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Abortion: the Five-Year Revolution and Its Impact

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Abortion: the Five-Year Revolution and Its Impact ABORTION: THE FIVE-YEAR REVOLUTION AND ITS IMPACT The most pressing environmental problems in America and throughout the world are attributable in significant part to rapid and continuing increase in population. Many have looked to 1he reform of abortion laws as a means of controlling population growth. In January 1973 the United States Supreme Court, in Roe v. Wade and Doe v. Bolton, abruptly overturned restrictive abortion laws throughout the United States. This Comment analyzes these decisions, particularly their public health and demographic aspects. The author concludes that the nation's medical facilities will readily adjust to the increased demand for abortions and that the primary effect of legalization will be an improvement in the quality of abortion operations, rather than an increase in the quantity of operationsperformed. In Roe v. Wade and Doe v. Bolton,' two landmark decisions an- nounced January 22, 1973, the United States Supreme Court invali- dated abortion laws in 31 states and the District of Columbia and struck out critical provisions in the statutes of 14 others.2 The deci- sions marked the climax of over five years of intensive efforts to reform abortion statutes, a struggle characterized by rapid changes in public, medical, and judicial opinion on this controversial issue. Until 1967 the availability of legal abortions was severely re- stricted throughout the United States by state laws permitting abortion only when the mother's life was seriously threatened by continuation of pregnancy. Since 1967, 16 state legislatures have passed variations of a liberalized therapeutic abortion act which eased many of the re- strictions.3 In addition, legal attacks on both traditional and liberalized 1. 410 U.S. 113 (1973) and 410 U.S. 179 (1973). Justice Blackmun wrote the majority opinion in both cases while Justices White and Rehnquist filed dissenting opinions. At the time of the first argument on December 13, 1971, Justices Powell and Rehnquist had been nominated to the Court but their appointments were awaiting Senate approval. On June 26, 1972, the Supreme Court held the cases over for rear- gument before a full court, postponing until 1973 the announcement of its decision. Rumors of political rivalries and rifts accompanied the postponement, and it was al- leged that Chief Justice Burger had overstepped his traditional role by assigning the writing of the majority opinion to Justice Blackmun. See N.Y. Times, July 5, 1972, at 27, col. 1. 2. See Tables I and II, pp. 345, 346 infra. Residency requirements in the Alaska, Hawaii and Washington statutes have been invalidated; the New York law is the only one left intact by the decision. See Table III, p. 347 infra, for statutory citations. 3. See text accompanying notes 14-15 infra, and 347 infra. ECOLOGY LAW QUARTERLY [Vol. 3:311 abortion laws were begun in state and federal courts, culminating in the Roe v. Wade and Doe v. Bolton decisions. This Comment explores the effects of the legalization of abortion on medical facilities and procedures throughout the nation and evalu- ates its probable impact on long-term population projections. While several questions, primarily medical in nature, remain open, these de- cisions will initiate a radical change in medical practice by removing almost entirely from the penal code criminal sanctions upon the only medical procedure so encumbered. HISTORICAL PERSPECTIVE: ABORTION BEFORE 1973 A. Abortion Laws: From Prohibition to Statutory Liberalization_- The medical definition of abortion, both spontaneous and induced, is "the expulsion of an embryo prior to the start of 'viability' or 'quick- ening.' "I While abortion has been practiced for almost 5000 years, prohibitive legal enactments are relatively modern.' Under the com- mon law abortion before quickening was not a crime." Connecticut passed the first law forbidding abortion of a quick fetus in 182 1,7 and the other states followed suit, either entirely discarding the quickening distinction or keeping it solely to vary the criminal penalty." In addition to traditional abortion statutes, manslaughter penalties have been enforced for the death of the unborn child or the mother 4. L. HELLMAN & J. PRITCHARD, WILLIAMS OBSTETRICS 493 (14th ed. 1971). Viability (the time at which the fetus is capable of life outside the womb) has been determined as falling between 24 and 28 weeks of gestation. Quickening refers to that period between 16 and 18 weeks of gestation when the fetus first moves in the mother's uterus. For discussion of these and related medical terms see Roy, Abor- tion: A Physician's View, 9 WASHBURN L.J. 391 (1970). 