BLG H 1. CONTROL NUMBER 12. SUBJECT CLASSIFICATION (695) BIBLIOGRAPiIC DATA SHEET PN-AAH-284 PCOO-OOOO-OOOO 3. TITLE AND SUBTI'LE (240) International status of abortion legalization

4. PERSONAL AiUThORS (100) Lee, L. 'r.

5. CORPORATE AUTHORS (101)

Tufts Univ. Fletcher School of Law and Diplomacy.

6. DOCUMENT DATE (110) NUMBER OF PAGES (120) NUMBER(170)

1973 2 7 p. 9. REFERENCE ORGANIZATION (130) Tufts 10. SUPPLEMENTARY NOTES (500) (In Law and Population monograph ser. no. 16) (Reprinted for The Abortion Experience., Howard J. Osofsky and Joy D. Osofsky, eds. Harper and Row, 1973, p. 338-364)

11. ABSTRACT (950)

12. DESCRIPTORS (920) 13. PROJELT NUMBER (150) Abortion Law Legal aspects Legilation Family planning Population policy 14,CONTRACTNO.(140) 15. CONTRACT TYPE (140) Fli rt-h control AID/csd-2810 GTS 16. TYPE OF DOCUMENT (160)

AID 590-7 (10-79) Law and Population Monograph Series Number 16 (1973)

International Status of Abortion Legalization

by Luke T. Lee

Reprinted from The Abortion Experience, Howard J. Osofsky and Joy D. Osofsky, editors (Harper and Row, Publishers, Inc. 1973)

Law and Pop ation Programme THE FLETCHER SCHOOL OF LAW ) ID DIPLOMACY Administered with the Cooperation of I irvard University Tufts University Medford, Massachusetts Law and Population Book Series 1/ Popltiatian and Law, Luke T. Lee and Arthur Larson (eds.) (Leyden: A. W Sijthoff; Durham, North Carolina: Rule of Law Press, 1971). 2/ International Migiiatiot La',, Richard 0. Plender (Leyden: A. W. Sijthoff, 1972). 3/ Population lit' L nlted Natiois Systern: Deeloping tIte,Legal Capacity and Prograntsot LIN Age'mes, Daniel G. Partan (Leyden: A. W. Sijthoff; Durham, North Carolina: Rule of Law Press, 1973). 4/ World Population 'Isis:The Umted States R,-q'onsoc, Phyllis T. Piotrow (New York: Praeger, 1973). 5/ 1Ihinia n Riglit anid Pop;ulation. I nrtit(, Ptrspcctityes of Llit, Policy arid Orgatniza- ti,,n(Medford, Massachusetts: Law and Population Programme, 1973). 6/ The Ai'ortian L"p,'riet'ce, Howard J. Osofsky and Joy D. Osofsky (eds.) (New York: Harper & Row, 1973). 7/ 7it,United Nations ilI I'optilatio:Major Resolultions and Instrunents (New York: United Nations Fund for Population Activities, 1973).

Law and Population Monograph Series 1/ Law and Faihi lamg,by Luke T. Lee (1971). 2/ Brief Stnt'y ot l.5. Popldation i.a, by Harriet F. Pilpel (1971). 3/ Law and PopIlatio, Grow'th in Eastern Europe, by Peter B. Maggs (1972). 4/ Legal Aspects ot Fainily Planning in Indonesia, by the Committee on Legal Aspects of the Indonesian Planned Parenthood Association (1972). 5/ Law' and PiplitationCitssificatioi Plan, by Morris L. Cohen (1972). 6/ Laz', [hituan Rights and Popitlation: A Strategi for Action, by Luke T. Lee (1972). 7/ Poittlation in tit, LIN Systeni: Develtpling the Legal Capacitittand Prograinsof UN Agencies, by Daniel G. Partan (a summary of a book, see item 3 above.) (1972). 8/ Tiite Worl's Laws on Volunt it Sterilization For Fa inili Planning Pitrploses, by Jan Stepan and Edmund H. Kellogg (1973). 9/ Lat and Population Growth inSi:lgapore, by Peter Hall (1973). 10/ Law tnd P pulation Grot itin J aica, by Robert C. Rosen (1973). 11/ Law ad Pop iatitn Gro ti In theilt itet Kingdoii, by Diana M. Kloss and Bertram L. Raisbeck (1973). 12/ Law and Populatiot Groatth in France, by Jacques Doublet and Hubert de Villedary (1973). 13/ Medical Consideratiois far Legalizing Voltntary Sterilization, by F. 1. D. Konotey- Ahuiu, M.D. (1973). 14/ Brit'f SurveI/ of AI'ortiat Laus of Five Largest Coltries,by Luke T. Lee (1973). 15/ Aiti-CoitraIcL ption Laws inSili-Saharan Fratncophone Africa: Sources and Rainifications, by Bernard Wolf (1973). 16/ InternationalStattis of Alortion Legalization, by Luke T. Lee (1973). 17/ TieltWorld's l.aws tit C mtrac,'ptives, by Jan Stepan and Edmund H. Kellogg (1974). 18/ Population and the Role of Law in the Americas, Proceedings of a Semiitar of the Human Rights Committee at the 18th Conference of the Inter-American Bar Association (1974).

This monograph is one in a continuing series published unde, the auspices ofthe Law and Population Pr.gramme, the Fletcher School Planned of Law and Diplomacy /The Law and Population Programme and its field work aresupported in part by the International Parenthood Federation, the United Nations Fund forPopulation Activities, and the U. S Agency forInternational Development, among members others. The Programme is under the general direction of an International Advisory Committee on Population and Law, whose are listed at the end of this monograph. /The conclusions and opinions of this monograph are the sole responsibility of the author, and do not necessarily reflect those of the Law and Population Programme, the Fletcher School, or any of the supporting agencies. I Printed in the U.S.A. The Abortion Experience 16

International Status of Abortion Legalization

Luke T. Lee, J.D., Ph.D.

Where an act declared "criminal" continues to be widely practiced with little effort at enforcement by the authorities, and where the harmful effects of keeping this crime on the books appear to outweigh those objectives which were originally sought by the law- makers, the question of repeal or revision inevitably arises. Such being the dilemma posed by abortion legislation, it is useful to examine briefly the different forces at work toward abortion legalization, followed by an analysis of the various judicial and legislative responses.

FORCES WORKING TOWARD ABORTION LEGALIZATION

High Rates of Illegal Abortion and Attendant Health Risks Despite the difficulty of measuring precisely the rates and risks of illegal abortion, the following estimates nevertheless reflect the magnitude of the problem posed by illegal abortion. In Egypt, for example, it has been estimated that 4O% of hospital admissions for deliveries and preg- nancy complications were actually for abortions and their complications.' Recent records of two university hospitals suggest the existence of one abortion for every two births, notwithstanding the restrictive nature of the Egyptian Penal Code on abortion.- Reports from Turkey indicate that, during the late 1950s and early 338 Internalional Status of Abortion Legalization 339

1960s, there were 500,000 abortions and 10,000 deaths each y'ear from abortion operations, few of which took place ill hospitals because of their illegality) The number of illegal abortions in France has been estimated on the average at bctween 250,000 and 300.000 per year, with some aul- thorities claiming a nrich higher figure., A conservative estimate of the number of abortions performed an- nua!hl in Belgium is 30,000, as compared with 50,000 births.7) In Italy. the annual nmber of interrupted pregnancies during the 1960s reportedl.y fluctuated around 150,000, a large numl)er of which were illegal abortions." Twoi other estimates have put the annual num- bers of illegal abortions at a maximunim o, 500,000- and between 800,000 and 3,000.000, respectively. High numbers of maternal deaths occur every year as a result of malpractices that run the gamut from the use of herbs to primitive, unsophisticated instruments.' A 1966 estimate in Switzerland has placed the ratio of illegal abortions to births at 1 to 2.'" Available data between 1961 and 1968 from the United Kingdom have indicated that the death rates for criminal abortion were from three and one half to eight times higher than the death rates for thera- peutic abortion.'' When all abortions were illegal in the Soviet Union between 1917 and 1920, it was estimated that up to 50% of women resorting to abortion became infected in the course of operation and that ip to 4% died as a result of the procedure. The 1920 decree legalizing abortion had as its aim the combating of the evils of clandestine abortion.'2 In Chile, 8% of all hospital admissions have been for patients with postabortal complications; these patients have occupied one-fourth of all maternih beds in Maternal Health Service hospitals."a The death rate in the Late 1960s was estinlated at 150-200 per 100,000 abortions, with most of the abortions being illegal.'' Indeed, it is estimated that 50% of pregnancies in Latin Anwrica are currently terminated bv illegal al)ortions-resulting in the death of four times as many women as in countries wher(e abortions are legal.' In the United States, estimates on the number of illegal abortions ranged from 200.000 to 1.200.000 every year prior to the Supreme Court decisions on Roe v. Wade and Doe v. Bolton on January 22, 1973.'" In a recent study in the United States involving more than 600 young people between 13 and 19 years of age, it was estimated that 10% of all American female adolescents had been pregnant at least once. Among the nonvirgin girls, 11% of those betveer; the ages of 13 and 15 and 28% of those between 16 and 19 reported having been pregnant. That many of them resorted to abortions is evidenced by the opinion of the majority of the adolescents interviewed: "If tvo people are going to 340 The Abortion Experience have a baby that neither persol really wants, it is all right for the girl to have an abortion."': The above statistics suffice to show the prevalence of illegal abortion, even among predomiflautly Moslem and Catholic states, with the at- tendant high mortality rates.

