Abortion—an Eternal Social and Moral Issue
Abortion—an Eternal Social and Moral Issue
WHAT IS ABORTION?
An abortion—also called "induced abortion"—is a procedure performed to end a pregnancy before birth occurs. This is not the same as a spontaneous abortion, a process that occurs when a fetus or embryo dies in the mother's uterus and is expelled by the body. Spontaneous abortion is also called a "miscarriage."
The length of a pregnancy is measured in weeks from the first day of a woman's last menstrual period. A normal human pregnancy lasts about forty weeks. Pregnancy also can be described in "trimesters." There are three trimesters in pregnancy, and each trimester is about three months long. According to the Centers for Disease Control and Prevention (CDC) in "Abortion Surveillance—United States, 2001" (Morbidity and Mortality Weekly Report, Surveillance Summaries, vol. 53, no. SS-09, November 26, 2004), 88% of all induced abortions in 2001 were performed during the first twelve weeks, or first trimester, of pregnancy. The later in pregnancy abortion is performed, the higher the risk to the mother. Few reported abortions were provided after fifteen weeks, which is about four months of pregnancy, according to the CDC report. Of abortions in 2001, 4.3% were obtained at sixteen to twenty weeks, and 1.4% were obtained at twenty-one weeks or later.
Induced abortion can be accomplished in several ways. Some abortion procedures are performed with surgery and some with medication. (See Table 1.1.) The type of abortion a woman has depends on her choice, health, and how long she has been pregnant. Early surgical and medical abortions can be done safely in a doctor's office or clinic. Later abortions often are performed in hospitals or in special clinics.
Abortions have been performed since the beginning of recorded history. There have always been women who, for a variety of reasons, wanted to terminate their pregnancies. Today, the abortion issue has developed into a conflict about whether an embryo or fetus is entitled to legal rights, and whether a woman's right to control her life and body includes the right to end an unwanted pregnancy. While abortion has been debated for centuries, motivations to condemn or support it have varied with changing political and social conditions.
Abortion is mentioned in the ancient Code of Assyria (in Mesopotamia) of the twelfth century b.c.e. (before the common era). Provision Fifty-three explicitly ordered that any woman who had an abortion should be impaled on stakes without the dignity of burial. If the woman did not survive the abortion, her body was to be similarly impaled, again without burial. Likewise, ancient Jewish law strictly forbade abortion as a method of avoiding childbirth, although it allowed the sacrifice of the fetus to save the life of the mother.
Conversely, in ancient Greece and Rome, abortion often was used to limit family size. It was socially acceptable, as was the practice of disposing of deformed and weak infants through exposure (abandoning babies outdoors with the intent that they die). Males were favored; parents who did not want to have the expense of raising a female infant labeled her as "weak" and resorted to exposure.
Both Plato (c. 428–347 b.c.e.) and Aristotle (384–322 b.c.e.) approved of abortion as a means of population control. They also advocated exposure in the belief that it would ensure the best possible offspring. Plato wrote in The Republic that any woman older than forty years (an age when the rate of birth defects increases sharply) should be compelled to abort a pregnancy.
Scholars who credit Hippocrates (c. 460–377 b.c.e.) with the Hippocratic Oath claim that he opposed abortion. (The Hippocratic Oath in its early form prohibited abortion. It has been modified for modern use to be a medical code of ethics that states "First do no harm.") Others claim that this prohibition was a reflection of the Pythagorean teaching opposing abortion and that physicians in ancient times generally did not follow this oath.
