Doe v. Bolton

Appellant
Mary Doe
Appellee
Arthur K. Bolton, Attorney General of Georgia
Appellant's Claim
That a Georgia abortion law was unconstitutional because it invaded the rights of privacy and liberty, denied equal protection and procedural due process,and was vague.
Chief Lawyer for Appellant
Margie Pitts Hames
Chief Lawyer for Appellee
Dorothy T. Beasley
Justices for the Court
Harry A. Blackmun (writing for the Court), William J. Brennan, Jr., Warren E.Burger, William O. Douglas, Thurgood Marshall, Lewis F. Powell, Jr., PotterStewart
Justices Dissenting
William H. Rehnquist, Byron R. White
Place
Washington, D.C.
Date of Decision
22 January 1973
Decision
Modified and affirmed the district court's ruling and decided that the threeprocedural conditions of the law violated the Fourteenth Amendment and that the residence requirement violated the Privileges and Immunities Clause of theConstitution.
Significance
Before 1973, the legality of abortion was left to the legislatures of the states. However, in 1973, the Supreme Court made it an issue of federal constitutional law by holding that abortion was a constitutional right. From then on,whether abortion was legal or not depended on the Supreme Court's decisions.
Mary Doe was a 22 year old resident of Georgia, married, and nine weeks pregnant. She already had three children. The two older ones had been placed in afoster home because Doe was poor and unable to care for them. The youngest had been put up for adoption. Doe's husband had recently abandoned her, forcingher to live with her impoverished parents and their eight children. Doe andher husband, a sporadically employed construction worker, eventually reconciled. Doe had been a mental patient at the state hospital. She had been told that an abortion would be less dangerous to her health than giving birth to thechild she carried. Moreover, if she gave birth to the child, she would be unable to care for or support it.
On 25 March 1970, Doe applied for an abortion to the Abortion Committee of Grady Memorial Hospital in Atlanta, Georgia. Her application was denied on theground that her situation was not described in Georgia's abortion law. This law allowed abortions only if a continued pregnancy would endanger a pregnantwoman's life or injure her health; the fetus would be born with a serious defect; or the pregnancy resulted from rape.
Mary Doe and nine physicians brought a federal action in the Northern District of Georgia against the state's attorney general, the district attorney of Fulton County, and the chief of police of Atlanta. Doe wanted the court to declare that the Georgia abortion laws were unconstitutional in their entirety.She also wanted an injunction restraining the defendants from enforcing the abortion statutes. Doe alleged in her suit that because her application for anabortion was denied, she was forced either to relinquish "her right to decide when and how many children she will bear" or seek an abortion that was illegal. This invaded her rights of privacy and liberty in matters relating to family, marriage, and sex, and deprived her of the right to choose whether to bear children. This violated the rights guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The Georgia abortion laws also denied herequal protection and procedural due process and, because they were unconstitutionally vague, deterred hospitals and doctors from performing abortions. The doctors in the suit alleged that the Georgia laws "chilled and deterred" them from practicing their profession and deprived them of the rights guaranteed by the First, Fourth, and Fourteenth Amendments.
The district court ruled that limiting the reasons why an abortion may be sought improperly restricted Doe's right of privacy and of personal liberty, which should include the decision to abort a pregnancy. Thus the court held invalid the part of the law that limited abortions to three situations, but refused to issue an injunction. The court, however, held that Georgia's interest in protection of health and the existence of a "potential of independent humanexistence" justified state regulation of "the manner of performance as wellas the quality of the final decision to abort." The court refused to strike down the provisions of the statute that required a woman wanting an abortion:to be a resident of Georgia; to get two other physicians to approve the procedure; to have the abortion performed in a hospital accredited by the joint Commission of Accreditation of Hospitals; and to have the abortion approved bya hospital committee.
Health Includes Physical, Emotional, and Psychological Well-being
Claiming that they were entitled to an injunction and to broader relief, theplaintiffs appealed directly to the Supreme Court. Doe v. Bolton was the companion case to Roe v. Wade (1973), the landmark case in which the Court ruled that the Fourteenth Amendment provided a fundamental right forwomen to obtain abortions. The Court held that the "right to privacy," assured the freedom of a person to abort unless the state had a "compelling interest" in preventing the abortion.
In Doe v. Bolton, Doe argued that the Georgia statute, as it stood after the district court's decision, was unconstitutionally vague. The law stillstated that it was a crime for a doctor to perform an abortion except when it was "based upon his best clinical judgment that an abortion is necessary."Doe contended that the word "necessary" did not let physicians know what conduct was not allowed and that the statute was subject to many different interpretations. The Court responded that "medical judgment may be exercised in thelight of all factors--physical, emotional, psychological, familial, and thewoman's age--relevant to the well-being of the patient. All these factors mayrelate to health."
