PETERS, J.

Dr. Leon Phillip Belous was convicted in January 1967, after a jury trial, of abortion, in violation of section 274 of the Penal Code, and conspiracy to commit an abortion, in violation of section 182 of the Penal Code, both felonies. The court suspended proceedings, imposed a fine of $5,000, and placed Dr. Belous on probation for two years. He appeals from the order granting probation.

Dr. Belous is a physician and surgeon, licensed since 1931 to practice medicine in the State of California, and specializing in obstetrics and gynecology. He has been on the attending staff of the gynecology department of Cedars of Lebanon Hospital in Los Angeles since 1931, is a fellow of the Los Angeles Gynecology and Obstetrical Society, the American College of Obstetrics and Gynecology, and the Abdominal Surgical Society, and the Geriatric Society, and a member of the American Board of Obstetrics and Gynecology. He is on the Board of Directors of the. California Committee on Therapeutic Abortion, an organization which seeks to liberalize abortion laws. He is considered by his associates to be an eminent physician in his field.

The prosecution’s witnesses, a young woman and her husband, Cheryl and Clifton, testified to the following:

In 1966, Cheryl, then unmarried, believed she was pregnant. A family physician had given her pills which would induce menstruation if she were not pregnant, but the pills did not work. She and Clifton had sometime earlier seen Dr. Belous on television, advocating a change in the California abortion laws. They had never heard of Dr. Belous before. Clifton obtained the doctor’s phone number from the television station and phoned Dr. Belous; he explained the problem and that they both were “pretty disturbed,” and at their “wits’ end” and asked for Dr. Belous’ help. Dr. Belous told him there was nothing he could do, but Clifton “continued pleading,” and threatened that Cheryl would go to Tijuana for an abortion. Finally the doctor agreed to see them at his office.

Dr. Belous examined Cheryl at his Beverly Hills office and confirmed that she was possibly pregnant. Cheryl was otherwise in good health. The visit lasted about 45 minutes and was very emotional. Both Clifton and Cheryl pleaded for help, cried, insisted they were going to have an abortion ‘ ‘ one wav *958or another. ’ ’ The doctor lectured them on the dangers of criminal abortions, and Tijuana abortions in particular, and suggested that they get married. He insisted he did not perform abortions. He refused to recommend anyone in Tijuana. Finally, in response to their pleadings, Dr. Belous gave them a piece of paper with a Chula Vista phone number. He told them an abortion would cost about $500. He gave Cheryl a prescription for some antibiotics and- instructed her to return for an examination.

Dr. Belous testified that he was very familiar with the abortion business in Tijuana. He had visited the clinics there to learn about conditions and knew that women who went to Tijuana were taking their lives in their hands. He met Karl Lairtus while in Tijuana and knew from personal observation that Lairtus, licensed to practice in Mexico but not in California, was performing skilled and safe abortions in Mexico. Lairtus wanted to obtain a California license, and sought out Belous’ help on a number of occasions. When Lairtus moved from Mexico to Chula Vista, he gave Dr. Belous his address and phone number. When Lairtus moved to Los Angeles, he gave the doctor a Hollywood address, and made it known to the doctor that he was performing abortions. It was Lairtus’ number that Belous gave to Cheryl and Clifton. Although he had given out Lairtus’ number before, in similar situations, where distraught pregnant women insisted they would do anything, Dr. Belous had no idea how many women actually went to Lairtus.

Cheryl and Clifton made arrangements with Lairtus, and went to the address which Lairtus gave them on the phone. After the abortion was performed, while Cheryl was resting, the police, having been advised by another woman that Lair-tus was performing abortions at that address, came to his apartment, followed another couple into the apartment and arrested Lairtus. They found two notebooks, containing women’s names, ages, dates of last menstruation, and physician’s names, including Dr. Belous’ name, which the police interpreted as the referring doctor with whom Lairtus was to split his fees. On the basis of this information, Dr. Belous was arrested at his office. Lairtus pleaded guilty. At Dr. Belous’ trial, he testified that, although not solicited, he sent Dr. Belous about $100 as a professional courtesy in about half the cases that he had performed abortions on Dr. Belous’ patients. Dr. Belous denied receiving any money from Lair-tus.

*959The substance of Dr. Belous ’ defense was that he gave Lairtus’ phone number to Cheryl and Clifton only because he relieved that they would, in fact, do anything to terminate, the pregnancy, which might involve butchery in Tijuana or self-mutilation; that in face of their pleading and tears, he gave out the phone number of someone whom he knew to be a sompetent doctor, although unlicensed in this state. The doctor believed that if the young couple carried out their threats, Cheryls’ very life was in danger.

Section 274 of the Penal Code, when the conduct herein involved occurred, read: “Every person who provides, supplies, or administers to any woman, or procures any woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the State prison not less than two nor more than five pears. ’ ’

The statute was substantially unchanged since it was originally enacted in 1850.1 In 1967, the statute was amended and sections 25950 through 25954 (“Therapeutic Abortion Act”) added to the Health and Safety Code. The act extends the Lawful grounds for obtaining an abortion.2 Section 274 is directed towards the abortionist. Under section 275 of the *960Penal Code (also amended by the Therapeutic Abortion Act) a woman who solicits or submits to an abortion is punishabl by up to five years’ imprisonment; similarly, under sectioi 276, any person who solicits a woman to submit to an abortioi is punishable by up to five years ’ imprisonment.

We have concluded that the term “necessary to pre serve” in section 274 of the Penal Code is not susceptible of í construction that does not violate legislative intent and that is sufficiently certain to satisfy due process requirements with out improperly infringing on fundamental constitutiona rights.

“The requirement of a reasonable degree of certainty in legislation, especially in the criminal law, is a well established element of the guarantee of due process of law ‘No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids . . . “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” ’ (Lanzetta v. New Jersey, 306 U.S. 451, 453 [83 L.Ed. 888, 890 59 S.Ct. 618]; see also Connally v. General Constr. Co., 269 U.S. 385, 391 [70 L.Ed. 322, 328, 46 S.Ct. 126].) Such also is the law of the State of California. (People v. McCaughan, 49 Cal.2d 409, 414 [317 P.2d 974].)

“The required meaning, certainty and lack of ambiguity may appear on the face of the questioned statute or from any demonstrably established technical or common law meaning of the language in question. (People v. McCaughan, supra, 49 Cal.2d 409, 414; Lorenson v. Superior Court, 35 Cal.2d 49, 60 [216 P.2d 859].)” (In re Newbern, 53 Cal.2d 786, 792 [3 Cal.Rptr. 364, 350 P.2d 116].) The requirement of certainty in legislation is greater where the criminal statute is a limitation on constitutional rights. (See Smith v. California (1959) 361 U.S. 147, 151 [4 L.Ed.2d 205, 210, 80 S.Ct. 215].) On the other hand, mathematical certainty is not required; “some matter of degree” is involved in most penal statutes. (Nash v. United States (1913) 229 U.S. 373, 377 [57 L.Ed. 1232, 1235, 33 S.Ct. 471].)

Dictionary definitions and judicial interpretations fail to provide a clear meaning for the words, “necessary” or “preserve.” There is, of course, no standard definition of “necessary to preserve,” and taking the words separately, no *961sar meaning emerges. “Necessary” is defined as: “1. Es-ntial to a desirable or projected end or condition; not to be spensed with without loss, damage, inefficiency, or the like ; (Webster’s New International Dictionary (2d ed.), íabridged.) The courts have recognized that “ ‘necessary’ is not a fixed meaning, but is flexible and relative.” (Westphal v. Westphal, 122 Cal.App. 379, 382 [10 P.2d 119]; see also, City of Dayton v. Borchers (1967) 13 Ohio Misc. 273 132 N.E.2d 437, 441]; [“A necessary thing may supply a ide range of wants, from mere convenience to logical com-leteness.”].)

The definition of “preserve” is even less enlightening. It is jfined as: “1. To keep or save from injury or destruction; to' lard or defend from evil; to protect; save. 2. To keep in dstence or intact; ... To save from decomposition, . . . To maintain; to keep up; . . . (Webster’s New Interna-onal Dictionary, supra.) The meanings for “preserve” mge from the concept of maintaining the status quo — that , the woman’s condition of life at the time of pregnancy — to aintaining the biological or medical definition of “life”— íat is, as opposed to the biological or medical definition of death. ’ ’

Since abortion before quickening was not a crime at com-lou law (Perkins, Criminal Law (1967) 101; Means, The Law of New York Concerning Abortion and the Status of the oetus, 1664-1968: A Case of Cessation of Constitutionality 1968) 14 N.Y.L.F. 411, 419-422; Stern, Abortion: Reform and the Law (1968) 59 J.Crim.L.C. & P.S. 84, 85) we cannot fly on common law meanings or common law referents (see Lorenson v. Superior Court, supra, 35 Cal.2d 49, 60; People v. Agnello, 259 Cal.App.2d 785, 790-791 [66 Cal.Rptr. 571]).3 Various possible meanings of “necessary to preserve . . . fe” have been suggested. However, none of the proposed efinitions will sustain the statute.

Respondent asserts: “If medical science feels the bortio'n should be performed as it is necessary to preserve her life, then it may be performed; that is, unless it is performed xe patient will die. ’ ’

Our courts, however, have rejected an interpretation of *962“necessary to preserve” which requires'certainty or imn diacy of death. (People v. Abarbanel, 239 Cal.App.2d 31, 3 35 [48 Cal.Rptr. 336]; People v. Ballard, 218 Cal.App.2d 29 298 [32 Cal.Rptr. 233]; People v. Ballard, 167 Cal.App.2d 803, 807 [335 P.2d 204].) Justice Fourt, in People v. Ballar supra, 167 Cal.App.2d 803, 814, stated: “Surely, the abortb statute (Pen. Code, § 274) does not mean by the words ‘ unk the same is necessary to preserve her life ’ that the peril to li be imminent. It ought to be enough that the dangerous cone tion ‘ be potentially present, even though its full developme might be delayed to a greater or less extent. Nor was it esse tial that the doctor should believe that the death of the p tient would be otherwise certain in order to justify him affording present relief.' [Citations.]” The above language was quoted in People v. Abarbanel, supra, 239 Cal.App.2d 31, 34.

In People v. Ballard, supra, 167 Cal.App.2d 803, 813-81 the evidence established that the woman was “extreme nervous . . . upset, had headaches, was unable to sleep, ax thought that she was pregnant. She was agitated, disturbe and had many problems.” (Italics .omitted.) In People Ballard, supra, 218 Cal.App.2d 295, 307, it was establish! that at the time each of the women went to the defendai doctor she was in a “bad state of health” because of sel imposed abortive practices. And in People v. Abarbane supra, 239 Cal.App.2d 31, the obstetrician performed tl abortion after receiving letters from two psychiatrists to. tl effect that abortion was indicated as necessary to save tl woman’s life from the “possibility” of suicide. In each ( the cases the conviction was reversed.

If the fact of ill health or the mere “possibility” of suicid is sufficient to meet the test of “necessary to preserve he life, ” it is clear that a showing of immediacy or certainty o death is not essential for a lawful abortion. Two other juri: dictions have also rejected an interpretation of “necessary t preserve” which would require certainty or immediacy c death. (State v. Dunklebarger (1928) 206 Iowa 971 [221 N.W. 592, 596]; State v. Hatch (1917) 138 Minn. 317 [164 N.W. 1017].)

After the decision in Ballard, the Legislature did no amend the statute to repudiate the rule suggested by that cas and to establish a definition requiring certainty of death.4 *963It would be anomalous to uphold a criminal statute against charge of vagueness by adopting a construction of the state rejected by the courts of this state as not reflecting legla-re intent unless there was a clear showing of a strong public tliey or legislative intent requiring adoption of the rejected nstruction. No such showing has been made with regard to e construction urged by respondent. '

Moreover, a definition requiring certainty of death would ork an invalid abridgment of the woman’s constitutional ghts. The rights involved in the instant case are the Oman’s rights to life and to choose whether to bear chil•en.5 The woman’s right to life is involved because ehild-rth involyes risks of death.6

The fundamental right of the woman to choose whether to jar children follows from the Supreme Court’s and this mrt’s repeated acknowledgment of.a “right of privacy” or liberty” in matters related to marriage, family, and sex. See, e.g., Griswold v. Connecticut, supra, 381 U.S. 479, 485, 486, 500 [14 L.Ed.2d 510, 515, 516, 524, 85 S.Ct. 1678]; Loving Virginia (1967) 388 U.S. 1, 12 [18 L.Ed.2d 1010, 1018, 87 S.Ct. 1817] [statute prohibiting interracial marriages, viola-ve of due process clause]; Skinner v. Oklahoma (1942) 16 U.S. 535, 536, 541 [86 L.Ed.2d 1655, 1657, 1660, 62 S.Ct. 1110] [sterilization laws; marriage and procreation volve a “basic liberty”]’; Pierce v. Society of Sisters 1925) 268 U.S. 510, 534-535 [69 L.Ed. 1070, 1077-1078, 45 S.Ct. 571, 39 A.L.R. 468] [prohibition against nonpublic schools; same]; Meyer v. Nebraska (1923) 262 U.S. 390; 399-400 [67 L.Ed. 1042, 1045-1046, 43 S.Ct. 625, 29 A.L.R. 1446] nohibition against teaching children German language; same]; Perez v. Sharp, 32 Cal.2d 711, 715 [198 P.2d 17]; see also Custodio v. Bauer, 251 Cal.App.2d 303, 317-318 [59 Cal.Rptr. 463].) That such a right is not enumerated in either the nited States or California Constitutions is no impediment to íe existence of’ the right. (See, e.g., Carrington v. Rash *964(1965) 380 U.S. 89, 96 [13 L.Ed.2d 675, 680, 85 S.Ct. 77 [fundamental but nonenumerated right to vote]; Aptheker Secretary of State (1964) 378 U.S. 500, 505-506 [12 L.Ed.2 992, 996-997, 84 S.Ct. 1659], and Kent v. Dulles (1958) 3 U.S. 116, 125 [2 L.Ed.2d 1204, 1209, 78 S.Ct. 1113] [right travel] ; Bolling v. Sharpe (1954) 347 U.S. 497, 500 [98 L.E 884, 887, 74 S.Ct. 693] [right to attend federal unsegregat schools] ; Otsuka v. Hite, 64 Cal.2d 596, 602 [51 Cal.Rptr. 28] 414 P.2d 412] [right to vote]; cf. Finot v. Pasadena Ci Board of Education, 250 Cal.App.2d 189, 199 [58 Cal.Rptr. 520].)- It is not surprising that none of the parties who ha filed briefs in this case have disputed the existence of tl fundamental right.

