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Footnotes | Concurring Opinion: Justice Stewart | Dissenting Opinion: Justice Rehnquist
V
THE PRINCIPAL THRUST OF APPELLANT'S ATTACK ON THE TEXAS STATUTES IS THAT
THEY IMPROPERLY INVADE A RIGHT, SAID TO BE POSSESSED BY THE PREGNANT
WOMAN, TO CHOOSE TO TERMINATE HER PREGNANCY. APPELLANT WOULD DISCOVER
THIS RIGHT IN THE CONCEPT OF PERSONAL "LIBERTY" EMBODIED IN THE
FOURTEENTH AMENDMENT'S DUE PROCESS CLAUSE; OR IN PERSONAL, MARITAL,
FAMILIAL, AND SEXUAL PRIVACY SAID TO BE PROTECTED BY THE BILL OF RIGHTS
OR ITS PENUMBRAS, SEE GRISWOLD V. CONNECTICUT, 381 U.S. 479 (1965);
EISENSTADT V. BAIRD, 405 U.S. 438 (1972); ID., AT 460 (WHITE, J.,
CONCURRING IN RESULT); OR AMONG THOSE RIGHTS RESERVED TO THE PEOPLE BY
THE NINTH AMENDMENT, GRISWOLD V. CONNECTICUT, 381 U.S.,AT 486 (GOLDBERG,
J., CONCURRING). BEFORE ADDRESSING THIS CLAIM, WE FEEL IT DESIRABLE
BRIEFLY TO SURVEY, IN SEVERAL ASPECTS, THE HISTORY OF ABORTION, FOR SUCH
INSIGHT AS THAT HISTORY MAY AFFORD US, AND THEN TO EXAMINE THE STATE
PURPOSES AND INTERESTS BEHIND THE CRIMINAL ABORTION LAWS.
VI
IT PERHAPS IS NOT GENERALLY APPRECIATED THAT THE RESTRICTIVE CRIMINAL
ABORTION LAWS IN EFFECT IN A MAJORITY OF STATES TODAY ARE OF RELATIVELY
RECENT VINTAGE. THOSE LAWS, GENERALLY PROSCRIBING ABORTION OR ITS
ATTEMPT AT ANY TIME DURING PREGNANCY EXCEPT WHEN NECESSARY TO PRESERVE
THE PREGNANT WOMAN'S LIFE, ARE NOT OF ANCIENT OR EVEN OF COMMON-LAW
ORIGIN. INSTEAD, THEY DERIVE FROM STATUTORY CHANGES EFFECTED, FOR THE
MOST PART, IN THE LATTER HALF OF THE 19TH CENTURY. 1. ANCIENT
ATTITUDES. THESE ARE NOT CAPABLE OF PRECISE DETERMINATION. WE ARE TOLD
THAT AT THE TIME OF THE PERSIAN EMPIRE ABORTIFACIENTS WERE KNOWN AND THAT
CRIMINAL ABORTIONS WERE SEVERELY PUNISHED. /8/ WE ARE ALSO TOLD,
HOWEVER, THAT ABORTION WAS PRACTICED IN GREEK TIMES AS WELL AS IN THE
ROMAN ERA, /9/ AND THAT "IT WAS RESORTED TO WITHOUT SCRUPLE." /10/ THE
EPHESIAN, SORANOS, OFTEN DESCRIBED AS THE GREATEST OF THE ANCIENT
GYNECOLOGISTS, APPEARS TO HAVE BEEN GENERALLY OPPOSED TO ROME'S
PREVAILING FREE-ABORTION PRACTICES. HE FOUND IT NECESSARY TO THINK FIRST
OF THE LIFE OF THE MOTHER, AND HE RESORTED TO ABORTION WHEN, UPON THIS
STANDARD, HE FELT THE PROCEDURE ADVISABLE. /11/ GREEK AND ROMAN LAW
AFFORDED LITTLE PROTECTION TO THE UNBORN. IF ABORTION WAS PROSECUTED IN
SOME PLACES, IT SEEMS TO HAVE BEEN BASED ON A CONCEPT OF A VIOLATION OF
THE FATHER'S RIGHT TO HIS OFFSPRING. ANCIENT RELIGION DID NOT BAR
ABORTION. /12/
2. THE HIPPOCRATIC OATH. WHAT THEN OF THE FAMOUS OATH THAT HAS STOOD SO
LONG AS THE ETHICAL GUIDE OF THE MEDICAL PROFESSION AND THAT BEARS THE
NAME OF THE GREAT GREEK (460 (?)-377 (?) B.C.), WHO HAD BEEN DESCRIBED
AS THE FATHER OF MEDICINE, THE "WISEST AND THE GREATEST PRACTITIONER OF
