 Section 23 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 Miles McCain. Burger v. New York. 388 U.S. 41. Decided June 12, 1967. 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. Justice Clark delivered the opinion of the court. This writ tests the validity of New York's permissive eavesdrop statute. New York Code of Criminal Procedure, Section 813A. Under the 4th, 5th, 9th, and 14th Amendments. The claim is that the statute sets up a system of surveillance which involves trespassery intrusions into private, constitutionally protected premises, authorizes general searches for mere evidence, and is an invasion of the privilege against self-incrimination. The trial court upheld the statute, the appellate division affirmed without opinion, and the court of appeals did likewise by a divided vote. We granted Sir Shirari. We have concluded that the language of New York statute is too broad in its sweep, resulting in a trespassery intrusion into a constitutionally protected area, and is, therefore, violative of the 4th and 14th Amendments. This disposition obviates the necessity for any discussion of the other points raised. Berger, the petitioner, was convicted on two counts of conspiracy to bribe the chairman of the New York State Liquor Authority. The case arose out of the complaint of one Ralph Pansini to the district attorney's office that agents of the state liquor authority had entered his bar and grill, and without cause seized his books and records. Pansini asserted that the raid was in reprisal for his failure to pay a bribe for a liquor license. Numerous complaints had been filed with the district attorney's office charging the payment of bribes by applicants for liquor licenses. On the direction of that office, Pansini, while equipped with a mini-phone recording device, interviewed an employee of the authority. The employee advised Pansini that the price for a license was $10,000 and suggested that he contact attorney Harry Nair. Nair subsequently told Pansini that he worked with the authority employee before and that the latter was aware of the going rate on liquor licenses downtown. On the basis of this evidence, an eavesdrop order was obtained from a justice of the state Supreme Court as provided by section 813A. The order permitted the installation for a period of 60 days of a recording device in Nair's office. On the basis of leads obtained from this eavesdrop, a second order permitting the installation for a like period of a recording device in the office of one Harry Steinman was obtained. After some two weeks of eavesdropping, a conspiracy was uncovered involving the issuance of liquor licenses for the Playboy and Tenement Clubs, both of New York City. Petitioner was indicted as a go-between for the principal conspirators, who, though not named in the indictment, were disclosed in a bill of particulars. Relevant portions of the recordings were received in evidence at the trial and were played to the jury, all over the objection of the petitioner. The parties have stipulated that the district attorney had no information upon which to proceed to present a case to the grand jury or on the basis of which to prosecute the petitioner, except by use of the eavesdrop evidence. Eavesdropping is an ancient practice which, at common law, was condemned as a nuisance. At one time, the eavesdropper listened by naked ear under the eaves of houses or their windows or beyond their walls, seeking out private discourse. The awkwardness and undignified manner of this method, as well as its susceptibility to abuse, was immediately recognized. Electricity, however, provided a better vehicle and, with the advent of the Telegraph, surreptitious interception of messages began. As early as 1862, California found it necessary to prohibit the practice by statute. During the Civil War, General J. E. B. Stewart is reputed to have had his own eavesdropper, along with him in the field, whose job it was, to intercept military communications of the opposing forces. Subsequently, newspapers reportedly raided one another's news-gathering lines to save energy, time, and money. Racing news was likewise intercepted in flash to betters before the official result arrived. The telephone brought on a new and more modern eavesdropper known as the wiretapper. Interception was made by a connection with the telephone line. This activity has been with us for three quarters of a century. Like its cousins, wiretapping proved to be a commercial as well as a police technique. Illinois outlawed it in 1895 and, in 1905, California extended its telegraph interception prohibition to the telephone. Some 50 years ago, a New York legislative committee found that police, in cooperation with the telephone company, had been tapping telephone lines in New York despite an act passed in 1895 prohibiting it. During prohibition days, wiretaps were the principal source of information relied upon by the police as the basis for prosecutions. In 1934, the Congress outlawed the interception without authorization and the divulging or publishing of the contents of wiretaps by passing section 605 of the Communications Act of 1934. New York, in 1938, declared by constitutional amendment that the right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, but permitted by ex parte order of the Supreme Court of the State the interception of communications on a showing of reasonable ground to believe that evidence of a crime might be obtained. Sophisticated electronic devices have now been developed, commonly known as BUGS, which are capable of eavesdropping on anyone in almost any given situation. They are to be distinguished from wiretaps, which are confined to the interception of telegraphic and telephonic communications. Miniature in size, no larger than a postage stamp, these gadgets pick up whispers within a room and broadcast them half a block away to a receiver. It is said that certain types of electronic rays beamed at walls or glass windows are capable of catching voice vibrations as they are bounced off the surfaces. Since 1940, eavesdropping has become a big business. Manufacturing concerns offer complete detection systems which automatically record voices under almost any conditions by remote control. A microphone concealed in a book, a lamp, or other unsuspected place in a room or made into a fountain pen, tie clasp, label button, or cuff link increases the range of these powerful wireless transmitters to a half mile. Receivers pick up the transmission with interference-free reception on a special wave frequency and, of late, a combination mirror transmitter has been developed which permits not only sight but voice transmission up to 300 feet. Likewise, parabolic microphones, which can overhear conversations without being placed within the premises monitored, have been developed. As science developed these detection techniques, lawmakers sensing the resulting invasion of individual privacy have provided some statutory protection for the public. Seven states, California, Illinois, Maryland, Massachusetts, Nevada, New York, and Oregon, prohibits surreptitious eavesdropping by mechanical or electronic device. However, all save Illinois permit official court-ordered eavesdropping, some 36 states prohibit wiretapping, but of these, 27 permit authorized interception of some type. Federal law, as we have seen, prohibits interception of divulging or publishing of the content of wiretaps without exception. In sum, it is fair to say that wiretapping, on the whole, is outlawed, except for permissive use by law enforcement officials in some states, while electronic eavesdropping is, save for seven states, permitted both officially and privately, and, in six of the seven states, electronic eavesdropping, bugging, is permissible on court order. The law, though jealous of individual privacy, has not kept pace with these advances in scientific knowledge. This is not to say that individual privacy has been relegated to a second-class position, for it has been held since Lord Camden's day that intrusions into it are subversive of all the comforts of society. And the founders so decided a quarter of a century later when they declared in the Fourth Amendment that the people had a right to be secure in their person's houses, papers, and effects against unreasonable searches and seizures. Indeed, that right, they wrote, shall not be violated and no warrants shall issue, but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized. End of quote. Almost a century thereafter, this court took specific and lengthy notice of antique V. Carrington, finding that its holding was undoubtedly familiar to and in the minds of those who framed the Fourth Amendment, buoyed the United States. And after quoting from Lord Camden's opinion at some length, Mr. Justice Bradley characterized it thus. Quote. The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case. They apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. End of quote. Boyd held unconstitutional an act of the Congress authorizing a court of the United States to require a defendant in a revenue case to produce in court his private books, invoices, and papers or else the allegations of the government were to be taken as confessed. The court found that the essence of the offence was the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. The act, the court found, violated the Fourth Amendment in that it authorized a general search contrary to the amendment's guarantee. The amendment, however, carried no criminal sanction and the federal statute's not affording one, the court in 1914 formulated and pronounced the federal exclusionary rule in weeks v. United States. Prohibiting the use in federal courts of any evidences in violation of the amendment, the court held quote, the effect of the Fourth Amendment is to put the courts of the United States under limitations and restraints as to the exercise of such power and to forever secure the people against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not and the duty of giving to it force and effect is obligatory upon all. