunctive relief against future prosecution. As a matter of
fact, he has not-his prosecution has not been continued. But
the District Attorney against whom we filed the suit has
taken a position that, because there was no injunction, he
is still free to institute prosecutions. There is a letter
from his office in the Appendix stating that he will
continue prosecutions. And, in fact, there have been a very
limited number of prosecutions in the State of Texas since
the three judge court entered its declaratory judgment.
CHIEF JUSTICE WARREN E. BURGER: Prosecutions of doctors,
you're speaking of?
MS. WEDDINGTON: Prosecutions of doctors, yes, sir.
The problem that we face in Texas is that even though we
were granted a declaratory judgment ruling the law
unconstitutional, even though we've been before this Court
once in the past, in Texas women still are not able to
receive abortions from licensed doctors, because doctors
still fear that they will be prosecuted under the statute.
So, if the declaratory judgment was any relief at all, it
was an almost meaningful relief, because the women of Texas
still must either travel to other states-if they are that
sophisticated and can afford it-or they must resort to some
other less-some other very undesirable alternatives.
CHIEF JUSTICE BURGER: You said "meaningful." You meant
"meaningless," didn't you?
MS. WEDDINGTON: Yes.
It's just-in fact, we pointed out in our supplemental brief
filed here that there have been something like 1,600 Texas
women who have gone to New York City alone for abortions in
the first nine months of 1971. In addition, I think the
Court would recognize there are many other women going to
other parts of the country.
One of the objections that our opponents have raised-the
same in this Court- is moot because, of course, the woman is
no longer pregnant. It's been almost three years since we
instituted the original action." And yet we can certainly
show that it is a continuing problem to Texas women. There
still are unwanted pregnancies. There are still women who,
for various reasons, do not wish to continue the
pregnancy-whether because of personal health considerations;
whether because of their family situation; whether because
of financial situations, education, working situations; some
of the many things we discussed at the last hearing.
Since the last hearing before this Court, there have been a
few cases decided that we wanted to draw the .Court's
attention to, and are covered in our supplemental brief. In
addition, there is a supplemental brief filed by an amicus
party, Harriet Pilpel, on behalf of Planned Parenthood of
New York, that seeks to point out to the Court, at pages 6
and 7 and subsequent pages, some of the changing medical
statistics available regarding the procedure of abortion.
For example, that brief points out that the overall maternal
death rate from legal abortion in New York dropped to 3.7
per 100,000 abortions in the last half of 1971. And that, in
fact, is less than half the death rate associated with live
delivery for women. That, in fact, the maternal
morbid...mortality rate has decreased by about two-thirds to
a record low in New York in 1971. That now, in 1971, New
York recorded the lowest infant mortality rate ever in that
State. That during the first 18 months of-well, from July
1st, 1970, to December 31st, 1971, out-of-wedlock
pregnancies have dropped by 14 percent. We now have other
statistics coming from California, and other states, that
show that not only has the overall birth rate declined, but
the welfare birth rate has also declined accordingly.
As to the women, this is their only forum. They are in a
very unique situation for several reasons. First, because of
the very nature of the interest involved, their primary
interest being the interest associated with the question of
whether or not they will be forced by the State to continue
an unwanted pregnancy.
In our original brief we alleged a number of constitutional
grounds. The main ones that we are relying on before this
Court are the Fifth, the Ninth, and the Fourteenth
Amendments. There is a great body of precedents. Certainly
we cannot say that there is in the Constitution-so
stated-the right to an abortion. But neither is there stated
the right to travel, or some of the other very basic rights
that this Court has held are under the United States
The Court has in the past, for example, held that it is the
right of the parents, and of the individual, to determine
whether or not they will send their child to private school;
whether or not their children will be taught foreign
languages; whether or not they will have offspring-the
Skinner case; whether-the right to determine for themselves
whom they will marry-the Loving case; and even in Boddie v.
Connecticut, the choice of saying that marriage itself is so
important that the State cannot interfere with termination
of a marriage, just because the woman is unable to pay the
cost. Griswold, of course, is the primary case, holding that
the State could not interfere in the question of whether or
not a married couple would use birth control. And, since
then, this Court, of course, has held that the individual
has the right to determine-whether they are married or
single whether they will use birth control.
So there is a great body of cases decided in the past by
this Court in the areas of marriage, sex, contraception,
procreation, child-bearing, and education of children, which
say that there are certain things that are so much a part of
the individual concern that they should be left to the
determination of the individual.
One of the cases decided since our last argument September
13th was the second Connecticut case, Abele v. Markle, which
JUSTICE POTTER STEWART: Newman.
MS. WEDDINGTON: Excuse me?
JUSTICE STEWART: Newman, I think.
MS. WEDDINGTON: -Newman wrote the opinion, yes, thank You.
And Judge Lombard concurred.
In that case, that three judge court held the Connecticut
statute- a slightly revised statute-for the second time to
be unconstitutional. In part of the language of that case,
it pointed out that "No decision"- and I'm quoting- "of the
Supreme Court has ever permitted anyone's constitutional
right to be directly abridged to protect a state interest
which is subject to such a variety of personal judgments."
And certainly the amicus briefs before the Court show the
variety of personal judgments that come to bear on this
particular situation. "To uphold such a statute," the court
said, "would be to permit the State to impose its view of
the nature of a fetus upon those who had the constitutional
right to base an important decision in their personal lives
upon a different view."
Again, this is a very special type case for the women
because of the very nature of the injury involved. It is an
irreparable injury. Once pregnancy has started, certainly
this is not the kind of injury that can be later
adjudicated. It is not the kind of injury that can later be
compensated by some sort of monetary reward. These women who
have now gone through pregnancy and the women who continue
to be forced to go through pregnancy have certainly gone
through something that is irreparable; that can never be
changed for them. It is certainly "great"; and it is
There is no other forum available to them. As we talked of
last time, they are not subject in Texas to any kind of
criminal prosecution-whether the woman performs
self-abortion; whether she goes to a doctor; finds someone
who will perform it on her, she is guilty of no crime
whatsoever. And yet, the State tries to allege that its
purpose in this statute was to protect the fetus. If that's
true, the fact that the woman is guilty of no crime is not a
reasonable kind of-it does not reasonably follow.