The critical issue is not whether such rights exist, b whether the state has a compelling interest in the regulath of a subject which is within the police powers of the sta (Shapiro v. Thompson (1969) 394 U.S. 618, 634 [22 L.E.2d 600, 615, 89 S.Ct. 1322]; Sherbert v. Verner (1963 374 U.S. 398, 403 [10 L.Ed.2d 965, 969, 83 S.Ct. 1790] whether the regulation is “necessary ... to the accomplis ment of a permissible state policy” (McLaughlin v. Florid (1964) 379 U.S. 184, 196 [13 L.Ed.2d 222, 230, 85 S.Ct. 283 see also, N.A.A.C.P. v. Button, 371 U.S. 415, 438 [9 L.Ed.2d 405, 421, 83 S.Ct, 328]; Bates v. Little Rock (1960) 361 U. 516, 527 [4 L.Ed.2d 480, 488, 80 S.Ct. 412] ; Huntley v. Public Utilities Com., 69 Cal.2d 67, 74 [69 Cal.Rptr. 605, 442 P.2d 685]; Vogel v. County of Los Angeles, 68 Cal.2d 18, 21 [6 Cal.Rptr. 409, 434 P.2d 961] ; People v. Woody, 61 Cal.2d 71 718 [40 Cal.Rptr. 69, 394 P.2d 813]), and whether legislatic impinging on constitutionally protected areas is narrow drawn and not of “unlimited and indiscriminate sweep (Shelton v. Tucker (1960) 364 U.S. 479, 490 [5 L.Ed.2d 23 238, 81 S.Ct. 247]; see also, Cantwell v. Connecticut (1940 310 U.S. 296, 308 [84 L.Ed. 1213, 1220, 60 S.Ct. 900, 12 A.L.R. 1352]; In re Berry, 68 Cal.2d 137, 151 [65 Cal.Rptr. 273, 436 P.2d 273] ; In re Hoffman, 67 Cal.2d 845, 853-854 [6 Cal.Rptr. 97, 434 P.2d 353]).

It is possible that the definition suggested by responc ent, requiring that death be certain, was that intended by tl Legislature when the first abortion law was adopted in 185 and that, in the light of the then existing medical and surg cal science, the great and direct interference with a woman constitutional rights was warranted by considerations of th woman’s health. When California’s first anti-abortion statui *965ras enacted, any surgical procedure which entered a body avity was extremely dangerous. Surgeons did not know how o control infection, and mortality was high. (Haagensen & jloyd, A Hundred Years of Medicine (1943) p. 19.) In 1867 'oseph Lister first published his findings on antiseptic surgery (id., at pp. 241-242), but even in 1883 the techniques he leveloped weré condemned (id., at p. 245), and as late as 1895 ?ere not well understood or properly appliéd by even , leaders f the medical profession. (Id., at p.' 246; see also, H. Robb 1895) Aseptic Surgical Technique.)

Although development was slow, techniques of antisepsis md asepsis became major general advances in surgery at and -fter the turn of the century. In due course safe procedures rere developed for specific operations-. Curettage, used for .bortion in the first trimester, became a safe, accepted and outinely employed medical technique, especially after antibi-tics were developed in the early 1940’s. (Douglas, Toxic Effects of the Welch Bacillus in Postabortal Infections 1956) 56 N.Y.State J.Med. 3673.) It is now safer for a roman to Have a hospital therapeutic abortion during the first rimester than'to bear a child.7

Although abortions early in pregnancy, and properly per-ormed present minimal danger to the woman, criminal8 abor-ions are “the most common single cause of maternal deaths a California.” (Fox, Abortion Deaths in California (1967) *96698 Am.J.Obst. & Gynee. 645, 650.) In California, it is est mated that 35,000 to 100,000 such abortions occur each yea (Fox, supra, at p. 645.)

The incidence of severe infection from criminal abortion very much greater than the incidence of death. The L( Angeles County Hospital alone, for example, in 1961 admittc over 3,500 patients treated for such abortions. (Kistner, Medical Indications for Contraception: Changing Viewpoints (editorial) (1965) 25 Obst. & Gynec. 285, 286.) Possibly moi significant than the mere incidence of infection caused b criminal abortions is the result of such infection. “Induce Illegal Abortion ... is one of the important causes of subs quent infertility and pelvic disease.” (Kleegman & Kaufman, Infertility in Women (1966) p. 301; see also Curtis Huffman, Gynecology (6th ed. 1950) pp. 565, 566.)9

Amici for appellant, 178 deans of medical schools, includin the deans of all California medical schools, chairmen of med cal school departments, and professors of medical school state: “These recorded facts bring one face-to-face with tb hard, shocking — almost brutal — reality that our statute d< signed in 1850 to protect women from serious risks to life an health has in modem times become a scourge. ’ ’10

*967Although we may assume that the law was valid when first acted, the validity of the law in-1850 does not resolve the ue of whether the law is constitutionally valid today. Compare, e.g., Gray v. Sanders (1963) 372 U.S. 368, 381 [9 Ed.2d 821, 830, 83 S.Ct. 801], with South v. Peters (1950) 9 U.S. 276, 277 [94 L.Ed. 834, 836, 70 S.Ct. 641]; Baker v. arr (1962) 369 U.S. 186, 237 [7 L.Ed.2d 663, 697, 82 S.Ct. 1], with Colgrove v. Green (1946) 328 U.S. 549, 556 [90 Ed. 1432, 1435, 66 S.Ct. 1198] ; Brown v. Board of Education (1954) 347 U.S. 483, 495 [98 L.Ed. 873, 881, 74 S.Ct. 686, A.L.R.2d 1180], with Plessy v. Ferguson (1896) 163 U.S. 7, 550-551 [41 L.Ed. 256, 260-261, 16 S.Ct. 1138].)

Constitutional concepts are not static. Our United. States ipreme Court said, regarding the equal protection clause of e Fourteenth Amendment: “We agree, of course, with Mr. istice Holmes that the Due Process Clause of the Fourteenth mendment ‘does not enact Mr. Herbert Spencer’s Social ;atics.’ [Citation.] Likewise, the Equal Protection Clause is )t shackled to the political theory of a particular era. In stermining what lines are unconstitutionally discriminatory, e have never been confined to historic notions of equality, i.y more than we have restricted due process to a fixed cata-gue of what was at a given time.deemed to be the limits of mdamental rights. ...” (Harper v. Virginia Board of elections (1966) 383 U.S. 663, 669 [16 L.Ed.2d 169, 173, 86 Ct. 1079]; see also, Perez v. Sharp, supra, 32 Cal.2d 711, 27; Galyon v. Municipal Court, 229 Cal.App.2d 667, 671-672 10 Cal.Rptr. 446], and cases cited therein [“[A] statute did when enacted may become invalid by change in the con-itions to which it is applied.”]. See also, Means, supra, 14 .Y.L.F. 411, 514-515.)

In the light of modern medical surgical practice, the ’eat and direct infringement of constitutional rights which ould result from a definition requiring certainty of death ay not be justified on the basis of considerations of the Oman’s health where, as here, abortion is sought during the rst trimester.

It is next urged that the state' has a compelling interest in íe protection of the embryo and fetus11 and that such inter*968est warrants tbe limitation on the woman’s eonstitutioi rights. Reliance is placed upon several statutes and coi rules which assertedly show that the embryo or fetus is equl alent to a bom ehild. However, all of the statutes and ruf relied upon require a live birth or reflect the interest of parents.12

' In any event, there áre major and decisive areas where, embryo and fetus are not treated as equivalent to the bo] child. Probably the most important is reflected by the stati *969fore us. The intentional destruction of the born child is urder or manslaughter. The intentional destruction of the ibryo or fetus is never treated as murder, andson]y rarely as ansla.ughter but rather as the lesser offense of - abortion. Perkins, Criminal Law, supra, p. 108; Means, supra, 14 Y.L.F. at p. 445.)13

Furthermore, the law has always recognized that the preg-imt woman’s right to life takes precedence over any interest e state may have in the unborn. The California abortion atutes, as do the abortion laws of all 51 United States juris-.ctions, make an exception in favor of the life of the prospec-ve mother. (See Stern, Abortion: Reform and the Law, supra, 59 J.Crim.L.C. & P.S. 84, 86-87; George, Current Abortion Laws: Proposals & Movements for Reform (1965) 17 W.Res.L.Rev. 366, 375.) Although there may be doubts as to hether the state’s interest may ever justify requiring a ornan to risk death, it is clear that the state could not forbid woman to procure an abortion where, to a medical certainty, íe result of childbirth would be death. We are also satisfied lat the state may not require that degree of risk involved in ispondent’s definition, which would prohibit an abortion, here death from childbirth although not medically certain, ould be substantially certain or more likely than not. .ccordingly, the definition of the statute suggested by re? jondent must be rejected as an invalid infringement upon íe woman’s constitutional rights.

Another definition of the term “necessary to- preserve” is iggested by People v. Abarbanel, supra, 239 Cal.App.2d 31, 2, 34, where the court held that an abortion was not unlawal where the obstetrician performed the abortion based on íe “possibility” of suicide. Abarbanel might be understood 3 meaning that “necessary to preserve” refers to a póssibily of death different from or greater than the ordinary risk E childbirth. To so interpret “necessary to preserve”- would lean that in nearly every case, if not all, a woman who dshed an abortion could have one. A woman who is denied a esired lawful abortion and forced to continue an unwanted regnaney would seem to face a greater risk of death, because f psychological factors, than the average woman, because the verage includes all those women who wish to bear the child *970to term. The psychological factor alone, which under Abo bánel is a proper consideration, would seem to be decish Such a construction of the statute permitting voluntary abc tions would render the statute virtually meaningless. Mor over to determine the right to an abortion solely on the bac of the dangers of childbirth without regard to the relatr dangers of the abortion would be contrary to good medic practice.

Nor can the statute be made certain by reading it “substantially or reasonably” necessary to. preserve the li: of the mother. In the present context those terms are n sufficiently precise and would be subject to such differei interpretations as to add little or nothing to “necessary. Thus, many people may feel that an abortion is reasonably ( substantially necessary to preserve life where the risk of deat is double or triple the ordinary risk in childbirth. Others ma believe that anything which increases the possibility of deat is a substantial risk which is not to be'undertaken in tl absence of countervailing considerations, so that “reasonabi necessary” or “substantially necessary” becomes as destruí tive of the statute as “possibility of death.” On the othc hand, there may be those who feel that there is no reasonabi or substantial necessity until it is more likely than not the the pregnant' woman will not survive childbirth. Although i other contexts the implication of words such as “reasonably and “substantially” may add certainty and avoid other du process objections, in, the instant situation the implication o such words would merely increase the uncertainty.

There is one suggested test which is based on policy underlying the statute and which would serve to mak the statute certain. The test is probably in accord with th legislative intent at the time the statute was adopted. Th Legislature may have intended in adopting the statute tha abortion was permitted when the risk of death due to th abortion was less than the risk of death in childbirth and tha otherwise abortion should be denied. As we have seen, at thi time of the adoption of the statute abortion was a highb dangerous procedure, and under the relative safety test abor tion would be permissible only where childbirth would be ever more dangerous. In light of the test and the then existing medical practice, the question whether abortion should b< limited to protect the embryo or fetus may have been immaterial because'any such interest would be effectuated by limiting *971■ortions to the rare cases where they were safer than child-■rth.

The suggested test would involve an application of medical inciples. Medical science may be able to tell us the proper Method to treat a patient to minimize the risk of death, but' ithout- resort to matters outside medical competence, it nnot tell us the circumstances in which the safest treatment ould be rejected and a moré dangerous treatment followed order to protect an embryo or fetus.

The new Therapeutic Abortion Act (Health & Saf. Code, i 25950-25954), has adopted a test analogous to the suggested ie. Under the new statute, abortion is permissible during the ■st 20 weeks of pregnancy by a licensed physician in an ¡credited hospital (Health & Saf. Code, §§25951, 25953)- if is determined under prescribed procedures either that There is substantial risk that continuance of the pregnancy ould gravely impair the physical or mental health of the other” (Health & Saf. Code, § 25951, subd. (c) (1)), or lat “The pregnancy resulted from rape or.incest.” (Health Saf. Code, §25951, subd. (e) (2).) Mental health iñ-udes mental illness to the extent that the woman would be mgerous to herself.. (Health & Saf. Code, § 25954.) By limit-, Lg the abortion to- the first 20 weeks, the Legislature has tken into account the danger to the mother of- the later abor-on and, by requiring the abortion to be performed by' a censed physician in' an accredited hospital, has recognized Le danger to the mother of other procedures. The further fiteria for determining whether an abortion is permissible is ie pregnant woman’s physical and mental health. Thus, the ist established is - a medical one, whether the pregnant Oman’s physical and' mental health will be furthered by bortion or by bearing the child to term, and the assessment oes not involve considerations beyond medical competence, 'here is. nothing to indicate that in adopting the Therapeutic .bortion Act the Legislature was asserting an interest in the mbryo.

Although the suggested construction of former section 274, íaking abortion lawful where it is safer than childbirth and nlawful where abortion is more dangerous, may have been in eeord with legislative intent, the statute may not be upheld gainst a claim of vagueness on the basis of such a construe-Lon. The language of the statute, “unless the same is neces-ary to preserve her life,” does not suggest a relative safety est, and no ease interpreting the statute has suggested, that *972the statute be so construed. None of the parties or numeren amici who have filed briefs in the instant case suggest that tl statute applies a relative safety test; to the contrary, the pos tion of the parties and amici, including numerous lawyer doctors, educators, clergymen and laymen, implies that tl statute does not apply that standard. Thus, those claiming tl statute is invalid urge that the only valid standard would be relative safety test and that the statute fails to adopt Such test, and those urging the validity of the statute either sta or imply that the standard applied is more restrictive. In tl circumstances, we are satisfied that the statute may not l construed to adopt the relative safety test as against a elah of vagueness, because the language does not suggest that te¡ and because of the practical evidence before us that men c “common” intelligence, indeed of uncommon intelligenc have not guessed at this meaning.14

The problem caused by the vagueness of the statú.1 is accentuated because under the statute the doctor is, i effect, delegated the duty to determine whether a pregnai woman has the. right to an abortion and the physician acts e his peril if he determines that the woman is entitled to a abortion. He is subject to prosecution for a felony and 1 deprivation of his right to practice medicine (Bus. & Pro: Code, §2377) if his decision is wrong. Bather than bein impartial, the physician has a “direct, personal, substantia pecuniary interest in reaching a conclusion” that the woma should not have an abortion. The delegation of decisior making power to a directly involved individual violates th *973irteenth Amendment. (Tumey v. Ohio (1927) 273 U.S. 510, [71 L.Ed. 749, 754, 47 S.Ct. 437, 50 A.L.R. 1243]; see also te Board of Dry Gleaners v. Thrift-D-Lux Cleaners, Inc., Cal.2d 436, 448 [254 P.2d 29] [“ [T]he statute assumes to fer legislative authority upon those who are directly inter-id in the operation of the regulatory rule. . . .”]; Bluenthal v. Board of Medical Examiners, 57 Cal.2d 228, 235 Cal.Rptr. 501, 368 P.2d 101].)