The Georgia abortion statute required three procedural steps of a woman wanting an abortion: the abortion had to be performed in an accredited hospital; it had to be approved by the hospital staff abortion committee; and two otherphysicians, besides the woman's own doctor, had to examine her and confirm the decision to abort. Doe argued that these three procedural demands unduly restricted the woman's right to privacy and denied procedural due process and equal protection. Regarding the requirement that abortions be performed in accredited hospitals, the Court stated that after the end of the first trimesterof pregnancy, Georgia may adopt standards for licensing all facilities whereabortions may be performed. But because the hospital requirement of the lawfailed to exclude the first trimester of pregnancy, that requirement was invalid. Regarding committee approval of the abortion, the Court stated, "The woman's right to receive medical care in accordance with her licensed physician's best judgment and the physician's right to administer it are substantiallylimited by this statutorily imposed overview." Regarding the required two physician concurrence, the Court felt that it had no rational connections with apatient's needs and unduly infringed on the physician's right to practice.
Doe attacked the Georgia residency requirement as violating the right to travel. The Court noted, "Just as the Privileges and Immunities Clause . . . protects persons who enter other states to ply their trade . . . so must it protect persons who enter Georgia seeking the medical services that are availablethere." Blackmun concluded the opinion by noting that the provisions of the law ruled on in this case all violated the Fourteenth Amendment.
Chief Justice Burger wrote in his concurring opinion, "I agree that, under the Fourteenth Amendment to the Constitution, the abortion statutes of Georgiaand Texas impermissibly limit the performance of abortions necessary to protect the health of pregnant women, using the term health in its broadest medical context." Burger would allow a state to require the certification of two physicians to support an abortion. He noted that the Court in this case rejected any claim that the Constitution requires abortions on demand.
Justice Douglas wrote a concurring opinion. He noted that some rights, such as the freedom of choice regarding marriage, divorce, procreation, contraception, and the education of children are subject to some control by the police power. Rights such as the freedom to care for one's health and person are fundamental but are subject to regulation on showing of "compelling state interest." Douglas noted that the Georgia abortion statute went against the idea that a woman is free to make the basic decision of whether or not to bear an unwanted child. Childbirth may deprive a woman of her preferred lifestyle and force upon her a radically different and undesired future. Women denied abortions under the Georgia law may have to abandon educational plans, lose income,forego careers, and bear the stigma of unwed motherhood. But the state also has interests to protect including the woman's health and the life of the fetus after quickening.
Douglas felt that the Georgia law resulted in the "total destruction of the right of privacy between physician and patient and the intimacy of relation which that entails. The right to seek advice on one's health and the right to place reliance on the physician of one's choice are basic to Fourteenth Amendment values."
The Issue Should Be Left To The People
Justice White dissented. He felt that the majority's position was that before"the fetus becomes viable, the Constitution . . . values the convenience, whim, or caprice of the putative mother more than the life or potential life ofthe fetus; the Constitution, therefore, guarantees the right to an abortionas against any state law or policy seeking to protect the fetus from an abortion . . . " White did not support this view. He felt that the Court was simply fashioning a new constitutional right for pregnant women. He believed thatthe people and legislatures of the states could not now weigh the relative importance of the continued existence and development of the fetus against theimpact on the mother. White felt that this was an "improvident and extravagant exercise of the power of judicial review." He noted that the Court apparently valued the convenience of the pregnant mother more than the continued existence and development of the life she carried. No constitutional warrant existed for imposing this order of priorities on the people and state legislatures. This is an area where "reasonable men may easily and heatedly differ . . ." White felt a constitutional barrier should not prevent states from protecting human life and the Court should not invest mothers and doctors with the constitutionally protected right to exterminate human life. He felt that the issue should be left to the people and to the political processes.
Justice Rehnquist also dissented. He believed that the compelling-state-interest standard was an inappropriate measure of the constitutionality of state abortion laws.
Impact
In Roe v. Wade and Doe v. Bolton the Court upheld a woman's right to an abortion. Notably the Doe case defined "health" as includinga woman's age, and physical, psychological, and familial factors. Through themid-1980s, the Court adhered to its rulings in those cases, despite state challenges. In 1989 came the first sharp departure from the 1973 rulings. In Webster v. Reproductive Health Services (1989), the Court decided to letstand a Missouri law stating that human life began at conception, that barred the use of state property for abortions, and that required viability testsfor advanced pregnancies. Some state legislatures began to pass new abortionrestrictions after this decision. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Court reached a practical compromise allowing limited state regulation of abortion, yet still preserving general access to abortion. The Court decided that abortion after viability (20-22 weeks)can be banned and pre-viability laws only have to meet the new "undue burden"standard, meaning that a "compelling" state interest is not required as longas the law does not form a "substantial obstacle" to obtaining an abortion.This case has replaced Roe v. Wade as the dominant precedent on abortion.
Related Cases

• United States v. Vuitch, 402 U.S. 62 (1971).
  
• Roe v. Wade, 410 U.S. 113 (1973).
  
• Webster v. Reproductive Health Services, 492 U.S. 490 (1989).
  
• Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S.833 (1992).