The women are not able to have any kind of declaratory
judgment in Texas, because of our special declaratory
judgment statutes in our concurring criminal and civil
courts-the two different lines of cases that we have-so the
Federal court was the only court to which the women had any
kind of access. And it was to the Federal courts they came;
and it's the Federal court, in my judgment, that should
determine this case.
It's a very unique kind of harm, certainly, that was done to
them. Even though there are many cases-some very recent from
this Court-talking about the problem of when a state may
interfere, or when the Federal Judiciary may interfere when
there is a pending state criminal prosecution.
This case does come under the exceptions, in that there is
great, immediate, irreparable injury; where there is no
other forum. It is something that, as far as these women are
concerned, can never be adjudicated in a criminal
prosecution, much less in a single criminal prosecution.
It certainly is an instance of a situation that is capable
of repetition, yet evading review. The Judiciary simply does
not move fast enough for the case to be decided within the
period of gestation, much less within the period within
which an abortion would be medically safe for these women.
The State has alleged-and it's only alleged interest in this
statute is the interest in protecting the life of the
unborn. However, the State has not been able to point to any
authority, of any nature whatsoever, that would demonstrate
that this statute was, in fact, adopted for that purpose.
We have some indication that other State statutes were
adopted for the purpose of protecting the health of the
woman. We have an 1880 case in Texas-shortly after the 1854
statute was adopted-that states that the woman is the victim
of the crime, and is the only victim that the court talks
We have all the contradictions in the statute, and the way
so many things that just don't make sense. If the statute
was adopted for that purpose, for example, why is the woman
guilty of no crime? If the statute was adopted for that
purpose, why is it that the penalty for abortion is
determined by whether or not you have the woman's consent?
WHITE: Regardless of the purpose for which the statute was
originally enacted, or the purpose which keeps it on the
books in Texas today, you would agree, I suppose, that one
of the important factors that has to be considered in this
case is what rights, if any, does the unborn fetus have?
MS. WEDDINGTON: That's correct. There have been two cases
decided since the September 13th argument that expressly
hold that a fetus has no constitutional right-one being Byrn
v. New York; the other being the Magee-Women's Hospital
cases. In both situations, persons sought to bring that very
question to the Court: does a fetus-in the one instance,
Byrn was a challenge to the New York Revised Statutes. The
other was a situation where a person sought to prevent
Magee-Women's Hospital from allowing further abortions to be
done in that hospital. And, in both cases, it was held that
the fetus had no constitutional rights.
Several of the briefs before this Court would also argue
that this Court, in deciding the Vuitch case, which has
allowed abortions to continue in the District of Columbia
certainly the Court would not have made that kind of
decision if it felt there were any ingrained rights of the
fetus within the Constitution. There is also, of course
JUSTICE BYRON R. WHITE: Well, is it critical to your case
that the fetus not be a person under the due process clause?
MS. WEDDINGTON: It seems to me that it is critical, first,
that we prove this is a fundamental interest on behalf of
the woman, that it is a constitutional right. And, second
JUSTICE WHITE: Well, yes. But about the fetus?
MS. WEDDINGTON: Okay.
And, second, that the State has no compelling State
interest. And the State is alleging a compelling State
JUSTICE WHITE: Yes. But I'm just asking you, under the
Federal Constitution, is the fetus a person, for the
protection of the due process clause?
MS. WEDDINGTON: All of the cases-the prior history of this
statute-the common law history would indicate that it is
not. The State has shown no
JUSTICE WHITE: Well, what about-would you lose your case if
the fetus was a person?
MS. WEDDINGTON: Then you would have a balancing of interest.
JUSTICE WHITE: Well, you say you have anyway, don't you?
MS. WEDDINGTON: Excuse me?
JUSTICE WHITE: You have anyway, don't you? You're going to
be balancing the rights of the mother against the rights of
MS. WEDDINGTON: It seems to me that you do not balance
constitutional rights of one person against mere statutory
rights of another.
JUSTICE WHITE: You think a State interest, if it's only a
statutory interest, or a constitutional interest under the
State law, can never outweigh a constitutional right?
MS. WEDDINGTON: I think-it would seem to me that
JUSTICE WHITE: So all talk of compelling State interest is
beside the point. It can never be compelling enough.
MS. WEDDINGTON: If the State could show that the fetus was a
person under the Fourteenth Amendment, or under some other
Amendment, or part of the Constitution, then you would have
the situation of trying-you would have a State compelling
interest which, in some instances, can outweigh a
fundamental right. This is not the case in this particular
CHIEF JUSTICE BURGER: Do you make any distinction between
the first month, and ninth month of gestation?
MS. WEDDINGTON: Our statute does not.
CHIEF JUSTICE BURGER: Do you, in your position in this case?
MS. WEDDINGTON: We are asking, in this case, that the Court
declare the statute unconstitutional; the State having
proved no compelling interest at all.
There are some states that now have adopted time limits.
Those have not yet been challenged. And, perhaps that
question will be before this Court. Even those statutes,
though, allow exceptions. Well New York, for example, says
an abortion is lawful up to 24 weeks. But, even after the 24
weeks it is still lawful where there's rape or incest; where
the mother's mental or physical health is involved. In other
words, even after that period, it's not a hard and fast
CHIEF JUSTICE BURGER: Then it's the weighing process that
Mr. Justice White was referring to. Is that your position?
MS. WEDDINGTON: The legislature, in that situation, engaged
in the weighing process. And it seems to me that it has not
yet been determined whether the State has the compelling
interest to uphold even that kind of relation. But that's
really not before the Court in this particular case. We have
no time limit. There is no indication in Texas that any
would be applied at any future date. You know, we just don't
know that. But
JUSTICE HARRY BLACKMUN: MS. Weddington, you're attacking the
statute on two grounds, are you not? Both vagueness
MS. WEDDINGTON: That's correct.
JUSTICE BLACKMUN: -and the Ninth Amendment. Do you base any
greater weight on one argument, as against the other?
