23. Abortion

Illegal Abortion

Legal Abortion

Partial Birth Abortion

State of the Statutes

The laws governing abortion are the most controversial in the United States today. The disunity among states regarding these laws, particularly those that define a legal abortion, reflects society’s conflicting views toward abortion.

Abortion laws, as treated here, contain three main parts: a definition of an illegal abortion, a definition of a legal abortion, and a section dealing with consent and/or notice. There are also sections dealing with the penalties for violating the laws, residency requirements, waiting periods, and abortionists’ licensing requirements. These sections are impossible to compare. Because the Supreme Court through inconsistent rulings has caused the laws regulating abortion to be so unsettled, many state legislatures are not enacting any legislation pending the outcome of various lawsuits and federal legislation. Therefore, waiting periods, spousal notification, and other particulars mentioned below are not separately treated because the Court has virtually preempted the states’ power to legislate in these areas. However, these sections are ancillary to those questions regarding the legality of the act itself.

Illegal Abortion

In no state is unrestricted abortion legal; indeed, virtually all states begin with the presumption that abortion is a crime, though all state statutes do have definitions of legal abortions. About twenty states define an illegal abortion in terms of the definition of a legal abortion; for example, Hawaii defines an illegal abortion as failure to meet the criterion of a legal abortion. (The definition of a legal abortion, in Hawaii, is simply the destruction of a nonviable fetus.) About fifteen states, however, predominately in the East and the South, do define illegal abortions without reference to legal instances of abortion. A few of these, interestingly, include in their definitions the provision that if the mother dies, then the abortion is illegal. Of these states, only some have specific statutes defining an illegal abortion; others merely define a legal abortion and impose penalties for their violation. The remaining states have definitions that specifically mention the limits of when an abortion is acceptable. For example, West Virginia defines an illegal abortion as any activity “with intent to destroy an unborn child or produce abortion [or] if mother dies unless to save the mother.”

Legal Abortion

Legal abortion is universally defined in terms of the mother’s convenience or health. Though few definitions mention the life or health of the fetus, many refer to its “viability” as a standard for when an abortion may be performed with impunity, and without further attempt to define the term. These definitions are objective in that specific time parameters are set, outside of which an abortion cannot legally be done, absent exigent circumstances. The most unrestrictive of all definitions occur in Hawaii and Alaska, where a legal abortion is an abortion on “any nonviable fetus.” Interestingly, the definition of an illegal abortion in these two states is equally open; they say essentially that any act knowingly found to be contrary to the legal definition is illegal. After viability has been established, most states give additional instances when abortion may be legal: to save the life of the mother or if there are severe defects present in the fetus.

Partial Birth Abortion

The procedure called “partial birth abortion” has lately become the subject of numerous state statutes in the wake of the controversial vetoing by President Clinton of a federal bill that would have banned the procedure. The term means an abortion in which the person performing the abortion deliberately and intentionally delivers a living fetus or a substantial portion thereof into the vagina for the purpose of performing a procedure the person knows will kill the fetus, performs the procedure, kills the fetus and completes the delivery. In the last two years, twenty-one states have enacted legislation banning or limiting the practice of this procedure. Recently, the Supreme Court held that Nebraska’s attempt to ban partial-birth abortion was unconstitutional.

State of the Statutes

Prior to 1973 and the Roe v. Wade decision by the Supreme Court (410 U.S. 113 (1973)), the regulation of abortion was left to the states. In Roe v. Wade, the Supreme Court decided that the Constitution protected a woman’s right to abortion, a novel right said to be found in the unstated right to privacy, from state regulation during the first trimester of pregnancy. However, the Court also held that the states have an “important and legitimate interest in protecting the potentiality of human life.” The abortion controversy has revolved around the states’ consequent attempts to protect unborn life. The Supreme Court’s patchwork of opinions following Roe has left abortion a highly unsettled area of law. Many statutes reflect state attempts at balancing a woman’s right to choose an abortion with the state’s compelling interest in protecting fetal life.

The statutes in this chapter are as they currently appear in the state codes. Interestingly enough, some of the statutes may be unconstitutional if challenged, based on prior Supreme Court rulings. Following are the general areas of abortion legislation and the Supreme Court’s treatment of each:

• Parental Consent. States may require a minor seeking an abortion to obtain the consent of a parent or guardian as long as there is an adequate judicial bypass procedure.
• Informed Consent. A state may require a physician to provide a woman with such information such as alternatives to abortion, sources of financial aid, development of the child, and the gestational age of the child. Prior to 1992, informed consent provisions were unconstitutional.
• Spousal Consent. A state may not require a married woman to obtain her husband’s consent before undergoing an abortion.
• Abortion Method. A state may not require the physician performing the abortion to use the technique providing for the best opportunity for the unborn child to survive the abortion.
• Second Physician. A state may not require that a second physician attend the abortion to take immediate control of the care of a child born alive in an abortion unless the provision has an exception for a situation when the health of the mother was endangered.
• Waiting Period. A twenty-four hour waiting period does not constitute an undue burden on a woman’s decision to abort and, therefore, is constitutional. Prior to 1992, waiting period requirements were unconstitutional.
• Parental Notice. A state may require that one parent be notified of a minor’s abortion, but not two.
• Fetal Remains. States may not require that the remains of the unborn child are disposed of in a “humane and sanitary” manner as it may suggest a mandate for some sort of “decent burial.”

ABORTION

The spontaneous or artificially induced expulsion of an embryo or fetus. As used in legal context, the term usually refers to induced abortion.

History

English common law generally allowed abortion before the "quickening" of the fetus (i.e., the first recognizable movement of the fetus in the uterus), which occurred between the sixteenth and eighteenth weeks of pregnancy. After quickening, however, common law was less clear as to whether abortion was considered a crime. In the United States, state legislatures did not pass abortion statutes until the nineteenth century. After 1880, abortion was criminalized by statute in every state of the Union, owing in large measure to strong anti-abortion positions taken by the american medical association (AMA). Despite the illegality, many thousands of women every year sought abortions. Under a heavy cloak of shame and secrecy, women often had abortions performed in unsafe conditions, and many died or suffered complications from the procedures.

The abortion laws developed in the late nineteenth century existed largely unchanged until the 1960s and 1970s, when a number of different circumstances combined to bring about a movement for their reform. women's rights groups, doctors, and lawyers began an organized abortion reform movement to press for changes, in part because many of them had witnessed the sometimes deadly complications resulting from illegal abortions. Women's organizations also began to see abortion reform as a crucial step toward the goal of equality between the sexes. They argued that women must be able to control their pregnancies in order to secure equal status. In addition, new concerns regarding explosive population growth and its effect on the environment increased public awareness of the need for birth control. At the same time, other countries developed far more permissive laws regarding abortion. In Japan and Eastern Europe, abortion was available on demand, and in much of Western Europe, abortion was permitted to protect the mother's health.

Public awareness of the abortion issue also increased through two incidents in the early 1960s that caused a greater number of children to be born with physical defects. In 1961, the drug thalidomide, used to treat nausea during pregnancy, was found to cause serious birth defects. And a 1962–65 German measles epidemic caused an estimated 15 thousand children to be born with defects. Pregnant women who were affected by these incidents could not seek abortions because of the strict laws then in existence.

Three Sides to the Abortion Debate

To what extent does a woman have a right to obtain an abortion? And to what extent does a person have a right to protest the practice of abortion? These are two fundamental questions, and two conflicting rights, that have emerged in the decades following the U.S. Supreme Court's controversial decision in the 1973 case roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147. With time, the conflict between those who differ on the answers to these questions, and the interpretation of these rights, has become more and more heated, to the point of violence. The question of access to abortion clinic property—whether to obtain clinic services or to protest them—has become a pressing issue.

Three major points of view dominate the abortion debate: the pro-choice, or abortion rights, view; the moderate prolife, or moderate anti-abortion, view; and the extremist (or militant) pro-life, or anti-abortion, view.

The pro-choice, or abortion rights, side of the debate is made up of a number of women's rights, family planning, and medical organizations, and other groups of concerned citizens and professionals. These include the national organization for women (NOW), the Planned Parenthood Federation of America, the National Abortion Federation, and the National Abortion and Reproductive Rights Action League (NARAL). Many religious organizations have also taken positions that endorse the right of women to seek abortions in specific situations. Most of these pro-choice groups argue that a woman's decision to carry a pregnancy to term is a private choice that should not be interfered with by the state. They also maintain that abortion, although not a preferred family planning method, has always been used by women to gain control over their pregnancies. According to this view, women must have safe and legal access to abortion; without this access, women are likely to seek unsafe, illegal abortions that may result in their injury or death. Pro-choice advocates also maintain that giving women control over their reproductive functions—what they call their reproductive rights—is a fundamental requirement for achieving equality between men and women in U.S. society. Norma McCorvey, who sought anonymity as Jane Roe in Roe, spoke eloquently for the pro-choice position in a 1989 speech before a women's rally:

Prior to Roe v. Wade, approximately one million women had illegal abortions each year. Approximately 5,000 of these women were killed. Another 100,000 were hospitalized from botched abortions.

Obviously, abortion will continue whether it is legal or not. My concern is for the safety of millions of women should our freedom of choice be taken away from us. I want it clearly understood that I do not promote abortion. I promote personal choice.

If we return to the antique methods of dealing with unwanted pregnancies that existed before Roe v. Wade, the women's movement will be taking an enormous step backward. We are on the verge of having our reproductive freedom taken away from us if we do not take a stand and let our voices be heard NOW. (In 1995, McCorvey had a "born-again" experience and switched sides on the abortion issue.)

Pro-choice groups therefore remain committed to the constitutional right to privacy defined in Roe. They view anti-abortion demonstrations that prevent women from obtaining abortions as interfering with that right to privacy.

The pro-choice group also has a range of viewpoints within it. While all persons who describe themselves as pro-choice support a general right to abortion, some oppose some kinds of abortions, such as late-term abortions.

The moderate pro-life movement consists of many different organizations, including the national right to life committee, Human Rights Review, and Feminists for Life of America. Although its members are extremely diverse, most come from religious groups such as the Catholic Church and evangelical Protestant denominations. Generally, these groups believe that the fetus is a person with rights equal to those of other people, and some of these identify the unborn person as existing in the embryonic stage or from the moment of conception. Many are willing to allow abortion in certain cases, usually when pregnancy threatens the health of the mother or has resulted from rape or incest. Moderates, when they support changes in abortion laws and regulations, differ from militants in their emphasis on using existing legal channels.

Militant pro-life groups share many of the views of moderate groups, but they favor an activist use of civil disobedience to prevent abortion procedures and to save or rescue the lives of the unborn. Randall Terry and Flip Benham, of the most well known anti-abortion group, Operation Rescue, are representative of the militant views. Terry, Operation Rescue's founder and leading figure, participated in his first anti-abortion protest in 1984 and has served time in prison because of his demonstrations. As an evangelical Protestant Christian, Terry sees abortion as the work of the devil: "I believe that there is a devil, and here's Satan's agenda. First, he doesn't want anyone having kids. Secondly, if they do conceive, he wants them killed. If they're not killed through abortion, he wants them neglected or abused, physically, emotionally, sexually." Terry opposes abortion in all cases. His group's main tactics, he said, included "rescue missions, boycotts and protests."

A minority of the militant anti-abortion activists sanction the use of physical force. A small number even regard the killing of abortion providers as justifiable homicide. When asked to explain this increasing tendency toward violence, militant pro-life leader Joseph Scheidler, of the Pro-Life Action Network, blamed it on the 1994 Freedom of Access to Clinic Entrances Act (FACE) and buffer zone restrictions that kept protesters from conducting rallies at abortion clinics. Scheidler argued that making it tougher to have peaceful protests gave people a rationale for having violent protests. Benham, of Operation Rescue, condemned the anti-abortion killings. However, after John Salvi murdered two people and wounded others in an abortion clinic shooting in late 1994, Benham commented, "There is little that federal marshals or anyone else can do to halt this murder and violence. We will not have peace outside the womb until peace is restored within the womb." Added Terry, "We're involved in a cultural civil war." In February 2003, Scheidler and his group won a major victory when the U.S. Supreme Court ruled 8 to 1 that the RICO statute was improperly used against the group and other pro-life activists, in the case brought against them by the National Organization for Women (Scheidler v. Nat'l Organization for Women, Inc., 537 U.S. 393, 123 S. Ct. 1057, 154 L. Ed. 2d 991 [2003]).

In the end, the extremist position may have done more to hurt than to help the anti-abortion cause. The publicized violence of the movement, in combination with the new prosecutorial powers granted in FACE, served to alienate many of the more moderate individuals in pro-life groups, reducing the membership of those groups to a militant core and making those outside the groups less sympathetic to their cause.

But as a positive result of the fallout, significant numbers from both sides tried to find common ground and an end to the mutual mistrust and ill will. Aptly calling themselves the Common Ground Network for Life and Choice, the alliance made its largest impact with the political issue of partial-birth abortions, when it began a campaign to ban the procedures. This more subtle collective voice of concerned citizens appeared to represent an important change in the direction of abortion debate. In specific, the committed extremists on both ends were being replaced with a new and more sophisticated national consensus concerning the acceptable limits of abortion rights. As of March 2003, the Partial Birth Abortion Ban Act had won approval from the U.S. Senate and was expected to win approval from the House of Representatives later that spring.

further readings

Lerner, Sharon. 2002. "A New Kind of Abortion War." The Village Voice.

"Recent Developments on Partial-Birth Abortion." 2003. National Right to Life Website. Available online at <www.nrlc.org/abortion/pba/PartialBirthAbortionRecentDevelopments.html> (accessed April 10, 2003).

Risen, James, and Judy L. Thomas. 1998. Wrath of Angels: The American Abortion War. New York: Basic Books.

Scheidler, Eric. "Scheidler Victory in the Supreme Court." Available online at <www.prolifeaction.org/nowvscheidler/victory.htm> (accessed April 17, 2003).

cross-references

Civil Rights Acts; Schools and School Districts.

Reacting to these and other developments, and inspired by the successes of the civil rights movement of the 1950s and 1960s, women's rights organizations—including the national organization for women (NOW), formed in 1966—sought to reform abortion laws through legislation and lawsuits. They hoped to educate a largely male dominated legal and judicial profession about this important issue for women. Their work, supported by such groups as the american civil liberties union (ACLU), quickly began to have an effect. Between 1967 and 1970, 12 states adopted abortion reform legislation. However, the abortion activist groups began to see the abortion issue as a question of social justice and began to press for more than reform. Under the rallying cry of "reproductive freedom," they began to demand an outright repeal of existing state laws and unobstructed access for women to abortion.

The increase in abortion-related cases before the courts eventually resulted in the need for clarification of the law by the Supreme Court. After considering many abortion-related appeals and petitions, on May 31, 1971, the Court accepted two cases, roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), for hearing.

Roe v. Wade and Doe v. Bolton

Although the two cases before the Court appeared by their titles to involve the fates of two individuals, Roe and Doe, in reality both suits were brought by many people representing many different interests. Roe v. Wade was argued on behalf of all women of the state of Texas—in legal terminology, it was a class action suit. Thirty-six abortion reform groups filed briefs, or reports, with the court on Roe's behalf. These included women's, medical, university, public health, legal, welfare, church, population control, and other groups. The anti-abortion side of the case included representatives from seven different anti-abortion groups and the attorneys general of five states.

Roe involved a person using the pseudonym Jane Roe—actually Norma McCorvey, who revealed her identity in 1984. Roe, an unmarried, pregnant woman from Texas, wanted to have an abortion, but an existing abortion statute prevented her from doing so. The Texas statute, originally passed in 1857, outlawed abortion except to save the mother's life. Roe filed a lawsuit in federal district court on behalf of herself and all other pregnant women. She sought to have the abortion statute declared unconstitutional as an invasion of her right to privacy as was protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments in griswold v. connecticut, 381 U.S. 479, 513, 85 S.Ct. 1678, 14 L.Ed. 2d 510 (1965). She also sought to have an injunction, or court order, issued against the statute's enforcement so that she might go forward with the abortion. The abortion reform movement attached two other cases to Roe's in an attempt to represent a wider range of the interests involved in the issue. A physician, James Hallford, who was being prosecuted under the statute for two abortions he had performed, also filed suit against the Texas law, as did a childless couple, the Does.

The three-judge district court combined Roe's case with the cases of Hallford and the Does, but later dismissed the suit brought by the Does on the grounds that neither had violated the law and the woman was not pregnant. The district court agreed with Roe that the law was unconstitutionally vague and violated her right to privacy under the Ninth Amendment—which allows for the existence of rights, like that of privacy, not explicitly named in the Constitution's Bill of Rights—and the fourteenth amendment. It refused, however, to grant the injunction allowing her to go ahead with the abortion. Roe then appealed the denial of the injunction to the U.S. Supreme Court.

Doe v. Bolton involved a 1968 Georgia statute that allowed abortion if necessary to save the mother's life, in the case of pregnancy resulting from rape or incest, or if the baby was likely to be born with serious birth defects (Ga. Crim. Code § 26-1202 a, b). However, the statute also created procedural requirements that effectively would have allowed few abortions. Those requirements included hospital accreditation, committee approval, two-doctor agreement, and state residency. The case concerned Mary Doe, who had sought an abortion at Grady Memorial Hospital, in Atlanta. She claimed that she had been advised that pregnancy would endanger her health, but the hospital's Abortion Rights Committee denied her the abortion. She sought a declaratory judgment holding that the Georgia law unconstitutionally violated her right to privacy as well as her Fourteenth Amendment guarantees of due process and equal protection. She also sought an injunction against the law's enforcement.

Roe and Doe were filed in March and April of 1970, and the women's pregnancies would not have lasted through December 1970. The Court heard the cases in December 1971 and October 1972, and they were not resolved until January 1973, when the Court announced its decisions.

In Roe, the Court, on a 7–2 vote, found the Texas abortion statute unconstitutional. In its opinion, written by Justice harry a. blackmun, the Court held that the law violated a right to privacy guaranteed by the Due Process Clause of the Fourteenth Amendment. However, the Court further held that such a right is a "qualified" one and subject to regulation by the state. The state has "legitimate interests in protecting both the pregnant woman's health and the potentiality of human life" (i.e., the life of the fetus). To specify when the state's interests emerge, the Court divided pregnancy into twelve-week trimesters. In the first trimester, the state cannot regulate abortion or prevent a woman's access to it. It can only require that abortions be performed by a licensed physician and under medically safe conditions. During the second trimester, the state can regulate abortion procedures as long as the regulations are reasonably related to the promotion of the mother's health. In the third trimester, the state has a dominant interest in protecting the "potentiality" of the fetus's life. A state may prohibit abortions during this time except in cases where they are essential to preserve the life or health of the mother. The Court also cited judicial precedent in holding that the fetus is not a "person" as defined by the Fourteenth Amendment.

In Doe, the Court found the Georgia statute to be unconstitutional as well, holding that it infringed on privacy and personal liberty by permitting abortion only in restricted cases. The Court ruled further that the statute's four procedural requirements—hospital accreditation, hospital committee approval, two-doctor agreement, and state residency—violated the Constitution. The state could not, for example, require that abortions be performed only at certain hospitals, because it had not shown that such restrictions advanced its interest in promoting the health of the pregnant woman. Such a requirement interfered with a woman's right to have an abortion in the first trimester of pregnancy, which the Court in Roe had declared was outside the scope of state regulation.

After Roe v. Wade

After the Supreme Court decisions in Roe v. Wade and Doe v. Bolton, states began to liberalize their abortion laws. However, abortion quickly became a divisive political issue for Americans. Grassroots opposition to abortion—supported by such influential institutions as the Catholic Church—was strong from the start. By the early 1980s, the anti-abortion movement had become a powerful political force.

President ronald reagan, who came to office in 1981 and served through 1989, strongly opposed abortion and used his administration to try to change abortion rulings. He appointed a surgeon general, Dr. c. everett koop, who opposed abortion, and Reagan made it a top priority of his justice department to effect a reversal of Roe. Reagan even published a book on the subject in 1984, Abortion and the Conscience of a Nation, which contains many of the essential positions of the anti-abortion movement. Reagan argued that the fetus has rights equal to those of people who are already born. He also cited figures indicating that 15 million abortions had been performed since 1973, and he stated his belief that the fetus experienced great pain as a result of the abortion procedure. He quoted a statement by Mother

Teresa, the famed nun who helped the poor of Calcutta: "The greatest misery of our time is the generalized abortion of children." While abortion rights, or pro-choice, advocates argued that there were public health advantages of the new abortion laws, opponents of abortion, such as Reagan, referred to abortion as a "silent holocaust."

The anti-abortion, or pro-life, movement has challenged abortion in a number of different ways. It has sponsored constitutional amendments that would effectively reverse Roe, as well as legislation that would limit and regulate access to abortion, including government financing of abortion procedures. Some anti-abortion groups have practiced civil disobedience, attempting to disrupt and block abortion clinic activities. The most extreme opponents have resorted to violence and even murder in an attempt to eliminate abortion.

All these methods have resulted in a great deal of litigation and added to the complexity of the abortion issue. Many of the subsequent cases have come before the Supreme Court. Observers have often expected the Court to overturn its Roe decision, particularly after the Reagan administration appointed three justices to the Court. However, while the Court has allowed increasingly strict state regulation of abortion since Roe, it has stuck to the essential finding in the case that women have a limited right to terminate their pregnancies. This entitlement is incorporated in the right of privacy guaranteed by the Fourteenth Amendment.

Constitutional Amendments Although amending the Constitution is the most direct way to reverse Roe v. Wade, neither Congress nor the states have passed a constitutional amendment related to the issue of abortion. The anti-abortion forces have found it extremely difficult to achieve a public consensus on this divisive issue. However, at least 19 state legislatures have passed applications to convene a constitutional convention to propose an amendment that would outlaw abortions. Congressional representatives have also worked to bring such an amendment about. The many dozens of amendments that have been proposed can be grouped into two main categories: states' rights, and the right to life. The former would restore to the states the same control over abortion that they exercised prior to Roe. The latter would designate the fetus as a person, entitled to all the privileges and rights guaranteed under the Fourteenth Amendment.