|Methods of abortion|
|Source: Created by Sandra Alters for Thomson Gale, 2005|
|For a medical abortion, a combination of drugs is taken to end a pregnancy. A medical abortion does not require surgery and can be performed up to 49 days after the first day of the last menstrual period. Two combinations of medications are available for medical abortions:|
|• Methotrexate and misoprostol—Methotrexate terminates a pregnancy by inhibiting the production of folic acid in the pregnant woman's body. Folic acid is necessary for making the cells that form the brain, spine, organs, skin, and bones of the developing fetus. Misoprostol is then used. This drug causes the uterus to contract and expel its contents.|
|• Mifepristone (formerly known as RU486) and misoprostol—Mifepristone terminates a pregnancy by blocking the action of progesterone in the pregnant woman's body. Progesterone helps maintain the uterine lining, which is necessary for a pregnancy to be sustained. Misoprostol is then used and works as noted above.|
|Surgical abortions remove the contents of the uterus. They are performed in a few ways, with the procedure depending on the length of the pregnancy:|
|• Suction curettage (vacuum aspiration)—Suction curettage can be performed during the first trimester—up to 12 weeks—of pregnancy. First, the opening of the uterus (the cervix) is widened, or dilated, by the insertion of small rods or sponges. A thin plastic tube is then inserted through the dilated cervix and into the uterus. The tube is attached to a pump that suctions out uterine contents. After the suctioning, it is sometimes necessary to use a curette (a sharp, spoon-like instrument) to gently scrape the walls of the uterus to be certain that all the fragments of the fetus and placenta have been removed.|
|• Dilation and Evacuation (D&E)—D&E is generally performed during the second trimester—from 12 to 24 weeks—of pregnancy. The procedure is similar to suction curettage, but the cervix is dilated more. In addition, forceps may be used to grasp larger pieces of tissue.|
|• Induction—For abortions in the second or third trimester, labor may be started (induced) with drugs. Drugs may be put in the vagina, injected into the uterus, or given intravenously (IV) to start contractions that will expel the fetus. Alternatively, salt water or urea may be injected into the amniotic sac surrounding the fetus. This stops the pregnancy and starts uterine contractions. Taking a large amount of fluid out of the amniotic sac may also be used to stop the pregnancy and start contractions. Some drugs may be given directly to the fetus.|
The consequences of adultery or prostitution were very compelling reasons for a woman or her family to end her pregnancy. In the ancient Roman household, the father was the judge when it came to the ethical life of the family. He alone had the authority to order or forbid an abortion. When abortions were performed, Romans were not concerned with the life of the child but with the health of the mother, because some women were poisoned accidentally by improper mixtures of abortion-inducing drugs. Thus, fathers usually opted for infanticide (killing of an infant after birth) rather than abortion.
CHRISTIAN POSITION ON ABORTION
Christianity is a religion that was founded in Palestine by the followers of Jesus Christ approximately two thousand years ago. There are three broad divisions of Christianity: Roman Catholic, Eastern Orthodox, and Protestant. Within the category of Protestantism, there are a particularly large number of divergent denominations. The Roman Catholic and Eastern Orthodox divisions have existed since the earliest days of Christianity. Protestantism, however, dates back only to the Reformation, a sixteenth-century movement in Western Europe that aimed at reforming some doctrines and practices of the Roman Catholic Church and resulted in the establishment of the Protestant churches. Of adults in America, 52% identify themselves as Protestant, 24.5% as Roman Catholic, and less than one half of one percent as Eastern Orthodox, while 14.1% say they follow no organized religion, according to the American Religious Identification Survey released in 2001 by the Graduate Center of the City University of New York (http://www.gc.cuny.edu/faculty/research_studies/aris.pdf, December 19, 2001).
The Eastern Orthodox Church and the Roman Catholic Church consider an induced abortion to be a grave sin. Because Protestantism consists of various denominations and sects, many of which have differing teachings, Protestantism as a whole does not hold one position on abortion.
Abortion in the Christian Era
The first works of the Christian Church hardly mention abortion. The earliest known Christian document that declared abortion a sin was the Didache (also known as the Teachings of the Lord through the Apostles or the Doctrine of the Twelve Apostles ), written c. 100 c.e.. Didache 2:2 states, "You shall not kill the embryo by abortion and shall not cause the newborn to perish." The early church leaders agreed that if an abortion were performed to hide the consequences of fornication and adultery, then it was a sin that required penance. This sparked the debate as to whether abortion was murder.
