Abortion and Law Research Paper

Classical Attitudes and Canon Law

Abortion attitudes have fluctuated over time and across countries. It was extensively performed in the ancient world for a variety of reasons, as was infanticide. The wife who induces an abortion to defy her husband or conceal adultery was penalized under Roman law; the wrong was not in killing the child, but in depriving the husband of his right to choose whether or not to do so. Both Plato and Aristotle viewed abortion and infanticide as population control measures. 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 assertion is predicated on the widespread premodern notion that a fetus does not begin to life until after conception. The precise moment was a point of contention. According to Aristotle, it is approximately forty days after conception for a male fetus and ninety days after conception for a female fetus. According to a later Roman perspective, these two seasons were forty and eighty days long, respectively. Until then, it was believed that the fetus was an inanimate, inert part of the pregnant woman’s body, and therefore its destruction could not be considered homicide. And even after “animation,” prevalent opinion in Greco-Roman periods permitted abortion, just as infanticide after birth was tolerated.

The Christian church has consistently opposed abortion and infanticide on the grounds of the sanctity of human life; in the case of abortion, its relationship with sexual licentiousness added to its condemnation. However, in deciding when the soul enters the body, early theologians were influenced by classical theories on animation. There was a distinction made between (1) abortion involving an inanimate or “unformed” fetus, which was regarded, like contraception, as an act that prevented the emergence of life, and (2) abortion involving an animate, “formed,” or “vivified” fetus, which amounted to the taking of an already-born life. While this distinction was not universally understood, it was adopted into medieval law, both canon and civil. However, substantial uncertainty existed over the date of animation or “ensoulment”. Between the fifteenth and sixteenth centuries, canon lawyers gradually established the moment at forty days after conception for male fetuses and eighty days after conception for female fetuses, as in Roman times. This theory came under attack in the seventeenth and eighteenth centuries, as Aristotelian biology began to lose favor. However, it was not until the nineteenth century (as secular abortion laws became increasingly restricted) that the Church officially declared that all abortion, at any stage of fetal development, should be considered homicide.

English Law

Meanwhile, the uncertainty of canon lawyers allowed English law to infuse the concept of animation with its own flavor. St. Thomas Aquinas stated in the thirteenth century that life is manifested primarily through two types of actions: knowledge and movement. It could be assumed that when the unborn infant first moves or stirs in the womb, the animus, soul, or life, enters the infant’s body. This became the law of England. “Quickening” (literally, “coming to life”) was held to occur not at a predetermined time after conception, but at the first detection of fetal movement—an event that varies with each pregnancy but typically occurs 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.

While Bracton stated that abortion of a quickening fetus was homicide, other writers maintained that it could not be considered homicide under common law. Almost every major writer on English criminal law, from William Staunford and William Lambard in the sixteenth century to Edward Coke and Matthew Hale in the seventeenth century, to William Hawkins and William Blackstone in the eighteenth century, reiterates the proposition that abortion cannot be homicide. Homicide was acknowledged to require the victim’s preceding birth. According to Hale, a woman may be prosecuted with murder if she dies as a result of the abortion. According to Coke, murder may also be charged if a botched abortion injures a fetus that is then born alive and dies from its prenatal injuries. However, if a fetus, even a quickening fetus, is killed in the womb, resulting in stillbirth, the crime is not considered homicide under 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.

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 overrule Roe by constitutional amendment, or by packing the Supreme Court, so far have failed. The Court did depart from Roe and nearly overruled 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-fourhour 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 ‘‘prolife’’ 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 deeplyheld beliefs about the proper role and responsibility of women in the family and in society.

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