Chapter 5

The Law in the United States and Elsewhere

EARLY UNITED STATES law on abortion followed the common-law tradition that forbade abortions after quickening-usually about the sixteenth week of pregnancy, where fetal motion is felt, and traditionally a sign of pregnancy. The laws were silent, however, on the question of abortion before that quickening. During the middle of the nineteenth century, however, in both England and throughout the United States, laws were passed prohibiting abortions altogether, with a few exceptions regarding the life and sometimes the health of the mother.

Legal scholars offer several explanations for this change in approach. Some believe that it was part of a general trend during the Victorian period to pass legislation dealing with the moral aspects of behavior--obscenity, homosexuality, and so on. Others say that the change in the abortion laws came about because it was recognized that the line of quickening was an artificial one, that it was arbitrary to say that life did not begin until then. Still others say that the tightening of the abortion laws had to do with a recognition that at that time abortions were dangerous operations, and the laws were to prevent injury to the mothers. (Even places with the most permissive abortion laws today do not permit an abortion, except to save the life of the mother, after "viability"--that time, from about twenty-six weeks, when the fetus may be able to survive outside of the womb. This is both because the fetus is at this point viable as a human being, and because the operation after this point is highly dangerous for the mother.) Another view is that the laws were designed to foster population growth.

Under current law, thirty-nine states permit abortions only if they are necessary to save the life of the mother. (Louisiana prohibits all abortions in one statute but not in another.) Four states and the District of Columbia approve abortions to save the life or the health of the mother. Some state courts have ruled that the peril to life need not be imminent, that it need only be potentially present. 'Three states (Massachusetts, New Jersey, and Pennsylvania) prohibit "unlawful' abortions with no further clarification. Three states, California, Colorado, and North Carolina, recently expanded their laws to permit abortions if they are necessary to preserve the life or health (specifically including the mental health) of the mother; in cases of rape, including statutory rape, and incest; and (with the exception of California) if there is substantial risk that the baby will be born with a serious physical or mental defect. In all of the states, a person who performs an illegal operation may be convicted of a crime; in some of them, the woman who undergoes an abortion may also be prosecuted.

In practice, however, there has been little enforcement of these laws. Most cases arise only after a reported death from an illegal abortion, or a hospitalization as a result of medical complications caused by an illegal abortion. Generally the prosecutions are initiated against those believed to be performing illegal abortions as a regular practice.

There are only a few countries, particularly in Western Europe, where the laws against abortions are even more restrictive--virtually forbidding any abortions-than they are in the United States. The countries of Northern Europe--Norway, Denmark, Sweden, and Finland--occupy about the middle ground between restrictive and permissive abortion laws. These four countries permit abortions in largely the same sets of circumstances: to protect the life or health of the mother; in cases of rape, forcible or statutory, or incest; in the case of a potentially defective child; and out of consideration of the mother's living conditions. The latter instance is usually in effect a result of the interpretation of what might be a danger to the health of the mother. The Danish law, for instance, permits termination of the pregnancy "if the induction of an abortion is necessary to avert a Serious danger to the life or health of the woman. In order to evaluate this danger, an appreciation shall be made of all the circumstances of the cast, induding the conditions under which the woman will have to live, and consideration shall he given not only to the physical or mental illness, but also to any actual or potential state of physical or mental infirmity."

With minor exceptions, abortions may not be performed after five months in Sweden, four months in Denmark and Finland, and three months in Norway.

In all four countries, an abortion may not be performed without some form of official approval. As one Swedish doctor has.explained, the law was passed in Sweden because there was general recognition that a good number of illegal abortions were taking place--perhaps as high as 10 or 20 percent of live birahs. Most, he said, were sought by "worn-out mothers or women with little resistance to physical or mental stress." The purpose of the laws, he explains, "was not to grant these women legal abortions, but also to get in contact with them to be able to help them with different social aids and medical treatment, and to give contraceptive advice. In those cases where these measures were not sufficient abortions were granted, and it is always stressed that this is an emergency solution."

Most abortions in these countries are performed on medical indication, most often on psychiatric grounds. This category includes what is termed "exhaustion" of the mother. Few abortions are performed for defect indications, and even fewer for broad "humanitarian" reasons.