According to Dr. Roy Bowen Ward in "Is the Fetus a Person? The Bible's View" (Religious Coalition for Reproductive Choice, Educational Series No. 2., http://www.rcrc.org/pdf/is%20fetus%20a%20person.pdf), both the Old Testament and New Testament of the Bible are silent on the subject of abortion. John T. Noonan, an antiabortion Roman Catholic scholar, reported in an essay entitled "An Almost Absolute Value in History" (The Morality of Abortion: Legal and Historical Perspectives, Cambridge, MA: Harvard University Press, 1970) that "the Old Testament has nothing to say on abortion."
Roman Catholic Position on Abortion
During the first six centuries of the history of the Roman Catholic Church, theologians theorized and debated about the starting point of human life. St. Augustine (354–430 c.e.), a Doctor of the Church whose teachings helped establish its theological foundation, taught that abortion is not the murder of an infant (infanticide). He wrote, "The law does not provide that the act [abortion] pertains to homicide, for there cannot yet be said to be a live soul in a body that lacks sensation when it is not formed in flesh and so is not endowed with sense." Reflecting a similar viewpoint, the Irish Canons (c. 675 c.e.) noted the penalty for illicit intercourse (minimum of seven years on bread and water) as far more severe than the penance for abortion (three and one-half years on the same diet).
St. Thomas Aquinas (1225–1274), generally considered to be one of the greatest Catholic theologians of all time, developed the concept of hylomorphism, which defines a human being as the unity of body and soul. This resulted in the belief that there could be no human being without the presence of both elements. The soul, in other words, can exist only in a fully formed body. In Summa Theologica (Part I, Question 90, Article 4) St. Thomas Aquinas wrote, "The soul, as part of human nature, has its natural perfection only as united to the body."
However, not all Catholic theologians agreed with the position of St. Thomas Aquinas. Some theologians taught that hominization (the point at which a fetus acquires a soul and becomes a human being) occurred at forty days after conception for males and eighty days for females. This also was referred to as the "ensoulment" of the fetus.
In 1312, at the Council of Vienne, the Catholic Church officially adopted St. Thomas Aquinas's hylomorphic theory of human life and upheld this traditional doctrine through the sixteenth century. As a result, priests would not baptize a premature infant unless it had a human form.
Nonetheless, although the Church endorsed St. Thomas Aquinas's theory, theological discussions on abortion and the fetus continued. From the twelfth through the sixteenth centuries, the various popes issued differing pronouncements on abortion and the fetal status depending on their personal beliefs about the moment of ensoulment. In some cases they imposed excommunication (exclusion from Church membership) as a penalty for purposefully aborting a fetus.
In 1869 in Apostolicae Sedis, Pope Pius IX declared abortion a homicide and, therefore, grounds for excommunication. This decision was reaffirmed in 1917 with the issuance of the Code of Canon Law. Canon 2350, Paragraph I, explicitly states, "Persons who procure abortion, not excepting the mother, incur, if the effect follows, an automatic excommunication reserved to the Ordinary (nonclergy), and if they be clerics, they are moreover deposed." Recent popes have firmly upheld this canon. Pope Pius XII, deeply concerned about abortion, wrote in his Allocution to Midwives in 1951:
Besides, every human being, even the child in the womb, has the right to life directly from God and not from his parents, not from any society or human authority. Therefore, there is no man, no human authority, no science, no "indication" at all—whether it be medical, eugenic, social, economic, or moral—that may offer or give a valid judicial title for a direct deliberate disposal of an innocent human life, that is, a disposal which aims at its destruction, whether as an end in itself or as a means to achieve the end, perhaps in no way at all illicit. Thus, for example, to save the life of the mother is a very noble act; but the direct killing of the child as a means to such an end is illicit.
