- COMMON LAW, THE EARLY STATUTES, AND THE EMBERS OF REFORM
- Legal Abortions (c. 1250–1803)
- Abortion Becomes a Crime: The Birth of Anti-Abortion Legislation (1803–1900)
- Abortion is Illegal (1900–1960)
- THE TIDE CHANGES
- The Liberalization Movement (1960–1973)
- The Decision in Roe and its Aftermath (1973–1982)
During the late seventeenth, the whole of the eighteenth, and early nineteenth centuries, English and American women were totally free from all restraints, ecclesiastical as well as secular, in regard to the termination of unwanted pregnancies . . .
—Cyril C. Means, Jr.
In 1973, Justice Harry Blackmun wrote in Roe v. Wade
[i]t is undisputed that at common law, abortion performed before “quickening”—the first recognizable movement of the fetus in utero, appearing from the 16th to the 18th week of pregnancy— was not an indictable offense.
Furthermore, Justice Blackmun referred to a “recent review” that argued that even post-quickening abortion was never established as a criminal offense under the common law. The review referred to was written by Professor Cyril Means, Jr.,a Professor of Law at New York Law School.
Up until 1968, scholars had neglected to produce or analyze the history of abortion in Anglo-American law. Professor Means was a member of the Governor’s Commission Appointed to Review New York State’s Abortion Law and his exhaustive research was incorporated into that Report, which was the first history of abortion. The Report noted that abortion was not illegal in either England or America before the nineteenth century, and that even when abortion was banned in the 1800s, the purpose was solely to protect the life of the mother. Professor Means’ history, described as the“new orthodoxy,” is now accepted by the vast majority of legal scholars.
The practice of abortion was common throughout history. Records show that the Romans relied on the juice of the now extinct silphium plant to induce abortions, while the Greeks employed the herb pennyroyal for the same purpose.However, the starting point for the present discussion must be the common law decisions that preceded the first state antiabortion laws passed in America.
In England between 1327 and 1803, and in the United States between 1607 and 1830, the common law afforded women the right to have an abortion. The bases for this law were primarily two anonymous cases: (1) “The Twinslayer’s Case,” also known as Rex v. de Bourton, involved a defendant who had beaten a woman in an advanced stage of pregnancy, terminating her pregnancy with twins. The justices were not willing to consider the matter as a felony. (2) “The Abortionist’s Case,” Rex v. Anonymous, involved a defendant who was indicted for killing a child in a mother’s womb, but was not convicted because of the difficulty in proving his responsibility for the death. The writings of Henry de Bracton, an English jurist in the mid thirteenth century, indicate that these cases involved problems of procedural proof rather than the legality of abortion. Bracton wrote that if someone “[hit] a pregnant woman or g[ave] her poison in order to procure an abortion, if the foetus [was] already formed or quickened, especially if it [was] quickened, he commit[ted] homicide.”
It must be emphasized that Bracton used the word “quickened.” The reasoning behind this phrase was that the central issue, even at common law, was at what point a fetus became a person. Professor Means cited the writings of Sir William Staunford (1509–1558), a judge of the Court of Common Pleas, and William Lambarde (1536– 1601), a legal critic, who both claimed that an unborn child was not a person in rerum natura and consequently its death was not murder. The term “animated” was interpreted to have both “physical and philosophical underpinnings.” While doctors during the Middle Ages had no dependable methods of determining when a woman was pregnant, both theologians and philosophers alike argued that a fetus was not a human being until “ensoulment, or animation, the point between conception and birth at which the fetus acquires a rational soul.”
Furthermore, at the time Bracton wrote his commentary, abortion cases were primarily within the jurisdiction of ecclesiastical courts rather than the secular courts. Consequently, there would have been very meager secular case law on the subject, and other sources had to be examined to determine the common law. One English historian believed that Bracton’s discussion of abortion was actually developed from a twelfth century handbook on Canon Law.
By the seventeenth century, cases dealing with abortion fell within the jurisdiction of the Crown. At this point, commentators began to place a greater emphasis on whether a woman was “quick with child,” rather than pregnant, in discussions on abortions.