In Sweden, most of the legal abortions are authorized by the Medical Board in Stockholm, which makes its decision on the basis of a written report by the physician who has examined the woman seeking abortion. The remaining women have a certificate signed by two physicians. In Denmark, most legal abortions are authorized by a connnittee of three associated with the local Mother's Aid Institution, a publicly supported organization, which conducts a thorough medical and social investigation. There are several such committees located throughout the country, each consisting of a psychiatrist', a gynecologist, and a social worker, and their decision to authorize an ahortion must be unanimous. This procedure is not necessary, however, where the pregnancy is a threat to the life or health of the mother because of a specific diseases' In Finland and Norway, most legal abortions are approved by two physicians, one of whom must be a gynecologist or surgeon on the permanent staff of a hospital. In Finland, the second physician is drawn from a roster of medical specialists of the State Medical Board; in Norway, he is appointed by the county health officer and must be trained in psychiatry or social medicine.

Several other countries have policies which amount to permitting abortion simply upon the request of the mother. Abor- tion at the request of the mother is permitted in the Soviet Union, Bulgaria, and Hungary. The Soviet decree states that the intent is "the limitation of the harm caused to the health of women by abortions carried out outside of hospitals," and "to give women the possibility of deciding by themselves the question of motherhood." In Poland, Yugoslavia, and Czechoslovakia, abortions are permitted under a broadly written set of circumstances. Japan permits abortions under a broad set of circumstances which relate to the health of the mother, but in effect amount to abortion on request.

The number of legal abortions inevitably has risen in countries liberalizing their abortion laws, the extent largely reflecting the degree of liberalization. Recent figures indicate that in the Northern European countries there are about 3 to 7 abortions for every 100 live births. In Eastern Europe and Japan the number of legal abortions ranges from about 30 per 100 live births to 140 per 100 live births (in Hungary).

It is a subject of some debate how much, if at all, the wider availability of legal abortions has diminished illegal abortions in these countries. It is agreed, however, that illegal abortions have not disappeared, and it is believed that in some countries they have not decreased. A number of reasons have been offered for this. One is that in the Northern European countries women must still seek official approval for abortion, and that the illegal abortions are probably undergone by women who do not want to do this, by women who do not receive permission, and by women who seek illegal abortions because of bureaucratic delays in receiving official permission. Another suggested reason for the continuation of illegal abortion in Northern Europe and in countries where abortions are virtually available on request is that a legal abortion still involves a lack of privacy; it is believed that this is particularly a problem for women who do not live in the larger cities.

Doctors as well as social scientists caution against trying to draw conclusions from the experiences of other countries about the likely effects of changes in the abortion laws in the United States. The whole context of sex, contraception, family, and children varies from country to country and in each of these cases varies from that in the United States. In Eastern Europe, and in Japan especially, the knowledge and use of contraceptive devices has been decidedly less widespread than in the United States.

In October, 1967, the abortion laws in Great Britain were broadened considerably. The new law permits abortions if two doctors agree that the life of the woman may be threat- ened, her physical or mental health may be injured, the child may be seriously mentally or physically handicapped, or any of her existing children may be injured mentally or physically. The latter provision allows consideration of overcrowding in a large family, inadequate housing, strain on the mother, and a large number of other factors. Account may also be taken of the pregnant woman's "actual or reasonably foreseeable environment." The bill explicitly excuses doctors who have conscientious objection from any requirement to perform an abortion, unless it is necessary to save a life or prevent "grave permanent injury to the physical or mental health of pregnant women." The abortions are ohtainable under the National Health Service, in the same way as any other operation. During 1967, the legislatures of more than one-half of the states in the United States considered revising their abortion laws, though California, Colorado, and North Carolina were the only three that actually did so. In all of these states, the proposals were patterned largely after the new law proposed by the American Law Institute, a group of 1,500 lawyers, representing practitioners, judges, and professors, whose role is to promote clarification of the laws and their better adaptation to social needs, and to secure administration of justice and scholarly legal work. The ALI proposal, completed in 1962 after a ten-year study, proposes making "unjustified termination of pregnancy" a crime, and defines those instances in which abortions would be justified: (1) when there is "substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother"; (2) when there is "substantial risk...that the child would be born with grave physical or mental defect"; (3) when "the pregnancy resulted from rape, incest, or other felonious intercourse," including statutory rape of girls under sixteen. The operation must be performed by a licensed physician in a licensed hospital. At least two physicians must make a written certification of the justifying circumstances. Termination of pregnancy would be justifiable only before viability. The American Medical Association, at its June, 1967, meeting, in effect endorsed the ALI approach. Revising a policy which had been in effect since 1871, the AMA House of Delegates said its new approach is in keeping with modern scientific knowledge, contains necessary safeguards, and permits the physician to exercise his personal conscience and medical judgment in the best interest of his patient. The AMA's new policy position is that it is