HIS ART," AND THE "MOST IMPORTANT AND MOST COMPLETE MEDICAL PERSONALITY
OF ANTIQUITY," WHO DOMINATED THE MEDICAL SCHOOLS OF HIS TIME, AND WHO
TYPIFIED THE SUM OF THE MEDICAL KNOWLEDGE OF THE PAST? /13/ THE OATH
VARIES SOMEWHAT ACCORDING TO THE PARTICULAR TRANSLATION, BUT IN ANY
TRANSLATION THE CONTENT IS CLEAR: "I WILL GIVE NO DEADLY MEDICINE TO
ANYONE IF ASKED, NOR SUGGEST ANY SUCH COUNSEL; AND IN LIKE MANNER I WILL
NOT GIVE TO A WOMAN A PESSARY TO PRODUCE ABORTION," /14/ OR "I WILL
NEITHER GIVE A DEADLY DRUG TO ANYBODY IF ASKED FOR IT, NOR WILL I MAKE A
SUGGESTION TO THIS EFFECT. SIMILARLY, I WILL NOT GIVE TO A WOMAN AN
ABORTIVE REMEDY." /15/
ALTHOUGH THE OATH IS NOT MENTIONED IN ANY OF THE PRINCIPAL BRIEFS IN THIS
CASE OR IN DOE V. BOLTON, POST, P. 179, IT REPRESENTS THE APEX OF THE
DEVELOPMENT OF STRICT ETHICAL CONCEPTS IN MEDICINE, AND ITS INFLUENCE
ENDURES TO THIS DAY. WHY DID NOT THE AUTHORITY OF HIPPOCRATES DISSUADE
ABORTION PRACTICE IN HIS TIME AND THAT OF ROME? THE LATE DR. EDELSTEIN
PROVIDES US WITH A THEORY: /16/ THE OATH WAS NOT UNCONTESTED EVEN IN
HIPPOCRATES' DAY; ONLY THE PYTHAGOREAN SCHOOL OF PHILOSOPHERS FROWNED
UPON THE RELATED ACT OF SUICIDE. MOST GREEK THINKERS, ON THE OTHER HAND,
COMMENDED ABORTION, AT LEAST PRIOR TO VIABILITY. SEE PLATO, REPUBLIC, V,
461; ARISTOTLE, POLITICS, VII, 1335B 25. FOR THE PYTHAGOREANS, HOWEVER,
IT WAS A MATTER OF DOGMA. FOR THEM THE EMBRYO WAS ANIMATE FROM THE
MOMENT OF CONCEPTION, AND ABORTION MEANT DESTRUCTION OF A LIVING BEING.
THE ABORTION CLAUSE OF THE OATH, THEREFORE, "ECHOES PYTHAGOREAN
DOCTRINES," AND "(IN NO OTHER STRATUM OF GREEK OPINION WERE SUCH VIEWS
HELD OR PROPOSED IN THE SAME SPIRIT OF UNCOMPROMISING AUSTERITY." /17/
DR. EDELSTEIN THEN CONCLUDES THAT THE OATH ORIGINATED IN A GROUP
REPRESENTING ONLY A SMALL SEGMENT OF GREEK OPINION AND THAT IT CERTAINLY
WAS NOT ACCEPTED BY ALL ANCIENT PHYSICIANS. HE POINTS OUT THAT MEDICAL
WRITINGS DOWN TO GALEN (A.D. 130-200) "GIVE EVIDENCE OF THE VIOLATION OF
ALMOST EVERY ONE OF ITS INJUNCTIONS." /18/ BUT WITH THE END OF
ANTIQUITY A DECIDED CHANGE TOOK PLACE. RESISTANCE AGAINST SUICIDE AND
AGAINST ABORTION BECAME COMMON. THE OATH CAME TO BE POPULAR. THE
EMERGING TEACHINGS OF CHRISTIANITY WERE IN AGREEMENT WITH THE PYTHAGOREAN
ETHIC. THE OATH "BECAME THE NUCLEUS OF ALL MEDICAL ETHICS" AND "WAS
APPLAUDED AS THE EMBODIMENT OF TRUTH." THUS, SUGGESTS DR. EDELSTEIN, IT
IS "A PYTHAGOREAN MANIFESTO AND NOT THE EXPRESSION OF AN ABSOLUTE
STANDARD OF MEDICAL CONDUCT." /19/
THIS, IT SEEMS TO US, IS A SATISFACTORY AND ACCEPTABLE EXPLANATION OF THE
HIPPOCRATIC OATH'S APPARENT RIGIDITY. IT ENABLES US TO UNDERSTAND, IN
HISTORICAL CONTEXT, A LONG-ACCEPTED AND REVERSED STATEMENT OF MEDICAL
ETHICS.