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights. End of quote. The court was faced with its first wiretap case in 1928, Olmsted of the United States. There, the interception of Olmsted's telephone line was accomplished without entry upon his premises and was, therefore, found not to be prescribed by the Fourth Amendment. The basis of the decision was that the Constitution did not forbid the obtaining of evidence by wiretapping unless it involved actual unlawful entry into the House. Statements in the opinion that a conversation passing over a telephone wire cannot be said to come within the Fourth Amendment's enumeration of persons, houses, papers, and effects have been negated by our subsequent cases as here and after noted. They found conversation was within the Fourth Amendment's protections and that the use of electronic devices to capture it was a search within the meaning of the amendment and we so hold. In any event, Congress soon thereafter and some say an answer to Olmsted specifically prohibited the interception without authorization and the divulging or publishing of the contents of telephonic communications. And the Nardone cases extended the exclusionary rule to wiretap evidence offered in federal prosecutions. The first bugging case reached the court in 1942 in Goldman v. United States. There, the court found that the use of a detective phone placed against an office wall in order to hear private conversations in the office next door did not violate the Fourth Amendment because there was no physical trespass in connection with the relevant interception. And in on leave the United States, we found that since no trespass was committed, a conversation between Lee and a federal agent occurring in the former's laundry and electronically recorded was not condemned by the Fourth Amendment. Thereafter, in Silverman v. United States, the court found that the eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by the petitioners. A spike a foot long with a microphone attached to it was inserted under a baseboard into a party wall until it made contact with the heating duct that ran through the entire house occupied by Silverman, making a perfect sounding board through which the conversations in question were overheard. Significantly, the court held that its decision to quote, not turn upon the technicality of a trespass upon a party wall as a matter of local law. It is based upon the reality of an actual intrusion into a constitutionally protected area, end of quote. In Wong Sun v. United States, the court for the first time specifically held that verbal evidence may be the fruit of an official illegality under the Fourth Amendment along with the more common tangible fruits of unwarranted intrusion. It used these words, quote, the exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It follows from our holding in Silverman v. United States that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of papers and effects. End of quote. And in Lopez v. United States, the court confirmed that it had quote, in the past sustained instances of electronic eavesdropping against constitutional challenge when devices have been used to enable government agents to overhear conversations which would have been beyond the reach of the human ear. It has been insisted only that the electronic device not be planted by an unlawful physical invasion of a constitutionally protected area. End of quote. In this case, a recording of a conversation between a federal agent and the petitioner in which the latter offered the agent a bribe was admitted in evidence. Rather than constituting eavesdropping, the court found that the recording quote, was used only to obtain the most reliable evidence possible of a conversation in which the government's own agent was a participant and which that agent was fully entitled to disclose. End of quote. It is now well settled that the Fourth Amendment's right of privacy has been declared enforceable against the states through the Due Process Clause of the Fourteenth Amendment. Quote. The security of one's privacy against arbitrary intrusion by the police, which is at the core of the Fourth Amendment, is basic to a free society. End of quote. And its fundamental protections are guaranteed against invasion by the states. This right has most recently received denunciation in Kamaravi Municipal Court. Quote. The basic purpose of this amendment, as recognized in countless discussions of this court, is to safeguard the privacy and security of individuals against arbitrary invasions by government officials. End of quote. Likewise, the court has decided that while the standards of reasonableness required under the Fourth Amendment are the same under the Fourteenth, they are not susceptible of procrustian application, we said there, that, quote, the reasonableness of a search is to be determined by the trial court from the facts and circumstances of the case, and in the light of the fundamental criteria laid down by the Fourth Amendment and in the opinions of this court applying that amendment. End of quote. We, therefore, turned to New York Statute to determine the basis of a search and seizure authorized by it upon the order of a state Supreme Court justice, a county judge, or general sessions judge of New York County. Section 813a authorizes the issuance of an ex-parte order for eavesdropping upon, quote, oath or affirmation of a district attorney or of the attorney general or of an officer above the rank of sergeant of any police department of the state or of any political subdivision thereof. End of quote. The oath must state, quote, that there is reasonable ground to believe that evidence of a crime may be thus obtained and particularly describing the person or persons whose communications, conversations, or discussions are to be overheard or recorded and the purpose thereof and identifying the particular telephone number or telegraph line involved. End of quote. The judge, quote, may examine on oath the applicant and any other witness he may produce and shall testify himself of the existence of reasonable grounds for the granting of such application. End of quote. The order must specify the duration of the eavesdrop, not exceeding two months unless extended, and, quote, any such order together with the papers upon which the application was based shall be delivered to and retained by the applicant as authority for the eavesdropping authorized therein. End of quote. While New York statute satisfies the Fourth Amendment's requirement that a detached authority be interposed between the police and the public, the broad sweep of the statute is immediately observable. It permits the issuance of the order or warrant for eavesdropping upon the oath of the attorney general, the district attorney, or any police officer above the rank of sergeant stating that there is reasonable ground to believe that evidence of a crime may be thus obtained. Such a requirement raises a serious probable cause question under the Fourth Amendment. Warrants may only issue, but a, quote, upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized. End of quote. Probable cause under the Fourth Amendment exists where the facts and circumstances within the affianced knowledge and of which he has reasonably trustworthy information are sufficient unto themselves to warrant a man of reasonable caution that an offense has been or is being committed. It is said, however, by the petitioner and the state agrees that the reasonable ground requirement of section 813a is undisputedly equivalent to the probable cause requirement of the Fourth Amendment. This is indicated by people v. Grossman, reversed on other grounds, also see people v. Bechene. While we have found no case on the point by New York's highest court, we need not pursue the question further, because we have concluded that the statute is deficient on its face in other respects. Since petitioner clearly has standing to challenge the statute, being indisputedly affected by it, we need not consider either the sufficiency of the affidavits upon which the eavesdrop orders were based or the standing of petitioner to attack the search and seizure made there under. The Fourth Amendment commands that a warrant may issue not only upon probable cause supported by oath or affirmation but also particularly describing the place to be searched and the persons or things to be seized. New York statute lacks this particularization. It merely says that a warrant may issue on reasonable ground to believe that evidence of a crime may be obtained by the eavesdrop. It lays down no requirement for the particularity in the warrant as to what specific crime has been committed, nor the place to be searched or the persons or things to be seized as specifically required by the Fourth Amendment. The need for particularity and evidence of reliability in the showing required when judicial authorization of a search is sought is especially great in the case of eavesdropping. By its very nature, eavesdropping involves an intrusion on privacy that is broad in scope. As was said in Osborne of the United States, the indiscriminate use of such devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments and imposes a heavier responsibility on this court in its supervision of the fairness of procedures. There, two judges acting jointly authorize the installation of a device on the person of a prospective witness to record conversations between him and an attorney for a defendant then on trial in the United States District Court. The judicial authorization was based on an affidavit of the witness setting out in detail previous conversations between the witness and the attorney concerning the bribery of jurors in the case. The recording device was, as the court said, authorized under the most precise and discriminate circumstances circumstances which fully met the requirement of particularity of the Fourth Amendment. The court was asked to exclude the evidence of the recording of the conversations seized pursuant to the order of constitutional grounds, weeks of the United States, or in the exercise of supervisory power, McNabb the United States. The court refused to do so, finding that the recording, although an invasion of the privacy protected by the Fourth Amendment, was admissible because of the authorization of the judges based upon, quote, a detailed factual affidavit alleging the commission of a specific criminal offense directly for the narrow and particularized purpose of ascertaining the truth of the affidavit's allegations, end of quote. The invasion was lawful because there was sufficient proof to obtain a search warrant to make the search for the limited purpose outlined in the order of the judges. Through these precise and discriminate procedures, the order authorizing the use of the electronic device afforded similar protections to those that are present in the use of conventional warrants, authorizing the seizure of tangible evidence. Among other safeguards, the order described the type of conversations sought with particularity, thus indicating the specific objective of the government in entering the constitutionally protected area and the limitations placed upon the officer executing the warrant. Under it, the officer could not search unauthorized areas. Likewise, once the property sought and for which the order was issued was found, the officer could not use the order to further search. In addition, the order authorized one limited intrusion rather than a series or a continuous surveillance. And we note that a new order was issued when the officer sought to resume the search and probable cause was shown for the succeeding one. Moreover, the order was executed by the officer with dispatch, not over a prolonged and extended period. In this manner, no greater invasion of privacy was permitted than was necessary under the circumstances. Finally, the officer was required to and did make a return on the order showing how it was executed and what was seized. Through these strict precautions, the danger of an unlawful search and seizure was minimized. By contrast, New York statute lays down no such precise and discriminate requirements. Indeed, it authorizes the indiscriminate use of electronic devices as specifically condemned in Osborne. A search warrant is a drastic one and must be carefully circumscribed so as to prevent unauthorized invasions of the sanctity of a man's home and the privacies of life. New York's broadside authorization, rather than being carefully circumscribed so as to prevent unauthorized invasions of privacy, actually permits general searches by electronic devices, the truly offensive character of which was first condemned in antique v. Carrington and which were then known as general warrants. The use of the latter was a motivating factor behind the Declaration of Independence. In view of the many cases commenting on the practice, it is sufficient here to point out that, under these general warrants, customs officials were given blanket authority to conduct general searches for goods imported to the colonies in violation of the tax laws of the Crown. The Fourth Amendment's requirement that a warrant particularly describe the place to be searched and the persons or things to be seized repudiated these general warrants and quote, makes general searches impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant. End of quote. We believe the statute here is equally offensive. First, as we have mentioned, eavesdropping is authorized without requiring belief that any particular offense has been or is being committed