The doctrine of quickening was originally developed by St. Thomas Aquinas in the twelfth century. Aquinas taught that the fetus did not have a soul until the point of quickening, that fetal movement should be used to differentiate between pregnancy stages, and that abortion prior to this point was not the same as killing a person. Once abortion fell within the jurisdiction of the common law courts, the quickening doctrine was adopted as the legal standard for differentiating between legal and illegal abortions.
Evidence to support the use of this standard is found in the commentaries written by Sir Edward Coke in which he observes that abortions that took place after the “quickening” of a fetus was a felony, but not murder. Sir Matthew /Hale’s Summary of the Pleas of the Crown echoes these sentiments: “[Abortion] must be a person in rerum natura. If a woman quick with Child take a potion to kill it, and accordingly it is destroyed without being born alive, a great misprision, but no Felony; but if born alive, and after dies of that potion, it is Murder.”
The difference between Bracton’s and Justice Coke’s accounts of abortion law is due to the evolution of English law between 1200 and 1600. Bracton’s use of the terms “formed” or “animated” was derived from church law, not the common law of the secular courts. In contrast, Coke’s quickening doctrine gained widespread acceptance centuries after Bracton had written his work when abortion cases were being heard by secular courts. Thus, while the Church may have treated abortion before fetal movement as a crime, the common law did not.
Another factor supporting a common law distinction between “pregnant” and “quick with child” comes from the procedural rule of reprieve. As Sir William Blackstone wrote:
But if she once hath had the benefit of this reprieve, and been delivered, and afterward becomes pregnant again, she shall not be entitled to the benefit of a farther respite for that cause. For she may now be executed before the child is quick in the womb; and shall not, by her own incontinence, evade the sentence of justice.
Justice Blackstone also supported Justice Coke’s born-alive rule, believing that the act of abortion while “quick with child” was merely a misdemeanor.
Professor Means stated that “at common law, abortion, even after quickening, was not even a misprision,” although there is some evidence that an abortion performed after quickening could be prosecuted as a misdemeanor, as Coke contended. Be that as it may, abortions before quickening certainly were not chargeable offenses under English Common law.
There was an obvious distinction made involving the period in a pregnancy between twenty and twenty-four weeks, i.e., from the moment the woman can feel the fetus, until viability. This distinction is analogous to the modern constitutional thinking concerning state regulation and involvement at later stages of pregnancy. While it is evident that at common law an abortion during this period could be considered a crime, this can be explained by the lack of medical knowledge regarding the point at which a child is able to survive on its own outside the womb. The important point to take away from this portion of history, is that up until the enactment of antiabortion laws in the nineteenth century abortion was, in fact, legal under the common law, as Professor Means documented.
In 1803, abortion became a felony offense in England. The statute was developed by the Chancellor of England, Lord Ellenborough, a moralist and traditionalist No adequate explanation has been given for Lord Ellenborough’s Act, but it is clear that this law criminalized abortions at all stages of pregnancy. Incredibly, the Act made successful abortions prior to quickening a crime punish able only by a fine, while the mere attempt to perform an abortion after quickening could yield a death sentence. The inconsistencies in Lord Ellenborough’s Act were “rectified” in 1828, when all surgical abortions were made illegal, and the punishment for prequickening abortions reduced.
The English abortion law was not immediately adopted in the United States. In fact, prior to 1821 prosecutions for abortion in the United States were “virtually nonexistent.” There is evidence that abortion after quickening had indeed been a crime in the colonies prior to the Revolution. However, after the United States gained its independence, there is no evidence to suggest abortion was treated as a crime during the first few decades of the new nation. Instead, reform movements inAmerica sought to adopt laws that lacked the “brutality of the English criminal code.” Thus, when the first reported abortion cases took place in Massachusetts in 1812, the Supreme Judicial Court dismissed the charges when the prosecution failed to prove that the woman had quickened,
In 1821, Connecticut became the first state to ban post-quickening abortions. The primary purpose of the law was to prosecute abortionists, rather than women. In practice, charges were only brought when a woman died or was grievously injured. In the following decade, Missouri, Illinois, and New York legislators adopted laws with a wording similar to the Connecticut statute; however, the statutes in Missouri and Illinois notably excluded the quickening doctrine. Nevertheless, prior to 1840, all but eight of the states retained the common-law right to pre-quickening abortions.
