Connecticut statute making criminal an attempted abortion by
"any person"
held to remain fully effective against
performance of abortions by nonphysicians after
Roe v.
Wade, 410 U. S. 113, and
Doe v. Bolton, 410 U. S. 179.
Certiorari granted; 168 Conn. 266, 362 A.2d 962, vacated and
remanded.
PER CURIAM.
In 1971, a jury convicted Patrick Menillo of attempting to
procure an abortion in violation of Connecticut's criminal abortion
statute. Menillo is not a physician, and has never had any medical
training. The Connecticut Supreme Court nevertheless overturned
Menillo's conviction, holding that, under the decisions in
Roe
v. Wade, 410 U. S. 113
(1973), and
Doe v. Bolton, 410 U.
S. 179 (1973), the Connecticut statute was "null and
void." As we think the Connecticut court misinterpreted
Roe and
Doe, we grant the State's petition for
certiorari and vacate the judgment.
The statute under which Menillo was convicted makes criminal an
attempted abortion by "any person." [
Footnote 1] The Connecticut Supreme Court felt compelled
to hold this statute null and void, and thus incapable of
constitutional
Page 423 U. S. 10
application even to someone not medically qualified to perform
an abortion, because it read
Roe to have done the same
thing to the similar Texas statutes. But
Roe did not go so
far.
In
Roe, we held that Tex.Penal Code, Art. 1196, which
permitted termination of pregnancy at any stage only to save the
life of the expectant mother, unconstitutionally restricted a
woman's right to an abortion. We went on to state that, as a result
of the unconstitutionality of Art. 1196, the Texas abortion
statutes had to fall "as a unit," 410 U.S. at
410 U. S. 166,
and it is that statement which the Connecticut Supreme Court and
courts in some other States have read to require the invalidation
of their own statutes even as applied to abortions performed by
nonphysicians. [
Footnote 2] In
context, however, our statement had no such effect. Jane Roe had
sought to have an abortion "
performed by a competent, licensed
physician, under safe, clinical conditions,'" id. at
410 U. S. 120,
and our opinion recognized only her right to an abortion under
those circumstances. That the Texas statutes fell as a unit meant
only that they could not be enforced, with or without Art. 1196, in
contravention of a woman's right to a clinical abortion by
medically competent personnel. We did not hold the Texas statutes
unenforceable against a nonphysician abortionist, for the case did
not present the issue.
Moreover, the rationale of our decision supports continued
enforceability of criminal abortion statutes against nonphysicians.
Roe teaches that a State cannot restrict
Page 423 U. S. 11
a decision by a woman, with the advice of her physician, to
terminate her pregnancy during the first trimester, because neither
its interest in maternal health nor its interest in the potential
life of the fetus is sufficiently great at that stage. But the
insufficiency of the State's interest in maternal health is
predicated upon the first trimester abortion's being as safe for
the woman as normal childbirth at term, and that predicate holds
true only if the abortion is performed by medically competent
personnel under conditions insuring maximum safety for the woman.
See 410 U.S. at
410 U. S.
149-150, 163;
cf. statement of DOUGLAS, J., in
Cheaney v. Indiana, 410 U.S. 991 (1973), denying
certiorari in 259 Ind 138,
285 N.E.2d
265 (1972). Even during the first trimester of pregnancy,
therefore, prosecutions for abortions conducted by nonphysicians
infringe upon no realm of personal privacy secured by the
Constitution against state interference. And after the first
trimester, the ever-increasing state interest in maternal health
provides additional justification for such prosecutions.
As far as this Court and the Federal Constitution are concerned,
Connecticut's statute remains fully effective against performance
of abortions by nonphysicians. We express no view, of course, as to
whether the same is now true under Connecticut law. Accordingly,
the petition for certiorari is granted, the judgment of the Supreme
Court of Connecticut is vacated, and the case is remanded to that
court for its further consideration in light of this opinion.
So ordered.
MR. JUSTICE WHITE concurs in the result.
[
Footnote 1]
Conn.Gen.Stat.Rev. § 53-29:
"Any person who gives or administers to any woman, or advises or
causes her to take or use anything, or uses any means, with intent
to procure upon her a miscarriage or abortion, unless the same is
necessary to preserve her life or that of her unborn child, shall
be fined not more than one thousand dollars or imprisoned in the
State Prison not more than five years or both."
[
Footnote 2]
See, e.g., State v. Hultgren, 295 Minn. 299,
204 N.W.2d
197 (1973);
Commonwealth v. Jackson, 454 Pa. 429, 312
A.2d 13 (1973). The highest courts of other States have held that
their criminal abortion laws can continue to be applied to laymen
following
Roe and
Doe. E.g., People v.
Bricker, 389 Mich. 524,
208 N.W.2d
172 (1973);
State v. Norflett, 67 N.J. 268, 237 A.2d
609 (1975).
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