opposed to induced abortions except when: (1) There is documented medical evidence that continuance of the pregnancy may threaten the health or life of the mother, or (2) There is documented medical evidence that the infant may be born with incapacitating physical deformity or mental deficiency, or (3) There is documented medical evidence that continuance of 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; (4) Two other physicians chosen because of their recognized professional competence have examined the patient and have concurred in writing; and (5) The procedure is performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals.

The California law, signed by Governor Ronald Reagan in June, 1967, permits an abortion if a three man committee of the medical staff of an accredited hospital unanimously agrees that there is substantial risk that continuance of the pregnancy will gravely impair the physical or mental health of the mother, or if the pregnancy resulted from rape or incest. In the case of rape, either the district attorney or the court must hold that there is probable cause to believe a rape did take place before the abortion may be performed. There is no residency requirement under this law.

The Colorado legislation, signed into law by Governor John Love in April, 1967, permits the termination of a pregnancy in an accredited hospital following hospital-board determination that (1) continuance of the pregnancy would result in the death of or serious mental or physical damage to the mother (when an abortion is allowed because the mother's mental health is endangered, a psychiatrist must be one of the doctors to certify the need); (2) there is substantial likelihood that the child will be deformed or mentally retarded; or (3) when the pregnancy resulted from forcible rape or incest or statutory rape when the girl is under sixteen and the parent or guardian consents to the abortion. There is no residency requirement. However, for fear that their state may become an "abortion mill," the Colorado Medical Association in its "Abortion Law Guidelines" asks that doctors refuse cases of nonresidents involving rape and incest unless the crime occurred in Colorado.

What has happened since the new law went into effect in Colorado is a matter of extreme controversy within that state after six months' experience. A medical study, published shortly after the law became a fact, reported a sharp rise in the number of requested abortions. The same study went on to say, however, that six months' figures showed that requests had tapered off to about the same level as before the new law. A Denver newspaper polled five hospitals in the Denver area and reported that in the first six months of the law's passing, there had been one hundred abortions performed in these hospitals against a reported total of only twelve for the entire state of Colorado in the preceding year. The survey showed that 80 percent of the abortions were granted on psychiatric grounds and that 30 to 40 percent of the patients were from out of state.

It must be pointed out in looking at this controversy over the figures in Colorado that there has been no adequate statewide statute on reporting fetal deaths. A new law imposing stringent requirernents on reporting fetal deaths was passed by the Colorado legislature effective January 1, 1968.

In North Carolina a law passed in May, 1967, permits an abortion to be performed if the life or the health of the mother is in danger, if there is substantial risk that the child will be born with a mental or physical deficiency, or if the pregnancy resulted from rape or incest. Three doctors must examine the patient and approve the abortion and the abortion must be performed in an accredited hospital. There is a four-month residency requirement.

The terms and intent of the ALI proposal have been explained as follows by Professor Louis B. Schwartz of the University of Pennsylvania School of Law, one of its drafters:

The first of the justifications listed above mainly codifies the practices of reputable physicians in "therapeutic abortion." Such a codification is extremely important in view of the ambiguity of existing laws. A typical present statute makes "unlawful" abortion a felony, but does not tell the physician which abortions are lawful and which are unlawful. Such precedent as exists make it clear that necessity to preserve the mother's life will justify termination of pregnancy, but the situation is hazier regarding protection of her health, particularly her mental health. Doctors should not be required to gamble with the pros. pect of prosecution where one district attorney may take a narrower view than his predecessor.
Permitting termination of pregnancy where the child is likely to be born defective broadens the legal justifications. But ethical physicians commonly perform such operations even in jurisdictions where the law seems to make them illegal. German measles in early pregnancy carries a substantial risk of gross defects in the child.
The rape 'justification likewise conforms to widely held moral views. It seems to many people intolerable that a woman who has been the victim of a brutal assault should be compelled to bear the child of her ravisher.