3. THE COMMON LAW. IT IS UNDISPUTED THAT AT COMMON LAW, ABORTION
PERFORMED BEFORE "QUICKENING"-- THE FIRST RECOGNIZABLE MOVEMENT OF THE
FETUS IN UTERO, APPEARING USUALLY FROM THE 16TH TO THE 18TH WEEK OF
PREGNANCY /20/ -- WAS NOT AN INDICTABLE OFFENSE. /21/ THE ABSENCE OF A
COMMON-LAW CRIME FOR PRE-QUICKENING ABORTION APPEARS TO HAVE DEVELOPED
FROM A CONFLUENCE OF EARLIER PHILOSOPHICAL, THEOLOGICAL, AND CIVIL AND
CANON LAW CONCEPTS OF WHEN LIFE BEGINS. THESE DISCIPLINES VARIOUSLY
APPROACHED THE QUESTION IN TERMS OF THE POINT AT WHICH THE EMBRYO OR
FETUS BECAME "FORMED" OR RECOGNIZABLY HUMAN, OR IN TERMS OF WHEN A
"PERSON" CAME INTO BEING, THAT IS, INFUSED WITH A "SOUL" OR "ANIMATED."
A LOOSE CONSENSUS EVOLVED IN EARLY ENGLISH LAW THAT THESE EVENTS OCCURRED
AT SOME POINT BETWEEN CONCEPTION AND LIVE BIRTH. /22
THIS WAS "MEDIATE ANIMATION." ALTHOUGH CHRISTIAN THEOLOGY AND THE CANON
LAW CAME TO FIX THE POINT OF ANIMATION AT 40 DAYS FOR A MALE AND 80 DAYS
FOR A FEMALE, A VIEW THAT PERSISTED UNTIL THE 19TH CENTURY, THERE WAS
OTHERWISE LITTLE AGREEMENT ABOUT THE PRECISE TIME OF FORMATION OR
ANIMATION. THERE WAS AGREEMENT, HOWEVER, THAT PRIOR TO THIS POINT THE
FETUS WAS TO BE REGARDED AS PART OF THE MOTHER, AND ITS DESTRUCTION,
THEREFORE, WAS NOT HOMICIDE. DUE TO CONTINUED UNCERTAINTY ABOUT THE
PRECISE TIME WHEN ANIMATION OCCURRED, TO THE LACK OF ANY EMPIRICAL BASIS
FOR THE 40-80-DAY VIEW, AND PERHAPS TO AQUINAS' DEFINITION OF MOVEMENT AS
ONE OF THE TWO FIRST PRINCIPLES OF LIFE, BRACTON FOCUSED UPON QUICKENING
AS THE CRITICAL POINT. THE SIGNIFICANCE OF QUICKENING WAS ECHOED BY
LATER COMMON-LAW SCHOLARS AND FOUND ITS WAY INTO THE RECEIVED COMMON LAW
IN THIS COUNTRY.
WHETHER ABORTION OF A QUICK FETUS WAS A FELONY AT COMMON LAW, OR EVEN A
LESSER CRIME, IS STILL DISPUTED. BRACTON, WRITING EARLY IN THE 13TH
CENTURY, THOUGH IT HOMICIDE. /23/ BUT THE LATER AND PREDOMINANT VIEW,
FOLLOWING THE GREAT COMMON-LAW SCHOLARS, HAS BEEN THAT IT WAS, AT MOST, A
LESSER OFFENSE. IN A FREQUENTLY CITED PASSAGE, COKE TOOK THE POSITION
THAT ABORTION OF A WOMAN "QUICK WITH CHILDE" IS "A GREAT MISPRISION, AND
NO MURDER." /24/ BLACKSTONE FOLLOWED, SAYING THAT WHILE ABORTION AFTER
QUICKENING HAD ONCE BEEN CONSIDERED MANSLAUGHTER (THOUGH NOT MURDER),
"MODERN LAW" TOOK A LESS SEVERE VIEW. /25/ A RECENT REVIEW OF THE
COMMON-LAW PRECEDENTS ARGUES, HOWEVER, THAT THOSE PRECEDENTS CONTRADICT
COKE AND THAT EVEN POST-QUICKENING ABORTION WAS NEVER ESTABLISHED AS A
COMMON-LAW CRIME. /26/ THIS IS OF SOME IMPORTANCE BECAUSE WHILE MOST
AMERICAN COURTS RULED, IN HOLDING OR DICTUM, THAT ABORTION OF AN
UNQUICKENED FETUS WAS NOT CRIMINAL UNDER THEIR RECEIVED COMMON LAW, /27/
OTHERS FOLLOWED COKE IN STATING THAT ABORTION OF A QUICK FETUS WAS A
"MISPRISION," A TERM THEY TRANSLATED TO MEAN "MISDEMEANOR." /28/ THAT
THEIR RELIANCE ON COKE ON THIS ASPECT OF THE LAW WAS UNCRITICAL AND,
APPARENTLY IN ALL THE REPORTED CASES, DICTUM (DUE PROBABLY TO THE PAUCITY
OF COMMON-LAW PROSECUTIONS FOR POST QUICKENING ABORTION), MAKES IT NOW
APPEAR DOUBTFUL THAT ABORTION WAS EVER FIRMLY ESTABLISHED AS A COMMON-LAW
CRIME EVEN WITH RESPECT TO THE DESTRUCTION OF A QUICK FETUS.