Impact of Abortion Legalization upon Illegal Abortion and Birth Rates

Until the enactment of a more liberal abortion law in 1957, the number of criminal abortims in Czechoslovakia was estimated at approximately 8 100.(0)-300,(X)0 per year, as compared to only 2000-7000 legal abortions.' Liberalization of abortion law was followed, according to data for 1958-1997, by a sharp rise of the number of legal abortions to between 70,000 and 90,000 a year, and nearl' 100,000 in 1968, with a reduction in the number of illegal abortions iy 65-80.- Elsewhere in Eastern Europe, liberalization of abortion law was fol- lowed simultaneously 1w an increase in the number of legal abortions and a decrease in birth rates.*" In the six Eastern European countries with liberal abortion laws, birth rates declined by 40% in one decade following lilwralization;," in the two Eastern European countries (East Germany and Albania) which did not liberalize their laws, there was no appreciable decline in birth rates."" A decline of 50%was experienced 3 in Japan.2 Conversely, where a liberal abortion law is replaced by a restrictive one, there is a tendency for the birth rate to rise. For example, imme- diatey after Romania tightened its abortion law in October 1966, the birth rate junped from an average of 14.3 per 1000 population in 1966 to 27.3 in 1967. lowever, the rate declined subsequently to 26.8 in 1968 and 23.3 in 1969, as contraceptive use increased and as abortionists 4 returned to business and regained a clientele." The estimated birth rate as of January 1972, was 21.1.25 That a liberalized abortion lav can lead to a large percentage of abortions performed tnder proper medical supervision may be seen from the following statistics compiled b hospitals: In Uruguay, which has the most liberal abortion laws in Latin America, it appears that 75% of pregnancies are terminated by abortion in hospitals. The comparable figures for countries with more restrictive situations are Mexico, 13%; Peru, 57; Colombia, ranging from 2.3% in Cartagena to 13.7% in Manizales; Chile, ranging from 16.6% in Armijo and Monreal to 23.2% in Ilaquena; and Argentina, 48.7q."" What legalized abortion can accomplish in reducing the maternal death rate has been brought out dramatically by the New York experi- ence. The total number of maternal deaths in New York City in the International Status of Abortion Legalization 341

1960s ranged froin a high of 130 in 1961 (or 77 deaths per 100,000 live births) to a low of 66 in 196S (or 47 deaths per 100,000 live births)."-- During the first 2 years following legalization of abortion the maternal death rate declined ti:37.7 per 100,000 live births, a decline of 28% " from the preceding 2-year period when 'he rate was 52.2. The death rate in New York City for legal abortions performed in the first 12 weeks of pregnancy under the new abortion law has been less than 2 per 1)0.0(X) operations, which may he contrasted with 17 deaths per 1000() tonsillectomies and more than 20 per 100,0(0 full-terni deliveries. Another recent study has found only 6 deaths among 73,000 legal abortions perfonjned in 66 U.S. inedical iustitntions (or 8.2 deaths per 100,000 legal abortions) three times lower than the U.S. maternal mor- tality rate of 24.7 per 100,000 births.'" Not only the maternal mortality rate but also the infant and neonatal mortality rates declined in New York City. Thus, for 1969, the infant mortalitv rate was 24.4 per 10(X) live births; for 1970, 21.6; and for 1971, 20.7. As for neonatal mortality deaths occurring in the first 28 days of life- the decline was (ven more striking: from 18.1 to 16.2 to 14.9 during the same periods." The rate of out-of-wed!ock )irths has also declined. Out-of-wedlock births, which had been increasing "dramatically" in New York City in recent \'ears. showed a drop from 31,903 in 1970 to 28,126 in lem1, a decline (if 1l.ST- the first decline since 1954 when such birth records were kept.:"-' That the risk of abortions performed under proper medical conditions is lower than the risk of continued pregnancy and childbirth has been documented I)v Tietze.:' IHs statistics have demonstrated that only 69 women died anmong 2,500,000 women undergoing legal abortions in Czechoslovakia and hmgary in the period 1957-1967 (a mortality rate of 2.8 per 100,000 abortions). For most countries where abortion is il- legal, the mortality rate is expected to average 50-100 per 100,000 illegal abortions. In c(iltries where antisepsis is not practiced, the mortality rate associated with illegal abortion may reach or exceed 1000 per 100 000 such abortions. Indeed, the U.S. Supreme Court decision on Roe v. Wade,'" the Texas abortion case, was based in part on the "established medical fact that until the end of the first trimester mortality in abortion is less than mortality in normal chldbirth."

Inadequacy of Contraception Alone as Fertility Regulator

Human nature being what it is, it is unrealistic to expect that precautions to prevent conception will always be taken prior to sexual intercourse, 342 The Abortion Experience even though no pregnancy is intended. It suffices to cite a recent study showing theft 557 of non'irgin adolescents interviewed in the United States reported that neither they nor their partners used any birth control method nor did they do anything else to reduce the risk of pregnancy at the time of first sexual intercourse. Of this group of girls 19% indicated as a regular birth control method: "I just trusted to luck that I wouldn't become pregnant;" 8"' cited anotli," method: "I didn't think about whether or not I might become pregnant." The resultant pregnancy rates of 11% for nonvirgin girls aged 13-15 and 2S for those aged 16-19 should come as no surprise. :' But even when precautions are used, there is no certainty that preg- nancy will not occur. Despite the giant strides made in modern medical sciences, there is vet to be developed a foolproof contraceptive, uni- versallv avaiiable, and acceptable. A recent stud' in the Phillippines, based on a probability sample of 174 womeit who accepted family planning duing 1970 in 47 clinics, underseores the var ing degrees of effectiveness of different contraceptive methods. :' In the first place, the continuation rates var'y according to the methods use(l (allowance must be given to a small number of acceptors who shifted from one method to another), as evident from the following tabulation:

Method first All-method accepted continuation rate

Pills 66.8 IUD 85.4 Rhythm 52.8 Others 54.6 All acceptors 70.2

Second, the clinical probability of failure exists in all methods used, as seen from the next tabulation:

Probability of Rate of pregnancy Method first method failure regardless of status accepted (1) (2)

Pills 3.2 22.3 IUD 3.3 9.6 Rhythm 33.2 43.5 Others 12.1 33 3 All acceptors 7.2 21.5

Pending the achievement of "each pregnancy a wanted pregnancy," the ethical question may well be posed: If a woman, having determined International Status of Abortion Legalization 343 to avoid pregnancy, resorted conscientiously to a particular contraceptive method prescribed by' her physician or priest, but nevertheless became pregnant, should she, the child, or society be forced to bear tile conse- quences of such contraceptive failure? Although there is a general preference for coutraception over abortion as regulator of fertilit',v2- the experietoee indicates that abortion should bv made available in the event of contraceptive failure. In this regard, the Japanese experience is of interest.:" Given a population size and age distribution, it is possible to arrive at an estimate on tile approximate number of natural conceptions per ,ear in the al)sence of contraception. The difference b)etween such an estimate, oii the one ha'id, and the number of actual birth; and abortions, on the other, represents the num- ber of conceptions prevented by contraception. This formula is useftl in deternining the contraceptive effectiveness ,is-,'-vis abortion. If we u:e a Japanese estimate, the following ratios emerge::'"

Year Induced abortion Contraception

1955 6 4 1960 5 5 1965 3 7

It should he remembered that the year 1955 was the last of the 8-year population crisis in Japan (1948-195,5). The relatively high ratio of abor- tions to contraception in 1955 as compared to that of 1965 is perhaps instructive. Despite the relativelh high economic and educational stan- dard in Japan, it still took maiy years before contraception could replace abortion as the dominant method of population control. Given a lower economic and edcitational level, the process might b even longer. This, on the other hand, may be speededi up 1y discovery and use of more effective adi easily ad'ministered contraceptive devices and pills. Figure 16-1 shows the pattern relating the use of contraception and induced abortion to the number of live births in a country passing from a high to low birth rate."' Further, one must remember that the use of contraception is not totally free of morbidity. Birth control pills and, to a lesser extent, :itrauterine devices are accompanied bw occasional complications. As a result, in one review Tietze conchldedl, "The most rational way of regulating fer- tility is to use a perfectly safe, although not necessarily 100 percent effective, method of contraception and to terminate pregnancies resulting from contraceptive failure under the best possible circumstances, i.e., in a hospital operating room."" 344 Tite Abortion Experience

Births averted by the use of contraception

Figure 16-1. The pattern relating the use of contraception and induced abortion to the number of live births in a country passing from a high to low birth rate. [Reproduced from IPPF, Induced Abortion 1972,]

