Policy & Advocacy
Doe v Bolton Opinion
Doe v. Bolton Opinion of the Supreme Court of the United States, Argued December 13, 1971, Decided January 22, 1973.
Mr. Justice Blackmun delivered the opinion of the Court.
In this appeal, the criminal abortion statutes recently enacted in Georgia are challenged on constitutional grounds. The statutes are §§ 26-1201 through 261203 of the Stateʹs Criminal Code, formulated by Georgia Laws, 1968 Session, pp. 1249, 1277-1280. In Roe v. Wade, ante p. 113, we today have struck down, as constitutionally defective, the Texas criminal abortion statutes that are representative of provisions long in effect [p182] in a majority of our States. The Georgia legislation, however, is different and merits separate consideration.
The statutes in question are reproduced as Appendix A, post, p. 202. [n1] As the appellants acknowledge, [n2] the 1968 statutes are patterned upon the American Law Instituteʹs Model Penal Code, § 230.3 (Proposed Official Draft, 1962), reproduced as Appendix B, post, p. 205. The ALI proposal has served as the model for recent legislation in approximately one-fourth of our States. [n3] The new Georgia provisions replaced statutory law that had been in effect for more than 90 years. Georgia Laws 1876, No. 130, § 2, at 113. [n4] The predecessor statute paralleled [p183] the Texas legislation considered in Roe v. Wade, supra, and made all abortions criminal except those necessary ʺto preserve the lifeʺ of the pregnant woman. The new statutes have not been tested on constitutional grounds in the Georgia state courts.
Section 26-1201, with a referenced exception, makes abortion a crime, and § 26-1203 provides that a person convicted of that crime shall be punished by imprisonment for not less than one nor more than 10 years. Section 21202(a) states the exception and removes from § 1201ʹs definition of criminal abortion, and thus makes noncriminal, an abortion ʺperformed by a physician duly licensedʺ in Georgia when,
based upon his best clinical judgment . . . an abortion is necessary because:
- (1) A continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or
- (2) The fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or
- (3) The pregnancy resulted from forcible or statutory rape.