4. THE ENGLISH STATUTORY LAW. ENGLAND'S FIRST CRIMINAL ABORTION
STATUTE, LORD ELLENBOROUGH'S ACT, 43 GEO. 3, C. 58, CAME IN 1803. IT
MADE ABORTION OF A QUICK FETUS, SEC. 1, A CAPITAL CRIME, BUT IN SEC. 2 IT
PROVIDED LESSER PENALTIES FOR THE FELONY OF ABORTION BEFORE QUICKENING,
AND THUS PRESERVED THE "QUICKENING" DISTINCTION. THIS CONTRAST WAS
CONTINUED IN THE GENERAL REVISION OF 1828, 9 GEO. 4, C. 31, SEC. 13. IT
DISAPPEARED, HOWEVER, TOGETHER WITH THE DEATH PENALTY, IN 1837, 7 WILL.
4 & 1 VICT.,C. 85, SEC. 6, AND DID NOT REAPPEAR IN THE OFFENSES AGAINST
THE PERSON ACT OF 1861, 24 & 25 VICT.,C. 100, SEC. 59, THAT FORMED THE
CORE OF ENGLISH ANTI-ABORTION LAW UNTIL THE LIBERALIZING REFORMS OF 1967.
IN 1929, THE INFANT LIFE (PRESERVATION) ACT, 19 & 20 GEO. 5, C. 34, CAME
INTO BEING. ITS EMPHASIS WAS UPON THE DESTRUCTION OF "THE LIFE OF A
CHILD CAPABLE OF BEING BORN ALIVE." IT MADE A WILLFUL ACT PERFORMED WITH
THE NECESSARY INTENT A FELONY. IT CONTAINED A PROVISO THAT ONE WAS NOT
TO BE FOUND GUILTY OF THE OFFENSE "UNLESS IT IS PROVED THAT THE ACT WHICH
CAUSED THE DEATH OF THE CHILD WAS NOT DONE IN GOOD FAITH FOR THE PURPOSE
ONLY OF PRESERVING THE LIFE OF THE MOTHER."
A SEEMINGLY NOTABLE DEVELOPMENT IN THE ENGLISH LAW WAS THE CASE OF REX V.
BOURNE, (1939) 1 K.B. 687. THIS CASE APPARENTLY ANSWERED IN THE
AFFIRMATIVE THE QUESTION WHETHER AN ABORTION NECESSARY TO PRESERVE THE
LIFE OF THE PREGNANT WOMAN WAS EXCEPTED FROM THE CRIMINAL PENALTIES OF
THE 1861 ACT. IN HIS INSTRUCTIONS TO THE JURY, JUDGE MACNAGHTEN REFERRED
TO THE 1929 ACT, AND OBSERVED THAT THAT ACT RELATED TO "THE CASE WHERE A
CHILD IS KILLED BY A WILLFUL ACT AT THE TIME WHEN IT IS BEING DELIVERED
IN THE ORDINARY COURSE OF NATURE." ID., AT 691. HE CONCLUDED THAT THE
1861 ACT'S USE OF THE WORD "UNLAWFULLY," IMPORTED THE SAME MEANING
EXPRESSED BY THE SPECIFIC PROVISO IN THE 1929 ACT, EVEN THOUGH THERE WAS
NO MENTION OF PRESERVING THE MOTHER'S LIFE IN THE 1861 ACT. HE THEN
CONSTRUED THE PHRASE "PRESERVING THE LIFE OF THE MOTHER" BROADLY, THAT
IS, "IN A REASONABLE SENSE," TO INCLUDE A SERIOUS AND PERMANENT THREAT TO
THE MOTHER'S HEALTH, AND INSTRUCTED THE JURY TO ACQUIT DR. BOURNE IF IT
FOUND HE HAD ACTED IN A GOOD-FAITH BELIEF THAT THE ABORTION WAS NECESSARY
FOR THIS PURPOSE. ID., AT 693-694. THE JURY DID ACQUIT.
RECENTLY, PARLIAMENT ENACTED A NEW ABORTION LAW. THIS IS THE ABORTION
ACT OF 1967, 15 & 16 ELIZ. 2, C. 87. THE ACT PERMITS A LICENSED
PHYSICIAN TO PERFORM AN ABORTION WHERE TWO OTHER LICENSED PHYSICIANS
AGREE (A) "THAT THE CONTINUANCE OF THE PREGNANCY WOULD INVOLVE RISK TO
THE LIFE OF THE PREGNANT WOMAN, OR OF INJURY TO THE PHYSICAL OR MENTAL
HEALTH OF THE PREGNANT WOMAN OR ANY EXISTING CHILDREN OF HER FAMILY,
GREATER THAN IF THE PREGNANCY WERE TERMINATED," OR (B) "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." THE
ACT ALSO PROVIDES THAT, IN MAKING THIS DETERMINATION, "ACCOUNT MAY BE
TAKEN OF THE PREGNANT WOMAN'S ACTUAL OR REASONABLY FORESEEABLE
ENVIRONMENT." IT ALSO PERMITS A PHYSICIAN, WITHOUT THE CONCURRENCE OF
OTHERS, TO TERMINATE A PREGNANCY WHERE HE IS OF THE GOOD-FAITH OPINION
THAT THE ABORTION "IS IMMEDIATELY NECESSARY TO SAVE THE LIFE OR TO
PREVENT GRAVE PERMANENT INJURY TO THE PHYSICAL OR MENTAL HEALTH OF THE
PREGNANT WOMAN."