MS. WEDDINGTON: Our Texas Court of Criminal Appeals, in
Thompson v. State
JUSTICE BLACKMUN: That's a recent case?
MS. WEDDINGTON: Yes, in November of last year.
JUSTICE BLACKMUN: Again on vagueness?
MS. WEDDINGTON: Yes. That particular case held that the
Texas statute was not vague, citing Vuitch. It's my opinion
that that reliance was misplaced; that in Vuitch this Court
had before it the D.C. statute which allowed abortion for
the purpose of saving the life or the health, and this Court
adopted the interpretation that health meant both mental and
physical health. And it seemed to me the Court's language in
that case talked a great deal about the fact that the
doctor's judgment goes to saving the health of the woman;
that that's the kind of judgment he is used to making. In
Texas that's not the judgment he's forced to make. The
judgment in Texas is: Is this necessary for the purpose of
preserving the life of the woman? And the language of that
statute has never been interpreted. That's not the kind of
judgment that a doctor is accustomed, or perhaps even able,
JUSTICE BLACKMUN: Well, I go back to my question: Are you-
MS. WEDDINGTON: I still continue the argument that the Texas
case is vague.
JUSTICE BLACKMUN: So you're relying on both?
MS. WEDDINGTON: Yes, we are, Your Honor.
JUSTICE BLACKMUN: Now you referred a little bit to history.
And let me ask you a question
MS. WEDDINGTON: Okay.
JUSTICE BLACKMUN: -based on history. You're familiar with
the Hippocratic oath?
MS. WEDDINGTON: I am.
JUSTICE BLACKMUN: I think- I may have missed it, but I find
no reference to it in this-in your brief, or in the
voluminous briefs that we're overwhelmed with here. Do you
have any comment about the Hippocratic oath?
MS. WEDDINGTON: I think two things could be said. The first
would be that situations and understandings change. In this
case, for example, we have before the Court a medical amicus
brief that was joined by all the deans of the public medical
schools in Texas. It was joined by numerous other professors
of medicine. It was joined by the American College of
Obstetricians and Gynecologists.
JUSTICE BLACKMUN: Of course there are other briefs, on the
other side, joined by equally outstanding physicians.
MS. WEDDINGTON: None of them has-
JUSTICE BLACKMUN: Tell me why you didn't discuss the
MS. WEDDINGTON: Okay. I guess it was- okay- in part, because
the Hippocratic oath-we discussed basically the
constitutional protection we felt the woman to have. The
Hippocratic oath does not pertain to that. Second, we
discuss the fact that the State has not established a
compelling State interest. The Hippocratic oath would not
really pertain to that. And then we discuss the vagueness
jurisdiction. It seemed to us that the fact that the medical
profession at one time had adopted the Hippocratic oath does
not weigh upon the fundamental constitutional rights
involved. It is a guide for physicians, but the outstanding
organizations of the medical profession have, in fact,
adopted a position that says the doctor and the patient
should be able to make the decision for themselves in this
kind of situation.
JUSTICE BLACKMUN: Of course, it's the only definitive
statement of ethics of the medical profession. I take it
from what you said that your...you didn't even footnote it,
because it's old? That's about, really, what you're saying?
MS. WEDDINGTON: Well, I guess it is old. And not that it's
out of date, but that it seemed to us that it was not
pertinent to the argument we were making.
JUSTICE BLACKMUN: Let me ask another question, then. Last
June 29th this Court decided the capital punishment cases.
MS. WEDDINGTON: Yes, sir.
JUSTICE BLACKMUN: Do you feel that there is any
inconsistency in the Court's decision in those cases
outlawing the death penalty, with respect to convicted
murderers and rapists at one end of life's span; and your
position in this case, at the other end of life's span?
MS. WEDDINGTON: I think had there been established that the
fetus was a person, under the Fourteenth Amendment, or under
constitutional protection, then there might be a
differentiation. In this case, there has never been
established that the fetus is a person, or that it's
entitled to the Fourteenth Amendment rights, or the
protection of the Constitution. It would be inconsistent to
decide that, after birth, various classifications of persons
would be subject to the death penalty or not. But here we
have a person-the woman-entitled to fundamental
constitutional rights, as opposed to the fetus prior to
birth, where there is no establishment of any kind of
Federal constitutional rights.
JUSTICE BLACKMUN: Well, do I get from this, then, that your
case depends primarily on the proposition that the fetus has
no constitutional rights?
MS. WEDDINGTON: It depends on saying that the woman has a
fundamental constitutional right; and that the State has not
proved any compelling interest for regulation in the area.
Even if the Court, at some point, determined the fetus to be
entitled to constitutional protection, you would still get
back into the weighing of one life against another.
JUSTICE STEWART: That's what's involved in this case?
Weighing one life against another?
MS. WEDDINGTON: No, Your Honor. I say that would be what
would be involved, if the facts were different and the State
could prove that there was a "person" for the constitutional
JUSTICE STEWART: Well, if-if it were established that an
unborn fetus is a person, with the protection of the
Fourteenth Amendment, you would have almost an impossible
case here, would you not?
MS. WEDDINGTON: I would have a very difficult case.
JUSTICE STEWART: I'm sure you would. So, if you had the same
kind of thing, you'd have to say that this would be the
equivalent- after the child was born, if the mother thought
it bothered her health any having the child around, she
could have it killed. Isn't that correct?
MS. WEDDINGTON: That's correct. That-
CHIEF JUSTICE BURGER: Could Texas, constitutionally- did you
want to respond further to Justice Stewart? Did you want to
respond further to him?
MS. WEDDINGTON: No, Your Honor.
CHIEF JUSTICE BURGER: Could Texas constitutionally, in your
view, declare that-by statute, that the fetus is a person,
for all constitutional purposes, after the third month of
MS. WEDDINGTON: I do not believe that the State legislature
can determine the meaning of the Federal Constitution. It is
up to this Court to make that determination.
CHIEF JUSTICE BURGER: The states have to deal with statutes
in some cases, don't they?
