 Section 26 of A Collection of Supreme Court Opinions by the United States Supreme Court. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Colleen McMahon. Roe V. Wade, 410 U.S. 113, decided January 22, 1973, Part 2. Please note, this is a reading of the opinion of the court only. This reading does not include the syllabus or any concurring or dissenting opinions. For ease of listening, this reading omits legal citations found within the text of the court's opinion. End of quote. Except for periodic condemnation of the criminal abortionist, no further formal AMA action took place until 1967. In that year, the Committee on Human Reproduction urged the adoption of a stated policy of opposition to induced abortion, except when there is quote, documented medical evidence, end of quote, of a threat to the health or life of the mother, or that the child, quote, may be born with incapacitating physical deformity or mental deficiency, end of quote, or that a pregnancy, quote, resulting from legally established statutory or forcible rape or incest, may constitute a threat to the mental or physical health of the patient, end of quote. Two other physicians, quote, chosen because of their recognized professional competence have examined the patient and have concurred in writing, end of quote. And the procedure, quote, is performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals, end of quote. The providing of medical information by physicians to state legislatures in their consideration of legislation regarding therapeutic abortion was, quote, to be considered consistent with the principles of ethics of the American Medical Association, end of quote. This recommendation was adopted by the House of Delegates. In 1970, after the introduction of a variety of proposed resolutions and of a report from its Board of Trustees, a reference committee noted, quote, polarization of the medical profession on this controversial issue, end of quote, division among those who had testified, a difference of opinion among AMA councils and committees, quote, the remarkable shift in testimony, end of quote, in six months, felt to be influenced, quote, by the rapid changes in state laws and by the judicial decisions which tend to make abortion more freely available, end of quote. And a feeling, quote, that this trend will continue, end of quote. On June 25, 1970, the House of Delegates adopted preambles and most of the resolutions proposed by the reference committee. The preambles emphasized, quote, the best interests of the patient, sound clinical judgment, and informed patient consent, end of quote. In contrast to, quote, mere acquiescence to the patient's demand, end of quote. The resolutions asserted that abortion is a medical procedure that should be performed by a licensed physician in an accredited hospital only after consultation with two other physicians and in conformity with state law and that no party to the procedure should be required to violate personally held moral principles. Footnote, quote, whereas abortion, like any other medical procedure, should not be performed when contrary to the best interests of the patient, since good medical practice requires due consideration for the patient's welfare and not mere acquiescence to the patient's demand. And whereas the standards of sound clinical judgment, which together with informed patient consent, should be determinative according to the merits of each individual case. Therefore, be it resolved that abortion is a medical procedure and should be performed only by a duly licensed physician and surgeon in an accredited hospital acting only after consultation with two other physicians chosen because of their professional competency and in conformance with standards of good medical practice and the medical practice act of his state. And be it further resolved that no physician or other professional personnel shall be compelled to perform any act which violates his good medical judgment. Neither physician, hospital, nor hospital personnel shall be required to perform any act violative of personally held moral principles. In these circumstances, good medical practice requires only that the physician or other professional personnel withdraw from the case so long as the withdrawal is consistent with good medical practice. End of quote. Proceedings of the AMA House of Delegates 220, June 1970. End of footnote. The AMA Judicial Council rendered a complementary opinion. Footnote. The principles of medical ethics of the AMA do not prohibit a physician from performing an abortion that is performed in accordance with good medical practice and under circumstances that do not violate the laws of the community in which he practices. In the matter of abortions, as of any other medical procedure, the Judicial Council becomes involved whenever there is alleged violation of the principles of medical ethics as established by the House of Delegates. End of footnote. Seven. The position of the American Public Health Association. In October 1970, the Executive Board of the APHA adopted standards for abortion services. These were five in number. A. Rapid and simple abortion referral must be readily available through state and local public health departments, medical societies, or other nonprofit organizations. B. An important function of counseling should be to simplify and expedite the provision of abortion services. It should not delay the obtaining of these services. C. Psychiatric consultation should not be mandatory. As in the case of other specialized medical services, psychiatric consultation should be sought for definite indications and not on a routine basis. D. A wide range of individuals from appropriately trained, sympathetic volunteers to highly skilled physicians may qualify as abortion counselors. E. Contraception and or sterilization should be discussed with each abortion patient. Among factors pertinent to life and health risks associated with abortion were three that, quote, are recognized as important, end of quote. A. The skill of the physician. B. The environment in which the abortion is performed. And above all, C. The duration of pregnancy as determined by uterine size and confirmed by menstrual history. It was said that, quote, a well-equipped hospital, end of quote, offers more protection, quote, to cope with unforeseen difficulties than an office or clinic without such resources. The factor of gestational age is of overriding importance, end of quote. Thus, it was recommended that abortions in the second trimester and early abortions in the presence of existing medical complications be performed in hospitals as inpatient procedures. For pregnancies in the first trimester, abortion in the hospital with or without overnight stay, quote, is probably the safest practice, end of quote. An abortion in an extramural facility, however, is an acceptable alternative, quote, provided arrangements exist in advance to admit patients promptly if unforeseen complications develop, end of quote. Standards for an abortion facility were listed. It was said that at present abortions should be performed by physicians or osteopaths who are licensed to practice and who have, quote, adequate training, end of quote. Eight, the position of the American Bar Association. At its meeting in February 1972, the ABA House of Delegates approved with 17 opposing votes, the Uniform Abortion Act that had been drafted and approved the preceding August by the Conference of Commissioners on Uniform State Laws. We set forth the act in full in the margin. Footnote, Uniform Abortion Act, section one, abortion defined when authorized. A, abortion means the termination of human pregnancy with an intention other than to produce a live birth or to remove a dead fetus. B, an abortion may be performed in this state only if it is performed. One, by a physician licensed to practice medicine or osteopathy in this state or by a physician practicing medicine or osteopathy in the employee of the government of the United States or of this state and the abortion is performed in the physician's office or in a medical clinic or in a hospital approved by the Department of Health or operated by the United States. This state or any department, agency, or political subdivision of either or by a female upon herself with the advice of the physician. And two, within 20 weeks after the commencement of the pregnancy or after 20 weeks only if the physician has reasonable cause to believe one, that there is a substantial risk the continuance of the pregnancy would endanger the life of the mother or would gravely impair the physical or mental health of the mother. Two, that the child would be born with grave physical or mental defect or three, that the pregnancy resulted from