The Second Vatican Council (1962–65), the largest Roman Catholic Church gathering in Christian history, declared in Gaudium Et Spes that abortion is a "supreme dishonor to the Creator." The Council further observed that "from the moment of its conception, life must be guarded with the greatest care, while abortion and infanticide are unspeakable crimes" (EWTN Catholic Network, Gaudium Et Spes, http://www.ewtn.com/library/councils/v2modwor.htm).
In 1968, in the letter Humanae Vitae (EWTN Catholic Network, Humanae Vitae, http://www.ewtn.com/library/encyc/p6humana.htm), Pope Paul VI stated, "We must once again declare that the direct interruption of the generative process already begun, and, above all, directly willed and procured abortion, even if for therapeutic (medically necessary) reasons, are to be absolutely excluded as licit (legal) means of regulating birth."
In 1995 Pope John Paul II proclaimed his firm stand against contraception, abortion, and euthanasia (mercy killing) in the letter Evangelium Vitae (Gospel of Life). The letter claimed that modern society promoted a "culture of death." In November 1998 the National Conference of Catholic Bishops of the United States issued "Living the Gospel of Life: A Challenge to American Catholics" (http://www.usccb.org/prolife/gospel.htm). It stated that "direct abortion is never a morally tolerable option. It is always a grave act of violence against a woman and her unborn child. This is even so when the woman does not see the truth because of the pressures she may be subjected to, often by the child's father, her parents or friends."
Pope John Paul II died in April 2005. His successor, Pope Benedict XVI, stated shortly after assuming the papacy that he and the Catholic Church will continue to stand firmly against abortion.
Eastern Orthodox Position on Abortion
The Eastern Orthodox position is very similar to the Roman Catholic position: life begins at conception, and abortion is the taking of a human life. Orthodox doctrine maintains that is possible, although difficult, to make a case for abortion in situations involving the rape of a young girl or endangerment of the mother's life.
Protestant Position on Abortion
More than one thousand denominations of Protestantism exist today. Until the late 1960s almost all Protestant churches opposed abortion. However, the changing social climate, as well as the U.S. Supreme Court decision in Roe v. Wade in 1973, which legalized abortion in the United States, spurred a change in Protestant positions on abortion.
Since 1970 the Presbyterian Church has supported free and open access to abortion without legal restriction. At about the same time, the United Methodists, the Lutheran Church in America, the United Church of Christ, the Disciples of Christ, and the Southern Baptist Convention adopted policies allowing abortion as a decision of the woman or the couple. In 1980 the Southern Baptist Convention began to reverse its stance, first by opposing the use of tax money to fund abortions. By the late 1980s the Southern Baptist Convention made their opposition to abortion, except to prevent the death of the mother, a firm policy. Many evangelical, fundamentalist, and independent Bible churches are also against abortion. However, many Protestant denominations still support open access to abortion.
ISLAMIC POSITION ON ABORTION
Islam has more than one billion followers worldwide. According to the 2001 American Religious Identification Survey, Muslim and Islamic Americans make up 0.5% of the U.S. population. The Qur'an (Koran), which Muslims believe to contain God's revelations to Muhammad (c. 570–632 c.e.), describes the development of the fetus:
O Mankind! If ye are in doubt concerning the Resurrection, then lo! We have created you from dust, then from a drop of seed, then from a clot, then from a little lump of flesh shapely and shapeless, that We may make (it) clear for you. And We cause what We will to remain in the wombs for an appointed time, and afterward We bring you forth as infants. (Qur'an 22:5, as translated by Mohammed M. Pickthall in The Meaning of the Glorious Qur'an, Beltsville, MD: Amana, 1999)
The Qur'an teaches that fetal development is divided into three stages, each forty days long. At the end of these stages, the soul enters the fetus. Muslims, who belong to various groups, differ in their beliefs as to when—or if—abortion is allowed. Some sects believe it is permissible to have an abortion before ensoulment, whereas others argue that God forbids the killing of both the born and unborn, even those who have not received a soul. They claim the Qur'an specifically teaches, "They are losers who besottedly have slain their children without knowledge, and have forbidden that which Allah bestowed upon them" (6:140). However, the followers of Islam generally agree that abortion is acceptable to save the mother's life.