5. THE AMERICAN LAW. IN THIS COUNTRY, THE LAW IN EFFECT IN ALL BUT A
FEW STATES UNTIL MID-19TH CENTURY WAS THE PRE-EXISTING ENGLISH COMMON
LAW. CONNECTICUT, THE FIRST STATE TO ENACT ABORTION LEGISLATION, ADOPTED
IN 1821 THAT PART OF LORD ELLENBOROUGH'S ACT THAT RELATED TO A WOMAN
"QUICK WITH CHILD." /29/ THE DEATH PENALTY WAS NOT IMPOSED. ABORTION
BEFORE QUICKENING WAS MADE A CRIME IN THAT STATE ONLY IN 1860. /30/ IN
1828, NEW YORK ENACTED LEGISLATION /31/ THAT, IN TWO RESPECTS, WAS TO
SERVE AS A MODEL FOR EARLY ANTI-ABORTION STATUTES. FIRST, WHILE BARRING
DESTRUCTION OF AN UNQUICKENED FETUS AS WELL AS A QUICK FETUS, IT MADE THE
FORMER ONLY A MISDEMEANOR, BUT THE LATTER SECOND-DEGREE MANSLAUGHTER.
SECOND, IT INCORPORATED A CONCEPT OF THERAPEUTIC ABORTION BY PROVIDING
THAT AN ABORTION WAS EXCUSED IF IT "SHALL HAVE BEEN NECESSARY TO PRESERVE
THE LIFE OF SUCH MOTHER, OR SHALL HAVE BEEN ADVISED BY TWO PHYSICIANS TO
BE NECESSARY FOR SUCH PURPOSE." BY 1840, WHEN TEXAS HAD RECEIVED THE
COMMON LAW, /32/ ONLY EIGHT AMERICAN STATES HAD STATUTES DEALING WITH
ABORTION. /33/ IT WAS NOT UNTIL AFTER THE WAR BETWEEN THE STATES THAT
LEGISLATION BEGAN GENERALLY TO REPLACE THE COMMON LAW. MOST OF THESE
INITIAL STATUTES DEALT SEVERLY WITH ABORTION AFTER QUICKENING BUT WERE
LENIENT WITH IT BEFORE QUICKENING. MOST PUNISHED ATTEMPTS EQUALLY WITH
COMPLETED ABORTIONS. WHILE MANY STATUTES INCLUDED THE EXCEPTION FOR AN
ABORTION THOUGHT BY ONE OR MORE PHYSICIANS TO BE NECESSARY TO SAVE THE
MOTHER'S LIFE, THAT PROVISION SOON DISAPPEARED AND THE TYPICAL LAW
REQUIRED THAT THE PROCEDURE ACTUALLY BE NECESSARY FOR THAT PURPOSE.
GRADUALLY, IN THE MIDDLE AND LATE 19TH CENTURY THE QUICKENING DISTINCTION
DISAPPEARED FROM THE STATUTORY LAW OF MOST STATES AND THE DEGREE OF THE
OFFENSE AND THE PENALTIES WERE INCREASED. BY THE END OF THE 1950'S, A
LARGE MAJORITY OF THE JURISDICTIONS BANNED ABORTION, HOWEVER AND WHENEVER
PERFORMED, UNLESS DONE TO SAVE OR PRESERVE THE LIFE OF THE MOTHER. /34/
THE EXCEPTIONS, ALABAMA AND THE DISTRICT OF COLUMBIA, PERMITTED ABORTION
TO PRESERVE THE MOTHER'S HEALTH. /35/ THREE STATES PERMITTED ABORTIONS
THAT WERE NOT "UNLAWFULLY" PERFORMED OR THAT WERE NOT "WITHOUT LAWFUL
JUSTIFICATION," LEAVING INTERPRETATION OF THOSE STANDARDS TO THE COURTS.
/36/ IN THE PAST SEVERAL YEARS, HOWEVER, A TREND TOWARD LIBERALIZATION
OF ABORTION STATUTES HAS RESULTED IN ADOPTION, BY ABOUT ONE-THIRD OF THE
STATES, OF LESS STRINGENT LAWS, MOST OF THEM PATTERNED AFTER THE ALI
MODEL PENAL CODE, SEC. 230.3, /37/ SET FORTH AS APPENDIX B TO THE
OPINION IN DOE V. BOLTON, POST, P. 205.