It remains somewhat of a mystery as to why some states, including New York, legislatively advanced the quickening doctrine by treating abortion before quickening as a misdemeanor. Although it has been argued that the phrase “quick with child” was synonymous with all stages of pregnancy, even in 1829, the argument is dispelled by the very language of theNew York statute, which explicitly distinguished between “any woman pregnant with a quick child” and simply a“pregnant woman.” The best explanation is that the few prosecutions that took place suggest that the change was not intended to treat the embryo as a victim of a crime. Other facts also support the proposition that the earliest American abortion laws were designed to protect the woman rather than the fetus. For example, it is indicative that in the two decades after Connecticut passed its law, no state abortion law punished the pregnant woman. In fact, a New Jersey case in 1858explicitly states that the legislature’s intent was not to prevent abortions, but rather to guard the “health and life of the mother.”Professor Means attributed this reasoning to the passage of the New York statutes in 1828. Thus, until the 1840s state abortion laws were passed because of a greater recognition that abortion procedures were unsafe and a threat to the life of the mother.
There were, however, several cases in the nineteenth century in which a court rejected the protection of fetal life as a purpose for banning abortion. This shift necessitates an inquiry into the cause of the mid-nineteenth century spread of antiabortion legislation designed to protect the unborn. Attitudes towards abortion in America began to change around the1840s due to three factors: “(1) the perceived frequency of abortions by white, middle class, Protestant, married women,(2) the dangers of abortion, and (3) the activism of physicians in opposition to abortion.”
Regarding the first factor, evidence shows that Americans originally believed abortion to be a problem particular to the lower classes of society. As James Mohr, Professor of History at the University of Oregon, indicates: “[b]efore 1840 abortion was perceived in the United States primarily as a recourse of the desperate, especially of the young woman in trouble who feared the wrath of an over exacting society.” In 1798, Thomas Malthus had published his Essay on the Principle of Population, in which he predicted that populations would eventually grow out of control, and suggested voluntary abstinence from sex as a solution. This was a “sobering warning to an English nation already concerned with agricultural rioting and urban unrest by large numbers of poor people.” Considering that most abortions Americans had heard of involved the poor, it is not surprising that abortion was often “overlooked.”
The process of commercialization brought abortion to the forefront of public attention in the early 1840s. Members of the medical community competed fiercely for clients in the new abortion industry. As a result, advertisements quickly became common practice, appearing in urban and rural newspapers, popular magazines and journals. In addition, some abortionists even gained fame and public attention. For instance, Madame Restell of New York City was arrested in 1841 for performing abortions on a large scale. She was convicted of only minor infractions, and then went on to open several East Coast branches after the publicity provided a boost to her career. Ms. Restelle was not an isolated case, but was the most famous of the 1840s abortionists.
After 1840, abortions increased, and rates rose from one abortion for every twenty-five to thirty live births at the turn of the century to one for every five or six by the middle of the nineteenth century. One potential reason for this change was that married women began to desire limiting their family size. A further piece of evidence for an increase in abortions is an almost four percent decline in birth rates from 1800 to 1900. However, it is worth noting that the increase in abortion rates was not simply due to more abortions taking place, but also due to the increased visibility of abortion. This had the important effect of changing public perception towards the belief that abortions were more common than earlier in American history. As a result, physicians and politicians alike grew concerned that white married women had begun using abortion as a method of birth control. In the mid-1800s, scholars writing on abortion were describing the practice as common to “every village, hamlet, and neighborhood in the United States.” As the idea that abortion was common took hold, so did an awareness that existing abortion procedures were dangerous. Abortions performed in New York as late as 1884, by competent physicians during the early stages of pregnancy, were ten to fifteen times more dangerous than childbirth. Thus, if protecting the health of the mother was the only reason antiabortion laws were passed during the nineteenth century, then their reasoning was justified.
