In the 1960s, there was a marked change in attitude among physicians and attorneys toward abortion, which since the late nineteenth century had been a crime in most states except when performed to save the life of the mother. The American Medical Association and the American Bar Association advocated a more liberal approach to the interests of women in terminating unwanted pregnancies. In 1962, the American Law Institute (ALI) included a more tolerant abortion statute in its Model Penal Code. Approximately one-fourth of the states, including Georgia, enacted new abortion laws modeled after the ALI draft. In Doe v. Bolton, the Supreme Court ruled that the relatively enlightened Georgia abortion law was inconsistent with a woman’s right to end her pregnancy as delineated in the companion case decided the same day—Roe v. Wade, 410 U.S. 113 (1973).
Mary Doe, an indigent married Georgia citizen, was denied an abortion after eight weeks of pregnancy for failure to meet any of the conditions in the 1968 Georgia abortion statute. Georgia law prohibited abortion except when continued pregnancy would endanger a pregnant woman’s life or injure her health, the fetus would likely be born with a serious defect, or the pregnancy resulted from rape. The law also limited the availability of abortion to Georgia residents and required that abortions be performed in hospitals accredited by the Joint Commission on the Accreditation of Hospitals (JCAH) and be approved by the hospital’s abortion committee. The law also demanded that two other physicians concur in the attending physician’s judgment that abortion is advisable.
The Supreme Court, in a seven-to-two decision, ruled in favor of the plaintiff, citing its holding in Roe that personal liberty as protected by the Due Process Clause of the Fourteenth Amendment includes the decision to terminate a pregnancy. The Court made clear that abortion was a medical procedure to be undertaken at the discretion of the attending physician. The state cannot prevent even late-term abortions if the physician judges that the abortion is necessary to protect the female patient’s physical or mental health. In Doe the Court interpreted the concept of mental health broadly, allowing the physician to weigh physical, emotional, psychological, familial, and age factors—all of which are relevant to the patient’s well-being.
The limitation of abortion to the three conditions specified in the Georgia law violates the rule announced in Roe that, during the first trimester, the state cannot place any restraints on a woman’s right to terminate her pregnancy for whatever reason. The Court found each of the procedural requirements unduly burdensome as well. The state cannot require that abortions be performed in a hospital, that abortions be approved by a hospital committee, or that two additional physicians concur in the abortion decision. These limitations interfere with the attending physician’s exercise of his or her professional judgment. The Court struck down the residency requirement on the grounds that the Privileges and Immunities Clause of Article IV, section 2, protects persons who enter a state seeking medical services, including abortion.
The broad definition of health in Doe ensured that pregnant women would be able to exercise their constitutional right to abortion throughout each of the three trimesters of pregnancy with minimal interference from the state.
KENNETH M. HOLLAND
References and Further Reading
Cases and Statutes Cited
See also Abortion; Privileges and Immunities (XIV); Roe v. Wade, 410 U.S. 113 (1973)