Doe v. Bolton (1973)
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. 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
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
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
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
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.
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
Justice Rehnquist. Justice Rehnquist filed a
brief dissent reiterating the views he had expressed in
 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.