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Doe v. Bolton/Opinion of the Court

Mr. Justice Blackmun delivered the opinion of the Court.

In this appeal, the criminal abortion statutes recently enacted in Georgia are challenged on constitutional grounds. The statutes are §§ 26-1201 through 26-1203 of the State's Criminal Code, formulated by Georgia Laws, 1968 Session, pp. 1249, 1277-1280. In Roe v. Wade, ante, p. 113, we today have struck down, as constitutionally defective, the Texas criminal abortion statutes that are representative of provisions long in effect '''[p. 182]''' 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, p. 202. As the appellants acknowledge, 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, p. 205. The ALI proposal has served as the model for recent legislation in approximately one-fourth of our States. 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. The predecessor statute paralleled '''[p. 183]' the Texas legislation considered in Roe v. Wade, supra'', 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 licensed" in Georgia when, "based upon his best clinical judgment...an abortion is necessary because:

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

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

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

Section 26-1202 also requires, by numbered subdivisions of its subsection (b), that, for an abortion to be authorized '''[p. 184]''' or performed as a noncriminal procedure, additional conditions must be fulfilled. These are (1) and (2) residence of the woman in Georgia; (3) reduction to writing of the performing physician's medical judgment that an abortion is justified for one or more of the reasons specified by § 26-1202 (a), with written concurrence in that judgment by at least two other Georgia-licensed physicians, based upon their separate personal medical examinations of the woman; (4) performance of the abortion in a hospital licensed by the State Board of Health and also accredited by the Joint Commission on Accreditation of Hospitals; (5) advance approval by an abortion committee of not less than three members of the hospital's staff; (6) certifications in a rape situation; and (7), (8), and (9) maintenance and confidentiality of records. There is a provision (subsection (c)) for judicial determination of the legality of a proposed abortion on petition of the judicial circuit law officer or of a close relative, as therein defined, of the unborn child, and for expeditious hearing of that petition. There is also a provision (subsection (e)) giving a hospital the right not to admit an abortion patient and giving any physician and any hospital employee or staff member the right, on moral or religious grounds, not to participate in the procedure.

II
On April 16, 1970, Mary Doe, 23 other individuals (nine described as Georgia-licensed physicians, seven as nurses registered in the State, five as clergymen, and two as social workers), and two nonprofit Georgia corporations that advocate abortion reform instituted this federal action in the Northern District of Georgia against the State's attorney general, the district attorney of '''[p. 185]''' Fulton County, and the chief of police of the city of Atlanta. The plaintiffs sought a declaratory judgment that the Georgia abortion statutes were unconstitutional in their entirety. They also sought injunctive relief restraining the defendants and their successors from enforcing the statutes.

Mary Doe alleged:

(1) She was a 22-year-old Georgia citizen, married, and nine weeks pregnant. She had three living children. The two older ones had been placed in a foster home because of Doe's poverty and inability to care for them. The youngest, born July 19, 1969, had been placed for adoption. Her husband had recently abandoned her and she was forced to live with her indigent parents and their eight children. She and her husband, however, had become reconciled. He was a construction worker employed only sporadically. She had been a mental patient at the State Hospital. She had been advised that an abortion could be performed on her with less danger to her health than if she gave birth to the child she was carrying. She would be unable to care for or support the new child.

(2) On March 25, 1970, she applied to the Abortion Committee of Grady Memorial Hospital, Atlanta, for a therapeutic abortion under § 26-1202. Her application was denied 16 days later, on April 10, when she was eight weeks pregnant, on the ground that her situation was not one described in § 26-1202 (a).

(3) Because her application was denied, she was forced either to relinquish "her right to decide when and how many children she will bear" or to seek an abortion that was illegal under the Georgia statutes. This invaded her '''[p. 186]''' rights of privacy and liberty in matters related to family, marriage, and sex, and deprived her of the right to choose whether to bear children. This was a violation of rights guaranteed her by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The statutes also denied her equal protection and procedural due process and, because they were unconstitutionally vague, deterred hospitals and doctors from performing abortions. She sued "on her own behalf and on behalf of all others similarly situated."

A three-judge district court was convened. An offer of proof as to Doe's identity was made, but the court deemed it unnecessary to receive that proof. The case was then tried on the pleadings and interrogatories.

The District Court, per curiam, 319 F. Supp. 1048 (ND Ga. 1970), held that all the plaintiffs had standing but that only Doe presented a justiciable controversy. On the merits, the court concluded that the limitation in the Georgia statute of the "number of reasons for which an abortion may be sought," id., at 1056, improperly restricted Doe's rights of privacy articulated in Griswold v. Connecticut, 381 U.S. 479 (1965), and of "personal liberty," both of which it thought "broad enough to include the decision to abort a pregnancy," 319 F. Supp., at 1055. As a consequence, the court held invalid those portions of §§ 26-1202 (a) and (b) (3) limiting legal abortions to the three situations specified; § 26-1202 (b) (6) relating to certifications in a rape situation; and § 26-1202 (c) authorizing a court test. Declaratory relief was granted accordingly. The court, however, held '''[p. 187]' that Georgia's interest in protection of health, and the existence of a "potential of independent human existence" (emphasis in original), id., at 1055, justified state regulation of "the manner of performance as well as the quality of the final decision to abort," id.'', at 1056, and it refused to strike down the other provisions of the statutes. It denied the request for an injunction, id., at 1057.

Claiming that they were entitled to an injunction and to broader relief, the plaintiffs took a direct appeal pursuant to 28 U.S.C. § 1253. We postponed decision on jurisdiction to the hearing on the merits. 402 U.S. 941 (1971). The defendants also purported to appeal, pursuant to § 1253, but their appeal was dismissed for want of jurisdiction. 402 U.S. 936 (1971). We are advised by the appellees, Brief 42, that an alternative appeal on their part is pending in the United States Court of Appeals for the Fifth Circuit. The extent, therefore, to which the District Court decision was adverse to the defendants, that is, the extent to which portions of the Georgia statutes were held to be unconstitutional, technically is not now before us. Swarb v. Lennox, 405 U.S. 191, 201 (1972).

III
Our decision in Roe v. Wade, ante, p. 113, establishes (1) that, despite her pseudonym, we may accept as true, for this case, Mary Doe's existence and her pregnant state on April 16, 1970; (2) that the constitutional issue is substantial; (3) that the interim termination of Doe's and all other Georgia pregnancies in existence in 1970 has not rendered the case moot; and (4) that Doe presents a justiciable controversy and has standing to maintain the action.

'''[p. 188]''' Inasmuch as Doe and her class are recognized, the question whether the other appellants—physicians, nurses, clergymen, social workers, and corporations—present a justiciable controversy and have standing is perhaps a matter of no great consequence. We conclude, however, that the physician-appellants, who are Georgia-licensed doctors consulted by pregnant women, also present a justiciable controversy and do have standing despite the fact that the record does not disclose that any one of them has been prosecuted, or threatened with prosecution, for violation of the State's abortion statutes. The physician is the one against whom these criminal statutes directly operate in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief. Crossen v. Breckenridge, 446 F.2d 833, 839-840 (CA6 1971); Poe v. Menghini, 339 F. Supp. 986, 990-991 (Kan. 1972).

In holding that the physicians, while theoretically possessed of standing, did not present a justiciable controversy, the District Court seems to have relied primarily on Poe v. Ullman, 367 U.S. 497 (1961). There, a sharply divided Court dismissed an appeal from a state court on the ground that it presented no real controversy justifying the adjudication of a constitutional issue. But the challenged Connecticut statute, deemed to prohibit the giving of medical advice on the use of contraceptives, had been enacted in 1879, and, apparently with a single exception, no one had ever been prosecuted under it. Georgia's statute, in contrast, is recent and not moribund. Furthermore, it is the successor to another '''[p. 189]''' Georgia abortion statute under which, we are told, physicians were prosecuted. The present case, therefore, is closer to Epperson v. Arkansas, 393 U.S. 97 (1968), where the Court recognized the right of a school teacher, though not yet charged criminally, to challenge her State's anti-evolution statute. See also Griswold v. Connecticut, 381 U.S., at 481.

The parallel claims of the nurse, clergy, social worker, and corporation-appellants are another step removed and as to them, the Georgia statutes operate less directly. Not being licensed physicians, the nurses and the others are in no position to render medical advice. They would be reached by the abortion statutes only in their capacity as accessories or as counselor-conspirators. We conclude that we need not pass upon the status of these additional appellants in this suit, for the issues are sufficiently and adequately presented by Doe and the physician-appellants, and nothing is gained or lost by the presence or absence of the nurses, the clergymen, the social workers, and the corporations. See Roe v. Wade, ante, at 127.

IV
The appellants attack on several grounds those portions of the Georgia abortion statutes that remain after the District Court decision: undue restriction of a right to personal and marital privacy; vagueness; deprivation of substantive and procedural due process; improper restriction to Georgia residents; and denial of equal protection.