Consequences of Denied Abortions on Mothers and Children A number of reports have demonstrated the consequences of denied abortions upon the women, the children, and the society at large.42 In a Swedish study 120 children born after refusal by the authorities to grant permission for abortion were compared to paired controls of the same sex bon either in the same hospital or district to mothers who had not applied for abortion. After a close observation for 21 years, the former group of children were found to have higher incidences of psychiatric disorder, delinquency, criminal behavior, and alcoholism. They were more often recipients of public welfare assistance, were more unfit for military service, and received less schooling than those in the control group. The study concluded that the very fact that a woman applies for legal abortion indicates that the prospective child, if carried to term, will have a greater likelihood of social and mental problems than his peers." In another study in Sweden of 213 children born to women who therapeutic abortion, the unwanted children were had been refused 4 shown to be physically as well as mentally impaired. " An analysis of the records of 180 cases of disordered mother-child relationships at the Lasker Mental Hygiene renter of Hadassah, Jerusa- lem, similarly demonstrated a relatively frequent histcry of unsuccessful attcmpts by mothers to terminate pregnancies.41 In Prague, 254 of 555 women who had been refused legal abortion International Status of Abortion Legalization 345 resorted to spontaneous and criminal abortions. Tihe "unwanted children" from the remainder, who were observed over a period of 5 years, ap- peared at a disadvantage when compared with children whose mothers had not sought al)ortions during pregnancy.4 A British study following the liberalization of abortion law demon- strated that the stress of 1)earing an unwanted child could lead to psy- chiatric symptoms, especially in the overburdened multipara and for the single girl without support. In contrast, little psychiatric disturbance could be detected in patients whose pregnancy was terminated.'- Grim though the above picture is, it shows bit the tip of an iceberg, portraying the situation only in countries which offer an abortion review procedure or machinery--countries already with, by definition, liberal abortion !aws. Many\ more countries do not even provide for such proce- dure or machinery, thus making legal abortion much more difficult. While reactions to unwanted pregnancies may range from mere regret at inconvenience to trauma, children born under the latter circumstances may well be analogized to those born as a result of refused legal abor- tions, with comparable consequen ces. To cite but one example: the situa- tion of mixed blood children fathered but abandoned by foreign service- men. Many of the mothers are bar-girls, prostitutes, or maids.M In view of the women's need to continue their trades for a living and in view of the expected shame brought upon their families by the begetting of "half-breed" children (particularly if half-Black), the difficulty of identifying the natural fathers, and the near impossibility of compelling the latter to pay for the support of the children because of jurisdictional and distance problems,14 it may be assumed that, had legal abortions been available, they would have been obtained. Denial of such an oppor- tunity has produced many tragedies. In the first plaee, many mothers have abandoned these children to overcrowded orphanages in which children sometimes sleep two to a cot. They seldom visit the children who hunger for visitors' affection. In some orphanages in Vietnam, half-black children are kept apart from the other children.'( Physically conspicuous, and almost always abandoned by their fathers, the mixed-blood blacks grow up amid the taunts of their schoolmates, whether in Europe or in the Far East. According to a recent study in West Germany, which has a restrictive abortion law, 65% of some 8000 children of half-Black parentage are growing up psychologically retarded, sly, and inhibited.' In racially monolithic Japan, only a hand- ful of half-Black children-' have broken through the high walls of preju- dice, winding up mainly in the entertainment field. Even under the Confucian concept of tightly knit families, Korea's "half-castes" are con- sidered "outcastes," and their presence reminds many Koreans of the shame of vidospread prostitution.:' 346 The Abortion Experience Again, the question must be asked whether it is in the interest of the woman, of the prospective child, or of the society that unwanted pregnancies be required to come to term.

Discrimination against the Poor Where abortions are illegal, the rich can resort either to high-cost and illegal but safe abortions at home or to a pleasure trip abroad combined with an abortion. The poor can oily%stay home and face the conse- quences of either childbirth or high-risk, illegal operations. Thus built into a restrictive abortion law system is the inherent discriminatory treat- ment against the poor and the favoring of the rich. It raises the serious issues of justice and equal protection under the law. In Italy, for example, abortions by bona fide doctors operating in private clinics cost about $175-$500 or more; thus they are placed out of reach of low-income women.' In France, clandestine abortion operations are performed when women do not have $400-$600 to go to a clinic ii London or Geneva. Of 100 women brought to ' ,alIfor abortion, 26 were housewives without em- ployment, 35 were stenographers or typists, 15 were salesgirls, 16 were teachers or lab assistants, 5 were factory workers, and 3 were students", The results of a survey of 60 major hospitals throughout the United States prior to legalization of abortion demonstrated an enormously higher incidence of therapeutic abortion among private patients than among ward patients. In one extreme case, a hospital reported a thera- peutic abortion rate of 1 per 37 deliveries among its private patients, while another reported no abortions among 24,013 indigent patients de- livered. In New York City, a 10-fold higher incidence among private patients than among clinic patients was reported. ' According to another estimate, in a recent 1-year period, there were only 109 legal abortions performed in the municipal hospitals with 18,000 ward beds, as against 1731 abortions performed in private hospitals with only 4500 beds.-r That 16galization of abortion will mitigate such discrimination is evi- denced from the following statistics: In New York City in 1960-1961, the ratio of therapeutic abortions per 1000 deliveries was 2.6 for white women, 0.5 for black women, and 0.1 for Puerto Rican women. During the first 9 months after liberalization of the abortion law (July 1, 1970-March 31, 1971), the following changes in the ratio were noted: Abortions were performed on New York City residents at the rate of 4 for each 10 live births among whites, 6 for each 10 live births among blacks, and less than 3 for each 10 live births among Puerto Ricans.," In the words of Joseph Beasley: "The discrimination against the poor in regard to both education and the availability of adequate contracep- International Status of Abortion Legalization 347 tive services is in my opinion the major cause of the high rate of un- wanted pregnies observed.

Status of Women

Like family planning, equality of the sexes is recognized as a basic human right,"' although it has often been honored in its breach rather thvii its observance. E'veni today, polygamy runs rampant in many parts of the world, and( women's suffrage is by no means universal. During the last half-century, tremendous strides have been made in advancing vomen's position in the legal, educational, political, social, and economic fields--with a resultant decline in birth rates.12 In the Scandinavian and Socialist countries, and increasingly among several states of the United States, there also has ])een a growing tendency to broaden the definition of e(uality of women to include in the meaning that each woman should have the right to decide whether or not to hear children and that this right should include the right to have an abortion.', It evell has been pointed out that the opposition to the liberal- ization of abortion has been most marked in religious organizations which, bw tradition, have given a predominant role to men and which in one case has a celibate clergy; in contrast, countries which have adopted the most liberal abortion laws are those which, with the excep- tion of Japan, have most fullh recognized and implemented an equal status for wolen.. Further, some have claimed that the procedure under which abortion petitions are reviewed by hospital committees is but a thinly disguised attempt to perpetuate ihen's control over women in view of the all-male or nearly all-male composition of such committees.-r It is noteworthy that in a conflict between the right of Soviet women to abortion and the basically pronatalist policy of the Soviet Union in light of its luige underpopulated territories and losses of manpower resulting from the World Wars,' the women's right has itei-ed to pre- vail. It is not surprising that complete freedom to obtain an abortion exists in the People's Republic of China, now that its women are ac- corded complete equality with men."7

Separation of Church from State

Despite guarantees in most countries' constitutions of the separation of church from state, it is a self-evident truth that religion continues to have a strong influence on the law. This becomes most apparent when issues surrounding human reproduction are considered. The Islamic regligion forbids abortion after the "quickening" of the fetus, and no Moslem country permits such abortion. Similarly, the debates 348 The Abortion Experienrc oil divorce, contraception, and abortion in Roman Catholic countries indicate the strength of relgions influence. The successfui attempts in Italv to liberalize its divorce and anticontra- ct,pt;ve laws in 1970 and 1971, respectively, against Church opposition may signal a growing acceptance of the separation of church from state and may foreshadow some change in thw abortion law."' Elsewhere, there are also sipns suggesting i.wpending change." Even within the Church itself, there is increasing sent imnent, epitomizeld by the Vene- zuelan bishops. for a separation that would confine the Church's teaching to its own faithful and avoid imposing its views on the State and on non-Catholics.