nor that the property sought, the conversations, be particularly described. The purpose of the probable cause requirement of the Fourth Amendment to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed is thereby wholly aborted. Likewise, the statute's failure to describe with particularity the conversations sought gives the officer a roving commission to seize any and all conversations. It is true that the statute requires the naming of the person or persons whose communications, conversations or discussions are to be overheard or recorded, but this does no more than identify the person whose constitutionally protected area is to be invaded rather than particularly describing the communications, conversations or discussions to be seized. As with general warrants, this leaves too much to the discretion of the officer executing the order. Secondly, authorization of eavesdropping for a two-month period is the equivalent of a series of intrusions, searches and seizures pursuant to a single showing of probable cause. Prompt execution is also avoided. During such a long and continuous 24 hours a day, period, the conversations of any and all persons coming into the area covered by the device will be seized indiscriminately and without regard to their connection with the crime under investigation. Moreover, the statute permits and there were authorized here extensions of the original two-month period, presumably for two months each, on a mere showing that such extension is in the public interest. Apparently, the original grounds on which the eavesdrop order was initially issued also forms the basis of the renewal. This, we believe, is insufficient without a showing of present probable cause for the continuance of the eavesdrop. Third, the statute places no termination date on the eavesdrop once the conversation sought is seized. This is left entirely in the discretion of the officer. Finally, the statute's procedure, necessarily because its success depends on secrecy, has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts. On the contrary, it permits unconsented entry without any showing of exigent circumstances. Such a showing of exigency in order to avoid notice would appear more important in eavesdropping with its inherent dangers than that required when conventional procedures of search and seizure are utilized. Nor does the statute provide for a return on the warrant, thereby leaving full discretion in the officer as to the use of seized conversations of innocent as well as guilty parties. In short, the statute's blanket grant of permission to eavesdrop is without adequate judicial supervision or protective procedures. It is said with fervor that electronic eavesdropping is a most important technique of law enforcement and that outlawing it will severely cripple crime detection. The monumental report of the President's Commission on Law Enforcement and Administration of Justice entitled The Challenge of Crime in a Free Society informs us that the majority of law enforcement officials say that this is especially true in the detection of organized crime. As the Commission reports, there can be no question about the serious proportions of professional criminal activity in this country. However, we have found no empirical statistics on the use of electronic devices, bugging in the fight against organized crime. Indeed, there are even figures available in the wiretap category which indicate to the contrary. As the Commission points out, quote, wiretapping was the mainstay of the New York attack against organized crime until federal court decisions intervened. Recently, Chief Reliance in some offices has been placed on bugging where the information is to be used in court. Law enforcement officials believe that the successes achieved in some parts of the state are attributable primarily to a combination of dedicated and competent personnel and adequate legal tools and that the failure to do more in New York has resulted primarily from the failure to commit additional resources of time and men, end of quote, further than electronic devices. Moreover, Brooklyn's District Attorney Silver's poll of the state of New York indicates that during the 12-year period, 1942 to 1954, duly authorized wiretaps in bribery and corruption cases constituted only a small percentage of the whole. It indicates that this category involved only 10% of the total wiretaps. The overwhelming majority were in the categories of larceny, extortion, coercion, and blackmail accounting for almost 50%. Organized gambling was about 11%. Statistics are not available on subsequent years. An often repeated statement of District Attorney Hogan of New York County was made a hearing before the Senate Judiciary Committee at which he advocated the amendment of the Communications Act of 1934 so as to permit telephonic interception of conversations. As he testified, quote, Federal Statutory Law, the 1934 Act, has been interpreted in such a way as to bar us from divulging wiretap evidence even in the courtroom in the course of criminal prosecution. End of quote. Mr. Hogan then said that without it, wiretaps, my own office could not have convicted top figures in the underworld. He then named nine persons his office had convicted and one on whom he had furnished leads secured from wiretaps to the authorities of New Jersey. Evidence secured from wiretaps, as Mr. Hogan said, was not admissible in criminal prosecutions. He was advocating that the Congress adopt a measure that would make it admissible. The President's Commission also emphasizes in its report the need for wiretapping in the investigation of organized crime because of the telephones relatively free use by those engaged in the business and the difficulty of infiltrating their organizations. The Congress, though long impartuned, has not amended the 1934 act to permit it. We are also advised by the Solicitor General of the United States that the federal government has abandoned the use of electronic eavesdropping for prosecutorial purposes. Despite these actions of the federal government, there has been no failure of law enforcement in that field. As the Chief Justice said in concurring in the result Lopez v. United States The fantastic advances in the field of electronic communication constitute a great danger to the privacy of the individual. Indiscriminate use of such devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments. In any event, we cannot forgive the requirements of the Fourth Amendment in the name of law enforcement. This is no formality that we require today, but a fundamental rule that has long been recognized as basic the privacy of every home in America. While the requirements of the Fourth Amendment are not inflexible or obtusely unyielding to the legitimate needs of law enforcement, it is not asking too much that officers be required to comply with the basic command of the Fourth Amendment before the innermost secrets of one's home or office are invaded. Few threats to liberty exist which are greater than that posed by the use of eavesdropping devices. Some may claim that, without the use of eavesdropping devices, crime detection in certain areas may suffer some delays since eavesdropping is quicker, easier and more certain. However, techniques and practices may well be developed that will operate just as speedily and certainly and, what is more important, without attending illegality. It is said that neither a warrant nor statute authorizing eavesdropping can be drawn so as to meet the Fourth Amendment's requirements. If that be true, then the fruits of eavesdropping devices are barred under the amendment. On the other hand, this court has in the past under specific conditions and circumstances sustained the use of eavesdropping devices. In the latter case, the eavesdropping device was permitted where the commission of a specific offense was charged, its use was under the most precise and discriminant circumstances, and the effective administration of justice in a federal court was at stake. The courts are under no greater restrictions. The Fourth Amendment does not make the precincts of the home or the office sanctuaries where the law can never reach. But it does prescribe a constitutional standard that must be met before official invasion is permissible. Our concern with the statute here is whether its language permits a trespassery invasion of the home or office by general warrant contrary to the command of the Fourth Amendment. As it is written, we believe that it does. Reversed. End of Section 23 Section 24 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 Walls v. Tax Commission of City of New York 397 U.S. 464 Decided May 4th, 1970 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 delivered the opinion of the court. Appellant, owner of real estate in Richmond County, New York sought an injunction in the New York courts to prevent the New York City Tax Commission from granting property tax exemptions to religious organizations for religious properties used solely for religious worship. The exemption from state taxes is authorized by Article 16, Section 1 of the New York Constitution which provides in relevant part quote, exemptions from taxation may be granted only by general laws. Exemptions may be altered or repealed except those exempting real or personal property used exclusively for religious educational or charitable purposes as defined by law and owned by any corporation or association organized or conducted exclusively for one or more of such purposes and not operating for profit end of quote. Footnote, Article 16, Section 1 of the New York State Constitution is implemented by Section 420 subdivision 1 of the New York real property tax law which states in pertinent part quote, real property owned by corporation or association organized exclusively for the moral or mental improvement of men and women or for religious Bible-tracked, charitable, benevolent, missionary, hospital infirmary, educational, public playground, scientific literary, bar association, medical society, library, patriotic, historical or cemetery purposes and used exclusively for carrying out thereupon one or more of such purposes shall be exempt from taxation as provided in this section. End of quote. End of footnote. The essence of appellant's contention was that the New York City Tax Commission's grant of an exemption to church property indirectly requires the appellant to make a contribution to religious bodies and thereby violates provisions prohibiting establishment of religion under the First Amendment which under the Fourteenth Amendment is binding on the states. Footnote. The First Amendment to the United States Constitution provides in part that quote Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. End of quote. End of footnote. Appellant's motion for summary judgment was granted an appellant division of the New York Supreme Court and the New York Court of Appeals affirmed. We noted probable jurisdiction and affirm. One. Prior opinions of this court have discussed the development and historical background of the First Amendment in detail. See Everson v. Board of Education Engle v. Vitale. It would therefore serve no useful purpose to review in detail the background of the establishment and free exercise clauses of the First Amendment or to restate what the court's opinions have reflected over the years. It is sufficient to note that for the men who wrote the religion clauses of the First Amendment the quote establishment end of quote of a religion connoted sponsorship, financial support and active involvement of the sovereign in religious activity. In England and in some colonies at the time of the separation in 1776 the Church of England was sponsored and supported by the Crown as a state or established church. In other countries quote establishment end of quote