A
Roe v. Wade, supra, sets forth our conclusion that a pregnant woman does not have an absolute constitutional right to an abortion on her demand. What is said there is applicable here and need not be repeated. '''[p. 190]'''

B
The appellants go on to argue, however, that the present Georgia statutes must be viewed historically, that is, from the fact that prior to the 1968 Act an abortion in Georgia was not criminal if performed to "preserve the life" of the mother. It is suggested that the present statute, as well, has this emphasis on the mother's rights, not on those of the fetus. Appellants contend that it is thus clear that Georgia has given little, and certainly not first, consideration to the unborn child. Yet, it is the unborn child's rights that Georgia asserts in justification of the statute. Appellants assert that this justification cannot be advanced at this late date.

Appellants then argue that the statutes do not adequately protect the woman's right. This is so because it would be physically and emotionally damaging to Doe to bring a child into her poor, "fatherless" family, and because advances in medicine and medical techniques have made it safer for a woman to have a medically induced abortion than for her to bear a child. Thus, "a statute that requires a woman to carry an unwanted pregnancy to term infringes not only on a fundamental right of privacy but on the right to life itself." Brief 27.

The appellants recognize that a century ago medical knowledge was not so advanced as it is today, that the techniques of antisepsis were not known, and that any abortion procedure was dangerous for the woman. To restrict the legality of the abortion to the situation where it was deemed necessary, in medical judgment, for the preservation of the woman's life was only a natural conclusion in the exercise of the legislative judgment of that time. A State is not to be reproached, however, for a past judgmental determination made in the light of then-existing medical knowledge. It is perhaps unfair to argue, as the appellants do, that because the early focus '''[p. 191]''' was on the preservation of the woman's life, the State's present professed interest in the protection of embryonic and fetal life is to be downgraded. That argument denies the State the right to readjust its views and emphases in the light of the advanced knowledge and techniques of the day.

C
Appellants argue that § 26-1202 (a) of the Georgia statutes, as it has been left by the District Court's decision, is unconstitutionally vague. This argument centers on the proposition that, with the District Court's having struck down the statutorily specified reasons, it still remains a crime for a physician to perform an abortion except when, as § 26-1202 (a) reads, it is "based upon his best clinical judgment that an abortion is necessary." The appellants contend that the word "necessary" does not warn the physician of what conduct is proscribed; that the statute is wholly without objective standards and is subject to diverse interpretation; and that doctors will choose to err on the side of caution and will be arbitrary.

The net result of the District Court's decision is that the abortion determination, so far as the physician is concerned, is made in the exercise of his professional, that is, his "best clinical," judgment in the light of all the attendant circumstances. He is not now restricted to the three situations originally specified. Instead, he may range farther afield wherever his medical judgment, properly and professionally exercised, so dictates and directs him.

The vagueness argument is set at rest by the decision in United States v. Vuitch, 402 U.S. 62, 71-72 (1971), where the issue was raised with respect to a District of Columbia statute making abortions criminal "unless the same were done as necessary for the preservation of the mother's life or health and under the direction of a competent licensed practitioner of medicine." That statute has been construed to bear upon psychological as '''[p. 192]''' well as physical well-being. This being so, the Court concluded that the term "health" presented no problem of vagueness. "Indeed, whether a particular operation is necessary for a patient's physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered." Id., at 72. This conclusion is equally applicable here. Whether, in the words of the Georgia statute, "an abortion is necessary" is a professional judgment that the Georgia physician will be called upon to make routinely.

We agree with the District Court, 319 F. Supp., at 1058, that the medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman's age—relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.

D
The appellants next argue that the District Court should have declared unconstitutional three procedural demands of the Georgia statute: (1) that the abortion be performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals: (2) that the procedure be approved by the hospital staff abortion committee; and (3) that the performing physician's judgment be confirmed by the independent examinations of the patient by two other licensed physicians. The appellants attack these provisions not only on the ground that they unduly restrict the woman's right of privacy, but also on procedural due process and equal protection grounds. The physician-appellants also argue that, by subjecting a doctor's individual medical judgment to '''[p. 193]''' committee approval and to confirming consultations, the statute impermissibly restricts the physician's right to practice his profession and deprives him of due process.

1
JCAH accreditation. The Joint Commission on Accreditation of Hospitals is an organization without governmental sponsorship or overtones. No question whatever is raised concerning the integrity of the organization or the high purpose of the accreditation process. That process, however, has to do with hospital standards generally and has no present particularized concern with abortion as a medical or surgical procedure. In Georgia, there is no restriction on the performance of non-abortion surgery in a hospital not yet accredited by the JCAH so long as other requirements imposed by the State, such as licensing of the hospital and of the operating surgeon, are met. See Georgia Code §§ 88-1901 (a) '''[p. 194]''' and 88-1905 (1971) and 84-907 (Supp. 1971). Furthermore, accreditation by the Commission is not granted until a hospital has been in operation at least one year. The Model Penal Code, § 230.3, Appendix B hereto, contains no requirement for JCAH accreditation. And the Uniform Abortion Act (Final Draft, Aug. 1971), approved by the American Bar Association in February 1972, contains no JCAH-accredited hospital specification. Some courts have held that a JCAH-accreditation requirement is an overbroad infringement of fundamental rights because it does not relate to the particular medical problems and dangers of the abortion operation. E. g., Poe v. Menghini, 339 F. Supp., at 993-994.

We hold that the JCAH-accreditation requirement does not withstand constitutional scrutiny in the present context. It is a requirement that simply is not "based on differences that are reasonably related to the purposes of the Act in which it is found." Morey v. Doud, 354 U.S. 457, 465 (1957).

This is not to say that Georgia may not or should not, from and after the end of the first trimester, adopt '''[p. 195]''' standards for licensing all facilities where abortions may be performed so long as those standards are legitimately related to the objective the State seeks to accomplish. The appellants contend that such a relationship would be lacking even in a lesser requirement that an abortion be performed in a licensed hospital, as opposed to a facility, such as a clinic, that may be required by the State to possess all the staffing and services necessary to perform an abortion safely (including those adequate to handle serious complications or other emergency, or arrangements with a nearby hospital to provide such services). Appellants and various amici have presented us with a mass of data purporting to demonstrate that some facilities other than hospitals are entirely adequate to perform abortions if they possess these qualifications. The State, on the other hand, has not presented persuasive data to show that only hospitals meet its acknowledged interest in insuring the quality of the operation and the full protection of the patient. We feel compelled to agree with appellants that the State must show more than it has in order to prove that only the full resources of a licensed hospital, rather than those of some other appropriately licensed institution, satisfy these health interests. We hold that the hospital requirement of the Georgia law, because it fails to exclude the first trimester of pregnancy, see Roe v. Wade, ante, at 163, is also invalid. In so holding we naturally express no opinion on the medical judgment involved in any particular case, that is, whether the patient's situation is such that an abortion should be performed in a hospital, rather than in some other facility.

2
Committee approval. The second aspect of the appellants' procedural attack relates to the hospital abortion committee and to the pregnant woman's asserted '''[p. 196]''' lack of access to that committee. Relying primarily on Goldberg v. Kelly, 397 U.S. 254 (1970), concerning the termination of welfare benefits, and Wisconsin v. Constantineau, 400 U.S. 433 (1971), concerning the posting of an alcoholic's name, Doe first argues that she was denied due process because she could not make a presentation to the committee. It is not clear from the record, however, whether Doe's own consulting physician was or was not a member of the committee or did or did not present her case, or, indeed, whether she herself was or was not there. We see nothing in the Georgia statute that explicitly denies access to the committee by or on behalf of the woman. If the access point alone were involved, we would not be persuaded to strike down the committee provision on the unsupported assumption that access is not provided.

Appellants attack the discretion the statute leaves to the committee. The most concrete argument they advance is their suggestion that it is still a badge of infamy "in many minds" to bear an illegitimate child, and that the Georgia system enables the committee members' personal views as to extramarital sex relations, and punishment therefor, to govern their decisions. This approach obviously is one founded on suspicion and one that discloses a lack of confidence in the integrity of physicians. To say that physicians will be guided in their hospital committee decisions by their predilections on extramarital sex unduly narrows the issue to pregnancy outside marriage. (Doe's own situation did not involve extramarital sex and its product.) The appellants' suggestion is necessarily somewhat degrading to the conscientious physician, particularly the obstetrician, whose professional activity is concerned with the physical and mental welfare, the woes, the emotions, and the concern of his female patients. He, perhaps more than anyone else, is knowledgeable in this area of patient care, and he is aware of human frailty, '''[p. 197]''' so-called "error," and needs. The good physician—despite the presence of rascals in the medical profession, as in all others, we trust that most physicians are "good"--will have sympathy and understanding for the pregnant patient that probably are not exceeded by those who participate in other areas of professional counselling.

It is perhaps worth noting that the abortion committee has a function of its own. It is a committee of the hospital and it is composed of members of the institution's medical staff. The membership usually is a changing one. In this way, its work burden is shared and is more readily accepted. The committee's function is protective. It enables the hospital appropriately to be advised that its posture and activities are in accord with legal requirements. It is to be remembered that the hospital is an entity and that it, too, has legal rights and legal obligations.