One unsuccessful attempt at changing the Constitution was the Hatch amendment of 1983, sponsored by Senator Orrin G. Hatch (R-Utah), which stated, "A right to abortion is not secured by this Constitution." It did not receive the two-thirds majority necessary in Congress to be submitted to the states for ratification.

Congress has also sponsored legislation that would effectively reverse Roe. For example, the Human Life Bill (S. 158), introduced by Senator jesse helms (R-N.C.) in 1981, would have established that the fetus is a person, entitled to the full rights and privileges guaranteed by the Fourteenth Amendment. The bill did not pass, and it is doubtful whether Congress has the constitutional authority to overturn a Supreme Court precedent without violating the separation of powers.

Federal Financing In 1976, Representative Henry J. Hyde (R-Ill.) sponsored an amendment to the federal budget appropriations bill for the department of health and human services (HHS). His amendment denied medicaid funding for abortion unless the woman's life is in danger or she is pregnant as a result of rape or incest, but only if the woman reports the incident at the time of its occurrence. Despite opposition from pro-abortion groups, Hyde attached this amendment every year to the same appropriations bill. The Supreme Court has upheld the constitutionality of the Hyde amendment (Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784 [1980]; McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393[1961]). Evidence suggests that these federal actions have caused fewer women to have abortions.

In the late 1980s, with its composition having been changed by three Reagan appointees (Justices sandra day o'connor, antonin scalia, and anthony m. kennedy), the Court issued a ruling related to federal financing of abortion that many perceived as a dramatic shift against abortion rights. In webster v. reproductive health services, 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 410 (1989), the Supreme Court upheld a Missouri law prohibiting the use of public funds and buildings for abortion procedures and counseling, including a provision that required fetal testing for viability for abortions performed after the twentieth week of pregnancy (Mo. Rev. Stat. §§ 1.205.1, 1.205.2,188.205, 188.210, 188.215). Scalia, appointed in 1986, argued in his concurring opinion that Roev. Wade should be overruled and that the Court had missed an opportunity in not doing so in this case.

The Webster decision resulted in a flood of new state legislation related to abortion. Many states sought to reactivate old abortion laws that had never been taken off the books subsequent to Roe. Louisiana, for example, sought to reinstate an 1855 law making all abortions illegal and imposing a ten-year sentence on doctors and women violating it. However, in January 1990, a federal district court ruled that the 1855 law could not be reinstated and that subsequent laws allowing abortions in certain circumstances took precedence (Weeks v. Connick, 733 F. Supp. 1036 [E.D. La. 1990]). By mid-1991, Pennsylvania, Guam, Utah, and Louisiana had all enacted laws banning abortions except in limited circumstances. Pennsylvania became the first to approve new abortion restrictions when it amended its Abortion Control Act (Pa. Cons. Stat. Ann. § 3201) to create strict new regulations on abortion procedures (see the discussion of Planned Parenthood of Southeastern Pennsylvania v. Casey under "Other Major Abortion Regulations," later in this entry). In other states such as South and North Dakota, legislation that would have sharply restricted abortion was only narrowly defeated. However, some states, including Connecticut and Maryland, reacted to the Webster decision by passing legislation protecting women's rights to abortion.

Before the Court ruled on Pennsylvania's Abortion Control Act, it decided a major case relating to federal funding and regulation of family planning clinics. In Rust v. Sullivan, 500 U.S. 173, 111 S. Ct. 1759, 114 L. Ed. 2d 233 (1991), the Court upheld a series of regulations issued in 1988 by the Reagan administration's Justice Department affecting family planning clinics that receive funds through title X of the Public Health Service Act of 1970, 42 U.S.C.A. §§ 300–300a-6. The regulations prohibited clinic personnel from providing any information about abortion, including counseling or referral. The regulations also required that the only permissible response to a request for an abortion or referral was to state that the agency "does not consider abortion an appropriate method of planning and therefore does not counsel or refer for abortion." This regulation became known to its detractors as the gag rule.

The regulations also prohibited title X-funded family planning clinics from lobbying for legislation that advocated or increased access to abortion, and they required that such clinics be "physically and financially separate" from abortion activities. Although a family planning agency could still conduct abortion-related activities, it could not use federal money to fund such activities. Chief Justice william h. rehnquist, who wrote the Court's opinion, disagreed with the contentions of the plaintiffs—several family planning agencies—that the federal regulations violated a woman's due process right to choose whether to terminate her pregnancy. He pointed out that the Due Process Clause generally confers no affirmative right to government aid. The government has no constitutional duty to subsidize abortion and may validly choose to fund "childbirth over abortion." Rehnquist noted that a woman's right to seek medical advice outside a title X-funded agency remained "unfettered."

Justice Blackmun, author of the Roe majority opinion, dissented, arguing that the regulations, because they restricted speech as a condition for accepting public funds, violated the First Amendment's free speech provision. The regulations, he wrote, suppressed "truthful information regarding constitutionally protected conduct of vital importance to the listener." Blackmun saw the regulations as improper government interference in a woman's decision to continue or end a pregnancy, and he claimed that they rendered the landmark Roe ruling "technically" intact but of little substance.

On January 22, 1993, shortly after taking office, President bill clinton signed a memorandum that revoked the gag rule, maintaining that it "endangers women's lives by preventing them from receiving complete and accurate medical information." On February 5, 1993, the secretary of HHS complied with the president's decision and declared that the department would return to title X regulations that were in effect before February 1988. Title X-funded clinics would again be able to provide nondirective counseling on all options to a patient and to refer her for abortion services if she chose. However, such clinics would still be prohibited from engaging in pro-choice lobbying or litigation.

Other Major Abortion Regulations

Among the first abortion regulations to be enacted after Roe v. Wade were requirements for the informed consent of the woman seeking an abortion. Although informed consent laws vary from jurisdiction to jurisdiction, it can generally be given only after a woman receives certain information from a doctor, medical professional, or counselor. This information can include the nature and risks of the abortion procedure, the risk of carrying the pregnancy to term, the alternatives to abortion, the probable age of the fetus, and specific government aid available for care of a child. Related to this issue are other types of consent—including parental and spousal consent—that states have sought to require before an abortion can be performed.

In 1976, the Court reviewed a Missouri statute requiring that the following provisions be met for an abortion to be performed: that a woman in the first twelve weeks of her pregnancy give written consent; that a wife obtain her husband's consent; and that a minor obtain her parents' consent, unless a medical necessity exists (Mo. Ann. Stat. § 188.010 et seq.). The statute also required that physicians and clinics performing abortions keep careful records of their procedures and that criminal and civil liability be imposed upon a physician who failed to observe standards of professional care in performing abortions. Planned Parenthood, a family planning organization, initiated a lawsuit to declare the law unconstitutional. The Supreme Court, in Planned Parenthood v. Danforth, 428 U.S. 52, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976), upheld the requirement that the woman give written consent in the first trimester, as well as the requirement that records of abortion procedures be kept. However, the Court ruled that a woman need not inform her husband of an abortion performed in the first trimester, because the state may not interfere in the woman's private decision concerning her pregnancy during that period. For the same reason, the Court struck down the law requiring a minor to obtain parental consent in the first trimester.

The Court clarified its position on parental consent in later rulings. In Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035, 61 L. Ed. 2d 797 (1979), it struck down a state law that required the consent of both parents or judicial approval—commonly called judicial bypass—before an unmarried minor could obtain an abortion. The Court found the law unconstitutional because it gave third parties—the child's parents or the court—absolute veto power over the minor's ability to choose abortion, regardless of her best interests, maturity, or ability to make informed decisions. In H.L. v. Matheson, 450 U.S. 398, 101S. Ct. 1164, 67 L. Ed. 2d 388 (1981), the Court upheld a Utah statute requiring that a physician notify the parents of a minor before performing an abortion on her (Utah Code Ann. § 76-7-304). Since the law required only notification rather than consent, the Court reasoned that it did not give any party veto power over the minor's decision. In Hodgson v. Minnesota, 497 U.S. 417, 110 S. Ct. 2926, 11 L. Ed. 2d 344 (1990), the Court upheld a parental notification statute because the statute's provision for judicial bypass took into account the best interests of the minor, her maturity, and her ability to make an informed decision.

In 1982, Pennsylvania passed the Abortion Control Act, which required that the woman give "voluntary and informed" consent after hearing a number of statements, including declarations of the following: the "fact that there may be detrimental physical and psychological effects" to the abortion; the particular medical risks associated with the abortion method to be employed; the probable gestational age of the fetus; the "fact that medical assistance benefits may be available" for prenatal care and childbirth; and the "fact that the father is liable to assist" in child support. The law also required a physician to report the woman's age, race, marital status, and number of previous pregnancies; the probable gestational age of the fetus; the method of payment for the abortion; and the basis of determination that "a child is not viable."

When the Pennsylvania law came before the Court in the 1986 case Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 106 S. Ct. 2169, 90 L. Ed. 2d 779, the Reagan administration's Justice Department specifically asked the Court to overturn Roe. In its brief, the department argued that the Court should "abandon" Roe because its textual and historical basis was "so far flawed" as to be a source of instability in the law. Instead, the brief urged, the Court should leave the state legislatures free to permit or prohibit abortion as they wish. However, by a narrow (5–4) vote the Court found all the provisions of Pennsylvania's Abortion Control Act to be unconstitutional, thereby reaffirming its previous decisions upholding a woman's constitutional right to abortion. "The states," wrote Justice Blackmun in the Court's opinion, "are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies." Pennsylvania defended itself by claiming that its procedures gave the pregnant woman information that would better inform her decision regarding abortion. Blackmun, although he agreed in principle with the idea of informed consent, found that the Pennsylvania procedures were designed not so much to inform as to encourage a woman to withhold her consent to an abortion.

The narrow margin of the Court's decision encouraged the anti-abortion movement. By the time the Court reached its next major abortion decision, in 1992—Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674—many expected it to finally reverse Roe. Again, it did not. Casey, the most important abortion decision since Roe, concerned amendments to the same Pennsylvania Abortion Control Act of 1982. The amendments prohibited abortions after twenty-four weeks except to save the woman's life or to prevent substantial and irreversible impairment of her bodily functions; required a woman to wait twenty-four hours after giving her informed consent before receiving an abortion; allowed only a physician to give informed-consent information; required a woman to notify her spouse; and mandated that minors obtain informed consent from at least one parent or a court before receiving an abortion. The plaintiffs in the case, five family planning clinics and a physician provider of abortion services, asked the Court to declare the statutes invalid.

In a close (5–4) decision, the Court again supported the basic provisions of Roe and upheld a woman's right to decide to obtain an abortion. The Court did, however, uphold all the Pennsylvania statutes except for the spousal notification provision, arguing that they did not present an "undue burden" to the woman's reproductive rights. Justices O'Connor, Kennedy, and david h. souter wrote the majority opinion, and Justices john paul stevens and Blackmun wrote concurring opinions. Chief Justice Rehnquist and Justices Scalia, byron r. white, and clarence thomas all dissented.

Noting that the case marked the fifth time the Justice Department under the Ronald Reagan and george h. w. bush administrations had filed a report with the Court making known its desire to overturn Roe, the Court's opinion defended the reasoning of the Roe decision. The Court characterized the Roe ruling as having three major provisions:

First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state. … Second is aconfirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.

In Casey, as in Roe, the Court found the constitutional basis of a woman's right to terminate her pregnancy in the Due Process Clause of the Fourteenth Amendment. As the Court stated, "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." The Court also invoked the legal doctrine of stare decisis, the policy of a court to follow previously decided cases rather than overrule them.

However, the Court emphasized, more than it had in Roe, "the State's important and legitimate interest in potential life," which is a quote taken directly from Roe. The justices also sought to better define the "undue burden" standard, originally developed by Justice O'Connor, that the Court had used to assess the validity of any possible regulations of a woman's reproductive rights. The Court more precisely defined an undue burden as one whose "purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."

The dissenting justices in the case restated their opinion that Roe was decided wrongly because no fundamental right for a woman to choose to terminate her pregnancy was written into the U.S. Constitution and because U.S. society, in the past, permitted laws that prohibited abortion. They also gave different arguments for upholding the Pennsylvania statute's restrictions. Such provisions had only to show a "rational basis," and using that test, they would have upheld all the challenged portions of the Pennsylvania law. Chief Justice Rehnquist and Justice Scalia both argued that the Court had misused the notion of stare decisis in the case, because the Court did not uphold all aspects of Roe. Scalia also maintained that although the liberty to terminate a pregnancy may be of great importance to many women, it is not "a liberty protected by the Constitution."

The Court's decision in Casey was used to strike down other state laws that sharply restricted women's access to abortion. In September 1992, citing the Casey decision in Sojourner v. Edwards, 974 F. 2d 27, the U.S. Court of Appeals for the Fifth Circuit struck down a Louisiana law that would have imposed stiff sentences on doctors performing abortions for reasons other than saving the life of the mother or in cases of rape or incest if the victim reported the crime (La. Rev. Stat. Ann. 14:87). The appeals court found the statute unconstitutional because it imposed an undue burden on women seeking an abortion before fetal viability. The Supreme Court later upheld this ruling without comment (Sojourner, 507 U.S. 972, 113 S. Ct. 1414, 122 L. Ed. 2d 785 [1993]).

After Planned Parenthood v. Casey

As a result of the Court's decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the battle over abortion moved beyond the question of whether Roe v. Wade would be overturned, to focus on what conditions truly constitute an American woman's right to safe, legal abortion. After a number of incidents of violence at abortion clinics, the abortion rights movement focused on lobbying for legislation and winning court cases guaranteeing access to

abortion clinics. The anti-abortion movement, on the other hand, continued to vigorously oppose abortion but became increasingly split between militant and moderate factions. Behind the split was an alarming increase in violent actions by militant anti-abortion protesters. Between 1993 and 1994, five abortion providers were killed by anti-abortion militants. Although such killings undermined public support for the anti-abortion movement, they also damaged the morale of those who staff family planning clinics; some clinics even shut down. As a result, family planning services, including abortion, remain difficult to obtain for women in many parts of the United States, particularly in rural areas.

The Supreme Court decided a number of different cases surrounding the issue of anti-abortion protests, many of which made it more difficult for anti-abortion groups to disrupt the operations of family planning clinics. In Madsenv. Women's Health Center, 512 U.S. 753, 114 S. Ct. 2516, 129 L. Ed. 2d 593 (1994), the Court upheld a regulation barring abortion protesters within 36 feet of a Melbourne, Florida, clinic. In another 1994 decision, National Organization for Women v. Scheidler, 510 U.S. 249, 114 S. Ct. 798, 127 L. Ed. 2d 99, the Court upheld the use of the Racketeer Influenced and Corrupt Organizations (RICO) chapter of the Organized Crime Control Act of 1970 (18 U.S.C.A. §§ 1961–1968) against militant anti-abortion groups. RICO, which was originally designed to combat Mafia crime, gives the government a potent tool to convict those involved in violence against abortion providers and their clinics.

In May 1994, President Clinton signed into law another tool to be used against anti-abortion militants, the Freedom of Access to Clinic Entrances Act (FACE), which allows for federal criminal prosecution of anyone who, "by force or threat of force or by physical obstruction, intentionally injures, intimidates, or interferes… with any person … obtaining or providing reproductive health services" (18 U.S.C.A. §248). The law also makes it a federal crime to intentionally damage or destroy the property of any reproductive health facility, and it permits persons harmed by those engaging in prohibited conduct to bring private suits against the wrongdoers. The law imposes stiff penalties as well for those found guilty of violating its provisions.

Ultimately, medical technology may have as much to do with the outcome of the abortion debate as politics. New drugs have been developed that induce abortion without a surgical procedure. The most well known of these is RU-486, or mifepristone, developed by the French pharmaceutical company Roussel Uclaf. The drug blocks the action of the female hormone progesterone, preventing the implantation of a fertilized egg in the wall of the uterus. It is used with a second drug in pill form, prostaglandin, taken 48 hours later, which causes uterine contractions. The uterine lining is then sloughed off, along with any fertilized eggs. Widely used in Europe since the early 1990s, RU-486 is said to be 92 to 95 percent effective. The drug is also being tested as a possible treatment for breast cancer, endometriosis, brain tumors, and depression.

The food and drug administration (FDA), under the Reagan and Bush administrations, banned the importation of RU-486 into the United States. However, in April 1993, the Clinton administration pressured Roussel Uclaf to license the drug for sale to the U.S. Population Council, a New York-based nonprofit organization, which said it would conduct clinical tests in the United States. In 1994, the pharmaceutical company donated its U.S. patent of the drug to the council. By 1996, the Population Council had filed for FDA approval, and in September 2000, the FDA approved the "abortion pill." Danco Laboratories, a New York-based women's health pharmaceutical company which had been given the rights by the council to manufacture and distribute mifepristone, made the drug available to U.S. clinics by November. In the two years following its introduction, over one hundred thousand women in the United States opted to use mifepristone as an abortion option. Abortion protesters quickly rallied and began to petition the FDA to rescind their approval of the drug, claiming that mifepristone is harmful to women.

The Pro-Life Movement and the Courts

Even before the Supreme Court's landmark 1973 abortion ruling in Roe v. Wade, pro-life groups were picketing and protesting at family planning clinics that perform abortions. Such groups had formed in response to an abortion reform movement that by 1970 had succeeded in liberalizing abortion laws in many states. From the start, most anti-abortion demonstrators modeled their protests on those of the civil rights movement of the 1950s and 1960s. The anti-abortion movement was led by such people as Joan Andrews, a pacifist and human rights advocate who became a hero for the movement after she spent two-and-a-half years in a Florida jail for attempting to disengage a suction machine used in abortions. The movement advocated the nonviolent approach to civil disobedience pioneered by Mohandas K. Gandhi and martin luther king jr. By 1975, two years after Roe, Catholic groups had begun to conduct sit-ins at family planning clinics where abortions were performed. With time, evangelical Protestant groups joined the movement, and by the mid-1990s, they accounted for a majority of anti-abortion activists.

Pro-life groups have come to call their activities direct actions or rescues, believing that they are saving unborn children from murder, and their tactics have grown increasingly complex. Typical stratagems include bringing in dozens or hundreds of volunteers and blocking clinic entrances with their bodies, often chaining themselves to doors; shouting slogans, sometimes with bullhorns; attempting to intercept women leaving or entering the building and plying them with anti-abortion literature; displaying graphic pictures of fetuses; and trailing clinic employees to and from work while shouting such things as "Baby killer!" Besides demonstrating, anti-abortion groups have sponsored pregnancy crisis centers, where they counsel pregnant women, with the intention of persuading them to carry their pregnancies to term. By the mid-1980s, activists had created national organizations and networks that promoted civil disobedience to stop the practice of abortion. The most well known of these is Operation Rescue, which was started in the 1980s by Randall Terry, an evangelical Christian.

The aggressive strategies of the anti-abortion movement prompted legal responses from women's and abortion rights organizations, resulting in a number of cases that have reached the Supreme Court. In several different rulings, the Court has attempted to clarify what is and is not allowed in anti-abortion demonstrations. In making these decisions, the Court has been careful to balance the rights of the demonstrators—particularly their right to free speech—with the rights of women seeking to use family planning clinic services. In 1988, for example, in Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420, the Court upheld a Brookfield, Wisconsin, city ordinance prohibiting pickets "focused on, and taking place in front of, a particular residence." The ordinance had been created in response to anti-abortion demonstrations targeting the private home of an obstetrician who performed abortions, a tactic assumed by the protesters after picketing at the physician's clinic had not stopped its operation. Justice Sandra Day O'Connor wrote in the Court's opinion, "There is simply no right to force speech into the home of an unwilling listener."

A later Supreme Court decision gave abortion clinics further protection: it supported the constitutionality of a court injunction prohibiting protesters from going within 36 feet of a clinic that had been a regular target of protests. In July 1994, in Madsen v. Women's Health Center, 512 U.S. 753, 114 S. Ct. 2516, 129 L. Ed. 2d 593, the High Court ruled 6–3 to let stand the 36-foot exclusion zone for the Melbourne, Florida, abortion clinic. However, the Court did strike down other provisions of the injunction, such as a 300-foot exclusion zone and restrictions on carrying banners and pictures. The ruling was considered a major defeat for the anti-abortion movement. Justice Antonin Scalia wrote a sharp dissent in which he claimed that the Supreme Court's position on abortion had claimed "its latest, greatest and most surprising victim: the First Amendment."

Increased Violence Changes the Debate

Violence has been a part of the heated debate surrounding abortion ever since the 1973 Roe v. Wade decision that guaranteed a woman's limited right to an abortion. Bombings, arson, and even murder have been committed by anti-abortion activists in the name of their cause. The National Abortion Federation counted more than three thousand violent or threatening incidents against abortion clinics between 1976 and 1994. In the 1990s, the extremist wing of the anti-abortion movement turned even more violent, including murder as part of its tactics. Some extremists now view killing health care professionals who perform abortions as justifiable homicide.

Between March 1993 and the end of 1994, five staff workers at abortion clinics were murdered by anti-abortion zealots. Dr. David Gunn was fatally shot on March 10, 1993, outside an abortion clinic in Pensacola, Florida, by Michael Griffin, who was sentenced to life in prison. In August 1994, Dr. John Bayard Britton, age 69, who had replaced Gunn as circuit-riding doctor in northern Florida, and his escort, James Barrett, age 74, were shot repeatedly in the face with a shotgun as their car pulled into the parking lot of the Ladies Clinic of Pensacola. Minutes later, police arrested Paul Hill, an anti-abortion extremist. President Bill Clinton called Britton's and Barrett's killings a case of domestic terrorism. Hill was executed in September 2003. In December 1994, in perhaps the most gruesome incident of all, John Salvi killed two people and wounded five more when he opened fire in two Boston-area family planning clinics. Salvi was sentenced to life in prison, where he later committed suicide.