meant sponsorship by the sovereign of the Lutheran or Catholic Church. The exclusivity of established churches in the 17th and 18th centuries of course was often carried to prohibition of other forms of worship. The establishment and free exercise clauses of the First Amendment are not the most precisely drawn portions of the Constitution. The sweep of the absolute prohibitions in the religion clauses may have been calculated but the purpose was to state an objective not to write a statute. In attempting to articulate the scope of the two religion clauses the court's opinions reflect the limitations inherent in formulating general principles on a case by case basis. The considerable internal inconsistency in the opinions of the court derives from what in retrospect may have been two sweeping utterances on aspects of these clauses that seemed clear in relation to the particular cases but have limited meaning as general principles. The court has struggled to find a neutral course between the two religion clauses both of which are cast in absolute terms and either of which, if expanded to a logical extreme, would tend to clash with the other. For example, in Zorak v. Klausen Mr. Justice Douglas writing for the court noted quote, the First Amendment however does not say that in every and all respects there shall be a separation of church and state end of quote. Quote, we sponsor an attitude on the part of the government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherence and the appeal of its dogma, end of quote. Mr. Justice Harlan expressed something of this in his dissent in Sherbert v. Werner saying that the constitutional neutrality imposed on us quote, is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation, end of quote. The course of constitutional neutrality in this area cannot be an absolutely straight line. Rigidity could well defeat the basic purpose of these provisions which is to ensure that no religion be sponsored or favored none commanded and none inhibited. The general principle deducible from the First Amendment and all that has been said by the court is this, that we will not tolerate either governmentally established religion or governmental interference with religion. Short of these expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference. Each value judgment under the religion clauses must therefore turn on whether particular acts in question are intended to establish or interfere with religious beliefs and practices or have the effect of doing so. Adherence to the policy of neutrality that derives from an accommodation establishment and free exercise clauses has prevented the kind of involvement that would tip the balance toward government control of churches or governmental restraint on religious practice. Adherence of particular faiths and individual churches frequently take strong positions on public issues including, as this case reveals in the several briefs amici, vigorous advocacy of legal or constitutional positions. Of course churches as much as secular bodies and private citizens have that right. No perfect or absolute separation is really possible. The very existence of the religion clauses is an involvement of sorts one that seeks to mark boundaries to avoid excessive entanglement. The hazards of placing too much weight on a few words or phrases of the court is abundantly illustrated within the pages of the court's opinion in Everson. Mr. Justice Black, writing for the court's majority said, the First Amendment quote, means at least this neither a state nor the federal government can pass laws which aid one religion, aid all religions, or prefer one religion over another. End of quote. Yet he had no difficulty in holding that quote, measured by these standards we cannot say that the First Amendment prohibits New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools. It is undoubtedly true that children are helped to get to church schools. There's even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets. End of quote. The court did not regard such quote aid, end of quote, to schools teaching particular religious faith as any more a violation of the establishment clause than providing quote, state-paid policemen detailed to protect children at the schools from the very real hazards of traffic, end of quote. Mr. Justice Jackson in perplexed dissent in Everson noted that, quote, the undertones of the opinion advocating complete and uncompromising separation seem utterly discordant with its conclusion, end of quote. Perhaps so. One can sympathize with Mr. Justice Jackson's logical analysis but agree with the court's eminently sensible and realistic application of the language of the establishment clause. In Everson the court declined to construe the religion clauses with a literalness that would undermine the ultimate constitutional objective as illuminated by history. Surely bus transportation and police protection to pupils who receive this instruction, quote, aid, end of quote, that particular religion to maintain schools that plainly tend to assure future adherence to a particular faith by having control of their total education at an early age. No religious body that maintains schools would deny this as an affirmative, if not dominant policy of church schools. But if, as in Everson, buses can be provided to carry and policemen to protect church pupils, we fail to see how a broader range of police and fire protection given equally to all churches along with non-profit hospitals, art galleries and libraries receiving the same tax exemption is different for purposes of the religion clauses. Similarly, making textbooks available to pupils in parochial schools in common with public schools was surely an, quote, aid, end of quote, to the sponsoring churches because it relieved those churches of an enormous aggregate cost for those books. Supplying of costly teaching materials was not seen either as manifesting a legislative purpose to aid or as having a primary effect of aid contravening the First Amendment. In so holding, the court was heeding both its own prior decisions and our religious tradition. Mr. Justice Douglas in Zorak v. Klausen, Supra, after recalling that we, quote, are religious people whose institutions presuppose a supreme being, end of quote, went on to say, quote, we make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. When the state encourages religious instruction, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs, end of quote. With all the risks inherent in programs that bring about administrative relationships between public education bodies and church sponsored schools, we have been able to chart a course that preserved the autonomy and freedom of religious bodies while avoiding any semblance of established religion. This is a, quote, tight rope, end of quote, and one, we have successfully traversed. Two, the legislative purpose of the property tax exemption is neither the advancement nor the inhibition of religion. It is neither sponsorship nor hostility. New York, in common with the other states, has determined that certain entities that exist in a harmonious relationship to the community at large, and that foster its, quote, moral or mental improvement, end of quote, should not be inhibited in their activities by property taxation or the hazard of loss of those properties for non-payment of taxes. It is not singled out one particular church or religious group or even churches as such. Rather, it is granted exemption to all houses of religious worship within a broad class of property owned by nonprofit quasi-public corporations, which include hospitals, libraries, playgrounds, scientific, professional, historical, and patriotic groups. The state has an affirmative policy that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest. Qualification for tax exemption is not perpetual or immutable. Some tax-exempt groups lose that status when their activities take them outside the classification and new entities can come into being and qualify for exemption. Governments have not always been tolerant of religious activity and hostility toward religion has taken many shapes and forms economic, political, and sometimes harshly oppressive. Grants of exemption historically reflect the concern of authors of constitutions and statutes as to the latent dangers inherent in the imposition of property taxes. Exemption constitutes a reasonable and balanced attempt to guard against those dangers. The limits of permissible state accommodations to religion are by no means co-extensive with a non-interference mandated by the Free Exercise Clause. To equate the two would be to deny a national heritage with roots in the revolution itself. We cannot read New York's statute as attempting to establish religion. It is simply sparing the exercise of religion from the burden of property taxation levied on private profit institutions. We find it unnecessary to justify the tax exemption on the social welfare services or quote good works end of quote that some churches perform for parishioners and others family counseling aid to the elderly and the infirm and to children churches vary substantially in the scope of such services programs expand or contract according to resources and need as public sponsored programs enlarge private aid from the church sector may diminish the extent of social services may vary depending on whether the church serves an urban or rural a rich or poor constituency to give emphasis to so variable an aspect of the work of religious bodies would introduce an element of governmental evaluation and standards as to the worth of particular social welfare programs thus producing a kind of continuing day to day relationship which the policy of neutrality seeks to compromise hence the use of a social welfare yardstick as a significant element to qualify for tax exemption could conceivably give rise to confrontations that could escalate to constitutional dimensions determining that the legislative purpose of tax exemption is not aimed at establishing sponsoring or supporting religion does not end the inquiry however we must also be sure that the end result the effect is not an excessive government entanglement with religion the test is inescapably one of degree either course taxation of churches or exemption occasions some degree of involvement with religion elimination of exemption would tend to expand the involvement of government by giving rise to tax valuation of church property tax liens tax foreclosures and the direct confrontations and conflicts that follow in the train of those legal processes granting tax exemptions to churches necessarily operates to afford an indirect economic benefit and also gives rise to some but yet a lesser involvement than taxing them in analyzing either alternative the questions are whether the involvement is excessive and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of involvement obviously a direct money subsidy would be a relationship pregnant with involvement and as with most governmental grant programs could encompass sustained and detailed administrative relationships for enforcement of statutory or administrative standards but that is not this case the hazards of churches supporting government are hardly less in their potential than the hazards of government supporting churches a general assessment proposed in the Virginia legislature in 1784 prompted the writing of James Madison's remonstrance governmental supportive religion is common in many countries end of footnote each relationship carries some involvement rather than the desired insulation and separation we cannot ignore the instances in history when you are in a state of emergency the instances in history when church supportive government led to the kind of involvement we seek to avoid the grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state