MS. WEDDINGTON: The State Could, obviously, adopt that kind
of statute. And then the question would have to be
adjudicated as to whether, for all purposes, that statute is
constitutional. We are not alleging that there cannot be
some kind of protection. For example, the property rights
which, again, are contingent upon being born alive. It can
be retroactive to the period prior to birth. But, in this
particular situation, we are alleging that this statute is
CHIEF JUSTICE BURGER: But that has been recognized in the
period before birth, for purposes of injury claims. And you
put that, I take it, in the property category?
MS. WEDDINGTON: In Texas it is only when they are born
alive. And the fact that there is a-you know, the wrongful
conduct of another is not the same as in this situation. As
for property rights, for example, there are even property
rights that relate back to prior to conception-children that
are not yet conceived-can later inherit. But that did not
prevent this Court, in Griswold, from holding people had the
right to birth control.
CHIEF JUSTICE BURGER: Mr. Flowers?
MR. FLOWERS: Mr. Chief Justice, and may it please the Court:
The lower court in Dallas held the Texas abortion law
unconstitutional primarily on the two grounds that have just
been discussed: on the vagueness question, and the rights of
the mother under the Ninth Amendment. The thrust of the
whole argument of the State of Texas is against the rights
of the mother, under the Ninth Amendment, that it certainly
is a balancing effect. There must be, or on the other side
of the coin, Texas has no State.
It is impossible for me to trace, within my allocated time,
the development of the fetus from the date of conception to
the date of its birth. But it is the position of the State
of Texas that, upon conception, we have a human being; a
person, within the concept of the Constitution of the United
States, and that of Texas, also.
JUSTICE STEWART: Now how should that question be decided? Is
it a legal question? A constitutional question? A medical
question? A philosophical question? Or, a religious
question? Or what is it?
MR. FLOWERS: Your Honor, we feel that it could be best
decided by a legislature, in view of the fact that they can
bring before it the medical testimony- the actual people who
do the research. But we do have
JUSTICE STEWART: So then it's basically a medical question?
MR. FLOWERS: From a constitutional standpoint, no, sir. I
think it's fairly and squarely before this Court. We don't
envy the Court for having to make this decision.
JUSTICE STEWART: Do you know of any case, anywhere, that's
held that an unborn fetus is a person within the meaning of
the Fourteenth Amendment?
MR. FLOWERS: No, sir. We can only go back to what the
framers of our Constitution had in mind.
JUSTICE STEWART: Well, these weren't the framers that wrote
the Fourteenth Amendment. It came along much later.
MR. FLOWERS: No, sir. I understand. But the Fifth Amendment-
under the Fifth Amendment, no one shall be deprived of the
right to life, liberty, and property, without due process of
JUSTICE STEWART: Yes. But then the Fourteenth Amendment
defines "person" as somebody who's born, doesn't it?
MR. FLOWERS: I'm not sure about that, sir. I-
JUSTICE STEWART: Well, it does. All right. Any person born,
or naturalized in the United States.
MR. FLOWERS: Yes, sir.
JUSTICE STEWART: It doesn't-that's not the definition of a
"person," but that's the definition of a "citizen."
MR. FLOWERS: Your Honor, it's our position that the
definition of a person is so basic, it's so fundamental,
that the framers of the Constitution had not even set out to
define it. We can only go to what the teachings were at the
time the Constitution was framed. We have numerous listings
in the brief by Mr. Joe Witherspoon- a professor at the
University of Texas-that tries to trace back what was in
their mind when they had the "person" concept, when they
drew up the Constitution. He quoted Blackstone in 1765, and
he observed in his Commentaries that:
"Life. This right is inherent by nature in every individual,
and exists even before the child is born."
I submit to you that the Declaration of Independence, "We
JUSTICE BLACKMUN: Mr. Flowers, when you quote Blackstone, is
it not true that in Blackstone's time abortion was not a
MR. FLOWERS: That's true, Your Honor. But my point there was
to see the thinking of the framers of the Constitution, from
the people they learned from, and the general attitudes of
JUSTICE BLACKMUN: Well, I think- I'm just wondering if there
isn't basic inconsistency there. And let me go back to
something else that you said. Is it not true-or is it true,
that the medical profession itself is not in agreement as to
when life begins?
MR. FLOWERS: I think that's true, sir. But, from a layman's
standpoint, medically speaking, we would say that at the
moment of conception from the chromosomes, every potential
that anybody in this room has is present-from the moment of
JUSTICE BLACKMUN: But then you're speaking of potential of
MR. FLOWERS: Yes, sir.
JUSTICE BLACKMUN: With which everyone can agree.
MR. FLOWERS: On the seventh day, I think that the heart, in
some form, starts beating. On the 20th day, practically all
the facilities are there that you and I have, Your Honor. I
JUSTICE WHITE: Well, if you're correct that the fetus is a
person, then I don't suppose you'd have-the State would have
great trouble permitting an abortion, would it?
MR. FLOWERS: Yes, sir.
JUSTICE WHITE: In any circumstances?
MR. FLOWERS: It would, yes, sir.
JUSTICE WHITE: To save the life of a mother, or her health,
or anything else?
MR. FLOWERS: Well, there would be the balancing of the two
lives, and I think that
JUSTICE WHITE: Well, what would you choose? Would you choose
to kill the innocent one, or what?
MR. FLOWERS: Well, in our statute, the State did choose that
way, Your Honor.
JUSTICE THURGOOD MARSHALL: Well-
MR. FLOWERS: The protection of the mother.
JUSTICE MARSHALL: Well, did the State of Texas say that if
it is for the benefit of the health of the wife to kill the
MR. FLOWERS: I'm sorry, I didn't understand your question.
JUSTICE MARSHALL: Could Texas say, if it confronts the
situation, for the benefit of the health of the wife, that
the husband has to die? Could they kill him?
MR. FLOWERS: I wouldn't think so, sir.
JUSTICE MARSHALL: Is there any statute in Texas that
prohibits the doctor from performing any operation, other
than an abortion?