The government and abortion rights groups have responded to the increased violence in two ways: reviewing existing laws to find those that can be used to investigate and prosecute violent groups and individuals, and creating new laws that specifically address access to abortion clinics. In 1993, women's rights groups attempted to use an existing civil rights law as precedence in Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 113 S. Ct. 753, 122 L. Ed. 2d 34 (1993). They were not successful. The Supreme Court ruled that a nineteenth-century federal civil rights law (42 U.S.C.A. § 1985[3]) aimed at protecting African Americans from the ku klux klan could not be used to prevent anti-abortion protesters from blockading abortion clinics. Originally enacted as part of the ku klux klan act of 1871, the law was specifically aimed at addressing mob violence and vigilantism against African Americans.

In 1989, a lower-court ruling found that Operation Rescue had violated trespassing and public nuisance laws and had conspired to violate the right to interstate travel of women seeking abortions at clinics. The court banned Operation Rescue from trespassing on or obstructing access to abortion clinics (NOW v. Operation Rescue, 726 F. Supp. 1483 [E.D. Va. 1989]). This decision was reversed by the Supreme Court in Bray, in a 6–3 ruling, when it held that women did not qualify as a class protected from discrimination by the provisions of the Ku Klux Klan Act.

After Bray, congressional supporters of abortion rights, Representative Charles E. Schumer (D-N.Y.) and Senator edward m. kennedy (D-Mass.), introduced the Freedom of Access to Clinic Entrances Act (FACE), which gives federal courts the authority to issue restraining orders against protesters blockading abortion clinics (18 U.S.C.A. § 248). It was signed into law by President Clinton on May 26,1994. The law allows for federal criminal prosecution of anyone who, "by force or threat of force or by physical obstruction, intentionally injures, intimidates, or interferes…with any person… obtaining or providing reproductive health services." The law also makes it a federal crime to intentionally damage or destroy the property of any reproductive health facility, and it permits persons harmed by those engaging in prohibited conduct to bring private suits against the wrongdoers. The penalties for violation of the act include imprisonment for up to one year and a fine of $10,000 for a first offense; for each subsequent offense, penalties can be up to three years' imprisonment and $25,000. FACE is patterned after existing civil rights laws, including 18 U.S.C.A. § 245(b), which prohibits force or threat of force to willfully injure, intimidate, or interfere with any person who is voting, engaging in activities related to voting, or enjoying the benefits of federal programs. Nevertheless, FACE is not identical to previous federal civil rights laws, particularly where it prohibits acts of physical obstruction.

FACE ignited immediate challenges by anti-abortion groups who claimed that it abridged their first amendment right to freedom of speech. Courts were unwilling to invalidate the law on this ground, reasoning that the law prohibits only conduct—as in "force," "threat of force," and "physical obstruction"—rather than speech (see Council for Life Coalition v. Reno, 856 F. Supp. 1422, No. 94-0843-1EG[CM], 1994 WL 363132 [S.D. Cal. 1994]).

Since the Freedom of Access to Clinic Entrances Act was passed, the Supreme Court has reviewed several laws restricting protests at clinics, with the goal of balancing the interests of protecting women seeking abortions with the freedom of speech interests of abortion clinic protesters. The Court has used an "intermediate scrutiny" standard to make their determinations. This standard analyzes the constitutionality of any regulation that infringes on speech to see whether it serves a legitimate state interest, whether it is narrowly tailored to serve that interest, and whether alternative paths exist for protesters to communicate their message.

For example, in Schenck v. Pro-Choice Network, 519 U.S. 357, 117 S.Ct. 855 (1997), by an 8–1 vote, the Court invalidated a New York state court injunction that created a 15-foot "floating" buffer zone around any person or vehicle seeking access to or leaving an abortion clinic. The court majority held that the floating buffer zone burdened "more speech than necessary to serve a relevant government interest." However, by a 6–3 vote, the Court upheld a provision creating a 15-foot "fixed" buffer zone outside of abortion clinic doorways, driveways, and parking lots.

Three years later, the Court issued a more detailed decision involving restrictions on abortion protests. In Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480 (2000), the Court upheld by a 6–3 majority a Colorado statute that made it unlawful for any person within one hundred feet of the entrance to any abortion clinic (or other health facility) to knowingly approach within eight feet of another person without that person's consent, with the purpose of passing out a leaflet or handbill to, displaying a sign to, engaging in oral protest with, or counseling said individual. The Court reasoned that the states' interest in protecting the health and safety of its citizens justified a special focus on unimpeded access to health care facilities and the avoidance of potential trauma to patients that could result from confrontational protests. In addition, the statute did not violate the First Amendment because it protected listeners from unwanted communication, was content-neutral, and served as a valid time, place, and manner restriction.

Abortion rights supporters suffered a more serious setback with the Court's decision in

Scheidler v. NOW & Operation Rescue v. NOW, 123 S.Ct. 1057 (U.S. 2003). By a vote of 8–1, the Court determined that federal racketeering laws, such as RICO, could not be used as the basis for criminal charges against pro-life protestors who demonstrate outside abortion clinics. The Court further found that the federal Hobbs Act was not violated by protestors who had not obtained property, attempted to obtain property, or conspired to obtain property from the abortion clinics. The Hobbs Act expanded the common-law definition of extortion to include acts by private individuals. 18 U.S.C.A. § 1951(b)(2). For purposes of the Hobbs Act requirement that property must be obtained for extortion to occur, word "obtain" means to gain possession of. The extortion provision of the Hobbs Act requires not only the deprivation, but also the acquisition, of property. Women seeking access to the abortion clinic had argued that their right to seek medical services from the clinics, the clinic doctors' rights to perform their jobs, and the clinics' rights to conduct their business—constituted "property" for purposes of the Hobbs Act, and those right had been "extorted" from them by abortion protestors.

The Supreme Court held that by interfering with, disrupting, and in some instances "shutting down" clinics that performed abortions, individual and corporate organizers of antiabortion protest network did not "obtain" or attempt to obtain property from women's rights organization or abortion clinics, and so did not commit "extortion" under the Hobbs Act, as required for organization and clinics to establish Racketeer Influenced and Corrupt Organizations Act (RICO) predicate offense; while organizers may have deprived or sought to deprive organization and clinics of their alleged property right of exclusive control of their business assets, they did not acquire any such property, nor did they pursue or receive something of value from organization or clinics that they could exercise, transfer, or sell. The Court also ruled that an injunction obtained against the abortions protesters litigating this case on the basis of RICO was invalid.

The debate and litigation surrounding the issue of anti-abortion protests show little sign of waning, with pro-choice advocates attempting to limit protesters' efforts to demonstrate at abortion clinics, and anti-abortion protest groups challenging the laws regulating their activities, on the grounds that such laws abridge freedom of speech.

New Attempts to Restrict Abortion

The Supreme Court also continues to be confronted with ongoing efforts to restrict abortion. In Mazurek v. Armstrong, 520 U.S. 968, 117S. Ct. 1865 (1997), the Court upheld Montana's statute requiring that only licensed physicians perform abortions, ruling that physician-only requirements in general are constitutional. In another decision out of Montana, Lambert v. Wicklund, 520 U.S. 292, 117 S.Ct. 1169 (1997), the Court upheld a state statute requiring one-parent notification before a minor can have an abortion. The judicial bypass procedure in this case required a minor to show that parental notification was not in her best interest.

Perhaps the biggest controversy to erupt in the late 1990s involved the debate over what is termed "partial-birth" abortion. Anti-abortion activists succeeded in having legislation passed in twenty-nine states that bans physicians from performing what doctors call dilation and extraction. It is used most commonly in the second trimester, between twenty and twenty-four weeks of pregnancy, when a woman suffers from a life-threatening medical condition or disease. In Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597 (2000), by a vote of 5–4, the Court struck down Nebraska's ban on partial-birth abortion. The Court ruled the statute was invalid because it lacked any exception to protect a woman's health, noting that the state could promote but not endanger a woman's health when it regulates the methods of abortion. It also concluded that terms in the statute were unconstitutionally vague such that it would affect not only partial birth abortion but also other constitutionally protected second-trimester abortion methods.

The importance of this decision lies in the fact that in early 2003 the U.S. Congress passed a nationwide ban on partial-birth abortions similar to the Nebraska law. The Congress had passed this law before, only to have Bill Clinton veto it. President george w. bush went on record as saying he would sign the bill if it reached his desk. If he did so, the Supreme Court could be called upon to decide whether Stenberg applied.

further readings

Drucker, Dan. 1990. Abortion Decisions of the Supreme Court, 1973 through 1989: A Comprehensive Review with Historical Commentary. Jefferson, N.C.: McFarland.

De Rosa, Melissa. 2002. "Partial-Birth Abortion: Crime or Protected Right?" St. John's Journal of Legal Commentary 16 (winter).

Edwards, Jaime. 2003. "McGuire v. Reilly: The First Amendment and Abortion Clinic Buffer Zones in the Wake of Hill v. Colorado." U.C. Davis Law Review 6 (February).

Mauro, Tony. 2003. "Weighing the Fate of Roe v. Wade: With Increased Fervor After the 30 Years of Legal and Social Turmoil It Spawned, Scholars Kick It, Probe It, Tear It Apart and Try To Rewrite It." New Jersey Law Journal 171 (January).

McCorvey, Norma. 1994. I am Roe. New York: Harper-Collins.

Palmer, Louis J. 2002. Encyclopedia of Abortion in the United States. Jefferson, N.C.: McFarland.

Reagan, Ronald. 1984. Abortion and the Conscience of a Nation. Nashville: Nelson.

Rubin, Eva R. 1987. Abortion, Politics, and the Courts: Roe v. Wade and Its Aftermath. New York: Greenwood.

cross-references

Constitutional Amendment; Fetal Rights; Husband and Wife; Parent and Child; Privacy; Reproduction; "Roe v. Wade" (Appendix, Milestone); Wattleton, Alyce Faye; Women's Rights.

ABORTION

In criminal law, abortion refers to induced abortion: the intentional destruction of a fetus in the womb, or an untimely delivery brought about with intent to destroy the fetus. An unintended miscarriage, or so-called spontaneous abortion, is not, for legal purposes, an abortion at all. Termination of pregnancy sometimes is used as a synonym for abortion. It is, however, a wider term, since pregnancy can be terminated by live birth: inducing labor, a common obstetrical practice, purposely terminates pregnancy, but would not be considered abortion. Abortion implies killing the fetus. This is what makes it controversial. Probably no contemporary public question has attracted more controversy than the question of whether abortion should be considered a crime or a matter of choice by a pregnant woman about how her body will be used.

Classical attitudes and canon law

Attitudes towards abortion have varied over time and across cultures. In the ancient world, it was widely practiced, for a number of reasons, as was infanticide. Roman law punished the wife who induced an abortion in order to thwart her husband or conceal an adultery; the harm lay not in killing the child but in depriving the husband of his right to decide whether or not to do so. Plato and Aristotle regarded both abortion and infanticide as forms of population control. Aristotle suggested that, "when local custom does not allow exposing infants for the purpose of keeping down numbers, the proper thing to do is to limit family size, and if a child is conceived in excess of the limit set, to induce an abortion before it develops sensation and life: since whether abortion is right or not will depend on whether sensation and life have begun" (Politics 7.16, 1335^b). This statement presupposes the common premodern belief that a fetus does not begin to live until some time after conception. The exact time was controversial. Aristotle himself put it at roughly forty days after conception for a male fetus, ninety days after for a female. A later Roman view took these two periods to be forty and eighty days, respectively. Until then the fetus was thought to be an inanimate, inert part of the pregnant woman's body; its destruction could not be homicide. And even after "animation," prevailing opinion in Greco-Roman times permitted abortion, as it permitted infanticide after birth.

The Christian church, practically from the start, opposed both abortion and infanticide, on the ground of the sanctity of human life; in the case of abortion, association with sexual licentiousness provided a further reason for condemnation. But in determining when the soul enters the body, so as to make abortion homicide, early theologians were influenced by classical views regarding animation. A distinction was drawn between (1) abortion involving an inanimate or "unformed" fetus, which was regarded, like contraception, as an act that prevented a life from coming into being; and (2) abortion involving an animate, "formed," or "vivified" fetus, which amounted to the taking of a life that already had come into being. While not everyone accepted this distinction, it was incorporated into medieval law, both canon and civil law. There was considerable uncertainty, however, as to when animation or "ensoulment" took place. Gradually, between the fourteenth and sixteenth centuries, canon lawyers fixed the moment, as in Roman times, at forty days after conception for a male fetus, eighty days after for a female. This view was challenged in the seventeenth and eighteenth centuries, as Aristotelian biology began to fall into discredit. But only in the nineteenth century (just as secular laws on abortion were becoming more restrictive as well) did the Church definitively adopt the position that all abortion, at any stage of fetal development, should be treated as homicide.

Abortion in English law

Meanwhile, the uncertainty of canon lawyers allowed English law to give its own twist to the concept of animation. In the thirteenth century St. Thomas Aquinas had said that life is manifested principally in two kinds of actions: knowledge and movement. It could be taken to follow that animus, soul, or life, enters the body of the unborn infant when it first moves or stirs in the womb. This became the rule of English law. "Quickening" (literally, "coming to life") was held to occur not at a fixed time after conception, but at the moment when fetal movement is first detected—an event that varies with each pregnancy, but which usually happens near midterm, around the twentieth week.

It is not known exactly when this became the rule in England. The early twelfth-century text known as the Leges Henrici Primi took it for granted that animation occurs forty days after conception: abortion (which was treated only as an ecclesiastical offense) was said to be subject to three years' penance if it took place within those forty days, ten years' penance, as "quasi homicide," if it took place after animation (quickening). The identification of quickening with the first perception of fetal movement has been thought to date from the time of Henry de Bracton, a thirteenth-century judge and contemporary of Aquinas, who wrote the first systematic treatise on English law. But Bracton merely restated the canon law rule: "If one strikes a pregnant woman or gives her poison in order to procure an abortion, if the fetus is already formed or animated (quickened), especially if it is animated (quickened), he commits homicide." The usage by which a quickened fetus means one that has been felt moving in the womb could well be a much later development.

Although Bracton said that abortion of a quickened fetus was homicide, later writers insisted that it could not be homicide at common law. The proposition that abortion cannot be homicide is reiterated by practically every major writer on English criminal law, from William Staunford and William Lambard in the sixteenth century, through Edward Coke and Matthew Hale in the seventeenth century, to William Hawkins and William Blackstone in the eighteenth century. Homicide was agreed to require the prior birth of the victim. Murder might be charged, according to Hale, if the woman on whom an abortion was performed died as a result. Murder also might be charged, according to Coke, if a botched abortion injured a fetus that afterwards was born alive and then died from its prenatal injuries. But where a fetus, even a quickened fetus, was killed in the womb, resulting in stillbirth, whatever the crime, it would not be homicide at common law.

Killing the fetus might be a lesser crime. In England, abortion, both before and after quickening, was an ecclesiastical offense within the jurisdiction of the church courts. The extent to which it also could be prosecuted in the royal courts as a common law crime is a matter of controversy. Abortion after quickening, although not homicide, was said by Coke to be "a great misprison," by Blackstone to be "a very heinous misdemeanor." How far it actually was prosecuted is another question. As a practical matter, until the seventeenth century, the royal courts probably were content to leave the prosecution of abortion to church courts, which could compel, in ways the common law could not, testimony under oath about what had caused a miscarriage and whether a fetus had quickened.

The question of how far abortion constituted a common law crime became more important with the decline of ecclesiastical jurisdiction after the Reformation, especially after 1661 when the privilege against self-incrimination was extended to ecclesiastical tribunals. There are instances of prosecution for abortion in the royal courts during the seventeenth and eighteenth centuries. These are scattered, however, and the exact contours of the offense have been disputed, as they were disputed at the time. Again, difficulties of proof imposed limits on what could be prosecuted. Without reliable tests for pregnancy, testimony about fetal movement might be required to prove that a woman really had been pregnant, or that the abortion had killed a live fetus. Proof of quickening became, then, a practical if not a legal prerequisite; and the need for such proof would make it hard to prosecute a woman who had procured her own abortion. This, in fact, was seldom done.

In 1803 Lord Ellenborough's Act (43 Geo. 3, c. 58), an early effort to consolidate offenses against the person, put abortion on a statutory basis for the first time in England. Attempt to induce the abortion of a quickened fetus through the use of poison was made a capital felony, while the attempt by any means to induce an abortion before (or without proof of) quickening was made a felony punishable by transportation to a penal colony. In 1828, attempted abortion with instruments after quickening was made a capital felony as well. The Offenses Against the Person Act, 1837, eliminated capital punishment, abrogated the distinction based on quickening, and subjected all abortion, at any stage of pregnancy, to the same penalty—transportation for life or three years' imprisonment. The Offenses Against the Person Act, 1861, s.58, changed the maximum punishment to life imprisonment and expressly inculpated the woman who procured or attempted her own abortion. This section is still on the books, although the Abortion Act, 1967, made an exception for cases in which the abortion is performed by a registered medical practitioner on any of the fairly liberal grounds for abortion permitted by that act.

Abortion in American law: the nineteenth century

In the United States, the common law as stated by Blackstone generally was held to apply until superseded by statute in the nineteenth century. Abortion after quickening was treated as a common law misdemeanor; abortion before quickening was not considered a crime in the vast majority of states; and the liability of the woman who submitted to an abortion was questionable.

The first American abortion statute was enacted in Connecticut in 1821. It was influenced by the English statute of 1803 and made punishable by life imprisonment any attempt to induce the abortion of a quickened fetus through the use of poison. It was revised in 1830, two years after comparable revision of the English statute, to include attempts to induce abortion through the use of herbs or instruments. At the same time, the maximum penalty was reduced from life to ten years' imprisonment. Statutes based on Connecticut's 1821 law were enacted in Missouri in 1825 and in Illinois in 1827; these applied, by their terms, to all attempts to induce abortion through use of poison, whether or not the fetus had quickened. In 1828 New York, as part of its Revised Statutes of 1829 (which took effect in 1830), enacted a more comprehensive set of provisions containing two further innovations. First, attempt to induce an abortion by any means, at any stage of pregnancy, was treated as a misdemeanor punishable by up to a year in jail, but abortion intended to destroy a fetus after quickening was specified to be second degree manslaughter. (In 1830, this was amended to make clear that it was manslaughter only if the fetus were actually killed.) Second, the New York statute made an exception for abortions necessary to preserve the mother's life or "advised by two physicians to be necessary for that purpose." A revision in 1845 included another innovation—a provision expressly making the woman who submitted to abortion guilty of a misdemeanor. (In 1881, this was amended to make the woman guilty of manslaughter, as the abortionist had been since 1830, if the abortion killed a quickened fetus.)

Every other state enacted abortion legislation during the nineteenth century (except Kentucky, which did so in 1910). Despite differences from state to state, a basic pattern emerged, which largely mirrored the innovations in New York. It prevailed throughout the United States until the 1960s; in about fifteen states, these old statutes, although unenforceable since 1973, remain on the books.

1. Abortion at any stage of gestation usually was made a criminal offense. Since most abortions take place in early pregnancy, this represented a drastic change in the law which previously had been understood to permit abortion before quickening. Some states continued to require proof of quickening; in some, as in New York, whether the abortion took place before or after quickening determined the level of punishment. But most rejected the quickening distinction and established the same penalty for all abortions.
2. States that used the quickening distinction to determine the level of punishment usually treated destruction of a quickened fetus as manslaughter, as New York did after 1830. A small number treated the destruction of a fetus at any stage of pregnancy as manslaughter. Most states, however, regarded abortion as a separate offense, not as a form of homicide.
3. In some states, the pregnant woman who procured her own abortion expressly was treated as a guilty party, as in New York after 1845. This was a largely symbolic condemnation: the woman was almost never prosecuted. Indeed, criminalizing her conduct could complicate prosecution of the abortionist because of evidentiary rules prohibiting compulsory self-incrimination and requiring the testimony of an accomplice to be corroborated.
4. Most statutes punished attempted as well as completed abortions in order to sidestep the problems involved in having to prove pregnancy as an element of the crime. Liability turned on whether the defendant acted with intent to destroy a fetus. Some of these statutes applied, however, only when the woman in fact was pregnant.
5. An exception was usually made, as in the New York statute of 1828, for abortions designed to save the mother's life. A few states permitted abortion to preserve the mother's health. Otherwise, the prohibition of abortion was absolute.

Nineteenth-century abortion statutes were adopted for several reasons. The immediate occasion for enactment often was consolidation of the criminal law in statutory form. An upsurge in anti-abortion legislation occurred after 1840, as abortion became more frequent, more visible, more widely advertised and publicly discussed. This legislation was actively promoted by the medical profession, which was beginning to organize itself, in part, around opposition to abortion. Medical opposition drew on new understandings of gestation as a continuous process, in which animation or quickening had no scientific significance. It also was linked to the struggle by physicians to monopolize the practice of medicine and exclude "irregular" (nonphysician) practitioners who were then the chief purveyors of abortion and abortifacients. It relied as well on social anxieties about declining birthrates among the established white population, and a sense that abortion had become a common recourse not only of single women "in trouble," but also of otherwise respectable middle-class married women who were unmindful of the fact that maternity was their only proper vocation. The United States was not alone in this: for similar reasons, most western countries adopted restrictive abortion laws during the nineteenth century, just as, beginning with England in 1967, most western countries, including the United States, relaxed restrictions on abortion within two decades of each other.