Nonetheless, arguments in opposition began to emerge within a segment of the medical profession at the newly founded American Medical Association (AMA). The campaign was led by Doctor Horatio Robinson Storer, who introduced a resolution in Massachusetts in 1857, recommending that the Suffolk County Medical Society consider whether further antiabortion legislation was necessary in the Commonwealth. The AMA argued that the fetus was alive before quickening and that it possesses “inherent rights, for civil purposes.”
Several reasons have been put forth to explain the surge in physician opposition. The main one was the claim that physicians saw in the abortion controversy an opportunity to force “irregulars from the profession.” “The regulars felt that if they could prohibit abortion it would eliminate most of the irregulars’ practice and make it financially undesirable to continue.”Additionally, the majority of physicians were white Anglo-Saxons who were prejudiced against Catholic immigrants based on fears of developing a Catholic majority.
On the religious front, both the Roman Catholic Church as well as the Presbyterian Church began to oppose abortion with increasing frequency. The strongest opposition came from the Puritans. Puritan attacks were based on the notion that female morality could be upheld by instilling fear of pregnancy in women. Anthony Comstock, a politician dedicated to ideas of Victorian morality, used his connections to Congressional lobbyists to stifle the abortion advertisements and products. After Comstock was appointed as a special agent for the Post Office Department in 1873, he had almost “unlimited authority overAmerican vice” by having the power to open mail and judge for himself what was obscene.
Many early suffragettes had mixed views on the abortion issue. Elizabeth Cady Stanton saw the practice as part of the“degradation of woman,” and thought that denying children to “those [husbands] who have made the ‘strong minded’ women of this generation the target for gibes and jeers” was just. Nevertheless, most suffragettes of the time thought that the solution to high rates of abortion was not legalization, but “ ‘the education and enfranchisement of women,’ ” which they believed would render abortion unnecessary in the future.
During the antiabortion movement of the mid-nineteenth century, more states introduced statutes that made abortion illegal at all stages of pregnancy. In 1860, Pennsylvania made it a felony offense to attempt the abortion of a fetus at any period during gestation. In 1872, New York amended its antiabortion laws even further, banning abortion advertisements, prohibiting advising women to have an abortion, and making it a crime for a woman to agree to an abortion. These two laws are representative of the changes that were taking place throughout the country.
In the nineteenth century the erosion of the quickening doctrine was replaced with the belief that a fetus is a living human person from the moment of conception. This was the result of discoveries regarding the process of fertilization, as well as new medical literature. Most notably, Dr. John Beck, Professor of Medical Jurisprudence at the College of Physicians and Surgeons of the University of the State of New York, wrote a treatise in which he supported antiabortion laws on the theory that the practice amounted to the killing of a human being and that life began at conception. Views began to shift away from the idea that abortion laws were designed to protect the life of the mother, and cases reflected this shift. In Regina v. Wycherley, the court interpreted “quick with child” to mean after conception rather than after fetal movement.
The idea that abortion was illegal at all stages of pregnancy received a blow, however, in 1884 when Judge, later Justice,Oliver Wendell Holmes, Jr. introduced the concept of viability, which had been initially discussed during the nineteenth century. An English attorney, Joseph Chitty, even argued that deciding whether killing an infant was homicide should depend on viability. But as Holmes explained: “Lord Coke’s rule requires that the woman be quick with child, which, as this court has decided, means more than pregnant, and requires that the child shall have reached some degree of quasi-independent life at the moment of the act . . . .”
In England, viability was introduced as a legal concept through the passage of the Infant Life (Preservation) Act, in which a presumption of viability existed at twenty-eight weeks. In the United States, however, the concept of viability remained limited to prenatal injury cases and was not used in the context of abortion until Roe v. Wade was decided.
By the early twentieth century, antiabortion laws were firmly entrenched, and the chances of securing their repeal seemed impossible. By 1910, every state except for Kentucky had antiabortion laws on the books. Until 1967, forty-nine states and the District of Columbia made abortion a felony offense. In the span of time between the first antiabortion law in 1821 and the turn of the twentieth century, the quickening doctrine had all but been abandoned as the distinction between legal and illegal abortions. Most states did, however, include exceptions for “therapeutic” abortions. The most common form of exception permitted abortions where those necessary to save the mother’s life.