Saying all this, however, does not settle the issue of the constitutional propriety of the committee requirement. Viewing the Georgia statute as a whole, we see no constitutionally justifiable pertinence in the structure for the advance approval by the abortion committee. With regard to the protection of potential life, the medical judgment is already completed prior to the committee stage, and review by a committee once removed from diagnosis is basically redundant. We are not cited to any other surgical procedure made subject to committee approval as a matter of state criminal law. The woman's right to receive medical care in accordance with her licensed physician's best judgment and the physician's right to administer it are substantially limited by this statutorily imposed overview. And the hospital itself is otherwise fully protected. Under § 26-1202 (e), the hospital is free not to admit a patient for an abortion. It is even free not to have an abortion committee. Further, a physician or any other employee has the right to refrain, '''[p. 198]''' for moral or religious reasons, from participating in the abortion procedure. These provisions obviously are in the statute in order to afford appropriate protection to the individual and to the denominational hospital. Section 26-1202 (e) affords adequate protection to the hospital, and little more is provided by the committee prescribed by § 26-1202 (b) (5).

We conclude that the interposition of the hospital abortion committee is unduly restrictive of the patient's rights and needs that, at this point, have already been medically delineated and substantiated by her personal physician. To ask more serves neither the hospital nor the State.

3
Two-doctor concurrence. The third aspect of the appellants' attack centers on the "time and availability of adequate medical facilities and personnel." It is said that the system imposes substantial and irrational roadblocks and "is patently unsuited" to prompt determination of the abortion decision. Time, of course, is critical in abortion. Risks during the first trimester of pregnancy are admittedly lower than during later months.

The appellants purport to show by a local study of Grady Memorial Hospital (serving indigent residents in Fulton and DeKalb Counties) that the "mechanics of the system itself forced...discontinuance of the abortion process" because the median time for the workup was 15 days. The same study shows, however, that 27% of the candidates for abortion were already 13 or more weeks pregnant at the time of application, that is, they were at the end of or beyond the first trimester when they made their applications. It is too much to say, as appellants do, that these particular persons "were victims of a system over which they [had] no control." If higher risk was incurred because of abortions in the '''[p. 199]''' second rather than the first trimester, much of that risk was due to delay in application, and not to the alleged cumbersomeness of the system. We note, in passing, that appellant Doe had no delay problem herself; the decision in her case was made well within the first trimester.

It should be manifest that our rejection of the accredited-hospital requirement and, more important, of the abortion committee's advance approval eliminates the major grounds of the attack based on the system's delay and the lack of facilities. There remains, however, the required confirmation by two Georgia-licensed physicians in addition to the recommendation of the pregnant woman's own consultant (making under the statute, a total of six physicians involved, including the three on the hospital's abortion committee). We conclude that this provision, too, must fall.

The statute's emphasis, as has been repetitively noted, is on the attending physician's "best clinical judgment that an abortion is necessary." That should be sufficient. The reasons for the presence of the confirmation step in the statute are perhaps apparent, but they are insufficient to withstand constitutional challenge. Again, no other voluntary medical or surgical procedure for which Georgia requires confirmation by two other physicians has been cited to us. If a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment. If he fails in this, professional censure and deprivation of his license are available remedies. Required acquiescence by co-practitioners has no rational connection with a patient's needs and unduly infringes on the physician's right to practice. The attending physician will know when a consultation is advisable—the doubtful situation, the need for assurance when the medical decision is a delicate one, and the like. Physicians have followed this routine historically and '''[p. 200]''' know its usefulness and benefit for all concerned. It is still true today that "[r]eliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he [the physician] possesses the requisite qualifications." Dent v. West Virginia, 129 U.S. 114, 122-123 (1889). See United States v. Vuitch, 402 U.S., at 71.

E
The appellants attack the residency requirement of the Georgia law, §§ 26-1202 (b) (1) and (b) (2), as violative of the right to travel stressed in Shapiro v. Thompson, 394 U.S. 618, 629-631 (1969), and other cases. A requirement of this kind, of course, could be deemed to have some relationship to the availability of post-procedure medical care for the aborted patient.

Nevertheless, we do not uphold the constitutionality of the residence requirement. It is not based on any policy of preserving state-supported facilities for Georgia residents, for the bar also applies to private hospitals and to privately retained physicians. There is no intimation, either, that Georgia facilities are utilized to capacity in caring for Georgia residents. Just as the Privileges and Immunities Clause, Const. Art. IV, § 2, protects persons who enter other States to ply their trade, Ward v. Maryland, 12 Wall. 418, 430 (1871); Blake v. McClung, 172 U.S. 239, 248-256 (1898), so must it protect persons who enter Georgia seeking the medical services that are available there. See Toomer v. Witsell, 334 U.S. 385, 396-397 (1948). A contrary holding would mean that a State could limit to its own residents the general medical care available within its borders. This we could not approve.

F
The last argument on this phase of the case is one that often is made, namely, that the Georgia system is violative of equal protection because it discriminates against the poor. The appellants do not urge that abortions '''[p. 201]''' should be performed by persons other than licensed physicians, so we have no argument that because the wealthy can better afford physicians, the poor should have non-physicians made available to them. The appellants acknowledged that the procedures are "nondiscriminatory in...express terms" but they suggest that they have produced invidious discriminations. The District Court rejected this approach out of hand. 319 F. Supp., at 1056. It rests primarily on the accreditation and approval and confirmation requirements, discussed above, and on the assertion that most of Georgia's counties have no accredited hospital. We have set aside the accreditation, approval, and confirmation requirements, however, and with that, the discrimination argument collapses in all significant aspects.

V
The appellants complain, finally, of the District Court's denial of injunctive relief. A like claim was made in Roe v. Wade, ante, p. 113. We declined decision there insofar as injunctive relief was concerned, and we decline it here. We assume that Georgia's prosecutorial authorities will give full recognition to the judgment of this Court.

In summary, we hold that the JCAH-accredited hospital provision and the requirements as to approval by the hospital abortion committee, as to confirmation by two independent physicians, and as to residence in Georgia are all violative of the Fourteenth Amendment. Specifically, the following portions of § 26-1202 (b), remaining after the District Court's judgment, are invalid:

(1) Subsections (1) and (2).

(2) That portion of Subsection (3) following the words "[s]uch physician's judgment is reduced to writing."

(3) Subsections (4) and (5).

'''[p. 202]''' The judgment of the District Court is modified accordingly and, as so modified, is affirmed. Costs are allowed to the appellants.

APPENDIX A TO OPINION OF THE COURT
Criminal Code of Georgia

(The italicized portions are those held unconstitutional by the District 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 '''[p. 203]''' 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 one or more of the reasons enumerated above.

(4) Such abortion is performed in a hospital licensed by the State Board of Health and accredited by the Joint Commission on Accreditation of Hospitals.

(5) The performance of the abortion has been approved in advance by a committee of the medical staff of the hospital in which the operation is to be performed. This committee must be one established and maintained in accordance with the standards promulgated by the Joint Commission on the Accreditation of Hospitals, and its approval must be by a majority vote of a membership of not less than three members of the hospital's staff; the physician proposing to perform the operation may not be counted as a member of the committee for this purpose.

''(6) If the proposed abortion is considered necessary because the woman has been raped, the woman makes a written statement under oath, and subject to the penalties of false swearing, of the date, time and place of the rape and the name of the rapist, if known. There must be attached to this statement a certified copy of any report of the rape made by any law enforcement officer or agency and a statement by the solicitor general of the '[p. 204]' judicial circuit where the rape occurred or allegedly occurred that, according to his best information, there is probable cause to believe that the rape did occur.''

(7) Such written opinions, statements, certificates, and concurrences are maintained in the permanent files of such hospital and are available at all reasonable times to the solicitor general of the judicial circuit in which the hospital is located.

(8) A copy of such written opinions, statements, certificates, and concurrences is filed with the Director of the State Department of Public Health within 10 days after such operation is performed.

(9) All written opinions, statements, certificates, and concurrences filed and maintained pursuant to paragraphs (7) and (8) of this subsection shall be confidential records and shall not be made available for public inspection at any time.

''(c) Any solicitor general of the judicial circuit in which an abortion is to be performed under this section, or any person who would be a relative of the child within the second degree of consanguinity, may petition the superior court of the county in which the abortion is to be performed for a declaratory judgment whether the performance of such abortion would violate any constitutional or other legal rights of the fetus. Such solicitor general may also petition such court for the purpose of taking issue with compliance with the requirements of this section. The physician who proposes to perform the abortion and the pregnant woman shall be respondents. The petition shall be heard expeditiously and if the court adjudges that such abortion would violate the constitutional or other legal rights of the fetus, the court shall so declare and shall restrain the physician from performing the abortion.''

(d) If an abortion is performed in compliance with this section, the death of the fetus shall not give rise to any claim for wrongful death.

'''[p. 205]''' (e) Nothing in this section shall require a hospital to admit any patient under the provisions hereof for the purpose of performing an abortion, nor shall any hospital be required to appoint a committee such as contemplated under subsection (b) (5). A physician, or any other person who is a member of or associated with the staff of a hospital, or any employee of a hospital in which an abortion has been authorized, who shall state in writing an objection to such abortion on moral or religious grounds shall not be required to participate in the medical procedures which will result in the abortion, and the refusal of any such person to participate therein shall not form the basis of any claim for damages on account of such refusal or for any disciplinary or recriminatory action against such person.