Rediscovery of 'Traditional Laws Allowing Abortion

Where present laws create g'neral dissatisfaction, it is inevitable that peoples look back to see what were the traditional laws, why they gave way to the present laws, an(l w]tter tl~e reasons for ',hange re,nain valid. Such reexamination and revival of the past-- a kind of legal Renais- sance- -has led to some interesting discoveries: For example, it was found that at common law and for several decades after the ratification of the U.S. Constitutiom, there was no legal prolibition against abortion before quickeling." Surgical abortions before quickening were first pro- hibited in 180:3 in the United Kingdom by Lord Ellelnborough's Act, and in 1.829 bv the New York Revised Statutes of 1829, the latter being motivated, according to some authorities, 1 the risks connected with surgery in gncral. '" Since it is safer now to have abortion under proper medical supervision than continued pregnancy or child delivery, the question is understandal)lv raised as to the need for retaining such exist- ing laws.72 In the non-Western world, dissatisfaction with existing abortion laws led to the discovery that such laws had not been part of the indigenous cultural. religious, philosophic and legal traditions bt were products of imperialism or the wave of westernization attendant upon the Indus- trial Revolution. The upsurge of nationalism and the decolonization pro- cess following World War II accelerated the reawakening of the past- giving new impetus for legal change. A fev examples may suffice: In the ease of China, one, of the main tenets of Confucianism is that of filial piety stressing reverence to parents as liie-givers. The logical sequel is that what the parents have given, they can take away. Abortion is regarded more as parents' self-inflicted punishment than a "sin" against God or a "crime" against society. This explains the absence of any provi- 3 sion dealing with abortion in traditional Chinese penal codes., It was only during the late Manchu dynasty in the latter part of the nineteenth century that abortion was prohibited-as a result of an attempt to International Status of Abortion Legalization 349 westerilize tile Chinese legal sv:;tem. It should he noted, however, that the Mlanchu attempt was motivated, not by conviction, but by the desire to remove the extraterritorial regime I imposed the Western Powers removal of which was made contingent uponi China's judicial modernization. he establishment of the Peoples Republic of China in 1949 set the st;age for a reexamitnatioti of th, Western-originated legal system,', along with its antiabortion provisiotis, which had been adopted oy the Na- tionalist governimt it, Though a iew penal code has not vet bwen promlul- gated, abortion has bee. made not only legal, biit even rendered free, for the purpose of meeting China's nieed.7' It may le interesting to note that abortion has remained a "crime" under Article 288 of the penal code in Taiwa,. Similarly, abortion had not been considered a "crime" in Japan until the Nleiji Reform. In its effort to modernize the judiciaryv, the Mc-iji gov'ernmeit adopted a penal code along with its antiabortion provisions after the French model. I)espite the sinilaritv of the texts, the basic stage) Japanese and French approaches to life (including its etnbryoiic and to crime reiniined different. French la:ws against abortion were originally based oi the religious concept of God as the creator of life. Thus, it would be -violative of God's will to take away that which was given by llii i a concept alien to the Confncianist ph;lsophy which permeated Japan. In view of this difference in concepts it was not sur- prising that the post-World War II liberalization of abortion law in Japan struck a responsive chlord.-- Until World War II, much (if the Mosleti world was dominated 1 Great Britain, France, and Holland. along with their strict antiabor- tion laws. Independence resulted in the opportunity to review the useful- ness of these laws and their compatibility with the traditional Islamic jurisprudence. Such review brougmht to light the doctrine that although abortion after the fetus had acquired a life or soul of its own was abso- litely forbidden- "'haram"- there was disagreement on when the sold entered into the fetus. Most scholars agreed, however, that the soul was not createdti until the cinbrvo took on human shape; this occurred -it 40 to 120 days, depending on the school of thought to which one adhered." Then also was disagreement as to the necessity for a valid cause for abortion.'" Given these divergent views, it was not surprising that in 1965 Tunisia li,.i ilized its law to permit abortion, not only in the event that the mother's health would be seriously compromised by the continuance of pregnancy, bit also if the duration of pregnancy was less than 3 months and if both parents requested abortion in writo,:5 antd already had five living children.-" Elsewhere in the Moslem world, the sentiment for changing the existing laws also appears to be on the rise."' 350 The Abortion Experience

Although the Roman Catholic church is now taking an unequivocal position e(uating abortion with murder, whatever the stage of fetal (tevelopmnent.' its doctrine has not l)een a consistent one. The Didache, the first recorded condemnation in ecclesiastical writings, enjoined: "You shall not slav the child 1)v abortion. You shall not kill what is gener- ated."' Ilowever. a distinction between a "formed" and "unformed" fetus inade its mark between the fifth and twelfth centuries. With the publication of Cratian's D'creltum in 1140--the first systematic attempt at compiling ec('lesiastic legislation the distinction became firmly estab- lished: "lie is not a mur'derer who brings about abortion before the soul is in the bodv."I' From 159! to 1869, the Church taught that the unborn infant acquired a soul only with the quickening---the first move- ment- --of its bodv ( generally between the 12th and 15th week of preg- nancy). An abortion which took place prior to this period fell into a less serious category of sin. Also, between the fifteenth and eighteenth centuries, the d(ctrine was developed justifying abortion if necessary to save the life of the mother.' It view of the change in the Church's doctrine on abortion, its "one dimensional approach"' condemning all abortions as murders, and cer- tain theoretic weakness," an increasing number of Roman Catholics have been calling for abortion reform. Some would even remove abortion from penal legislation altog'ther--regarding it as a private matter be- tween a woman and her physician." The intransigence of 'he Church's stand against contraception in an\ forn except the rhythn method has not helped its position on abortion."" That abortion legalization is not incompatible with a preaomnixiantly Catholic country is evidenced .)y the liberal abortion legislation adopted in East European countries such as Czechoslovakia, Hungary, and Poland'" as well as in Uruguay.112 Also in France,"' Belgium, "' and Italy"5 there are signs of a more liberal trend in regard to abortion legislation. It may be quite possible, however, that recmphasis of traditional laws in some cases may vork against, instead of for, abortion liberalization. For example, Ilinduism regards abortion as tantamount to the murder of a irrahman---the crime of crimes--for blocking reincarnation oi inter- fering with the wheels of the transmigration of souls"' The restrictive abortion law imposed by erstwhile British colonialists thus found a recep- tive soil in India. E'en so, stark socioeconomic necessity resulted in an estimated 6.5 million abortions a year (2.6 million natural and 3.9 million induced ) prior to the liberalization of abortion law which took effect in Januar' 1972.11 However, notwithstanding liberalization, abort- tion may not be as widely utilized as intended by the legislature be- cause of the Hindu attitude toward it. Vasectomy, on the other hand, bestirs little of the adverse reactions directed against abortion. In fact, Hinduism has held sexual abstinence (with which sterilization is more International Status of Abortion Legalization 351 associated than is abortion) in high esteem, ascribing to it a certain quality of aestheticism. This may explain, at least in part, the popularity of vasectomy cimps in India to which a festive spirit usually is endowed.

JUDICIAL AND LEGISLATIVE RESPONSES

The judicial and legislative responses to the forces wovrking toward abor- each tion legalization described above have taken the folloving forms, of which will be briefly described:

Nonprosecution or Nominal Penalty upon Conviction an It is no secret that, even in coumtries forbidding abortion under or circumstances, abortion operations continue to exist, with very few re- 110 prosecutions. In the Philippines, for example, the draconian and strictive nature of the abortion law (allowing for no abortion under any circumstances) has been accompanied by nonprosecution in r cent abortionist.!)' years- -either of thl woman or of the In Thailand, which has a restrictive abortion law, municipal hospitals receive large nuubers of vonen requiring treatment for postabortion and at least one hospital reports all such cases to the complications, ' police department. Actual prosecutions, however, are rare.11" Ill most of the countries of the Middle East, which have continued the repressive legislation against abortion, the laws are rarely enforced, and many illegal abortions are even performed by physicians in hospitals or priv'ate clinics."' In the Netherlands, despite the severity of punishment for abortions under the criminal code, the latter is not enforced. ''- In fact, several abortion clinics run bw a speciall' created foundation for medically indi- cated abortions (Stimezo) are 'operating without in terference l)v the department of justice.'"' In Italy, oil 150-200 people have been prosecuted annually in recent years in spite of estimates of as many as 800,000-3,000,000 criminal abor- tions a vear.'"' In Belgium, an average of 60 people, including only one doctor, have drawn jail tertns annually under its strict abortion law over a 5-year period. As mentioned earlier, a conservative estimate of the number of abortions is 30,000 per year as compared with 0,000 births.," Despite the rigidity of abortion law in the French penal code, the number of actual convictions has been estimated at 500-600 a year, or scarcely higher than 2 per 1000.""; Even in case of conviction, the court is likely to impose ol a mild sentence. Thus, a court in suburban Bobigny imposed a suspended $500 fine on November 22, 1972, on Mine. Michele Chevalier for finding all abortionist for her 16-year-old daughter, 352 The Abortion Experience

Marie Claire.'': This despite Art. :317 of the penal code which provides that "any person who has procurel or attempted to procure the abortion of a pregnant wonman" is liable to 1-5 years' imprisonment and a fine of 1S00-36,000 F. 'lhe (daughter herself had been set free earlier notvithstanding the liabilitv under the code to imprisonment for 6 months to 2 years at-d a line of 360-72() F. Even the aborti ;Jst drew only a suspended sentence notwithstanding penalties of up to 'I years in prison and fines as high as $14,00.1'

Liberal Interpretation of Existing Law

Since the law revision process is usuaIdy cumbersome as well as time consuming, some judiciaries have preferred to give a liberal interpreta- tion to existing laws rather than to adhere strictly to the letter of the law. A case in point is the Japanese interpretation of Art. 14 (1) (iv) of the Eugenic Protection Law which authorizes a designated physician to perform an abortion operation on a "mother whose health may be affected seriously by the continuation of pregnancy or by delivery, from the physical or economic viewpoint" (italics supplied). Although "economic" reasons alone would not, under a strict interpre- tation of the Japanese law, constitute sufficient grounds for abortion, the obvious difficulty or impossibility of proving the serious adverse effects of economic conditions on health has resulted in such a liberal interpretation of the law that, in practice, the requirement to prove them has been dropped, and every wealthy and healthy woman can obtain an abortion. Indeed most ot the operations for induced abortion have been performed on economic grounds.1.. Liberal interpretation of existing laws may extend to the area of bur- den of proof with similar results. Thus, in te case of United States v. Vaitch"', involving the constitutionality of the District of Columbia's abortion statute which forbids abortion "unless the same were done as necessary for the preservation of the mother's life or health," the United States Suprene Court, while dismissing the vagueness charge, decided that the burden of pleading anmd proving "beyond a reasonable doubt" that the abortion was not "necessary for the preservation of the mother's life or health" rests with the prosecution. Such a holding, according to larriet Pilpei, had the effect of reducing "considerably any risk physicians may incur in connection with any abortion statute."''

Establishment or Ex!ension of Grounds for Legal Abortion

The usual device in liberalizing abort n law has been to establish or extend the grounds for legal abor .i-ranging from medical (life, healtli)112 to any or all of the followiin : eugenic, ethical (humanitarian), International Status of Abortion Legalization 353 medicosocial, social, and ag:'.1 : Among these, the first three are the most common and are perhaps best expressed in the Model Penal Code provisions on abortion as recommended by the American Law Institute:"4

1. if there is "substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother" 2. if "the child would be born with grave physical or mental defect" 3. if "the pregnancy resulted from rapt, incest or other felonious intercourse.'