"he inevitable effect of such delegation may be to deprive a nan of an abortion when under any definition of section : of the Penal Code, she would be entitled to such an opera-1, because the state, in delegating the power to decide when abortion is necessary, has skewed the penalties in one dition: no criminal penalties are imposed where the doctor uses to perform a necessary operation, even if the woman >uld in fact die because the operation was not performed, ihe pressures oh a physician to decide not to perform an ¡olutely necessary abortion are,' under section 274 of the lal Code, enormous, and because section 274 authorizes— 1 requires — the doctor to decide, at his peril, whether an irtion is necessary, a woman whose life is at stake may be effectively condemned to death as if the law flatly prohibit all abortions.

To some extent the Therapeutic Abortion Act reduces these issures. The act specifically authorizes an abortion by a ;nsed physician in an accredited hospital where the.abor-n is approved, in advance by a committee of the medical ff of the hospital, applying medical standards. (Health & L Code, §25951.) At least in eases where there has been íerence to. the procedural requirements of the statute, ysicians may not be held criminally responsible, and a jury y not subsequently determine that the abortion was not thorized by statute.

We conclude that the validity of section 274 of the nal Code before amendment cannot be sustained.15

Since section 274 is invalid, Dr. Belous’ conviction for vio-ion of section 182 of the Penal Code, conspiracy to commit *974abortion, must likewise fall. The judgment is reversed w directions to the trial court to dismiss the indictment.

Traynor, C. J., Tobriner, J., and Pierce, J. pro tem.,* c curred.

BURKE, J.

I dissent.

The defendant was found guilty by jury trial of a wil violation of the abortion statute as it existed at the time of offense. That he violated the statute is all but conceded in briefs filed in his behalf. Although he testified that he rected the young couple to a doctor, unlicensed in Californ because he believed that if they carried out their threats going to Tijuana to procure an abortion the young womai life would be in danger, he acknowledged upon cro examination that her life would not have been endangered she were not aborted. His assertions that he acted in go faith and out of compassion are tainted somewhat by the e dence which showed that he had referred other women to i same unlicensed physician on a number of occasions and tl he had participated on at least one-half of those occasions the fee paid thé abortionist.

Had the doctor truly believed that the young woman’s 1: was in danger he could have done what was the common pri tice of taking the patient to one of the several hospitals which therapeutic abortions were being performed. To i knowledge there is not one single instance of a decision of t appellate courts of this state in which a doctor or a hospil has been prosecuted for the performance of an abortion whe an independent hospital committee, deemed the abortion to necessary to preserve the woman’s life. The plain fact is, the jury found it to be, that this doctor, whatever his moth possessed the intent to assist in procuring the miscarriage the woman for reasons other than to preserve her life. This the specific intent which the law requires for conviction.

He supplied to the jury the answer an independent hospii committee undoubtedly would have given him had he seen to seek its approval for an abortion — the patient could be the child without endangering her life; therefore, to abort h would violate the law.

The threatened danger to the woman’s life arose only fro the couple’s assertions that they would seek an illegal abo tion by an unlicensed person. To assist them in attaining th *975goal was to flaunt his profession’s own standards and to aid in bringing about a direct violation of the law.

The majority would reverse the conviction by declaring the statute unconstitutional because of asserted uncertainty in the phrase, “necessary to preserve [the woman’s] life.”1 This phrase has been an integral part of the California law against illegal abortions from the time of its enactment in 1872 until the 1967 amendent to the section, and similar language was in the' original statute adopted in 1850.2 Thus for over a hundred years in this state doctors, hospital committees, judges, lawyers and juries have been called upon to give the phrase the common sense interpretation which the words appear to me to suggest.- For this court over a hundred years later to find the language unconstitutionally vague and uncertain is a “negation of experience and common sense.” (United States v. Ragen, 314 U.S. 513, 524 [86 L.Ed. 383, 390, 62 S.Ct. 374].)

Not only was the phrase long used in the California statute, it was also employed at common law (see, e.g., Perkins on. Criminal Law (2d ed.) p. 145; Clark and Marshall, Crimes (6th ed.) pp. 688-689) and is or has been in the abortion statutes of many states (see, e.g., Am.Jur.2d, Abortion, § 9, p. 192; 153 A.L.R. 1218, 1266; Smith, Abortion and the Law (1967) p. 7). Implicit in the decisions of this court, as well as those of countless other courts, is the view that the phrase does not render such a statute invalid (see, e.g., People v. Davis, 43 Cal.2d 661 [276 P.2d 801] ; People v. Gallardo, 41 Cal.2d 57 [257 P.2d 29] ; People v. Powell, 34 Cal.2d 196 [208 P.2d 974]; People v. Wilson, 25 Cal.2d 341 [153 P.2d 720] ; People v. Rcmkin, 10 Cal.2d 198 [74 P.2d 71]). In State v. Moretti 52 N.J. 192 [ 244 A.2d 499, 504] (cert. den. 393 U.S. 952 [21 L.Ed.2d 363, 89 S.Ct. 376]) the court stated that when the phrase “lawful justification,” as used in a statute prohibiting abortions done maliciously or without lawful justification, is confined “to the preservation of the mother’s *976life, ’ ’ tbe statute is not subject to constitutional attack on the ground of vagueness. (See also State v. Elliott, 234 Ore. 522 [383 P.2d 382, 384-385].)

The proper test as to certainty was stated by this court in People v. Howard, 70 Cal.2d 618, 624 [75 Cal.Rptr. 761, 451 P.2d 401], to be: “ ‘A statute should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without violating its provisions, but it cannot be held void for uncertainty if any reasonable and practical construction can be given to its language. As stated in Pacific Coast Hairy v. Police Court, 214 Cal. 668, at page 676 . . . “Mere difficulty in ascertaining its meaning, or the fact that it is susceptible of different interpretations will not render it nugatory. Doubts as to its construction will not justify us in disregarding it. ’ ’ [Citations.] ’ ’ ’

The meaning of the phrase “necessary to preserve [the woman’s] life” was considered in People v. Ballard, 167 Cal.App.2d 803, 814-815 [335 P.2d 204], wherein the court stated, “Surely, the abortion statute (Pen. Code, §274) does not mean by [this phrase] that the peril to life be imminent. It ought to be enough that the dangerous condition ‘be potentially present, even though its full development might be delayed to a greater or less extent. Nor was it essential that the doctor should believe that the death of the patient would be otherwise certain in order to justify him in affording present relief.’ (State v. Dunklebarger, 206 Iowa 971 [221 N.W. 592, 596]; see also Rex v. Bourne, 1 K.B. 687 . . .; Commonwealth v. Wheeler, 315 Mass. 294 [53 N.E.2d 4]; 23 So.Cal.L.Rev. 523.) In State v. Powers . . . 155 Wash. 63, 67 [283 P. 439, 440], the court satisfied itself with an interpretation of ‘necessity to save life’ by stating, ‘If the appellant in performing the operation did something which was recognized and approved by those reasonably shilled in his profession practicing in the same community . . . then it cannot be sadd that the operation was not necessary to preserve the life of the patient/” (Italics added.) (See also People v. Abarbanel, 239 Cal.App.2d 31, 34 [48 Cal.Rptr. 336] ; People v. Ballard, 218 Cal.App.2d 295, 307 [32 Cal.Rptr. 233].)

Amici for appellant, 178 deans of medical schools, state that the italicized sentence quoted from People v. Ballard, supra, 167 Cal.App.2d 803, 814-815, is in error because “the medical profession has ‘approved’ abortions in cases [in which the objective was not to preserve the life of the woman and therefore] clearly .outside of Penal Code section 274. Packer & *977Gampell, Therapeutic Abortion: A Problem in Law and Medicine, 11 Stan.L.Rev., 417, 447. ...” However, that sentence nust be understood tornean recognized and approved by such oersons as being required to preserve the life of the patient.

The word “preserve” is defined in the dictionary as “1. To teep or save from injury or destruction; ... to protect; save. !. To keep in existence or intact; ... To save from decompo-ition.” (See Webster’s New Internat. Diet. (3d ed. 1961}.) As used in section 274, the word “preserve” has been egarded as synonomous with “save” (see, e.g., People v. Kutz, 187 Cal.App.2d 431, 436 [9 Cal.Rptr. 626]; People v. Malone, 82 Cal.App.2d 54, 59 [185 P.2d 870]; Stern v. Superior Court, 78 Cal.App.2d 9, 18 [177 P.2d 308]), and to save a ife ordinarily is understood as meaning to save from destruction, i.e. dying — not merely from injury. Thus the precipitation of a psychosis in the absence of a genuine threat of suicide is not a threat to life under section -274. (See Packer and Gampell, Therapeutic Abortion: A Problem in Law and Medicine, 11 Stan.L.Rev. 417, 433, 436.)

That the Legislature used the word “preserve” in the sense of save from destruction also appears from the purpose of the section.. The law historically in various contexts has regarded the unborn’ child as a human being. (See Louisell, Abortion, The Practice of Medicine, and the Due Process of Law, 16 U.C.L.A. L.Rev. 233, 234-244.) Louisell (at p. 244) quotes from Prosser on Torts (3d ed. 1964) that “ [M]edical authority has recognized long since that the child is in existence from the moment of conception, and for many purposes its existence is recognized by the law. The criminal law regar it as a separate entity, and the law of property considers it in being for all purposes which are to its benefit, such as taking by will or descent. . . . All writers who have discussed the problem have joined ... in maintaining that the. unborn child in the path of an automobile is as much a person in the street as the mother. ’ ’ In Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, 42 N.J. 421 [201 A.2d 537, 538] (cert. den. 377 U.S. 985 [12 L.Ed.2d 1032, 84 S.Ct. 1894]) it was held that an unborn child of a woman who did not wish blood transfusions because they were contrary to her religious convictions was entitled to the law’s protection and that an order would be made to insure such transfusions to the mother in the event they are necessary in the opinion of the attending physician:

Several statutes show that the California law has been in *978accord in regarding the unborn child as a human being foi various purposes. (See e.g., Pen. Code, §§3706 and 270; Civ. Code, §29.) 3 In Scott v. McPheeters, 33 Cal.App.2d 629, 634 [92 P.2d 678, 93 P.2d 562], the court declared: “The respondent asserts that the provisions of section 29 of the Civil Code are based on a fiction of law to the effect that an unborn child is a human being separate and' distinct from its mother. We think that assumption of our statute is not a fiction, but upon the contrary that it is an established and recognized fact by science and by everyone of understanding. ’ ’

It is reasonable to b.elieve that section 274, as it read at the time in question, was not an exception to the law’s attitude respecting the unborn child as a human being-and that it was designed to protect not only the mother’s life but also that of the child. In view of that purpose it would appear that the Legislature intended that the child would be deprived of his right to life only if in the absence of an abortion there was a danger of the mother’s death — not merely of injury to her.

“‘[T]he Constitution does not require impossible standards’; all that is required is’that the language ‘conveys sufficiently definite warning as1 to the proscribed conduct when measured by common understanding and practices. . . .’ United States v. Petrillo, 332 U.S. 1, 7-8 [91 L.Ed. 1877, 67 S.Ct. 1538].” (Roth v. United States, 354 U.S. 476, 491 [1 L.Ed.2d 1498, 1510, 77 S.Ct. 1304].) Thephrase in question, when applied according to the standard heretofore stated (namely, whether persons reasonably skilled in their profession practicing in the same community recognized and approved the act as being required to save the patient from dying) clearly gives such warning.

Furthermore, section 274 punishes only those who act with “ ‘ . . . the intent to commit a criminal' abortion, that is, an abortion for a purpose other than to preserve [i.e. save from destruction] the life of the mother.’ ” (People v. Abarbanel. supra, 239 Cal.App.2d 31, 34-35; People v. Ballard, supra, 167 Cal.App.2d 803, 817.) The requirement of such an intent eviscerates much of the majority’s claim that the section is *979impermissibly vague. (See generally Mishkin v. New York, 383 U.S. 502, 507, fn. 5 [16 L.Ed.2d 56, 61, 86 S.Ct. 958] Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342 [96 L.Ed. 367, 372, 72 S.Ct. 329].) A person who' performs an abortion with such an intent has fair warning that his conduct may violate the law even though he may not be certain where the jury will draw the line on the matter of necessity.

The. principal cases relied upon by the majority, in which.' statutes have been declared unconstitutionally vague, do not. support such a finding when applied to the abortion statute. In People v. McCaughan, 49 Cal.2d 409 [317 P.2d 974], the' statute prohibited, among other conduct, “harsh” or “unkind” treatment of a mentally ill. person. These words were held not to have an established meaning either at common law or as a result of adjudication. They were held unconstitutionally vague. On .the other hand, the phrase “neglect of duty” and the word “cruel” were upheld because they did have such well .established meanings; just as do the words utilized in the phrase under attack here.

Lanzetta v. New Jersey, 306 U.S. 451, 453 [83 L.Ed. 888, 890, 59 S.Ct. 618], construed a statute defining “gangster” and making it a crime for anyone to be such a person. The. phrase “consisting of two or more persons” was all that ' purported to define “gang,” and the word “gang” was held so vague and uncertain as to violate the Fourteenth Amendment.

Connolly v. General Constr. Co., 269 U.S. 385, 395 [70 L.Ed. 322, 329, 46 S.Ct. 126], involved a statute requiring a contractor to pay his employees “not less than the current rate of .. . wages in the locality where the work is performed,” and the court held the italicized words unconstitutionally vague. Unlike the statute involved here, the statute in question was a new statute and the court noted that its application “depends not upon a word of fixed meaning in itself, or one made definite by statutory or judicial definition. ...”

In contrast to these cases, here the challenged statute has a fixed meaning, frequently applied and impliedly interpreted by the courts in the more than one hundred years of its existence. In addition, the statute requires proof of the specific intent to commit a criminal abortion before a person may be successfully prosecuted under it.

There is, of course, a presumption in favor of constitutionality, and the invalidity of a legislative act must be clear *980before it can be declared unconstitutional. (In re Anderson 69 Cal.2d 613, 628 [73 Cal.Rptr. 21, 447 P.2d 117.)

