LOCATION: Stanford University
DOCKET NO.: 70-40
DECIDED BY: Burger Court (1972-1975)
CITATION: 410 US 179 (1973)
REARGUED: Oct 11, 1972
DECIDED: Jan 22, 1973
ARGUED: Dec 13, 1971
Dorothy T. Beasley - for appellees
Margie Pitts Hames - for appellants
Facts of the case
Media for Doe v. BoltonAudio Transcription for Oral Argument - December 13, 1971 in Doe v. Bolton
Audio Transcription for Oral Reargument - October 11, 1972 in Doe v. Bolton
Warren E. Burger:
We’ll hear arguments next in number 70-40, Doe against Bolton.
Mrs. Hames, you may proceed whenever you’re ready.
Margie Pitts Hames:
Mr. Chief Justice and may it please the Court.
This is an appeal from a decision in the Northern District Court of Georgia where the three-judge Court below held portions of a Model Penal Code type abortion statute unconstitutional and upheld other provisions, and refused to issue an injunction in support of a declaratory judgment.
The case was filed on behalf of Mary Doe a pregnant woman, doctors, nurses, ministers, social workers, and family planning organizations as a class action seeking declaratory and injunctive relief.
The District Court found that the right of privacy there did include the right to terminate an unwanted pregnancy without hanging the case on any particular provision in the constitution that rely primarily on this Court’s decision in Griswold.
The Court found that the specification of three reasons for abortion in our statute was unduly restrictive and overbroad.
Mary Doe was given a declaratory judgment.
However, the physicians and other parties, even though said to have sufficient standing, lacked sufficient collision of interests and, therefore, the case was dismissed as to them.
This case stands on similar jurisdictional grounds as the Roe versus White case which we just heard.
I would only point to two cases on the jurisdictional point.
One is Wisconsin versus Constantineau which dealt with a third party’s constitutional right there, and then the discussion in the Eisenstadt versus Baird case, the recent case of this Court.
The facts of this case involved Mary Doe who was a 22-year-old woman, married.
She had given birth to three previous children, two of whom had been taken away from her by state authorities because she was unable to care for them.
The third child, she was required by her husband to place with adoptive parents.
Mrs. Doe requested an abortion at the public hospital where she was entitled to free medical service.
She was an indigent person, by the way.
Her-- Mary had been unstable, and during the pendency of her pregnancy her husband abandoned her.
She was about 10 or 11 weeks when this lawsuit was commenced, and she subsequently applied to private physicians in Atlanta in a private hospital for an abortion and that application was approved.
She was turned down, however, by the public hospital.
The abortion statute in Georgia, as I said, is modeled after the Model Penal Code and was adopted in 1968.
The prior law was adopted in 1976 and it was of the Texas type to save the life of the woman statute.
The legislature in 1968, however, permitted abortion for three reasons: rape, likelihood of grave and permanent or irremediable fetal malformation and danger to the life of the woman or serious and permanent injury to her health.
These were the reasons the Court declared unconstitutional.
They left standing, however, the procedures in the statute.
The residency requirement, the requirement that a doctor have two consultants, the hospital abortion committee approval requirement of at least three more doctors, and the requirement that all abortions be performed in accredited licensed hospitals, that is those accredited by the Joint Commission on Hospital Accreditation, and there were several other reporting requirements that were left standing.
Appellants here contend that it’s not necessary to debate the fetal life problem in the Georgia case because, as the District Court recognized, the Georgia statute is aimed at protecting the health of the woman.
Judge Smith said that the whole thrust of the present statute is to treat the problem as a medical one.
The only compelling interest that has been asserted by the state, however, is the interest in preserving fetal life.