Twentieth-century abortion law reform

Despite legal prohibition, abortion remained available in the United States, under conditions that varied with time and place. During the 1930s, for instance, at least in large cities, abortion could be readily obtained through referral to private clinics. It was prosecuted, if at all, only when the woman who sought the abortion died. This changed in the 1940s and 1950s. Antiabortion laws were enforced more strictly. Abortion became harder to obtain and more expensive. Hospitals created new rules to restrict therapeutic abortions. Women without money and good medical contacts where shut out of facilities for safe abortion. Injuries and fatalities from clandestine "back-alley" abortions increased.

Recognition that illegal abortion was widespread and often dangerous led in the 1950s and 1960s to calls for abortion law reform. Medical opinion reversed itself. Physicians began to complain about the hypocrisy and discrimination involved in applying statutory exceptions for abortions designed to preserve the mother's life, and chafed at restrictions imposed by law rather than as a matter of medical judgment. "Quality of life" was emphasized. In the early 1960s, highly publicized fetal deformities caused by thalidomide and rubella heightened sympathy for women seeking abortions. Concern about worldwide overpopulation produced more favorable attitudes toward all techniques for controlling reproduction. So did the "sexual revolution" of the 1960s, a flood of women in the workforce, and the beginnings of "second-wave" feminism.

The American Law Institute's Model Penal Code (1962) provided an important catalyst. The "tentative draft" of the code's section on abortion (§ 230.3) was first published in 1959. It proposed that abortion should be a felony, with the level of punishment to depend on whether the abortion took place up to or after the twenty-sixth week of pregnancy. It added, however, that "[a] licensed physician is justified in terminating a pregnancy if he believes there is a substantial risk (1) that continuation of the pregnancy would gravely impair the physical and mental health of the mother or (2) that the child would be born with grave physical or mental defect, or (3) that the pregnancy resulted from rape, incest, or other felonious intercourse."

During the decade or so between 1962 and 1973, nineteen states reformed their abortion laws. Some adopted all three of the Model Penal Code's expanded justifications for abortion; others followed it only in part. Four states (Hawaii, Alaska, New York, and Washington) went further and removed all limitations on the reasons for which abortions could be performed. The New York law enacted in 1970 was the most sweeping. It permitted all abortions within the first twenty-four weeks of pregnancy and did away with both residency and hospitalization requirements (thus encouraging the growth of free-standing abortion clinics).

Roe v. Wade and its aftermath

New York's was the only state abortion law that came close to surviving the Supreme Court's decision in Roe v. Wade, 410 U.S. 113 (1973). Roe held unconstitutional a Texas statute, dating from 1857, which prohibited all abortions except those procured on medical advice for the purpose of saving the mother's life. A companion case, Doe v. Bolton, 410 U.S. 179 (1973), struck down a Georgia law adopted in 1968 and based on the Model Penal Code's abortion provisions. The effect of these two decisions was to render invalid practically every abortion restriction on the books in the United States.

The decision in Roe was premised on a woman's constitutional right to control (in consultation with her physician) the use of her own body for reproductive purposes. This right was held to follow from the Court's previous decisions recognizing a fundamental right to "privacy" or personal autonomy. Because a "fundamental" right was involved, a state could not simply prohibit abortion on any terms it chose; it would have to adduce "compelling" reasons for overriding a woman's right to procreative choice. Since early abortion is safer than normal childbirth, concern for the mother's health would not provide a sufficiently compelling reason for restrictions on abortion during the first trimester, other than a requirement that it be performed by a licensed physician. Concern for the fetus could not be used to preempt a woman's right to elect abortion before "viability"—the point near the beginning of the third trimester at which a fetus is capable of surviving outside the womb, albeit only with artificial aid. After viability, concern for the fetus as "potential life" was held to be sufficiently compelling to permit a state to regulate or even prohibit abortion, unless continued pregnancy threatened the mother's life or health. In other words, Roe invalidated almost all restrictions on abortion during the first six months of pregnancy except for those designed to protect maternal health in the second trimester, but permitted any and all restrictions during the third trimester except where abortion was necessary to preserve maternal health or life.

The Roe decision sparked enormous controversy. Opposition to Roe turned abortion into a central issue in national politics. Efforts to over-rule Roe by constitutional amendment, or by packing the Supreme Court, so far have failed. The Court did depart from Roe and nearly over-ruled it in Webster v. Reproductive Health Services, 492 U.S. 490 (1989). Subsequently, however, the controlling opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), jointly delivered by Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter, reaffirmed Roe 's "essential holding," although it significantly qualified Roe by allowing states to invoke both maternal health and concern for the life of the fetus as bases for restrictions that inhibit access to abortion at any stage of pregnancy, so long as those restrictions do not amount to an "undue burden" posing a "substantial obstacle" to the abortion of a nonviable fetus.

Since 1973 about two-thirds of the states have enacted new abortion laws designed to test the limits of Roe. These statutes curtail the availability of abortion in various ways: by denying the use of public funds or facilities for abortion; by requiring special precautions to prevent the abortion of a possibly viable fetus; by banning particular methods of abortion; and by imposing waiting periods and notification and consent requirements designed to discourage the choice of abortion.

1. Laws denying the use of public funds or facilities for abortion consistently have been upheld by the Supreme Court (e.g., Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980)), as was a Bush administration rule forbidding clinics that receive federal funds from counseling or even mentioning abortion (Rust v. Sullivan, 500 U.S. 173 (1991)). Indeed, it was in the abortionfunding cases that the distinction first emerged between "undue burdens" on procreative choice and constitutionally permissible expressions of a legislative policy favoring maternity.
2. Laws prohibiting the abortion of a viable fetus are common and generally valid, provided they make exception for abortions necessary to preserve the mother's life or health. Planned Parenthood Association of Kansas City v. Ashcroft, 462 U.S. 476 (1983), narrowly upheld a Missouri statute mandating that a second doctor be present to look out for the fetus during post-viability abortions; Thornburg v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), struck down a similar Pennsylvania requirement that did not except situations where waiting for the second doctor would put the mother's life or health at risk. Thornburg also invalidated a requirement that post-viability abortions be performed in a way that would allow the unborn child to survive the procedure, if it could be done without significantly greater risk to the mother; this was read as impermissibly demanding that the mother bear an increased medical risk in order to save the fetus. Webster v. Reproductive Health Services, supra, upheld another Missouri statute prohibiting doctors from performing abortions on any woman believed to be twenty weeks pregnant or more without first undertaking tests to determine fetal viability.
3. Laws banning particular methods of abortion generally have been found to be invalid. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976), struck down a prohibition of saline amniocentesis, at the time the usual and safest method for second trimester abortions. Most of the lower courts that passed on the spate of state laws prohibiting so-called partial-birth abortions found them to be invalid, as did the Supreme Court in Stenberg v. Carhart, 120 S. Ct. 2597 (2000). These laws criminalize abortions where "the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery." This appears to refer to the procedure known as "intact dilation and extraction," in which, in order to minimize damage to the uterus and cervix, the fetus is partly moved into the birth canal before being destroyed. But no exception for maternal health is made in these laws; it is not required that the fetus be viable; and the statutory language is said to be vague enough to cover other permissible abortion procedures as well.
4. Laws imposing relatively minor impediments to abortion such as record-keeping requirements and a requirement of the patient's written consent generally have been upheld. Requirements that doctors make certain specified statements to a woman seeking abortion, so that her consent will be "informed," and mandatory twenty-four-hour waiting periods before the abortion can be performed, were struck down in City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), and in Thornburg, supra, on the ground that they were designed to intimidate women into forgoing abortion; such requirements were upheld, however, under the new standard adopted by the plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, supra. A requirement of spousal consent was invalidated in Danforth, supra, on the ground that it effectively gave the husband a veto over his wife's exercise of a constitutional right; Casey similarly found that, for many women, even a requirement of spousal notification would pose a substantial obstacle to abortion and therefore was impermissible. A requirement of parental consent when an unmarried pregnant minor seeks an abortion was invalidated in Danforth ; but such requirements generally have been upheld in subsequent cases, including Casey, when accompanied by alternative provision for a judge to approve the abortion in lieu of a parent. A law requiring that both of a minor's parents be notified of the abortion would be invalid without a similar provision for so-called judicial bypass (Hodgson v. Minnesota, 497 U.S. 417 (1990)); the validity of a requirement that only one parent be notified, without provision for judicial bypass, was left open in Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990), which upheld a law requiring notification to at least one parent, with a judicial bypass option.

Efforts to limit the availability of abortion have been relentless, an indication of the intensity of opposition to Roe. The anti-abortion "pro-life" position is rooted partly in the belief that the fetus is already a human person whose destruction constitutes a form of homicide and should be punished as such. But it is not based exclusively on this belief. There are different strands of "pro-life" sentiment. Willingness to make exceptions for cases of medical necessity or of rape, and reluctance to classify abortion as first degree murder, suggest varying degrees of commitment to the premise that abortion is in no way different from any other form of homicide. In any event, opposition to abortion appears to be bound up as well with views about sexual morality and the nature of the relationship between men and women. Roe v. Wade is the outstanding symbol of the prevalence of an antithetical set of views that have, since the 1960s, subverted "traditional" family and religious values; taking up arms (in some cases quite literally) against abortion serves to reassert the importance of those values in an increasingly secular world. For the "pro-choice" side, Roe also has considerable symbolic significance, as well as the practical and liberating effect of giving women control over their fertility. For both sides, every millimeter of ground gained or lost in the struggle to preserve or curtail the right to abortion established in Roe is a signal victory or defeat in a continuing clash between deeply-held beliefs about the proper role and responsibility of women in the family and in society.

Edward M. Wise

See also Criminalization and Decriminalization; Homicide: Legal Aspects.

BIBLIOGRAPHY

Byrn, Robert M. "An American Tragedy: The Supreme Court on Abortion." Fordham Law Review 41 (1973): 807–862.

Colker, Ruth. Abortion & Dialogue: Pro-Choice, Pro-Life, & American Law. Bloomington and Indianapolis: Indiana University Press, 1992.

Dellapenna, Joseph W. "The History of Abortion: Technology, Morality, and Law." University of Pittsburgh Law Review 40 (1979): 359–428.

Dworkin, Ronald. Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom. New York: Knopf, 1993.

Garrow, David J. Liberty & Sexuality: The Right to Privacy and the Making of Roe v. Wade. New York: Macmillan, 1994.

Glendon, Mary Ann. Abortion and Divorce in Western Law: American Failures, European Challenges. Cambridge, Mass.: Harvard University Press, 1987.

Keown, John. Abortion, Doctors, and the Law: Some Aspects of the Legal Regulation of Abortion in England from 1803 to 1982. Cambridge, U.K.: Cambridge University Press, 1988.

Luker, Kristin. Abortion and the Politics of Motherhood. Berkeley: University of California Press, 1984.

McDonagh, Eileen L. Breaking the Abortion Deadlock: From Choice to Consent. New York: Oxford University Press, 1996.

Means, Cyril C., Jr. "The Law of New York Concerning Abortion and the Status of the Foetus, 1664–1968: A Case of Cessation of Constitutionality." New York Law Forum 14 (1968): 411–515.

——. "The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right about to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?" New York Law Forum 17 (1971): 335–410.

Mensch, Elizabeth, and Freeman, Alan. The Politics of Virtue: Is Abortion Debatable? Durham, N.C.: Duke University Press, 1993.

Mohr, James C. Abortion in America: The Origins and Evolution of National Policy, 1800–1900. New York: Oxford University Press, 1978.

Noonan, John T., Jr., ed. The Morality of Abortion: Legal and Historical Perspectives. Cambridge, Mass.: Harvard University Press, 1970.

Reagan, Leslie J. When Abortion Was a Crime: Women, Medicine, and the Law in the United States, 1867–1973. Berkeley and Los Angeles: University of California Press, 1997.

Rodman, Hyman; Sarvis, Betty; and Walker Bonar, Joy. The Abortion Question. New York: Columbia University Press, 1987.

Tribe, Laurence H. Abortion: The Clash of Absolutes. 2d ed. New York: Norton, 1992.

Williams, Glanville. The Sanctity of Life and the Criminal Law. New York: Knopf, 1957.

CASES

City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983).

Doe v. Bolton, 410 U.S. 179 (1973).

Harris v. McRae, 448 U.S. 297 (1980).

Hodgson v. Minnesota, 497 U.S. 417 (1990).

Maher v. Roe, 432 U.S. 464 (1977).

Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990).

Planned Parenthood Association of Central Missouri v. Danforth, 428 U.S. 52 (1976).

Planned Parenthood Association of Kansas City v. Ashcroft, 462 U.S. 476 (1983).

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

Roe v. Wade, 410 U.S. 113 (1973).

Rust v. Sullivan, 500 U.S. 73 (1991).

Thornburg v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).

Webster v. Reproductive Health Services, 492 U.S. 490 (1989).

Abortion

Abortion is one of the most difficult, controversial, and painful subjects in modern society. The principal controversy revolves around the questions of who makes the decision concerning abortion, the individual or the state; under what circumstances it may be done; and who is capable of making the decision. Medical questions such as techniques of abortion are less controversial but are sometimes part of the larger debate.

Abortion is not new in human society; a study by the anthropologist George Devereux (1955) showed that more than 300 contemporary human nonindustrial societies practiced abortion. Women have performed abortions on themselves or experienced abortions at the hands of others for thousands of years (Potts, Diggory, and Peel 1977), and abortions continue to occur today in developing areas under medically primitive conditions. However, modern technology and social change have made abortion a part of modern health care. At the same time, abortion has become a political issue in some societies and a flash point for disagreements about the role of women and individual autonomy in life decisions.

Definition Of Abortion

The classic definition of abortion is "expulsion of the fetus before it is viable." This could include spontaneous abortion (miscarriage) or induced abortion, in which someone (a doctor, the woman herself, or a layperson) causes the abortion. Before modern methods of abortion, this sometimes meant the introduction of foreign objects like catheters into the uterus to disrupt the placenta and embryo (or fetus) so that a miscarriage would result. In preindustrial societies, hitting the pregnant woman in the abdomen over the uterus and jumping on her abdomen while she lies on the ground are common techniques used to induce an abortion (Early and Peters 1990). Although these methods can be effective, they may also result in the death of the woman if her uterus is ruptured or if some of the amniotic fluid surrounding the fetus enters her bloodstream. From the colonial period to the early twentieth-century in America, primitive methods such as these were used along with the introduction of foreign objects into the uterus (wooden sticks, knitting needles, catheters, etc.) to cause abortion, frequently with tragic results (Lee 1969).

In modern society, abortions are performed surgically by physicians or other trained personnel experienced in this technique, making the procedure much safer. The goal of induced abortion remains the same: to interrupt the pregnancy so that the woman will not continue to term and deliver a baby.

One problem with the classical definition of abortion is the changing definition of viability (the ability to live outside the womb). Premature birth is historically associated with high death and disability rates for babies born alive, but medical advances of the twentieth century have made it possible to save the lives of babies born after only thirty weeks of pregnancy when the usual pregnancy lasts forty weeks. Some infants born at twenty-six to twenty-seven weeks or younger have even survived through massive intervention and support. At the same time, abortions are now routinely performed up to twenty-five to twenty-six weeks of pregnancy. Therefore, the old definition of viability is not helpful in determining whether an abortion has been or should be performed (Grobstein 1988).

Reasons for Abortions

There are probably as many reasons for abortions as there are women who have them. Some pregnancies result from rape or incest, and women who are victims of these assaults often seek abortions. Most women, however, decide to have an abortion because the pregnancy represents a problem in their lives (Bankole et al. 1998, 1999; Alan Guttmacher Institute 1999).

Some women feel emotionally unprepared to enter parenthood and raise a child; they are too young or do not have a reliable partner with whom to raise a child. Many young women in high school or college find themselves pregnant and must choose between continuing the education they need to survive economically and dropping out to have a baby. Young couples who are just starting their lives together and want children might prefer to become financially secure first to provide better care for their future children.

Sometimes people enter into a casual sexual relationship that leads to pregnancy with no prospect of marriage. Even if the sexual relationship is more than casual, abortion is may be sought because a woman decides that the social status of the male is inappropriate. Abortion is reported to be sought by some women because of popular beliefs that forms of modern contraceptives are more dangerous than abortion (Otoide et al. 2001).

Some of the most difficult and painful choices are faced by women who are happily pregnant for the first time late in the reproductive years (thirty-five to forty-five) but discover in late pregnancy (twenty-six or more weeks) that the fetus is so defective it may not live or have a normal life. Even worse is a diagnosis of abnormalities that may or may not result in problems after birth. Some women and couples in this situation choose to have a late abortion (Kolata 1992; Hern et al. 1993).

In some cases, a woman must have an abortion to survive a pregnancy. An example is the diabetic woman who develops a condition in pregnancy called hyperemesis gravidarum (uncontrollable vomiting associated with pregnancy). She becomes malnourished and dehydrated in spite of intravenous therapy and other treatment, threatening heart failure, among other things. Only an abortion will cure this life-threatening condition.

In certain traditional or tribal societies, either the decision to end a pregnancy by abortion or the method of doing so is determined by the group. John Early and John Peters (1990) described a method used by the Yanomami of the Amazon of hitting or jumping on a pregnant woman's abdomen to cause an abortion. A similar method has been described in other tribal societies in Africa and South Asia. Among the Suraya of seventeenth-century Taiwan, a woman under the age of thirty was required to end all pregnancies by abortion by forceful uterine massage (Shepherd 1995).

Studies done in Chile in the 1960s showed that the majority of women who sought abortions at that time were likely to be married, to have the approval of the husband, and were having the abortion for economic reasons (Armijo and Monreal 1965; Requena 1965). This pattern has been observed in many other countries.

In certain Muslim societies, a young couple from feuding families must wait five years or more to have a child, with the result of numerous abortions in order to observe this family rule.

When and How Abortions Are Performed

In the United States and in European countries such as the Netherlands, more than 90 percent of all abortions are performed in the first trimester of pregnancy (up to twelve weeks from the last normal menstrual period). Most take place in outpatient clinics specially designed and equipped for this purpose. Nearly all abortions in the United States are performed by physicians, although two states (Montana and Vermont) permit physicians' assistants to do the procedure. A limited number of physicians in specialized clinics perform abortions during the second trimester of pregnancy, but only a few perform abortions after pregnancy has advanced to more than twenty-five weeks. Although hospitals permit abortions to be performed, the number is limited because the costs to perform an abortion in the hospital are greater and hospital operating room schedules do not allow for a large number of patients. In addition, staff members at hospitals are not chosen on the basis of their willingness to help perform abortions, while clinic staff members are hired for that purpose.

Most early abortions (up to twelve to fourteen weeks of pregnancy) are performed with some use of vacuum aspiration equipment. A machine or specially designed syringe is used to create a vacuum, and the suction draws the contents of the uterus into an outside container. The physician then checks the inside of the uterus with a curette, a spoon-shaped device with a loop at the end and sharp edges to scrape the wall of the uterus (Hern 1990).

Before the uterus can be emptied, however, the cervix (opening of the uterus) must be dilated, or stretched, in order to introduce the instruments. There are two principal ways this can be done. Specially designed metal dilators, steel rods with tapered ends that allow the surgeon to force the cervix open a little at a time, are used for most abortions. This process is usually done under local anesthesia, but sometimes general anesthesia is used. The cervix can also be dilated by placing pieces of medically prepared seaweed stalk called Laminaria in the cervix and leaving it for a few hours or overnight (Hern 1975, 1990). The Laminaria draws water from the woman's tissues and swells up, gently expanding as the woman's cervix softens and opens from the loss of moisture. The Laminaria is then removed, and a vacuum cannula or tube is placed into the uterus to remove the pregnancy by suction (Figure 1). Following this, the walls of the uterus are gently scraped with the curette.

After twelve weeks of pregnancy, performing an abortion becomes much more complicated and dangerous. The uterus, the embryo or fetus, and the blood vessels within the uterus are all much larger. The volume of amniotic fluid around the fetus has increased substantially, creating a potential hazard. If the amniotic fluid enters the woman's circulatory system, she could die instantly or bleed to death from a disruption of the blood-clotting system. This hazard is an important consideration in performing late abortions.

Ultrasound equipment, which uses sound waves to show a picture of the fetus, is used to examine the woman before a late abortion is performed. Parts of the fetus such as the head and long bones are measured to determine the length of pregnancy. The ultrasound image also permits determination of fetal position, location of the placenta, and the presence of any abnormalities that could cause a complication.

Between fourteen and twenty weeks of pregnancy, Laminaria is placed in the cervix over a period of a day or two, sometimes changing the Laminaria and replacing the first batch with a larger amount in order to increase cervical dilation (Hern 1990). At the time of the abortion, the Laminaria is removed, the amniotic sac (bag of waters) is ruptured with an instrument, and the amniotic fluid is allowed to drain out. This procedure reduces the risk of an amniotic fluid embolism, escape of the amniotic fluid into the bloodstream, and allows the uterus to contract to make the abortion safer. Using an ultrasound real-time image, the surgeon then places special instruments such as grasping forceps into the uterus and removes the fetus and placenta (Hern 1990). This has proven to be the safest way to perform late abortions, but it requires great care and skill.

Other methods of late abortion include the use of prostaglandin (a naturally occurring hormone), either by suppository or by injection (Hern 1988). Other materials injected into the pregnant uterus to effect late abortion include hypertonic (concentrated) saline (salt) solution, hypertonic urea, and hyperosmolar (concentrated) glucose solution.

Injections are also used with late abortions, especially those performed at twenty-five weeks or more for reasons of fetal disorder. The lethal injection into the fetus is performed several days prior to the abortion, along with other treatments that permit a safe abortion (Hern et al. 1993; Hern 2001).

Although surgical abortion is still performed outside the United States, medical abortion is growing in use in Europe and in the United States following the introduction in France in 1988 of mifepristone (also known as RU-486) and misoprostol, a synthetic prostaglandin. Mifepristone works by blocking the hormonal receptors in the placenta from receiving progesterone, which is necessary for continuation of the pregnancy. Along with misoprostol, mifepristone may cause a complete abortion in 95 percent of early pregnancies within a few days. Most patients do not require a surgical treatment for completion of the abortion.