The majority cite no authority holding that the term “necessary to preserve [the woman’s] life’’ is impermissibly vague, and I agree with the conclusion-as to the constitutionality of the section that is implicit in the multitude of past decisions affirming convictions for illegal abortion, and for murder where death was the result of such an act. 1

I would affirm the judgment.

McComb, J., and Sullivan, J., concurred.

SULLIVAN, J.,

Dissenting. — I concur in the views of Justice Burke. Reading the majority’s attack on-Penal Code section 274, one would think that the English language which has been the sensitive instrument of our system of law for over 500 years, has lost, by the mere passage of time, all capacity for clarity of expression. The majority strike down the statute solely because they find so vague and uncertain as .io offend constitutional standards of due process, a single brief clause of nine words of long and common usage: “unless the same is necessary to preserve her life. ’ ’ There is no mystique enveloping the statute and, as Justice Burke points out, the clause now challenged has stood the test of over a hundred years, and presumably of countless human incidents falling within its scope, apparently without evoking a single whimpering cry against it.

The mandate of the section is plain and clear, and simply means this: no one shall intentionally procure the miscarriage of a woman unless it is necessary to save her life. ‘ ‘ The criminal intent necessary to support a conviction of illegal abortion must show that it was performed for a purpose other than to save the abortee’s- life.” (People v. Abarbanel (1965) 239 Cal.App.2d 31, 34 [48 Cal.Rptr. 336].) I dare say that the average man in the street, confronted with this law, would have little trouble in extracting its sense (we hold him accountable to much more complicated enactments); and the doctor, with his professional training and expertise would have even less. We have said that “ [i]t is a cardinal rule to be applied to the interpretation of particular words, phrases, or clauses in a statute or a constitution that the entire substance of the instrument or of that portion thereof which has 'relation to the subject under review should be looked to in order to determine the scope and purpose of the particular *981provision therein of which such words, phrases, or clauses form a part; and in order also to determine the particular intent of the framers of the instrument in that portion thereof wherein such words, phrases, or clauses appear.” (Wallace v. Payne (1925) 197 Cal. 539, 544 [241 P. 879].) In the ease before us, the challenged clause when so examined, is clear in meaning.

Yet the majority, by engaging in a process of elaborate and lavish analysis, transform that which is simple and lucid into something complex -and arcane. Actually the analysis is focused on only three" words: “necessary to preserve.” Their fair equivalent is “necessary to save” (see People v. Abarbanel, supra, 239 Cal.App.2d 31, 34, People v. Ballard (1959) 167 Cal.App.2d 803, 814, 817 [335 P.2d 204]). Eather than evaluate these words in the light of “the entire substance” (see Wallace v. Payne, supra, 197 Cal. 539, 544), the majority resort to a dissection: “There is, of course, no standard definition of ‘necessary to preserve’ and taking the words separately-, no clear meaning emerges.” (Ante, pp. 960-961.) In support of this thesis, it is asserted that the word “necessary” does not have a “fixed meaning.” In general, few words do.1 It is further insisted that the definition of “preserve” is “even less enlightening.” Accordingly, the majority discard its obvious meaning, that is, “save,” as used in the context “to save a life.” From such analysis, the opinion concludes “that the term ‘necessary to preserve’ in section 274 of the Penal Code is not susceptible of a construction that does not violate legislative intent and that is sufficiently certain to satisfy due process requirements without improperly infringing on fundamental constitutional rights.” (Ante, p. *982960.) Actually the gist of this is that the three words ‘ 'necessary to preserve ’ ’ are so shrouded in darkness that the average man cannot detect what they mean although average men and men above average have had no trouble with them for a hundred years.

I cannot accept so tortured a conclusion, wrenched from a statute which has had its roots in the law’s historic solicitude for the priceless gift of life. The statute plainly prohibits an abortion unless.it is necessary to save the mother’s life. It strains reason to say that this crystal-clear exception to the law is “so vague that men of common intelligence must necessarily guess at its meaning. ...” (Lanzetta v. New Jersey (1939) 306 U.S. 451, 453 [83 L.Ed. 888, 890, 59 S.Ct. 618], see ante, p. 960.) And it strains credulity to assume that this defendant, who under the evidence wilfully violated the statute, had to engage in any such guesswork with -respect to the law governing his conduct.

I would affirm the judgment.

McComb, J., concurred.

Respondent’s petition for a rehearing was denied October 1, 1969. Pierce, J. pro tern.,* sat in place of Mosk, J., who deemed himself disqualified. McComb, J., Burke, J., and Sullivan, J., were of the opinion that the petition should be granted.

*801LUMBARD, Circuit Judge.

In Connecticut, statutes prohibit all abortions,1 all attempts at abortion,2 and all aid, advice and encouragement to bring about abortion,3 unless necessary to preserve the life of the mother or the fetus. These statutes are challenged by Dorothy Doe, pregnant, married, and a Connecticut resident, and by numerous female physicians, nurses, and medical counseling personnel residing and practicing in Connecticut.4 We

think that by these statutes Connecticut trespasses unjustifiably on the personal privacy and liberty of its female citizenry.4a Accordingly we hold the statutes unconstitutional in violation of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment.5

The decision to carry and bear a child has extraordinary ramifications for a woman. Pregnancy entails profound physical changes. Childbirth presents some danger to life and health.6 Bear*802ing and raising a child demands difficult psychological and social adjustments. The working or student mother frequently must curtail or end her employment or educational opportunities. The mother with an unwanted child may find that it overtaxés her and her family’s financial or emotional resources. The unmarried mother will suffer the stigma of having an illegitimate child. Thus, determining whether or not to bear a child is of fundamental importance to a woman.

The Connecticut anti-abortion laws take from women the power to determine whether or not to have a child once conception has occurred. In 1860, when these statutes were enacted in their present form,7 women had few rights. Since then, however, their status in our society has changed dramatically. From being wholly excluded from political matters, they have secured full access to the political arena.8 From the home, they have moved into industry; now some 30 million women comprise forty percent of the work force. And as women’s roles have changed, so have societal attitudes. The recently passed equal rights statute9 and the pending equal rights amendment demonstrate that society now considers women the equal of men.

The changed role of women in society and the changed attitudes toward them reflect the societal judgment that women can competently order their own lives and that they are the appropriate decisionmakers about matters affecting their fundamental concerns. Thus, surveying the public on the issue of abortion, the Rockefeller Commission on Population and the American Future found that fully 94% of the American public favored abortion under some circumstances and the Commission itself recommended that the “matter of abortion should be left to the conscience of the individual concerned.” Similarly, the Supreme Court has said, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); see Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

The state has argued that the statutes may be justified as attempts to balance the rights of the fetus against the rights of the woman. While the Connecticut courts have not so construed the statutes,10 we accept this characterization as *803one fairly drawn from the face of the statutes. Nevertheless we hold that the state’s interest in striking this balance as it has is insufficient to warrant removing from the woman all decisionmaking power over whether to terminate a pregnancy.

The state interest in taking the determination not to have children from the woman is, because of changing societal conditions, far less substantial than it was at the time of the passage of the statutes. The Malthusian specter, only a dim shadow in the past, has caused grave concern in recent years as the world’s population has increased beyond all previous estimates. Unimpeachable studies have indicated the importance of slowing or halting population growth.11 And with the decline in mortality rates, high fertility is no longer necessary to societal survival.12 Legislative and judicial responses to these considerations are evidenced by the fact that within the last three years 16 legislatures have passed liberalized abortion laws 13 and 13 courts have struck down restrictive antiabortion statutes similar to those of Connecticut.14 In short, population growth *804must be restricted, not enhanced and thus the state interest in pronatalist statutes such as these is limited.15

Moreover, these statutes restrict a woman’s choice in instances in which the state interest is virtually nil. The statutes force a woman to carry to natural term a pregnancy that is the result of rape or incest. Yet these acts are prohibited by the state at least in part to avoid the offspring of such unions. Forcing a woman to carry and bear a child resulting from such criminal violations of privacy cruelly stigmatizes her in the eyes of society. Similarly, the statutes require a woman to carry to natural term a fetus likely to be born a mental or physical cripple. But the state has less interest in the birth of such a child than a woman has in terminating such a pregnancy. For the state to deny therapeutic abortion in these cases is an overreaching of the police power.

Balancing the interests, we find that the fundamental nature of the decision to have an abortion and its importance to the woman involved are unquestioned,, that in a changing society women have been recognized as the appropriate decisionmakers over matters regarding their fundamental concerns, that because of the population crisis the state interest in these statutes is less than when they were passed and that, because of their great breadth, the statutes intrude into areas in which the state has little interest. We conclude that the state’s interests are insufficient to take from the woman the decision after conception whether she will bear a child and that she, as the appropriate decisionmaker, must be free to choose. What was considered to be due process with respect to permissible abortion in 1860 is not due process in 1972.16

The essential requirement of due process is that the woman be given the power to determine within an appropriate period after conception whether or not she wishes to bear a child. Of course, nothing prohibits the state from promulgating reasonable health and safety regulations surrounding abortion procedures.

In holding the statutes unconstitutional, we grant only declaratory relief to this effect as there is no reason to be*805lieve that the state will not obey our mandate.17

NEWMAN, J, concurs in the result with a separate opinion.

NEWMAN, District Judge

(concurring in the result):

I fully agree with Judge Lumbard’s conclusion that the plaintiffs are entitled to a judgment declaring the Connecticut abortion statutes unconstitutional, but my reasons for reaching that conclusion cover somewhat less ground. Moreover, having found the statutes unconstitutional, I would grant plaintiff Doe injunctive relief.

I

The essential contention of plaintiff Doe is that the Connecticut abortion statutes unconstitutionally invade her privacy in matters of family and sex. While the Constitutional basis for this claim is imprecise, there can be no doubt after Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), that the Supreme Court recognizes a Constitutionally protected zone of privacy in these matters, founded on either the Ninth Amendment1 or the “penumbras” of the First, Third, Fourth, Fifth and Ninth Amendments as incorporated by the Fourteenth Amendment2, or the concept of liberty protected by the Fourteenth Amendment alone 3.

Having recognized a right to privacy in family and sexual matters, however, the Court has not created an immunity against all state regulation of these subjects. Rather the Court has required the demonstration of a subordinating state interest sufficient to justify the invasion of privacy. Before there can be consideration of whether the state interest does justify the invasion of privacy, there must be a determination of what state interest is being advanced by these statutes.

In this case the State suggests the 1860 General Assembly, which enacted the statutes here challenged, was seeking to advance three state interests: protecting the health of the mother, protecting the morals of the mother, and protecting the life of the unborn child. Determining whether these were the state interests is not an easy task, because of the paucity of relevant materials. These statutes contain no legislative findings, nor are there available legislative committee hearings or reports, or floor debate. Since ascertainment of the state interest is an important step in determining whether or not the state may invade an area of personal liberty entitled to a high order of protection, the inquiry as to what state interest was being advanced by the 1860 General Assembly must proceed with some caution, and a clear demonstration of the requisite state interest should be required. Consideration must be given to (a) the evils that were perceived as requiring legislation in 1860, (b) the background of the Connecticut statutes, (c) the text of the statutes, (d) relevant judicial interpretation of these statutes, and (e) contemporary materials from other states pertinent to the same type of statutes.

(a). A scholarly analysis of Nineteenth Century abortion legislation by *806Professor Cyril C. Means, Jr. has outlined solid evidence for concluding that the major evil perceived at the time that was posed by an abortion was the risk to the health and life of the mother4. With Lister’s pioneering article on antiseptic surgery not published until 1867, abortions performed before that date, even under the best of then known medical practices, created grave risks for the health and life of the mother. There can be no doubt that this was an evil known to and appreciated by the Nineteenth Century legislators. Whether they were concerned about protecting the morals of the mother is uncertain. Professor Means finds no evidence of this concern in his review of contemporary materials 5. Protecting the life of the unborn child was certainly of concern to some Nineteenth Century thinkers. Although some did not accept a meaningful concept of life until birth, there was substantial support for both the principle of mediate animation and immediate animation at conception6. To what extent these views were held by legislators of that Century is most uncertain. While there is evidence that in some states they regarded a quickened fetus as a life entitled to legal protection 7, there is inadequate evidence to gauge their assessment of an unquickened fetus.

(b). Early Connecticut statutes prohibited any person from administering any poison (1821) and later administering any medicine or using any instrument (1830) with intent to cause the miscarriage of a woman quick with child 8. Prior to 1860, it was not a crime in Connecticut for a woman to cause her own miscarriage. The statutes challenged in this suit were enacted in 1860 9. A mother’s doing or suffering anything to be done with intent to produce a miscarriage or abortion was prohibited, the “quick with child” limitation of prior law was eliminated, and an exception *807was created for an abortion necessary to preserve the life of the mother or the unborn child. Apparently the 1860 legislation was a response to a resolution of the American Medical Association adopted at its 1859 convention. 12 Transactions of the A.M.A. 27 (1859). That resolution ui'ged that all state legislatures be memorialized to revise their abortion laws to help curtail the rising incidence of abortions. At the 1860 session of the Connecticut General Assembly, the memorial of the A.M.A. was referred to the Judiciary Committee, whose report recommended that the “pirayer of the memorial” be granted and that an accompanying bill be enacted. 15 Conn. House Journal 510 (1860). That bill became the abortion legislation of 1860, and is now, with minor wording changes, Sections 53-29, 53-30 and 53-31 of the Connecticut General Statutes. One phrase from the A.M.A.’s resolution stated that the organization' was protesting “against such unwarrantable destruction of human life.” That this referred to the unborn child, rather than the mother, is made clear by the report of the A.M.A. committee which prepared the resolution. 12 Transactions of the A.M.A. 77 (1859). However, there is no evidence that the A.M.A. committee report ever came to the attention of the Connecticut legislature. Nor do the legislative journals or contemporary newspaper reports (see Hartford Courant, June 23, 1860, p. 2) indicate whether the General Assembly was accepting the thinking that underlay the A.M.A. resolution or was simply responding to the A.M.A.’s call to make abortion laws more comprehensive. The latter action could have been taken for the purpose of protecting either the mother or the unborn child. Legislative response to a resolution of the A.M.A. seems more likely to reflect a medical than a metaphysical purpose.