rape or incest or illicit intercourse with a girl under the age of 16 years. Section two, penalty. Any person who performs or procures an abortion other than authorized by this act is guilty of a felony and upon conviction thereof may be sentenced to pay a fine not exceeding $1,000 or to imprisonment in the state penitentiary not exceeding five years or both. Section three, uniformity of interpretation. This act shall be construed to effectuate its general purpose to make uniform the law with respect to the subject of this act among those states which enact it. Section four, short title. This act may be cited as the Uniform Abortion Act. Section five, severability. If any provision of this act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this act which can be given effect without the invalid provision or application and to this end the provisions of this act are severable. Section six, repeal. The following acts and parts of acts are repealed. One, two, three. Section seven, time of taking effect. This act shall take effect blank. End of footnote. The opinion of the court conference has appended an enlightening prefatory footnote. This act is based largely upon the New York Abortion Act following a review of the more recent laws on abortion in several states and upon recognition of a more liberal trend in laws on this subject. Recognition was given also to the several decisions in state and federal courts which show a further trend toward liberalization of abortion laws, especially during the first trimester of pregnancy. Recognizing that a number of problems appeared in New York, a shorter time period for quote unlimited end of quote abortions was advisable. The time period was bracketed to permit the various states to insert a figure more in keeping with the different conditions that might exist among the states. Likewise, the language limiting the place or places in which abortions may be performed was also bracketed to account for different conditions among the states. In addition, limitations on abortions after the initial quote unlimited end of quote period were placed in brackets so that individual states may adopt all or any of these reasons or place further restrictions upon abortions after the initial period. This act does not contain any provision relating to medical review committees or prohibitions against sanctions imposed upon medical personnel refusing to participate in abortions because of religious or other similar reasons or the like. Such provisions while related do not directly pertain to when, where, or by whom abortions may be performed. However, the act is not drafted to exclude such a provision by a state wishing to enact the same. End of footnote. 7. Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence. It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously. The appellants and Amici contend, moreover, that this is not a proper state purpose at all and suggest that if it were, the Texas statutes are overbroad in protecting it, since the law fails to distinguish between married and unwed mothers. A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman. This was particularly true prior to the development of antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister, Pasteur, and others first announced in 1867, but were not generally accepted and employed until about the turn of the century. Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940s, standard modern techniques such as dilation and curatage were not nearly so safe as they are today. Thus it has been argued that a state's real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy. Modern medical techniques have altered this situation. Appellants and various amici refer to medical data indicating that abortion and early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions where the procedure is legal appear to be as low as or lower than the rates for normal childbirth. Consequently, any interest of the state in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forego it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain. This state has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that ensure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of aftercare, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal, quote, abortion mills, end of quote, strengthens rather than weakens the state's interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the state retains a definite interest in protecting the woman's own health and safety when an abortion is proposed at a late stage of pregnancy. The third reason is the state's interest, some phrase it in terms of duty, in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The state's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins a conception or at some other point prior to life birth. In assessing the state's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the state may assert interest beyond the protection of the pregnant woman alone. Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life. Pointing to the absence of legislative history to support the contention, they claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this concern, at least with respect to abortion and early pregnancy, they argue that with respect to such abortions, the laws can no longer be justified by any state interest. There is some scholarly support for this view of original purpose. The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the state's interest in protecting the woman's health rather than in preserving the embryo and fetus. Proponents of this view point out that in many states, including Texas, by statute or judicial interpretation, the pregnant woman herself could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another. They claim that adoption of the quickening distinction through received common law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception. It is with these interests and the eight to be attached to them that this case is concerned. Eight. The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific Railroad Company v. Botsford, the court has recognized that a right of personal privacy or a guarantee of certain areas or zones of privacy does exist under the Constitution. In varying contexts, the court or individual justices have indeed found at least the roots of that right in the First Amendment, in the Fourth and Fifth Amendments, in the Penumbras of the Bill of Rights, in the Ninth Amendment, or in the concept of liberty guaranteed by the first section of the 14th Amendment. These decisions make it clear that only personal rights that can be deemed, quote, fundamental, end of quote, or, quote, implicit in the concept of ordered liberty, end of quote, are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, procreation, contraception, family relationships, and child rearing and education. This right of privacy, whether it be founded in the 14th Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or as the District Court determined in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the state would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable, even in early pregnancy, may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by childcare. There is also the distress for all concerns associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation. On the basis of elements such as these, Appellant and Samamichi argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time in whatever way and for whatever reason she alone chooses. With this, we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision or no interest strong enough to support any limitation upon the woman's sole determination are unpersuasive. The court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a state may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved therefore cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by Samamichi that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the court's decisions. The court has refused to recognize an unlimited right of this kind in the past. We therefore conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation. We note that those federal and state courts that have recently considered abortion law challenges have reached the same conclusion. A majority, in addition to the district court in the present case, have held state laws unconstitutional, at least in part because of vagueness or because of overbreath and abridgment of rights. Others have sustained state statutes. Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision. That the right, nonetheless, is not absolute and is subject to some limitations. And that, at some point, the state interests as to protection of health, medical standards and prenatal life become dominant. We agree with this approach. We're certain, quote, fundamental rights, end of quote, are involved. The court has held that regulation limiting these rights may be justified only by a, quote, compelling state interest, end of quote. And that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. In the recent abortion cases cited above, courts have recognized these principles. Those striking down state laws have generally scrutinized the state's interests in protecting health and potential life. And I've concluded that neither interest justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy. Courts sustaining state laws have held that the state's determinations to protect health or prenatal life are dominant and constitutionally justifiable. Nine. The district court held that the appellee failed to meet his burden of demonstrating that the Texas statute's infringement upon rose rights was necessary to support a compelling state interest. And that although the appellee presented, quote, several compelling justifications for state presence in the area of abortions, end of quote, the statutes outstripped these justifications and swept, quote, far beyond any areas of compelling state interest, end of quote. Appellent and appellee both contest that holding. Appellent, as has been indicated, claims an absolute right that bars any state imposition of criminal penalties in the area. Appellee argues that the state's determination to recognize and protect prenatal life from an after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation. A, the appellee and certain amici argue that the fetus is a, quote, person, end of quote, within the language and meaning of the 14th Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellent's case, of course, collapses. For the fetus's right to life would then be guaranteed specifically by the amendment. The appellent conceded as much on re-argument. On the other hand, the appellee conceded on re-argument that no case could be cited holds that a fetus is a person within the meaning of the 14th Amendment. The Constitution does not define person in so many words. Section 1 of the 14th Amendment contains three references to person. The first, in defining citizens, speaks of, quote, persons born or naturalized in the United States, end of quote. The word also appears both in the due process clause and in the equal protection clause. Person is used in other places in the Constitution, in the listing of qualifications for representatives and senators. In the apportionment clause, footnote, we are not aware that in the taking of any census under this clause a fetus has ever been counted, end of footnote. In the migration and importation provision, in the emolument clause, in the electors' provisions, in the provision outlining qualifications for the office of president, in the extradition provisions and the superseded fugitive slave clause, and in the 5th, 12th, and 22nd Amendments, as well as in sections 2 and 3 of the 14th Amendment. But in nearly all these instances the use of the word is such that it has application only postnatally. None indicates with any assurance that it has any possible prenatal application. Footnote, when Texas urges that a fetus is entitled to 14th Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other state are all abortions prohibited. Despite broad prescription an exception always exists. The exception contained in Article 1196 for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment's command? There are other inconsistencies between 14th Amendment status and the typical abortion statute. It has already been pointed out that in Texas the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, for criminal abortion specified by Article 1195 is significantly less than the maximum penalty for murder prescribed by Article 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different? End of footnote. All this together with our observation, Supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today persuades us that the word person as used in the 14th Amendment does not include the unborn. Footnote. CF, the Wisconsin abortion statute defining, quote, unborn child, end of quote, to mean, quote, a human being from the time of conception until it is born alive, end of quote, and the new Connecticut statute declaring it to be the public policy of the state and the legislative intent, quote, to protect and preserve human life from conception, end of quote. End of footnote. This is in accord with the results reached in those few cases where the issue has been squarely presented. Indeed, our decision in United States v. Vujic, inferentially is to the same effect, for we there would not have indulged in statutory interpretation favorable to abortion in specified circumstances if the necessary consequence was the termination of life protection. This conclusion, however, does not of itself fully answer the contentions raised by Texas and we pass on to other considerations. B, the pregnant woman cannot be isolated in her privacy. She carries an embryo and later a fetus if one accepts the medical definitions of the developing young in the human uterus. The situation, therefore, is inherently different from marital intimacy or bedroom possession of obscene material in marriage or procreation or education with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a state to decide that at some point in time another interest, that of health of the mother or that of potential human life becomes significantly involved. The woman's privacy is no longer soul and any state of privacy she possesses must be measured accordingly. Texas urges that apart from the 14th Amendment, life begins at conception and is present throughout pregnancy and that, therefore, the state has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at their senses, the judiciary at this point in the development of man's knowledge is not in a position to speculate as to the answer. It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There's always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics. It appears to be the predominant, though not the unanimous attitude of the Jewish faith. It may be taken to represent also the position of a large segment of the Protestant community in so far as that can be ascertained. Organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family. As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes quote viable end of quote that is potentially able to live outside the mother's womb albeit with artificial aid. Viability is usually placed at about seven months, 28 weeks, but may occur earlier even at 24 weeks. The Aristotelian theory of quote immediate animation end of quote, the held sway throughout the Middle Ages and the Renaissance in Europe continued to be official Roman Catholic dogma until the 19th century, despite opposition to this quote end of quote theory from those in the church who would recognize the existence of life from the moment of conception. The latter is now of course the official belief of the Catholic Church. As one brief amicus discloses this is a view strongly held by many non-Catholics as well and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a process over time rather than an event and by new medical techniques such as menstrual extraction, the morning after pill, implementation of embryos, artificial insemination and even artificial wombs. In areas other than criminal abortion the law has been reluctant to endorse any theory that life as we recognize it begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and accept when the rights are contingent upon live birth. For example, the traditional role of tort law denied recovery for prenatal injuries even though the child was born alive. That role has been changed in almost every jurisdiction. In most states recovery is said to be permitted if the fetus was viable or at least quick when the injuries were sustained though few courts have squarely so held. In a recent development, generally opposed by the commentators, some states permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. Such an action, however, would appear to be one to vindicate the parent's interest and is thus consistent with the view that the fetus at most represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property and have been represented by guardians ad litem. Perfection of the interests involved again has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense. 10. In view of all this, we do not agree that by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the state does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the state or a non resident who seeks medical consultation and treatment there