The laws of some countries also provide for "lnedicosocial indications" (e.g., previous deliveries in close succession, interval since the last de- liven', difficult financial situation, or ill health of other members of the household), "social indications" (e.g., number of living children, hard- ship, and environmental consideration), or "age" as an indication (e.g., above or below certain age).", Where abortion is permitted on one or more 3f the grounds discussed above, there are usually qualifications (contraindications) explicitly for- bidding abortion under certain circumstances, e.g., progress of pregnancy beyond a certain stage (quickening, viability) or time (10-28 weeks), nonfulfillment of residency requirement,'' presence of certain diseases, and withholding of consent bw the spouse. Some of the grounds may produce the same effect as abortion on request because (of difficulty of proving nonfulfillment. Thus, although the new Indian abortion law, which was passed in August 1971, and went into effect in January 1972, does not stipulate contraceptive failures explicitly as a ground for abortion, Explanation II to Art. 3(2), which authoriz,,s abortion if contimed pregnancy would involve a risk of grave injury to the' mental health of the woman, provides: Whe,'e a, pregnancy occurs as a resuilt of failure of any device or method used 1)y any married woman or her husband for the purpose of limiting the numer of children, the anguish caused by such unwanted pregnancy may ibe presuned to constitute a grave injury to the mental health of the pregnant \vollaiin.

Abortion on Request

The term "abortion on request" or "abortion on demand" is actually a misnomer, for there are invariably ce.tain conditions, formalities, or procedures to be observed or fees to be paid. It is generally taken to mean the elimination of the need to specify any ground for abortion,'" within a specified period of gestation. Under the November 23, 1955 decree of the Soviet Union, for example, abortions may be performed 354 The Abortion Experience by qualified personnel in medical facilities. However, a Ministry of Health instruction on December 28, 1955, provided a list of contraindica- tions, tinder which no abortion may be perforrmed. ' These contraindica- tions are: 1. acute or chronic gonorrhea 2. acute or chronic inflammatory conditions of the sexua! organs 3. purulent foci, irrespective of localization 4. acute infectious diseases 5. abortion within the preceding 6 months Special permission is required in pregnancies more than 12 weeks old. A gynecologist usually discusses with each woman the reason for her application for abortion and warns her of possible adverse effects. How- ever, if the woman persists, her application must be granted. The cost for an induced abortion is 5 rubles (U.S. $6.10); therapeutic abortions are performed free of charge.' ' In a landmark decision on January 22, 1973, the United States Supreme Court, in Roe v. Wade,12' the Texas abortion case, ruled that: a. For the first 3 months of pregnancy, the decision to have an abortion lies with the woman and her doctor. b. For the next 6 months of pregnancy, state laws may regulate the abortion procedure reasonably related to maternal health. c. For the last 10 weeks of pregnancy, when the fetus is judged capable of surviving if born, any state may prohihit abortion except where necessary to preserve the life or health of the mother. In a separate decision on a challenge to the Georgia abortion law, Doe v. Bolton,'2' the Supreme Court declared unconstitutional any resi- dency requirement as well as the Georgia requirements that abortion operations be performed in private hospitals, applicants be screened by hospital committees, and certification be made by two independent doctors to the effect that continued pregnancy would cause potential danger to the woman's health. The Texas decision will invalidate strict antiabortion laws in 31 states, while the Georgia decision vill require amendments of abortion statutes in 16 others plus those which have in effect allowed abortion on request but have imposed a residency requirement (Alaska, Hawaii, and Washington). Underlying these decisions is the majority's rejection of the argument that a fetus becomes a "person" upon conception and thus is entitled to full due process and equal protection guarantees under the Constitu- tion. The Court explicitly held that the fetus is not a person within the meaning of the Fourteenth Amendment. International Status of Abortion Legalization 355

The Court observed that tile restrictive criminal abortion laws in effect in the majority of the states were of comparatively recent origin-dating, for the most part, to the latter half of the nineteenth century when abortion operations were hazardous for the woman. It took note of im- proved medical knowledge ii, the established fact that mortality in abor- tion until the end of the first trimester is less than mortality in childbirth. Also noted are the detrimental effects of denied abortions upon the woman, the unwanted child, and all concerned, psychologically and otherwise. Expounding on the right of privacy which it first invoked in 1965 to invalidate a Connecticut law prohibitiog the use of contracep- tives (Griswold v. Connecticut),'-" the Court held that this right "is broad enough to encompass a woman's decision whether or not to termi- nate her pregnancy." The sum effect of these decisions is that the Court recognized that there must be a compelling state interest to warrant interference with the woman's basic right to privacy. No such interest exists in the first trimester. Hlowever, the interest appears to a limited extent in the second trimester, and becomes strong during the third. Although, as the Chief Justice stated, this is not abortion onl demand, the decisions nevertheless allow the woman and her doctor to make whatever decisions on abortion that may be appropriate during the first trimester without governmental interference.

Integration of Abortion into Free Family Planning Services

Finally, a country may not only permit abortion on request but also make abortion a tree public service --thus implementing in effect the 1969 United Nations Declaration on Social Progress and Development calling on U.N. members to provide families with not only the knowledge but also the "means necessary to enable them to exercise their right to determine freely and responsibly the number and spacing of their children."-123 The People's Republic of China, having reportedly "the best family planning programme in the world," ' , belongs to this category. A recent report by Faundes and Luukkainen confirmed that "in China induced abortion is performed free on request.- They described the procedure 25 as follows: '

As soon as a woman realizes that she is missing a period, she attends the clinic . .. If a positive diagnosis is made on the first visit and the patient declares that she does not want to have the baby, she is immediately taken to the appropriate ward where she waits for her turn to have an abortion ... [She] will have 15 days of paid vacation and 18 (lays if an IUD was inserted postabortion. 356 The Abortion Experience Early abortions are usually performed by nurses and, in the communes, by trained barefoot doctor: or midwives. The complication rate seems to be very low because of the good aseptic procedures used ...

Mortality resulting from abortion seems to be nonexistent or extremely low.

It ma' be noted that the procedure outlined above was not based on any judicial decision or published legislation. 2 1 In light of the dichotomy between 1i (Confucian ethics) and fa (written code) in the traditional Chinese legal system, in which 1i invariably prevailed over fa in the event of a conflict,' :7 it would not be surprising that integration of abor- tion into free family planning services was a decision made by the Com- munist Part.', aided by mass organization and support, pursuant to the ideals of a new 1i in a new societv. 2 ,

CONCLUSIONS

Despite continued strong opposition to abortion on various grounds, the general trend points unmistakably toward abor- tion legalization, so long as the forces working toward it remain un- abated. In fact, five of the world's most populous countries comprising a majority of the world's total population-United States, Japan, Soviet Union, India, and China' "--now have laws which virtually allow abor- tion on re(tlest. It is interesting to note that each of these countries has approached abortion legalization via a different route: the United States, judicial decisions; Japan, liberal interpretation of existing law; Soviet Union, new legislation; India, official explanation forming part of new legislation; and China, party decision and mass support.

REFERENCES 1. International Planned Parenthood Federation, Induced Abortions, London, IPPF, 1972, p. 27. 2. EI-Kammash, Magdi M., and EI-Kammash, Gloria F., "The United Arab Repub- lic," Luke T. Lee and Arthur Larson, Population and Law, Leiden, A. W. Sijthoff, and Durham, N.C., Rule of Law Press, 1971, p. 369. 3. See l)r. Nusret 1. Fisek's statement, in Robert E. flall, ed., Abortion in a Changing World, New York, Columbia University Press, 1970, vol. 1, p. 47. 4. World Ifealth Organization, Abortion Laws: A Survey of Current World Legisla- tion, Geneva, W11O, 1971, p. 39. 5. New York Times, Jan. 25, 1973, p. 5, col. 4. Another estimate placed the number at "75,000 to 100,000 at the very ninimum." (Dr. P. 0. Hubinont, "Families d'Aujourdhui," p. 122); still another estimate, at 200,000. (La Famille lleureuse, "Belgium," in Lee and Larson, op. cit., p. 174n). International Status of Abortion Legalization 357

6. Ferrari, Guido, -'Report in Italy," ( Draft Working Palwrs for the International Union for the Scientific Study of Population s Commiittee on Legislation Directly or Indirectly influencing Fertility in Europe; hercinafter cited as IUSSP Working Paper) (nineographed), 1972, p. 17. 7. 1d. at 19. 8. New York Times, Jan. 16, 1973. p. 30, col. .. A recent study based on interviews with 558 31-sear-old married wolien in low-incomue neighborhoods in Rome showed an incidence of 2 '.oortions for every 2 to 3 surviving children. Ibid. 9. Boston Globe, Jan. 20, 197:3, p. 2, col. 1. 10. (Gitte, Ida and Hodfmann Nowotny, llans-Joachim, "Report on Switzerland," IUSSP Working Paper, p. 205. 11. Diggory, Peter, "Experience with the New British La,'" Hall, op. cit., vol. 1, p. 144. 12. WIHO. op. cit., pp. 56-57. 13. Romero, elernan, 'Chile," in Family Planning and Population Programs, A Rericw of World Der-clopments, proceedings of the International Conference on Family planning and Population Programs, Chicago, University of Chicago Press. 1966, pp. 235, 245; Rocenir. Ruth, "Abortion Law: The Approaches of Different Nations," American Journal of Public Health, vol. 57, no. 11, No'. 1967, p. 19)t6. 14. IPPF, op. cit., p. 27. 15. See l)r. Edwin M. Gold's statement inll all, op. cit., vol. 2, p. 15. 16. U.S., Population and the American Future: Report of the Commission on Population Growth and the American Futur', Washington, D.C., Government Printing Office, 1972, p. 102. 17. Sorensen, Robert C., and I lendin, )avid, "Adolescent Sexuality in Contemporary