26-1203. Punishment. A person convicted of criminal abortion shall be punished by imprisonment for not less than one nor more than 10 years.

APPENDIX B TO OPINION OF THE COURT
American Law Institute

Model Penal Code

Section 230.3. Abortion.

(1) Unjustified Abortion. A person who purposely and unjustifiably terminates the pregnancy of another otherwise than by a live birth commits a felony of the third degree or, where the pregnancy has continued beyond the twenty-sixth week, a felony of the second degree.

(2) Justifiable Abortion. A licensed physician is justified in terminating a pregnancy if he believes there is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother or that the child would be born with grave physical or mental defect, or that the pregnancy resulted from rape, incest, or other felonious intercourse. All '''[p. 206]]''' illicit intercourse with a girl below the age of 16 shall be deemed felonious for purposes of this subsection. Justifiable abortions shall be performed only in a licensed hospital except in case of emergency when hospital facilities are unavailable. [Additional exceptions from the requirement of hospitalization may be incorporated here to take account of situations in sparsely settled areas where hospitals are not generally accessible.]

(3) Physicians' Certificates; Presumption from Non-Compliance. No abortion shall be performed unless two physicians, one of whom may be the person performing the abortion, shall have certified in writing the circumstances which they believe to justify the abortion. Such certificate shall be submitted before the abortion to the hospital where it is to be performed and, in the case of abortion following felonious intercourse, to the prosecuting attorney or the police. Failure to comply with any of the requirements of this Subsection gives rise to a presumption that the abortion was unjustified.

(4) Self-Abortion. A woman whose pregnancy has continued beyond the twenty-sixth week commits a felony of the third degree if she purposely terminates her own pregnancy otherwise than by a live birth, or if she uses instruments, drugs or violence upon herself for that purpose. Except as justified under Subsection (2), a person who induces or knowingly aids a woman to use instruments, drugs or violence upon herself for the purpose of terminating her pregnancy otherwise than by a live birth commits a felony of the third degree whether or not the pregnancy has continued beyond the twenty-sixth week.

(5) Pretended Abortion. A person commits a felony of the third degree if, representing that it is his purpose to perform an abortion, he does an act adapted to cause abortion in a pregnant woman although the woman is in fact not pregnant, or the actor does not believe she is. '''[p. 207]''' A person charged with unjustified abortion under Sub-section (1) or an attempt to commit that offense may be convicted thereof upon proof of conduct prohibited by this Subsection.

(6) Distribution of Abortifacients. A person who sells, offers to sell, possesses with intent to sell, advertises, or displays for sale anything specially designed to terminate a pregnancy, or held out by the actor as useful for that purpose, commits a misdemeanor, unless:

(a) the sale, offer or display is to a physician or druggist or to an intermediary in a chain of distribution to physicians or druggists; or

(b) the sale is made upon prescription or order of a physician; or

(c) the possession is with intent to sell as authorized in paragraphs (a) and (b); or

(d) the advertising is addressed to persons named in paragraph (a) and confined to trade or professional channels not likely to reach the general public.

(7) Section Inapplicable to Prevention of Pregnancy. Nothing in this Section shall be deemed applicable to the prescription, administration or distribution of drugs or other substances for avoiding pregnancy, whether by preventing implantation of a fertilized ovum or by any other method that operates before, at or immediately after fertilization.

title: Doe v. Bolton/Opinion of the Court


text:
Doe v. Bolton/Concurrence Burger

Mr. Chief Justice Burger, concurring.

I agree that, under the Fourteenth Amendment to the Constitution, the abortion statutes of Georgia and Texas impermissibly limit the performance of abortions necessary to protect the health of pregnant women, using '''[p. 208]''' the term health in its broadest medical context. See United States v. Vuitch, 402 U.S. 62, 71-72 (1971). I am somewhat troubled that the Court has taken notice of various scientific and medical data in reaching its conclusion; however, I do not believe that the Court has exceeded the scope of judicial notice accepted in other contexts.

In oral argument, counsel for the State of Texas informed the Court that early abortion procedures were routinely permitted in certain exceptional cases, such as nonconsensual pregnancies resulting from rape and incest. In the face of a rigid and narrow statute, such as that of Texas, no one in these circumstances should be placed in a posture of dependence on a prosecutorial policy or prosecutorial discretion. Of course, States must have broad power, within the limits indicated in the opinions, to regulate the subject of abortions, but where the consequences of state intervention are so severe, uncertainty must be avoided as much as possible. For my part, I would be inclined to allow a State to require the certification of two physicians to support an abortion, but the Court holds otherwise. I do not believe that such a procedure is unduly burdensome, as are the complex steps of the Georgia statute, which require as many as six doctors and the use of a hospital certified by the JCAH.

I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand.

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Doe v. Bolton/Concurrence Burger


text:
Doe v. Bolton/Concurrence Douglas

'''[p. 209]''' Mr. Justice Douglas, concurring.

While I join the opinion of the Court, I add a few words.

I
The questions presented in the present cases go far beyond the issues of vagueness, which we considered in United States v. Vuitch, 402 U.S. 62. They involve the right of privacy, one aspect of which we considered in Griswold v. Connecticut, 381 U.S. 479, 484, when we held that various guarantees in the Bill of Rights create zones of privacy.

'''[p. 210]' The Griswold'' case involved a law forbidding the use of contraceptives. We held that law as applied to married people unconstitutional:

"We deal with a right of privacy older than the Bill of Rights--older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred." Id., at 486.

The District Court in Doe held that Griswold and related cases "establish a Constitutional right to privacy broad enough to encompass the right of a woman to terminate an unwanted pregnancy in its early stages, by obtaining an abortion." 319 F. Supp. 1048, 1054.

The Supreme Court of California expressed the same view in People v. Belous, 71 Cal. 2d 954, 963, 458 P.2d 194, 199.

The Ninth Amendment obviously does not create federally enforceable rights. It merely says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." But a catalogue of these rights includes customary, traditional, and time-honored rights, amenities, privileges, and immunities that come within the sweep of "the Blessings of Liberty" mentioned in the preamble to the Constitution. Many of them, in my view, come '''[p. 211]''' within the meaning of the term "liberty" as used in the Fourteenth Amendment.

First is the autonomous control over the development and expression of one's intellect, interests, tastes, and personality.

These are rights protected by the First Amendment and, in my view, they are absolute, permitting of no exceptions. See Terminiello v. Chicago, 337 U.S. 1; Roth v. United States, 354 U.S. 476, 508 (dissent); Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 697 (concurring); New York Times Co. v. Sullivan, 376 U.S. 254, 293 (Black, J., concurring, in which I joined). The Free Exercise Clause of the First Amendment is one facet of this constitutional right. The right to remain silent as respects one's own beliefs, Watkins v. United States, 354 U.S. 178, 196-199, is protected by the First and the Fifth. The First Amendment grants the privacy of first-class mail, United States v. Van Leeuwen, 397 U.S. 249, 253. All of these aspects of the right of privacy are rights "retained by the people" in the meaning of the Ninth Amendment.

Second is freedom of choice in the basic decisions of one's life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.

These rights, unlike those protected by the First Amendment, are subject to some control by the police power. Thus, the Fourth Amendment speaks only of "unreasonable searches and seizures" and of "probable cause." These rights are "fundamental," and we have held that in order to support legislative action the statute must be narrowly and precisely drawn and that a "compelling state interest" must be shown in support of the limitation. E. g., Kramer v. Union Free School District, 395 U.S. 621; Shapiro v. Thompson, 394 U.S. 618; '''[p. 212]' Carrington v. Rash, 380 U.S. 89; Sherbert v. Verner, 374 U.S. 398; NAACP v. Alabama'', 357 U.S. 449.

The liberty to marry a person of one's own choosing, Loving v. Virginia, 388 U.S. 1; the right of procreation, Skinner v. Oklahoma, 316 U.S. 535; the liberty to direct the education of one's children, Pierce v. Society of Sisters, 268 U.S. 510, and the privacy of the marital relation, Griswold v. Connecticut, supra, are in this category. '''[p. 213]' Only last Term in Eisenstadt v. Baird, 405 U.S. 438, another contraceptive case, we expanded the concept of Griswold'' by saying:

"It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. 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." Id., at 453.

This right of privacy was called by Mr. Justice Brandeis the right "to be let alone." Olmstead v. United States, 277 U.S. 438, 478 (dissenting opinion). That right includes the privilege of an individual to plan his own affairs, for, "'outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.'" Kent v. Dulles, 357 U.S. 116, 126.

Third is the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf.

These rights, though fundamental, are likewise subject to regulation on a showing of "compelling state interest." We stated in Papachristou v. City of Jacksonville, 405 U.S. 156, 164, that walking, strolling, and wandering "are historically part of the amenities of life as we have known them." As stated in Jacobson v. Massachusetts, 197 U.S. 11, 29:

"There is, of course, a sphere within which the individual may assert the supremacy of his own will [p. 214] and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will."

In Union Pacific R. Co. v. Botsford, 141 U.S. 250, 252, the Court said, "The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow."