and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and at a point during pregnancy each becomes quote compelling end of quote. With respect to the state's important and legitimate interest in the health of the mother, the quote compelling end of quote point in light of present medical knowledge is at approximately the end of the first trimester. This is so because of the now established medical fact referred to above that until the end of the first trimester mortality and abortion may be less than mortality in normal childbirth. It follows that from and after this point a state may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion as to the licensure of that person as to the facility in which the procedure is to be performed that is whether it must be a hospital or maybe a clinic or some other place of less than hospital status as to the licensing of the facility and the like. This means on the other hand that for the period of pregnancy prior to this compelling point the attending physician in consultation with this patient is free to determine without regulation by the state that in his medical judgment the patient's pregnancy should be terminated. If that decision is reached the judgment may be effectuated by an abortion free of interference by the state. With respect to the state's important and legitimate interest in potential life the compelling point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation is effective of fetal life after viability thus has both logical and biological justifications. If the state is interested in protecting fetal life after viability it may go so far as to proscribe abortion during that period except when it is necessary to preserve the life or health of the mother. Measured against these standards article 1196 of the Texas Penal Code in restricting legal abortions to those quote procured by medical advice for the purpose of saving the life of the mother end of quote sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later and it limits to a single reason saving the mother's life the legal justification for the procedure. The statute therefore cannot survive the constitutional attack made upon it here. This conclusion makes it unnecessary for us to consider the additional challenge to the Texas statute asserted on grounds of vagueness. 11. To summarize and to repeat 1. A state criminal abortion statute of the current Texas type that accepts from criminality only a life saving procedure on behalf of the mother without regard to pregnancy stage and without recognition of the other interests involved is violative of the due process clause of the 14th amendment. 2. A for the stage prior to approximately the end of the first trimester the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. 3. B for the stage subsequent to approximately the end of the first trimester the state in promoting its interest in the health of the mother may if it chooses regulate the abortion procedure in ways that are reasonably related to maternal health. 4. For the stage subsequent to viability the state in promoting its interest in the potentiality of human life may if it chooses regulate and even proscribe abortion except where it is necessary in appropriate medical judgment for the preservation of the life or health of the mother. 2. The state may define the term physician as it has been employed in the preceding paragraphs of this part 11 of this opinion to mean only a physician currently licensed by the state and may proscribe any abortion by a person who is not a physician as so defined. In Dovey Bolton procedural requirements contained in one of the modern abortion statutes are considered that opinion and this one of course are to be read together. Footnote neither in this opinion nor in Dovey Bolton do we discuss the father's rights if any exist in the constitutional context in the abortion decision no paternal right has been asserted in either of the cases and the Texas and Georgia statutes on their face take no cognizance of the father. We are aware that some statutes recognize the father under certain circumstances. North Carolina for example requires written permission for the abortion from the husband when the woman is a married minor that is when she is less than 18 years of age. If the woman is an unmarried minor written permission of parents is required. We need not now decide whether provisions of this kind are constitutional. End of footnote. This holding we feel is consistent with the relative weights of the respective interests involved with the lessons and examples of medical and legal history with the lenity of the common law and with the demands of the profound problems of the present day. The decision leaves the state free to place increasing restrictions on abortion to pregnancy lengthens so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points the abortion decision in all its aspects is inherently and primarily a medical decision and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment the usual remedies judicial and intraprofessional are available. 12. Our conclusion that article 1196 is unconstitutional means of course that the Texas abortion statutes as a unit must fall. The exception of article 1196 cannot be struck down separately for then the state will be left with a statute prescribing all abortion procedures no matter how medically urgent the case. Although the district court granted appellant row declaratory relief it stopped short of issuing an injunction against enforcement of the Texas statutes. The court has recognized that different considerations enter into a federal court's decision as to declaratory relief on the one hand and injunctive relief on the other. We are not dealing with the statute that on its face appears to abridge free expression an area of particular concern under Dumbrowski and refined in younger V. Harris. We find it unnecessary to decide whether the district court erred in withholding injunctive relief for we assume the Texas prosecutorial authorities will give full credence to this decision that the present criminal abortion statutes of that state are unconstitutional. The judgment of the district court as to intervene or Halford is reversed and Dr. Halford's complaint in intervention is dismissed. In all other respects the judgment of the district court is affirmed. Costs are allowed to the appellate it is so ordered. End of section 26 Recording by Colleen McMahon. Recordings are in the public domain. For more information or to volunteer please visit LibriVox.org Recording by Florence Short McDaniel vs. Patty 435 US 618 Decided April 19 1978 Please note this is a reading of the opinion of the court only. This reading does not include the syllabus or any concurring or dissenting opinions. For ease of listening this reading omits legal citations found within the text of the court's opinion. Mr. Chief Justice Berger announced the judgment of the court and delivered an opinion in which Mr. Justice Powell Mr. Justice Rehnquist and Mr. Justice Stevens joined. The question presented by this appeal is whether a Tennessee statute barring quote ministers of the gospel of any denomination whatever end of quote from serving as delegates to the state's limited constitutional convention deprived appellant McDaniel an ordained minister of the right to free exercise of religion guaranteed by the First Amendment and made applicable to the states by the 14th amendment. The First Amendment forbids all laws quote prohibiting the free exercise end of quote of religion in its first constitution in 1796 Tennessee disqualified ministers from serving as legislators that disqualifying provision has continued unchanged since its adoption. It is now article nine section one of the state constitution the state legislature applied this provision to candidates for delicate to the state's 1977 limited constitutional convention when it enacted chapter 848 section four of 1976 Tennessee Public Acts any citizen of the state who can qualify for membership in the House of Representatives of the General Assembly may become a candidate for delegate to the convention. McDaniel an ordained minister of a Baptist church in Chattanooga, Tennessee filed as a candidate for delegate to the constitutional convention an opposing candidate Appellee Selma Cash Patty sued in the chancellory court for a declaratory judgment that McDaniel was disqualified from serving as a delegate and for a judgment striking his name from the ballot. Chancellor Franks of the chancellory court held that section four of chapter 848 violated the first and 14th amendments to the federal constitution and declared McDaniel eligible for the office of delegate. Accordingly McDaniel's name remained on the ballot and in the ensuing