MR. FLOWERS: I don't- I don't think so, sir. And there is
another thrust of our argument. If we declare, as the
appellees in this case have asked this Court to declare,
that an embryo or a fetus is a mass of protoplasm similar to
a tumor, then of course the State has no compelling interest
JUSTICE MARSHALL: But there is no-the only operation that a
doctor can possibly commit that will bring on a criminal
penalty is an abortion?
MR. FLOWERS: Yes, sir.
JUSTICE MARSHALL: Why?
MR. FLOWERS: As far as-
JUSTICE MARSHALL: Well, why don't you limit some other
MR. FLOWERS: Because this is the only type of operation that
would take another human life.
JUSTICE MARSHALL: Well, a brain operation could.
MR. FLOWERS: Well, there again that would be- I think that
in every feat that a doctor performs that he is constantly
making this judgment.
JUSTICE MARSHALL: Well, if a doctor performs a brain
operation and does it improperly, he could be guilty of
manslaughter, couldn't he?
MR. FLOWERS: I would think so, if he was negligent.
JUSTICE MARSHALL: Well, why wouldn't you charge him with
manslaughter if he commits an abortion?
MR. FLOWERS: In effect, Your Honor, we did, in the Statute
1195 that has been very carefully avoided all throughout
these proceedings. It's not attacked as unconstitutional,
for some reason.
If you will permit me to-
JUSTICE MARSHALL: But is it at issue here?
MR. FLOWERS: No, sir. You asked the question about whether
we had made manslaughter-or an abortion manslaughter.
JUSTICE MARSHALL: Maybe the reason is: Why have two
MR. FLOWERS: Well, this was in context with-this is 1195.
They are attacking 1191 through 1196, but omitted 1195.
Here's what 1195 says-provides: "Whoever shall, during the
parturition of the mother, destroy the vitality or life in a
child in a state of being born, before actual birth and
before actual birth-which child would have otherwise been
born alive, which-shall be confined to the penitentiary for
life, or not less than five years."
JUSTICE MARSHALL: What does that statute mean?
MR. FLOWERS: Sir?
JUSTICE MARSHALL: What does it mean?
MR. FLOWERS: I would think that-
JUSTICE STEWART: That it is an offense to kill a child in
the process of childbirth?
MR. FLOWERS: Yes, sir. It would be immediately before
childbirth, or right in the proximity of the child being
JUSTICE MARSHALL: Which is not an abortion.
MR. FLOWERS: Which is not-would not be an abortion, yes,
sir. You're correct, sir. It would be homicide.
Gentlemen, we feel that the concept of a fetus being within
the concept of a person, within the framework of the United
States Constitution and the Texas Constitution, is an
extremely fundamental thing.
JUSTICE STEWART: Of course, if you're right about that, you
can sit down, you've won your case.
MR. FLOWERS: Your Honor-
JUSTICE STEWART: Except insofar as, maybe, the Texas
abortion law presently goes too far in allowing abortions.
MR. FLOWERS: Yes, sir. That's exactly right. We feel that
this is the only question, really, that this Court has to
answer. We have a
JUSTICE WHITE: Do you think the case is over for you? You've
lost your case, then, if the fetus or the embryo is not a
person? Is that it?
MR. FLOWERS: Yes, sir, I would say so.
JUSTICE WHITE: You mean the State has no interest of its own
that it can assert, and
MR. FLOWERS: Oh, we have interests, Your Honor- preventing
promiscuity, say, maybe that's
JUSTICE WHITE: Mr. Flowers, your legislature apparently-or
you're asserting that your State law wants to protect the
life of the fetus?
MR. FLOWERS: Yes, sir.
JUSTICE WHITE: And, under State law, there is some right-
there are some rights given to the fetus?
MR. FLOWERS: Yes, sir.
JUSTICE WHITE: And you are asserting those rights, against
the right of the mother.
MR. FLOWERS: Balancing against the Ninth Amendment rights of
the mother, within the framework
JUSTICE WHITE: But that's wholly aside from whether the
fetus is a person under the Federal Constitution. You can
still assert those rights, whether the fetus is a person or
MR. FLOWERS: Yes, sir.
CHIEF JUSTICE BURGER: Does Texas have judicial statutes on
mutilation, making it a criminal act?
MR. FLOWERS: Yes, sir.
CHIEF JUSTICE BURGER: So that there are other assertions
MR. FLOWERS: Yes, sir.
CHIEF JUSTICE BURGER: -or procedures which could be
MR. FLOWERS: That's right.
CHIEF JUSTICE BURGER: If a man walked into a doctor's office
and said, "I want you to cut off my right arm"
MR. FLOWERS: That's right- mutilation, castration-yes, sir.
I had forgotten about those, Your Honor.
JUSTICE MARSHALL: Those statutes apply to doctors?
MR. FLOWERS: I would assume so, or anyone that would-
JUSTICE MARSHALL: Do you have any case that says so?
MR. FLOWERS: No, sir. I would say that there would have to
be a culpability of proof in there, as in most criminal
Your Honor, I'd like to call the attention of the Court,
that the unborn child-that this Court has not been blind to
the rights of the unborn child in the past. In the Memorial
case v. Anderson, a New Jersey Supreme Court case, the
court-this was the case where the pregnant woman had
refused, on religious grounds, to undergo a blood
transfusion in order to save the child. The court held that
the right of the child to live, and to be born, was
paramount over this pregnant woman's right of religion.
I think that here is exactly what we're facing in this case:
Is the life of this unborn fetus paramount over the woman's
right to determine whether or not she shall bear a child?
In Glickman v. Cosgrove-it's a New Jersey Supreme Court
case. It's a tort action instituted against the doctor as a
result of his failure to warn the mother that she was
suffering from German measles, in order that she could
terminate her pregnancy-the Court recognized the life of the
embryo and stated that it would have been easier for the
mother, and less expensive for the father-this alleged
detriment cannot stand against the preciousness of one
In Jones v. State-excuse me, Jones v. Jones, the New York
Supreme Court held that the unborn child was a patient of
the mother's obstetrician, as well as the mother herself. In
Jackson v. Indiana, this Court zealously guarded the rights
of a retarded child. Now if we're going to extend the right
of a child who has reached its potential-it cannot go on and
grow; it cannot go on and grow mentally and achieve-then how
much more right should we afford to a child who is-has all
of the potential of achieving?