In Terry v. Ohio, 392 U.S. 1, 8-9, the Court, in speaking of the Fourth Amendment stated, "This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs."

Katz v. United States, 389 U.S. 347, 350, emphasizes that the Fourth Amendment "protects individual privacy against certain kinds of governmental intrusion."

In Meyer v. Nebraska, 262 U.S. 390, 399, the Court said:

"Without doubt, [liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."

The Georgia statute is at war with the clear message of these cases--that a woman is free to make the basic decision whether to bear an unwanted child. Elaborate argument is hardly necessary to demonstrate that childbirth may deprive a woman of her preferred lifestyle and force upon her a radically different and undesired future. For example, rejected applicants under the Georgia statute are required to endure the '''[p. 215]''' discomforts of pregnancy; to incur the pain, higher mortality rate, and aftereffects of childbirth; to abandon educational plans; to sustain loss of income; to forgo the satisfactions of careers; to tax further mental and physical health in providing child care; and, in some cases, to bear the lifelong stigma of unwed motherhood, a badge which may haunt, if not deter, later legitimate family relationships.

II
Such reasoning is, however, only the beginning of the problem. The State has interests to protect. Vaccinations to prevent epidemics are one example, as Jacobson, supra, holds. The Court held that compulsory sterilization of imbeciles afflicted with hereditary forms of insanity or imbecility is another. Buck v. Bell, 274 U.S. 200. Abortion affects another. While childbirth endangers the lives of some women, voluntary abortion at any time and place regardless of medical standards would impinge on a rightful concern of society. The woman's health is part of that concern; as is the life of the fetus after quickening. These concerns justify the State in treating the procedure as a medical one.

One difficulty is that this statute as construed and applied apparently does not give full sweep to the "psychological as well as physical well-being" of women patients which saved the concept "health" from being void for vagueness in United States v. Vuitch, 402 U.S., at 72. But, apart from that, Georgia's enactment has a constitutional infirmity because, as stated by the District Court, it "limits the number of reasons for which an abortion may be sought." I agree with the holding of the District Court, "This the State may not do, because such action unduly restricts a decision sheltered by the Constitutional right to privacy." 319 F. Supp., at 1056.

The vicissitudes of life produce pregnancies which may be unwanted, or which may impair "health" in '''[p. 216]' the broad Vuitch'' sense of the term, or which may imperil the life of the mother, or which in the full setting of the case may create such suffering, dislocations, misery, or tragedy as to make an early abortion the only civilized step to take. These hardships may be properly embraced in the "health" factor of the mother as appraised by a person of insight. Or they may be part of a broader medical judgment based on what is "appropriate" in a given case, though perhaps not "necessary" in a strict sense.

The "liberty" of the mother, though rooted as it is in the Constitution, may be qualified by the State for the reasons we have stated. But where fundamental personal rights and liberties are involved, the corrective legislation must be "narrowly drawn to prevent the supposed evil," Cantwell v. Connecticut, 310 U.S. 296, 307, and not be dealt with in an "unlimited and indiscriminate" manner. Shelton v. Tucker, 364 U.S. 479, 490. And see Talley v. California, 362 U.S. 60. Unless regulatory measures are so confined and are addressed to the specific areas of compelling legislative concern, the police power would become the great leveler of constitutional rights and liberties.

There is no doubt that the State may require abortions to be performed by qualified medical personnel. The legitimate objective of preserving the mother's health clearly supports such laws. Their impact upon the woman's privacy is minimal. But the Georgia statute outlaws virtually all such operations--even in the earliest stages of pregnancy. In light of modern medical evidence suggesting that an early abortion is safer healthwise than childbirth itself, it cannot be seriously '''[p. 217]''' urged that so comprehensive a ban is aimed at protecting the woman's health. Rather, this expansive proscription of all abortions along the temporal spectrum can rest only on a public goal of preserving both embryonic and fetal life.

The present statute has struck the balance between the woman's and the State's interests wholly in favor of the latter. I am not prepared to hold that a State may equate, as Georgia has done, all phases of maturation preceding birth. We held in Griswold that the States may not preclude spouses from attempting to avoid the joinder of sperm and egg. If this is true, it is difficult to perceive any overriding public necessity which might attach precisely at the moment of conception. As Mr. Justice Clark has said:

"To say that life is present at conception is to give recognition to the potential, rather than the actual. The unfertilized egg has life, and if fertilized, it takes on human proportions. But the law deals in reality, not obscurity--the known rather than the unknown. When sperm meets egg life may eventually form, but quite often it does not. The law does not deal in speculation. The phenomenon of [p. 218] life takes time to develop, and until it is actually present, it cannot be destroyed. Its interruption prior to formation would hardly be homicide, and as we have seen, society does not regard it as such. The rites of Baptism are not performed and death certificates are not required when a miscarriage occurs. No prosecutor has ever returned a murder indictment charging the taking of the life of a fetus. This would not be the case if the fetus constituted human life."

In summary, the enactment is overbroad. It is not closely correlated to the aim of preserving prenatal life. In fact, it permits its destruction in several cases, including pregnancies resulting from sex acts in which unmarried females are below the statutory age of consent. At the same time, however, the measure broadly proscribes aborting other pregnancies which may cause severe mental disorders. Additionally, the statute is overbroad because it equates the value of embryonic life immediately after conception with the worth of life immediately before birth.

III
Under the Georgia Act, the mother's physician is not the sole judge as to whether the abortion should be performed. Two other licensed physicians must concur in his judgment. Moreover, the abortion must be performed in a licensed hospital; and the abortion must be '''[p. 219]''' approved in advance by a committee of the medical staff of that hospital.

Physicians, who speak to us in Doe through an amicus brief, complain of the Georgia Act's interference with their practice of their profession.

The right of privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relationship.

It is one thing for a patient to agree that her physician may consult with another physician about her case. It is quite a different matter for the State compulsorily to impose on that physician-patient relationship another layer or, as in this case, still a third layer of physicians. The right of privacy--the right to care for one's health and person and to seek out a physician of one's own choice protected by the Fourteenth Amendment--becomes only a matter of theory, not a reality, when a multiple-physician-approval system is mandated by the State.

The State licenses a physician. If he is derelict or faithless, the procedures available to punish him or to deprive him of his license are well known. He is entitled to procedural due process before professional disciplinary sanctions may be imposed. See In re Ruffalo, 390 U.S. 544. Crucial here, however, is state-imposed control over the medical decision whether pregnancy should be interrupted. The good-faith decision of the patient's chosen physician is overridden and the final decision passed on to others in whose selection the patient has no part. This is a total destruction of the right of privacy between physician and patient and the intimacy of relation which that entails.

The right to seek advice on one's health and the right to place reliance on the physician of one's choice are '''[p. 220]''' basic to Fourteenth Amendment values. We deal with fundamental rights and liberties, which, as already noted, can be contained or controlled only by discretely drawn legislation that preserves the "liberty" and regulates only those phases of the problem of compelling legislative concern. The imposition by the State of group controls over the physician-patient relationship is not made on any medical procedure apart from abortion, no matter how dangerous the medical step may be. The oversight imposed on the physician and patient in abortion cases denies them their "liberty," viz., their right of privacy, without any compelling, discernible state interest.

Georgia has constitutional warrant in treating abortion as a medical problem. To protect the woman's right of privacy, however, the control must be through the physician of her choice and the standards set for his performance.

The protection of the fetus when it has acquired life is a legitimate concern of the State. Georgia's law makes no rational, discernible decision on that score. For under the Code, the developmental stage of the fetus is irrelevant when pregnancy is the result of rape, when the fetus will very likely be born with a permanent defect, or when a continuation of the pregnancy will endanger the life of the mother or permanently injure her health. When life is present is a question we do not try to resolve. While basically a question for medical experts, as stated by Mr. Justice Clark, it is, of course, caught up in matters of religion and morality.

In short, I agree with the Court that endangering the life of the woman or seriously and permanently injuring '''[p. 221]''' her health are standards too narrow for the right of privacy that is at stake.

I also agree that the superstructure of medical supervision which Georgia has erected violates the patient's right of privacy inherent in her choice of her own physician.

title: Doe v. Bolton/Concurrence Douglas


text:
Doe v. Bolton/Dissent White

Mr. Justice White, with whom Mr. Justice Rehnquist joins, dissenting.

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons--convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

The Court for the most part sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers '''[p. 222]''' and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.

It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women '''[p. 223]''' whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U.S. 62 (1971), dictates reversal of the judgment of the District Court.

Likewise, because Georgia may constitutionally forbid abortions to putative mothers who, like the plaintiff in this case, do not fall within the reach of § 26-1202 (a) of its criminal code, I have no occasion, and the District Court had none, to consider the constitutionality of the procedural requirements of the Georgia statute as applied to those pregnancies posing substantial hazards to either life or health. I would reverse the judgment of the District Court in the Georgia case.

title: Doe v. Bolton/Dissent White


text:
Doe v. Bolton/Dissent Rehnquist

Mr. Justice Rehnquist, dissenting.