election he was elected by a vote almost equal to that of the three opposing candidates. After the election the Tennessee Supreme Court reversed the chancellory court holding that the disqualification of clergy imposed no burden upon quote religious belief end of quote and restricted quote religious action only in the law making process of government where religious action is absolutely prohibited by the establishment clause end of quote 547 SW 2nd 897 903 1977 the state interests in preventing the establishment of religion and in avoiding the divisiveness and tendency to channel political activity along religious lines resulting from clergy participation in political affairs redeemed by that court sufficiently weighty to justify the disqualification not withstanding the guarantee of the free exercise clause we noted probable jurisdiction 432 U.S. 905 1977 the disqualification of ministers from legislative office was a practice carried from England by the seven of the original states later six new states similarly excluded clergymen from some political offices A. Stokes church and state in the United States 622 1950 In England the practice of excluding clergy from the House of Commons was justified on a variety of grounds to prevent dual office holding that is membership by a minister in both parliament and convocation to ensure that the priest or deacon devoted himself to his quote sacred calling end of quote rather than to quote such mundane activities as were appropriate to a member of the House of Commons end of quote and to prevent ministers who after 1533 were subject to the crown's powers over the benefits of the clergy from using membership in the Commons to diminish its independence by increasing the influence of the king and the nobility the purpose of the several states in providing for disqualification primarily to assure the success of a new political experiment the separation of church and state Stokes 622 Prior to 1776 most of the 13 colonies had some form of an established or government sponsored church even after ratification of the First Amendment which prohibited the federal government from following such a course some states continued no establishment provisions Massachusetts the last state to accept disestablishment did so in 1833 in light of this history and a widespread awareness during that period of undue and often dominant clerical influence in public and political affairs here in England and on the continent it is not surprising that strong views were held by some but one way to assure disestablishment was to keep clergymen out of public office indeed, some of the foremost political philosophers and statesmen of that period held such views regarding the clergy earlier John Locke argued for confining the authority of the English clergy within the bounds of the church nor can it in any manner be extended to civil affairs because the church itself is a thing absolutely separate and distinct from the Commonwealth end of quote Thomas Jefferson initially advocated such a position in his 1783 draft of a constitution for Virginia James Madison, however disagreed and vigorously urged the position which, in our view accurately reflects the spirit and purpose of the religion clauses of the First Amendment Madison's response to Jefferson's position was quote does not the exclusion of ministers of the gospel as such violate a fundamental principle of liberty by punishing a religious profession with the privation of a civil right does it not violate another article of the plan itself which exempts religion from the cognizance of civil power does it not violate justice of a civil right and prohibiting a compensation for it does it not, in fine violate impartiality by shutting the door against the ministers of one religion and leaving it open for those of every other end of quote Madison was not the only articulate opponent of the clergy disqualification when proposals were made earlier to prevent clergymen from holding public office John Witherspoon, a Presbyterian president of Princeton University and the only clergyman to sign the Declaration of Independence made a cogent protest and with tongue in cheek offered an amendment to a provision much like that challenged here quote no clergyman of any denomination shall be capable of being elected a member of the Senate or House of Representatives because here insert the grounds of offensive disqualification which I have not been able to discover provided always and it is the true intent and meaning of this part of the Constitution that if at any time he shall be completely deprived of the clerical character by those by whom he was invested with it as by deposition for cursing and swearing drunkenness or uncleanliness he shall then be fully restored to all the privileges of a free citizen his offense of being a clergyman shall no more be remembered against him but he may be chosen either to the Senate or House of Representatives and shall be treated with all the respect due to his brethren the other members of the assembly end of quote Stokes 624 through 625 as the value of the disestablishment experiment was perceived 11 of the 13 states disqualifying the clergy from some types of public office gradually abandoned that limitation New York for example took that step in 1846 after delegates to the state's constitutional convention argued that the exclusion of clergymen from the legislature was in quote odious distinction end of quote only Maryland and Tennessee continued their clergy disqualification provisions into this century and in 1974 a district court held Maryland's provision violative of the first and 14th amendments guarantees of the free exercise of religion Kirkley vs. Maryland 381 F supplement 327 today Tennessee remains the only state excluding ministers from certain public offices the essence of this aspect of our national history is that in all but a few states the selection or rejection of clergymen for public office soon came to be viewed as something safely left to the good sense and desires of the people this brief review of the history of clergy disqualification provisions also amply demonstrates however that at least during the early segment of our national life those provisions enjoyed the support of responsible American statesmen and were accepted as having a rational basis against this background we do not likely invalidate a statute enacted pursuant to a provision of a state constitution which has been sustained by its highest court the challenged provision came to the Tennessee Supreme Court clothed with the presumption of validity to which that court was bound to give deference however the right to the free exercise of religion unquestionably encompasses the right to preach proselytize and perform other similar religious functions or in other words to be a minister of the type McDaniel was found to be Murdoch versus Pennsylvania 319 U.S. 105 1943 Cantwell versus Connecticut 310 U.S. 296 1940 Tennessee also acknowledges the right of its adult citizens generally to seek and hold office as legislators or delegates to the state constitutional convention yet under the clergy disqualification provision McDaniel cannot exercise both rights simultaneously because the state has conditioned the exercise of one on the surrender of the other or in James Madison's words the state is quote punishing a religious profession with the privation of a civil right end of quote in doing so Tennessee has encroached upon McDaniel's right to the free exercise of religion quote to condition the availability of benefits including access to the ballot upon this appellance willingness to violate a cardinal principle of his religious faith by surrendering his religiously repelled ministry effectively penalizes the free exercise of his constitutional liberties end of quote sherbert versus verner 374 U.S. 398 406 1963 if the Tennessee disqualification provision were viewed as depriving the clergy of a civil right solely because of their religious beliefs our inquiry would be at an end the free exercise clause categorically prohibits government from regulating prohibiting or rewarding religious beliefs as such intercasso versus Watkins 367 U.S. 488 1961 the court reviewed the Maryland constitutional requirement that all holders of quote any office of profit or trust in this state end of quote declare their belief in the existence of God in striking down the Maryland requirement the court did not evaluate the interests assertedly justifying it but rather held that it violated freedom of religious belief in our view however torcasso does not govern by its terms the Tennessee disqualification operates against McDaniel because of his status as a quote minister or priest end of quote the meaning of