JEWISH POSITION ON ABORTION
According to the American Religious Identification Survey, Jewish Americans make up 1.3% of the U.S. population. Like Islam, Judaism has no one position on abortion. In the United States most Jews belong to one of three groups: Orthodox, Conservative, or Reform Judaism. Reform and Conservative Jews generally believe that abortion is the choice of the woman. Jewish law does not recognize a fetus, or even an infant younger than thirty days old, as having legal rights. The laws of mourning do not apply to an expelled fetus or a child who does not survive to his thirtieth day. The biblical text that is the basis for this states, "If a man strikes and wounds a pregnant woman so that her fruit be expelled, but no harm befall her, then shall he be fined as her husband shall assess, and the matter placed before the judges. But if harm befall her, then thou shalt give life for life" (Exodus 21:22).
The Mishnah is the code of Jewish law that forms the basis of the Talmud, the most definitive statement of Jewish law. The Mishnah, which dates back to the second century b.c.e., states, "If a woman is having difficulty in giving birth, it is permitted to cut up the child inside her womb and take it out limb by limb because her life takes precedence. However, if the greater part of the child has come out, it must not be touched, because one life must not be taken to save another."
Moses Maimonides (1135–1204), a rabbi, a doctor, and one of the greatest Jewish philosophers, wrote that abortion was permitted if it would ease a mother's illness, even if the illness was not life threatening. Other scholars, however, have differed, saying abortion was permitted only to save the mother's life. During the Holocaust (1939–45) Jewish women who became pregnant were encouraged by their rabbis to abort because the Germans had declared that all pregnant Jewish women would be killed.
Orthodox Judaism takes a restrictive position on abortion, teaching that a fetus is an organic part of the mother and, as such, does not have legal status. Nonetheless, termination of a pregnancy is strongly condemned on moral grounds. Although a mother's life takes precedence over the unborn, Orthodox Jews believe that the fetus, particularly after the fortieth day from conception, has a right to life that cannot be denied. Cases of rape or fetal deformity do not give a mother permission to terminate a pregnancy unless they are a threat to her mental health (for instance, if the mother becomes suicidal as a result of the pregnancy).
THE BRITISH TRADITION
American legal tradition has developed from the British tradition. Until England broke away from the Roman Catholic Church in the fifteenth century, it had observed the Church's laws. Henry de Bracton (c. 1210–68), the father of English common law, was the first to mention abortion in English law. (The English common law was a body of laws based on judicial precedents, or court decisions and opinions, rather than on written laws.) Greatly influenced by Church law and theologians, Bracton wrote in De Legibus Angliae, "If there is anyone who has struck a pregnant woman or has given poison to her, whereby he has caused an abortion, if the fetus be already formed or animated and especially if animated, he commits a homicide."
When Sir Edward Coke wrote The Institutes of the Laws of England four hundred years later (in the early 1600s), the law had changed. "If a woman be quick with a childe," Coke wrote, "and by a potion or otherwise killeth it in her womb or if a man beat her, whereby the child dieth in her body and she is delivered of a dead child, this is a great misprision (misdemeanor) and no murder; but if the child be born alive and dieth of poison, battery, or other cause, this is murder." "Quickening" refers to the first time the mother feels the fetus moving in the womb. It often occurs about the sixteenth to eighteenth week of pregnancy.