IT IS THUS APPARENT THAT AT COMMON LAW, AT THE TIME OF THE ADOPTION OF
OUR CONSTITUTION, AND THROUGHOUT THE MAJOR PORTION OF THE 19TH CENTURY,
ABORTION WAS VIEWED WITH LESS DISFAVOR THAN UNDER MOST AMERICAN STATUTES
CURRENTLY IN EFFECT. PHRASING IT ANOTHER WAY, A WOMAN ENJOYED A
SUBSTANTIALLY BROADER RIGHT TO TERMINATE A PREGNANCY THAN SHE DOES IN
MOST STATES TODAY. AT LEAST WITH RESPECT TO THE EARLY STAGE OF
PREGNANCY, AND VERY POSSIBLY WITHOUT SUCH A LIMITATION, THE OPPORTUNITY
TO MAKE THIS CHOICE WAS PRESENT IN THIS COUNTRY WELL INTO THE 19TH
CENTURY. EVEN LATER, THE LAW CONTINUED FOR SOME TIME TO TREAT LESS
PUNITIVELY AN ABORTION PROCURED IN EARLY PREGNANCY.
6. THE POSITION OF THE AMERICAN MEDICAL ASSOCIATION. THE ANTI ABORTION
MOOD PREVALENT IN THIS COUNTRY IN THE LATE 19TH CENTURY WAS SHARED BY THE
MEDICAL PROFESSION. INDEED, THE ATTITUDE OF THE PROFESSION MAY HAVE
PLAYED A SIGNIFICANT ROLE IN THE ENACTMENT OF STRINGENT CRIMINAL ABORTION
LEGISLATION DURING THE PERIOD. AN AMA COMMITTEE ON CRIMINAL ABORTION
WAS APPOINTED IN MAY 1857. IT PRESENTED ITS REPORT, 12 TRANS.OF THE
AM.MED.ASSN. 73-78 (1859), TO THE TWELFTH ANNUAL MEETING. THAT REPORT
OBSERVED THAT THE COMMITTEE HAD BEEN APPOINTED TO INVESTIGATE CRIMINAL
ABORTION "WITH A VIEW TO ITS GENERAL SUPPRESSION." IT DEPLORED ABORTION
AND ITS FREQUENCY AND IT LISTED THREE CAUSES OF "THIS GENERAL
DEMORALIZATION":
"THE FIRST OF THESE CAUSES IS A WIDE-SPREAD POPULAR IGNORANCE
OF THE TRUE CHARACTER OF THE CRIME-- A BELIEF, EVEN AMONG MOTHERS
THEMSELVES, THAT THE FOETUS IS NOT ALIVE TILL AFTER THE PERIOD OF
QUICKENING.
"THE SECOND OF THE AGENTS ALLUDED TO IS THE FACT THAT THE
PROFESSION THEMSELVES ARE FREQUENTLY SUPPOSED CARELESS OF FOETAL LIFE .
. . .
"THE THIRD REASON OF THE FRIGHTFUL EXTENT OF THIS CRIME IS FOUND IN
THE GRAVE DEFECTS OF OUR LAWS, BOTH COMMON AND STATUTE, AS REGARDS
THE INDEPENDENT AND ACTUAL EXISTENCE OF THE CHILD BEFORE BIRTH, AS A
LIVING BEING. THESE ERRORS, WHICH ARE SUFFICIENT IN MOST INSTANCES
TO PREVENT CONVICTION, ARE BASED, AND ONLY BASED, UPON MISTAKEN
AND EXPLODED MEDICAL DOGMAS. WITH STRANGE INCONSISTENCY, THE LAW FULLY
ACKNOWLEDGES THE FOETUS IN UTERO AND ITS INHERENT RIGHTS, FOR CIVIL
PURPOSES; WHILE PERSONALLY AND AS CRIMINALLY AFFECTED, IT FAILS TO
RECOGNIZE IT, AND TO ITS LIFE AS YET DENIES ALL PROTECTION." ID.,
AT 75-76.