In the first half of the twentieth century, abortion laws effectively created a two-tiered system. Privileged women were able to pay doctors for abortions, and persuade them to perform the procedure. The poor and destitute faced restrictive laws which forced them to have an unwanted child or seek out illegal abortions, or travel to foreign countries to seek abortion services. In the years preceding the onset of the First World War, public discussion of sex was considered taboo.
Additionally, before 1950, there was no unified movement to repeal abortion laws in the United States. Instead, birth control advocates had focused on promoting the legalization and availability of contraception. The greatest pioneers of the movement were Emma Goldman and Margaret Sanger, whose efforts finally met success when a constitutional right to privacy was recognized in 1965.
During the 1930s and 1940s, police raids on abortion clinics were sensationalized in the press. Raids in 1941, 1942, and 1947 in Chicago targeted both the abortionists, Dr. Josephine Gabler and Mrs. Ada Martin, of the Gabler-Martin abortion clinic, as well as their patients. In the Martin case, Chicago newspapers presented the arrests as a crackdown that had brought down an organized crime ring, stating that a single abortion clinic “ranked with the Capone crime syndicate.”These sensational stories and the resulting trials, however, were exceptions rather than the norm.
Despite the continued illegality of abortions, from the mid-1940s to the 1960s doctors were given considerable leeway to decide when a pregnancy constituted a risk to the mother’s health. Nevertheless, the physician choosing to defend abortions under the therapeutic exception provisions took a grave risk, as the danger that a prosecutor might choose to pursue an indictment was a real concern. Furthermore, as a result of these risks, hospitals imposed strict rules, and abortions needed to be approved by special committees or boards of directors. This obviously had the effect of reducing the number of hospital abortions.
Although the prochoice movement had yet to develop, several organizations and scholars began to give abortion greater attention. The National Committee on Maternal Health held a conference in New York in 1942 on “The Abortion Problem.” In April, 1955, Planned Parenthood hosted a conference in New York on “Abortion in the United States. One common theme in these discussions was that despite the illegality of abortions, procedure abortion rates were still high.Dr. Mary Calderone, participated in one of these conferences titled “Therapeutic Abortion” in 1954, and noted several conclusions that the symposium had reached, including: (1) abortion in hospitals was no longer a dangerous procedure; (2) pregnant women were continuing to obtain abortions in large numbers; and, (3) improper procedures used in many illegal abortions was a public health concern that needed to be addressed.
By 1955, however, abortions had become dramatically safer. With the combined effects of improved techniques, analgesics, antibiotics, and antiseptics, the mother was safer than delivering a child. These advances “precipitated—for the first time—a deep culture wide debate on abortion.” Sociologist Nanette Davis explained that before abortion became safe, the practice was considered as a “lesser evil” or “act of desperation.” But the advances in science made abortion truly a “choice.”
The first major vocal challenge to abortion involved a series of lectures delivered by law professor Glanville Williams atColumbia University School of Law in 1956. Although not a member of the American Law Institute, Professor Williams was asked to participate in drafting the Model Penal Code (MPC), which would play an important role in abortion reform. Williams argued that abortion should be legal before the point of viability, which he placed at twenty-eight weeks. This argument became the standard for abortion proponents.
Above all, we must achieve complete repeal of all existing abortion statutes, eliminating abortion from every criminal code, ending forever the feudal degradation of women that lumps them with criminals on the statute books.
~ Lawrence Lader
In 1962, Sherri Finkbine, a mother of four and well-known television personality, sought an abortion after she had unintentionally taken thalidomide and faced the very real possibility that her child would be born deformed. In this instance, “[a]lthough there was a universal chorus of horror against the drug itself, hardly a newspaper or pulpit in the country attacked the hypocrisy of the system that denied this mother the right to protect herself and her family, and eventually forced her to seek abortion in Sweden.”
By 1965, forty-nine of fifty-one American jurisdictions (fifty states, plus the District of Columbia) had criminal abortion statutes, limiting abortions to the single purpose of saving the life of the mother.
