Abortion Law Before Roe v. Wade
James S. Cole, General Counsel
I. Abortion at Common Law
Long before the settlement of the English colonies on this continent, the common law of England, that is, the law recognized as common to all Englishmen, defined abortion as a crime.1 Common law was recognized and declared by judges, not Parliament. In accord with the limits of biological knowledge of the day, it was believed that there was no life until "quickening," when the movements of the baby could be discerned. Abortion was therefore declared by the earliest authorities a lesser crime than criminal homicide until quickening, and a felony thereafter.2 Much later, in the 1600's, there was some hesitation to prosecute abortions in which the child died in the womb, as opposed to those in which the baby was expelled before dying, because of the problems of proving that the act of beating the mother's abdomen or giving her a poison actually caused the death of the child. However, there was no doubt that abortion of a woman "quick or great with child" was unlawful.3
In colonial America, abortions were prosecuted under the common law.4 After the Revolution, the new American states adopted the common law of England as the basis of their own law, including common law crimes. Within a generation, the independent states began to outgrow the English common law, and state legislatures increasingly defined crimes in their states. However, common law crimes survived until superseded by legislative enactment, and in a few states common law crimes have survived into the present day.5
Although common law prohibitions on abortion were largely replaced with legislative enactments in the nineteenth century, there was never a gap in which the common law had ended but a legislative prohibition had not yet been enacted. Abortion remained a crime before and after each state legislature acted; it was the definition and penalty for the crime that changed when a statute was passed.6
There are those who deny that abortion was a crime at common law.7 One of them, Cyril Means, Jr., whose law review articles were cited by the majority in Roe v. Wade several times, served as general counsel for the National. Association for the Repeal of Abortion Laws (NARAL) when he wrote the articles making this claim. His history of abortion has been heavily criticized.8 Another author, James Mohr, wrote a history of abortion which ignored the common law, concluding that the lack of statutes outlawing abortion until the 1800's meant that abortion was legal.9 His history is fundamentally flawed by this fallacious conclusion. Finally, many historians joined briefs submitted to the Supreme Court in the cases, Webster v. Reproductive Health Services, 492 U.S. 490 (1989) and Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992), in which the common law status of abortion was intentionally mis-stated. Articles published subsequent to the Webster brief made clear that the historians failed to include known evidence unfavorable to their cause, rather than attempting to address such evidence. James Mohr
stated that he did not "consider the brief to be history, as I understand the craft."10 One of the attorneys who submitted the brief later described the authors as having "serious deficiencies as truth tellers."11 Two other attorneys defended it on the basis that there is no such thing as objective history, anyway.12 With such a defense, it is hard to understand how the statements of the historians' brief can be taken seriously.
In view of the records of cases extending back 800 years and the summaries provided by the leading jurists of the times, it is quite clear that abortion was a crime at common law in England and in the United States. Those who state otherwise face an impossible task of explaining away the numerous cases uncovered by legal historians in the last quarter century.
II. Abortion Statutes of the 19th & 20th Centuries
During the first decades of the 1800's, scientists began to understand the cellular basis of life and for the first time were able to observe the process of fertilization in mammals. As the stages of development became clear, it also became clear that abortion kills a living human being, no matter what the stage of the child's development. The resulting scientific knowledge about the process of conception and development led to efforts to enact stronger bans on abortion. In addition, scientific progress allowed for surgical means of performing abortion, and abortion was perceived to be on the increase. Beginning in 1859, the American Medical Association called for strong anti-abortion laws and vigorous enforcement of them. In view of the claim by twentieth century abortionists that physicians did this only to protect their own profession or solely to protect women's health, it is useful to quote the doctors themselves on why they wanted action by the states:
The AMA adopted the recommendation described above and sponsored initiatives in all states, spurring most legislatures to enact strong prohibitions upon abortion that swept away the "quickening" distinction.14 In the remaining states, abortion remained prohibited by common law. In no state was abortion legal in the nineteenth century or for most of the twentieth century, except to save the life of the mother.15
In the 1960's, calls for loosening abortion restrictions began. In the five years from 1967 through 1972, thirteen states adopted a model statute proposed by the American Law Institute which allowed abortions for certain limited periods upon the certification of doctors that abortion was medically necessary.16 In four states, statutes were enacted which allowed abortion for any reason but only until a certain point in the pregnancy.17 New York's 1970 law was considered the most radical of these because it allowed abortion for almost any reason through the 24th week of the child's development. In 1972, the New York Legislature tried to repeal the law, but the repeal was vetoed by Governor Nelson Rockefeller.18 After New York enacted its law, the drive for loose abortion laws sputtered. Such laws were rejected by over 30 state legislatures and approved in only one more, Florida. In the fall of 1972, just less than three months before the Roe v. Wade decision, the people of two states, North Dakota and Michigan, rejected ballot measures for looser abortion laws by majorities of 77% and 61% respectively.19 Efforts to loosen abortion laws may have continued had the U. S. Supreme Court not interfered with the democratic process in 1973, but the momentum had passed to the pro-life opponents of such laws.