Risks Of Abortion

In the United States, Canada, and Western Europe, abortion has become not only the most common but also one of the safest operations being performed. This was not always the case. In the nineteenth and early twentieth centuries, abortion was quite dangerous, and many women died as a result.

Pregnancy itself is not a harmless condition; women can die during pregnancy. The maternal mortality rate (the proportion of women dying from pregnancy and childbirth) is found by dividing the number of women dying from all causes related to pregnancy, childbirth, and the puerperium (the six-week period following childbirth) by the total number of live births and then multiplying by a constant factor such as 100,000. For example, the maternal mortality rate in the United States in 1920 was 680 maternal deaths per 100,000 live births (Lerner and Anderson 1963). It had fallen to 38 deaths per 100,000 live births by 1960 and 8 deaths per 100,000 live births by 1994. Illegal abortion accounted for about 50 percent of all maternal deaths in 1920, and that was still true in 1960. By 1980, however, the percentage of deaths due to abortion had dropped to nearly zero (Cates 1982). The difference in maternal mortality rates due to abortion reflected the increasing legalization of abortion from 1967 to 1973 that permitted abortions to be done safely by doctors in clinics and hospitals. The changed legal climate also permitted the prompt treatment of complications that occurred with abortions.

The complication rates and death rates associated with abortion itself can also be examined. In 1970, Christopher Tietze of the Population Council began studying the risks of death and complications due to abortion by collecting data from hospitals and clinics throughout the nation. The statistical analyses at that time showed that the death rate due to abortion was about 2 deaths per 100,000 procedures compared with the current maternal mortality rate exclusive of abortion of 12 deaths per 100,000 live births. In other words, a woman having an abortion was six times less likely to die than a woman who chose to carry a pregnancy to term. Tietze also found that early abortion was many times safer than abortion done after twelve weeks of pregnancy (Tietze and Lewit 1972) and that some abortion techniques were safer than others. The Centers for Disease Control in Atlanta took over the national study of abortion statistics that had been developed by Tietze, and abortion became the most carefully studied surgical procedure in the United States. As doctors gained more experience with abortion and as techniques improved, death and complication rates due to abortion continued to decline. The rates declined because women were seeking abortions earlier in pregnancy, when the procedure was safer. Clinics where safe abortions could be obtained were opened in many U.S. cities across the country, improving access to this service.

By the early 1990s in the United States, the risk of death in early abortion was less than 1 death per 1 million procedures, and for later abortion, about 1 death per 100,000 procedures (Koonin et al. 1992). The overall risk of death in abortion was about 0.4 deaths per 100,000 procedures compared with a maternal mortality rate (exclusive of abortion) of about 9.1 deaths per 100,000 live births (Koonin et al. 1991a, 1991b).

Incidence Of Abortion

Although the exact number may never be known, it is estimated that between 20 million and 50 million abortions are performed each year (World Health Organization 1994). The proportion of women having abortions and the proportion of pregnancies terminated vary widely from country to country. In the past, the highest rates have been observed in the Soviet Union and eastern European countries where abortion is more socially acceptable than in other regions and where contraceptive services have been scarce or unreliable.

According to Singh and Henshaw (1996), about half of all abortions in 1990 occurred in Asia, with almost one-fourth occurring in the former USSR. Approximately 3 percent occurred in Canada and the United States. In Colombia during the 1980s, according to unofficial reports, it appeared that one out of every two pregnancies ended in abortion.

The highest abortion rates recorded have been in Romania in 1965, where, among women in the reproductive age from fifteen to forty-four, one in four had an abortion each year (Henshaw and Morrow 1990). The abortion rate in Romania plummeted in 1966 when Romanian dictator Nicolau Ceaucescu banned abortion in an attempt to increase population growth rates. Police surveillance of women included mandatory pelvic examinations and pregnancy tests. This action resulted in higher birth rates, but it was also accompanied by skyrocketing maternal mortality rates including a dramatic increase in deaths from abortion, which caused approximately 85 percent of all maternal deaths. The Romanian maternal mortality rate went from 86 per 100,000 live births in 1966 to 170 per 100,000 live births in the late 1980s—the highest in Europe.

Approximately 10,000 excess maternal deaths due to abortion occurred during the period from 1966–1989 (Serbanescu et al. 2001). Romanian abortion rates again became the highest in the world after Ceaucescu was overthrown in 1989, and abortion mortality rates dropped ( Joffe 1999; Henshaw 1999). Within one year after the fall of the Ceaucescu regime, the maternal mortality rate dropped by 50 per cent. By 1997, there were 21 abortion-related deaths per 100,000 live births (Serbanescu et al. 2001).

In other countries such as Canada and the Netherlands, where abortion is legal and widely available, but where other means of fertility control are easily available, abortion rates are sometimes quite low (Henshaw 1999). In the Ukraine, the abortion rate in women in the reproductive age range of fifteen to forty-four years fell 50 percent from 77 abortions per 1,000 women to 36 per 1,000 in the interval from 1990 to 1998 (Goldberg et al. 2001).

It appears that, when abortion is both legal and widely available but is not the only means of effective fertility control, about one-fourth of all pregnancies will end in abortion. Lack of access to contraception may result in higher abortion rates. The principal effect of laws making abortion illegal appears to be to make abortion more dangerous but not less common.

Physical And Psychological Effects of Abortion

Studies of the long-term risks of induced abortion, such as difficulties with future pregnancies, show that these risks are minimal. A properly done early abortion may even result in a lower risk of certain obstetrical problems with later pregnancies (Hern 1982; Hogue, Cates, and Tietze 1982). An uncomplicated early abortion should have no effect on future health or childbearing. If the abortion permits postponement of the first term pregnancy to after adolescence, the usual risks associated with a first term pregnancy are actually reduced. Psychological studies consistently show that women who are basically healthy can adjust to any outcome of pregnancy, whether it is term birth, induced abortion, or spontaneous abortion (miscarriage) (Adler et al. 1990). It is highly desirable, however, to have strong emotional support not only from friends and family but also from a sympathetic physician and a lay abortion counselor who will be with the woman during her abortion experience.

Denial of abortion can have serious adverse consequences for the children who result from the pregnancies their mothers had wanted to terminate. A long-term study in Czechoslovakia of the offspring of women who were denied abortions showed a range of adjustment and developmental difficulties in these children (David et al. 1988).

Social Responses To Abortion

The various social responses to abortion range from those of the individual and her immediate circle of family and friends to the organizational, community, and even national levels. Each culture and society has specific ways of dealing with unplanned or unwanted pregnancy and with abortion. These traditions are changing rapidly in the modern world.

See also:Birth Control: Contraceptive Methods; Birth Control: Sociocultural and Historical Aspects; Family Planning; Fertility; Genetic Counseling; Infanticide; Nonmarital Childbearing; Pregnancy and Birth; Rape; Religion

Bibliography

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other resources

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International Society of Abortion Doctors. Available from http://www.isad.org.

National Abortion Federation. Available from http://www.prochoice.org.

WARREN HERN

ABORTION

To 1800

Records of abortions exist from throughout the American colonies in the seventeenth and eighteenth centuries. A variety of herbs and other plant products, including tansy, savin, pennyroyal, seneca snakeroot, and rue were used as abortifacients, some available from physicians but many attainable through herb gardens. Historians have had difficulty determining which were effective, which were not, and which were fatal to the mother, but they conclude that many of the concoctions taken were poisonous. Some have been determined so toxic it seems unlikely that women ingested them voluntarily, unless attempting suicide. It is possible that another person—often the man who impregnated her—would persuade the woman to ingest it. However, intense reactions to medication were viewed as proof of effectiveness, so vomiting and blistering were considered necessary side effects.

Because abortions were often performed at home and detailed records were rare, it is difficult to make precise estimations of abortion rates. However, it appears that rates in the colonial era were relatively low. Surgical abortions were rare. Lack of medical knowledge, particularly regarding infection, almost guaranteed the death of the mother if surgery were performed. Cases of infanticide were more common than surgical abortions, as pregnancies might be hidden until term under loose clothing and infanticide would at least protect the life of the mother.

The tendency toward abortion depended largely on community attitudes toward nonmarital pregnancy and childbearing in general, but it was also closely tied to economics. In a developing colonial society with a land-based economy, children were generally welcomed. Economic desperation was comparatively rare, resulting in relatively low rates of abortion and infanticide. In the case of non-marital pregnancy, social pressure to name the father and demands on him to pay support eased the burden on women of even the lowest means. Paternity suits were common, the vast majority of which ended in financial support or marriage or both. The rates of premarital pregnancy in the colonies increased dramatically in the late eighteenth century, with up to 30 percent of births occurring before nine months of marriage. There was generally much more pressure on men to take responsibility for pregnancy than chastisement of women for becoming pregnant.

Conception and "Quickening"

New scientific notions of pregnancy and fetal development arose during the Age of Enlightenment as scientists and religious leaders debated the origins of life. Calvinists and Anglicans argued against abortion, citing numerous biblical passages stating that human life begins at conception. But the battle lines were not drawn simply between religion and science, as scientists disagreed among themselves about the origins of human life. Anton van Leewenhoek, famous for his development of the microscope, argued in the late seventeenth century that an entire human was contained in each male sperm, and was simply implanted in a woman. Other scientists, concerned about the waste of human lives if that held true, argued that an entire human life existed in a woman's egg, and was simply "activated" by male sperm.

Some historians have argued that until the mid-nineteenth century, human life was widely understood to begin at "quickening," the moment when a pregnant woman could first feel the fetus move—generally in the late fourth or early fifth month of pregnancy. Colonial common law instituted punishment for abortion only after quickening. Evidence shows that the scientific community, the religious community, and the community at large all believed that human life in some form began before quickening, but under common law, abortions before quickening were legal. After quickening, however, the fetus—although by no means "viable" (able to survive outside the uterus)—was considered a separate being. Until quickening, the best evidence of pregnancy was the absence of menses, which could have been a symptom of various other conditions. Until the mid-nineteenth century, women were often provided with abortifacients to remove a "blockage," and once menses resumed, she was considered treated. The cause of the blockage was not an issue of legal concern.

Women often had access to abortifacient plant products and the knowledge necessary to use them to "resume menses." Once experiencing quickening, however, she was more or less obligated to carry the fetus to term. Quickening offered better proof of pregnancy, and usually marked a pivotal point after which terminating a pregnancy was unquestionably more dangerous. Until the early nineteenth century, the power of deciding to terminate an early pregnancy essentially lay with the woman. However, by the late colonial period, others were becoming increasingly involved in the practice, as physicians and apothecaries were marketing and selling abortifacients. Even under the regulation of "experts," they were often deadly.

Restrictions on Abortion

The first legal restrictions on abortion in the United States were aimed at the sale of abortifacients. State laws of the 1820s and 1830s listed abortifacients as poisons and made their sale illegal. In some states, laws also regulated practitioners who performed surgical abortions. All of these laws were intended to protect the life of the mother, and domestic use of abortifacients before quickening was not a crime. By 1840, ten of the nation's twenty-six states had passed abortion regulations.

Widespread attempts at criminalization of abortion began in the 1850s. The American Medical Association (AMA), founded in 1847, played a major role here. For a number of reasons, its members promoted legislation to restrict abortion in various states. The AMA reflected a trend in the field of medicine that valued accreditation and expertise. Members of the AMA attacked physicians of an older generation, as well as homeopaths and midwives, as ill-trained and incompetent, and in its attempt to improve medicine it took control of the practice of abortion. Many of the new generation of physicians also viewed themselves as moral leaders, and in their crusades aimed at preserving and protecting human life, they attacked abortion on moral grounds. One element of this crusade lessened the significance of quickening, considering it simply one stage in fetal development. This laid the groundwork for prohibiting abortion at any stage.

To some extent, abortion regulation through the mid-nineteenth century might be considered in the larger context of social reform movements in America. However, in later decades the anti-abortion crusades reflected the increasing influence of the Victorian Era. Then, pregnancy—or at least illicit pregnancy—was considered a woman's punishment for immoral behavior. Abortion would allow a woman to go unpunished. Even access to methods to prevent such a pregnancy would facilitate such immoral behavior. A result was the passage of legislation to prohibit the practice of abortion and the sale and distribution of contraceptives and contraceptive information. The Comstock Law of 1873—named for the purity crusader Anthony Comstock—categorized abortion and birth control as obscenity, prohibiting them under federal anti-obscenity legislation.

Various states also criminalized abortion, except for cases in which the mother's life was endangered by pregnancy or childbirth. This gave physicians the authority to determine when an abortion could be permitted. In addition, state regulations prohibiting the sale or distribution of abortifacients were reworked to allow physicians to prescribe them.

In many cases, middle-and upper-class women who had personal physicians maintained comparatively easy access to abortion. However, abortion rates increased among the poor and ethnic minorities. By midcentury, national concerns over shifting demographics drew attention to birth rates among the "proper stock" as opposed to those among the "lesser stock." The growing trend among white middle-and upper-class women to seek abortions was an influential factor in criminalizing the procedure. Mass immigration resulted in a growing working class that was perceived as a threat to the dominant Anglo-Protestant culture. Many physicians commonly conducted abortions among the poor and minorities, some publicly declaring that white Protestant women should have more children.

Abortion and Women's Roles

The development of anti-abortion legislation not only reflected ideas of race and class, but also affected gender roles. Before the mid-nineteenth century, women held a stronger position in realm of pregnancy, childbearing, and abortion than afterward. Childbirth took place at home, often with the assistance of a midwife; pregnant women were looked after by other women; and individuals had access to natural herbs that were known abortifacients. In addition, only a pregnant woman knew when quickening took place. The devaluation of quickening by the medical community had already weakened a woman's authority in her own pregnancy. Criminalizing abortion, except under a doctor's recommendation, and abortifacients without a doctor's prescription, further weakened her authority.

Anti-abortion movements generally grew when women demanded more rights. From the mid-to the late nineteenth century, public condemnation of abortion paralleled the women's movement for political rights. Fears that women would forsake their proper social roles and the responsibility of motherhood if they had the right to abortion helped to shape the debate, and ultimately the success, of anti-abortion legislation. Equal opportunity in politics and in higher education appeared to reduce family size and some hoped that the prohibition of abortion and birth control might offset this trend. At the turn of the twentieth century, the women's movement included new demands for sexual freedom, and anti-abortion activists worked to limit abortions. Although widely criminalized, physicians still performed some abortions and illegal abortions were common. The separation of sexuality and procreation allowed greater sexual freedom for women, spurring new attacks on abortion.

Abortion and Contraception

In the 1910s, a powerful birth control movement took hold in America. Leaders of the movement, particularly Margaret Sanger, did not equate birth control with abortion. Rather, they argued that legalizing contraceptives would reduce abortion rates. Public opinion still accepted early-term abortions, and abortion was often the preferred method of birth control. With little access to contraceptives because of the Comstock Law, couples had few choices. Proponents of legal contraceptives reported graphic details of numerous self-induced abortions performed by desperate women, who often died as a result.

Clinics were established to provide contraceptives and contraceptive information. Medical professionals who opened clinics bypassed Comstock laws that barred contraceptives and contraceptive information from importation and from the U.S. mails. Critics feared that such information encouraged "free sex" among single women, when in fact it was primarily intended for married working-class couples who had no access to personal physicians. Critics of abortion similarly feared that single women were having abortions to facilitate an uninhibited sexual lifestyle. In fact, most women having abortions were married. Working-class women generally had children early, ending later pregnancies through abortion. Upper-class women generally delayed childbearing and often ended early pregnancies through abortion. In either case, they saw it as a form of birth control, although birth control advocates drew clear distinctions between contraception and abortion.

At first glance, the criminalization of abortion appeared to have a significant effect on abortion rates. In the mid-nineteenth century, some records show that as many as one out of five or six pregnancies ended in abortion, while some report that in 1900 only one in twenty did. However, the fact that abortions were a crime made it less likely that women would report them. Drawing from case reports of hospital personnel who treated women bleeding as the result of apparent abortion, scholars estimate as many as 2 million abortions per year at the end of the nineteenth century. One doctor estimated between six to ten thousand abortions were performed (many by the women themselves) in 1904 in Chicago alone. Because of criminalization, and because the abortion issue has been so politicized, it is difficult to determine accurate abortion rates. However, it is clear that criminalization did not prevent it.

The birth control movement's eventual success was linked to its alliance with the American Medical Association, which—as the movement gained strength—began to support the legalization of contraceptives. Sanger and the AMA worked hand in hand into the 1930s in efforts to condone birth control and to secure legislation to protect doctors from prosecution for prescribing contraceptives. Again, physicians gave themselves control of the distribution of contraceptives, with the support of the courts and legislative bodies. In 1936, the AMA officially abandoned its official opposition to birth control.

Black Market Abortions

The Great Depression of the 1930s created an environment in which birth control became an acceptable response to social ills because more families were economically desperate and unable to care for additional children. At the same time, however, the number of abortions performed was on the rise—so quickly that many considered it an epidemic. Scholars generally estimate that more than 500,000 took place each year in the United States during the depression. The cost of a "black market" abortion was usually under seventy-five dollars, far below the cost of feeding another child. In addition, women often lost their jobs to men during the depression, and a pregnant woman was almost certain to lose her job.

A few doctors began to support publicly the repeal of anti-abortion laws during the 1930s. However, the opposition was strong. First, Pope Pius XI's 1930 encyclical, Casti Connubii, pronounced that a developing fetus had a soul. Although America was not a Catholic nation, its largest denomination by then was Roman Catholicism, and the issue of abortion had taken on a new character in the international religious-political realm. The Soviet Union had legalized abortion in the 1920s and the procedure was viewed as tightly tied to a brand of socialist feminism in western Europe. Any connection between feminism and socialism that was tied to abortion would force legalization to confront considerable obstacles in the United States.

The demands on physicians to perform abortions were great and many received additional training in the procedure. The procedure most often used was dilation and curettage, but the injection of potassium soap solution was common by the 1930s. Physicians were legally protected as they were granted the right to conduct therapeutic abortions. Physician-abortionists were considered specialists in the medical community and general practitioners referred their patients to them. The profession officially condemned abortion, but doctors were widely involved, if not directly, then through making referrals. In essence, they could ensure their patients had access to abortion without actually performing them.

To perform an abortion except with the intent to save the life of the mother meant possible arrest. Physician-abortionists who devoted their practice exclusively to abortion risked police raids and prosecution. Raids were especially common in the 1940s and 1950s and served to expose publicly abortionists and their patients. Patients were commonly interrogated in police stations and courtrooms. Police and prosecutors went after patients rather than the referring physicians, who possessed more incriminating evidence than the women did. Because of the raids, many hospitals stopped conducting therapeutic abortions. Advances in medicine, particularly in the development of antibiotics and antiseptics, made hospitals the safest and cleanest places to have an abortion. However, hospital administrators were unwilling to face the publicity resulting from continual raids on clinics and arrests of physicians.

Medical advances also affected the ways in which the fetus was perceived. Imaging techniques allowed physicians to focus on the fetus as a developing human and they increasingly considered the uterus as the space in which the fetus developed. In the 1950s, a culture of family and children encouraged women to embrace motherhood and they were chastised for considering abortion. Other medical advances made pregnancy-related illnesses, complications, and deaths comparatively rare. Therefore, hospitals became less likely to offer therapeutic abortions.

In addition, improvements were made in sterilization procedures. In the 1950s, approximately half of the nation's hospitals offered women abortions if they agreed to simultaneous sterilization. Hospitals established therapeutic abortion committees not only to develop such regulations, but to decide in individual cases when an abortion would be permitted.

Calls for Reform and Repeal

In the mid-1950s, a small group of physicians and public health workers began a movement to reform abortion laws. They had seen the disastrous effects of criminalization on women and the medical profession that had developed in recent decades. In 1955, Planned Parenthood organized a small conference of health care professionals to organize against the existing laws. But they did not gain the momentum necessary to overturn legislation until the birth of the women's movement in the 1960s. An integral part of that movement was the demand for reproductive rights. The demand began at the grassroots level with one of the most influential organizations, Citizens for Humane Abortion Laws, founded in 1962 in California. That same year, Sherri Finkbine, a television celebrity, attracted the nation's attention when she traveled to Sweden to have an abortion after finding out that she had taken a drug containing thalidomide early in her pregnancy. In 1961, researchers discovered that thalidomide—which was commonly prescribed to pregnant women to combat sleeplessness and morning sickness—caused severe birth defects, primarily the stunting of fetal limb development.

In Griswoldv. Connecticut (1965), the U.S. Supreme Court ruled in favor of Planned Parenthood staffers who had violated Connecticut state law in dispensing a contraceptive device to a married woman. The Court ruled on the grounds that their 1961 convictions were violations of the right to privacy. The case brought national attention to birth control laws that were considered repressive, and the right-to-privacy decision paved the way for privacy considerations in the issue of abortion. The public chastisement of women caught during clinic raids in the 1950s was often claimed to violate the right to privacy, but there was no strong legal precedent to turn to in those cases. The year 1966 marked the founding of the National Organization for Women (NOW), which would strengthen the attack on abortion laws. By the 1960s, the focus of abortion rights activists was shifting from a call for reform to a call for repeal of anti-abortion laws, and various women's groups addressed abortion at the national level. In 1969, abortion rights leaders held the first National Conference on Abortion Laws and formed the National Association for Repeal of Abortion Laws (NARAL). However, grassroots organizations remained instrumental as abortion was prohibited at the state level, and although banned in every state, it was regulated on different terms.

The landmark case in abortion history was Roe v. Wade (1973). In that case (which was supported by other cases), a twenty-three-year-old pregnant woman challenged Texas's abortion law, which the Supreme Court ultimately found unconstitutional. The decision, written by Justice Harry Blackmun and based on the residual right to privacy, overturned numerous statutes that had been in place for more than one hundred years. Restrictions on abortions during the first trimester of pregnancy were lifted and abortions in the second trimester were allowed with few restrictions. States were given the right to intervene during the second and third trimesters to protect the life of the woman and the potential life of the fetus.