In the Prince v. Commonwealth of Massachusetts case, this
Court was faced with the contention that the State statute
precluding labor by a child in tender years in distributing
religious tracts was protected; that the child's right to
grow up and to become educated and fully developed was
paramount to these parents' religious beliefs.
This Court has been diligent in protecting the rights of the
minority. And, gentlemen, we say that this is a minority- a
silent minority-the true silent minority. Who is speaking
for these children? Where is the counsel for these unborn
children whose life is being taken? Where is the safeguard
of the right to trial by jury? Are we to place this power in
the hands of a mother, and a doctor-all of the
constitutional rights-if this person has the person concept?
What would keep a legislature, under this ground, from
deciding who else might or might not be a human being, or
might not be a "person"?
JUSTICE STEWART: Well, generally speaking, I think you agree
that up until now the test has been whether or not somebody
has been born or not. And that's the word used in the
MR. FLOWERS: Yes, sir.
JUSTICE STEWART: That's what would keep the legislature, I
suppose, from classifying people that have been born, as not
MR. FLOWERS: Your Honor, it seems to me that the physical
act of being born- I'm not playing it down. I know it's-a
very momentous incident. But what changes? Is it a nonhuman,
and changing by the act of birth into a human? Or would
JUSTICE STEWART: Well, that's been the theory up until now
on the lawbooks.
MR. FLOWERS: Well, in other words, it has been the theory
that we have-deriving from non-human material- a human being
Well, Your Honor
JUSTICE STEWART: You see, that's the reason I asked you at
the beginning, within what framework should this question be
decided? Should it be a theological one
MR. FLOWERS: Yes, sir.
JUSTICE STEWART: -a philosophical one, or a medical one. Or,
that we could find here dealing with
MR. FLOWERS: I think, Your Honor, that the Court-
JUSTICE STEWART: -the constitutional meaning of it.
MR. FLOWERS: I wish I could answer that. I believe that the
Court must take these-the medical research-and apply it to
our Constitution the best they can. I said I'm without envy
of the burden that the Court has. I think that possibly we
have an opportunity to make one of the worst mistakes here
that we've ever made, from the- I'm sorry.
JUSTICE MARSHALL: But there's no medical testimony that
backs up your statement that it goes from inception, is
MR. FLOWERS: Only that-
JUSTICE MARSHALL: Medical.
MR. FLOWERS: Sir, in this case you're talking about?
JUSTICE MARSHALL: No. Is there any medical testimony of any
kind that says that a fetus is a person at the time of
MR. FLOWERS: Your Honor, I would like to call the Court's
attention, in answering that question, to what I feel to
believe was one of the better culminations of the medical
research, and that was Senior Judge Campbell's dissenting
opinion in the Doe v. Scott, which is very similar to the
case we have before us. He goes in chronological order of
what the medical research has determined, from the
chromosome structure at the time of conception; what the
potential is; down through each day of life, until it's
JUSTICE MARSHALL: But I understood you to say that the State
of Texas says it extends from the date of inception until
the child is born.
MR. FLOWERS: The date of conception until the day of-yes,
JUSTICE MARSHALL: And that's it?
MR. FLOWERS: Yes, sir.
JUSTICE MARSHALL: Now, you're now quoting the judge. I want
you to give me a medical, recognizable medical writing of
any kind that says that at the time of conception the fetus
is a person.
MR. FLOWERS: I do not believe that I could give that to you,
without researching through the briefs that have been filed
in this case, Your Honor. I'm not sure that I could give it
to you after research.
JUSTICE WILLIAM H. REHNQUIST: Mr. Flowers-
MR. FLOWERS: Yes, sir?
JUSTICE REHNQUIST: -did Judge Campbell rely on medical
authorities in that statement you're summarizing?
MR. FLOWERS: Yes, sir, he did. This case was-the court held
there that really the problem could be answered on an
extension of the Griswold case. And here's what my
dissenting judge had to say about that, which we adopt, Your
Honor. He said, "In citing Griswold, the majority concludes
we could not distinguish the interest asserted by the
plaintiffs in this case from those asserted in Griswold. In
other words, in their views there is no distinction that can
be made between prohibiting the use of contraceptives and
prohibiting the destruction of fetal life-which, as
explained above, may reasonably be construed to be a human
life. I find this assertion incredible. Contraceptives
prevent the creation of new life. Abortion destroys the
existing life. Contraceptives and abortion are as
distinguishable as thoughts and dreams are distinguishable
from a reality."
JUSTICE MARSHALL: Well, where are the medical authorities
you told Mr. Justice Rehnquist he cited? Are they there?
MR. FLOWERS: Yes, sir. He lists them day by day, just prior
to this time, sir. But it's quite lengthy.
JUSTICE MARSHALL: Where is that you're reading from?
MR. FLOWERS: It's 321 Federal Supplement on page 394, sir.
Or 392, it begins, Your Honor.
And I refer you to this medical condensation, because I have
read most of the comments that he has to make through
the-throughout these many, many briefs that we have had
submitted in this case and other cases. For instance, he
starts off: "We did"- let's see- "as Illinois legislature
would have before us the following undisputed facts relating
to fetal life: Seven weeks after conception the fertilized
egg develops into a well-proportioned, small-scale baby..."
and then goes from there on. Now, I know he doesn't address
himself, Your Honor, to the moment of conception.
JUSTICE MARSHALL: I didn't think so.
MR. FLOWERS: You're entirely right there. But I find no way
that I know that any court or any legislature or any doctor
anywhere can say that here is the dividing line. Here is not
a life; and here is a life, after conception. Perhaps it
would be better left to that legislature. There they have
the facilities to have some type of medical testimony
brought before them, and the opinion of the people who are
being governed by it.
JUSTICE STEWART: Well, if you're right that an unborn fetus
is a person, then you can't leave it to the legislature to
play fast and loose dealing with that person. In other
words, if you're correct, in your basic submission that an
unborn fetus is a person, then abortion laws such as that
which New York has are grossly unconstitutional, isn't it?