In accord with the spirit of the 1960's, pro-abortionists sought to have the courts change social policy when legislatures would not change it fast enough to suit them. Lawsuits were filed to declare existing abortion laws unconstitutional.20 Two of these lawsuits culminated in the 1973 U. S. Supreme Court decisions, Roe v. Wade and Doe v. Bolton. Together, those two decisions decreed the abortion laws of all 50 states unconstitutional, including the new laws described above, because they did not allow abortion through all nine months of pregnancy if a physician was willing to do the procedure.
What this means is that before Roe v. Wade in 1973, the legality of abortion in the U. S. essentially rested with the legislatures of the several states. However, in 1973, the United States Supreme Court held that abortion was a constitutional right. This ruling turned abortion into an issue of federal constitutional law, the contours of which could only be determined by lawsuit after lawsuit. From then on, the law of abortion depended on the decisions of federal courts in lawsuits brought by abortionists and their defenders.
The abortions decisions of the Supreme Court and lower federal courts are summarized in the article, "Current Law of Abortion." In order to understand the cases, readers who are not lawyers may want to review the process of constitutional adjudication on the page, "General Background of Abortion Lawsuits."
1 A concise exposition of abortion in the common law is contained in Brief of the American Academy of Medical Ethics as Amicus Curiae, pp. 6-14 (April 6, 1992), filed in Planned Parenthood v. Casey, nos. 91-744 & 91-902, opinion reported at 112 S.Ct. 2791 (1992) (hereafter "AAME Brief"). The AAME Brief, a copy of which is on file at the Missouri Right to Life state office, describes historical research which definitively answers the doubt expressed in Roe v. Wade on whether abortion was ever a crime at common law. Roe v. Wade, 410 U.S. 113, 136 (1973). The historical record reveals prosecutions for abortion going back eight centuries in England, to the year 1200. The AAME Brief lists the names of approximately 65 such cases predating the year 1450 in which records survive, and many later cases are also described.
2 H. de Bracton, On the Laws and Customs of England 341 (S. Thorne ed. 1968) (original completed about 1250), cited in the AAME Brief at 9.
3 Sir Matthew Hale, History of the Pleas of the Crown 428-30, 433 (London 1736), quoted at length in the AAME Brief at 26a-27a.
4 Id. at 19-21. The AAME Brief cites six recorded criminal prosecutions in the colonies and a 1764 legal guide for justices of the peace in colonial New York.
5 For example, the Michigan Supreme Court held in 1994 that assisted suicide is a common law crime for which the infamous Jack Kevorkian, a formerly-licensed pathologist, could be prosecuted in that state. People v. Kevorkian, 527 N.W.2d 714 (1994), cert. denied 115 S. Ct. 1785 (1995).
6 The leading nineteenth-century American treatises on criminal law concluded that abortions committed before quickening were crimes at common law. State court decisions supporting the conclusion were thought more in keeping with the common law than those to the contrary. AAME Brief at 24, n.59, citing 1 J.P. Bishop, Criminal Law, §386 (2d ed. 1858); a F. Wharton, The Criminal Law of the United States, §§1220-1230 (5th rev. ed. 1861). There was never any question as to the status of abortions after quickening in American law.
7 AAME Brief, 4-6.
8 Id. at 4.
9 J. Mohr, Abortion in America (1978), criticized in J. Noonan, Jr., A Private Choice (1979) and Dellapenna, The History of Abortion: Technology, Morality, and Law, 40 U. Pitt. L. Rev. 359 (1979). Professor Dellapenna was the attorney of record for the AAME Brief.
10 Mohr, Historically Based Legal Briefs: Observations of a Participant in the Webster Process, 12 The Pub. Historian 19, 25 (1990), cited in AAME Brief at 5 n.9.
11 Law, Conversations Between Historians and the Constitution, 12 The Pub. Historian 11, 14 (1990), cited in AAME Brief at 5 nn.6, 8.
12 Larson & Spellenger, "That's Not History": The Boundaries of Advocacy and Scholarship, 12 The Pub. Historian 33 (1990).
13 Volume 12, Transactions of the American Medical Association, pp. 75-78 (1859).
14 John T. Noonan, Jr., A Private Choice, 5-7 (1979).
15 Id. See the list of state laws in force when the Fourteenth Amendment was adopted in 1868, compiled in Justice Rehnquist's dissent in Roe v. Wade, 410 U.S. 113, 175-177 (1973). It is noted that the Code of the District of Columbia, which is not a state, included a health exception enacted in 1901; Alabama inserted a health exception in its laws in 1951; and Massachusetts read a health exception into its law by judicial decision in 1964. See P. Linton, note 16 below.
16 P. Linton, "Enforcement of State Abortion Statutes After Roe: A State-by-State Analysis," 67 U. Det. L. Rev. 157 (1990).
18 John T. Noonan, Jr., op. cit., at 33.
19 Id., at 34.
20 In Missouri, a lawsuit was brought in state courts to declare Missouri's 1835 statute unconstitutional. The Missouri Supreme Court disagreed and upheld the statute in 1972. Rodgers v. Danforth, 486 S.W.2d 258 (Mo. banc 1972).