no one has ever suggested the tax exemption has converted libraries, art galleries or hospitals into arms of the state there is no genuine nexus between tax exemption and establishment of religion as Mr. Justice Holmes commented in a related context a page of history is worth a volume of logic end of quote the exemption creates only a minimal and remote involvement between church and state and far less than taxation of churches it restricts the fiscal relationship between church and state and tends to complement and reinforce the desired separation insulating each from the other separation in this context cannot mean absence of all contact the complexities of modern life inevitably produce some contact and the fire and police protection received by houses of religious worship are no more than incidental benefits accorded all persons or institutions within a state's boundaries along with many other exempt organizations the appellant has not established even an arguable quantitative correlation between the payment of an ad valorem property tax and the receipt of these municipal benefits all of the 50 states provide for tax exemption of places of worship most of them doing so by constitutional guarantees for so long as federal income taxes have had any potential impact on churches in the last 5 years religious organizations have been expressly exempt from the tax footnote following passage of the 16th amendment federal income tax acts have consistently exempted corporations and associations organized and operated exclusively for religious purposes along with LMS groups from payment of the tax end of footnote such treatment is a end of quote to churches no more and no less in principle than the real estate tax exemption granted by states few concepts are more deeply embedded in the fabric of our national life beginning with pre-revolutionary colonial times then for the government to exercise at the very least this kind of benevolent neutrality toward churches and religious exercise generally so long as none was favored over others and none suffered interference it is significant that congress from its earliest days has viewed the religion clauses of the constitution as authorizing statutory real estate tax exemption to religious bodies in 1802 the 7th congress enacted a taxing statute for the county of alexandria adopting the 1800 virginia statutory pattern which provided tax exemptions for churches footnote in 1798 congress passed an act to provide for the valuation of lands and dwelling houses all existing state exemptions were expressly excluded from the aforesaid valuation and enumeration subsequent levies of direct taxes expressly or impliedly incorporated existing state exemptions and a footnote as early as 1813 the 12th congress refunded import duties paid by religious societies on the importation of religious articles footnote c6 statute 116 1813 relating to plates for printing bibles c also 6 statute 346 1826 relating to church vestments furniture and paintings 6 statute 162 1816 Bible plates 6 statute 600 1834 and 6 statute 675 c6 church bells end of footnote during this period the city council of washington dc acting under congressional authority enacted a series of real and personal property assessments that uniformly exempted church property in 1870 the congress specifically exempted all churches in the district of columbia and a pertinent grounds and property quote from any and all taxes or assessments national municipal and of quote footnote subsequent acts of congress carried over the substance of the exemption and a footnote it is obviously correct that no one acquires a vested or protected right in violation of the constitution by long use even when that span of time covers our entire national existence and indeed predates it yet an unbroken practice of according the exemption to churches openly and by affirmative state action covertly or by state inaction is not something to be lightly cast aside nearly 50 years ago mr. justice holmes stated quote if a thing has been practiced for 200 years by common consent it will need a strong case for the 14th amendment to affect it end of quote nothing in this national attitude toward religious tolerance and two centuries of uninterrupted freedom from taxation has given the remotest sign of leading to an established church or religion and on the contrary is operated affirmatively to help guarantee the free exercise of all forms of religious belief thus it is hardly useful to suggest that tax exemption is but the quote foot in the door end of quote or the quote nose of the camel in the tent end of quote leading to an established church if tax exemption can be seen as this first step toward quote establishment end of quote of religion as mr. justice Douglas fears the second step has been long in coming any move that realistically quote establishes end of quote a church or tends to do so can be dealt with quote while this court sits end of quote mr. justice cardozo commented in the nature of the judicial process on the quote tendency of a principle to expand itself to the limit of its logic end of quote such expansion must always be contained by the historical frame of reference of the principles purpose and there is no lack of vigilance on this score by those who fear religious entanglement in government the argument that making quote fine distinctions end of quote between what is and what is not absolute under the constitution is to render us a government of men not laws gives too little fact that it is an essential part of adjudication to draw distinctions including fine ones in the process of interpreting the constitution we must frequently decide for example what are quote reasonable end of quote under the fourth amendment determining what acts of government tend to establish or interfere with religion falls well within what courts have long been called upon to do in sensitive areas it is interesting to note that while the precise question we now decide has not been directly before the court previously the broad question was discussed by the court in relation to real estate taxes assessed nearly a century ago on land owned by an adjacent to a church in Washington DC at that time congress granted real estate tax exemptions to buildings devoted to art to institutions of public charity libraries cemeteries and quote church buildings and grounds actually occupied by such buildings end of quote in denying tax exemption as to land owned by but not used for the church but rather to produce income the church concluded quote in the exercise of this taxing power congress like any state legislature unrestricted by constitutional provisions may at its discretion wholly exempt certain classes of property from taxation or may tax them at a lower rate than other property end of quote it appears that at least up to 1885 this court reflecting more than a century of our history and uninterrupted practice accepted without discussion the proposition that federal or state grants of tax exemption to churches were not a violation of the religion clauses of the first amendment as to the New York statute we now confirm that view affirmed end of section 24 recording by Colleen McMahon section 25 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 row v. Wade 410 US 113 decided January 2nd, 1973 part 1 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. Justice Blackman delivered the opinion of the court this Texas federal appeal and its Georgia companion Bolton Post present constitutional challenges to state criminal abortion legislation the Texas statutes under attack here are typical of those that have been in effect in many states for approximately a century the Georgia statutes in contrast have a modern cast and are a legislative product that to an extent at least obviously reflects the influences of recent attitudinal change of advancing medical knowledge and of new thinking about an old issue we forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy of the vigorous opposing views even among physicians and of the deep and seemingly absolute convictions that the subject inspires one's philosophy, one's experiences one's exposure to the raw edges of human existence one's religious training one's attitudes toward life and family and their values and the moral standards one establishes and seeks to observe are all likely to influence and to color one's thinking and conclusions about abortion in addition, population growth pollution, poverty and racial overtones tend to complicate and not to simplify the problem our task of course is to resolve the issue by constitutional measurement free of emotion and of predilection we seek earnestly to do this and because we do, we have inquired into and in this opinion place some emphasis upon medical and medical legal history and what that history reveals about man's attitudes toward the abortion procedure over the centuries we bear in mind too Mr. Justice Holmes' Admonition in his now vindicated dissent in Lochner v. New York The Constitution is made for people of fundamentally differing views and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States end of quote the Texas statutes that concern us here are articles 1191 through 1194 and 1196 of the state's penal code footnote article 1191 abortion shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine or shall use towards her any violence or means whatever externally or internally applied and thereby procure an abortion he shall be confined in the penitentiary not less than two nor more than five years if it be done without her consent the punishment shall be doubled by abortion is meant that the life fetus or embryo shall be destroyed in the woman's womb or that a premature birth thereof be caused article 1192 furnishing the means whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice article 1193 attempt at abortion if the means used shall fail to produce an abortion the offenders nevertheless guilty of an attempt to produce abortion provided it be shown that such means were calculated to produce that result and shall be fined not less than one hundred nor more than one thousand dollars article 1194 murder in producing abortion if the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder article 1196 nothing in this chapter applies to an abortion procured or attempted by an abortion article 1195 not attacked here article 1195 destroying unborn child whoever shall during parturition of the mother destroyed the vitality or life in a child in a state of being born and before actual birth which child would otherwise have been born alive shall be confined in the penitentiary for life or for not less than five years end of footnote these make it a crime to procure an abortion as therein defined or to attempt one except with respect to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother similar statutes are in distance in a majority of the states texas first enacted a criminal abortion statute in 1854 this was soon modified into language that has remained substantially unchanged to the present time the final article in each of these compilations provided the same exception as does the present article 1196 for an abortion by quote medical advice for the purpose of saving the life of the mother end of quote long ago a suggestion was made that the texas statutes were unconstitutionally vague because of definitional deficiencies the texas court of criminal appeals disposed of that suggestion peremptorily saying only quote it is also insisted in the motion in arrest of judgment that the statute is unconstitutional and void in that it does not sufficiently define or describe the offensive abortion we do not concur in respect to this question end of quote the same court recently has held again that the states abortion statutes are not