The holding in Roe v. Wade, ante, p. 113, that state abortion laws can withstand constitutional scrutiny only if the State 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.

title: Doe v. Bolton/Dissent Rehnquist


text:
Page:A Compendium of Irish Biography.djvu/94

 minister, lie separated from that body on the ground that the Bible should be the sole creed of the church. With his father he established several congregations, uniting with the Baptists, but protesting against all creeds. In 1827 they and their followers were excluded from fellowship by that body, and organised themselves into a separate body under the name of "Disciples of Christ," more commonly known as Campbellites. In 1867 their numbers in the United States were estimated at 424,500, chiefly in the northern and western States. In 1823 Mr. Campbell commenced the publication of the Christian Baptist, afterwards merged in the Millennial Harbinger, the recognised organ of the sect. He also published numerous theological works, and engaged in several public discussions. In 1840 he founded a college at Bethany, West Virginia: there he died, 4th March 1866, aged 79. Drake styles him: "A man of strong intellect, fine scholarship, and great logical power." He was an apologist for negro slavery, and maintained that the holding of slaves should not disqualify for church membership.

Campian [sic], Edmund, an English writer, author of a well-known history of Ireland, was born in London in 1540. He won distinction at Oxford, and went to Ireland in 1568, where he collected materials for his History, published in 1571. Suspected of Catholicism, he fled to England, and eventually to the Low Countries, where at Douay, in 1571, he openly renounced Protestantism. He was admitted to the order of Jesuits, and taught at several universities on the Continent. Sent to England in 1580, he was active in the dissemination of his principles. His work Rabsaces Romanus attracted considerable attention; he was arrested, sent to the Tower with a label on his hat, "Edmund Campian, a most pernicious Jesuit," and was eventually racked and executed at Tyburn, 1st December 1581. He left several works that won for him reputation as a writer. His History of Ireland consists of two books—the first principally a cotemporary description of the country and its inhabitants; the second, a history from the invasion to 1570. The preface to "The Loving Reader," is dated from "Droghedah, the 9th of June 1571." The work is extremely interesting to students of Irish history. His geographical knowledge of the island was but slight, in common with most writers of the day: "In proportion it resembleth an egge, blunt and plaine on the sides, not reaching forth to sea, in nookes and elbowes of land, as Brittaine doth."

Campion, Maria, (Mrs. Pope) an actress, was born in Waterford in 1777. She early evinced a partiality for the stage, and made her first appearance in Dublin, as "Monimia," in The Orphan, 17th February 1790, when it is related that she swooned both in the green-room and on the stage. She first appeared in London, in the same character, at Covent-Garden Theatre, on 13th October 1797, and shortly afterwards (24th January 1798) married Alexander Pope, the distinguished actor. She is stated to have been the authoress of two novels. Charles Mathews, who saw her perform in Dublin, where she was for some time the heroine of the stage, wrote: "There are few such actresses to be met with. She possesses a very beautiful face, extremely elegant figure, and delightful voice, added to every advantage of nature in mental qualifications, and every accomplishment of education." She died of apoplexy, in London, 18th July 1803, aged 26, and was buried in Westminster Abbey.

Canice, Cainneach, or Kenny, St., patron of Kilkenny (with which locality the events of his life are slightly, if at all, connected), the son of Laidec, a poet, and Mella, was born at Glengiven, in Ulster, in 514. In his fourteenth year he was sent to Wales, where he studied under St. Docus. Ordained priest, he is said to have proceeded to Rome, and on his return he exerted himself to extirpate the remains of paganism in Ireland. He was intimate with SS. Comgall and Columcille. The Martyrology of Donegal says of him: "Achadh-bo [Aghaboe in the Queen's County] was his principal church … A very ancient old vellum book states that Cainneach was, in his habits and life, like unto Philip the Apostle. And I find no characterizing whatever of the Cainneach of which it gives this account; and if this be not he, I ask forgiveness of the real saint of whom it was given, if I am acting ignorantly respecting his identity. Columcille frequently speaks of Cainneach in his Life … Eighty-four years was his age when he sent his spirit to heaven, A.D. 598." His festival is the 11th of October.

Cannera, Saint, lived in the 6th century. Her interview and conversation with St. Senan, given by Lanigan, and related by Moore in his Melodies, are her warrant for special notice. Wishing to receive the viaticum from St. Senan, and to be buried in Inishscattery, she left her retreat near Bantry, and set sail for that island. Lanigan proceeds: "When arrived just close to it [she] was met by Senan, who obstinately refused to allow her to land, 70


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 many men, as well for my prompte wit in scoffing and taunting, as also for the comlynesse of my personage, beinge of very tall stature and active in many thinges, by meanes whereof I became a servitour’ (Ars Adulandi, 8th Dialogue). His first known publication was a moral dramatic piece, written wholly in rhyme, ‘An Enterlude Intituled Like wil to like, quod the Deuel to the Colier, very godly and ful of plesant mirth. … Made by Ulpian Fulwel. Imprinted at London … by John Allde,’ 1568, 4to; another edition, ‘London, printed by Edward Allde,’ 1587, 4to. It has been reprinted in Dodsley's ‘Select Collection of Old English Plays’ (vol. iii. edit. 1874, &c.). In 1570 Fulwell was rector of Naunton, Gloucestershire (, Gloucestershire, ii. 236), to which he had presumably been presented by Queen Elizabeth. His next work was ‘The Flower of Fame. Containing the bright Renowne & moste fortunate raigne of King Henry the VIII. Wherein is mentioned of matters, by the rest of our Cronographers ouerpassed. Compyled by Ulpian Fulwell. Hereunto is annexed (by the Aucthor) a short treatice of iii noble and vertuous Queenes. And a discourse of the worthie seruice that was done at Haddington in Scotlande, the seconde yere of the raigne of King Edward the Sixt. Imprinted at London by William Hoskins,’ 1575, 4to. This curious and highly interesting medley was written somewhat on the model of the then popular ‘Mirrour for Magistrates,’ partly in verse and partly in prose; the events recorded being chiefly taken from Hall's ‘Chronicles.’ The author was assisted in his labours by ‘Master Edmunde Harman,’ formerly a groom of the privy chamber to Henry VIII, as he acknowledges in the dedication to ‘sir William Cecill, baron of Burghleygh.’ On fol. 39 there commences a sort of appendix containing commemorations in verse, and ‘Epitaphs’ on three of Henry's wives, Anne Boleyn, Jane Seymour, and Katherine Parr. In a ‘Preamble to this parte of the Booke following,’ he states that he will celebrate Henry's other wives if the present book should be well received. It has been included by Thomas Park in his edition of the ‘Harleian Miscellany’ (ix. 337–75). The following year Fulwell published a humorous work which attained considerable popularity, entitled ‘Tee [sic] first part of the eight liberall science; Entituled, Ars adulandi, the art of Flattery, with the confutation thereof, both very pleasant and profitable, deuised and compiled by Vlpian Fulwell … Imprinted at London by William Hoskins,’ 1576, 4to (the only copy known, that in the Capell collection, is fully described by, Cat. of English Books printed before MDCI. in Trin. Coll. Cambr., pp. 199–200). The copyright was sold by William Hoskins to Henry Bamford, 4 March 1576–7 (, Stationers' Registers, ii. 309), and by him to Richard Jones, 3 March 1577–8 (ib. ii. 325). Jones issued another edition, ‘newly corrected and augmented,’ 4to, London, 1579, and a third without a date, but probably in 1580. Collier is of opinion that a book called ‘Flatteries Displaie,’ licensed to Robert Waldegrave in December 1580, was the same work under a slightly different title. This book, which is inscribed to Lady Burghley, consists of several dialogues, chiefly in prose, with the exception of the sixth—between Diogenes and Ulpian—which is in verse, of the fourteen-syllable metre. In the first dialogue, between the author and the printer, whom he calls ‘my olde fellow and friend, W[illiam] H[oskins],’ Fulwell mentions his own poverty and threadbare garments. Fulwell's attendance at court, as he sadly confesses to ‘Diogenes’ in the sixth dialogue, had brought him no hope of further preferment, though in answer to the latter's query he admits he had found one faithful friend in the world, and in some epigrammatic lines at the end he covertly expresses the name of his friend, Edmund Harman. In the ‘eyghth Dialogue betweene Sir Symon the Parson of Poll Iobbam, and the Authour,’ Fulwell endeavours to place the character of Sir Simon the Parson in the most odious light he can, and satirises the changes effected by the Reformation, though professing hopes that the queen will suppress the disorders. Although the author mentions a second part as intended, it does not appear to have been ever published. Fulwell became a commoner of St. Mary Hall, Oxford, in 1578, but probably did not take a degree. In 1572 he married at Naunton a lady whose baptismal name was Eleanor, and thenceforward for some years his signature occurs frequently in the register of that parish, chiefly in reference to the christening of his various children. In 1585 his name appears in connection with the burial of a son; in the following year Joseph Hanxman became rector of Naunton.