America: A Survey of Teenage Attitudes and Practices," Boston Globe Maga- zine, Feb. 18, 1973, pp. .- 9 (adapted from The Sorenscn Report: Adolescent Sexuality in Contemporary Anerica, New York, World). 18. WHO, op. cit., pp. -19-50. 19. Id. at 50. See also Malcolm Potts, "Legal Abortion in Eastern Europe," Eugenics Review, vo,. 59, no. I, 1)ec. 1967, p. 2.11. 20. WHO, op. cit., pp. -17-59. 21. Brackett, James W., "Demographic Consequences of Abortion," Studies in Family Planning, May 1970, p. 6. 22. l)avid, Ilenry P., Family Planning and Abortion in the Socialist Countries of Central and Eastern Europe, New York, Population Council, 1970, pp. 232, 2-19. The German l)emocratic Republic liberalized its abortion law in 1972. For text, see Abortion Research Notes, vol. 1, no. 2, Aug. 1972, supplement. 23. Brackett, op. cit., p. 6. 24. )avid, op. cit., p. 131. 25. See 1972 World Population Data Sheet-Population Reference Bureau Inc. The figure was based upon U.N., Population and Vital Statistics Report, Series A, vol. 24, no. 1. 26. See Centro Nacional de Familia, Estudio Sabre Aborto Inducido, La Paz Bolivia, vol. 2, no. 5, May 1970, p. 2, Table 1. 358 The Abortion Experience

27. Pakter, Jean, and Nelson, Frieda, "Abortion in New York City: The First Nine Months," Family Planning Perspectives, vol. 3, no. 3 (July 1971), p. 10, Table 12: Maternal Deaths, Total and Due to Abortions, New York City, 1960-April 30. 1971. S.e also Supplenittary Brief for Amici Curiae: Roe v. Wade, US. Supreme Court No. 70-18, and Doe v. Bolton, U.S. Supreme Court No. 70- I0 (OTht ob : Tei.ri 197 2), p.7. 28. New York Times, Oct. 8, 1972, p. 20, vol. 5. 29. Id., Jan. 28, 1973, p. -15, col. 2. 30. Time Magazine, Feb. 5, 1973, p. 50. 31. Chase, Cordon, in hearings before the Commission on Population and the American Future, NeW York, Sept. 27-28, 1971; quoted in U.S., Population and the American Fuituire, op. cit., p. 102. 32. New York Times, Oct. 8, 1972, p. 20, col. 6. Since man) young people marry to legitit,'ze conceptioms, the decline in "illegitimacy" could lead to a reduction in teenage marriages, v,.'hich are twice as likely to result in divorce as those of older couples. See Brody, jane L., "Landmark Ruling on Abortion," New York Times, Jan. 28, 1973, section 4, p. 3. 33. Tietze, Christopher, "Somatic Consequence, of Abortion," presented at the NICID/NINII Workshop on Abortion, Bethesda, Maryland, December 15-16, 1969 (National Institute and Child Health and Human Development, and National Institutes of Mental health); summary in Studies in Family Planning, May 1970. pp. 2-3. 34. No. 70-18, Jan. 22, 1973. 35. Sorensen and Ilendin, op. cit., pp. (-10. 36. Laing, John E., "12-Month Use Effectiveness for Family Planning Acceptors, by Method," based on the initial tabulation if the 1972 National Aceptor Survey concerning the relative effectiveness of pills, IUD, the rhythm method and others. Excerpted in Lee, Luke T., and Bulatao, Rodolfo A., In-Depth Study onl Law and Fertility Behavior: Preliminary Observations ( mimeo- graphed), 1972 pp. 116-18. 37. There is evidence showing that even where abortion is legally available on social and medical grounds, the abortion rate can decline with the passage of time. IPPF, Induced Abortions, p. 20. 38. Lee, "Japan," in Lee and Larson, op. cit., pp. 3-1-35. 39. Personal interview with Mr. Hisao Aoki, Ministry of Health and Welfare, Tokyo, March 15, 1967. 40. Page 18. See also IPPF, Abortion: A World Survey (Supplement to International Planned Parenthood News, Mar. 1972). 41. Hall, op. cit. vol. 2, p. 121. 42. See, generally, Hlardin, Garret, "Abortion and Human Dignity," in A. Gutt- macher, ed., Case for Legalized Abortion Nonw, Berkeley, Calif., Diablo Press, 1967, pp. 12-13. 43. Forssman, Hans, and Thuwe, Inga, "One hundred and Twenty Children Born after Application for Therapeutic Abortion Refused: Their Mental Health, Social Adjustment and Educational Level up to the Age of 21," Acta Psychiat. Scand., vol. 42, 1966, pp. 71-88. 44. Hook, Kerstin, "Refused Abortion: A Follow-up Study of Two Hundred and Forty-nine Women Whose Applications Were Refused by the National Board of Health in Sweden," id., Supplement 168, vol. 39, 1963; Nadelson, Carol, Internationai Status of Abortion Legalization 359

"Psychological Issues ini Thirapeutic Altorti,"The' lolii illii Phiysician, 27:1, 1972. .45. Capivii. Gerald. "The I )i irltanu e of thle Motther-Child R'latiiiliIp hv Unsuc- cessful AttetipIs at Abortniri." Metitil llgienc', vol. /38. 195.1, pp. 67, 68. .16. Potts, op. cit.. p). 2.17. .17. Pare, CM..,aid Ha\,. !1.. "Follow-up of Patituts Preferred for Tr nuinlltion ) of Pregiiaic'i." "it. Iancet,. Mar. 2,. I970,Ipl . 635-384t Nadelsoi, op. cit. .18. Biisti Ginib, I)c. 18, 1972, p). 19, col. 3. -19. 'le laws of \irtuali v all 6vilizi d ctnitiies rcqiuh t iinaural fathers to pay for the sUpport of t hcir clildren, whet lic rit h i or out of wedlock. In view of the iallbilit' of foreign nationals to reach the natural fathers wvhmo nay lie placed uider the excloi\e jurisdiction of the sending state by virtue of their iteitsiliiliip ilt lhe iiariied firces. an attemitpt tite iibade to alleviate i tt sill teri i,rg l h li appropriate iiilateral. bilateral, ir n ultilateral acti(o s.

5). Btiston (Jbite, )ec. 18, 1972, p).19. cii.1. 51. "'The Albanidoined," Newswee-k lagazii i, Febl. 13, 19(67, p. 50. 52. The estitmateis on the t nt biieir ofinixed blilods sired durhig the pist war Anmerican occupation if Japan irantge frUt ilt low Japantese otfficial figure (if .1000 to 50,000. Ibid. 53. "Cotifucihs' Outcasts: S tlh Ktirea,"Tite Magazine, )ec. 10, 1965, p. .13. 51. New Yor'tk Tihtes, Jai. 16, 1973, p).30. col . .1. 55. New York Tiiies, Oct. 12. 1972. 56. SectI)r. Kenethili R. N iswantdtr's statemnt, i ill, iip. cit., vol. 2, pp. 28-29. That tnil private paitiits had significait' v higher comnplicatiii rates than private patiiiits call ibie setli il 'Tlietize, (hristoplthsi, atid Lt wit, Saralh. "Jontit Program for the Stdiiv if Albtiri'iti JiSA): E2arlv Medical Coinplications of Legal Aitortiii," Studies ii I'atttilv I'latiting,. June 1972, Tralles 17 and 35. 57. See Percy E. Sutton's stateticlit, ini II al, .p. cit., viil. 2, p. :32. 1 58. .tettiiirat idUi if Assei it iiwtiniii Coist atnice (Ciok, Nei York Lgi.slatiie An- nul1, 1970, p. 2.1t; cited ii Su ppl tal ' Brief for Aniici Curiav: lloe v. Vadi', No. 70-18, aiil I)tit' v. Biltiti, Nil. 70-.10, p. 8. 59. Pakter antd Nelson, ip. ('it.. p. 8. (i. Sve l)r. Jtisepli I). Basleys stat nient, Hall, tip. cit., vi. 2, p. 22. 61. Universal )eclaration oif lininan iHi ilts, Art. 2; International Covenant onl Civil atnd Political Highits, Art. 3; Iitiriatitinal Civeia n i' cototmic, Social and Cultural Rights. Art. 3; aid )eclaraititi oil tle l itnination if 1)iscrimina- utitagaiist Woiiteit, Arts.. 1, .1, 6, 9., and 10. 62. A detailed adid svsteittatic stdV oilthe status iif wometnteas a factor nifluencing fertility is liiitig uiidurtaketi livbyti U.N. Comtmiiioniiii on hie Status of Voimen. See U.N. ECOSOC )iic. E/CN. (6/561.2, 28 I)'c. 1971: The Hole of Women i) tie ii ilh: Status ioif WoinIiIt, and Fan