Violations of these abortion laws carried serious repercussions for all parties. However, penalties were harshest for physicians, who confronted the possibility of losing their licenses to practice and facing criminal charges. In fifteen states, the punishment for providing an abortion was a maximum sentence of ten years’ imprisonment. Fourteen states also made it a crime for women to obtain an abortion; however, these patients were rarely prosecuted and the laws were more often used as leverage to coerce women to testify against their doctors.
In 1962, the American Law Institute published its Model Penal Code, which included an abortion statute, extending the justifiable reasons for abortion to include the risk of grave impairment to the mother’s physical or mental health, the risk of bearing a child with a grave physical or mental defect, and pregnancy resulting from rape, incest or other felonious intercourse. These reforms were supported by the medical profession, led by obstetrician Alan Guttmacher and his brother Manfred, a prominent psychiatrist Colorado became the first state to follow the American Law Institute’s recommendation by reforming its abortion law in 1967.
The 1965 decision in Griswold v. Connecticut was the catalyst for bringing the abortion debate to the forefront of American politics. The case involved a clinic, which provided birth control counseling services and distributed contraceptives.Writing for the majority, Justice William O. Douglas found that the case “concern[ed] a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.” Scholars soon took notice of the fact that by establishing aright to privacy, the Court had opened the possibility “for an attack upon significant aspects of the abortion laws.” TheCalifornia Supreme Court issued the first decision extending Griswold’s privacy doctrine to women as individuals, declaring that:
The fundamental right of the woman to choose whether to bear children follows from the Supreme Court’s and this court’s repeated acknowledgment of a “right to privacy” or “liberty” in matters related to marriage, family, and sex.
Shortly thereafter, a federal district court explicitly acknowledged that this right “may well include the right to remove an unwanted child at least in the early stages of pregnancy.”
In New York, a partnership of women’s groups, doctors, the Community of Action Legal Services Office, and other activists challenged the state’s abortion statute on the grounds of unconstitutionality. Although the statute was repealed before trial, the challenge is noteworthy.
From 1966 through 1972, the year before Roe was decided, thirteen states amended their abortion statutes along the lines suggested in the Code. Alaska, Hawaii, New York, and Washington repealed their abortion laws altogether. In 1970, Hawaii legalized all abortions of nonviable fetuses performed by licensed physicians. The public debate that took place in New York during the late 1960s typified the abortion movement’s struggle. In January 1968, Governor Nelson A. Rockefeller appointed an eleven member com mission under the leadership of Charles W. Froessel, a retired Judge of theNew York Court of Appeals, to study the state of abortion law in New York The Governor’s Commission Appointed to Review New York State’s Abortion Law issued its report in March 1968. The Governor’s Commission Report was instrumental in changing the law in New York, and was the underpinning for Roe.
All members of the Commission agreed that abortion to preserve the mother’s life was justifiable, but a substantial majority found this single ground too limited. They felt that this lone justification pre vented doctors from practicing what they believed to be good medicine, and placed a “physician in an intolerable conflict between his medical duty to his patient and his duty as a citizen to uphold the law.” In the past, New York doctors had attempted to circumvent the State’s abortion laws by using the diagnosis “psychiatric indication (threatened suicide),” to justify abortions, even though the actual suicide rate of pregnant women was much lower than that of women of the same age who were not pregnant. Doctors also justified abortions for women who contracted rubella in the first trimester, even though the disease threatened only the health of the child, and not the life of the mother. Despite these justifications, prior to the liberalization of New York’s abortion law, only four hundred legal abortions were performed within the State annually.
At the outset of their discussion, the majority of the Commission declined to enter into the theological debate that had divided members of the clergy. These words still ring true today:
The minority of this Commission virtually base their entire position on the premise that, by modern secular standards, the foetus is at all times a human being, possessed of corresponding legal rights. The premise is clearly fallacious. Let it first be noted that we are in the State of New York, governed by its laws. The differences in views among the early and modern theologians and their followers are of little assistance to us here.
Inasmuch as no law could compel a woman to have an abortion, the “morals” of abortion, said the majority, was the province of “religious institutions and philosophic traditions” and not an issue on which they could be expected to give an opinion. In fact, the re port tracked the history of the entire controversy from both moral and secular points of view. It noted that there was a strong difference of opinion among religious scholars concerning the point at which life begins and, accordingly, whether, and at what point, abortion was permissible.