unconstitutionally vague or over broad the court held that quote the state of texas has a compelling interest to protect fetal life end of quote that article 1191 quote is designed to protect fetal life end of quote that the texas homicide statutes particularly article 1205 of the penal code are intended to protect a person quote in existence by actual birth end of quote and thereby implicitly recognize other human life that is not quote in existence by actual birth end of quote that the definition of human life is for the legislature and not the courts that article 1196 quote is more definite than the district of columbia statute upheld in united states versus village end of quote and that the texas statute quote is not vague and indefinite or over broad end of quote a physician's abortion conviction was affirmed in thompson the court observed that any issue as to the burden of proof under the exemption of article 1196 quote is not before us end of quote end of footnote to jane row footnote the name is a pseudonym end of footnote a single woman who is residing in dallas county texas instituted this federal action in march 1970 against the district attorney of the county she sought a declaratory judgment that the texas criminal abortion statutes were unconstitutional on their face and an injunction restraining the defendant from enforcing the statutes row alleged that she was unmarried and pregnant that she wished to terminate her pregnancy by an abortion quote performed by a competent licensed physician under safe clinical conditions end of quote that she was unable to get a legal abortion in texas because her life did not appear to be threatened by the continuation of her pregnancy and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions she claimed that the texas statutes were unconstitutionally vague and that they abridged her right of personal privacy protected by the first fifth ninth and fourteenth amendments by an amendment to her complaint row purported to sue quote on behalf of herself and all other women end of quote similarly situated james hubert howford a licensed physician sought and was granted leave to intervene in rose action in his complaint he alleged that he had been arrested previously for violations of the texas abortion statutes and that two such prosecutions were pending against him he described conditions of patients who came to him seeking abortions and he claimed that for many cases he as a physician was unable to determine whether they fell within or outside the exception recognized by article eleven ninety six he alleged that as a consequence the statutes were vague and uncertain in violation of the fourteenth amendment and that they violated his own and his patients rights to privacy in the doctor patient relationship and his own right to practice medicine rights he claimed were guaranteed by the first fourth fifth ninth and fourteenth amendments john and mary doe footnote these names are pseudonyms and the footnote a married couple filed a companion complaint to that of row they also named the district attorney as defendant claimed like constitutional violations and sought declaratory and injunctive relief the dose alleged that they were a childless couple that mrs. doe was suffering from a quote neurochemical and of quote disorder that her physician had quote advised her to avoid pregnancy until such time as her condition was materially improved and of quote although a pregnancy at the present time would not present quote a serious risk and of quote to her life that pursuant to medical advice she had discontinued use of birth control pills and that if she should become pregnant she would want to terminate the pregnancy by an abortion performed by a competent licensed physician under safe clinical conditions by an amendment to their complaint the dose purported to sue quote on behalf of themselves and all couples similarly situated end of quote the two actions were consolidated and heard together by a duly convened three judge district court the suits thus presented the situations of the pregnant single woman the childless couple with the wife not pregnant and the licensed practicing physician all joining in the attack on the texas criminal abortion statutes upon the filing of affidavits motions were made for dismissal and for summary judgment the court held that row and members of her class and doctor howford had standing to sue and presented justiciable controversies but that the dose had failed to alleged facts sufficient to state a present controversy and did not have standing it concluded that with respect to the request for a declaratory judgment abstention was not warranted on the merits the district court held that the quote fundamental right of single women and married persons to choose whether to have children is protected by the ninth through the 14th amendment and of quote and that the texas criminal abortion statutes were void on their face because they were both unconstitutionally vague and constituted an over broad infringement of the plaintiffs ninth amendment rights the court then held that abstention was warranted with respect to the request for an injunction it therefore dismissed the dose complaint declared the abortion statutes void and dismiss the application for injunctive relief the plaintiff's row and dough and the intervener howford pursuant to 28 usc section 1253 have appealed to this court from that part of the district court's judgment denying the injunction the defendant district attorney has purported to cross appeal pursuant to the same statute from the court's grant of declaratory relief to row and howford both sides also have taken protective appeals to the united states court of appeals for the fifth circuit that court ordered the appeals held and abeyance pending decision here we postponed decision on jurisdiction to the hearing on the merits it might have been preferable if the defendant pursuant to our rule 20 have presented to us a petition for certiori before judgment in the court of appeals with respect to the granting of the plaintiff's prayer for declaratory relief our decisions in mitchell v donovan and gun v university committee are to the effect that section 1253 does not authorize an appeal to this court from the grant or denial of declaratory relief alone we conclude nevertheless that those decisions do not foreclose our review of both the injunctive and the declaratory aspects of a case of this kind when it is properly here as this one is on appeal under 1253 from specific denial of injunctive relief and the arguments as to both aspects are necessarily identical it would be destructive of time and energy for all concerned where we to rule otherwise for we are next confronted with issues of judiciability standing and abstention have row and the dose established that quote personal stake in the outcome of the controversy end of quote that ensures that quote the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution end of quote and what effect did the pendency of criminal abortion charges against doctor howford in state court have upon the propriety of the federal courts granting relief to him as a plaintiff intervener a jane row despite the use of the pseudonym no suggestion is made that row is a fictitious person for purposes of her case we accept is true and is established her existence her pregnant state as of the inception of her suit in March 1970 and as late as May 21st of that year when she filed an alias affidavit with the district court and her inability to obtain illegal abortion in Texas viewing rose case as of the time of its filing and thereafter until as late as May there can be little dispute that it then presented a case or controversy and that holy apart from the class aspects she as a pregnant single woman thwarted by the Texas criminal abortion laws had standing to challenge those statutes indeed we do not read the appellies brief as really asserting anything to the contrary that quote logical nexus between the status asserted and the claim sought to be adjudicated end of quote and the necessary degree of contentiousness are both present the appellie notes however that the record does not disclose that row was pregnant at the time of the district court hearing on May 22nd 1970 or on the following June 17th when the court's opinion and judgment were filed and he suggests that rose case must now be moot because she and all other members of her class are no longer subject to any 1970 pregnancy the usual role in federal cases is that an actual controversy must exist at stages of appellate or certiorari review and not simply at the date the action is initiated but when as here pregnancy is a significant fact in the litigation the normal 266 day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete if that termination makes a case moot pregnancy litigation seldom will survive much beyond the trial stage and appellate review will be effectively denied our law should not be that rigid pregnancy often comes more than once to the same woman and in the general population if managed to survive it will always be with us pregnancy provides a classic justification for a conclusion of non mootness it truly could be quote capable petition yet evading review end of quote we therefore agree with the district court that Jane row had standing to undertake this litigation that she presented a justiciable controversy and that the termination of her 1970 pregnancy has not rendered her case moot be doctor the doctor's position is different he entered rose litigation as a plaintiff intervener alleging in his complaint that he has been arrested for violating the texas abortion laws and at the present time stands charged by indictment with violating said laws in the criminal district court of dallas county texas to wit one the state of texas versus james h. howford number c six nine five three zero seven one h and two the state of texas versus james h. howford number c six nine two five two four h in both cases the defendant is charged with abortion end of quote in his application for leave to intervene the doctor made like representations as to the abortion charges pending in the state court these representations were also repeated in the affidavit he executed and filed in support of his motion for summary judgment doctor howford is therefore in the position of seeking in a federal court declaratory and injunctive relief with respect to the same statutes under which he stands charged in criminal prosecutions simultaneously pending in state court although he stated that he has been arrested in the past for violating the states abortion laws he makes no allegation of any substantial and immediate threat to any federally protected right that cannot be asserted in his defense against the state prosecutions neither is there any allegation of harassment or bad faith prosecution in order to escape the role articulated in the cases cited in the next paragraph of this opinion that absent harassment and bad faith a defendant in a pending state criminal case cannot affirmatively challenge in federal court the statutes under which the state is prosecuting him doctor howford seeks to distinguishes status as a present state defendant from his status as a quote potential future defendant end of quote and to assert only the latter for the purposes here we see no merit in that distinction our decision in samuels v. mackle compels the conclusion that the district court aired when it granted declaratory relief to doctor howford instead of refraining from so doing the court of course was correct in refusing to grant injunctive relief to the doctor the reasons supportive of that action however are those expressed in samuels v. mackle supra and in younger v. harris boil v. landry peres v. ledesma and burn v. carolias see also dombrowski v. fister we