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Doe v. Bolton (1973)

In Depth

Background

A pregnant woman from Georgia, with the pseudonym "Mary Doe," sued in a federal district court on behalf of herself and other women who might be in a situation like hers, to challenge various provisions of the state's abortion law. Those provisions required, in part, approval by a hospital abortion committee prior to the performance of an abortion. Such a committee denied Doe's application for an abortion.  She brought suit against the state attorney general (Arthur Bolton), a district attorney and the chief of police. The district court declared some provisions of the Georgia law unconstitutional. It did not issue an injunction barring enforcement of the statute.

The Statute under Review

The Georgia statute generally prohibited abortions with a criminal penalty of one to ten years imprisonment.  Exceptions were made in cases where continuation of pregnancy jeopardized a woman's life or would seriously and permanently injure her health, the child had a grave, permanent, and irremediable physical or mental defect, or the pregnancy resulted from rape, including statutory rape.[1] To obtain an abortion under any of the exceptions, the following requirements had to be met: (1) Georgia residency, (2) the written concurrence of two physicians, (3) performance of the abortion in an accredited hospital, and (4) approval of the abortion by a hospital committee.

The Court's Holding

The Court invalidated all four of the challenged requirements - Georgia residency, two-physician concurrence, hospital accreditation, and hospital committee approval.

The opinion was authored by Justice Blackmun and was joined by Chief Justice Burger and Justices Douglas, Brennan, Stewart, Marshall and Powell.  The Chief Justice wrote a concurrence as did Justice Douglas.  Justices White and Rehnquist wrote dissents.

The Court's Reasoning

The Meaning of "Health." At the outset of its decision, the Court addressed the specific argument by Doe that provisions of the statute left intact by the district court created a problem of "vagueness."  That problem, Doe contended, was on account of the fact that the provision that remained prohibited abortions except those deemed necessary "based upon [a physician's] best clinical judgment."  See note 1, supra.  Doe said that this language was constitutionally vague because it did not provide clear notice to the physician as to what conduct the statute prohibited. The Court rejected this argument saying that the physician's medical judgment:

may be exercised in the light of all factors -- physical, emotional, psychological, familial, and the woman's age -- relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment.

Roe held that states could ban abortion after viability so long as there is an exception for "health."  The Court's broad understanding of health in Doe, by one reading, would seem to allow abortion through all nine months of pregnancy.  At the same time, the Court reiterated in Doe that Roe did not confer an absolute right to abortion.  For these and other reasons, it is difficult today to say with assurance how broadly or narrowly the Court might construe the requirement of a health exception for a post-viability ban - an issue not squarely presented in either Roe or Doe.

Accreditation Requirement. The Court struck down a requirement that abortions be performed in hospitals accredited by the Joint Commission on Accreditation of Hospitals (JCAH). The Court said that JCAH standards, which apply to all hospitals regardless of whether they perform abortions or not, did not reasonably relate to the aims of the abortion statute.

The Court also struck down the accreditation requirement because it did not exclude the first trimester as required by its decision in Roe. The Court indicated that if the state wants to require an abortion after the first trimester be performed in a licensed hospital, it must make a showing that only a licensed hospital, and not some other kind of facility, would serve the health needs of the woman.

Hospital Committee Requirement.The Court struck down the requirement for approval from a hospital abortion committee. The Court said the requirement substantially limited the woman's "right to receive medical care" from her physician. The Court also said that such a requirement could not serve an interest in protecting unborn life because the decision to have an abortion had been made prior to the committee's review. Additionally, the Court indicated that the committee requirement served mostly the interests of the hospital by ensuring that the hospital approved of practices within its institution. The Court noted that a conscience protection in the statute that permitted hospitals and employees of hospitals to object to the performance of an abortion adequately protected the interests of the hospital.

Two Doctor Review. The Court struck down the requirement that two physicians in addition to the woman's physician concur in the decision to have an abortion, concluding that this provision is an undue infringement on the physician's "right to practice."  The Court also said that the requirement did not serve the woman's health.

Georgia residency. The Court invalidated a requirement that women seeking abortions in Georgia be residents of the state. The Court noted that the requirement did not serve to protect public resources for Georgia's own residents because the requirement also applied to private facilities.  A contrary result, the Court concluded, would mean that a state could restrict medical care to its own residents, a result the Court said it could not approve.

The Concurrences

Chief Justice Burger. Chief Justice Burger concurred with the Court's opinion that the Fourteenth Amendment requires a state to allow an abortion for the sake of a woman's health. The Chief Justice indicated his support for the two physician review of the abortion decision. He also denied that the decisions in Roe and Doe would have "sweeping consequences" because he trusted physicians to "act only on the basis of carefully deliberated medical judgments relating to life and health." He added, "Plainly, the Court today rejects any claim that the Constitution requires abortions on demand."

Justice Douglas. In his concurrence, Justice Douglas discussed his views concerning fundamental liberties, distinguishing between those that he said are absolute and those that may be subject to some government interference or regulation.  Though the abortion right is fundamental, it is subject to state regulation provided that regulation is narrowly drawn.   The Georgia statute was fatally overbroad, Justice Douglas concluded, because it did not take into account psychological health or distinguish between developmental stages of the unborn child.

The Dissent

Justice White (joined by Justice Rehnquist).  Justice White said that the Court had created a right to abortion upon request, and had imposed this right on all fifty states, with no basis in constitutional text or history.   Justice White called the Court's opinions "an exercise of raw judicial power."

Justice Rehnquist.  Justice Rehnquist filed a brief dissent reiterating the views he had expressed in Roe.



[1] The lower court struck down the Georgia statute to the extent it limited the reasons for which abortion could be obtained.   As a result, a physician could lawfully perform an abortion in Georgia if, in his or her best clinical judgment, an abortion was necessary.

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