A century later Sir William Blackstone, in his Commentaries on the Laws of England (1765), upheld Coke's interpretation that it was a serious misdemeanor if the child was killed in the womb and murder if it was killed after birth. Despite the observations of Coke and Blackstone, abortion was not a criminal offense in England from 1327 to 1803.
Nineteenth century British law prohibited abortion. The first written statute in England against abortion was the Miscarriage of Women Act of 1803 (also known as Lord Ellenborough's Act), which affirmed punishment for the administration of drugs to induce abortion. The punishment for abortion before quickening included exile, whipping, or imprisonment. The punishment for abortion after quickening was death. However, after the abolition of the death penalty in 1837, abortion both before and after quickening was considered a felony with similar punishments.
In 1861 Parliament passed the Offences against The Person Act. It stated the following:
Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman … shall be guilty of felony, and being convicted thereof shall be liable … to be kept in penal servitude for life.
In addition, any person who assisted another in obtaining an abortion was guilty of a misdemeanor and could receive a three-year prison sentence.
In 1929 Parliament enacted the Infant Life Preservation Act, supplementing the Offenses against the Person Act. This Act stated that an abortion, particularly of a viable (able to survive outside the womb) fetus, was unlawful except when it could be proved to have been done in good faith to save the mother's life. The passage of the Infant Life Preservation Act was the first time that written English law no longer regarded abortion as a felony if performed to save the life of the mother. In addition, it considered abortion of an inviable fetus to be possibly lawful and stated that twenty-eight weeks was the age at which a fetus must be presumed to be viable.
In 1938 a health exception was added to the Offenses against the Person Act of 1861. A fourteen-year-old girl who was raped and became pregnant went to a London physician, Dr. Aleck Bourne, for an abortion. The doctor performed the abortion free of charge and then reported it to the authorities. In Rex v. Bourne Justice MacNaghten noted that the threat to life also involved health and that childbirth might have threatened the young girl's mental health. He instructed the jury to vote for the physician's acquittal if the jurors believed the abortion would preserve the girl's mental health. The jury acquitted. More than a legal precedent, the case became a rallying cry for advocates of liberalizing abortion laws.
In the spring of 1968, following a long and bitter struggle, the Abortion Act of 1967 went into effect. This law permitted abortion if two physicians had determined that the pregnancy threatened the mental and physical health of the mother or that the potential child would suffer serious physical or mental deformities. Thus, the abortion decision was placed in the hands of physicians and not the pregnant woman.
The next change in British abortion laws occurred in 1990. The British House of Commons voted to cut the legal time limit for abortions from twenty-eight to twenty-four weeks of pregnancy, but it also allowed abortions after that upper limit in cases of fetal handicap or "grave permanent injury to the physical and mental health of the pregnant woman." In 1991 the drug mifepristone (also known as RU-486) was approved for medical abortions of up to nine weeks.
There is still debate in England regarding the abortion laws there. Many groups support legal abortion while other groups support reducing the availability of abortion or banning it altogether.
THE AMERICAN EXPERIENCE
In colonial America midwives, not doctors, helped mothers deliver their children. In most cases, however, midwives were forbidden to perform abortions. For example, in 1716, New York City laws licensing midwives required them to swear, among other things, not to "give any Counsel or Administer any Herb, Medicine or Potion, or any other thing to any Woman being with Child whereby She Should Destroy or Miscarry or that she goeth withal before her time."
This and other similar statutes were part of common law. They were enacted to prevent women from dying from the poisons used to terminate pregnancies, and they remained in effect until the American Revolution. In postrevolutionary America, abortion before quickening was legal.
The First Laws
The first abortion laws in the United States were based on English common law, as described by Coke and Blackstone. In 1821 Connecticut passed the first abortion law. Although it was patterned after the British 1803 Miscarriage of Women Act, which addressed all forms of abortion, the Connecticut statute addressed postquickening abortion only, declaring it to be a felony.
