Abortion, Conscience and the Constitution: An Examination of Federal Institutional Conscience Clauses
![handle is hein.journals/colhr6 and id is 285 raw text is: Abortion, Conscience and the
Constitution: An Examination
of Federal Institutional
Conscience Clauses
By
Harriet F. Pilpel* and Dorothy E. Patton**
As the United States Supreme Court made clear in Doe v.
Bolton, it is not only complete proscription of abortion which is
unconstitutional, but governmental erection of barriers which 'un-
duly restrict' the rights of the woman.'
In January, 1973 the United States Supreme Court ruled for the first
time on the constitutionality of state criminal abortion statutes. In Roe v.
Wade2 the Court held that statutes which prohibited all abortions except
those done to save the life of the woman unconstitutionally violated the
woman's right of privacy.3 In the companion case, Doe v. Bolton,4 the Court
* Mrs. Pilpel is a senior member of a New York City law firm. She is also a vice-chairman
of the American Civil Liberties Union and General Counsel to the Planned Parenthood
Federation of America, Incorporated.
** Associate Editor, Columbia Human Rights Law Review.
1. Doe v. Hale Hospital, 500 F. 2d 144, 146 (1st Cir. 1974) cert. denied 43 U.S.L.W. 3413
(U.S. Jan. 27, 1975), citing Doe v. Bolton, 410 U.S. 179, 198 (1973).
2. 410 U.S. 113 (1973) [hereinafter cited as Roe].
3. At the time of the Court's decision, two general types of abortion law were in effect in
the different states. Prohibitory statutes prohibited all abortions except those done to save the life
of the woman. Statutes of this type had been enacted in nearly all jurisdictions starting in the
early 1800's. However, some of these prohibitory laws had been replaced before the Roe and Doe
decisions by so-called American Law Institute type statutes which followed Model Penal Code
Sec. 230.2 (Proposed Official Draft, 1962). These laws permitted abortions not only to save the
life of the woman but also where 1) continuance of the pregnancy would impair the physical or
mental health of the mother or 2) there was a likelihood the child would be born with a physical
or mental defect, or 3) the pregnancy resulted from rape, incest or other felonious intercourse.
In Roe the Court invalidated a prohibitory statute and said:
[The Texas abortion statute] sweeps too broadly. The statute makes no distinction
between abortions performed early in pregnancy and those performed later, and it
limits to a single reason, saving the mother's life, the legal justification for the
procedure. The statute, therefore, cannot survive the constitutional attack made
upon it here. 410 U.S. at 164.
4. 410 U.S. 179 (1973) [hereinafter cited as Doe].](ViewImageLocal?handle=hein.journals/colhr6&div=23&collection=&method=preview&ext=.png&size=3)
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Abortion, Conscience and the Constitution: An Examination of Federal Institutional Conscience Clauses
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