THE COMMITTEE THEN OFFERED, AND THE ASSOCIATION ADOPTED, RESOLUTIONS
PROTESTING "AGAINST SUCH UNWARRANTABLE DESTRUCTION OF HUMAN LIFE,"
CALLING UPON STATE LEGISLATURES TO REVISE THEIR ABORTION LAWS, AND
REQUESTING THE COOPERATION OF STATE MEDICAL SOCIETIES "IN PRESSING THE
SUBJECT." ID., AT 28, 78. IN 1871 A LONG AND VIVID REPORT WAS
SUBMITTED BY THE COMMITTEE ON CRIMINAL ABORTION. IT ENDED WITH THE
OBSERVATION, "WE HAD TO DEAL WITH HUMAN LIFE. IN A MATTER OF LESS
IMPORTANCE WE COULD ENTERTAIN NO COMPROMISE. AN HONEST JUDGE ON THE
BENCH WOULD CALL THINGS BY THEIR PROPER NAMES. WE COULD DO NO LESS." 22
TRANS.OF THE AM.MED.ASSN. 258 (1871). IT PROFFERED RESOLUTIONS, ADOPTED
BY THE ASSOCIATION, ID., AT 38-39, RECOMMENDING, AMONG OTHER THINGS, THAT
IT "BE UNLAWFUL AND UNPROFESSIONAL FOR ANY PHYSICIAN TO INDUCE ABORTION
OR PREMATURE LABOR, WITHOUT THE CONCURRENT OPINION OF AT LEAST ONE
RESPECTABLE CONSULTING PHYSICIAN, AND THEN ALWAYS WITH A VIEW TO THE
SAFETY OF THE CHILD-- IF THAT BE POSSIBLE," AND CALLING "THE ATTENTION OF
THE CLERGY OF ALL DENOMINATIONS TO THE PERVERTED VIEWS OF MORALITY
ENTERTAINED BY A LARGE CLASS OF FEMALES-- AYE, AND MEN ALSO, ON THIS
IMPORTANT QUESTION."
EXCEPT FOR PERIODIC CONDEMNATION OF THE CRIMINAL ABORTIONIST, NO FURTHER
FORMAL AMA ACTION TOOK PLACE UNTIL 1967. IN THAT YEAR, THE COMMITTEE ON
HUMAN REPRODUCTION URGED THE ADOPTION OF A STATED POLICY OF OPPOSITION TO
INDUCED ABORTION, EXCEPT WHEN THERE IS "DOCUMENTED MEDICAL EVIDENCE" OF A
THREAT TO THE HEALTH OR LIFE OF THE MOTHER, OR THAT THE CHILD "MAY BE
BORN WITH INCAPACITATING PHYSICAL DEFORMITY OR MENTAL DEFICIENCY," OR
THAT A PREGNANCY "RESULTING FROM LEGALLY ESTABLISHED STATUTORY OR
FORCIBLE RAPE OR INCEST MAY CONSTITUTE A THREAT TO THE MENTAL OR PHYSICAL
HEALTH OF THE PATIENT," TWO OTHER PHYSICIANS "CHOSEN BECAUSE OF THEIR
RECOGNIZED PROFESSIONAL COMPETENCE HAVE EXAMINED THE PATIENT AND HAVE
CONCURRED IN WRITING," AND THE PROCEDURE "IS PERFORMED IN A HOSPITAL
ACCREDITED BY THE JOINT COMMISSION ON ACCREDITATION OF HOSPITALS." THE
PROVIDING OF MEDICAL INFORMATION BY PHYSICIANS TO STATE LEGISLATURES IN
THEIR CONSIDERATION OF LEGISLATION REGARDING THERAPEUTIC ABORTION WAS "TO
BE CONSIDERED CONSISTENT WITH THE PRINCIPLES OF ETHICS OF THE AMERICAN
MEDICAL ASSOCIATION." THIS RECOMMENDATION WAS ADOPTED BY THE HOUSE OF
DELEGATES. PROCEEDINGS OF THE AMA HOUSE OF DELEGATES 40-51 (JUNE 1967).
IN 1970, AFTER THE INTRODUCTION OF A VARIETY OF PROPOSED RESOLUTIONS, AND
OF A REPORT FROM ITS BOARD OF TRUSTEES, A REFERENCE COMMITTEE NOTED
"POLARIZATION OF THE MEDICAL PROFESSION ON THIS CONTROVERSIAL ISSUE";
DIVISION AMONG THOSE WHO HAD TESTIFIED; A DIFFERENCE OF OPINION AMONG AMA
COUNCILS AND COMMITTEES; "THE REMARKABLE SHIFT IN TESTIMONY" IN SIX
MONTHS, FELT TO BE INFLUENCED "BY THE RAPID CHANGES IN STATE LAWS AND BY
THE JUDICIAL DECISIONS WHICH TEND TO MAKE ABORTION MORE FREELY
AVAILABLE;" AND A FEELING "THAT THIS TREND WILL CONTINUE." ON JUNE 25,
1970, THE HOUSE OF DELEGATES ADOPTED PREAMBLES AND MOST OF THE
RESOLUTIONS PROPOSED BY THE REFERENCE COMMITTEE. THE PREAMBLES
EMPHASIZED "THE BEST INTERESTS OF THE PATIENT," "SOUND CLINICAL
JUDGMENT," AND "INFORMED PATIENT CONSENT," IN CONTRAST TO "MERE
ACQUIESCENCE TO THE PATIENT'S DEMAND." THE RESOLUTIONS ASSERTED THAT
ABORTION IS A MEDICAL PROCEDURE THAT SHOULD BE PERFORMED BY A LICENSED
PHYSICIAN IN AN ACCREDITED HOSPITAL ONLY AFTER CONSULTATION WITH TWO
OTHER PHYSICIANS AND IN CONFORMITY WITH STATE LAW, AND THAT NO PARTY TO
THE PROCEDURE SHOULD BE REQUIRED TO VIOLATE PERSONALLY HELD MORAL
PRINCIPLES. /38/ PROCEEDINGS OF THE AMA HOUSE OF DELEGATES 220 (JUNE
1970). THE AMA JUDICIAL COUNCIL RENDERED A COMPLEMENTARY OPINION. /39/
7. THE POSITION OF THE AMERICAN PUBLIC HEALTH ASSOCIATION. IN OCTOBER
1970, THE EXECUTIVE BOARD OF THE APHA ADOPTED STANDARDS FOR ABORTION
SERVICES. THESE WERE FIVE IN NUMBER.