In 1828 New York passed a statute with two provisions. The first provision imposed a second-degree manslaughter penalty for a postquickening abortion. A prequickening abortion was considered a misdemeanor. The second provision contained an exception clause permitting "therapeutic" abortion if "necessary to preserve the life of such a mother or shall have been advised by two physicians to be necessary for such a purpose." This New York law served as a model for many statutes prohibiting abortion.
Despite these state statutes regulating abortion, the sale of abortion-inducing drugs continued during the first half of the nineteenth century. The newspapers regularly advertised "Monthly Pills" and new methods to relieve "obstructions of the womb."
In 1871 the New York Times called abortion the "Evil of the Age." The newspaper article stated, "The enormous amount of medical malpractice [a euphemism for abortion] that exists and flourishes, almost unchecked, in the city of New York, is a theme for most serious consideration. Thousands of human beings are thus murdered before they have seen the light of this world" (New York Times, August 23, 1871).
The American Medical Association
The American Medical Association (AMA), founded in 1847, initially campaigned vigorously against abortion. At that time women did not regularly turn to physicians for questions on childbirth and "women problems," but they went instead to untrained people who pretended to have medical skills ("quacks"), friends, pharmacists, and midwives. The AMA was concerned about the dangers that "quack" abortions posed for the women who received them. In addition, the association argued that abortion providers ignored the portion of the Hippocratic Oath that stated, "I will give no deadly medicine to anyone if asked, nor suggest any such counsel."
The simplest solution to this difficult situation was to make abortion illegal. The medical profession saw this as an opportunity to drive quacks out of the field and bolster their own professional image. In addition, medical science recently had recognized that life existed in the fetus before quickening, and many physicians were morally offended by the act of aborting a live fetus.
The AMA was not motivated to criminalize abortion for moral or professional reasons alone. Physicians were swept up by the growing anti-immigrant sentiments of the time. There were concerns that, because of the uncontrolled use of abortion, the proportion of "good Anglo-Saxon stock" was diminishing in the face of increasing immigration, which was predominantly Catholic at the time.
Because of the intense lobbying by the AMA, the period from 1860 to 1880 produced the most important proliferation of antiabortion legislation in American history. States and territories enacted more than forty anti-abortion statutes. Of these, thirteen outlawed abortion for the first time and twenty-one revised old antiabortion laws by making them more stringent. In 1873 the U.S. Congress passed the Comstock Law (named after its chief supporter, Anthony Comstock). Primarily intended to ban the dissemination of pornography and birth control devices, this legislation also prohibited the use of abortion devices.
Abortion continued despite the laws that banned it. In the early twentieth century as many as one in three pregnancies was terminated. (Other forms of birth control were either unreliable or difficult to obtain.) Wealthy women generally found physicians who lent their own interpretations to the allowable exceptions for "therapeutic," or medically necessary, abortions. Poor women, however, usually had to resort to self-induced or illegal abortions, which resulted in countless mutilations and deaths.
In 1934 Congress held hearings to amend the Comstock Law to allow doctors to provide birth control information and prescribe contraceptive devices. However, support was strong for the Comstock Law; defenders of the law held that allowing doctors to provide birth control information was tantamount to the government supporting population control. The Comstock Law remained in effect for nearly four more decades. On January 8, 1971, President Richard Nixon signed a law overturning the ninety-eight-year-old federal anticontraception law. The law was sponsored by Representative George H. W. Bush of Texas.
Over time, advances in medicine enabled most women to carry their pregnancies to term uneventfully. Doctors became hard-pressed to diagnose life-threatening complications so that they might prescribe "therapeutic" abortions. In 1959 the American Law Institute proposed a revised Model Penal Code that gave physicians guidelines with which to work. The Model Penal Code proposed that physicians be permitted to terminate a pregnancy if one of the following conditions was met:
- The pregnancy threatened the life of the mother or would critically impair the mother's physical or mental condition.
- The child would be born with a grave physical or mental defect.
- The pregnancy resulted from rape or incest.
