Doe et al. v. Bolton, Attorney General of Georgia, et al.
Decided on Jan. 22, 1973; 410 US 179


I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: Abortion

B. Legal Question Presented:

Is Georgia's statute, which makes abortion a crime, constitutional?

II. CASE SUMMARY:

A. Background:

"Georgia law proscribes an abortion except as performed by a duly licensed Georgia physician when necessary in 'his best clinical judgment' because 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. 26-1202 (a) of Ga. Criminal Code.

In addition to a requirement that the patient be a Georgia resident and certain other requirements, the statutory scheme poses three procedural conditions in 26-1202

(b): (1) that the abortion be performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals (JCAH);

(2) that the procedure be approved by the hospital staff abortion committee; and

(3) that the performing physician's judgment be confirmed by independent examinations of the patient by two other licensed physicians.  

Appellant Doe, an indigent married Georgia citizen, who was denied an abortion after eight weeks of pregnancy for failure to meet any of the 26-1202 (a) conditions, sought declaratory and injunctive relief, contending that the Georgia laws were unconstitutional. Others joining in the complaint included Georgia-licensed physicians (who claimed that the Georgia statutes "chilled and deterred" their practices), registered nurses, clergymen, and social workers.

Though holding that all the plaintiffs had standing, the District Court ruled that only Doe presented a justiciable controversy. In Doe's case the court gave declaratory, but not injunctive, relief, invalidating as an infringement of privacy and personal liberty the limitation to the three situations specified in 26-1202 (a) and certain other provisions but holding that the State's interest in health protection and the existence of a 'potential of independent human existence' justified regulation through 26-1202 (b) of the 'manner of performance as well as the quality of the final decision to abort.' The appellants, claiming entitlement to broader relief, directly appealed to this Court."  

"The appellants, claiming entitlement to broader relief," directly appealed to the US Supreme Court which modified the judgment of the District Court and affirmed it.

B. Counsel of Record:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Briefs of amici curiae were filed by Roy Lucas for the American College of Obstetricians and Gynecologists et al.; by Dennis J. Horan, Jerome A. Frazel, Jr., Thomas M. Crisham, and Delores V. Horan for Certain Physicians, Professors and Fellows of the American College of Obstetrics and Gynecology; by Harriet F. Pilpel, Nancy F. Wechsler, and Frederic S. Nathan for Planned Parenthood Federation of America, Inc., et al.; by Alan F. Charles for the National Legal Program on Health Problems of the Poor et al.; by Marttie L. Thompson for State Communities Aid Assn.; by Alfred L. Scanlan, Martin J. Flynn, and Robert M. Byrn for the National Right to Life Committee; by Helen L. Buttenwieser for the American Ethical Union et al.; by Norma G. Zarky for the American Association of University Women et al.; by Nancy Stearns for New Women Lawyers et al.; by the California Committee to Legalize Abortion et al.; by Robert E. Dunne for Robert L. Sassone; and by Ferdinand Buckley pro se.

Margie Pitts Hames reargued the cause for appellants. With her on the briefs were Reber F. Boult, Jr., Charles Morgan, Jr., Elizabeth Roediger Rindskopf, and Tobiane Schwartz.

Dorothy T. Beasley reargued the cause for appellees. With her on the brief were Arthur K. Bolton, Attorney General of Georgia, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, Assistant Attorney General, Joel Feldman, Henry L. Bowden, and Ralph H. Witt.

IV. THE SUPREME COURT'S DECISION:

"A woman's constitutional right to an abortion is not absolute. The requirement that a physician's decision to perform an abortion must rest upon 'his best clinical judgment' of its necessity is not unconstitutionally vague, since that judgment may be made in the light of all the attendant circumstances.

The three procedural conditions in 26-1202 (b) violate the Fourteenth Amendment:

(a) The JCAH-accreditation requirement is invalid, since the State has not shown that only hospitals (let alone those with JCAH accreditation) meet its interest in fully protecting the patient; and a hospital requirement failing to exclude the first trimester of pregnancy would be invalid on that ground alone,

(b) The interposition of a hospital committee on abortion, a procedure not applicable as a matter of state criminal law to other surgical situations, is unduly restrictive of the patient's rights, which are already safeguarded by her personal physician.

(c) Required acquiescence by two copractitioners also has no rational connection with a patient's needs and unduly infringes on her physician's right to practice.

The Georgia residence requirement violates the Privileges and Immunities Clause by denying protection to persons who enter Georgia for medical services there."

The US Supreme Court modified the judgment of the District Court and affirmed it.

Justice Vote: 7 Pro vs. 2 Con

  • Blackmun, H.Pro (Wrote majority opinion)
  • Burger, W. Pro (Wrote concurring opinion)
  • Douglas, W. Pro (Wrote concurring opinion)
  • Brennan, W. Pro (Joined majority opinion)
  • Stewart, P. Pro (Joined majority opinion)
  • Marshall, T. Pro (Joined majority opinion)
  • Powell, L. Pro (Joined majority opinion)
  • White, B. Con (Wrote dissenting opinion)
  • Rehnquist, W. Con (Joined dissenting opinion)
V. A WIN OR LOSS FOR THE ACLU?

The ACLU, as counsel of record, urged affirmance of the judgment with broader protection; the Supreme Court modified and affirmed in a 7-2 vote, giving the ACLU an apparent win.