Reproductive Rights

Compelling Policy Question: What should guide policies related to abortion, the concerns of the mother, or the concerns of the State?

Policy Case Study: Frederick J. Taussig’s “Revised Statute on Abortion”, found in his 1936 book “Abortion, spontaneous and induced : medical and social aspects” (excerpts/link to original)

Sec. 1 Definitions: By “abortion” is meant the destruction of the life of the child or its expulsion from the mother’s womb, before it has become viable; that is, able to sustain life after birth. After the child has become viable, its expulsion before the normal termination of pregnancy is termed “premature birth.”

…

By “physical depletion of the mother” is meant any condition that produces bodily exhaustion (increasing risk of) disease, such as too frequent child bearing, undernourishment, or excessive family responsibilities.

By “moral irresponsibility of the mother” is meant … when a pregnancy occurs as the result of physical violence (rape), or as the result of sexual relations in women of low mental development, or in girls of immature age, under sixteen years.

Sec. II. (a) Whoever with intent to procure the abortion of any woman, whether pregnant or not, prescribes or administers to her any medicine … (or) uses any instrument, or means, shall be imprisoned for not less than six months, nor for more than two years.

(b) Provided that this section shall not apply to any abortion produced by any regular practitioner of medicine, after consultation with another such practitioner … for the purpose of preserving the mother’s life or health, or in cases of physical depletion, or of moral irresponsibility of the mother. The advice of two regular practitioners of medicine shall serve as evidence of the necessity for producing such an abortion.

Sec III. If the death of the woman, whether pregnant or not, results from … an abortion, unless done by a regular practitioner of medicine … the penalty shall be increased to imprisonment for from two to twenty years.

Sec. IV. Whoever, with intent to produce premature birth and thus procure the death of the child, after it shall have become viable, shall prescribe or administer any medicine, … (or) shall use any instrument or means, unless he be regular practitioner of medicine … shall be deemed guilty of manslaughter.

Historical Context:

Phase #1: Common Law 1700’s - Early 1800’s

America’s early legal beliefs were based on British “common law”. British Common Law was explained in William Blackstone’s Commentaries (1765). He wrote that life “begins in contemplation of law as soon as an infant is able to stir in the mother’s womb,”. The moment when a mother began to feel the child move was known as “quickening”.

In the late 1700's and early 1800's a number of works explained how to "restore menstrual flow". Healthcare for pregnant women was provided by midwives, who knew how to abort pregnancies. Families were large, and abortions were likely only among single women.

Phase #2: A public question Early to Mid 1800’s

Legal approaches to abortion began to change during the religious revival of the Great Awakening during the 1820’s. For example, Conneticut made it illegal to sell substances that could lead to an abortion, or induce early labor to end a pregnancy. Out of the 26 states in 1841, ten of them had laws similar to Connecticut. These laws applied to post-quickening abortions, and punished only the person who helped the woman.

Phase #3: Mid 1800’s - Early 1900’s Criminalization

America broke away from the British Common Law in the 1840's. States began to criminalize the use of either drugs or operations to cause miscarriages. These laws even applied if the abortion was done before quickening. This change was probably due to four causes. 1. The publicness of abortion. 2. Its increase in use. 3. Changes in religious beliefs. 4. The growth of the medical profession.

During this time, Advertisements for Abortifacients ran in newspapers. "Abortionists" ran public businesses. The Second Great Awakening may have changed attitudes about abortion. This religious movement believed that life began at conception.

Doctors became more common during the mid to late 1800's. They were fighting for control over healthcare. This included taking control of women's healthcare away from midwives. A gynecologist named Horatio Storer led to the new American Medical Association speaking out against abortion. The AMA believed that only doctors should perform abortion, and only when needed to save a mother's life. By the end of the 1800's all states' abortion laws changed. They only allowed abortions when the mother's life was in danger. As a result of these laws, abortions were done illegally, by less qualified people.

During the late 1800's birth control use was increasing. Some people considered this immoral. New Yorker Anthony Comstock convinced Congress to make it illegal to spread information about birthcontrol or abortion through the mail or ads (the "Comstock Act"). By the end of the 1800's some States had even criminalized the use of contraceptives.

Some leaders in the Feminist movement of the late 1800's and early 1900's fought against birth control laws. The Birth Control Movement often spoke critically of the practice of abortion. Margaret Sanger did this as a way to justify the legalization of birth control. Eugenicists believed America's population was worsening because birth rates of wealthier native born women was lower than recent immigrants. They blamed abortion rates among the wealthy as the cause. They wanted to make it illegal, to stop its use.

Phase 4: 1930’s - Legalization efforts.

In the 1930's, some public health officials' opinions about abortion changed. The Eugenics movement now favored abortion out of concern for "improving" the human race. They believed it would control the population growth of "lower" classes. The Great Depression also led to concerns about family size. Frederick Taussig and W.J. Robinson both wrote books suggesting legalization of some abortions.

Section #1 Guiding Question: Why do some people believe policies related to abortion, should be guided by the concerns of the mother?