[Wood's Athenæ Oxon. (Bliss), i. 540–2; Corser's Collectanea (Chetham Soc.), pt. vi. pp. 382–396; Payne Collier's Bibliographical Account of Early English Literature, i. 296–9; Cat. of the Huth Library, ii. 566; Notes and Queries, 3rd ser. xii. 183–4, 234; Carew Hazlitt's Handbook to the Popular Poetical and Dramatic Literature of Great Britain, p. 215; Carew Hazlitt's Collections and Notes, 1867–76, p. 175; Hartshorne's Book Rarities in Univ. of Cambr. p. 295; information from the rector of Naunton.]


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 FULWOOD, CHRISTOPHER (1590?–1643), royalist, probably born in London about 1590, was the eldest son of Sir George Fulwood, lord of the manor of Middleton by Youlgrave, Derbyshire. His father, who died in 1624, was admitted a member of Gray's Inn in 1589 (Harl. MS. 1912, f 33), and appears to have passed the greater part of his life in the practice of the law in London, as in 1608 he is styled of Fulwood Street, Holborn (cf. his will registered in P. C. C. 55, Byrde). In 1605 Christopher was also entered at Gray's Inn, of which society he was admitted ancient 28 May 1622, appointed autumn reader in 1628, and treasurer 3 Nov. 1637 (Harl. MS. 1912, ff. 33, 183, 194, 248). When disengaged from his professional duties he resided at Middleton. His strict impartiality as a magistrate is commemorated by the ‘apostle of the Peak,’ William Bagshaw [q. v.] In 1640, at the Bakewell sessions, the curate of Taddington was charged with puritanism. Fulwood, who was chairman, ‘though known to be a zealot in the cause of the then king and conformity, released him, and gave his accusers a sharp reprimand’ (De Spiritualibus Pecci, 8vo, 1702, p. 17). Fulwood's influence in the district was of great value to the royalist cause. He was specially employed to raise the Derbyshire miners as a life-guard for his majesty in 1642, when the lord-lieutenant of the county, the Earl of Rutland, declined to appear in the service. He was soon at the head of a regiment of eleven hundred men, who were mustered on Tideswell Moor. His success appears to have alarmed the leaders of the parliamentarians in the neighbourhood, who, according to the local tradition, soon found an opportunity of seizing Fulwood while at his house at Middleton. The chief enemy of the king in the district was Sir John Gell of Hopton, and it was by Gell's emissaries that Fulwood was captured. It is said that while in his house he received notice of the near approach of the hostile detachment, and hid himself in a fissure separating an outlying mass of rock from its parent cliff, in the dale of the Bradford, a few hundred yards in the rear of the mansion. His pursuers saw him, and a shot from them inflicted a mortal wound. He was carried off towards Lichfield, a garrison town which had been taken by Gell on the preceding 5 March, but died on the way at Calton in Staffordshire, 16 Nov. 1643. The rock is still pointed out at Middleton. Before the close of 1644 the property had passed out of the hands of the family. Fulwood's two daughters, Elizabeth and Mary, sought refuge among their friends in London, where they died in obscurity. The mansion at Middleton began to be demolished about 1720.

 FULWOOD, WILLIAM (fl. 1562), author, was a member of the Merchant Taylors' Company. His first effort is entitled ‘An Admonition to Elderton to leave the Toyes by hym begonne.’ It was printed by John Alde, and begins: A supplication to Elderton for Leaches unlewdness Desiring him to pardon his manifest unrudeness. In 1563 Fullwood published ‘The Castel of Memorie; wherein is conteyned the restoryng, augmentyng, and conservyng of the Memorye and Remembraunce; with the latest remedyes and best preceptes thereunto in any wise apperteyning: Made by Gulielmus Gratarolus Bergomatis, Doctor of Artes and Phisike. Englished by Willyam Fulwod.’ This volume contains a dedication in verse to ‘the Lord Robert Dudely,’ which states that the king of Bohemia has approved the book in its Latin form, and the late Edward VI in a French translation. The book contains many curious receipts for aiding the memory. A second edition appeared in 1573. In 1568 Fullwood published the work by which he is best known; this is ‘The Enimie of Idlenesse: Teaching the maner and stile how to endite, compose, and write all sorts of Epistles and Letters: as well by answer, as otherwise. Set forth in English by William Fulwood, Marchant.’ The volume is dedicated in verse to the ‘Master, Wardens, and Company of Marchant Tayllors,’ and became very popular, running through several editions. It is divided into four books. The first, with much original matter, contains translations from Cicero and the ancients; in the second the translations are from Politian, Ficino, Merula, Pico della Mirandola, and other Italian scholars; the third contains practical and personal letters, mainly original; and in the fourth are six metrical love letters, besides prose specimens. In subsequent editions seven metrical letters are found and other augmentations. Fullwood's verse is spirited and vigorous.


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86 demanded the joust, but Arthur forbade him saying, "Fair nephew, ye shall not go to-morrow, but later, ere it be my turn, 'tis for us twain to ride the last jousts; ye shall have it when all save I have proved themselves."

"Sire, Sire, I shall be sore shamed an ye deny me this gift; never more shall I be joyful, nor will I ride joust in this land, but will get me hence alone!"

Quoth the king, "An it be thus ye may have it." And Sir Gawain answered, "I thank ye, Sire."

Thus they passed the night, and at daybreak, when the dew lay thick upon the grass, Sir Gawain arose, and Sir Ywain with him. Know that the morning was so fine, so fair and clear, as if 'twere made to be gazed on. Then he who was no coward washed face and hands and feet in the dew, and gat him back to the pavilion. There they brought him a wadded vest, or purple, bordered with samite, and he donned it, and fastened on his armlets deftly.

And ere he was fully armed the king his uncle had risen, and they gat them to Mass, and when Mass was said, to meat.


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 Castle Orguellous they had well dined they bade bring thither the armour, and Sir Gawain sat him on a rich carpet, spread on the ground in the midst of the tent, and there was never a knight but stood around uncovered, till that he had armed him at his leisure with all that pertaineth to assault and defence, so that he had naught to do save but to set forth.

Then they led unto him his steed, all covered with a rich trapping, and he mounted, and sat thereon, so goodly to look upon that never might ye hear speak of a fairer knight. Excalibur, his good sword, did King Arthur hand to him, and he girt it round him as he sat on the saddle, lightly, so that it vexed him not. Then he took shield and lance, and departed from them, making great speed for the meadow.

Now the adventure telleth that he had been there but short space when from the master tower of the castle a horn was sounded long and clear, so that for a league around the earth quivered by reason of the echo of the blast, and Sir Bran de Lis spake to the king, "Sire, in short space shall ye see the Rich Soudoier come forth armed on his steed, for they sound not the horn thus


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Furneaux school of that town he formed a life-long friendship with Benjamin Kennicott (1718–1770) [q. v.] In 1742 or 1743 he came to London to study for the dissenting ministry under David Jennings, D.D., at the academy in Wellclose Square. He appears to have remained at the academy till 1749, probably assisting Jennings, whose ‘Hebrew Antiquities’ he afterwards ably edited (1766). After ordination he became (1749) assistant to Henry Read, minister of the presbyterian congregation at St. Thomas's, Southwark. On the resignation of Roger Pickering, about 1752, he became in addition one of the two preachers of the Sunday evening lecture at Salters' Hall (not the more famous ‘merchants' lecture’ at Salters' Hall on Tuesday mornings). Retaining this lectureship, in 1753 he succeeded Moses Lowman in the pastorate of the independent congregation at Clapham. His discourses were weighty and well composed, and in spite of an unpleasing delivery and a habit of ‘poring over his notes,’ he drew a large congregation, and kept his popularity as long as he was able to preach. He received the degree of D.D. on 3 Aug. 1767, from the Marischal College, Aberdeen. From October 1769 to January 1775 he was relieved of the afternoon service on his lecture evenings by Samuel Morton Savage, D.D. As a leading member of the Coward Trust he had much to do with the revised plan of academical education adopted by the trustees on Doddridge's death. He was also from 1766 to 1778 a trustee of Dr. Williams's foundations.

Furneaux distinguished himself by his exertions in behalf of the rights of nonconformists. His name is closely associated with the progress of the ‘sheriff's case,’ which was before the courts for nearly thirteen years (1754–67). It arose out of an expedient adopted in 1748 by the corporation of London to raise money for building the Mansion House by fining nonconformists who declined to qualify for the office of sheriff in accordance with the Sacramental Test Act. Some 15,000l. had been thus obtained when, in 1754, three nonconformists resisted the imposition. The case reached the House of Lords in 1767, and in February of that year was decided in favour of the nonconformists. It was on this occasion that Lord Mansfield delivered the speech in which occurs the often-cited remark that the ‘dissenters' way of worship’ is not only lawful but ‘established.’ This speech was reported, without the help of a single note, by Furneaux, who possessed an extraordinary memory; he had, however, the assistance of another hearer of the speech, Samuel Wilton, D.D., independent minister of the Weighhouse, Eastcheap. Mansfield, who revised the report, found in it only two or three trivial errors.

In 1769 appeared the fourth volume of Blackstone's ‘Commentaries,’ in which, under the head of ‘Offences against God and Religion,’ nonconformity is treated as a ‘crime.’ Priestley was the first to animadvert on this opinion; Blackstone replied in a small pamphlet (2 Sept. 1769). In the following year Furneaux published his ‘Letters to Mr. Justice Blackstone,’ in which the moral argument against enforcing religious truths by civil penalties is presented with remarkable power.