(c). The text of the 1860 statutes provides only slight guidance as to the state interest being advanced. There is perhaps some significance in the fact that the statutes do not define as a crime taking the life of an unborn child. Compare Wis.Stat. § 940.04, which punishes one who “destroys the life of an unborn child.” Section 53-30 penalizes a woman “who does or suffers anything to be done, with intent thereby to produce upon herself miscarriage or abortion.” The statutory crime is complete even if no harm is done to the unborn child. This at least suggests that the statute may be concerned with what an abortion does to a mother, not what it does to a fetus. The statutory penalty may also offer a clue. Of course the setting of penalties is normally a matter within a legislature’s discretion, but the amount of penalty established is at least one indication of the purpose the legislature had in defining the crime. The maximum penalty for violating Section 53-30 is two years, compared to the ten-year penalty for manslaughter in 1860 10. Two years is a remarkably low penalty if the crime it punishes is the intentional taking of a life. Such a penalty is more consistent with a purpose to protect health or morals. In a related context, the Supreme Court has recently placed great reliance on statutory penalties in determining statutory purpose. Eisenstadt v. Baird, 404 U.S. -, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). The fact that the 1860 statutes eliminated the “quick with child” limitation does not determine purpose; the reason could as easily have been more comprehensive protection of all mothers as all fetuses.

(d). Only one decision of the Connecticut Supreme Court, State v. Carey, 76 Conn. 342, 56 A. 632 (1904), sheds any light on the purpose of the Connecticut abortion statutes, but it is especially instructive. The issue in Carey was whether the trial court had erred in failing to instruct the jury in the trial of an abortionist that the testimony of the consenting mother should be considered with the caution normally applied to the testimony of an accomplice. Resolution of this question required the court to make several observations about the pur*808poses of Section 53-29, punishing the abortionist, and Section 53-30, punishing the mother. The court began its analysis of the question by noting the law’s distinction between “a man’s injuring his own body” and “the crime that may be committed by another in inflicting such injury.” Id. at 351, 56 A. at 636. The court also noted that “taking his own life is a thing distinct from the crime of murder.” Id. at 350, 56 A. at 636. Reasoning from this distinction, the court concluded that the woman is not an accomplice to the abortionist’s crime. A necessary part of this reasoning was acceptance of the premise that when a woman consents to an abortion, the only legally cognizable injury she is risking is the injury to herself, and not to the unborn child 11. For if the unborn child was safeguarded by the statute, then the woman would be participating in the criminal injury of another person and hence would be an accomplice to the abortionist’s crime 12 .

Clear evidence that this reasoning in fact led to the court’s conclusion is the following passage:

“The criminal intent and moral turpitude involved in the violation by a woman of the restraint put upon her control over her own person is widely different from that which attends the man who, in clear violation of law, and for pay or gain of any kind, inflicts an injury on the body of a woman endangering health and perhaps life.”

Id., at 352-353, 56 A. at 636 (emphasis added). Plainly the court saw Section 53-29 as a statute that protected the mother from an injury that endangered her health and perhaps even her life. Nothing in the court’s opinion gives any recognition to the idea that the unborn child was a life entitled to the protection of the statute. Since the "objective of every abortion is to destroy the fetus and the objective is almost always achieved, the court could not possibly have been referring to the unborn child when it characterized Section 53-29 as a statute that “perhaps” endangers life.

Furthermore, in contrasting the crimes of the mother and the abortionist, the court gave its view of the purposes underlying Section 53-30:

“The public policy which underlies this legislation is based largely on protection due to the woman — -protection against her own weakness as well as the criminal lust and greed of others.”

Id. at 352, 56 A. at 636. In the context of the court’s opinion, protecting the woman “against her own weakness” means protecting her own health and perhaps life against the risk of a dangerous operation to which she might be tempted to submit. Protecting her against the “greed of others” apparently refers to the greed of the abortionist for “pay or gain of any kind.” But protecting her from the “criminal lust” of others most likely refers to a totally different purpose — deterring fornication 13. The only way the statute can protect her from the lust of others is by warning her not to engage in sexual relations on pain of having to bear any child that might be conceived. This pur*809pose of inhibiting non-procreative sexual relations may well have been part of the underlying state interest in 1860, just as it was to be in 1879 when the General Assembly banned the use of contraceptives 14

Thus the Connecticut Supreme Court, from a perspective far more relevant to an understanding of 1860 legislative thinking than the present, viewed the major interest underlying the abortion statutes as protection of the health of the mother. An additional interest may have been protection of the morals of the mother. And the court, by reasoning necessary to support the precise holding of the case, assumed that the statutes were not designed to protect the life of the unborn.

(e). Contemporary materials from other states that might shed light on the purposes of their Nineteenth Century abortion statutes are scarce. Professor Means’ exhaustive analysis of the history of the New York legislation demonstrates that protection of the mother’s health was the purpose of that state’s laws. Means, 14 N.Y.L.F. 411, supra. The same conclusion was reached by the old New Jersey Supreme Court, only nine years after that state’s statute was enacted 15.

With all these considerations in mind the question to be faced is whether the state interests being advanced in 1860 are today sufficient to justify the invasion of the mother’s liberty. I agree with Judge Lumbard that protecting the mother’s health, which plainly was a state interest in 1860 and may well have provided a valid state interest for these statutes when enacted, will not furnish a subordinating state interest today, when the mother’s life is exposed to less risk by abortion than by childbirth16.

The second justification advanced by the state, protecting the mother's morals, may well have been an objective in 1860. This justification apparently proceeds from the premise that if abortion is prohibited, the threat of having to bear a child will deter a woman from sexual intercourse. Protecting the morals of the mother thus turns out to mean deter*810ring her from having sexual relations. But the Supreme Court has decided that such a purpose cannot validate invasion of a woman’s right to privacy in matters of family and sex. Griswold v. Connecticut, supra; Baird v. Eisenstadt, supra 17 .

That leaves the state’s third justification, protecting the life of the unborn child. Judge Lumbard is willing to assume this was a purpose of the 1860 legislature and finds it constitutionally insufficient. Judge Clarie concludes it was in fact a purpose of the 1860 legislature and finds it constitutionally sufficient. With deference, I am persuaded that protecting the life of the unborn child was most likely not a purpose of the 1860 legislature. At a minimum it has not been shown with sufficient certainty that this was the legislature’s purpose as to warrant a weighing of this purpose against the mother’s constitutionally protected rights. Whether a fetus is to be considered the sort of “life” entitled to the legal safeguards normally available to a person after birth is undeniably a matter of deep religious and philosophical dispute. If the Connecticut legislature had made a judgment on this issue and had enacted laws to accord such protection to the unborn child, the constitutionality of such laws would pose a legal question of extreme difficulty, since the legislative judgment on this subject would be entitled to careful consideration. Cf. Byrn v. New York City Health and Hospitals Corp., 329 N.Y.S.2d 722 (App.Div., 2d Dept., 1972), upholding a permissive abortion statute and concluding that the degree of protection to be accorded an unborn child is appropriately a matter for legislative determination. Since that legislative determination has not been shown to have been made, I think it is inappropriate to decide the constitutional issue that would be posed if such a legislative justification was before us.

Because I believe the only interests which the 1860 legislature was seeking to advance are not today sufficient to justify invasion of the plaintiff’s constitutionally protected rights, I join with Judge Lumbard in holding these statutes unconstitutional.18

*812II

As to the propriety of injunctive relief, plaintiff must show some equities more substantial than her desire to avoid the expense or inconvenience of defending a criminal prosecution. Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). If the abortion of plaintiff Doe required only action on her part, it would be doubtful whether she could sustain her burden. But manifestly that is not the case. ' She desires to have an abortion performed by competent medical authorities. If she has the constitutional right to an abortion free of the threat of Section 53-30, it must follow that she has an equal right to secure appropriate medical assistance. But however willing plaintiff Doe might be to endure criminal prosecution, it is obvious that she cannot compel her physician to share the hazards of such litigation. Thus, she may well not have an abortion performed by her physician unless criminal prosecution of her doctor and those acting with him is enjoined. Therefore, plaintiff Doe has demonstrated that her need for an injunction is based on more than her desire to avoid a criminal prosecution of herself. It is based on the need to achieve the benefit of the declaratory judgment to which she is entitled. It may well be that the state will abide by the declaratory judgment and make no move to prosecute those who act in reliance upon this court’s judgment. But the plaintiff should not be limited in her choice of doctors to those who are willing to accept the prediction that the state will not prosecute or the legal advice that any such prosecution would ultimately be unsuccessful. I believe she is entitled to select any competent medical personnel she chooses, assured by an injunction that there will be no prosecution.

CLARIE, District Judge

(dissenting):

I respectfully disagree and accordingly dissent from the majority opinion. This Court’s bold assumption of judicial-legislative power to strike down a time-tested Connecticut Statute constitutes an unwarranted federal judicial intrusion into the legislative sphere. The state legislature long ago made a basic choice between two conflicting human values. It chose to uphold the right of the human fetus to life over a woman’s right to privacy and self-determination in sexual and family matters. The legislature has repeatedly refused to alter this decision to the present date.

The majority has reached out and grasped at the nebulous supposition that the protection of fetal life is not the purpose of the Connecticut anti-abortion laws. This assumption is unwarranted. The history of these statutes indicates that they were designed to protect fetal life.

In 1821, the Connecticut legislature adopted the first anti-abortion statute in this country. The legislature in its original treatment of the subject equated abortion with the crime of murder by poison.1 The 1860 amendment for the first time recognized that the mother also was capable of committing a crime by submitting to the abortion. This amendment made it plain that the legislature regarded both the fetus and the woman as the victims of the abortion.

Prior to 1860, the Connecticut statutes concerned only abortions performed up*813on a woman “quick with child.” This indicates a legislative determination that human “life” began at that point. The statute of 1860 amended that law to forbid abortion at any stage of fetal development. This amendment reflected a legislative judgment that fetal life at any stage merited the protection of the law.2 If the primary purpose of the anti-abortion laws was to protect the woman from the dangers of 19th century surgical techniques, as the majority suggests, it is impossible to understand why the original law prohibited abortions only after quickening. Certainly, the risk of infection caused by unsterilized instruments was as great before the fetus had quickened.

State v. Carey, 76 Conn. 342, 56 A. 632 (1904), has been pointed to as authority for the proposition that the anti-abortion statutes are aimed “largely” at protecting the woman and not the unborn child. Actually, Carey was decided on a completely different issue of law, namely, whether or not the woman is an accomplice to the crime of the abortionist, for the purpose of attacking her credibility. The court reasoned that while the woman could not be an accomplice to the crime of the abortionist, she could be guilty of committing a separate and distinct *814crime under the statute, namely, submitting to an abortion. It was in that context that the issue arose as to whether the trial judge committed error in failing to charge the jury that the testimony of the woman must be “suspect,” because she was an accomplice to the crime. The court’s reasoning on that evidentiary issue led to the incidental dicta, that the laws were aimed “largely” to protect the woman. The court emphasized that the woman was not an accomplice, but rather a victim of the abortionist’s crime for evidentiary purposes. This approach safeguarded the credibility of the only likely prosecution witness in abortion cases. The statute also afforded some justification for this position, in that one of the purposes of the law included the protection of the woman. However, this circumstance does not detract from the statute’s primary purpose, the protection of the human fetus.

The majority’s seizure of this single, isolated dictum articulated some 68 years ago and their reliance upon it as a main girder to support their position, is not only misplaced, but rises to the level of pedanticism, in light of the evidence of the present legislative purpose. Cf. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).

The real issue here is whether or not the laws were designed to carry out a compelling state interest. Contrary to the majority's holding in this case, I respectfully submit that the Connecticut anti-abortion statutes do protect fetal life as a “compelling subordinating state interest.” Griswold v. Connecticut, 381 U.S. 479, 496-497, 85 S.Ct. 1678, 1688, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring). As such, they are, therefore, a constitutionally valid and a proper exercise of the power of the state. I would uphold these state laws, and deny relief. See, Corkey v. Edwards, 322 F.Supp. 1248, 1254 (W.D.N.C.1971); Steinberg v. Brown, 321 F.Supp. 741 (N.D.Ohio 1970); Rosen v. Louisiana State Board of Medical Examiners, 318 F.Supp. 1217 (E.D.La.1970).

Certainly, it is natural for a state to feel a compelling need to protect the human fetus.3 Indeed, it is difficult to imagine a more basic legislative concern than the protection of life itself.

“(I)n view of the varied opinions in medical science, is not the determination of when human life commences better left to the legislature, rather than the courts?” Doe v. Scott, 321 F.Supp. 1385, 1395 (N.D.Ill.1971) (Campbell, J., dissenting).

If there is ever to be any modification as to the stage of fetal development at which the fetus is to be protected as a human being, that decision is one uniquely suited to the legislature.

The case of Griswold, supra, which is relied upon by the majority, decided that the state could not, consistent with the zone of privacy emanating from the Bill of Rights, completely prohibit the use of contraceptives. The Court ruled that prohibiting contraceptives served no compelling state purpose. However, this decision is not applicable to the facts of the present case. It is one thing to prevent the impregnation of the ovum by the spermatazoa, and quite another to deliberately destroy newly formed human life. Different values are invoked. *815While the marital privacy referred to in Griswold limits itself to the personal conjugal relationship of only two people, abortion projects itself far beyond the bounds of personal intimacy. It is directed against an innocent victim, a third human being endowed with unique genetic cháracteristics. The state legislature has assumed the duty of protecting this individual, and recognizes its inherent natural right to life. Moreover, even if such protection were to constitute an invasion of the marital relationship, it is not prohibited. Both the majority and dissenting opinions in Doe v. Scott, supra,, recognized that a determination by the court that anti-abortion laws may intrude upon the sexual and familial intimacies of a woman’s life is not a sufficient justification to declare them to be an invasion of constitutional rights. A superior countervailing state interest of compelling proportions is manifest here, the protection of human life.

The majority cite as an extreme illustration that the Connecticut law proscribes abortions, even in situations where the pregnancy is the result of incest or rape, or where there is a likelihood that the child will be born with a serious mental or physical defect. While it is conceded that such pregnancies and births are often fraught with personal hardship, the proper forum in which to present and test such concerns is the legislature. As Justice Frankfurter wrote for the Court in American Federation of Labor v. American Sash & Door Co., 335 U.S. 538, 557, 69 S.Ct. 260, 267, 93 L.Ed. 222 (1949):

“Courts can fulfill their responsibility in a democratic society only to the extent that they succeed in shaping their judgments by rational standards, and rational standards are both impersonal and communicable. Matters of policy, however, are by definition matters which demand the resolution of conflicts of value, and the elements of conflicting values are largely imponderable. Assessment of their competing worth involves differences of feeling ; it is also an exercise in prophesy. Obviously the proper forum for mediating a clash of feelings and rendering a prophetic judgment is the body chosen for those purposes by the people.” (quoted in Corkey v. Edwards, 322 F.Supp. 1248, 1254 (W.D.N.C.1971)).