The reaction to Roe v. Wade was swift and far-reaching. As a result of the case, NARAL changed its name to the National Abortion Rights Action League, preparing for opposition. The Catholic Church quickly professed its opposition and fundamentalist Protestants

hastened their efforts to support a pro-life movement. In 1977, Congress prohibited the use of Medicaid funds for abortion except for therapeutic reasons, and in a few other cases. The religious right gained political momentum with the election of conservatives to Congress and Ronald Reagan and George Bush Sr. to the presidency during the 1980s. This resulted in the creation of an abortion "litmus test" for Supreme Court nominees, who were considered on the basis of their stand on abortion, regardless of their experience or positions on other issues. In Webster v. Reproductive Health Services (1989) the Supreme Court limited the scope of Roe v. Wade, and in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) it reaffirmed abortion rights while permitting further restrictions.

The 1990s saw a rise in extreme measures on the pro-life side, including the harassment of women entering clinics, the bombing of clinics, and attacks on physicians known to perform abortions. In the second half of the decade, Congress repeatedly passed a bill that would ban "partial-birth abortion," but President William Jefferson Clinton vetoed it.

Partial-birth abortions are conducted in the third trimester of pregnancy when a fetus is viable, and involve the dilation of the cervix and extraction of the fetus while puncturing the skull. Although very rare, accounting for 0.04 percent of all abortions, the procedure was used extensively in the public debate by anti-abortion activists. At the end of the decade, extremists continued to attract attention to the issue and the litmus test was predicted to be a factor under George W. Bush's administration. But the nation saw groups such as right-to-life feminists calling for better options for pregnant women and rising to provide alternative solutions such as better wages for women, pregnancy and child-care employment leave, and better support for young, unwed mothers. Recent studies have shown a decrease in abortion rates and an increase in births out of marriage, demonstrating a significant shift in social mores.

BIBLIOGRAPHY

Baird-Windle, Patricia, and Eleanor J. Bader. Targets of Hatred: Anti-Abortion Terrorism. New York: St. Martin's Press, 2001.

Blanchard, Dallas A. The Anti-Abortion Movement and the Rise of the Religious Right: From Polite to Fiery Protest. New York: Twayne, 1994.

Craig, Barbara Hinkson, and David M. O'Brien. Abortion and American Politics. Chatham, N.J.: Chatham House, 1993.

Hull, N. E. H., and Peter Charles Hoffer. Roe v. Wade: The Abortion Rights Controversy in American History. Lawrence: University Press of Kansas, 2001.

Jacoby, Kerry N. Souls, Bodies, Spirits: The Drive to Abolish Abortion since 1973. Westport, Conn.: Praeger, 1998.

Jaffe, Frederick S., Barbara L. Lindheim, and Philip R. Lee. Abortion Politics: Private Morality and Public Policy. New York: McGraw-Hill, 1981.

Mohr, James C. Abortion in America: The Origins and Evolutions of National Policy, 1800–1900. New York: Oxford University Press, 1978.

Olansky, Marvin. Abortion Rites: A Social History of Abortion in America. Wheaton, Ill.: Crossways Books, 1992.

Reagan, Leslie J. When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867–1973. Berkeley: University of California Press, 1997.

Solinger, Rickie, ed. Abortion Wars: A Half Century of Struggle, 1950–2000. Berkeley: University of California Press, 1998.

Kathleen A.Tobin

See alsoAmerican Medical Association ; Birth Control ; Griswold v. Connecticut ; National Organization for Women (NOW) ; Planned Parenthood of Southeastern Pennsylvania v. Casey ; Roe v. Wade ; Sexuality ; Webster v. Reproductive Health Services .

Abortion

Abortion is one of the most emotional and divisive moral issues of twenty-first-century American life. Consensus has not been reached on the numerous questions that swirl around the subject, including whether or not a woman has the right to choose a legal abortion, and under what conditions; the role of parents if she is not legally an adult; and the roles of the state and religion having veto power. In addition, the questions of when life begins and at what point it should be protected remain controversial.

Strictly defined, abortion is the expulsion or removal of an embryo or fetus from the uterus before it has developed sufficiently to survive outside the mother (before viability). As commonly used, the term abortion refers only to artificially induced expulsions caused by mechanical means or drugs. Spontaneous abortions occurring naturally and not artificially induced are commonly referred to as miscarriages.

Women choose to have abortions for a variety of reasons: They have had all the children they wish to have; want to delay the next birth; believe they are too young or too poor to raise a child; are estranged or on uneasy terms with their sexual partner; or they do not want a child while they are in school or working.

Artificially Induced Abortion around the World

Unplanned and unwanted pregnancies are common, and this fact fuels the controversy in every region of the world. Globally, more than one in four women who become pregnant have an abortion or an unwanted birth. In the developed countries of the world, including those in North America and Western Europe, where average desired family size is small, an estimated 49 percent of the 28 million pregnancies each year are unplanned and 36 percent of the total pregnancies end in abortion. In the developing countries, including parts of Eastern Europe, the Middle East, and Africa, where desirable family sizes are larger, an estimated 36 percent of the 182 million pregnancies each year are unplanned and 20 percent end in abortion.

Women worldwide commonly initiate sexual intercourse by age twenty, whether they are married or unmarried. In the developed countries, 77 percent have had intercourse by age twenty. This compares to 83 percent in sub-Saharan Africa and 56 percent in Latin America and the Caribbean. Couples in many countries have more children than they would like, or have a child at a time when they do not want one. The average woman in Kenya has six children, while the desired family size is four; the average Bangladeshi woman has four children but desires three.

From a global perspective, 46 million women have abortions each year; 78 percent of these live in developing countries and 22 percent live in developed countries. About 11 percent of all the women who have abortions live in Africa, 58 percent in Asia, 9 percent in Latin America and the Caribbean; 17 percent live in Europe, and the remaining 5 percent live elsewhere in the developed world.

Of the 46 million women who have abortions each year in the world, 26 million women have abortions legally and 20 million have abortions in countries where abortion is restricted or prohibited by law. For every 1,000 women of childbearing age in the world, each year 35 are estimated to have an induced abortion. The abortion rate for women in developed regions is 39 abortions per 1,000 women per year; in the developing regions the rate is 34 per 1,000 per year. Rates in Western Europe, the United States, and Canada are 10 to 23 per year.

Methods of Abortion

About 90 percent of abortions in the United States are performed in the first twelve weeks of the pregnancy. The type of procedure used for an abortion generally depends upon how many weeks the woman has been pregnant.

Medical induction. The drug mifepristone combined with misoprostol has been used widely in Europe for early abortions, and is now used routinely in the United States. Mifepristone blocks uterine absorption of the hormone progesterone, causing the uterine lining and any fertilized egg to shed. Combined with misoprostol two days later, which increases contractions of the uterus and helps expel the embryo, this method has fewer health risks than surgical abortion and is effective 95 percent of the time. Researchers in Europe report few serious medical problems associated with this method. Some of the side effects include cramping, abdominal pain, and bleeding like that of a heavy menstrual cycle.

Both pro-choice activists and pro-life activists see mifepristone with misoprostol as an important development in the abortion controversy. If abortion can be induced simply, safely, effectively, and privately, the nature of the controversy surrounding abortion will change dramatically. Clinics that perform abortions are regularly picketed by antiabortion protesters in the United States, making the experience of obtaining a legal abortion difficult for many women. If use of this method spreads in spite of opposition from antiabortion groups, abortion will become an almost invisible, personal, and relatively private act.

Vacuum aspiration. Also called vacuum suction or vacuum curettage, vacuum aspiration is an abortion method performed during the first trimester of pregnancy, up to twelve weeks from the beginning of the last menstrual period. It is the most common abortion procedure used during the first trimester in the United States, requiring a local or general anesthetic. The procedure takes about ten to fifteen minutes, although the woman stays in the doctor's office or hospital for a few hours afterward. Preparation for the procedure is similar to preparing for a pelvic examination. An instrument is then inserted into the vagina to dilate the opening to the cervix. The end of a nonflexible tube connected to a suction apparatus is inserted through the cervix into the uterus and the contents of the uterus, including fetal tissue, are then sucked out. Vacuum aspiration is simple and complications are rare and usually minor.

Dilation and curettage or dilation and evacuation. Dilation and curettage (D and C) is similar to vacuum aspiration but must be performed in a hospital under general anesthetic. It is performed between eight and twenty weeks after the last menstrual period. By the beginning of the second trimester of pregnancy, the uterus has enlarged and its walls have thinned. Its contents cannot be as easily removed by suction, and therefore the D and C procedure is used. The cervix is dilated and a sharp metal loop attached to the end of a long handle (the curette) is inserted into the uterus and used to scrape out the uterine contents. Dilation and evacuation (D and E) is a related procedure used between thirteen and sixteen weeks after the last menstrual period. D and E is similar to both D and C and vacuum aspiration, but is a bit more complicated and requires the use of forceps and suction.

Induced labor. For abortions later in the pregnancy (sixteen to twenty-four weeks), procedures are employed to render the fetus nonviable and induce delivery through the vagina. Only 1 percent of abortions in the United States are performed by inducing labor and a miscarriage. Because the woman experiences uterine contractions for several hours and then expels a lifeless fetus, these procedures are more physically uncomfortable and often more emotionally upsetting. The two most common procedures used in this period are prostaglandin-induced and saline-induced abortions. Prostaglandins can be injected directly into the amniotic sac through the abdominal well, injected intravenously into the woman, or inserted into the vagina as a suppository. They stimulate uterine contractions that lead to delivery. Saline (salt) solution can also be injected into the amniotic fluid and has a similar effect. Late-term abortions, also called partial-birth abortions by some, stir considerable controversy in the United States.

Hysterotomy. This extremely rare procedure, also performed from sixteen to twenty-four weeks after the woman's last menstrual period, is limited to cases in which a woman's uterus is so malformed that a D and E would be dangerous. In essence, a cesarean delivery is performed and the fetus is removed.

Methotrexate and Misoprostol. Because of social and political pressure from antiabortion activists, the number of obstetricians, gynecologists, and hospitals performing abortions in the United States has been steadily dropping, but this trend could change as doctors adopt a nonsurgical alternative using prescription drugs already marketed for other purposes. A combination of the drug methotrexate, which is toxic to the embryo, with misoprostol, which causes uterine contractions that expel the dead embryo, has been shown to be effective in inducing abortions at home.

The Abortion Issue in the United States

In 1973 the U.S. Supreme Court overturned by a 7–2 vote laws that had made abortion a criminal act. Since that decision by century's end approximately 21 million American women have chosen to have 35 million abortions. Researchers estimate that 49 percent of pregnancies among American women are unintended, and half of these are terminated by abortion. Forty-three percent of women in the United States will have at least one abortion by the time they reach the end of the childbearing period of life, age forty-five. Fiftyeight percent of the women who had abortions in 1995 had used a contraceptive method during the month they became pregnant.

Induced abortion rates vary considerably by age. Figure 1 shows the proportion of pregnancies ending in live births, induced abortion, and fetal loss compared to the age of the woman. Induced abortion rates also differ considerably by race and Hispanic origin. About 16 percent of pregnancies among non-Hispanic white women end in abortion (1 in 6); 22 percent of pregnancies among Hispanic women (1 in 5); and 38 percent of pregnancies among non-Hispanic black women (2 in 5).

On average, women in the United States give at least three reasons for choosing an abortion: three-fourths say that having a baby would interfere with work, school, or other responsibilities; approximately two-thirds say that they cannot afford to have a child; and half say that they do not want to be a single parent or are having problems with their husband or partner. Support for abortion varies considerably by social class, with support consistently increasing by income and education.

For more than two centuries in early U.S. history (from the 1600s to the early 1900s), abortion was not a crime if it was performed before quickening (fetal movement, which begins at approximately twenty weeks). An antiabortion movement began in the early 1800s, led by physicians who argued against the validity of the concept of quickening and who opposed the performing of abortions by untrained people, which threatened physician control of medical services. The abortion controversy attracted minimal attention until the mid-1800s when newspapers began advertising abortion preparations. Opponents of these medicines argued that women used them as birth control measures and that women could also hide extramarital affairs through their use. The medicines were seen by some as evidence that immorality and corruption threatened America. By the early 1900s, virtually all states (at the urging of male politicians; women could not vote at the time) had passed antiabortion laws.

In the landmark 1973 case Roe v. Wade, the U.S. Supreme Court made abortion legal by denying the states the right to regulate early abortions. The court conceptualized pregnancy in three parts (trimesters) and gave pregnant women more options in regard to abortion in the first trimester (three months) than in the second or third trimester. The court ruled that during the first trimester the abortion decision must be left to the judgment of the woman and her physician. During the second trimester, the right to abortion remained but a state could regulate certain factors in an effort to protect the health of the woman, such as the type of facility in which an abortion could be performed. During the third trimester, the period of pregnancy in which the fetus is viable outside the uterus, a state could regulate and even ban all abortions except in situations in which they were necessary to preserve the mother's life or health.

The controversy over abortion in the United States did not end with the Supreme Court's decision, but rather has intensified. Repeated campaigns have been waged to overturn the decision and to ban abortion altogether. Although the high court has continued to uphold the Roe decision, support for abortion rights has decreased with the appointment of several conservative judges.

A New York Times /CBS News Poll taken twenty-five years after Roe v. Wade found that the majority of the American public still supports legalized abortion but says it should be harder to get and less readily chosen. Some observers call this a "permit-but-discourage" attitude. Overall, 32 percent of the random sample of 1,101 Americans in the poll said abortion should be generally available and legal; 45 percent said it should be available but more difficult to obtain; and 22 percent said it should not be permitted.

Physical and Emotional Aspects of Abortion

The chance of dying as a result of a legal abortion in the United States is far lower than the chance of dying during childbirth. Before the nine-week point in pregnancy, a woman has a one in 500,000

chance of dying as a result of an abortion. This compares to a one in 14,300 chance of dying as a result of pregnancy and childbirth (see Table 1). Infection is a possibility after an abortion, but longterm complications such as subsequent infertility, spontaneous second abortions, premature delivery, and low birthweight babies are not likely.

Some women experience feelings of guilt after an abortion, while others feel great relief that they are no longer pregnant. Still other women are ambivalent: They are happy to not be pregnant, but sad about the abortion. Some of these emotional highs and lows may be related to hormonal adjustments and may cease after the woman's hormone levels return to normal. The intensity of feelings associated with an abortion usually diminish as time passes, though some women may experience anger, frustration, and guilt for many years.

Those experiencing severe, negative psychological reactions to abortion are rare, according to research findings reviewed by a panel commissioned by the American Psychological Association. The panel wrote, "the question is not simply whether abortion has some harmful psychological effects, but whether those effects are demonstrably worse than the psychological consequences of unwanted childbirth." Women experiencing distress could find comfort in talking with loved ones, sensitive and trusted friends, and professional counselors experienced in working with abortion issues.

See also: Bioethics; Black Stork; Children, Murder of; Infanticide; Mortality, Childbirth; Mortality, Infant

Bibliography

Adler, Nancy E., et al. "Psychological Factors in Abortion: A Review." American Psychologist 47 (October 1992):1194–1204.

Alan Guttmacher Institute. Sharing Responsibility: Women, Society and Abortion Worldwide. New York: Author, 1999a.

Alan Guttmacher Institute. Induced Abortion Worldwide. New York: Author, 1999b.

Alan Guttmacher Institute. Into a New World: Young Women's Sexual and Reproductive Lives. New York: Author, 1998.

Alan Guttmacher Institute. Hopes and Realities: Closing the Gap between Women's Aspirations and Their Reproductive Experiences. New York: Author, 1995.

Boston Women's Health Book Collective. Our Bodies, Ourselves for the New Century: A Book By and For Women. New York: Touchstone/Simon & Schuster, 1998.

Brody, J. E. "Abortion Method Using Two Drugs Gains in a Study." New York Times, 31 August 1995, A1.

Francoeur, Robert T., ed. International Encyclopedia of Sexuality. New York: Continuum, 1997.

Goldberg, C., and J. Elder. "Poll Finds Support for Legal, Rare Abortions." Lincoln Journal Star, 16 January 1998, 1.

Hausknecht, Richard U. "Methotrexate and Misoprostol to Terminate Early Pregnancy." New England Journal of Medicine 333, no. 9 (1995):537.

Hyde, Janet Shibley, and John D. DeLamater. Understanding Human Sexuality, 7th edition. Boston: McGraw-Hill, 2000.

Insel, Paul M., and Walton T. Roth. Core Concepts in Health, 8th edition. Mountain View, CA: Mayfield, 2000.

Kelly, Gary F. Sexuality Today: The Human Perspective, 7th edition. Boston: McGraw-Hill, 2001.

Landers, S. "Koop Will Not Release Abortion Effects Report." American Psychological Association Monitor (March 1989):1.

Olson, David H., and John DeFrain. Marriage and the Family: Diversity and Strengths, 3rd edition. Mountain View, CA: Mayfield, 2000.

Strong, Bryan, Christine DeVault, and Barbara Werner Sayad. Human Sexuality: Diversity in Contemporary America, 3rd edition. Mountain View, CA: Mayfield, 1999.

Winikoff, Beverly, and Suzanne Wymelenberg. The Whole Truth about Contraception. Washington, DC: National Academy of Sciences, 1997.

Internet Resources

Alan Guttmacher Institute. "Abortion in Context: United States and Worldwide." In the Alan Guttmacher Institute [web site]. Available from www.agi-usa-org/pubs/ib_0599.htm

Alan Guttmacher Institute. "Induced Abortion." In the Alan Guttmacher Institute [web site]. Available from www.agi-usa-org/pubs/fb_induced_abortion.html

National Opinion Research Center (NORC). "General Social Surveys." In the NORC [web site]. Available from www.norc.org/projects/gensoc.asp

JOHN DeFRAIN

Accidents

See Causes of Death; Injury Mortality.

Abortion Alexis de Tocqueville observed in Democracy in America that “there is hardly a political question in the United States which does not sooner or later turn into a judicial one” (Meyer, ed., 1969, p. 270). It was not until the latter half of the nineteenth century that criminal sanctions against abortion became widespread, and not until the latter half of the twentieth century that the notion of a constitutional right to sexual autonomy took hold in the public mind. That development guaranteed that abortion would turn into a judicial question.

As part of the police power over health and morals, abortion laws have traditionally been the province of state governments. In early American history, abortion was more dangerous than childbirth, which was life‐threatening itself. Lawmakers who regulated sexual activity in minute detail saw no need to make abortion a crime. When medical advances made abortion safer in the nineteenth century, some states forbade abortion primarily to protect pregnant women. Other early anti‐abortion laws were essentially elements of state obscenity statutes, often called “little Comstock laws.” These laws, similar to the 1873 federal Comstock Act, included contraceptives and abortifacients among the forbidden “obscene” materials. Early in the twentieth century, reformers like Margaret Sanger began to promote birth control as a means of limiting family size, especially for the poor. By 1960, forty‐eight states had legalized birth control.

The decriminalization of birth control enhanced individual freedom by increasing women's control over their fertility, but contraception did not ensure reproductive self‐determination for women. Sexual intercourse could occur without a woman's consent—not only through rape, but also because of the legal obligation to satisfy a husband's sexual demands. Existing methods of female contraception were unreliable even when a woman was free to use them.

Since women still found themselves confronted with unwanted pregnancies, access to abortion was necessary for reliable fertility control. But abortion has always been a more controversial issue than contraception. For many who consider fetuses persons, abortion is the equivalent of homicide. Even people who are not convinced that fetuses are full human beings may have difficulty accepting the idea of legal abortion. While both men and women use contraception, only women get pregnant and can abort. The idea that women have equal rights with men is a relatively new notion. Moreover, society's cultural idea of womanhood has traditionally been bound up with motherhood. The choice of abortion is made by a woman who, at least at that specific point in time, does not want a child—and this possibility challenges widely accepted notions of the role of women.

As late as the 1960s, abortion was still illegal everywhere in the United States, except to save the mother's life. The revitalization of feminism in the late 1960s gave impetus to the abortion rights movement. A portent of changing opinions was the 1962 Model Penal Code, in which the American Law Institute (ALI) recommended that abortion be legal when the pregnancy resulted from rape or when the baby was likely to be seriously disabled. Fourteen states adopted some or all of the ALI recommendations between 1965 and 1970. New York, Alaska, and Hawaii repealed their abortion laws outright.

Abortion and Privacy

Griswold v. Connecticut (1965) disposed of the last surviving laws against birth control and established a constitutional right to a realm of privacy. The Supreme Court ruled that the right to use contraceptives lay within a protected “zone of privacy” created by “penumbras” emanating from several provisions of the Bill of Rights. Many legal scholars found this argument a less than convincing justification for the judicial creation of a right nowhere mentioned in the Constitution, but the ruling established a right whose content would be defined and explained by later decisions.

In 1973, the Court extended the right of privacy to the choice of abortion. In Roe v. Wade, a majority of seven justices ruled that the “right of privacy … is broad enough to encompass a woman's decision whether or not to terminate her pregnancy” (p. 153). Justice Harry Blackmun's majority opinion emphasized “the detriment that the state would impose on the pregnant woman” and “the distress, for all concerned, associated with an unwanted child” (p. 159.) But many critics on both sides of the abortion issue consider this opinion unpersuasive and poorly grounded. It fails to build a logical bridge between Roe and Griswold. Roe contains no argument that abortion is sufficiently similar to birth control to justify its inclusion within the protected zone of privacy. Blackmun observed that no social consensus existed that fetuses are human beings and that American law did not recognize the unborn as persons. But the state did have a compelling interest in “potential human life.” The state could also restrict abortion when necessary to protect the health of the mother. Each of these interests became strong enough to justify restrictions at different stages of pregnancy: maternal health at the end of the third month; potential life at the end of the sixth (when, according to medical authorities at the time, the fetus was viable outside the womb). Therefore, the constitutional right to choose abortion was a limited one. In the first trimester, the state had no power to restrict abortion; beginning with the second trimester, the state might regulate, but not prohibit, abortion; and in the third trimester, the state might prohibit abortion except when necessary for the mother's life or health.