note in passing that younger and its companion cases were decided after the three judge district court decision in this case doctor howford's complaint in intervention therefore is to be dismissed footnote we need not consider what different result if any would follow if doctor howford's intervention were on behalf of a class his complaint in intervention does not purport to assert a class and makes no reference to any class apart from an allegation that he quote and others similarly situated end of quote must necessarily guess at the meaning of article 1196 his application for leave to intervene goes somewhat further for it asserts that plaintiff row does not adequately protect the interest of the doctor quote the class of people who are physicians and the class of people who are patients end of quote the leave application however is not the complaint despite the district court's statement to the contrary we fail to perceive the essentials of a class suit in the howford complaint end of footnote he is remitted to his defenses in the state criminal proceedings against him we reverse the judgment of the district court in so far as it granted doctor howford relief and failed to dismiss his complaint in intervention see the dose in view of our ruling as to rose standing in her case the issue of the dose standing in their case has little significance the claims they assert are essentially the same as those of row and they attack the same statutes nevertheless we briefly note the dose posture their pleadings present them as a childless married couple the woman not being pregnant who have no desire to have children at this time because of their having received medical advice that mrs. Doe should avoid pregnancy and for quote other highly personal reasons end of quote but they quote fear they may face the prospect of becoming parents end of quote and if pregnancy ensues they would want to terminate end of quote it by an abortion they assert an inability to obtain an abortion legally in texas and consequently the prospect of obtaining illegal abortion there or going outside texas to some place where the procedure could be obtained legally and competently we thus have as plaintiffs a married couple who have as their asserted immediate and present injury only an alleged quote detrimental effect upon their marital happiness end of quote because they are forced to quote the choice of refraining from normal sexual relations or of endangering married does health through a possible pregnancy end of quote their claim is that sometime in the future mrs. Doe might become pregnant because of possible failure of contraceptive measures and at that time in the future she might want an abortion that might then be illegal under the texas statutes the very phrasing of the dose position reveals its speculative character their alleged injury rests on possible future contraceptive failure possible future pregnancy possible future unpreparedness for parenthood and possible future impairment of health any one or more of these several possibilities may not take place and all may not combine in the dose estimation these possibilities might have some real or imagined impact upon their marital happiness but we are not prepared to say that the bear allegation of so indirect an injury is sufficient to present an actual case or controversy the dose claim falls far short of those resolved otherwise in the cases that the dose urge upon us namely investment company institute v camp data processing service v camp and eperson v arkansas see also true acts v rage the dose therefore are not appropriate plaintiffs in this litigation their complaint was properly dismissed by the district court and we affirm that dismissal five the principal thrust of the appellants attack on the texas statutes is that they improperly invade a right said to be possessed by the pregnant woman to choose to terminate her pregnancy appellant would discover this right in the concept of personal liberty embodied in the 14th amendments due process clause or in personal marital familial and sexual privacy said to be protected by the bill of rights or its penumbra's or among those rights reserved to the people by the ninth amendment before dressing this claim we feel desirable briefly to survey in several aspects the history of abortion for such insight as that history may afford us and then to examine the state purposes and interests behind the criminal abortion laws six it perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of states today are of relatively recent vintage those laws generally prescribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman's life are not of ancient or even of common law origin instead they derive from statutory changes affected for the most part in the latter half of the 19th century one ancient attitudes these are not capable of precise determination we are told that at the time of the Persian Empire abortive patients were known and that criminal abortions were severely punished we are also told however that abortion was practiced in Greek times as well as in the Roman era and that quote it was resorted to without scruple end of quote the Ephesians serranos often described as the greatest of the ancient gynecologists appears to have been generally opposed to Rome's prevailing free abortion practices he found it necessary to think first of the life of the mother and he resorted to abortion when upon this standard he felt the procedure advisable Greek and Roman law afforded little protection to the unborn if abortion was prosecuted in some places it seems to have been based on a concept of a violation of the father's right to his offspring ancient religion did not bar abortion the Hippocratic Oath of the famous oath that is stood so long as the ethical guide of the medical profession and that bears the name of the great Greek 460 to 377 BC who has been described as the father of medicine the quote wisest and the greatest practitioner of his art end of quote and the quote most important and most complete medical personality of antiquity end of quote who dominated the medical schools of his time and who typified the sum of the medical knowledge of the past the oath varies somewhat according to the particular translation but in any translation the content is clear quote I will give no deadly medicine to anyone if asked nor suggest any such counsel and in like manner I will not give to a woman a pessary to produce abortion end of quote or quote I will neither give a deadly drug to anybody if asked for it nor will I make a suggestion to this effect and finally I will not give to a woman an abortive remedy end of quote although the oath is not mentioned in any of the principle briefs in this case or in Dovey Bolton it represents the apex of the development of strict ethical concepts in medicine and its influence endures to this day why did not the authority of Hippocrates dissuade abortion practice in his time and that of Rome the late Dr. Edelstein provides us with a theory the oath was not tested even in Hippocrates day only the Pythagorean school of philosophers frowned upon the related act of suicide most Greek thinkers on the other hand commended abortion at least prior to viability for the Pythagoreans however it was a matter of dogma for them the embryo was adamant from the moment of conception an abortion meant destruction of a living being the abortion clause of the oath therefore quote echoes Pythagorean doctrines end of quote and quote in no other stratum of Greek opinion were such views held or proposed in the same spirit of uncompromising austerity end of quote Dr. Edelstein then concludes that the oath originated in a group representing only a small segment of Greek opinion and that it certainly was not accepted by all ancient physicians he points out that medical writings down to Galen AD 130 to 200 quote give evidence of the violation of almost every one of its injunctions end of quote but with the end of antiquity a decided change took place resistance against suicide and against abortion became common the oath came to be popular the emerging teachings of Christianity were in agreement with the Pythagorean ethic the oath quote became the nucleus of all medical ethics end of quote and quote was applauded as the embodiment of truth end of quote thus suggest Dr. Edelstein it is quote a Pythagorean manifesto and not the expression of an absolute standard of medical conduct end of quote this it seems to us is a satisfactory and acceptable explanation of the Hippocratic oath apparent rigidity it enables us to understand in historical context a long accepted and revered statement of medical ethics three the common law it is undisputed that at common law abortion performed before quote quickening end of quote the first recognizable movement of the fetus in utero appearing usually from the 16th to the 18th week of pregnancy was not an indictable offense the absence of a common law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical theological and civil and canon law concepts of when life begins these disciplines variously approached the question in terms of the point at which the embryo or fetus became formed or recognizably human or in terms of one egg person came into being that is infused with a soul or animated a loose consensus evolved in early English law that these events occurred at some point between conception and live birth footnote early philosophers believed that the embryo or fetus did not become formed and begin to live until at least 40 days after conception for a male and 80 to 90 days for a female Aristotle's thinking derived from his three-stage theory of life vegetable animal rational the vegetable stage was reached a conception the animal at quote animation end of quote and the rational soon after live birth this theory together with the 40 to 80 day view came to be accepted by early Christian thinkers the theological debate was reflected in the writings of Saint Augustine who made a distinction between embryo and animadis not yet endowed with a soul and embryo animadis he may have drawn upon exodus chapter 21 verse 22 at one point however he expressed the view that human powers cannot determine the point during fetal development at which the critical change occurs Galen in three treatises related to embryology accepted the thinking of Aristotle and his followers later Augustine on abortion was incorporated by Gratian into the Decretum published about 1140 this Decretal and the Decretals that followed were recognized as the definitive body of canon law until the new code of 1917 end of footnote this was quote immediate animation end of quote although Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female a view that persisted until the 19th century there was otherwise little agreement about the precise time of formation or animation there was agreement however that prior to this point the fetus was to be regarded as part of the mother and its destruction therefore was not homicide due to continued uncertainty about the precise time when animation occurred to the lack of any empirical basis for the 40 to 80 day view and perhaps to Aquinas' definition of movement as one of the two first principles of life Brackton focused upon quickening as the critical point the significance of quickening was echoed by later common law scholars and found its way into the received common law in this country whether abortion of a quick fetus was a felony at common law or even a lesser crime is still disputed Brackton writing early in the 13th century thought it homicide footnote Brackton took the position that abortion by blow or poison was homicide quote if the fetus be already formed and animated and particularly if it be animated end of quote or as a later translation puts it quote if the fetus is already formed or quickened