MR. FLOWERS: That's right, yes.
JUSTICE STEWART: Allowing the killing of people.
MR. FLOWERS: Yes, sir.
JUSTICE STEWART: A person.
MR. FLOWERS: Your Honor, in Massachusetts, I might point out
JUSTICE STEWART: Definitely it isn't up to the legislature.
It's a constitutional problem, isn't it?
MR. FLOWERS: Well, if there would be any exceptions within
JUSTICE STEWART: The basic constitutional question,
initially, is whether or not an unborn fetus is a person,
MR. FLOWERS: Yes, sir, and entitled to the constitutional
JUSTICE STEWART: And that's critical to this case, is it
MR. FLOWERS: Yes, sir, it is. And we feel that the treatment
that the courts have given unborn children in descent, in
distribution of property rights, tort laws, have all pointed
out that they have, in the past, have given credence to this
JUSTICE REHNQUIST: Mr. Flowers, doesn't the fact that so
many of the state abortion statutes do provide for
exceptional situations in which an abortion may be
performed-and presumably these date back a great number of
years, following Mr. Justice Stewart's comment-suggest that
the absolute proposition that a fetus from the time of
conception is a person, just is at least against the weight
of historical legal approach to the question?
MR. FLOWERS: Yes, sir. I would think, possibly, that that
would indicate that. However, Your Honor, in this whole
field of abortion here, we have on the one hand great
clamoring for this liberalization of it. Perhaps this is
good. Population explosion. We have just so many things that
are arriving on the scene in the past few years that might
have some effect on producing this type of legislation,
rather than facing the facts squarely. I don't think anyone
has faced the fact, in making a decision, whether this is a
life, in a person concept.
Thank you, Your Honors.
JUSTICE BLACKMUN: Mr. Flowers, when was the first abortion
statute adopted in your State?
MR. FLOWERS: Your Honor, in 1854.
JUSTICE BLACKMUN: Prior to 1854, what was the situation in
MR. FLOWERS: I do not think it was an offense, Your Honor. I
think it was silent-the State was silent.
JUSTICE BLACKMUN: So, on your theory, destruction of the
person in the form of a fetus was legal?
MR. FLOWERS: Yes, sir. Well, at least the legislature hadn't
spoken on it, Your Honor.
JUSTICE BLACKMUN: Then it was legal.
MR. FLOWERS: Yes, sir.
JUSTICE REHNQUIST: Mr. Flowers, did Texas have an abortion
statute on the books at the time-at least in the eyes of the
North-when it was readmitted to the Union after the Civil
MR. FLOWERS: No, sir. The State was admitted to the Union in
1845, Your Honor, and
JUSTICE REHNQUIST: Well, at the time that it was-passed
muster with the
MR. FLOWERS: When it was a republic?
JUSTICE REHNQUIST: Well, my historical impression is that
following the Civil War Congress went through the procedure,
at any rate, of readmitting the states which had seceded.
And passing on their constitutional provisions, and that
sort of thing. Did Texas have an abortion statute at that
MR. FLOWERS: Yes, sir. It was passed in 1854, Your Honor.
JUSTICE BLACKMUN: Do you know, as a matter of historical
fact, when most of these abortion statutes came on the
MR. FLOWERS: I think it was-most of them were in the
mid-1800s, Your Honor.
JUSTICE BLACKMUN: In fact, the latter half of the Nineteenth
MR. FLOWERS: Yes, sir.
JUSTICE BLACKMUN: Do you know why they all came on at that
MR. FLOWERS: No, sir, I surely don't.
JUSTICE STEWART: So that the materials indicate that, during
that period, they were enacted to protect the health and
lives of pregnant women, because of the danger of operative
procedures generally around that time?
MR. FLOWERS: I'm sure that was a great factor, Your Honor.
CHIEF JUSTICE BURGER: Well, isn't it historically pretty
well accepted as a fact that in the early period of the
history of this country there was a general reliance upon
religious disciplines to preclude this kind of activity-
abortions- and when that didn't seem to cover it, then the
states began to enact the statutes?
MR. FLOWERS: Yes, sir.
CHIEF JUSTICE BURGER: As had been done in England.
MR. FLOWERS: Also in the exploration and the Indian days, if
you wish, frontier days, I don't imagine that too many
abortions intentional abortions-were created in this, these
United States. People were of such a necessity to develop
the United States.
Thank you, Your Honor.
CHIEF JUSTICE BURGER: Ms. Weddington, you have four minutes
MS. WEDDINGTON: Thank you, Your Honor.
I think Mr. Flowers well made the point when he said that no
one can say "here is the dividing line; here is where life
begins; life is here; and life is not over here." In a
situation where no one can prove where life begins, where no
one can show that the Constitution was adopted-that it was
meant to protect fetal life, in those situations where it is
shown that that kind of decision is so fundamentally a part
of individual life of the family, of such fundamental impact
on the person
JUSTICE WHITE: Well, I gather your argument is that a state
may not protect the life of the fetus or prevent an abortion
even at any time during pregnancy?
MS. WEDDINGTON: At this-
JUSTICE WHITE: Right up until the moment of birth?
MS. WEDDINGTON: At this time my point is that this
particular statute is unconstitutional.
JUSTICE WHITE: I understand that. But your argument, the way
you state it is that it wouldn't make any difference when in
the pregnancy that the State attempts to prevent the
abortion? It would still be unconstitutional?
MS. WEDDINGTON: At this time there is no indication to show
that the Constitution would give any protection prior to
birth. That is not before the Court. And that is the
JUSTICE WHITE: Well, I don't know whether it is or it isn't.
If the statute-you're claiming that the statute is void on
MS. WEDDINGTON: That's correct.
JUSTICE WHITE: Now isn't it possible, if the statute-before
you can declare the statute void on its face, that you have
to say that it's void no matter when in the pregnancy the
abortion takes place?
MS. WEDDINGTON: It seems to me in this situation the Court
is-excuse me. I must-would you ask the question again?
JUSTICE WHITE: Well, is the statute void-would the statute
be void on its face if the State could prevent abortions at
any time after six months?