those words is of course a question of state law and although the question has not been examined extensively in state law sources search authority as is available indicates that ministerial status is defined in terms of conduct and activity rather than in terms of belief because the Tennessee disqualification is directed primarily at status acts in conduct it is unlike the requirement in torcasso which focused on belief hence the free exercise clauses absolute prohibition of infringements on the quote freedom to believe end of quote is inapposite here this does not mean of course that the disqualification escapes judicial scrutiny or that McDaniel's activity does not enjoy significant first amendment protection the court recently declared in Wisconsin versus Yoder 406 U.S. 205 215 1972 quote the essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can over balance legitimate provisions to the free exercise of religion end of quote Tennessee asserts that its interest in preventing the establishment of a state religion is consistent with the establishment clause and thus of the highest order the constitutional history of the several states reveals that generally the interest in preventing establishment prompted the adoption of clergy disqualification provisions C. Stokes 622 Tennessee does not appear to be an exception to this pattern there is no occasion to inquire whether promoting such interest is a permissible legislative goal however for Tennessee has failed to demonstrate that its views of the dangers of clergy participation in the political process have not lost whatever validity they may once have enjoyed the rationale underlining the Tennessee restriction on ministers is that if elected to public office they will necessarily exercise their powers and influence to promote the interests of one sect or thwart the interests of another thus pitting one against the others contrary to the anti-establishment principle with its command of neutrality C. Waltz versus tax commission 397 U.S. 664 1970 however widely that view may have been held in the 18th century by many including enlightened statesmen of that day the American experience provides no persuasive support for the fear that clergymen in public office will be less careful of anti-establishment interests or less faithful to their oaths of civil office and their unordained counterparts we hold that section 4 of chapter 848 violates McDaniel's first amendment right to the free exercise of his religion made applicable to the states by the 14th amendment accordingly the judgment of the Tennessee Supreme Court is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion and remanded Mr. Justice Blackmon took no part in the consideration or decision of this case end of section 27 section 28 of a collection of Supreme Court opinions by the United States Supreme Court this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org Rosales Mereles V. United States Decided June 18th, 2018 please note this is a reading of the opinion of the court only this reading does not include the syllabus or any concurring or dissenting opinions for ease of listening this reading omits legal citations found within the text of the court's opinion Justice Sotomayor delivered the opinion of the court federal rule of criminal procedure 52B provides that a court of appeals may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal this case concerns the bounds of that discretion and whether a miscalculation of the United States sentencing guidelines range that has been determined to be plain and to affect a defendant's substantial rights calls for a court of appeals to exercise its discretion under rule 52B to vacate the defendant's sentence the court holds that such an error will in the ordinary case as here seriously affect the fairness, integrity or public reputation of judicial proceedings and thus will warrant relief 1A each year thousands of individuals are sentenced to terms of imprisonment for violations of federal law district courts must determine in each case what constitutes a sentence that is quote sufficient but not greater than necessary end quote title 18 of the US code to achieve the overarching sentencing purposes quote retribution deterrence incapitization and rehabilitation end quote tapia v. united states those decisions call for the district court to exercise discretion yet to ensure quote certainty and fairness end quote in sentencing district courts must operate within the framework established by congress United States v. Booker quoting title 28 of the US code the sentencing guidelines serve an important role in that framework quote district courts must begin their analysis with the guidelines and remain cognizant of them throughout the sentencing process end quote pv. united states courts are not bound by the guidelines but even in an advisory capacity the guidelines serve as a quote meaningful benchmark end quote in the initial determination of a sentence and quote through the process of appellate review end quote title 569 of the US code to consult the applicable guidelines range a district court must first determine what that range is this can be a quote complex end quote undertaking Molina Martinez v. United States the United States probation office operating as an arm of the district court first creates a pre-sentence investigation report quote which includes a calculation of the advisory guidelines range it considers to be applicable end quote Molina Martinez v. United States that calculation derives from an assessment of the quote offense characteristics and other matters that might be relevant to the sentence end quote read of the United States specifically an offense level is calculated by identifying a base level for the offense of conviction and adjusting that level to account for circumstances specific to the defendant's case such as how the crime was committed and whether the defendant accepted responsibility a numerical value is then attributed to any prior offenses committed by the defendant which are added together to generate a criminal history score that places the defendant within a particular criminal history category together the offense level in the criminal history category identify the applicable guidelines range be the district court has the ultimate responsibility to ensure that the guidelines range it considers is correct and that the quote failure to calculate the correct guidelines range constitutes procedural error end quote pew given the complexity of the calculation however district courts sometimes make mistakes it is unsurprising then that quote there will be instances when a district court's sentencing of a defendant within the framework of an incorrect guidelines range goes unnoticed end quote by the parties as well which may result in a defendant raising the error for the first time on appeal Molina Martinez those defendants are not entirely without recourse federal rule of criminal procedure 52B provides that quote a plain error that affects substantial rights may be considered even though it was not brought to the district court's attention end quote in United States v. Alano the court established three conditions that must be met before a court may consider exercising its discretion to correct the error quote first there must be an error that has not been originally relinquished or abandoned second the error must be plain that is to say clear or obvious third the error must have affected the defendant's substantial rights end quote Molina Martinez to satisfy this third condition the defendant ordinarily must quote show a reasonable probability that but for the error the outcome of the proceeding would have been different end quote Molina Martinez once those three conditions have been met quote the court of appeal should exercise its discretion to correct the forfeited error if the error seriously affects the fairness integrity or public reputation of judicial proceedings end quote Molina Martinez it is this last consideration often called Alano's fourth prong that we are asked to clarify and apply in this case C petitioner Florencia Rosales Morellis pleaded guilty to illegal re-entry and violation of title 8 of the U.S. code the probation office in its pre-sentence investigation report mistakenly counted a 2009 state conviction of misdemeanor assault twice this double counting resulted in a criminal history score of 13 which placed Rosales Morellis in criminal history category 6 combined with his offense level of 21 that yielded a guidelines range of 77 to 96 months had the criminal history score been calculated correctly Rosales Morellis would have been in criminal history category 5 and the resulting guidelines range would have been 70 to 87 months Rosales