of Defendants-Respondents by Arnici Curiae: Byrn v. New York City Health and Hospitals Corp., 38 A.D. 2d 310 (1972), pp. 15-19. 6,1. See Emily Moore's statement, Hall, op. cit., vol. 2, p. 101. 65. Id. at 102. 66. Grzybowski, Kazimierz, "Soviet Union," Lee and Larson, op. cit., p. 286. 67. A wealth of literature exists, but only the following need be mentioned: Chandrasekhar, S., Red China: An Asian V"',w, New York, Frederick A. Praeger, 1962, pp. 74-87; Shinbun, Yomiuri, and Tn.nmbull, Robert, This Is Communist China, New York, Van R.'s Press, 1968, pp. 174-82; Portisch, Hugo, Red China Today (transl. from the German by Heinz von Koschembahr) New York, Fawcett World Librarv, 1967. 68. New York Times, Jan. 16, 1973, p. 30, col. 5. Loris Fortuna, an Italian Socialist deputy and one of two sponsors of the divorce law passed in 1970, presented a draft law aiming at legalizing abortion at a press conference to be introduced in the Chamber of Deputies on Feb. 11. Ste Boston Globe, Jan. 20, 1973, p.2, col. 1. 69. In a dramatic demonstration against existing restrictive abortion law, 343 of France's most prominent women declared in Nativel Observateur that they had hroket: the law by undergoing abortion. The women included the writers Simone de Beauvoir, Franqoise Sagan, Violette Leduc, and Marguerite Duras; the actresses Jeanne Moreau, Catherine l)eneuve, Marina Vlady, and Micheline Presle, the television director Franqoise Fabian, and many others of outstanding career or family. See New York Times, Apr. 5, 1971, p. 28, col. 1. The feminine act of defiance was followed in less than 2 years by a manifesto for "Freedom of Abortion" also published by Notive? Observateur, and signed by 345 French doctors ---some highly respected in their specialties-who risked penalties of up to 10 years in prison, fines as high as $11,000, and debarment from practice, by admitting publicly that the) had performed abortions. Another group of 250 professional people announced that the ' consider themselves jointly responsible for abortions that physicians among them have performed "in circumstances where interruption of pregnancy appears an absolute moral obligation." Abortion thus became an important issue in the next elections for the National Assembly. New York Times, Feb. 6, 1973, p. 3, col. 1. "See Le Monde, June 16, 1973, for text of Le Project de Loi relatif d lnter- ruption de la Grossesse, approved by the Council of Ministers." For signs of change in Belgiun and Italy, see New York Times, Jan. 25, 1973, p. 5, col. .1, and Jan. 16, 1973, p. 30, col. .1, respectively. For the Netherlands, half of whose population is Roman Catholic, see van de Kaa, D.J., with the collaboration of Slob, J.J., "Provisional Report on the Nether- lands," IUSSP Working Paper, pp. 6-9. 70. Lucas. Roy, "Laws of the United States," flall, op. cit., vol. 1, p. 128. 71. See Cyril C. Means' statement, Hall, op. cit.,, 1.1, pp. 138-39. 72. Indeed, the U.S. Supreme Court in Roe . Wade pointedly observed that the restrictive criminal abortions laws in ,ct in the majority of the states were of comparatively recent origin- -datii ., for the most part, to the latter half of the nineteenth century when abortion operations were hazardous to the woman. It stressed the established fact that until the end of the first trimester mortality in abortion is less than mortalitv in childbirth. 73. An examination of Ta Tsing Leu Lee (The Laws and Statutes of the Dynasty of Tsing), (1799, translation by Sir George Thomas Staunton, published in London, 1810), as well as earlier codes has failed to unearth any provision International Status of Abortion Legalization 361

against abortion. Among the works cansuilte(t are: luang Ming Chill Shu, Ku T'ang ,ii Slit 1, T'ang Lii Shr 1, T'ang Lii T'7ng Lun, Han Lii Chi Cheng. and Chit Ch'ao Lii K'ao. See also Yii Cheng llsiu, tlsin-fa Fen-tse Shih-!. (Interpretation of Articles in C-iminal Law, Taipci, 1956), vol. 3, p. 850. The author is indebted to Dr. Eugene \Vt., Curator of the Ilarvard-Yenching Institute, and his stall for their courtesy in enabling him to undertake the above study. 7-1. This is a system under which Western Powers exercised full civil and criminal jurisdiction over their nationals in China through their consuls. For a historical development and analysis of the system, see Lee, Luke T.: Consular Law and Practice, London, Stevens and Sons, and New York, Frederick A. Praeger, 1961, pp. 205-12; reproduced in Lee, China and International Agreements, Leiden, A. \V. Sijthoff, and Durham, N.C., Rule of Law Press, 1969, Appendix 2. 75. Lee, Luke T., "Chinese Communist Law: Its Background and )evelopment," 60 Michigan Lax Review, 1962, pp. 439-72. 76. See Section 111-5, infra. 77. Lee, "Japan," in Lee and Larson, op. cit., pp. 32-44. The discussion on China and Japan above would apply to all countries with the Confucianist influence, e.g., Korea, Vietnam, and Singapore. 78. EI-Kaininash, Magdi M., "Islamic Countries," in Lee and Larson, Population and Law, 1. 313; Ullah Shehalb, M. Rafi, "Islamic Attitude Towards Various Methods of Contraception" (paper presented to IPPF Middle East and North Africa Region Conference on "Islam and Planned Parenthood," Dec. 26-30, 1971, in Rabat ), pp. 1-2. 79. ElI-Kamnimash, Magdi M., op. cit., p. 313. 80. Loi No. 65-2.1 du ler Juillet 1965 (2 rabiz I 1385), relative i l'avortement; Lee, "Tunisia," id. at 317. 81. For Turkish law authorizing abortion oil medical grounds, see Turkey's Official Gazette, Apr. 15, 1965, Arts. 3-5. Therapeutic abortion on medical grounds is allowed in most contries ir the Middle East, except Jordan, Syria, Lebanon, and Saudi Arabia. But even in Jordan and Lebanon, the law takes into account the demand for abortion to protect the woman's reputation and her family's honor. The Grand Nufti of Jordan stated in Dec. 1961: "[]t is permissible to take medicine to procure abortion so long as the embryo is unformed in bunian shape" (the period of the unformed human state being given as 12() days). Sce Isam R. Nazer's statement in Hall, op. cit., vol. 1, pp. 267, 268; IPPF, Proceedings of the 8th International Conference of the International Planned Parenthood Federation (1967), p. 1-10. See also IPPF, Abortion: A World Survey (Supplement to International Planned Parenthood News, Mar. 1972). 82. O'Donnell, Thomas J., "A Traditional Catholic's View," liall, op. cit., vol. 1,pp. 31-38. 83. Grarfield, David, "A Catholic Lawyer's View," id. at 149. 8.1. Callahan, Daniel, Abortion: Law, Choice and Morality, London, Macmillan Co., 1970, p. 411. 85. Id. at 413. 86. Id. at 412. 87. Id. at .109. 362 The Abortion Experience

88. Catholic moralists have long held that life is present from the moment of conception. However, new biologic knowledge concerning the process of twin- ning may require a rethinking of the question. Since twinning-the splitting of the formative cells into two lots to form twins- may occur 2 or 3 weeks after conception, the old theory of life beginning at conception has come under dispute. See New York Times, Feb. 18, 1973, section 4, p. 10, col. 1. 89. See the view of the Rev. Robert F. 'rinan, former Dean of Boston College School of Law and currently a Den. .atic Representative from Massachusetts, and an open letter by the Roman Catholic bishops of Texas, in New York Times, Jan. 2, 1973, p. 24, col. 3. Contrast the above with the Re'. I)rinan's earlier view in his article, "The Inviolability of the Right to be Born," in Smith, David T., Ed., Abortion and the Law, Cleveland, Press of Western Reserve University, 1967, pp. 107-23. An organi. ation was recently established, entitled. "Catholics for the Elimina- tion of All Restrictive Abortion and Contraceptive Laws," with active participa- tion of some of the memiers of The Order of St. Ursula. See New York Post, Feb. 2, 1973, p. 2, col. 1. A Gallup poll conducted in Aug. 1972, showed that 56T of Roman Catholics believed that ahortion was a matter to he decided solel\ between a womar. and her doctor. Cited in New York Times, Feb. 18, 1973, section 4, p. 10, col. 1. 90. McCormack, Arthur, "People in Asia: A Report from Tokyo on the Second Asian Population CQ.nference," The Tablet, Nov. 25, 1972, pp. 1118-19; New Yerk Times, Feb. 18, 1973, section 4, p. 10, col. 1. 91. Potts, op. cit., p. 2-18. 92. See Section 328 of the Penal Code (as amended by Law No. 9763 of 24 Jan. 1938) concerning the extenuating circumstances and exemptions from punishment in cases of abortion. Thus: (I) if the offence wis performed to safeguard the honour of the woman or that of her spouse ,'r a close relative, the penalty is reduced by one-third to one-half; the judge may totally exempt the parties concerned from punish- ment in the case of abortion performed with consent, after an examination of the circumstances of the case; (2) if the abortion is performed without the consent of the woman in order to terminate a pregna.,cy resulting front rape, the penalty is reduced by one-third to one-half, no penalty being imposed if the operation is carried out with the woman's consent; (3) if the abortion is performed without the consent of the woman, on account of a serious danger to health, the penalty is reduced by one-third to one-half while if it is carried out with her consent or in order to save her life, the penalty may even be totally waived; (4) in cases where an abortion is performed without the woman's consent, for reasons of serious economic difficult) [angustia economical, the judge may reduce the penalty by one-third to one-half, while where an abortion is performed on such grounds with the woman's consent, the penalty may even he totally waived; (5) the reduction of the penalty and the total exemption therefrom referred to above apply only if thte abortion is performed by a physician during the first three months of pregnancy (this time limit does not apply in cases covered by item 3 above). (WHO, op. cit., p. 26.) 93 See note 69 supra. 94. See note 69 supra. 95. See note 68 supra. International Status of Abortion Legalization 363