More than thirty years after Roe was decided, it remains one of the most controversial decisions in Supreme Court history. Supporters of reproductive freedom welcomed the ruling enthusiastically. But Roe also led to the formation of the “right‐to‐life” movement. Even among Americans who opposed restrictions on abortion, many thought that the Court had usurped power belonging to the elected branches of government. Critics pointed to the absence of textual authority in the Constitution and demanded that the people's elected representatives decide what abortion laws they wanted and what the word “person” meant to them.

Efforts to counter Roe v. Wade have continued in full strength into the twenty‐first century. A constitutional amendment that defined “person” to include the unborn has been introduced in Congress several times. But neither this “human life amendment” nor a bill that attempted the same result through a federal law emerged from Congress. However, Congress and many state legislatures have repeatedly passed laws negating, or at least narrowing, the decision. These statutes attempt to make it harder for women seeking abortions to get them. The statutes are inevitably challenged in court. From 1973 to 1986, when William Rehnquist replaced Warren Burger as chief justice, the Supreme Court generally distinguished between obstacles to the choice of abortion and refusals to facilitate the choice, invalidating most of the former while upholding the latter. But in recent years the courts have expanded the government's power to restrict abortion.

Abortion and Public Funding

The Supreme Court has consistently upheld laws denying governmental support for abortion. The first “Hyde amendment,” a federal limitation on the use of Medicaid funds, was enacted in 1976. It and similar state laws, all of which make exceptions for abortions to save the mother's life, continue to survive judicial scrutiny. Justice Potter Stewart's majority opinion in Harris v. McRae (1981) is typical. “Although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category” (p. 316). Justices William Brennan, Thurgood Marshall, and Blackmun maintained that these laws make safe abortions unavailable for poor women, thus creating a double standard of constitutional rights. But Stewart's view prevailed. A constitutional challenge to these laws is even less likely to succeed now that Chief Justice Rehnquist, a dissenter in Roe, is the only holdover from that case still on the Court and several supporters of Roe have been replaced by opponents. Rust v. Sullivan (1991) further limited poor women's access to abortion by upholding the federal “gag rule” forbidding clinics receiving federal funds from even advising clients that abortion is available. This “gag rule” was revoked in Bill Clinton's first week as president and reinstated when George W. Bush took office.

Legal Limits on Reproductive Choice

Some statutory obstacles to abortion are direct: for example, a spousal consent requirement for a married woman or parental consent for a minor. The Supreme Court invalidated mandatory spousal consent in its first post–Roe abortion case (Planned Parenthood v. Danforth, 1976) and mandatory spousal notification in Planned Parenthood v. Casey (1992.) Parental consent and notification have proved more problematic. The constitutional rights of minors are not as extensive as those of adults, and parental consent is necessary before a minor can get medical treatment. Nevertheless, Danforth rejected a parental consent requirement, and the Court has never upheld a law that gives parents an absolute veto. But laws requiring parental involvement have been sustained. The Supreme Court upheld a parental notification requirement in H.L. v. Matheson (1981) and several laws requiring consent from either a parent or a judge (Bellotti v. Baird, 1979; Planned Parenthood v. Ashcroft, 1983; Ohio v. Akron Center for Reproductive Health, 1990.) In Hodgson v. Minnesota (1991), the Court upheld a law requiring consent from both parents or a judge. These “judicial bypass” provisions require a minor seeking an abortion to convince a judge that she is mature enough to make the decision and that the abortion is in her best interests.

Some legal obstacles are designed not so much to impede the choice of abortion as to discourage it. These deterrents include prohibitions on the use of certain abortion techniques, mandatory counseling or waiting periods, or requirements that abortions take place in hospitals (the vast majority of elective abortions are performed in clinics). The Supreme Court has yet to sustain the first type of restriction. As recently as 2000, Stenberg v. Carhart struck down a Nebraska law prohibiting what the anti‐choice movement calls “partial‐birth abortion” (a technique called dilation and extraction that is used in late term procedures) on the grounds that the law was unconstitutionally vague and excessively burdened the woman's choice.

Several rulings between 1976 and 1986 overturned the second and third types of restriction, either on grounds of vagueness and unreasonableness or because, as Justice Brennan wrote in Thornburgh v. American College of Obstetricians and Gynecologists (1986), “the states are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies” (p. 759.)

The Conservative Retreat

The anti‐choice movement showed its electoral strength in 1980, when Ronald Reagan won the presidency. Reagan promised to appoint justices who would overrule Roe. He replaced members of the Roe majority with Sandra Day O'Connor, Anthony Kennedy, and Antonin Scalia. Reagan's successor, George H. W. Bush, replaced Brennan with David Souter and Marshall with Clarence Thomas. The Roe consensus began to unravel even before Rehnquist replaced Warren Burger. For example, Justice O'Connor's dissent in Akron v. Akron Center for Reproductive Health (1983) insisted that the trimester framework was “on a collision course with itself” (p. 458.) Medical advances, she argued, had made late abortion safer and had kept alive infants born earlier.

Webster v. Reproductive Health Services (1989) eliminated the trimester framework and represented a significant retreat from abortion rights. In upholding a Missouri law that declared that life began at conception, forbade the use of any public funds and facilities for abortion, and required viability testing in abortions after twenty weeks, the Court sustained restrictions similar to those it had invalidated in Akron and Thornburgh. Webster came within one vote of overturning Roe outright. O'Connor supported the restrictions but refused to join four other justices in reversal.

Roe Reaffirmed?

The replacement of Brennan and Marshall with David Souter and Clarence Thomas was widely regarded as the death knell for Roe. The new Court had its next opportunity to reverse the decision in Planned Parenthood v. Casey (1992). To the astonishment of virtually every Court‐watcher in the country, this did not happen. Justice Souter joined O'Connor and Kennedy in a plurality opinion reaffirming the “central holding of Roe” (p. 843): the right to an abortion before viability, a state's power to impose restrictions after viability, and a state's legitimate interests in protecting maternal health and fetal life throughout pregnancy. For the first time, the Court recognized discouraging abortion as a valid state interest. From now on, abortion laws would survive judicial scrutiny unless they imposed an “undue burden” (p. 874). Casey demoted abortion from the status of a constitutional right; restrictions need no longer pass the “compelling state interest” test of Roe. The Casey majority upheld an informed consent requirement, a mandatory twenty‐four‐hour waiting period, and a parental consent/judicial bypass provision.

Casey remains binding precedent. The government may not ban abortion outright, but laws that leave poor women, rural women, and minors without access to abortion may stand. The Court has not revisited the constitutionality of abortion laws in general. The election of an anti‐choice president in 2000, and the Republican control of Congress, worried reproductive‐choice advocates, especially as they anticipated George W. Bush's appointments to the Court. The development of RU‐486, an abortion‐inducing drug, may render the abortion controversy obsolescent. Anti‐abortion forces lost their battle against RU‐486 when the Food and Drug Administration gave the drug full marketing approval in 2000. It is now widely available.

Bibliography

Mark A. Graber , Rethinking Abortion (1996);
Eileen L. McDonagh , Breaking the Abortion Deadlock (1996);
Karen O'Connor , No Neutral Ground? (1996);
Rosalind P. Petchesky , Abortion and Woman's Choice (1990);
Lawrence H. Tribe , Abortion: The Clash of Absolutes (1991).

Judith A. Baer

ABORTION

Abortion is a generic term for pregnancies that do not end in a livebirth or a stillbirth. It is the premature expulsion from the uterus of the products of conception, which include the placenta, bag of waters, and fetus, if present.

TYPES OF ABORTION

There are two types of abortions. Spontaneous abortion refers to a natural biological process by which some pregnancies end. Induced abortion refers to pregnancies terminated through human intervention.

Spontaneous Abortions. A large percentage of the products of the union of an egg and a sperm never become infants. If there is something seriously wrong with the fetus, the uterus often expels it. This may occur very early in the pregnancy, with the woman only experiencing a larger than usual blood flow around the time of her expected menstrual period, or it may occur later in the pregnancy. This latter event is commonly called a miscarriage, but technically it is a spontaneous abortion if it occurs before twenty weeks of pregnancy. Spontaneous abortions are often the body's way of preventing the birth of a defective child, although sometimes they are due to maternal health problems.

Induced Abortions. In contrast, induced abortions result from the planned interruption of a pregnancy. Throughout recorded history, humans have taken a variety of steps to control family size: before conception by delaying marriage or through abstinence or contraception; or after the birth by infanticide. Induced abortion falls temporally between these two extremes by preventing a conception from becoming a live birth. In the United States in the last few decades of the twentieth century, most abortions were performed surgically using a procedure called suction curettage. The year 2000 approval in the United States of a drug, mifepristine (RU486), which in combination with another drug causes an abortion in almost all cases, may increase the percentage of abortions induced by the administration of pharmaceutical agents.

Therapeutic Abortions. This term refers to abortions thought necessary because of fetal anomalies, rape, or to protect the health of the mother when a birth might be life threatening or physically or psychologically damaging.

Elective or Voluntary Abortions. Interruption of a pregnancy before viability at the woman's request for reasons other than fetal anomalies or maternal risk is often referred to as elective or voluntary abortion. Such abortions often result from social problems, such as teenage pregnancy or non-marital births; economic difficulties, such as insufficient income to support a child; or inappropriate timing.

Legal and Illegal Abortions. Induced abortions may be legal or illegal. According to the United States Centers for Disease Control and Prevention (CDC), the federal agency that collects data on abortions, a legal abortion is "a procedure, performed by a licensed physician or someone acting under the supervision of a licensed physician, that was intended to terminate a suspected or known intrauterine pregnancy and to produce a nonviable fetus at any gestational age." An illegal abortion may be self-induced, induced by someone who is not a physician or not acting under her or his supervision, or induced by a physician under conditions that violate state laws governing abortions.

A HISTORICAL PERSPECTIVE

Almost all human societies place a high value on human life. Thus, the further along the continuum from heterosexual intercourse to a live child, the less likely is the method of fertility control to be allowed. In the modern period, most societies allow contraception, but there is more variability around abortion. The leading institutional opposition comes from the Roman Catholic Church, but other institutions also take active positions against abortion. Survey research suggests that many Americans are ambivalent about whether abortion should be legal and, if so, under what circumstances.

Induced abortion was almost universally illegal at the beginning of the twentieth century. This changed first in the early years of the Soviet Union, which made abortion legal, widely available, and encouraged as the primary method of fertility control. In the period after World War II, abortion was legalized first in the Scandinavian countries and later in most of Western and Eastern Europe. With the broaching of the Iron Curtain in the early 1990s, abortion was legalized in more of Eastern Europe, while the more restrictive policy in West Germany was extended to the former East Germany. At the beginning of the twenty-first century, abortion was legal in most of England and Asia, but illegal in most of Africa and South America.

In the United States, abortion was universally illegal from at least the late nineteenth century until the mid-1960s, when an abortion reform movement led to legalization of abortion in some states. (The regulation of abortion, like most medical issues, is a state function.) Then, in its 1973 Roev. Wade decision, the United States Supreme Court found a constitutional right to abortion before viability, at that time about twenty-eight weeks. (By the beginning of the twenty-first century, advances in the techniques of caring for very premature infants had reduced the age of viability to around twenty-three weeks.) The Court stated, however, that after viability is reached, the state's important and legitimate interest in potential life becomes compelling and it may regulate and even prohibit abortions, with the exception of those necessary to preserve the life or health of the mother.

ACCESS TO ABORTIONS

Access to legal abortions is limited by laws and regulations, financial considerations, and the availability of providers.

Laws and Regulations. Since the 1973 decision, many states have enacted measures to limit abortion, which have led to considerable litigation.

Figure 1

Some laws have been disallowed as inconsistent with Roe, while others have been allowed. For example, in the late 1990s, about thirty states restricted the access of minors to abortions by requiring the notification or the consent of one or both parents before an abortion could be performed, and more are considering such legislation. The Supreme Court requires that states with parental notification or consent laws must provide for a judicial bypass; that is, the minor must be allowed to obtain permission from a court for the abortion if she is unwilling or unable to seek permission from her parent(s). States may also require a waiting period between the request for an abortion and its actual performance. Or they may require the physician who is to conduct the abortion to inform the mother about the fetus's stage of development and about alternative ways of managing an unwanted pregnancy, such as putting the baby up for adoption.

Financial Considerations. Abortion is not among the medical procedures covered by Medicaid, the federal-state program that provides health care to many poor women. Federal law, the socalled Hyde Amendment, passed in 1977 and amended in 1993, prohibits the use of federal Medicaid funds for abortion except in cases of rape, incest, or when the life of the pregnant

Figure 2

woman is in danger. Some states use their own Medicaid funds to pay for abortions that physicians consider "medically necessary," and a few fund them in cases of fetal anomaly or grave physical health danger. Some private organizations, such as Planned Parenthood agencies, assist low-income women in states with restrictive funding policies by performing abortions for reduced fees. In 1999, less than two-fifths of women with employer-based health insurance were covered for abortion services.

Provider Availability. On the basis of a survey of abortion providers, the Alan Guttmacher Institute estimated that in 1996 there were slightly over two thousand abortion providers in the United States, a drop of 14 percent from 1992, perhaps as a result of anti-abortion publicity and disturbances. Eighty-nine of the country's 320 metropolitan areas had no known abortion providers and an additional twelve had providers who together reported fewer than fifty abortions. Abortion providers were even less available in non-metropolitan areas.

According to the Guttmacher survey, 452 abortion clinics (defined as nonhospital facilities in which half or more of patient visits were for abortion services) performed 70 percent of the abortions in 1996. Four hundred and seventeen other clinics performed 21 percent of the abortions; 703

Figure 3

hospitals performed 7 percent (only 9% of those on an in-patient basis); and 470 physicians' offices performed 3 percent.

NUMBER AND RATES OF ABORTIONS

There is no definitive information about the number and rate of spontaneous abortions, although worldwide it is estimated that approximately 15 percent of women who have been pregnant for five or more weeks spontaneously abort or experience stillbirths.

The CDC has been conducting surveillance of legal induced abortions in the United States since 1969. It reported 1,186,039 legal abortions in 1997, but noted that this was probably an underestimate. The number of abortions per 1,000 women between 15 and 44 years of age (the abortion rate) was 20 and the number of abortions per 1,000 live births (the abortion ratio) was 306. Most legal abortions were performed in California, New York City, Texas, and Florida. The number of legal abortions increased from 1970 until 1990 and, with the exception of 1996, has fallen ever since.

Figure 4

Both the abortion rate and the abortion ratio began to decline earlier (see Figure 1).

Information on the characteristics of the women who obtain abortions and the timing of abortions is available from most, but not all, areas. Based on the information available in 1997, women between the ages of 20 and 24 obtained almost a third (31.5%) of all abortions. Abortion rates were highest for women between the ages of 20 and 24 and lowest for the youngest and oldest women. Abortion ratios, however, were highest for women under 20 and for women 40 and over, at least partially because there are fewer births in these age groups (see Figures 2–3). Slightly over half(56.3%) of women who obtained abortions were white, but the abortion rate and the abortion ratio for African Americans was slightly more than two and a half times the rate for white women. For Hispanic women in the District of Columbia, New York City, and the twenty-six states reporting ethnicity, the abortion ratio was similar to the one for non-Hispanics in the same areas, but the rate was higher. Seventy-nine percent of women who obtained abortions were unmarried, 41 percent had no previous live births, and half were obtaining abortions for the first time. Eighty-six percent of women obtaining abortions had the procedure during the first twelve weeks of pregnancy (see Figures 4–5).

Figure 5

ABORTIONS AND PUBLIC HEALTH

There is no evidence that abortions are detrimental to the health of women. The CDC reported that in 1992, the last year for which data on abortionrelated deaths were available, only twenty-seven women died of abortion-related causes, ten due to induced abortions, seventeen to spontaneous abortions, and none to illegal abortions. This is a case-fatality rate for legal induced abortions of 0.7 per 100,000 legal induced abortions, a lower fatality rate than for pregnancies. (In 1992, the maternal mortality rate was 7.8 per 100,000 live births.) Injuries and illness, both physical and emotional, are also rare. Deaths and other adverse consequences are more likely to occur when women are unable to obtain abortions legally and attempt to induce abortions themselves or turn to providers outside the conventional medical care system. There were thirty-nine deaths due to illegal abortions in 1972 before the Roe v. Wade decision and nineteen in 1973. Since then, the number of such deaths has declined markedly: There were only two between 1988 and 1992. Studies in Czechoslovakia have shown that women who are denied abortions suffer psychological difficulties.

Most induced abortions today are the result of unwanted pregnancies. The best way to prevent this safe—but uncomfortable and usually undesirable—procedure is to make family planning counseling and methods easily available to all women.

Lorraine V. Klerman

Jacob A. Klerman

(see also: Ethics of Public Health; Pregnancy; Reproduction )

Bibliography

Alan Guttmacher Institute (1999). Sharing Responsibility: Women, Society and Abortion Worldwide. New York: Author.

Henry J. Kaiser Family Foundation (1999). Issue Update: Abortion Fact Sheet. Menlo Park, CA: Author.

Henry J. Kaiser Family Foundation and Health Research and Educational Trust (1999). Employer Health Benefits: 1999 Annual Survey. Menlo Park, CA: Author.

Henshaw, S. K. (1998). "Abortion Incidence and Services in the United States, 1995–1996." Family Planning Perspectives 30(6):263–270, 287.

Joffe, C. (2000). "Medical Abortion in Social Context." American Journal of Obstetrics and Gynecology 183(2):S10– S15.

Klerman, J. A. (1999). "U.S. Abortion Policy and Fertility." American Economic Review Papers and Proceedings 89(2):261–264.

Koonin, L. M.; Strauss, L. T.; Chrisman, C. E.; Montalbano, M. A.; Bartlett, L. A.; and Smith, J. C. (July 30, 1999). "Abortion Surveillance—United States, 1996." Morbidity and Mortality Weekly Report 48(SS-4):1–42.

Koonin, L. M.; Strauss, L. T.; Chrisman, C. E.; and Parker, W. Y. (December 8, 2000). "Abortion Surveillance—United States, 1997." Morbidity and Mortality Weekly Report 49(SS-11):1–43.

Levine, P. B.; Staiger, D.; Kane, T. J.; and Zimmerman, D. J. (1999). "Roe v. Wade and American Fertility." American Journal of Public Health 89(2):199–203.

Matthews, S.; Ribar, D.; and Wilhelm, M. (1997). "The Effects of Economic Conditions and Access to Reproductive Health Services on State Abortion Rates and Birthrates." Family Planning Perspectives 29(2):52–60.

abortion means the end of a pregnancy before the fetus can survive. It may be either spontaneous — when it is also known as miscarriage — or induced, when it is a deliberate termination of pregnancy.

Spontaneous abortion

Spontaneous abortion is defined in the UK as a pregnancy loss occurring before 24 completed weeks of pregnancy. Approximately 50–70% of pregnancies end in spontaneous abortion. Most of these losses are unrecognized because they occur before or at the time of the next expected menstrual period. About 15–20% of clinically diagnosed pregnancies are lost by 16 weeks. Recurrent abortion, defined as the loss of three or more consecutive pregnancies, occurs in 0.5–1% of pregnant women. Causes of spontaneous abortion may relate to the fetus, the placenta, or the uterus. Genetic factors, developmental problems, placental problems, and infection are known causes, but in a quarter of all spontaneous abortions the cause is unknown. This may be due to lack of ability to investigate these cases.

It is generally accepted that 50% of all recognized pregnancy losses in the first 3 months are due to a genetic abnormality. Abnormalities of the placenta have probably greater importance than is realized, but information on this aspect is scanty. A number of organisms have been associated with spontaneous abortion, such as listeria, brucella infection from animals, and the rubella virus. In isolated instances fetal or placental infection with various organisms may result in spontaneous abortion, but there is no evidence of their involvement in a recurrent problem. Some cases of recurrent abortion are due to congenital abnormalities of the uterus and these may be corrected surgically; 70–80% of women with the most frequent abnormalities have successful pregnancies following surgery.

Spontaneous abortion may become evident clinically either as ‘threatened’ or ‘inevitable’. A threatened abortion is said to occur when a woman bleeds from the uterus before 24 weeks of pregnancy. There are three possible outcomes: the bleeding may settle and the pregnancy continue; the fetus may die but be retained in the uterus (confirmed by an ultrasound examination) and this is known as a ‘missed’ abortion; a missed abortion may proceed to an inevitable abortion, with continued or intensified bleeding and expulsion of the products of conception. Bleeding may be severe, causing shock; in some cases this is life-threatening and blood transfusion may be required. Death occurs in a few cases where medical care is poor or absent. In the UK the death rate is of the order of 12.5 per million pregnancies.

If the pregnancy is expelled intact the abortion is said to be ‘complete’, but this is rare in the first 3 months of pregnancy. More commonly some material is left behind and only when it is removed surgically will bleeding cease. If this is not done, bleeding may continue and the uterus become infected, with serious consequences for the woman. Rarely in developed countries, but commonly in underdeveloped regions and where abortion laws are restrictive, infection occurs and abortion is a well-recognized cause of maternal death.

The emotional effects of an abortion vary greatly. A majority of women have feelings of depression, and there is usually associated fear and anxiety caused by the pain and bleeding and the uncertainty as to the cause. Reaction to abortion as a bereavement means that women require to grieve after the event. Often the intensity of the emotional reaction is not appreciated by the carers or by friends or relatives. Health workers should help the woman to express her grief. Women who have experienced such loss require considerable reassurance and support in a subsequent pregnancy.