Morellis did not object to the double counting error before the district court relying on the erroneous pre-sentence investigation report and after denying Rosales Morellis request for a downward departure the court district sentence Rosales Morellis to 78 months of imprisonment one month above the lower end of the guidelines range that everyone thought applied the double Rosales Morellis argued for the first time that his criminal history score and resulting guidelines range were incorrect because of the double counting of his 2009 conviction because he had not objected in the district court the court of appeals for the 5th circuit reviewed for plain error applying the Olano framework the 5th circuit concluded that Rosales Morellis had established that the guidelines miscalculation constituted an error that was plain satisfying Olano's first two conditions it also held that the error affected Rosales Morellis substantial rights thus satisfying the third condition because there was quote a reasonable probability that he would have been subject to a different sentence but for the error end quote in reaching that conclusion the 5th circuit rejected the government's argument that Rosales Morellis would have received the same sentence regardless of the guidelines error the district court had denied a downward departure quote based in part on Rosales Morellis criminal history end quote which quote erroneously included an extra conviction end quote the 5th circuit nevertheless declined to exercise its discretion to vacate and remand the case for re-sentencing because it concluded that Rosales Morellis failed to establish that the error would seriously affect the fairness, integrity or public reputation of judicial proceedings in its view quote the types of errors that warrant reversal are ones that would shock the conscience of the common man serve as a powerful indictment against our system of justice or seriously call into question the competence or integrity of the district judge end quote because Rosales Morellis's sentence of 78 months fell within the correct range of 70 to 87 months the 5th circuit held that neither the error nor the resulting sentence quote would shock the conscience end quote the 5th circuit's articulation of Elano's 4th prong is out of step with the practice of other circuits we granted Sir Tirari to resolve that conflict and now reverse 2A although quote rule 52B is permissive not mandatory end quote Elano it is well established that courts should correct a forfeited plain error that affects substantial states quote if the error seriously affects the fairness integrity or public reputation of judicial proceedings end quote Elano the court in Elano rejected a narrower rule that would have called for relief only quote in those circumstances in which a miscarriage of justice would otherwise result end quote that is to say where defendant is actually innocent by focusing instead on principles of fairness integrity and public reputation the court recognized a broader category of errors that warrant correction on plain error review like the miscarriage of justice rule that the court rejected in Elano the 5th circuit's standard is unduly restrictive to be sure a conclusion that an error quote shocks the conscience of the common man serves as a powerful indictment against our system of justice or seriously calls into question the competence or integrity of the district judge end quote would demand an exercise of discretion to correct the error limiting relief only to those circumstances however too narrowly confines the extent of a court of appeals discretion the quote shock the conscience end quote standard typically is employed when determining whether governmental action violates due process rights under the 5th and 14th amendments this court has said that the shock the conscience standard is satisfied with the conduct was quote intended to injure in some way unjustifiable by any government interest end quote or in some circumstances if it resulted from deliberate indifference that standard is not reflected in rule 52 be itself nor in how this court has applied the plain error doctrine the court repeatedly has reversed judgments for plain error on the basis of inadvertent or unintentional errors of the court or the parties below the court also routinely remains cases involving inadvertent or unintentional errors including sentencing errors for consideration of Alonso's fourth prong with the understanding that such errors may qualify for relief the 5th circuits additional focus on errors that quote serve as a powerful indictment against our system of justice or seriously call into question the competence or integrity of the district judge end quote similarly alters the rule 52 be standard the court has never said that errors must amount to a quote powerful indictment end quote of the system a phrase which implies by its terms that the only errors worthy of correction are those that rise to the level of grossly serious misconduct similarly the 5th circuits emphasis on the quote competence or integrity of the district judge end quote narrows Alonso's instruction that an error should be corrected if it seriously affects quote judicial proceedings end quote in articulating such a high standard the 5th circuit substantially change Alonso's fourth prong be the effect the effect of the 5th circuits heightened standard is especially pronounced in a case like this one a plain guidelines error that affects the defendant's substantial rights is precisely the type of error that ordinarily warrants relief under rule 52 be in Molino Martinez the court recognized that quote when a defendant is sentenced under an incorrect guidelines range whether or not the defendant's ultimate sentence falls within the correct range the error itself can and most often will be sufficient to show a reasonable probability of a different outcome absent the error end quote in other words an error resulting in a higher range than the guidelines provide usually establishes a reasonable probability that a defendant will serve a prison sentence that is more than necessary to fulfill the purposes of incarceration quote to a prisoner end quote this prospect of additional quote time behind bars is not some theoretical or mathematical concept end quote and quote any amount of actual jail time end quote is significant Glover of the United States end quote has exceptionally severe consequences for the incarcerated individual and for society which bears a direct and indirect cost of incarceration end quote United States be Jenkins the possibility of additional jail time thus warrants serious consideration in a determination whether to exercise discretion under rule 52 be it is crucial in maintaining public perception of fairness and integrity in the justice system that courts exhibit regard for fundamental rights and respect for prisoners as people the risk of unnecessary deprivation of liberty particularly undermines the fairness integrity or public reputation of judicial proceedings in the context of a plain guidelines error because of the role the district court plays in calculating the range and the relative ease of correcting the error unlike quote cases where trial strategies in retrospect might be criticized for leading to harsher sentence end quote guidelines miscalculations ultimately result from judicial error Glover see also pew that was especially so here where the district court's error in imposing Rosales Morales sentence was based on a mistake made in the pre-sentence investigation report by the probation office which works on behalf of the district court moreover quote a remand for resentencing while not costless does not invoke the same difficulties as a remand for retrial does end quote Molina Martinez quote a resentencing is a brief event normally taking less than a day and requiring the attendance of only the defendant counsel and court personnel end quote United States be Williams ensuring the accuracy of guidelines determinations also serves the purpose of quote providing certainty and fairness in sentencing end quote on a greater scale the guidelines assist federal courts across the country in achieving uniformity and proportionality in sentencing to realize those goals it is important that sentencing proceedings actually reflect the nature of the offense and criminal history of the defendant because the United States sentencing commission relies on data developed during sentencing proceedings including information in the pre-sentence investigation report to determine whether revisions to the guidelines are necessary when sentences based on incorrect guidelines ranges go uncorrected the commission's ability to make appropriate amendments is undermined footnote 