The people, acting through their legislature, have in effect decreed that this new life is an innocent victim, not an unjust aggressor.

In Steinberg v. Brown, supra, a three-judge court, one judge dissenting, concluded that not only may a state constitutionally protect human life in the fetal stage, but that the fifth and fourteenth amendments, which guarantee that no person shall be deprived of life without due process of law, “impose upon the state the duty of safeguarding” fetal life. 321 F.Supp. at 746-747.

Certainly, the repeated failure of the successive attempts to repeal or liberalize the anti-abortion laws can be attributed realistically, only to a legislative determination to protect fetal life.4 As recently as December 10, 1968, the Legislative Council5 recommended to the legislature that no legislative action should be taken on the proposal to liberalize our present laws on abortion. At page 10 in this report, it stated:

“The Council feels that should an unborn child become a thing rather than a person in the minds of people, *816in any stage of its development, the dignity of human life is in jeopardy. The family, too, which is the very basis of our society, would be minimized or perhaps destroyed.”

The aforesaid conclusion by the legislative leaders leaves no room to question, but that their real concern was the protection of fetal life.6

As Justice Cardozo pointed out for the Court in Helvering v. Davis, 301 U.S. 619, 644, 57 S.Ct. 904, 910, 81 L.Ed. 1307 (1937): “Our concern here as often is with power, not with wisdom.” The plain issue in this case is whether or not the state has the power through its legislature to protect what it regards as human life, when such choice is supported by substantial medical, biological, and social justification. Where the state has duly enacted laws to further such purposes, such statutes bear the presumption of constitutionality. See United States v. Vuitch, 402 U.S. 62, 70, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971); Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960); and United States v. Weisenbloom, 168 F.2d 698, 700 (2d Cir. 1948).7 This presumption clearly extends to the validity of the purpose underlying any legislative enactment. See, e. g., Street v. New York, 394 U.S. 576, 590-591, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1961).

It should be noted that the majority decision leaves the State of Connecticut with no law or control in this area of human relationships. It invites unlimited foeticide (the murder of unborn human beings), as a way of life, in a state long known as the land of steady habits. The Connecticut legislature has historically, consistently, and affirmatively expressed its determination to safeguard and respect human life. The action of the majority constitutes an unwarranted federal judicial intrusion into the legislative sphere of state government. The judiciary was never intended nor designed to perform such a function. I would uphold the constitutionality of the challenged state statutes and deny relief.

*116Mr. Justice Blackmun

delivered the opinion of the Court.

This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 179, present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue.

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.

In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we *117have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man’s attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes’ admonition in his now-vindicated dissent in Lochner v. New York, 198 U. S. 45, 76 (1905):

“[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”

I

The Texas statutes that concern us here are Arts. 1191–1194 and 1196 of the State’s Penal Code.1 These make it a crime to “procure an abortion,” as therein *118defined, or to attempt one, except with respect to “an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.” Similar statutes are in existence in a majority of the States.2

*119Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49, § 1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon modified into language that has remained substantially unchanged to the present time. See Texas Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal, Laws of Texas, Arts. 2192-2197 (1866); Texas Rev. Stat., c. 8, Arts. 536-541 (1879); Texas Rev. Crim. Stat., Arts. 1071-1076 (1911). The final article in each of these compilations provided the same exception, as does the present Article 1196, for an abortion by “medical advice for the purpose of saving the life of the mother.” 3

*120II

Jane Roe,4 a single woman who was residing m Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes.

Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion “performed by a competent, licensed physician, under safe, clinical conditions”; that she was unable to get a “legal” abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint Roe purported to sue “on behalf of herself and all other women” similarly situated.

James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe’s action. In his complaint he alleged that he had been arrested previously for violations of the Texas abortion statutes and *121that two such prosecutions were pending against him. He described conditions of patients who came to him seeking abortions, and he claimed that for many cases he, as a physician, was unable to determine whether they fell within or outside the exception recognized by Article 1196. He alleged that, as a consequence, the statutes were vague and uncertain, in violation of the Fourteenth Amendment, and that they violated his own and his patients’ rights to privacy in the doctor-patient relationship and his own right to practice medicine, rights he claimed were guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

John and Mary Doe,5 a married couple, filed a companion complaint to that of Roe. They also named the District Attorney as defendant, claimed like constitutional deprivations, and sought declaratory and injunctive relief. The Does alleged that they were a childless couple; that Mrs. Doe was suffering from a “neural-chemical” disorder; that her physician had “advised her to avoid pregnancy until such time as her condition has materially improved” (although a pregnancy at the present time would not present “a serious risk” to her life); that, pursuant to medical advice, she had discontinued use of birth control pills; and that if she should become pregnant, she would want to terminate the pregnancy by an abortion performed by a competent, licensed physician under safe, clinical conditions. By an amendment to their complaint, the Does purported to sue “on behalf of themselves and all couples similarly situated.”

The two actions were consolidated and heard together by a duly convened three-judge district court. The suits thus presented the situations of the pregnant single woman, the childless couple, with the wife not pregnant, *122and the licensed practicing physician, all joining in the attack on the Texas criminal abortion statutes. Upon the filing of affidavits, motions were made for dismissal and for summary judgment. The court held that Roe and members of her class, and Dr. Hallford, had standing to sue and presented justiciable controversies, but that the Does had failed to allege facts sufficient to state a present controversy and did not have standing. It concluded that, with respect to the requests for a declaratory judgment, abstention was not warranted. On the merits, the District Court held that the “fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment,” and that the Texas criminal abortion statutes were void on their face because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs’ Ninth Amendment rights. The court then held that abstention was warranted with respect to the requests for an injunction. It therefore dismissed the Does’ complaint, declared the abortion statutes void, and dismissed the application for injunctive relief. 314 F. Supp. 1217, 1225 (ND Tex. 1970).

The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U. S. C. § 1253, have appealed to this Court from that part of the District Court’s judgment denying the injunction. The defendant District Attorney has purported to cross-appeal, pursuant to the same statute, from the court’s grant of declaratory relief to Roe and Hallford. Both sides also have taken protective appeals to the United States Court of Appeals for the Fifth Circuit. That court ordered the appeals held in abeyance pending decision here. We postponed decision on jurisdiction to the hearing on the merits. 402 U. S. 941 (1971).

*123III

It might have been preferable if the defendant, pursuant to our Rule 20, had presented to us a petition for certiorari before judgment in the Court of Appeals with respect to the granting of the plaintiffs’ prayer for declaratory relief. Our decisions in Mitchell v. Donovan, 398 U. S. 427 (1970), and Gunn v. University Committee, 399 U. S. 383 (1970), are to the effect that § 1253 does not authorize an appeal to this Court from the grant or denial of declaratory relief alone. We conclude, nevertheless, that those decisions do not foreclose our review of both the injunctive and the declaratory aspects of a case of this kind when it is properly here, as this one is, on appeal under § 1253 from specific denial of injunctive relief, and the arguments as to both aspects are necessarily identical. See Carter v. Jury Comm’n, 396 U. S. 320 (1970); Florida Lime Growers v. Jacobsen, 362 U. S. 73, 80-81 (1960). It would be destructive of time and energy for all concerned were we to rule otherwise. Cf. Doe v. Bolton, post, p. 179.

IV

We are next confronted with issues of justiciability, standing, and abstention. Have Roe and the Does established that “personal stake in the outcome of the controversy,” Baker v. Carr, 369 U. S. 186, 204 (1962), that insures that “the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution,” Flast v. Cohen, 392 U. S. 83, 101 (1968), and Sierra Club v. Morton, 405 U. S. 727, 732 (1972) ? And what effect did the pendency of criminal abortion charges against Dr. Hallford in state court have upon the propriety of the federal court’s granting relief to him as a plaintiff-intervenor?

*124A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe is a fictitious person. For purposes of her case, we accept as true, and as established, her existence; her pregnant state, as of the inception of her suit in March 1970 and as late as May 21 of that year when she filed an alias affidavit with the District Court; and her inability to obtain a legal abortion in Texas.

Viewing Roe’s case as of the time of its filing and thereafter until as late as May, there can be little dispute that it then presented a case or controversy and that, wholly apart from the class aspects, she, as a pregnant single woman thwarted by the Texas criminal abortion laws, had standing to challenge those statutes. Abele v. Markle, 452 F. 2d 1121, 1125 (CA2 1971); Crossen v. Breckenridge, 446 F. 2d 833, 838-839 (CA6 1971); Poe v. Menghini, 339 F. Supp. 986, 990-991 (Kan. 1972). See Truax v. Raich, 239 U. S. 33 (1915). Indeed, we do not read the appellee’s brief as really asserting anything to the contrary. The “logical nexus between the status asserted and the claim sought to be adjudicated,” Flast v. Cohen, 392 U. S., at 102, and the necessary degree of contentiousness, Golden v. Zwickler, 394 U. S. 103 (1969), are both present.

The appellee notes, however, that the record does not disclose that Roe was pregnant at the time of the District Court hearing on May 22, 1970,6 or on the following June 17 when the court’s opinion and judgment were filed. And he suggests that Roe’s case must now be moot because she and all other members of her class are no longer subject to any 1970 pregnancy.

*125The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. United States v. Munsingwear, Inc., 340 U. S. 36 (1950) ; Golden v. Zwickler, supra; SEC v. Medical Committee for Human Rights, 404 U. S. 403 (1972).

But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be “capable of repetition, yet evading review.” Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911). See Moore v. Ogilvie, 394 U. S. 814, 816 (1969); Carroll v. Princess Anne, 393 U. S. 175, 178-179 (1968); United States v. W. T. Grant Co., 345 U. S. 629, 632-633 (1953).

We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot.

B. Dr. Hallford. The doctor’s position is different. He entered Roe’s litigation as a plaintiff-intervenor, alleging in his complaint that he:

“[I]n the past has been arrested for violating the Texas Abortion Laws and at the present time stands charged by indictment with violating said laws in the Criminal District Court of Dallas County, Texas to-wit: (1) The State of Texas vs. *126James H. Hallford, No. C-69-5307-IH, and (2) The State of Texas vs. James H. Hallford, No. C-69-2524-H. In both cases the defendant is charged with abortion . . . .”

In his application for leave to intervene, the doctor made like representations as to the abortion charges pending in the state court. These representations were also repeated in the affidavit he executed and filed in support of his motion for summary judgment.

Dr. Hallford is, therefore, in the position of seeking, in a federal court, declaratory and injunctive relief with respect to the same statutes under which he stands charged in criminal prosecutions simultaneously pending in state court. Although he stated that he has been arrested in the past for violating the State’s abortion laws, he makes no allegation of any substantial and immediate threat to any federally protected right that cannot be asserted in his defense against the state prosecutions. Neither is there any allegation of harassment or bad-faith prosecution. In order to escape the rule articulated in the cases cited in the next paragraph of this opinion that, absent harassment and bad faith, a defendant in a pending state criminal case cannot affirmatively challenge in federal court the statutes under which the State is prosecuting him, Dr. Hallford seeks to distinguish his status as a present state defendant from his status as a “potential future defendant” and to assert only the latter for standing purposes here.

We see no merit in that distinction. Our decision in Samuels v. Mackell, 401 U. S. 66 (1971), compels the conclusion that the District Court erred when it granted declaratory relief to Dr. Hallford instead of refraining from so doing. The court, of course, was correct in refusing to grant injunctive relief to the doctor. The reasons supportive of that action, however, are those expressed in Samuels v. Mackell, supra, and in Younger v. *127 Harris, 401 U. S. 37 (1971); Boyle v. Landry, 401 U. S. 77 (1971); Perez v. Ledesma, 401 U. S. 82 (1971); and Byrne v. Karalexis, 401 U. S. 216 (1971). See also Dombrowski v. Pfister, 380 U. S. 479 (1965). We note, in passing, that Younger and its companion cases were decided after the three-judge District Court decision in this case.

Dr. Hallford’s complaint in intervention, therefore, is to be dismissed.7 He is remitted to his defenses in the state criminal proceedings against him. We reverse the judgment of the District Court insofar as it granted Dr. Hallford relief and failed to dismiss his complaint in intervention.

C. The Does. In view of our ruling as to Roe’s standing in her case, the issue of the Does’ standing in their case has little significance. The claims they assert are essentially the same as those of Roe, and they attack the same statutes. Nevertheless, we briefly note the Does’ posture.

Their pleadings present them as a childless married couple, the woman not being pregnant, who have no desire to have children at this time because of their having received medical advice that Mrs. Doe should avoid pregnancy, and for “other highly personal reasons.” But they “fear . . . they may face the prospect of becoming *128parents.” And if pregnancy ensues, they “would want to terminate” it by an abortion. They assert an inability to obtain an abortion legally in Texas and, consequently, the prospect of obtaining an illegal abortion there or of going outside Texas to some place where the procedure could be obtained legally and competently.

We thus have as plaintiffs a married couple who have, as their asserted immediate and present injury, only an alleged “detrimental effect upon [their] marital happiness” because they are forced to “the choice of refraining from normal sexual relations or of endangering Mary Doe’s health through a possible pregnancy.” Their claim is that sometime in the future Mrs. Doe might become pregnant because of possible failure of contraceptive measures, and at that time in the future she might want an abortion that might then be illegal under the Texas statutes.

This very phrasing of the Does’ position reveals its speculative character. Their alleged injury rests on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health. Any one or more of these several possibilities may not take place and all may not combine. In the Does’ estimation, these possibilities might have some real or imagined impact upon their marital happiness. But we are not prepared to say that the bare allegation of so indirect an injury is sufficient to present an actual case or controversy. Younger v. Harris, 401 U. S., at 41-42; Golden v. Zwickler, 394 U. S., at 109–110; Abele v. Markle, 452 F. 2d, at 1124-1125; Crossen v. Breckenridge, 446 F. 2d, at 839. The Does’ claim falls far short of those resolved otherwise in the cases that the Does urge upon us, namely, Investment Co. Institute v. Camp, 401 U. S. 617 (1971); Data Processing Service v. Camp, 397 U. S. 150 (1970); *129and Epperson v. Arkansas, 393 U. S. 97 (1968). See also Truax v. Raich, 239 U. S. 33 (1915).

The Does therefore are not appropriate plaintiffs in this litigation. Their complaint was properly dismissed by the District Court, and we affirm that dismissal.

V

The principal thrust of appellant’s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal “liberty” embodied in the Fourteenth Amendment’s Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); id., at 460 (White, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U. S., at 486 (Goldberg, J., concurring). Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws.