Furneaux was present on 6 Feb. 1772 in the gallery of the House of Commons with Edward Pickard, presbyterian minister of Carter Lane, when the clerical petition for relief from subscription, known as the ‘Feathers' petition,’ was under discussion. The speeches of Sir William Meredith and Sir George Savile in favour of the petition were reported by Furneaux from memory. In the course of the debate the remark was made by Lord North, who opposed the petition, that if similar relief were asked by the dissenting clergy there would be no reasonable objection to it. Acting on this hint Furneaux and Pickard procured a meeting of nonconformist ministers of the three denominations, who adopted an application to parliament (prepared by Furneaux) for relief from doctrinal subscription. A relief bill passed the commons on 3 April 1772 without a division; on 18 May it was rejected in the lords. In support of a second bill to the same effect Furneaux published his ‘Essay on Toleration’ (1773). Relief was at length granted (1779), but not, as Furneaux desired, without a test. The new subscription, in which the Holy Scriptures were substituted for the Anglican articles, was devised by Lord North, and carried by the eloquence of Burke.

By this time Furneaux was incapable of taking any part in affairs. In 1777 he was seized with hereditary insanity, and remained under this affliction till his death on 27 Nov. 1783. He was unmarried, and no portrait of him is known. On the outbreak of his malady a considerable fund was raised for his support, Lord Mansfield being among the contributors. The fund accumulated after his death, and is still in existence. In accordance with a scheme approved by the charity commissioners its income (the principal being over 10,000l.) is divided between two institutions maintained by unitarians, Manchester New College and the ‘Ministers' Benevolent Society.’

He published: 1. ‘Letters to the


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88 save for his arming. I know well by the long blast that he laceth on his spurs."

Then the horn sounded a second time, and he said, "By my faith, now hath he donned and laced his greaves."

For a long space there was silence, and again the horn rang forth so loudly that all the castle re-echoed, and the lord of Lys said, "Sire, now hath he donned his hauberk and laced his helm." With that the horn sounded once again, "Now, Sire, he is mounted, and the horn will be blown no more to-day."

This had the good knight told them truly, for the burg was all astir: he who bare lordship therein rode proudly down from the castle, and after him so many of his folk that they of the pavilion heard the sound of their tread, though they might not behold them. Even to the gate they bare him company, and as he issued forth the king's men beheld him covered with a silken robe, even to his spurs, his banner in his hand. Then they saw a great crowd mount to the battlements to watch the combat of the twain; the walls were covered even to the gateways, so that 'twas a marvel to behold.


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 Castle Orguellous Thus the lord of the castle came proudly to the meadow where Sir Gawain awaited him, and when he saw him he gripped his shield tightly, and made ready for the onslaught. Then they laid their lances in rest, and shook forth their blazons, and smote their spurs into their steeds; nor did the joust fail, for they came together with such force of steed and shield and body that, an they would or no, both came to the ground in mid meadow and the good steeds fell over them. But the twain were full of valour, and arose up lightly, and drew their swords, and ran boldly on each other. Then might ye behold a dour combat, and a sight for many folk, for with great wrath they dealt each other mighty blows, so that all who beheld were astonied, and the king was in sore dread for his nephew, and they of the castle for their lord.

From either side many a prayer went up to Heaven that their champion might return safe and whole. And the twain spared not themselves, but each with shining blade smote the other, so that their strength waned apace. For know that that day there was so great a heat that never since


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90 hath the like been known, and that heat vexed and weakened them sore.

Now know ye of a certain truth that my lord Sir Gawain waxed ever in strength, doubling his force from midnight, and even till noon was past and the day waned did his strength endure, but then he somewhat weakened till 'twas midnight again. This I tell ye of a truth, 'twas early morn that they fought thus in the meadow, and greatly did this gift aid him, and great evil it wrought to the Rich Soudoier. Neither had conquered aught on the other till it waxed high noon. If the one dealt mighty blows the other knew right well how to return them with wrath and vigour; 'twas hard to say the which were the better, and all marvelled much that neither was as yet or slain or put to the worse.

'Twas the Soudoier who first gave ground; by reason of the over great heat so sore a thirst seized him that he might no longer endure the heavy blows, and well nigh fell to the earth. When Sir Gawain felt his foe thus weakening he pressed him the more, till that he staggered on his feet, and Sir Gawain ran on him with such force that both fell to the ground. But the king's


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 Clarke, he discoursed from the pulpit at the City Road Chapel. After a year he returned to his native county. He separated from the methodists about this time through resentment at his associates in calling him to account for writing a patriotic song which was sung at a meeting in a public-house. In 1813 he started business on his own account at Eyam as a currier, but trade was neglected for music, poetry, and mathematics, and his prospects were not improved when in 1816 he ran away with and married Frances Ibbotson of Hathersage. In 1821 he entered on the duties of schoolmaster in the free school of the small village of Dore, Derbyshire. He also acted as vestry and parish clerk, but showed his independence of mind and action by invariably closing his book and resuming his seat at the recitation of the Athanasian Creed. He likewise practised medicine and surgery, and when the ancient chapel of Dore was pulled down, his plans for a new one were adopted, and he not only superintended the erection of the building, but carved the ornamented figures which adorn the structure. On a change of incumbent at Dore he retired from his office of schoolmaster on a pension of 15l. The only duties he had now to perform were those of district registrar, which yielded him 12l. a year. In no year of his life did his income exceed 80l.

His first publication was a satirical poem entitled the ‘Rag Bag,’ 1832. His next was ‘Medicus-Magus, a poem, in three cantos,’ Sheffield, 1836, 12mo, in which he depicted the manners, habits, and limited intelligence, in the more remote parts of Derbyshire, the local terms being elucidated by a glossary. The title was afterwards altered to ‘The Astrologer.’ Many of his miscellaneous poems were printed in the ‘Sheffield Iris.’ After his death a collected edition of his ‘Poetical Works,’ with a sketch of his life by Dr. G. Calvert Holland, was published (Sheffield, 1858, 8vo). His verse is antiquated but forcible. One of his short pieces, the ‘Old Year's Funeral,’ was thought by James Montgomery to be worthy of comparison with Coleridge's ode ‘On the Departing Year.’

His wife died in 1844, and in 1850 he took as a second wife, Mary, widow of John Lunn of Staveley, Derbyshire. He died on 13 Dec. 1857, and was buried at Eyam church.

[Holland's Sketch; Hall's Biog. Sketches, 1873, p. 334; Holland and Everett's Memoir of James Montgomery, vi. 232.]  FURSA, (d. 650), of Peronne in France, was an Irishman of noble birth. Two pedigrees of him are given in the ‘Book of Leinster,’ and also in the ‘Lebor Brecc.’ One traces his descent from Rudraidhe Mac Sitri, ancestor of the Clanna Rudraidhe, of the race of Ir; the other from Lugaidh Laga, brother of Olioll Olum of the race of Heber; but they evidently refer to different persons, and Colgan has shown that there were two saints named Fursa, the first of whom flourished about 550. The ‘Martyrology of Donegal,’ as well as the ‘Lebor Brecc’ notes to the ‘Calendar of Œngus,’ clearly regards the first pedigree as that of Fursa of Peronne, but Colgan with Keating regards the Fursa of the second as the saint of Peronne, and this is clearly right, as Sigebert, king of East Anglia, received him in 637. His father was Fintan, son of Finlogh, a chieftain of South Munster; his mother, Gelges, was daughter of Aedh Finn of the Hui Briuin of Connaught. He was probably born somewhere among the Hui Briuin, and baptised by St. Brendan. His parents having returned to Munster, the child was brought up there, and from his boyhood he ‘gave his attention to the reading of the Holy Scriptures and monastic discipline.’ He retired to study in the island of Inisquin in Lough Corrib, under the abbot St. Meldan, called his ‘soul-friend.’ He afterwards built a monastery for himself at a place called Rathmat, which appears to be Killursa (Fursa's Church), in the north-west of the county of Clare.

After this he set out for Munster to visit his relatives. After his arrival he had the first of several remarkable cataleptic seizures, during which he had visions of bright angels, who raised him on their wings, and soothed him by hymns. In one trance famine and plagues were foretold. This evidently refers to the second visitation of the plague known as the Buidhe Connaill, ‘the yellow or straw-coloured plague,’ which visited Ireland about fourteen years after Fursa's death. The chief visions appear to have taken place in 627. Deeply impressed by them, Fursa travelled through Ireland, proclaiming what he had heard. At Cork he had a vision of a golden ladder set up at the tomb of St. Finn Barr [q. v.] and reaching to heaven, by which souls were ascending.

For ten years, in accordance with angelic directions, he continued ‘to preach the word of God without respect of persons.’ In the notes on the ‘Calendar of Œngus’ a strange story is told of his exchanging diseases with St. Maignen of Kilmainham. To avoid admiring crowds and jealousy, Fursa went away with a few brethren to a small island in the sea, and shortly after, with his brothers Foillan and Ultan, he passed through Britain (Wales), and arrived at East Anglia, where he was hospitably received by King Sigebert. After