The need for the abortion had to be approved by two physicians. The inclusion of the mother's mental condition became a factor for doctors because the definition of health was beginning to include mental health at that time.
By the 1960s all fifty states and the District of Columbia allowed "therapeutic" abortions to save the life of the mother. Colorado and New Mexico also permitted abortions to prevent serious irreparable harm to the mother. Alabama, Oregon, Massachusetts, and the District of Columbia allowed abortions simply to protect the health of the mother.
Thalidomide and Rubella
No sooner were these laws adopted than their restrictions were tested by events that occurred in the early 1960s. In 1962 Sherri Finkbine of Arizona found out that thalidomide, a drug she had been taking during pregnancy, may have caused deformities in the child she was carrying. European women who used the drug to treat morning sickness were reported to be delivering severely deformed babies. Finkbine decided, on her physician's advice, to have a legal abortion.
After Finkbine publicized her dilemma to warn others of the effects of thalidomide, the hospital refused the abortion for fear of criminal liability. An appeal to the Arizona State Supreme Court was unsuccessful, so the Finkbines flew to Sweden, where the abortion was performed. The Swedish doctor confirmed that the embryo was deformed.
During the early 1960s a rubella (German measles) epidemic swept the United States. Many women who had contracted measles during early pregnancy obtained legal abortions because they thought their fetuses might have birth defects. Many others could not have abortions, either because of legal restrictions or lack of funds. Consequently, they either delivered their children with greater risk of disabilities or had illegal abortions.
In 1967 the AMA called for the liberalization of abortion laws and, in 1970, urged that abortion be limited only by the "sound clinical judgment" of a physician.
WOMEN SPEAK OUT
The thalidomide and rubella episodes stimulated interest in the abortion issue and created empathy for the mothers-to-be who had found themselves in these difficult situations. Furthermore, the 1960s were a period of change—a time when many people questioned accepted beliefs. Americans were discussing human sexuality more openly, which made it easier to talk about abortion. Many sought to put a stop to the deaths and mutilations brought on by unqualified abortionists.
The Laws Begin to Change
Increased interest in the abortion issue caused many states to reform their laws, using the Model Penal Code as a guide. In 1967 Colorado, California, and North Carolina became the first states to liberalize their statutes. By 1973 a total of thirteen states had enacted this type of legislation.
In 1970 Alaska, Hawaii, New York, and Washington chose the radical alternative of legalizing all abortions performed by a physician—up to a legally determined time in the pregnancy. Alaska, Hawaii, and Washington also established state residency requirements and shorter time periods during which women could have abortion on demand. By one vote, New York passed the most liberal law of the four states. It permitted abortion for any reason up to twenty-four weeks of pregnancy. Beyond that point, an abortion could only be performed to save the mother's life.
In 1972 the American Bar Association approved the Uniform Abortion Act as a model for all state statutes. It was based on the New York law. That same year the President's Commission on Population Growth and the American Future, headed by John D. Rockefeller III, released its final report, which recommended that "present state laws restricting abortion be liberalized along the lines of the New York statute" (Center for Research on Population and Security, The Rockefeller Commission Report, http://www.population-security.org/rockefeller/017_recommendations.htm).
Meanwhile, as legislatures continued to reexamine their state abortion laws, state and federal courts were beginning to declare state abortion laws unconstitutional because they were vague and interfered with a woman's right to privacy. Many thousands of women traveled to states where abortion had become legal to obtain an abortion. The New York State Department of Health reported that between July 1, 1970, and December 31, 1972, more than three hundred thousand women traveled to New York to get abortions. Many states watched to see what would happen in New York, Alaska, Hawaii, and Washington, and everyone awaited the legal clarification that inevitably would have to come from the U.S. Supreme Court. It came on January 22, 1973, in the historic Roe v. Wade decision. Chapter 2 describes that and other U.S. Supreme Court decisions on abortion.
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