VI

It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman’s life, are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.

*1301. Ancient attitudes. These are not capable of precise determination. We are told that at the time of the Persian Empire abortifacients were known and that criminal abortions were severely punished.8 We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era,9 and that “it was resorted to without scruple.”10 The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome’s prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable.11 Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father’s right to his offspring. Ancient religion did not bar abortion.12

2. The Hippocratic Oath. What then of the famous Oath that has stood so long as the ethical guide of the medical profession and that bears the name of the great Greek (460(?)-377(?) B. C.), who has been described *131as the Father of Medicine, the “wisest and the greatest practitioner of his art,” and the “most important and most complete medical personality of antiquity,” who dominated the medical schools of his time, and who typified the sum of the medical knowledge of the past? 13 The Oath varies somewhat according to the particular translation, but in any translation the content is clear: “I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion,” 14 or “I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy.”15

Although the Oath is not mentioned in any of the principal briefs in this case or in Doe v. Bolton, post, p. 179, it represents the apex of the development of strict ethical concepts in medicine, and its influence endures to this day. Why did not the authority of Hippocrates dissuade abortion practice in his time and that of Rome? The late Dr. Edelstein provides us with a theory: 16 The Oath was not uncontested even in Hippocrates' day; only the Pythagorean school of philosophers frowned upon the related act of suicide. Most Greek thinkers, on the other hand, commended abortion, at least prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however, it was a matter of dogma. For them the embryo was animate from the moment of conception, and abortion meant destruction of a living being. The abortion clause of the Oath, therefore, “echoes Pythagorean doctrines,” *132and “[i’jn no other stratum of Greek opinion were such views held or proposed in the same spirit of uncompromising austerity.” 17

Dr. Edelstein then concludes that the Oath originated in a group representing only a small segment of Greek opinion and that it certainly was not accepted by all ancient physicians. He points out that medical writings down to Galen (A. D. 130-200) “give evidence of the violation of almost every one of its injunctions.” 18 But with the end of' antiquity a decided change took place. Resistance against suicide and against abortion became common. The Oath came to be popular. The emerging teachings of Christianity were in agreement with the Pythagorean ethic. The Oath “became the nucleus of all medical ethics” and “was applauded as the embodiment of truth.” Thus, suggests Dr. Edelstein, it is “a Pythagorean manifesto and not the expression of an absolute standard of medical conduct.” 19

This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath's apparent rigidity. It enables us to understand, in historical context, a long-accepted and revered statement of medical ethics.

3. The common law. It is undisputed that at common law, abortion performed before “quickening”— the first recognizable movement of the fetus in útero, appearing usually from the 16th to the 18th week of pregnancy 20 — was not an indictable offense.21 The ab*133sence of- a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became “formed” or recognizably human, or in terms of when a “person” came into being, that is, infused with a “soul” or “animated.” A loose consensus evolved in early English law that these events occurred at some point between conception and live birth.22 This was “mediate animation.” Although *134Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little ' agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas' definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country.

Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed. Bracton, writing early in the 13th century, thought it homicide.23 But the later and predominant view, following the great common-law scholars, has been that it was, at most, a lesser offense. In a frequently cited *135passage, Coke took the position that abortion of a woman “quick with childe” is “a great misprision, and no murder.” 24 Blackstone followed, saying that while abortion after quickening had once been considered manslaughter (though not murder), “modern law” took a less severe view.25 A recent review of the common-law precedents argues, however, that those precedents contradict Coke and that even post-quickening abortion was never established as a common-law crime.26 This is of some importance because while most American courts ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law,27 others followed Coke in stating that abor*136tion of a quick fetus was a “misprision,” a term they translated to mean “misdemeanor.” 28 That their reliance on Coke on this aspect of the law was uncritical and, apparently in all the reported cases, dictum (due probably to the paucity of common-law prosecutions for post-quickening abortion), makes it now appear doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.

4. The English statutory law. England's first criminal abortion statute, Lord Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick fetus, § 1, a capital crime, but in § 2 it provided lesser penalties for the felony of abortion before quickening, and thus preserved the “quickening” distinction. This contrast was continued in the general revision of 1828, 9 Geo. 4, c. 31, § 13. It disappeared, however, together with the death penalty, in 1837, 7 Will. 4 & 1 Viet., c. 85, § 6, and did not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Viet., c. 100, § 59, that formed the core of English anti-abortion law until the liberalizing reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was upon the destruction of “the life of a child capable of being born alive.” It made a willful act performed with the necessary intent a felony. It contained a proviso that one was not to be *137found guilty of the offense “unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.”

A seemingly notable development in the English law was the case of Rex v. Bourne, [1939] 1 K. B. 687. This case apparently answered in the affirmative the question whether an abortion necessary to preserve the life of the pregnant woman was excepted from the criminal penalties of the 1861 Act. In his instructions to the jury, Judge Macnaghten referred to the 1929 Act, and observed that that Act related to “the case where a child is killed by a wilful act at the time when it is being delivered in the ordinary course of nature.” Id:, at 691. He concluded that the 1861 Act’s use of the word “unlawfully,” imported the same meaning expressed by the specific proviso in the 1929 Act, even though there was no mention of preserving the mother’s life in the 1861 Act. He then construed the phrase “preserving the life of the mother” broadly, that is, “in a reasonable sense,” to include a serious and permanent threat to the mother’s health, and instructed the jury to acquit Dr. Bourne if it found he had acted in a good-faith belief that the abortion was necessary for this purpose. Id., at 693-694. The jury did acquit.

Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an abortion where two other licensed physicians agree (a) “that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated,” or (b) “that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as *138to be seriously handicapped.” The Act also provides that, in making this determination, “account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.” It also permits a physician, without the concurrence of others, to terminate a pregnancy where he is of the good-faith opinion that the abortion “is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.”

5. The American law. In this country, the law in effect in all but a few States until mid-19th century was the pre-existing English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough’s Act that related to a woman “quick with child.”29 The death penalty was not imposed. Abortion before quickening was made a crime in that State only in I860.30 In 1828, New York enacted legislation 31 that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickened fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it “shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose.” By 1840, when Texas had received the common law,32 only eight American States *139had statutes dealing with abortion.33 It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening. Most punished attempts equally with completed abortions. While many statutes included the exception for an abortion thought by one or more physicians to be necessary to save the mother’s life, that provision soon disappeared and the typical law required that the procedure actually be necessary for that purpose.

Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950’s, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother.34 The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother’s health.35 Three States permitted abortions that were not “unlawfully” performed or that were not “without lawful justification,” leaving interpretation of those standards to the courts.36 In *140the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws, most of them patterned after the ALI Model Penal Code, § 230.3,37 set forth as Appendix B to the opinion in Doe v. Bolton, post, p. 205.

It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the oppor*141tunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.

6. The position of the American Medical Association. The anti-abortion mood prevalent in this country in the late 19th century was shared by the medical profession. Indeed, the attitude of the profession may have played a significant role in the enactment of stringent criminal abortion legislation during that period.

An AMA Committee on Criminal Abortion was appointed in May 1857. It presented its report, 12 Trans, of the Am. Med. Assn. 73-78 (1859), to the Twelfth Annual Meeting. That report observed that the Committee had been appointed to investigate criminal abortion “with a view to its general suppression.” It deplored abortion and its frequency and it listed three causes of “this general demoralization”:

“The first of these causes is a wide-spread popular ignorance of the true character of the crime— a belief, even among mothers themselves, that the foetus is not alive till after the period of quickening.

“The second of the agents alluded to is the fact that the profession themselves are frequently supposed careless of foetal life ....

“The third reason of the frightful extent of this crime is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas. With strange inconsistency, the law fully acknowledges the foetus in útero and its inherent rights, for civil purposes; while personally and as criminally affected, it fails to recognize it, *142and to its life as yet denies all protection.” Id,., at 75-76.

The Committee then offered, and the Association adopted, resolutions protesting “against such unwarrantable destruction of human life,” calling upon-state legislatures to revise their abortion laws, and requesting the cooperation of state medical societies “in pressing the subject.” Id., at 28, 78.

In 1871 a long and vivid report was submitted by the Committee on Criminal Abortion. It ended with the observation, “We had to deal with human life. In a matter of less importance we could entertain no compromise. An honest judge on the bench would call things by their proper names. We could do no less.” 22 Trans, of the Am. Med. Assn. 258 (1871). It proffered resolutions, adopted by the Association, id., at 38-39, recommending, among other things, that it “be unlawful and unprofessional for any physician to induce abortion- or premature labor, without the concurrent opinion of at least one respectable consulting physician, and then always with a view to the safety of the child— if that be possible,” and calling “the attention of the clergy of all denominations to the perverted views of morality entertained by a large class of females — aye, and men also, on this important question.”

Except for periodic condemnation of the criminal abortionist, no further formal AMA action took place until 1967. In that year, the Committee on Human Reproduction urged the adoption of a stated policy of opposition to induced abortion, except when there is “documented medical evidence” of a threat to the health or life of the mother, or that the child “may be born with incapacitating physical deformity or mental deficiency,” or that a pregnancy “resulting from legally established statutory or forcible rape or incest may constitute a threat to the mental or physical health of the *143patient,” two other physicians “chosen because of their recognized professional competence have examined the patient and have concurred in writing,” and the procedure “is performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals.” The providing of medical information by physicians to state legislatures in their consideration of legislation regarding therapeutic abortion was “to be considered consistent with the principles of ethics of the American Medical Association.” This recommendation was adopted by the House of Delegates. Proceedings of the AMA House of Delegates 40-51 (June 1967).

In 1970, after the introduction of a variety of proposed resolutions, and of a report from its Board of Trustees, a reference committee noted “polarization of the medical profession on this controversial issue”; division among those who had testified; a difference of opinion among AMA councils and .committees; “the remarkable shift in testimony” in six months, felt to be influenced “by the rapid changes in state laws and by the judicial decisions which tend to make abortion more freely available;” and a feeling “that this trend will continue.” On June 25, 1970, the House of Delegates adopted preambles and most of the resolutions proposed by the reference committee. The preambles emphasized “the best interests of the patient,” “sound clinical judgment,” and “informed patient consent,” in contrast to “mere acquiescence to the patient's demand.” The resolutions asserted that abortion is a medical procedure that should be performed by a licensed physician in an accredited hospital only after consultation with two other physicians and in conformity with state law, and that no party to the procedure should be required to violate personally held moral principles.38 Proceedings *144of the AMA House of Delegates 220 (June 1970). The AMA Judicial Council rendered a complementary opinion.39

7. The position of the American Public Health Association. In October 1970, the Executive Board of the APHA adopted Standards for Abortion Services. These were five in number:

“a. Rapid and simple abortion referral must be readily available through state and local public *145health departments, medical societies, or other nonprofit organizations.

“b. An important function of counseling should be to simplify and expedite the provision of abortion services; it should not delay the obtaining of these services.

“c. Psychiatric consultation should not be mandatory. As in the case of other specialized medical services, psychiatric consultation should be sought for definite indications and not on a routine basis.

“d. A wide range of individuals from appropriately trained, sympathetic volunteers to highly skilled physicians may qualify as abortion counselors.

“e. Contraception and/or sterilization should be discussed with each abortion patient.” Recommended Standards for Abortion Services, 61 Am. J. Pub. Health 396 (1971).

Among factors pertinent to life and health risks associated with abortion were three that “are recognized as important”:

“a. the skill of the physician,

“b. the environment in which the abortion is performed, and above all

“c. the duration of pregnancy, as determined by uterine size and confirmed by menstrual history.” Id., at 397.

It was said that “a well-equipped hospital” offers more protection “to cope with unforeseen difficulties than an office or clinic without such resources. . . . The factor of gestational age is of overriding importance.” Thus, it was recommended that abortions in the second trimester and early abortions in the presence of existing medical complications be performed in hospitals as inpatient procedures. For pregnancies in the first tri*146mester, abortion in the hospital with or without overnight stay “is probably the safest practice.” An abortion in an extramural facility, however, is an acceptable alternative “provided arrangements exist in advance to admit patients promptly if unforeseen complications develop.” Standards for an abortion facility were listed. It was said that at present abortions should be performed by physicians or osteopaths who are licensed to practice and who have “adequate training.” Id., at 398.

8. The position of the American Bar Association. At its meeting in February 1972 the ABA House of Delegates approved, with 17 opposing votes, the Uniform Abortion Act that had been drafted and approved the preceding August by the Conference of Commissioners on Uniform State Laws. 58 A. B. A. J. 380 (1972). We set forth the Act in full in the margin.40 The *147Conference has appended an enlightening Prefatory-Note.41

VII

Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.

*148It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously.42 The appellants and amici contend, moreover, that this is not a proper state purpose at all and suggest that, if it were, the Texas statutes are overbroad in protecting it since the law fails to distinguish between married and unwed mothers.

A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman.43 This was particularly true prior to the *149development of antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister, Pasteur, and others first announced in 1867, but were not generally accepted and employed until about the turn of the century. Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940’s, standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been argued that a State’s real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.

Modern medical techniques have altered this situation. Appellants and various amici refer to medical data indicating that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth.44 Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain. *150The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal “abortion mills” strengthens, rather than weakens, the State’s interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy.

The third reason is the State’s interest — some phrase it in terms of duty — in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception.45 The State’s interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.

*151Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life.46 Pointing to the absence of legislative history to support the contention, they claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws can no longer be justified by any state interest. There is some scholarly support for this view of original purpose.47 The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State’s interest in protecting the woman’s health rather than in preserving the embryo and fetus.48 Proponents of this view point out that in many States, including Texas,49 by statute or judicial interpretation, the pregnant woman herself could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another.50 They claim that adoption of the “quickening” distinction through received common *152law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception.

It is with these interests, and the weight to be attached to them, that this case is concerned.

VIII

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U. S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U. S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U. S. 1, 8-9 (1968), Katz v. United States, 389 U. S. 347, 350 (1967), Boyd v. United States, 116 U. S. 616 (1886), see Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U. S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U. S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U. S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U. S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U. S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U. S., at 453-454; id., at 460, 463-*153465 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U. S. 158, 166 (1944) ; and child rearing and education, Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925), Meyer v. Nebraska, supra.

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her. pregnancy at whatever time, in whatever way,- and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The *154Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U. S. 11 (1905) (vaccination); Buck v. Bell, 274 U. S. 200 (1927) (sterilization).

