Life Before Roe
A BRIEF SURVEY OF US ABORTION LAW
BEFORE THE 1973 DECISION
By Brian Young
Abortion did not burst upon the American scene with Roe vs Wade.
Yet, because the facts surrounding abortion and abortion law in the
first 200 years of our nation's history are not common knowledge, many
are not aware that for nearly all of our country's existence, taking the
life of a baby in the womb was prohibited.
In fact, to those who have grown up in the post-Roe era, who have
been taught little history, and who listen to pro-abortion rhetoric, the
opposite may seem true. To these young people, it may appear that the
United States was founded upon and has always guaranteed "freedom of
choice" in abortion.
Until 1973, however, the pre-born baby was protected by American
In the years prior to and immediately after the American
Revolution, colonists and citizens followed the rule of law brought by
British settlers, the "common law." Rather than being a code of
statutes passed by a legislature and printed in a book, the common law
was a set of legal standards established in England through court
decisions and legal custom.
According to Sir William Blackstone, the renowned 18th century
English jurist, under common law, the abortion of a 'quickened' fetus
was a 'very heinous misdemeanor.' At that time the penalty for
misdemeanors could be severe; loss of a limb, confiscation of property
or life in prison.
'Quickening' - when a pregnant woman first feels her child move -
generally occurs in the fourth month. Scholars have noted that the
common law requirement of a 'quickened' baby for the crime of abortion
was probably based on a very practical consideration. Since there were
no pregnancy tests in the 18th century, evidence that a baby's movement
had been felt might have been the only way to establish with any
certainty in a court of law that a pregnancy had existed.
The first US law against abortion, adopted by Connecticut in 1821,
criminalized the administration of poison or of any "destructive
substance" to induce a miscarriage. It applied only to cases where the
baby had "quickened."
In 1840, however, Maine became the first state to pass a law that
expressly protected all babies, "quick or not."
The abandonment of the "quickening" requirement coincided with the
19th century discovery of how conception takes place. The public,
lawmakers and jurists were becoming aware of the scientific fact that
life begins when a sperm enters an ovum.
In the mid-19th century, the newly formed American Medical
Association undertook to organize physicians and medical societies in
support of laws against abortion. An 1859 AMA committee investigating
abortion stated in its conclusions that one reason for ...
"the frightful extent of [abortion in the US] 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
In the 20 years following this AMA report, aided by lobbying from
the medical profession, 31 states passed or amended their laws on
abortion to protect pre-term infants at all stages of gestation.
Pro-abortion historians claim that these laws were passed
primarily, if not solely, to protect women from possibly fatal
abortions. Concern for pre-term babies was not a factor, they claim.
Yet, as law professor Joseph Dellapenna has noted, all surgeries at
that time involved substantial risks of death. If legislators were
motivated to pass anti-abortion statutes only to protect women, why did
they not protect other patients by banning other potentially dangerous
fatal elective surgeries?
Coincidentally or not, during this period of pro-life legislative
activity Congress passed and 28 states ratified the 14th Amendment,
prohibiting any state from depriving "any person of life, liberty, or
property without the due process of law."
By 1910, every state except Kentucky had passed an anti-abortion
law (and Kentucky's courts had declared abortion at any stage of
gestation to be illegal).
By 1967, not much had changed. In 49 states, abortion was a
felony; in New Jersey, it was a high misdemeanor. Furthermore, 29
states banned abortion advertising, and many outlawed the manufacture or
distribution of abortifacients.
In 1967, though, state abortion laws began to change, but only
after years of organized campaigns by pro-abortion forces.
The American Law Institute (ALI) proposed, in its 1959 model
criminal code for all the states, a "reform" abortion law. The model
bill, approved by ALI in 1962, declared that abortion should be
permitted for the physical or mental health of the mother, for fetal
abnormality, and for rape or incest.
While the leaders of the American legal community were promoting
radical changes in state abortion law, a 1962 case in Arizona generated
sympathetic press coverage of the notion of "justifiable abortion."
Mrs Sherri Finkbine, a married mother, made public her intention to
abort her fifth child. She had taken some tranquilizers/sleeping pills
her husband had brought home from a trip to England. The pills turned
out to be Thalidomide, a drug that had become associated with birth
defects. Fearful of giving birth to a handicapped child, Mrs Finkbine
traveled from Phoenix to Sweden, where she had her baby aborted.
In June 1967, the American Medical Association voted to change that
body's long-standing opposition to abortion. With a new resolution, the
AMA now condoned abortion for the life or health of the mother, for a
baby's 'incapacitating' physical deformity or mental deficiency, or for
cases of rape or incest.
That same year, Colorado, North Carolina, and California became the
first states to adopt versions of the ALI "reform" abortion law. By
1970, though, four states - New York, Alaska, Hawaii and Washington -
passed laws that basically allowed abortion on demand. Of those four,
New York's was the only law without a residency requirement and the
state quickly became the nation's abortion capital.
The pro-abortion onslaught was beginning to face opposition,
though, as pro-life forces organized. In 1972, the New York legislature
voted to repeal the state's liberal abortion law, but Governor Nelson
Rockafeller vetoed the repeal. Ballot questions in Michigan and North
Dakota that same year attempted to decriminalize abortion; the measures
were defeated by majorities of 63 percent and 78 percent, respectively.
Just as pro-lifers were beginning to turn the tide however, the
Supreme Court handed down Roe vs Wade in January 1973. With one
judicial stroke, over 200 years of legal protection for the unborn was
rendered null and void. For the first time in American history,
abortion was the "law of the land".
Brian Young is A.L.L.'s Senior Vice President, Policy Research and
Development. For a survey of US Supreme Court Decisions on abortion
since Roe vs Wade, see ALL "All about Issues", January-February 1993.
COPYRIGHT 1995 BY AMERICAN LIFE LEAGUE, POB 1350,
STAFFORD VA 22555.
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