2 in broad strokes the public legitimacy of our justice system relies on procedures that are quote neutral accurate consistent trustworthy and fair end quote and that quote provide opportunities for error correction end quote Bowers and Robinson's perceptions of fairness and justice in considering claims like Rosales Morales's then quote what reasonable citizen wouldn't bear a rightly diminished view of the judicial process and its integrity if courts refuse to correct obvious errors of their own device that threaten to require individuals to linger longer in federal prisons than the law demands end quote United States in the context of a plain guidelines error that affects substantial rights that diminished view of the proceedings ordinarily will satisfy a lot of fourth prong as it does case footnote the dissent maintains that adhering to procedure does not have prime importance for purposes of the fourth prong because the court has held in some instances where the error was not likely to affect the substantive outcome that the procedural error alone did not satisfy a lot of fourth prong post at seven setting Johnson v. United States United States v. Cotton United States v. Marcus the cases on which the dissent relies do not stand for the view however that procedural errors are unimportant or could never satisfy a lot of fourth prong especially where as here the defendant has shown a likelihood that the error affected the substantive outcome as the fifth circuit itself concluded there is a reasonable probability that without correction of the guidelines error Rosalis Morales will spend more time in prison than the district court otherwise would have considered necessary that error was based on a mistake by the probation office a mistake that can be remedied through a relatively inexpensive re-sentencing proceeding of course any exercise of discretion at the fourth prong of Elano inherently requires quote a case specific and fact intensive end quote inquiry Puckett v. United States there may be instances where countervailing factors satisfy the court of appeals that the fairness, integrity and public reputation of the proceedings will be preserved absent correction but on the facts of this case there are no such factors footnote as the dissent points out a defendant bears the burden to persuade the court that the error seriously affected the fairness integrity or public reputation of judicial proceedings United States v. Vaughn in the ordinary case proof of a plain guidelines error that affects the defendant's substantive rights is sufficient to meet that burden three the United States and the dissent agree with Rosalis Morales that the fifth circuits formulation of the standard for the exercise of discretion under rule 52 b quote is an inaccurate description end quote of Elano's fourth prong they nevertheless maintain that Rosalis Morales is not entitled to relief we are unpersuaded though a few points merit brief discussion first the United States and the dissent caution that a grant of relief in Rosalis Morales case and in others like his would be inconsistent with the court's statements that discretion under rule 52 b should be exercised sparingly and reserved for exceptional circumstances as an initial matter Jones and the cases it relies on for the point that discretion should be exercised sparingly would have required additional jury proceedings on remand either a resentencing or retrial as we have explained a decision remanding a case to the district court for resentencing on the basis of a guidelines miscalculation is far less burdensome than a retrial or other jury proceedings and thus does not demand such a high degree of caution in any event the circumstances surrounding Rosalis Morales case are exceptional within the meaning of the court's precedent on the plain error review as they are reasonably likely to have resulted in a longer prison sentence than necessary and there are no counter veiling factors that otherwise further the fairness integrity or public reputation of judicial proceedings the fact that as a result of the court's holding most defendants in Rosalis Morales situation will be eligible for relief under rule 52 b does not justify a decision that ignores the harmful effects of allowing the error to persist second the United States and the dissent assert that because Rosalis Morales' sentence falls within the corrected guidelines range the sentence is presumptively reasonable and quote less likely to indicate a serious injury to the fairness integrity or public reputation of judicial proceedings end quote a substantive reasonableness determination however is an entirely separate inquiry from whether an error warrants correction under plain error review before a court of appeals can consider the substantive reasonableness of a sentence quote it must first ensure that the district court committed no significant procedural error such as failing to calculate or improperly calculating the guidelines range end quote gall this makes imminent sense for the district court is charged in the first instance with determining whether taking all sentencing factors into consideration including the correct guidelines range a sentence is quote sufficient but not greater than necessary end quote title 18 of the U.S. Code if the district court is unable properly to undertake that inquiry because of an error in the guidelines range the result sentence no longer bears the reliability that would support a quote presumption of reasonableness end quote on review likewise regardless of its ultimate reasonableness a sentence that lacks reliability because of unjust procedures may well undermine public perception of the proceedings the mere fact that Rosales Morales's sentence falls within the corrected guidelines range does not preserve the fairness integrity or public reputation of the proceedings footnote the dissent's discussion of Rosales Morales criminal history misses the point that history is relevant to the district court's determination of an appropriate sentence under title 18 of the U.S. Code it does not help explain whether the plain procedural error in Rosales Morales's sentencing proceedings which may have resulted in a longer sentence than is justified in light of that history seriously affects the fairness integrity or public reputation of judicial proceedings third the United States and the dissent contend that our decision quote creates the very opportunity for sandbagging that rule 52B is supposed to prevent end quote post but that concern fails to account for the realities at play in sentencing proceedings as this court repeatedly has explained quote the guidelines are the starting point for every sentencing calculation in the federal system end quote Hughes v. United States it is hard to imagine that defense counsel would quote deliberately forgo objection now end quote to a plain guidelines error that would subject her client to a higher guidelines range quote because counsel perceives some slightly expanded chance to argue for a plain error later end quote Henderson v. United States even setting aside the conflict such a strategy would create with defense counsel's ethical obligations to represent her client vigorously and her duty of candor toward the court any benefit from such a strategy is highly speculative there is no guarantee that a court of appeals would agree to a remand and no basis to believe that a district court would impose a lower sentence upon resentencing than the court would have imposed at the original sentencing proceedings had it been aware of the plain guidelines error for for the forgoing reasons we conclude that the 5th circuit abused its discretion in applying an unduly burdensome articulation of Olano's fourth prong and declining to remand Rosales Morales' case for resentencing in the ordinary case as here the failure to correct a plain guidelines error that affects a defendant's substantial rights will seriously affect the fairness, integrity and public representation of judicial proceedings the judgment of the court of appeals is therefore reversed and the case is remanded for further proceedings consistent with this opinion it is so ordered footnote 2 similarly the work of the federal bureau of prisons is hindered by uncorrected guidelines errors because the bureau relies in part on aspects of the guidelines calculation in designating and classifying prisoners based on security and program needs the bureau of prisons program statement number p5100.08 subject inmate security designation and custody classification chapter 2 page 1 chapter 4 page 8 chapter 6 page 5 end of section 28 recording by Gretchen LeBoon Columbus end of a collection of Supreme Court opinions by the United States Supreme Court