"a. RAPID AND SIMPLE ABORTION REFERRAL MUST BE READILY AVAILABLE
THROUGH STATE AND LOCAL PUBLIC HEALTH DEPARTMENTS, MEDICAL SOCIETIES,
OR OTHER NONPROFIT ORGANIZATIONS.
"b. AN IMPORTANT FUNCTION OF COUNSELING SHOULD BE TO SIMPLIFY
AND EXPEDITE THE PROVISION OF ABORTION SERVICES; IT SHOULD NOT
DELAY THE OBTAINING OF THESE SERVICES.
"c. PSYCHIATRIC CONSULTATION SHOULD NOT BE MANDATORY. AS IN THE
CASE OF OTHER SPECIALIZED MEDICAL SERVICES, PSYCHIATRIC CONSULTATION
SHOULD BE SOUGHT FOR DEFINITE INDICATIONS AND NOT ON A ROUTINE BASIS.
"d. A WIDE RANGE OF INDIVIDUALS FROM APPROPRIATELY TRAINED,
SYMPATHETIC VOLUNTEERS TO HIGHLY SKILLED PHYSICIANS MAY QUALIFY AS
ABORTION COUNSELORS.
"e. CONTRACEPTION AND/OR STERILIZATION SHOULD BE DISCUSSED
WITH EACH ABORTION PATIENT." RECOMMENDED STANDARDS FOR ABORTION
SERVICES, 61 AM.J.PUB.HEALTH 396 (1971).
AMONG FACTORS PERTINENT TO LIFE AND HEALTH RISKS ASSOCIATED WITH ABORTION
WERE THREE THAT "ARE RECOGNIZED AS IMPORTANT": 10
"a. THE SKILL OF THE PHYSICIAN,
"b. THE ENVIRONMENT IN WHICH THE ABORTION IS PERFORMED, AND ABOVE
ALL
"c. THE DURATION OF PREGNANCY, AS DETERMINED BY UTERINE SIZE AND
CONFIRMED BY MENSTRUAL HISTORY." ID., AT 397.
IT WAS SAID THAT "A WELL-EQUIPPED HOSPITAL" OFFERS MORE PROTECTION "TO
COPE WITH UNFORESEEN DIFFICULTIES THAN AN OFFICE OR CLINIC WITHOUT SUCH
RESOURCES . . . . THE FACTOR OF GESTATIONAL AGE IS OF OVERRIDING
IMPORTANCE." THUS, IT WAS RECOMMENDED THAT ABORTIONS IN THE SECOND
TRIMESTER AND EARLY ABORTIONS IN THE PRESENCE OF EXISTING MEDICAL
COMPLICATIONS BE PERFORMED IN HOSPITALS AS INPATIENT PROCEDURES. FOR
PREGNANCIES IN THE FIRST TRIMESTER, ABORTION IN THE HOSPITAL WITH OR
WITHOUT OVERNIGHT STAY "IS PROBABLY THE SAFEST PRACTICE." AN ABORTION IN
AN EXTRAMURAL FACILITY, HOWEVER, IS AN ACCEPTABLE ALTERNATIVE "PROVIDED
ARRANGEMENTS EXIST IN ADVANCE TO ADMIT PATIENTS PROMPTLY IF UNFORESEEN
COMPLICATIONS DEVELOP." STANDARDS FOR AN ABORTION FACILITY WERE LISTED.
IT WAS SAID THAT AT PRESENT ABORTIONS SHOULD BE PERFORMED BY PHYSICIANS
OR OSTEOPATHS WHO ARE LICENSED TO PRACTICE AND WHO HAVE "ADEQUATE
TRAINING." ID., AT 398.
8. THE POSITION OF THE AMERICAN BAR ASSOCIATION. AT ITS MEETING IN
FEBRUARY 1972 THE ABA HOUSE OF DELEGATES APPROVED, WITH 17 OPPOSING
VOTES, THE UNIFORM ABORTION ACT THAT HAD BEEN DRAFTED AND APPROVED THE
PRECEDING AUGUST BY THE CONFERENCE OF COMMISSIONERS ON UNIFORM STATE
LAWS. 58 A.B.A.J. 380 (1972). WE SET FORTH THE ACT IN FULL IN THE
MARGIN. /40/ THE CONFERENCE HAS APPENDED AN ENLIGHTENING PREFATORY
NOTE. /41/
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