especially if it is quickened end of quote end of footnote but the later and predominant view following the great common law scholars has been that it was at most a lesser offense in a frequently cited passage took the position that abortion of a woman quote quick with child end of quote is quote a great misprision and no murder end of quote Blackstone followed saying that while abortion after quickening had once been considered manslaughter though not murder quote modern law end of quote took a less severe view a recent review of the common law precedence argues however that those precedents contradict coke and that even post quickening abortion was never established as a common law crime footnote means the phoenix of abortional freedom is a penumbral or ninth amendment right about to arise from the 19th century legislative ashes of a 14th century common law liberty the author examines the two principal precedents cited marginally by coke both contrary to his dictum and traces the treatment of these and other cases by earlier commentators he concludes that coke who himself participated as an advocate in an abortion case in 1601 may have intentionally misstated the law the author even suggests a reason coax strong feelings against abortion coupled with his determination to assert common law secular jurisdiction to assess penalties for an offense that traditionally had been an exclusively ecclesiastical or canon law crime see also later who notes that some scholars doubt that the common law ever was applied to abortion that the English ecclesiastical courts seem to have lost interest in the problem after 1527 and that the preamble to the English legislation of 1803 referred to in the text that quote no adequate means have been hitherto provided for the prevention and punishment of such offenses end of quote end of footnote this is of some importance because while most American courts ruled in holding or dictum that abortion of an unquickened fetus was not criminal under their received common law others followed coke in stating that abortion of a quick fetus was a quote misprision end of quote a term related to mean misdemeanor that their reliance on coke in this aspect of the law was uncritical and apparently in all the reported cases dictum do probably to the paucity of common law prosecutions for post quickening abortion makes it now appear doubtful that abortion was ever firmly established as a common law crime even with respect to the destruction of a quick fetus for the English statutory law England's first criminal abortion statute it made abortion of a quick fetus section one a capital crime but in section two it provided lesser penalties for the felony of abortion before quickening and thus preserved the quickening distinction this contrast was continued in the general revision of 1828 it disappeared however together with the death penalty in 1837 and did not reappear in the against the person active 1861 that formed the core of English anti-abortion law until the liberalizing reforms of 1967 in 1929 the infant life preservation act came into being its emphasis upon the destruction of quote the life of a child capable of being born alive end of quote it made a willful act performed with the necessary intent a felony it contained a proviso that one was not to be found guilty of the offense quote unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only preserving the life of the mother end of quote a seemingly notable development in the English law was the case of Rex v. born this case apparently answered in the affirmative the question whether an abortion necessary to preserve the life of the pregnant woman was accepted from the criminal penalties of the 1861 act in his instructions to the jury judge mcnaughton referred to the 1929 act and observed that that act related to quote the case where a child is killed by a willful act at the time when it is being delivered in the ordinary course of nature end of quote he concluded that the 1861 acts use of the word quote unlawfully end of quote imported the same meaning expressed by the specific proviso in the 1929 act even though there was no mention of preserving the mother's life in the 1861 act he then construed the phrase quote preserving the life of the mother end of quote broadly that is quote in a reasonable sense end of quote to include a serious and permanent threat to the mother's health and instructed the jury to a quit doctor born if it found he had acted in a good faith belief that the abortion was necessary for this purpose the jury did a quit recently parliament enacted a new abortion law this is the abortion act of 1967 the act permits a licensed physician to perform an abortion where two other licensed physicians agree a quote that the continuance of the pregnancy would involve risk to the life of the pregnant woman or of injury to the physical or mental health of the pregnant woman or any existing children of her family greater than if the pregnancy were terminated end of quote or be quote that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped end of quote the act also provides that in making this determination quote account may be taken of the pregnant woman's actual or reasonably foreseeable environment end of quote it also permits a physician without the concurrence of others to terminate pregnancy where he is of the good faith opinion that the abortion quote is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman end of quote five the American law in this country the law in effect in all but a few states until the mid 19th century was the pre-existing English common law Connecticut the first state to enact abortion legislation adopted in 1821 that part of Lord Ellen borrows act that related to a woman quote quick with child end of quote the death penalty was not imposed abortion before quickening was made a crime in that state only in 1860 in 1828 New York enacted legislation that in two respects was to serve as a model for early anti-abortion statutes first while barring destruction of an unquickened fetus as well as a quick fetus it made the former only a misdemeanor but the latter second degree manslaughter second it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it quote shall have been necessary to preserve the life of such mother or shall have been advised by two physicians to be necessary for such purpose end of quote by 1840 when Texas had received the common law only eight American states statutes dealing with abortion it was not until after the war between the states that legislation began generally to replace the common law most of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening most punished attempts equally with completed abortions while many statutes included the exception for an abortion thought by one or more physicians to be necessary to save the mother's life that provision soon disappeared and the typical law required that the procedure actually be necessary for that purpose gradually in the middle and late 19th century the quickening distinction disappeared from the statutory law of most states and the degree of the offense and the penalties were increased by the end of the 1950s a large majority of the jurisdictions banned abortion however and whenever performed unless done to save or preserve the life of the mother the exceptions Alabama and the District of Columbia permitted abortion to preserve the mother's health three states permitted abortions that were not quote unlawfully end of quote performed or that were not quote without lawful justification end of quote leaving interpretation of those standards to the courts in the past several years however a trend toward liberalization of abortion statutes has resulted in adoption by about one third of the states of less stringent laws most of them patterned against the ALI model penal code section 230.3 set forth as appendix B to the opinion in Dovey Bolton footnote 14 states have adopted some form of the ALI statute Mr. Justice Clark described some of these states as having quote led the way end of quote by the end of 1970 four other states had repealed criminal penalties for abortions performed in early pregnancy by licensed physician subject to stated procedural and health requirements the precise status of criminal abortion laws in some states is made unclear by recent decisions in state and federal courts striking down existing state laws in whole or in part end of footnote it is thus apparent that common law at the time of the adoption of our constitution and throughout the major portion of the 19th century abortion was viewed with less disfavor than under most American statutes currently in effect phrasing it another way a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most states today at least with respect to the early stage of pregnancy and very possibly without such limitation the opportunity to make this choice was present in this country well into the 19th century even later the law continued for some time to treat less punitively an abortion procured in early pregnancy six the position of the American Medical Association the anti-abortion mood prevalent in this country in the late 19th century was shared by the medical profession indeed the attitude of the profession may have played a significant role in the enactment of stringent criminal abortion legislation during that period an AMA committee on criminal abortion was appointed in May 1857 it presented its report to the 12th annual meeting that report observed that the committee had been appointed to investigate criminal abortion quote with a view to its general suppression end of quote it deplored abortion and its frequency and it listed three causes of quote this general demoralization the first of these causes is a widespread popular ignorance of the character of the crime a belief even among mothers themselves that the fetus is not alive till after the period of quickening the second of the agents alluded to is the fact that the profession themselves are frequently supposed careless of fetal life the third reason of the frightful extent of this crime is found in the grave defects of our laws both common and statute as regards the independent and actual existence of the child before birth as a living being these errors which are sufficient in most instances to prevent conviction are based and only based upon mistaken and exploded medical dogmas with strange inconsistency the law fully acknowledges the fetus in utero and its inherent rights for civil purposes while personally and as criminally affected it fails to recognize it and to its life as yet denies all protection the committee then offered and the association adopted resolutions protesting quote against such unwarrnable destruction of human life end of quote calling upon state legislatures to revise their abortion laws and requesting the cooperation of state medical societies quote impressing the subject end of quote in 1871 a long and vivid report was submitted by the committee on criminal abortion the observation quote we had to deal with human life in a matter of less importance we could entertain no compromise an honest judge on the bench would call things by their proper names we could do no less end of quote it proffered resolutions adopted by the association recommending among other things that it quote be unlawful and unprofessional for any physician to induce abortion or premature labor without the concurrent opinion of at least one respectable consulting physician and then always with the view to the safety of the child if that be possible end of quote and calling quote the attention of the clergy of all denominations to the perverted views of morality entertained by a large class of females I and men also on this important question end of quote end of section 25 recording by Colleen McMahon