York, 116. See De'ereux, George, A Study of Abortion in Primitire Societies, New the Julian Press, 1955, p. 5.1. Se' also Miller, Max. Ed., Sacred Books of Eamt (transl. by (eorge Butler. Oxford, Clhoctodon Press. 1882), vol. XIV, Sacred Laws, Part II: Vasishtha and Bandhavana, (XXVIII, 9 Secret Penances, p. 133): "Those versed in the Sacred Law state that there are three acts (only) slaving a which make wonien outcasts (viz.) the norder of the ihusband, learned Brahniana and the destruction of the fruit of their womb." who Also, Blhrunahan was defined as (XX, 21 Penances, p. 105): '[one] kills a Braliana or destroys an emolriso the scx of which is unknown." Planning, 97. Minist rv of IHealth and Faiilv l'lanningt. l)elpartment of Family of Government of India, Report of the Committee to Study time Legislation Abortioll, 1967. p. 18; Singh, Saran ;irdcv. "India," in Lee and Larson, op. cit., p. 110. passed 98. The Medical Termination of Pregnancy Bill No. XXII-B of 1969 was in Aug. 1971 and came into effect in Jan. 1972. 99. Lee and Bulatao, li-Iept/m Study on Late and Fertility Behavior: Preliminary Observations (mimeographed), 1972, p.It)0. 100. Fawcett, Welcome, "Thailand," in Lee and Larson, op. cit., p. 79. 101. \HO, op. cit., pp. 37-38. 102. san de Kaa, op. cit.. p. 6. 103. Ibid. 104. New York Times. Jan. 16, 1973, p. 30, col. 5. 105. New York Times, Jan. 25, 1973, p. 5, col. 1. 106. WIlO, op. cit., p. 39. 107. Boston Globe, Nov. 2.1, 1972, p. 52, col. 1. ) 108. New York Times, Fcb. 6, 1973, . 3, cols. 1, 3. Mar. 109. Interview with Mr. lisao Aoki, Ministry of Health and Welfare, Tokyo, 15, 1967; Muramatsn, Minoru, Some Facts about Family Planning in Japan, 1955, P. 9; Lee, "Japan," in Lee and Larson, op. cit., pp. 16-17. 110. -102 U.S. 62 ( 1971 ). 111. Pilpel, larriet, Brief Surveiy of U.S. Population Law (Law and Population Roe Monograph Series No. 2, 1971), p. 8. This decision was superseded by v. \Vade and Doe v. lolton in 1973. 112. The most stringent albortiom laws allow albortion only where it is necessary to save the life of the woman, as still exist in France and most of the franco- term plhone African states, Pakistan, and a few Latin American states. The "health" is sometimes defined to cover mental as well as physical health. is invariably It is olbvioms that wlhre "health" is an indication for albortion, it allow accompanied h)y that of "life," and that whe're the legislative texts (life albortion on nonmedical grounds, they invariably allov it on medical and health) as well. in its 113. The classification here follows that of the World Health Organization pmiblication, Abortion Laws: A Survey of Current World Legislation, 1971, pp. 6-10. Official 11-1. See American Law Institute, Model Penal Code, See. 230.3 [Proposed of Draft 19621, which had been substantially followed by 13 of the states Wade the U.S. prior to the Jan. 22, 1973, Supreme Court decisions on Roe v. 364 The Abortion Experience

and Doe v. Bolton. See Brief in Support of Defendants-Respondents by Amici Curiae: Byrn v. New York City Health and Hospitals Corp., op. cit., p. 43. 115. For worldwide surveys of indications for legal abortion, see id., Appendix A; IPPF, Abortion: A World Snrtey (Supplement to International Planned Parenthood News, Mar. 1972); David, Henry P., Alam, Zahur, and Kalis, Mary G., Abortion Legislation: A Summary International Classification, Silver Spring. Md., International Reference Center for Abortion Research/Transna- tional Family Research Institute, 1972. For a survey on the developing countries, see Lee, Abortion Laws of the Developing Countries ( mimeographed), revised to Jan. 1972. 116. The residency requirement in U.S. legislation (Alaska, Hawaii, and Washington) was declared unconstitutional in Doe v. Bolton. 117. WHO, op. cit., p. 10. 118. Id.at 13; David, op. cit., pp. 16, 62; Grzybowski, op. cit., p. 279. 119. Mehlen, K. If., Internationale Abortsituation, 1961, p. 272. 120. No. 70-18, Jan. 22, 1973. 121. No. 70-40, Jan. 22, 1973. 122. 381 U.S. 179 (1965). 123. Art. 22(b). The Declaration was adopted by the U.N. General Assembly by a vote of 119 in favor, none opposed, with 2 abstentions. 124. Katagiri, Tamevoshi, "IPPF Observer Reports China's Programme 'Best in World,'" International Planned Parenthood News, no. 218, June 1972. 125. See "Hlealth and Family Planning Services in the Chinese People's Republic," Studies in Family Planning, July 1972, p. 173. For earlier reports, see "Fewer and Better," Far Eastern Economic Review, Oct. 14, 1965, pp. 47-50; Katagiri, "Family Planning and Abortion in the People's Republic of China," Abortion Research Notes, vol. 1, no. 3, Nov. 1972, Supplement; Huang Yu-chuan, Bidh Conirol in Communist China (mimeographed), 1970. 126. The last known decree was made in May, 1957, by the Ministry of Public Health permitting induced abortions under three conditions: (1) that the pregnancy is clinically ascertained to be of less than three months' duration; (2) that the pregnant woman is declared by a medical doctor not to be affected by a disease which would rule out such an operation; (3) that no induced abortion has been performed within the last past 12 months. See Huang, op. cit., p. 135. 127. Lee, Luke T., "Chinese Communist Law: Its Background and Development," 60 Michigan Law Review, 1962, pp. -140--442. 128. Id. at 445. 129. The population of the five nations totals 1,974 million, as against the world's total population of 3,782 million, according to the 1972 World Population Data Sheet, based on population information for 160 countries, compiled by the Population Reference Bureau, Washington, D.C. International Advisory Committee on Population and Law

The Programme is under the general supervision of an International Advisory Committee on Population and Law, which is on the roster of non- governmental organizations accredited to the U.N. Economic and Social Council. The Committee meets annually in different regions of the world. Its members are: Professor Georges Abi-Saab (Institute of InternationalStudies, Geneva) Professor Richard Baxter (Har vard Iniiversitit) Professor K. Bentsi-Enchill lniversty of Ghana) Mr. Robert Black (Orgaiizationfor Econonic Cooperation and Development) Dr. Jean Bourgeois-Pichat rComitt; Iiternational,tc Coordination des Rechercics Nation als cn Dt;piograp/hic) Mr. Philander Claxton, Jr (LIS. Department of State) Lic. Gerardo Cornejo M. (6umdacioinpara Estudios d' la Polilaci6n, A.C., Aleico) Dean Irene Cortes ( ULntcrsitl'oft tlt' Philippines) Dr. Jean de Moerloose IWolil Hcalth Organization) Mr. Carl M. Frisen (U.N. Ecoioniic Commission for Asia and the Far East) Ambassador Melquiades ]. Gamboa (Uniretsitiy of the Philippines) Mr. Robert K. A. Gardiner (U N. Economic Commission for Africa) Professor Richard Gardner (Cohonlia Univers~ty) Mr. Halvor Gille (LI. N. Fund for Population Activities) Professor Leo Gross Fletchcr School of Law and Diploinaci,) Dean Edmund A. Gullion rFletchcr School of Law aid Diplomacy) Miss Julia Henderson (lntc1national Planned ParenthoodFederation) Mr. Edmund H. Kellogg i'Ic/ier Scliool o l.aui aid Diplo macy) Professor Dudley Kirk (Stantord Inversiti) Dean Peter F. Krogh (Gctoi,toiin i.niversiti) Dr. Arthur Larson lDukt' Unicrsiti) Dr. Luke T. Lee (ftltchcr School of Lau, aid Diplomacy) Mr. Thomas C. Lyons, Jr. ([1.S. A.'ci*nci for InternationalDevelopment) Vice-Chancellor 0. Roy Marshall (Universitil of the West Indies) Mr. Bertil Mathsson IU.N.F.S.C.O.) The Reverend Arthur McCormack (Vatican) Mr. Robert Meserve (Aiicrican Par Association) Dr. Minoru Muramatsu (liistitutc ot Public Health, Japan) Mrs. Harriet F. Pilpel IU.S. Planied Parcnthood- World Population) Dr. Rafael M. Salas (U.N, Fund for Population Activities) Mr. Marc Schreiber (U.N. Hluman Rights Division) Mrs. Helvi Sipila (Assistant Secretary-General for Social and Humanitarian Affairs, U.N.) Mr. Leon Tabah (U.N. Population Division)