MS. WEDDINGTON: You mean if the State, in fact, did that?
JUSTICE WHITE: Well, let's assume it were constitutional for
the State to prevent abortions after six months.
MS. WEDDINGTON: It would still be void on its face in this
situation because it's overly broad. It interferes at a time
when a state has no
JUSTICE WHITE: Well, this isn't a free speech case. The
statute might be perfectly valid in part, and invalid in
part. You're saying it's invalid on its face-totally
invalid-that it may not apply to-the statute may not prevent
an abortion, no matter when the abortion takes place.
MS. WEDDINGTON: My argument would first be that it's void on
its face. And, second, if the Court finds it's not void on
its face, it certainly is void because it infringes upon the
fundamental right at a time when the State can show no
compelling interest early in pregnancy.
CHIEF JUSTICE BURGER: What did this Court say about voidness
in the Vuitch case? What did we say there?
MS. WEDDINGTON: There you said the particular D.C. statute
was not void for vagueness. It's a different statute. There
was an interpretation of the meaning of the statute. And the
Court there said the doctor could work within that context,
and could tell what the statute meant.
CHIEF JUSTICE BURGER: Well, then, isn't the only difference
between the Texas statute and the D.C. statute that the
Texas statute does not have the health factor?
MS. WEDDINGTON: That's correct, which makes it much more
difficult for the doctor to tell when it is-when he can
CHIEF JUSTICE BURGER: But in Vuitch, unless the Court is
prepared to overrule it-not a fact-the Texas statute would
be valid if it was construed to include abortions for the
protection of health, treating life as broad enough to
do include health?
MS. WEDDINGTON: Including mental and physical. But then the
question is raised as to the right of privacy, which was not
before the Court in the Vuitch case, and is before the Court
in this particular situation.
As to the Hippocratic oath, it seems to me that the oath was
adopted at a time when abortion was extremely dangerous to
the health of the woman. And, second, that the oath is to
protect life. And here the question is: What does life mean
in this particular context? It's the sort of same vagueness,
it seems to me, that you're-well, okay. Life there could be
slightly different, because of the constitutional
implications here. It seems to me that-
JUSTICE BLACKMUN: Well, the Hippocratic oath went directly
and specifically to abortive procedures.
MS. WEDDINGTON: To providing a-
JUSTICE BLACKMUN: However life was defined.
MS. WEDDINGTON: That's correct. As to mutilation, there
it seems to me that the purpose of those statutes was to
prevent the citizen from becoming a dependent or ward of the
State. And, also, to ensure that its citizens would be
available for service in the military. In this particular
instance, the rationale works just the opposite. Here a
woman, because of her pregnancy, is often not a productive
member of society. She cannot work. She cannot hold a job.
She's not eligible for welfare. She cannot get unemployment
compensation. And, furthermore, in fact the pregnancy may
produce a child who will become a ward of the State.
We do not object to the cases, such as the transfusion case,
where there is a decision already made by the woman that she
desires to carry the pregnancy to term. And, when that
decision is made, that the child should be given every
opportunity to come into life a healthy person. We do not
believe that that necessitates the conclusion that,
therefore, under the Constitution, prior to birth, a
"person" under the Fourteenth Amendment would exist.
In this case, this Court is faced with a situation where
there have been 14 three judge courts that have ruled on the
constitutionality of abortion statutes. Nine courts have
favored the woman, five have gone against her; 25 judges
have favored the woman, 17 have gone against her; 9 circuit
judges have favored the woman, 5 have gone against her; 16
district court judges have favored the woman, 10 have gone
No one is more keenly aware of the gravity of the issues or
the moral implications of this case, that it is a case that
must be decided on the Constitution. We do not disagree that
there is a progression of fetal development. It is the
conclusion to be drawn from that upon which we disagree.
We are not here to advocate abortion. We do not ask this
Court to rule that abortion is good, or desirable in any
particular situation. We are here to advocate that the
decision as to whether or not a particular woman will
continue to carry or will terminate a pregnancy is a
decision that should be made by that individual; that, in
fact, she has a constitutional right to make that decision
for herself; and that the State has shown no interest in
interfering with that decision.
Our supplemental brief, on page 14, points out that the
brief of the opposition can't quite decide when life does
begin. At one point they suggest it's when there's
implantation. A few pages later, they suggest it's with
JUSTICE WHITE: But any doctor, I suppose you would say, may
MS. WEDDINGTON: Certainly, Your Honor. He may refuse any
kind of medical procedure whatsoever.
JUSTICE WHITE: But the State may not-yes.
MS. WEDDINGTON: Here it's the question of whether or not the
State, by the statute, will force the woman to continue. The
woman should be given that freedom, just as the doctor has
the freedom to decide what procedures he will carry out, and
what he will refuse to his patients.
JUSTICE BLACKMUN: To be sure that I get your argument in
focus, I take if from your recent remarks that you are
urging upon us abortion on demand of the woman alone, not in
conjunction with her physician?
MS. WEDDINGTON: I am urging that, in this particular
context, this statute is unconstitutional. That in the Baird
versus Eisenstadt case this Court said, "If the right of
privacy is to mean anything, it is the right of the
individual, whether married or single, to make
determinations for themselves." It seems to me that you
cannot say this is a woman of this particular doctor, and
this particular woman. It is, it seems to me
JUSTICE BLACKMUN: Well, doesn't it follow from that, then,
that a woman can come into a doctor's office and say, "I
want an abortion"?
MS. WEDDINGTON: And he can say, "I'm sorry, I don't perform
JUSTICE BLACKMUN: And then what does she do?
MS. WEDDINGTON: She goes elsewhere, if she so chooses. If
she stays with that-you know, that's an impossible question.
Certainly I don't think the State could say the first doctor
a woman goes to shall make that determination, and she
cannot go elsewhere.
CHIEF JUSTICE BURGER: Your time is up now, Ms. Weddington.
MS. WEDDINGTON: Thank you.
CHIEF JUSTICE BURGER: Thank you, Ms. Weddington. Thank you,
Mr. Flowers. The case is submitted.
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