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

We note that those federal and state courts that have recently considered abortion law challenges have reached the same conclusion. A majority, in addition to the District Court in the present case, have held state laws unconstitutional, at least in part, because of vagueness or because of overbreadth and abridgment of rights. Abele v. Markle, 342 F. Supp. 800 (Conn. 1972), appeal docketed, No. 72-56; Abele v. Markle, 351 F. Supp. 224 (Conn. 1972), appeal docketed, No. 72-730; Doe v. Bolton, 319 F. Supp. 1048 (ND Ga. 1970), appeal decided today, post, p. 179; Doe v. Scott, 321 F. Supp. 1385 (ND Ill. 1971), appeal docketed, No. 70-105; Poe v. Menghini, 339 F. Supp. 986 (Kan. 1972); YWCA v. Kugler, 342 F. Supp. 1048 (NJ 1972); Babbitzv. McCann, *155310 F. Supp. 293 (ED Wis. 1970), appeal dismissed, 400 U. S. 1 (1970); People v. Belous, 71 Cal. 2d 954, 458 P. 2d 194 (1969), cert, denied, 397 U. S. 915 (1970); State v. Barquet, 262 So. 2d 431 (Fla. 1972).

Others have sustained state statutes. Crossen v. Attorney General, 344 F. Supp. 587 (ED Ky. 1972), appeal docketed, No. 72-256; Rosen v. Louisiana State Board of Medical Examiners, 318 F. Supp. 1217 (ED La. 1970), appeal docketed, No. 70-42; Corkey v. Edwards, 322 F. Supp. 1248 (WDNC 1971), appeal docketed, No. 71-92; Steinberg v. Brown, 321 F. Supp. 741 (ND Ohio 1970); Doe v. Rampton (Utah 1971), appeal docketed, No. 71-5666; Cheaney v. State,-Ind.-, 285 N. E. 2d 265 (1972); Spears v. State, 257 So. 2d 876 (Miss. 1972); State v. Munson, 86 S. D. 663, 201 N. W. 2d 123 (1972), appeal docketed, No. 72-631.

Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.

Where certain “fundamental rights” are involved, the Court has held that regulation limiting these rights may be justified only by a “compelling state interest,” Kramer v. Union Free School District, 395 U. S. 621, 627 (1969); Shapiro v. Thompson, 394 U. S. 618, 634 (1969), Sherbert v. Verner, 374 U. S. 398, 406 (1963), and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. Griswold v. Connecticut, 381 U. S., at 485; Aptheker v. Secretary of State, 378 U. S. 500, 508 (1964); Cantwell v. Connecticut, 310 U. S. 296, 307-308 (1940); see *156 Eisenstadt v. Baird, 405 U. S., at 460, 463-464 (White, J., concurring in result).

In the recent abortion cases, cited above, courts have recognized these principles. Those striking down state laws have generally scrutinized the State’s interests in protecting health and potential life, and have concluded that neither interest justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy. Courts sustaining state laws have held that the State’s determinations to protect health or prenatal life are dominant and constitutionally justifiable.

IX

The District Court held that the appellee failed to meet his burden of demonstrating that the Texas statute’s infringement upon Roe’s rights was necessary to support a compelling state interest, and that, although the appellee presented “several compelling justifications for state presence in the area of abortions,” the statutes outstripped these justifications and swept “far beyond any areas of compelling state interest.” 314 F. Supp., at 1222-1223. Appellant and appellee both contest that holding. Appellant, as has been indicated, claims an absolute right that bars any state imposition of criminal penalties in the area. Appel-lee argues that the State’s determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation.

A. The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, *157for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument:51 On the other hand, the appellee conceded on reargument52 that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; 53 in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application.54

*158All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn.55 This is in accord with the results reached in those few cases where the issue has been squarely presented. McGarvey v. Magee-Womens Hospital, 340 F. Supp. 751 (WD Pa. 1972); Byrn v. New York City Health & Hospitals Corp., 31 N. Y. 2d 194, 286 N. E. 2d 887 (1972), appeal docketed, No. 72-434; Abele v. Markle, 351 F. Supp. 224 (Conn. 1972), appeal docketed, No. 72-730. Cf. Cheaney v. State,-Ind., at-, 285 N. E. 2d, at 270; Montana v. Rogers, 278 F. 2d 68, 72 (CA7 1960), aff’d sub nom. Montana v. Kennedy, 366 U. S. 308 (1961); Keeler v. Superior Court, 2 Cal. 3d 619, 470 P. 2d 617 (1970); State v. Dickinson, 28 *159Ohio St. 2d 65, 275 N. E. 2d 599 (1971). Indeed; our decision in United States v. Vuitch, 402 U. S. 62 (1971), inferentially is to the same effect, for we there would not have indulged in statutory interpretation favorable to abortion in specified circumstances if the necessary consequence was the termination of life entitled to Fourteenth Amendment protection.

This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations.

B. The pregnant woman cannot be isolated in her ’privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. See Dorland’s Illustrated Medical Dictionary 478-479, 547 (24th ed. 1965). The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

*160It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics.56 It appears to be the predominant, though not the unanimous, attitude of the Jewish faith.57 It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family.58 As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes “viable,” that is, potentially able to live outside the mother’s womb, albeit with artificial aid.59 Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.60 The Aristotelian theory of “mediate animation,” that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this “ensoulment” theory from those in the Church who would recognize the existence of life from *161the moment of conception.61 The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a “process” over time, rather than an event, and by new medical techniques such as menstrual extraction, the “morning-after” pill, implantation of embryos, artificial insemination, and even artificial wombs.62

In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive.63 That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few *162courts have squarely so held.64 In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries.65 Such an action, however, would appear to be one to vindicate the parents’ interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem. 66 Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.

X

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches *163term and, at a point during pregnancy, each becomes “compelling.”

With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth, ft follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

This means, on the other hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion *164during that period, except when it is necessary to preserve the life or health of the mother.

Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those “procured or attempted by medical advice for the purpose of saving the life of the mother,” sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, “saving” the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.

This conclusion makes it unnecessary for us to consider the additional challenge to the Texas statute asserted on grounds of vagueness. See United States v. Vuitch, 402 U. S., at 67-72.

XI

To summarize and to repeat:

1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life *165may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

2. The State may define the term “physician,” as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.

In Doe v. Bolton, post, p. 179, procedural requirements contained in one of the modern abortion statutes are considered. That opinion and this one, of course, are to be read together.67

This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important *166state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.

XII

Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be struck down separately, for then the State would be left with a statute proscribing all abortion procedures no matter how medically urgent the case.

Although the District Court granted appellant Roe declaratory relief, it stopped short of issuing an injunction against enforcement of the Texas statutes. The Court has recognized that different considerations enter into a federal court’s decision as to declaratory relief, on the one hand, and injunctive relief, on the other. Zwickler v. Koota, 389 U. S. 241, 252-255 (1967); Dombrowski v. Pfister, 380 U. S. 479 (1965). We are not dealing with a statute that, on its face, appears to abridge free expression, an area of particular concern under Dombrowski and refined in Younger v. Harris, 401 U. S., at 50.

We find it unnecessary to decide whether the District Court erred in withholding injunctive relief, for we assume the Texas prosecutorial authorities will give full credence to this decision that the present criminal abortion statutes of that State are unconstitutional.

The judgment of the District Court as to intervenor Hallford is reversed, and Dr. Hallford’s complaint in intervention is dismissed. In all other respects, the judg*167ment of the District Court is affirmed. Costs are allowed to the appellee.

It is so ordered.

[For concurring opinion of Mr. Chief Justice Burger, see post, p. 207.]

[For concurring opinion of Mr. Justice Douglas, see post, p. 209.]

[For dissenting opinion of Mr. Justice White, see post, p. 221.]

Mr. Justice Stewart,

concurring.

In 1963, this Court, in Ferguson v. Skrupa, 372 U. S. 726, purported to sound the death knell for the doctrine of substantive due process, a doctrine under which many-state laws had in the past been held to violate the Fourteenth Amendment. As Mr. Justice Black’s opinion for the Court in Skrupa put it: “We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.” Id., at 730.1

Barely two years later, in Griswold v. Connecticut, 381 U. S. 479, the Court held a Connecticut birth control law unconstitutional. In view of what had been so recently said in Skrupa, the Court’s opinion in Griswold understandably did its best to avoid reliance on the Due Process Clause of the Fourteenth Amendment as the ground for decision. Yet, the Connecticut law did not violate any provision of the Bill of Rights, nor any other specific provision of the Constitution.2 So it was clear *168to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the “liberty” that is protected by the Due Process Clause of the Fourteenth Amendment.3 As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such.

“In a Constitution for a free people, there can be no doubt that the meaning of 'liberty’ must be broad indeed.” Board of Regents v. Roth, 408 U. S. 564, 572. The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the “liberty” protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. See Schware v. Board of Bar Examiners, 353 U. S. 232, 238-239; Pierce v. Society of Sisters, 268 U. S. 510, 534-535; Meyer v. Nebraska, 262 U. S. 390, 399-400. Cf. Shapiro v. Thompson, 394 U. S. 618, 629-630; United States v. Guest, 383 U. S. 745, 757-758; Carrington v. Rash, 380 U. S. 89, 96; Aptheker v. Secretary of State, 378 U. S. 500, 505; Kent v. Dulles, 357 U. S. 116, 127; Bolling v. Sharpe, 347 U. S. 497, 499-500; Truax v. Raich, 239 U. S. 33, 41.

*169As Mr. Justice Harlan once wrote: “[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Poe v. Ullman, 367 U. S. 497, 543 (opinion dissenting from dismissal of appeal) (citations omitted). In the words of Mr. Justice Frankfurter, “Great concepts like . . . ‘liberty’ . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.” National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U. S. 582, 646 (dissenting opinion).

Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U. S. 1, 12; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U. S. 158, 166; Skinner v. Oklahoma, 316 U. S. 535, 541. As recently as last Term, in Eisenstadt v. Baird, 405 U. S. 438, 453, we recognized “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person *170as the decision whether to bear or beget a child.” That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. “Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters, 268 U. S. 510 (19250, or the right to teach a foreign language protected in Meyer v. Nebraska, 262 U. S. 390 (1923).” Abele v. Markle, 351 F. Supp. 224, 227 (Conn. 1972).

Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.

It is evident that the Texas abortion statute infringes that right directly. Indeed, it is difficult to imagine a more complete abridgment of a constitutional freedom than that worked by the inflexible criminal statute now in force in Texas. The question then becomes whether the state interests advanced to justify this abridgment can survive the “particularly careful scrutiny” that the Fourteenth Amendment here requires.

The asserted state interests are protection of the health and safety of the pregnant woman, and protection of the potential future human life within her. These are legitimate objectives, amply sufficient to permit a State to regulate abortions as it does other surgical procedures, and perhaps sufficient to permit a State to regulate abortions more stringently or even to prohibit them in the late stages of pregnancy. But such legislation is not before us, and I think the Court today has thoroughly demonstrated that these state interests cannot constitutionally support the broad abridgment of per*171sonal liberty worked by the existing Texas law. Accordingly, I join the Court’s opinion holding that that law is invalid under the Due Process Clause of the Fourteenth Amendment.

Mr. Justice Rehnquist,

dissenting.

The Court’s opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with those parts of it that invalidate the Texas statute in question, and therefore dissent.

I

The Court’s opinion decides that a State may impose virtually no restriction on the performance of abortions during the first trimester of pregnancy. Our previous decisions indicate that a necessary predicate for such an opinion is a plaintiff who was in her first trimester of pregnancy at some time during the pendency of her lawsuit. While a party may vindicate his own constitutional rights, he may not seek vindication for the rights of others. Moose Lodge v. Irvis, 407 U. S. 163 (1972); Sierra Club v. Morton, 405 U. S. 727 (1972). The Court’s statement of facts in this case makes clear, however, that the record in no way indicates the presence of such a plaintiff. We know only that plaintiff Roe at the time of filing her complaint was a pregnant woman; for aught that appears in this record, she may have been in her last trimester of pregnancy as of the date the complaint was filed.

Nothing in the Court’s opinion indicates that Texas might not constitutionally apply its proscription of abortion as written to a woman in that stage of pregnancy. Nonetheless, the Court uses her complaint against the Texas statute as a fulcrum for deciding that States may *172impose virtually no restrictions on medical abortions performed during the first trimester of pregnancy. In deciding such a hypothetical lawsuit, the Court departs from the longstanding admonition that it should never “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39 (1885). See also Ashwander v. TVA, 297 U. S. 288, 345 (1936) (Brandeis, J., concurring).

II

Even if there were a plaintiff in this case capable of litigating the issue which the Court decides, I would reach a conclusion opposite to that reached by the Court. I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not. “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U. S. 347 (1967).

If the Court means by the term “privacy” no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of “liberty” protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of Mr. Justice Stewart in his concurring opinion that the “liberty,” against deprivation of which without due process the Fourteenth *173Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. Williamson v. Lee Optical Co., 348 U. S. 483, 491 (1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra. But the Court’s sweeping' invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

The Court eschews the history of the Fourteenth Amendment in its reliance on the “compelling state interest” test. See Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 179 (1972) (dissenting opinion). But the Court adds a new wrinkle to this test by transposing it from the legal considerations associated with the Equal Protection Clause of the Fourteenth Amendment to this case arising under the Due Process Clause of the Fourteenth Amendment. Unless I misapprehend the consequences of this transplanting of the “compelling state interest test,” the Court’s opinion will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it.

*174While the Court’s opinion quotes from the dissent of Mr. Justice Holmes in Lochner v. New York, 198 U. S. 45, 74 (1905), the result it reaches is more closely attuned to the majority opinion of Mr. Justice Peckham in that case. As in Lochner and similar cases applying substantive due process standards to economic and social welfare legislation, the adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be “compelling.” The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U. S. 97, 105 (1934). Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 22, §§ 14, 16. By the time of the adoption of the Four*175teenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion.1 While many States have amended or updated *176their laws, 21 of the laws on the books in 1868 remain in effect today.2 Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 *177and “has remained substantially unchanged to the present time.” Ante, at 119.

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

I — I HH ) — H

Even if one were to agree that the case that the Court decides were here, and that the enunciation of the substantive constitutional law in the Court’s opinion were proper, the actual disposition of the case by the Court is still difficult to justify. The Texas statute is struck down in toto, even though the Court apparently concedes that at later periods of pregnancy Texas might impose these selfsame statutory limitations on abortion. My understanding of past practice is that a statute found *178to be invalid as applied to a particular plaintiff, but not unconstitutional as a whole, is not simply “struck down” but is, instead, declared unconstitutional as applied to the fact situation before the Court. Yick Wo v. Hopkins, 118 U. S. 356 (1886); Street v. New York, 394 U. S. 576 (1969).

For all of the foregoing reasons, I respectfully dissent.