APPENDIX A

APPENDIX A

Criminal Code of Georgia

(The italicized portions are those
held unconstitutional by the Distict Court)

CHAPTER 26-12. ABORTION.

26-1201. Criminal Abortion. Except as otherwise provided in
section 26-1202, a person commits criminal abortion when he administers any
medicine, drug or other substance whatever to any woman or when he uses any
instrument or other means whatever upon any woman with intent to produce a
miscarriage or abortion.

26-1202. Exception. (a) Section 26-1201 shall not apply to an abortion
performed by a physician duly licensed to practice medicine and surgery
pursuant to Chapter 84-9 or 84-12 of the Code of Georgia of 1933, as amended,
based upon his best clinical judgment that an abortion is necessary because:

(1) A continuation of the pregnancy would endanger the life of the
pregnant woman or would seriously and permanently injure her health; or

(2) The fetus would very likely be born with a grave, permanent, and
irremediable mental or physical defect; or

(3) The pregnancy resulted from forcible or statutory rape.

(b) No abortion is authorized or shall be performed under this section
unless each of the following conditions is met;

(1) The pregnant woman requesting the abortion certifies in writing under
oath and subject to the penalties of false swearing to the physician who
proposes to perform the abortion that she is a bona fide legal resident of the
State of Georgia.

(2) The physician certifies that he believes the woman is a bona fide
resident of this State and that he has no information which should lead him to
believe otherwise.

(3) Such physician's judgment is reduced to writing and concurred in by at
least two other physicians duly licensed to practice medicine and surgery
pursuant to Chapter 84-9 of the Code of Georgia of 1933, as amended, who
certify in writing that based upon their separate personal medical examinations
of the pregnant woman, the abortion is, in their judgment, necessary because of

SUPREME COURT OF THE UNITED STATES

SUPREME COURT OF THE UNITED STATES

No. 70-40

Mary Doe et al., Appellants,

v.

Arthur K. Bolton, as Attorney General of the State of Georgia, et al.

On Appeal from the United States District Court for the Northern District of
Georgia.

[January 22, 1973]

Mr JUSTICE BLACKMUN delivered the opinion of the Court.

In this appeal the criminal abortion statutes recently enacted in Georgia
are challenged on constitutional grounda The statutes are 26-1201 through
26-1203 of the State's Criminal Code, formulated by Georgia Laws, 1968 Session,
1249, 1277-1280. In Roe v. Wade, ante, we today have struck down, as
constitutionally defective, the Texas criminal abortion statutes that are
representative of provisions long in effect in a majority of our States. The Georgia
legislation, however, is different and merits separate consideration.

I

The statutes in question are reproduced as Appendix A, post ____.(1) As the appellants
acknowledge,(2) the
1968 statutes are patterned upon the American Law Institute's Model Penal Code,
230.3 (Proposed Official Draft, 1962), reproduced as Appendix B, post ____.
The ALI proposal has served as the model for recent legislation in
approximately one-fourth of our States.(3) The new Georgia
provisions replaced statutory law that had been in effect for more than 90
years. Georgia Laws 1876, No. 130, 2, at 113.(4) The predecessor
statute paralleled the Texas legislation considered in Roe v. Wade, ante,
and made all abortions criminal except those necessary "to preserve the
life" of the pregnant woman. The new statutes have not been tested on
constitutional grounds in the Georgia state courts.

Section 26-1201, with a referenced exception, makes abortion a crime, and
26-1203 provides that a person convicted of that crime shall be punished by
imprisonment for not less than one nor more than 10 years. Section 26-1202 (a)
states the exception and removes from 1201's definition of criminal abortion,
and thus makes noncriminal, an abortion "performed by a physician duly

SUPREME COURT OF THE UNITED STATES

SUPREME COURT OF THE UNITED STATES

No. 70-40

Mary Doe et al., Appellant

v.

Arthur K. Bolton, as Attorney General of the State of Georgia, et al.

On Appeal from United States District Court for the Northern District of
Georgia.

[January 22, 1973]

MR. JUSTICE REHNQUIST, dissenting.

The holding in Roe v. Wide, ante, that state abortion laws can
withstand constitutional scrutiny only if the States can demonstrate a
compelling state interest apparently compels the Court's close scrutiny of the
various provisions in Georgia's abortion statute. Since, as indicated by my
dissent in Wade, I view the compelling state interest standard as an
inappropriate measure of the constitutionality of state abortion laws, I
respectfully dissent from the majority's holding.

 

NOTE: Where it is deemed desirable, a syllabus (headnote) will be
released, as is being done in connection with this case, at

NOTE: Where it is deemed
desirable, a syllabus (headnote) will be released, as is being done in
connection with this case, at the time the opinion is issued. The syllabus
constitutes no part of the opinion of the Court but has been prepared by the
Reporter of Decisions for the convenience of the reader. See United States
v. Detroit Lumber Co., 200 U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

DOE et al v. BOLTON, ATTORNEY GENERAL OF GEORGIA, et al.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF GEORGIA

No. 70-40. Argued December 13, 1971 -- Reargued October 11, 1972 -- Decided
January 22, 1973

Georgia law proscribes an abortion except as performed by a duly licensed
Georgia physician when necessary in "his best clinical judgment"
because continued pregnancy would endanger a pregnant woman's life or injure
her health; the fetus would likely be born with serious defect; or the
pregnancy resulted from rape. 26-1202 (a) of Ga. Criminai Code. In addition
to a requirement that the patient be a Georgia resident and certain other
requirements, the statutory scheme poses three procedural conditions in
26-1202 (b): (1) that the abortion be performed in a hospital accredited by the
Joint Committee on Accreditation of Hospitals (JCAH); (2) that the procedure be
approved by the hospital staff abortion committee; and (3) that the performing
physician's judgment be confirmed by independent examinations of the patient by
two other licensed physicians. Appellant Doe, an indigent married Georgia
citizen, who was denied an abortion after eight weeks of pregnancy for failure
to meet any of the 26-1202 (a) conditions, sought declaratory and injunctive
relief, contending that the Geogia laws were unconstitutional. Others joining
in the complaint included Georgia-licensed physicians (who claimed that the
Georgia statutes "chilled and deterred" their practices), registered
nurses, clergymen, and social workers. Though holding that all the plaintiffs
had standing, the Distriet Court ruled that only Doe presented a justiciable
controversy. In Doe's case the court gave declaratory, but not injunctive,
relief, invalidating as an infringement of privacy and personal liberty the
limitation to the three situations specified in 26-1202 (a) and certain other
provisions but holding that the State's interest in health protection and the
existence of a "potential of independent human existence"
justified regulation through 26-1202 (b) of the "manner of performance