On April 11, 1934, the New Republic Magazine published a letter written to their editor. In her letter titled, “Real Rights for Women”, Evelyn Pierce from Washington, D.C. said… (excerpts, link to original)

[E]asy access to accurate birth-control information is the first step towards correcting the abortion horror in the United States. However, … [e]ven with free dissemination of birth-control information there remains the chance of an occasional pregnancy. One failure in a thousand … is enough to cause tragedy and even death to the woman who feels that she cannot go through with the pregnancy. No man nor state nor church should have the right to say whether a woman should bear eight children or one child. Hers is the risk, hers should be the decision. Even in time of war a man is allowed to volunteer when he is to be sent on a mission where the odds for death are against him. To force a woman to take such a chance merely because she wishes to ... maintain jurisdiction over her own body, is fantastic.

Women of the United States should use their voices and their votes to demand a change in the laws which would … permit them to have abortions performed, when they found it necessary.... This would not mean more abortions. Women have proved that they will have abortions when they deem it advisable, regardless of the awful risks now involved...

In 1933 the While House published a book full of reports to go along with their Conference on Child Health and Protection. This book included a chapter written by Doctor Fred Taussig titled, “Abortion in Relation to Fetal and Maternal Welfare.” Dr. Taussig included many statistics in his chapter. (Source)

In 1934, the Department of Labor’s Children’s Bureau published a report titled “MATERNAL MORTALITY IN FIFTEEN STATES”. (Source)

Section #2 Guiding Question: Why do some believe policies related to abortion should be guided by the concerns of the State?

In his 1906 speech, titled “THE LEGAL RESPONSIBILITY OF THE PHYSICIAN FOR THE UNBORN CHILD” during a meeting of the American Medical Association, the doctor C. S. BACON said, (excerpts/link to original source)

All physicians … must regard the child in the womb as … a human being.... Although dependent on its mother … it is still (as alive as) an intestinal parasite which depends on its host …

The old legal distinction … has, of course, no biologic foundation…. The perception by the mother of fetal movements does not prove or disprove the life of the child….

The legal status of the child in utero does not conform to its biologic status. All human beings ex utero are on the same plane … (No one) has the right to take the life of one for the benefit of another or for any reason whatever…

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It is difficult to deny to the human fetus the innate right of every human being the equal right to life. …

In 1933 the While House published a book full of reports to go along with their Conference on Child Health and Protection. This book included a chapter written by Doctor Fred Taussig titled, “Abortion in Relation to Fetal and Maternal Welfare.” Dr. Taussig included many statistics in his chapter. (Source)

The results and consequences of the Debate:

Frederick J. Taussig’s “Revised Statute on Abortion”, and abortion generally, was not debated as an issue by the National Congress in the 1930’s. Due to the 10th Amendment, abortion was still generally seen as an issue to be handled by State Governments, and it continued to be illegal in all states. Some states kept exceptions where abortions could be performed in order to save the life of the mother. All other abortions performed were performed illegally. Abortion providers in many states were arrested and jailed.

In the 1950’s, a legal group called the American Law Institute (ALI) created a “model law” States could use to shape their laws. It included legalizing abortion for mothers concerned about mental or physical health, abortions of pregnancies due to rape or incest, as well as abortions of fetuses that were deformed. Planned Parenthood also held the first ever National Conference on Abortion legalization.

In 1967, Colorado is the first State to pass into law the ALI designed law. California, Oregon, and North Carolina do the same.

In 1970 New York, Alaska, Hawaii, and Washington state all began allowing abortion up to the 24th week of pregnancy.

In 1971 the United States Supreme Court weighs in on it’s first abortion case. They upheld a District of Columbia law which only allowed abortion in cases to save a mother’s life or mental health.

By the end of 1972, 13 States have laws similar to the model proposed by ALI. Four States allowed women to have an abortion for any reason (“on demand”). But 31 states still only allowed abortion if it was done to save the mother’s life.

In 1973 the Supreme Court makes a decision in Roe v. Wade that establishes abortion as a Constitutional right. This was based on the “right of privacy”, supported by the 4th, 9th, and 14th amendments. Importantly, the ruling did allow States to restrict abortions during the third trimester when the fetus approached “viability”.

Through the rest of the 1970’s and into the 1980’s in response to different State laws, the Supreme Court upheld some, and overturned other restrictions on abortion.

In 1992 the Court issued a ruling in Planned Parenthood v. Casey, which upheld the Constitutional right to abortion, but said that States could restrict abortion as long as the laws did not place an “undue burden” on a woman’s ability to abort a pregnancy.

From the 1990’s through the 2010’s the Supreme Court continued to hear abortion related cases, upholding some restrictions, but striking down others.

In 2021, the Supreme Court heard oral arguments in the Dobbs v. Jackson case, and in 2022 they handed down a 6-3 ruling which overturned the “Constitutional Right” precedent established by Roe. States are now free to create whatever restrictions on abortion they wish.

*** Special thanks to Dr. Geoffroy Stone of the University of Chicago, author of Sex and the Constitution, Dr. Leslie Reagan of the University Illinois, author of When Abortion was a Crime, and Dr. James Mohr. of the University of Oregon, author of Abortion in America. Without their helpful guidance during my research for this lesson, it would never have been completed.