Recurrent spontaneous abortion

Recurrent spontaneous abortion is a particularly distressing condition and there is very limited understanding of its causes. Genetic factors such as parental chromosome abnormalities are a major known cause which should be looked for. Anatomical factors such as uterine abnormalities account for perhaps 10–15% of recurrent loss. Hormonal factors, such as deficient production of progesterone, which is important for the maintenance of early pregnancy, are also cited — but evidence for such causes is scanty.

In some cases an immune response is mounted by the mother against the pregnancy, causing its demise. Chronic maternal disease such as diabetes and kidney disease may also be associated. Smoking and alcohol consumption have been linked to recurrent abortion but there is no hard evidence for this.

In the case of genetic abnormalities, genetic counselling is advisable and if, for example, the abnormality is traced to the male partner, insemination of the woman with sperm from a donor (donor insemination, DI) may be a possible solution. An abnormally shaped uterus can be corrected by surgery. Hormonal therapy has not proved successful. In the case of an immunological cause, immunotherapy has been helpful, and in some women with no ascertainable cause psychotherapy has been of value. In the event intervention may not be the best answer and it may be just as successful to wait and see.

Induced abortion: termination of pregnancy

The study of induced abortion, especially where abortion is illegal, is a major challenge in the contexts of reproductive health and women's rights.

At the International Conference on Population and Development in Cairo in 1994 the following statement was made: ‘Since unsafe abortion is a major threat to the health and lives of women, research to understand and better address the determinants and consequences should be promoted’. The conference also recognized that unsafe abortion was a world-wide public health problem and agreed that each country should legislate to solve the problem. In developed countries like the UK where abortion is readily available the related mortality is extremely low — less than 1 per 100 000 procedures. In less optimal settings where women are only able to find unsafe abortion, mortality is high. World-wide, estimates vary from a minimum of 50 000 up to 150 000 abortion-related deaths per annum.

Experience from many countries confirms that permissive legislation on abortion does not increase the abortion rate: it only determines whether it is performed under safe or unsafe conditions. The restrictive legislation which some countries have, for cultural or religious reasons, prevents a reduction in the death rate and health hazards of abortion.

In the UK restrictive legislation was still in place in 1938 — the year when Mr Alec Bourne, an eminent London gynaecologist, terminated a woman's pregnancy which had resulted from rape. He was reported for this criminal offence and was prosecuted. The judge allowed the mental health of the woman to be taken into account and Bourne was acquitted, marking a changing attitude to abortion in the UK. In 1967 the Abortion Act legalized abortion under certain circumstances, and amendments were made in 1990. Currently the Act permits termination of pregnancy if two doctors:
are of the opinion in good faith a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or d) 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.

It is essential that a woman who seeks abortion receive proper counselling. If she wishes her partner to be involved he may be, but this is not mandatory. This involves giving the woman as much information as possible after a medical, social, and family history has been obtained: information regarding the methods of termination, their risks, and their benefits, and alternative courses of action such as adoption, and also advice which may help to determine her real wishes. All is designed to help her to reach a decision. Certain high risk groups require special counselling: teenagers; those with genetic factor risks; cases of sexual abuse; and those seeking late terminations or repeated terminations.

Most terminations are done in the first 3 months of pregnancy. At this stage it is done surgically under an anaesthetic, by dilating the cervix and removing the pregnancy by suction or by forceps. Alternatively, up to 8 weeks or so, termination using drugs is possible, and is now common. A choice may therefore be offered. In 85% of early cases no further treatment is required as the abortion is complete. Where it is not complete surgery is required.

After 3 months it is usual to use a method of termination by administration of prostaglandins. These drugs cause contractions of the uterus and the fetus and placenta are expelled.

Complications which may occur are bleeding, perforation of the uterus, tearing of the cervix, and sepsis — but these are rare when the procedure is properly performed. Where abortion is performed in unsafe circumstances these complications are common and have serious consequences.

Abortion has been regarded in some countries as a method of birth control. This should not be so. Abortion services should include advice on contraception and the better this advice the less often will abortion be resorted to. See also antenatal development; contraception; pregnancy.

Malcolm Macnaughton

Abortion: historical and social aspects

For many centuries women finding themselves pregnant have endeavoured to implement retroactive birth control by means of abortion. This practice was often occluded from legal and medical eyes, information being passed on within a female oral subculture. However manuscripts survive from a range of historical periods which record numerous substances reputed to be abortifacients, though some are also highly toxic to the woman; and various practices have also been believed to induce miscarriage. For many centuries the law only concerned itself with pregnancy subsequent to ‘quickening’. This traditional distinction and the persistent conceptualization by women of the problem as ‘bringing on’ menstruation, suggest that women did not experience pregnancy as an absolute, either/or, state.

The law, however, at least in Europe and North America, increasingly formulated the ending of all pregnancy as abortion, possibly reflecting developing medical ability in accurate, early recognition of conception. In England and Wales abortion initially became a statutory offence in 1803 under Lord Ellenborough's Act, at a time when the medical profession was increasingly concerning itself with previously woman-controlled areas such as obstetrics, and desirous of differentiating the medical man from the irregular practitioner. The concept of ‘unlawful’ abortion enabled medical practitioners to claim a right to use their clinical judgement over ‘lawful’ therapeutic abortion. Induced abortion, pre-antibiotics, was a significant cause of female mortality and morbidity, although many ‘back street’ operators were not lacking in skill. It was largely married women who patronized these, since they could more readily pass off miscarriages without need of concealment. The ‘Female Pills’ widely purveyed in the later nineteenth and early twentieth centuries were a successful commercial racket, with little in the way of effective ingredients.

Laws on the availability of surgical abortion have varied widely from nation to nation: medical expertise may be privileged over unlicensed operators, or operations even by regular practitioners regarded as a crime. Though legally condemned, abortion has frequently been available to those with the right contacts and able to pay. While certain religious groups, especially Roman Catholics, have strongly condemned abortion, such condemnation has not universally prevented women from seeking it. The role of popular feeling and debate has been influential in altering the law: in Britain the important legal case of Rex v. Bourne, 1938, establishing a common-law precedent for abortion on the grounds of a woman's mental, not merely physical, health, took place in the context of widespread debate and agitation for reform of the law. In the US, however, there was no such climate of opinion, and similarly idealistic and concerned abortionists paid the full legal penalty.

Abortion became legalized in many countries during the late 1960s and early 1970s. Unfortunately the overt inscription of the right to abortion in law (as opposed to something performed, if at all, within the privileged secrecy of the doctor/patient encounter) has provoked a vigorous ‘backlash’, particularly violent in the US. There is little evidence that abortions would be fewer if illegal; only more dangerous, and the availability of the operation more erratic and inequitable.

Lesley A. Hall

Abortion

Abortion is the termination of a pregnancy before the time of extrauterine viability. An abortion terminates the life of the embryo (the fertilized egg before three months of growth) or the fetus (after three months). Spontaneous abortions, also called miscarriages, occur when the fetus or embryo is spontaneously expelled by the body. An induced abortion occurs when there is deliberate human intervention to end the pregnancy. Induced abortions can be accomplished medically or surgically.

Medically induced abortions are accomplished by giving drugs like mifepristone (RU-486), which block the work of the hormone progesterone and soften the lining of the uterus, thus ending the pregnancy. Medically induced abortions can generally only be used if the woman is less than seven weeks from her last menstrual period. Mifepristone is administered in conjunction with another medicine called misoprostol, which causes the uterus to cramp and expel the embryo.

Within the first trimester of pregnancy, the most common form of surgical abortion is vacuum aspiration. During the second trimester, dilation and evacuation procedures (D & E) are performed. Finally, stimulating contractions that expel the fetus from the uterus can also induce abortion.

Ethical issues

Abortion raises significant scientific, legal, religious, and ethical issues: the understanding of life and death, the definition of a human person, the rights of the mother and the fetus, and the impact of new scientific discoveries on reproduction. Certain scientific and technological discoveries, including stem cell research, cloning, and artificial reproduction, have complicated the abortion issue. The status of the fetus is probably the most controversial issue: Is the fetus a person with the same rights as those who are born? Some argue that the embryo from the moment of conception has the same rights as a person extra utero. Others argue that the early embryo is human life but not a human person. The political state also has an interest both in the autonomy of the mother and the health of the baby. Sometimes, the autonomy of the mother can be in tension with her maternal responsibility to the fetus.

With the increased use of fertility drugs and assisted reproductive technologies, many patients can conceive who were unable to conceive in the past. Some of these technologies may result in high order multiple pregnancies (with four or more fetuses), which have a substantial risk of the loss of all fetuses before the period of extra-uterine viability (twenty-two to twenty-four weeks gestation). The parents' options include carrying all of the fetuses until birth, eliminating all of them, or selectively terminating some fetuses. Selective reduction may enhance the chance of survival of some fetuses in a high order multiple pregnancy.

Discovery, diagnosis, prevention, and therapy of certain genetic or medical diseases complicate decisions surrounding abortion. Parents can now determine when the fetus is in-utero whether it carries possible genetic predispositions to diseases like cystic fibrosis, Huntington's chorea, early Alzheimer's, and sickle cell anemia. Prenatal testing also allows detection of chromosomal abnormalities, such as Down syndrome. Ultrasound, now widely used during pregnancy, can document a wide variety of birth defects. Although some of these problems may be treatable in-utero, in most cases no therapy is available, and the parents must decide whether to continue the pregnancy. In addition, some maternal medical conditions, such as pulmonary hypertension, may pose a significant threat to the mother's life if pregnancy continues.

Physicians, parents, and insurance companies face difficult decisions about abortion. The human and economic costs of caring for children with medical or genetic disorders can be great. Opponents of abortions that are performed to address these problems raise the concern that the weak and vulnerable in society will have no rights. There is potential for discrimination based on genetic information.

Religious views

Religious views on abortion are pluriform, ranging from those who consider abortion as murder to those who justify it as a necessary means to an end. The spectrum of diversity can be found not only among world religious traditions, but also within religious traditions. The discussion focuses primarily on the status and rights of the fetus, the status and rights of the mother, the role of medical technology, the value of life (quantity and quality), the political and socioeconomic concerns surrounding fertility and infertility, and the nature of what it means to make difficult ethical decisions in a community of faith.

Judaism, Islam, and Christianity are related monotheistic religions that use religious texts, human reason, and teaching authorities for making ethical decisions. Within and among these three traditions, there are deep and potentially divisive views on abortion. For example, some religious scholars believe that God creates all life. According to this view, the embryo is a human person endowed with rights from the moment of conception. To reject this life is to reject the creation of God. Abortion is considered a sin against life along with murder, genocide, and self-destruction, and any destruction of an embryo would be considered sin, even when done in response to prenatal diagnosis of genetic disease.

In contrast, some scholars of religion, including Daniel Maguire, explain that abortion may be permissible for many reasons. Maguire points out in Sacred Choices (2001) that there is only one direct reference in scripture to accidental abortion—Exodus 21:22, which states that someone who injures a woman and causes her to miscarry must pay a fine paid to her husband. If the woman dies from her injuries, however, the punishment for the person who injured her is death. Clearly, in this text, the fetus is not considered a person with the same status as the woman, and abortion would be permitted for some reasons, such as preventing extreme fetal abnormalities and saving the life of the mother.

Judaism. Some Jewish scholars, such as Laurie Zoloth, connect reproduction to justice. Judaism takes into account the good of the entire community in making decisions about abortion. This approach derives from Judaism's root commitment that every human being is a child of God, born in the image of God. Reproduction is undertaken not merely for its own sake, but for the sake of the community. Abortion is thus permitted for the woman to avoid disgrace or for health reasons of both mother and fetus. In some Jewish traditions, the first forty days of conception are considered like "water" and the fetus does not have an ontological status of a person.

Islam. The approach from Islam concerning abortion and contraception has generally been one that considers the common good of the community. Muslims see themselves as vice regents of God, called to do God's work in this world. Islam's ethical practices are flexible and are often adapted to political and social climates. As Gamal Serour points out in The Future of Human Reproduction (1998), for Muslims abortion can be "carried out to protect the mother's health or life or to prevent the birth of a seriously handicapped child" (p. 196).

Christianity. Within the Christian tradition, perspectives on abortion vary dramatically. For example, within Roman Catholicism different scholars draw different conclusions about permitting abortion. Many consider the official Catholic position on abortion to derive from the 1930 encyclical Casti Connubii (On Christian Marriage) of Pope Pius XI and the 1987 Donum Vitae (Gift of Life) of Pope John Paul II. On the issue of genetic screening for selective abortion, Donum Vitae states that "a woman would be committing a gravely illicit act if she were to request such a diagnosis with the deliberate intention of having an abortion should the results confirm the existence of a malformation or abnormality." Furthermore, humans cannot assume the role of God when using embryos in research from IVF (in vitro fertilization). Donum Vitae states that the researcher "sets himself up as the master of the destiny of others inasmuch as he arbitrarily chooses whom he will allow to live and whom he will send to death and kills defenseless human beings." However, Maguire and others have pointed out that papal statements on abortion are not considered infallible and explain that abortion would be permitted for some reasons.

Protestant denominations vary on their stance on abortion. Within Protestantism, decisions about abortion are not made by a central teaching magisterium but within a community of shared discernment. Denominations such as the Evangelical Lutheran Church in American and the United Church of Christ do not take an official stand on the status of the fetus. Both the fetus and the mother are taken into account when confronting decisions concerning abortion. Other Protestant teachings are more consistent with Roman Catholicism and consider abortion a sin. In some cases, exceptions are made for the life of the mother.

Asian religions. According to Maguire, Asian religions like Daoism and Confucianism have understood abortion as a necessity in some cases and have extended compassion to those involved. These nontheistic religions emphasize the family and community as the primary social unit, and decisions about abortion are made within this social context. Buddhism considers all life as linked and interdependent, and most Buddhists believe in reincarnation and understand that life begins at conception. These beliefs could preclude abortion at any stage, but many Buddhists permit abortion, particularly for the sake of the mother. Intention is central to Buddhist morality and so the action of abortion must also include the intentions of the moral actors.

see also buddhism; chinese religions, confucianism and science in china; chinese religions, daoism and science in china; christianity, lutheran, issues in science and religion; christianity, roman catholic, issues in science and religion; cloning; dao; genetic testing; human genome project; islam, contemporary issues in science and religion; judaism, contemporary issues in science and religion; reproductive technology; stem cell research

Bibliography

acog-american college of obstetricians and gynecologists. "medical management of abortion." acog practice bulletin 26 (2001):1-13.

Congregation for the Doctrine of the Faith. Donum Vitae: Instruction on Respect for Human Life in Its Origin and on the Dignity of Procreation: Replies to Certain Questions of the Day. Washington, D.C.: United States Catholic Conference, 1987. In Intervention and Reflection: Basic Issues in Medical Ethics, 6th edition, ed. Ronald Munson. Belmont, Calif.: Wadsworth, 2000. Also available from: http://www.nccbuscc.org/prolife/tdocs/donumvitae.htm.

evangelical lutheran church in america. "a social statement on abortion." adopted at the second biennial churchwide assembly of the evangelical lutheran church in america, orlando, fla., aug 28–sept 4, 1991. available from: http://www.elca.org/dcs/abortion.pf.html.

maguire, daniel. sacred choices: the right to contraception and abortion in ten world religions. minneapolis, minn.: fortress press, 2001.

paul, maureen, ed. a clinician's guide to medical and surgical abortion. new york: churchill livingstone, 1999.

peters, ted. "in search of the perfect child: genetic testing and selective abortion." christian century 113, no. 31 (1996): 1034–1037.

pope pius xi. "casti connubii: encyclical on christian marriage," december 31, 1930. available from: http://www.vatican.va/holy_father/pius_xi/encyclicals.

rispler-chaim, vardit. "the right not to be born: abortion of the disadvantaged fetus in contemporary fatwas." the muslim world 89, no. 2 (1999): 130–143.

rogers, therisa. "the islamic ethics of abortion in the traditional islamic sources." the muslim world 89, no. 2 (1999): 122–129.

serour, gamal i. "reproductive choice: a muslim perspective." in the future of human reproduction, eds. john harris and soren holm. oxford: clarendon press, 1998.

zoloth, laurie. "the ethics of the eight day: jewish bioethics and research on human embryonic stem

cells." in the human embryonic stem cell debate: science, ethics and public policy, eds. suzanne holland, karen lebacqz, and laurie zoloth. cambridge, mass. and london: the mit press, 2001.

ann pederson
william j. watson

Abortion

Bibliography

Induced abortion, in contrast to spontaneous abortion, is the deliberate termination of an established pregnancy. Induced abortion is a universal phenomenon, present in every known culture—literate or preliterate, primitive or modern. What has differed has been the safety of the methods used; how widespread the practice has been, especially relative to contraception and infanticide; and the role of church and state.

Induced abortion was certainly practiced in ancient societies. The oldest known recipe for abortifacients comes from an ancient Egyptian papyrus dating back to 1550 BCE, which lists substances that terminate pregnancy in the first, second, and third trimesters. Ancient Greeks also used herbal abortifacients, including silphium (a giant fennel), pennyroyal, and myrrh; modern analyses suggest that many of these were effective. Abortion was common in both ancient Greece and Rome, although not nearly as widespread as infanticide. The timing of animation or ensoulment was of great interest to Greek philosophers. Aristotle (384-322 bce) hypothesized that the fetus had a succession of souls: vegetable, animal, and rational. He also believed that animation occurred in the male fetus forty days after conception and in the female fetus after eighty days. Among Romans, the prevailing view was that the fetus became a person, an entity with a soul, only at the time it began to breathe.

Abortion practices varied widely among early Christians, who generally believed that fetuses did not have a soul until sometime after conception. Saint Augustine (354-430 ce) accepted Aristotle’s theory of delayed animation of the female fetus and contributed his own description of fetal development: the first six days in milky form, nine more days for it to turn to blood, twelve days for the mass of blood to solidify, and eighteen more days for the mass to become fully formed with all of its members.

During the Middle Ages, a woman was considered to have had an abortion only if a formed fetus was extracted. Abortion among Christians remained a local issue, and penances imposed for procuring abortions varied widely among localities. In the thirteenth century, the Christian philosopher Thomas Aquinas (c. 1225-1274) expanded upon the ideas of his predecessors, accepting Aristotle’s view that male semen alone had the power of creation. He reasoned that since beings tend to reproduce their own kind, the products of conception ordinarily would be male. Females must result from flaws in the semen or an act of God, such as the south wind. Aquinas’s ideas influenced Pope Innocent IV (d. 1254), who declared that abortion before the infusion of the soul was not homicide.

The papal position did not change again for three centuries. In 1588 Pope Sixtus V (1521-1590) declared that whoever practiced abortion, which he believed to be premeditated murder, was to be excommunicated and put to death. In 1591 Pope Gregory XIV (1535-1591) withdrew these penalties for the sin of abortion, which he believed were too severe in light of the debate on animation or ensoulment. This remained the Catholic Church’s abortion policy until 1869, when Pope Pius IX (1792-1878) restored Sixtus V’s declaration, thus eliminating any distinction between an animated and an unan-imated fetus.

Despite its change in doctrine, the Catholic Church did not play an important role in the passage of antiabortion legislation in either England or the United States during the nineteenth century. At the beginning of the nineteenth century, English common law, which also applied in the United States, allowed induced abortion until at least quickening, that is, when the woman first feels fetal movements, usually between the fourth and fifth months of pregnancy. The change in British law occurred in 1803 when induced abortion was made illegal throughout pregnancy. The change in American law occurred somewhat later through two waves of state antiabortion legislation.

The first wave occurred between 1821 and 1841. Ten states and one territory enacted legislation to make some abortions illegal. Connecticut passed the first statute in 1821, prohibiting the administration of poisons to produce postquickening abortions. In 1828 New York banned postquickening abortions by all methods. Other than politicians and physicians, there was little popular support for these laws, and they were almost never enforced.

Massachusetts launched the second wave of antiabortion legislation in 1846 with a law that ignored the notion of quickening and included jail sentences and fines for attempted abortions. New York followed suit in the same year and passed an abortion law that also disregarded quickening and prescribed punishments for abortionists and abortion patients. Between 1840 and 1880, forty antiabortion state laws were passed. By 1910 induced abortion at any stage was a criminal offense in every state except Kentucky. The only exception was a therapeutic abortion, performed to save the pregnant woman’s life. However stringent, these state laws were ineffective in curtailing abortions—reliable estimates show that abortion rates climbed throughout the nineteenth century.

During the first half of the twentieth century, an estimated one in three pregnancies ended in abortion. Most of these abortions were illegal and unregulated, resulting in high morbidity and mortality rates for poor and rural women. The rationale for therapeutic abortions had also expanded over time. For women who had access to physician services, induced abortions became relatively safe by the mid-twentieth century. Not surprisingly, the medical profession became a principal advocate for reforming the antiabortion laws for which it had lobbied in the previous century.

Abortion was legalized in the United Kingdom in 1967 and throughout the United States in 1973. While these policy changes occurred within about five years of each other, their paths were almost totally divergent. In Britain, the law was liberalized after a fierce political campaign. In the United States, abortion reform occurred judicially rather than through legislative deliberation. In both counties, deaths from abortions plummeted after the abortion laws were liberalized, but these reformed policies have not settled the abortion debate in either country. However, abortion politics have been far more contentious in the United States than in the United Kingdom.

In 1973 the U.S. Supreme Court’s decision in Roe v. Wade overturned existing state laws by holding that a woman’s right to choose abortion was constitutionally protected as part of her right to privacy. This decision prohibited any level of government from interfering with a woman’s right to obtain an abortion during the first trimester except to require that it be performed by a licensed physician. During the second trimester, the state had only the power to regulate abortion in ways designed to preserve and protect the woman’s health. In the third trimester, the protection of fetal life became a compelling reason to justify state interference with a woman’s right to obtain an abortion. Beyond these broad parameters, individual states were free to regulate other aspects of abortion.