The majority of the Governor’s Commission found that even if the lowest estimates were used, approximately 200,000 abortions were performed in the United States each year. It found that the restrictive laws created an abortion racket, operated by doctors without regard for the law, and performed by untrained persons who used the most primitive instruments under the most unsanitary conditions. They also found that New York’s restrictive law unfairly discriminated against the poor. New York’s underprivileged could neither travel to other jurisdictions where abortion was safe and legal, nor pay the prices charged by the instate doctors who were willing to perform illegal abortions. In effect, the poor often faced the choice between having a child that they could not afford to care for, or turning to one of the incompetent persons willing to sell their services for cheap. The majority cited estimations suggesting that 5,000 to 10,000 maternal deaths per year could be attributed to “botched, illegal abortions. While many individuals and groups had urged the adoption of an “abortion upon request” statute, the majority of the Governor’s Commission recommended that abortion be justified only if one of several conditions were satisfied. These conditions were: (1) to pre serve the life of the woman; (2) to prevent grave impairment physical or mental health of the woman; (3) where the woman had a permanent physical or mental condition which would render her in capable of caring for the child if it were born; (4) where there was a substantial risk that the child, if born, would be so grossly malformed or have serious physical or mental abnormalities as to be permanently incapable of caring for himself/herself; (5) where the pregnancy resulted from rape in the first degree; (6) where the pregnancy resulted from incest; (7) where the pregnancy occurred out of wedlock while the woman was under sixteen years of age, and she remained unmarried at the time of the abortion; and, (8) where the woman already had four living children.
The majority concluded that: to be workable, an abortion statute must recognize the central position of the physician, and manifest faith and confidence in the medical profession as a whole. To enact restrictions on abortion without regard to good medical practice is futile. Any statute affecting so vitally the medical field must of necessity rely upon the integrity of the physician, and leave to already established procedures the discipline of the comparatively few unethical or unscrupulous doctors who refuse to practice within the framework of reasonable legislation.
Three members of the Commission filed a minority report, con tending that child en ventre sa mere (“in his/her mother’s belly”) had constitutional and legal rights to live. They anticipated that the social consequences of a liberalized abortion law would be an increase in abortions to the point where the abortion rate would eventually outstrip the birth rate, a dilution in the traditional concept of the sanctity of human life, and the erosion of family values.
The Commission’s recommendations for a liberalized abortion law were proposed as bills to the Legislature in 1968and 1969, but failed to pass on both occasions. On July 1, 1970, the New York Legislature passed the “justifiable abortional act,” which amended Section 125.05 of the New York Penal Law, providing that “[t]he submission by a female to an abortional act is justifiable when she believes that it is being committed by a duly licensed physician, acting under a reasonable belief that such act is necessary to preserve her life, or, within twenty-four weeks from the commencement of her pregnancy.”
At the time, New York had a Republican Governor and Republicans controlled both houses of the State Legislature. Passage in the New York legislature turned on a last-minute change in a vote. The amendment was immediately met with opposition. Professor Robert Byrn, of Fordham University School of Law, who had been a member of the Governor’s Commission, led an offensive to the New York Court of Appeals in 1972. Byrn attempted to have himself appointed legal guardian of the fictitious “Infant Roe,” meant to “symboliz[e] all unborn fetuses between four and twenty-four weeks of gestation scheduled for abortion.” The New York Court of Appeals upheld the statutory provision against this constitutional challenge, holding that embryos are not recognized as legal persons, and have no right to life under the state and federal constitutions.
In 1972, the New York Legislature voted to repeal the statute, but Governor Rockefeller vetoed it, saying:
I do not believe it right for one group to impose its vision of morality on an entire society . . . . Neither is it just or practical for the state to attempt to dictate the innermost personal beliefs and conduct of its citizens. The extremes of personal vilification and political coercion brought to bear on members of the Legislature raise serious doubts that the votes to repeal the reforms represented the will of a majority . . .