Except in the instances where broad interpretation is given to the "mental-health" provisions, the ALl proposal wiil not, in fact, permit abortions to the largest group seeking them--married women who already have a number of children and seek an abortion because they want no mote. "In recom- mending a moderate liberalization," Professor Schwartz has written, "the American Law Institute simply took realistic account of the intensity of feeling on this issue."

The ALl proposal is a compromise between strongly held divergent views, and as such it is controversial, as will be shown in Chapter 9, "The Lawyer's Perspective." There are some who feel that it goes too far in liberalizing abortion laws. There are some who, for varying reasons, would like to see the subject of abortion removed from the criminal-law statutes.

Others believe that the law ought to withdraw altogether, leaving the question of abortion up to the individual. This is sometimes referred to as "abortion on demand." This phrase, however, carries implications which are somewhat at variance with what most of the proponents of leaving the issue to private decision have in mind. As one put it, "I do not believe in abortion on demand any more than I believe in divorce on demand." As another said, "I do not believe that any of us are saying that a woman ought to be able to fill out a form and mail it in and get an abortion." In other words, most of these people believe that before there is an abortion, there should be a "cooling-off period," during which there would be some counseling. They point out, by the way, that one of the penalties of restrictive abortion laws is that so many women undergo secret abortions without the benefit of prior counseling--counseling which might turn an unwanted pregnancy into a wanted pregnancy or might lead women to the supportive services they need. Through counseling, women seeking an abortion might receive psychiatric help, information about adoption procedures, contraceptive advice, services which might help them cope with their economic and social environment, and the like. Abortion on request would, it is presumed, involve the same types of medical considerations given to any similarly serious operation. It would not, presumably, be the equivalent of making an appointment with the hairdresser.

While many of those who believe that the law should withdraw do so because they do not believe that human life is present from conception, or because they believe that in any event the rights of the parents should be permitted to override, there is another view, from quite a different perspective, which comes to the same conclusion. Father Robert F. Drinan, Dean of the Boston College Shool of Law, would prefer the law being silent on the subject of abortion rather than specifying instances in which abortions may be performed.

The right of the fetus to be born [he has written], now protected in Anglo-American law, may be seriously compromised within the near future by changes in the laws of England, Canada, and several states in America. In eliminating the right of some fetuses to be born the law enters an area which it has never entered before--an area where it will be required to decide by what norms and by whose judgments what persons are to be born and what persons are to "die" before their birth.
One way to avoid the necessity of making these choices would be for the law to withdraw its protection from all fetuses during the first twenty-six weeks of their existence. Under this arrangement the law would not be required to approve or disapprove the choices of parents and physicians as to who may be born or not born.
The Model Penal Code did not follow this option. It elected to permit abortions for restricted reasons, reasons which are described as carefully as any law intended for general use can do. By acting in this manner the Penal Code selected a hierarchy of values on which its law is based. In that hierarchy a mother's health ranks higher than the right of a fetus to be born, the convenience of parents or of society is deemed superior to the existence of a deformed or retarded infant, and the desire of women made pregnant through rape, incest, or "other felonious intercourse" not to have "their lives ruined" takes precedence over all fetal rights.
Those who oppose the adoption of the Model Penal Code are not arguing unfeelingly for a metaphysical point of little consequence.

There are still others who would replace the criminal code with a set of administrative procedures, similar to those in the Scandinavian countries, in effect setting up boards or groups of doctors who could permit abortions under certain circumstances. This still leaves the issue of in what sort of circumstances abortions would be permissible.

It is possible to narrow the terms of the issue: There has long been a consensus in our society that abortion is permissible under at least one circumstance--to save the life of the mother, because if we do not, both mother and fetus die. There is a consensus that no abortion should be involuntary on the part of the prospective mother. The issue, then, is what we should say about liberalization of abortion laws; what problems would this resolve; what problems would this raise; what are the alternatives?

Chapter 6- The Social Scientist's Perspective