The truth is that this repeal of the 1970 reforms would not end abortions. It would only end abortions under safe and supervised medical conditions. The truth is that a safe abortion would remain the optional choice of the well-to-do woman, while the poor would again be seeking abortions at a grave risk to life in backroom abortion mills.
The truth is that, under the present law, no woman is compelled to undergo abortion. Those whose personal and religious principles forbid abortion are in no way compelled against their convictions. Every woman has the right to make her own choice.
By 1973, abortion statutes had been challenged on several constitutional grounds, including vagueness, privacy, and equal protection of the laws. Based on these developments, the Supreme Court granted certiorari to hear two cases challenging the right of government to limit access to abortion. In Roe v. Wade, the Court considered a challenge to a Texas law outlawing abortion in all cases, except those in which the life of the mother was at risk. The second case, Doe v. Bolton,focused on a Georgia law that allowed women to terminate a pregnancy only if either her life or her health were in danger. In both cases, lower federal courts had declared the statutes unconstitutional, holding that denying a woman the right to decide whether to carry a pregnancy to term violated basic privacy and liberty interests enumerated by the Constitution.
In Roe, Justice Harry Blackmun, writing for the majority, concluded that constitutional rights to privacy and liberty protected a woman’s rights to terminate her pregnancy. The Court held that access to abortion is a fundamental right, and only a “compelling state interest” could justify the enactment of state laws or regulations that limit this right. Nonetheless, the Court also recognized that the state has an “important and legitimate interest in preserving and protecting the health of the woman” and “the potentiality of human life” inside her.
To determine when a state’s legitimate concern for maternal and fetal protection rises to the level of compelling interest,Justice Blackmun created a three-tiered legal framework based on the nine month period of pregnancy, which gave progressively greater interest and regulatory latitude for each successive tier.
The Court found that the state has no real interest in limiting abortion to protect a woman’s health during the first trimester, given that the risks associated with abortion are actually lower than those associated with childbirth. During this period, states can only impose basic health safeguards, such as requiring that the procedure be performed by a qualified health professional, but cannot limit access to abortion in any way.
The point of fetal viability typically takes place between twenty-four and twenty-eight weeks into a pregnancy. The interim stage between the end of the first trimester and this point of viability is the period in which a state may regulate the abortion procedure in ways that are reasonably related to maternal health. Regulations must be directed toward ensuring maternal health, and cannot be aimed at protecting a fetus, or limiting access to abortion services. Thus, a state law requiring a doctor to describe the risks associated with the abortion procedure to a woman seeking an abortion before she may consent to the procedure would be constitutional only if the requirement aimed to protect maternal health and was not created to dissuade a woman from terminating her pregnancy.
The third tier encompasses the period after the point of fetal viability. During this time, the state has an interest in protecting “potential life” and can even ban abortion, as long as the procedure is still allowed in cases where the life or health of the mother is at risk. In Doe, the same seven justice majority largely restated and fleshed out its ruling in Roe. The Court found that state regulations that create procedural obstacles to abortion, such as the requirement that an abortion be performed in a hospital or be approved by two doctors, violate a woman’s right to terminate her pregnancy.
Reactions to these decisions were mixed. The Roman Catholic Church immediately voiced its disapproval at the National Conference of Catholic Bishops on January 24, 1973. The conference issued a statement, which claimed that the Court had “deprived the unborn child of his or her human rights.” Edwin A. Roberts, Jr., writing for the National Observer, called the decision “puzzling both in substance, for what it allows, and in style, for the way it allows it.” In Congress, Senator James B. Allen filed a speech condemning the decision, a sentiment joined by Senator James L. Buckley and Representative Lawrence J. Hogan. A number of law professors likewise criticized the Court’s rationale, including John Hart Ely andRobert M. Byrn. On the other hand, the Washington Post called the decision “both wise and sound.” Law professorLawrence Friedman stated that although “neither the Constitution nor the Court can accommodate all sides,” the decision in Roe was not out of the ordinary and was based on precedent. These conflicting views demonstrated that the controversy surrounding abortion was far from over, and that proponents and critics alike would continue to mount legal challenges to state abortion laws.
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