5. References to induced abortion have been found in early Chinese and Egyp- tian accounts and the ancient Greeks favored termination of pregnancy for other than medical reasons. Guttmacher in "Abortion-Yesterday, Today and Tomorrow" (printed in THE CASE FOR LIBERALIZED ABORTION Now, pamphlet series, 1967) notes that before enactment of the first abortion statute in England in 1803, abortion was punishable only by religious penalties. See also Roe v. Wade, 410 U.S. at 130. 6. For an excellent and thorough coverage of the English common law on abortion, as adopted by Georgia and Texas, see Means, The Phoenix of Abortional Freedom, 17 N.Y.L.F. 335, 336-82 (1971). See also Roe v. Wade, 410 U.S. at 132-38. 7. Conn. Stat. Tit. 20, § 14 (1821). The power to penalize or to legalize abor- tion has been held a matter for the states and not for Congress. Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wis., 1970), appealdismissed, 400 U.S. 1 (170). 8. For a thorough description of abortion codes and practices in other coun- tries, see D. CALLAHAN, ABORTION: LAW, CHOICE AND MORALITY (1970). Medical and demographic experiences with legalized abortion -insome European countries and Japan are well documented in Tietze, Legal Abortion in Industrialized Countries, 45 STUDIEs IN FAMILY PLANNING 6 (1969). 19731 ABORTION DECISIONS after abortion.' Thirteen states have feticide statutes which penalize as manslaughter the killing of an unborn "quick" child by injury to the mother which would be murder if it had caused the death of the mother.1" The effect of this legislation was that prior to 1967 every state prohibited induced abortions other than to save the life of the mother. The medical profession tended to interpret these laws con- servatively, and estimates of the numbers of therapeutic abortions per- formed between 1963 and 1966 range from 5000 to 9000 a year." During the early 1960's the dilemma of the pregnant woman seek- ing an abortion was made public by the problem of children with physical defects born to women who had unknowingly ingested thal- idomide in the first trimester of pregnancy. The problem was further highlighted in 1964 by a nationwide rubella epidemic, which caused an estimated 30,000 defective children12 and a sharp increase in the 13 number of abortions. In 1962 the final draft of the Model Penal Code on abortion was completed. The Model Code permitted abortion in the first 26 weeks of gestation where: the pregnancy resulted from rape or incest; there was a substantial risk that continued pregnancy would endanger the woman's life or gravely impair her physical or mental health; or there was substantial risk that the child would be born with grave physical or mental defects. 14 Performance in a licensed hospital (with the ex- ception of an emergency situation) and written certification by two physicians before performance of the abortion also were required. Thus, the Model Code formally introduced the concepts of therapeutic 9. State v. Willson, 113 Ore. 450, 230 P. 810 (1924); Sans v. State, 147 Neb. 67, 22 N.W.2d 385 (1946). In almost all jurisdictions abandonment by the physician after the performance of an abortion has compounded the crime. Wolcott v. Gaines, 255 Ga. 373, 169 S.E.2d 165 (1969); Henrie v. Griffith, 395 P.2d 80 (Okla. 1964). In civil suits wrongful death actions have been successful and claims of negligence in medical aftercare have allowed recovery at least to the extent of injuries suffered. Henrie v. Griffith, 395 P.2d 809 (Okla. 1964); Lembo v. Donnell, 116 Me. 505, 101 A. 469 (1917). 10. It is interesting to note that three of these states (Arkansas, Georgia, and South Carolina) have adopted an inconsistent position of liberalizing abortion laws, thus deemphasizing the legal significance of the fetus, while at the same time promot- ing fetal rights by protecting it from interference by third parties. For an analysis of this discrepancy see Note, A Survey of the Present Statutory and Case Law on Abortion: The Contradictionsand the Problems, 1972 U. ILL. L.F. 177, 191-95 (1972). 11. Tietze, United States: Therapeutic Abortions, 1963 to 1968, 59 STUDIES IN FAMILY PLANNING, 5-7 (1970). 12. Niswander, Medical Abortion Practices in the United States, 17 CASE W. REs. L. REV. 403, 412 (1965). 13. Tietze, supra note 11, at 5-7. The high of 9000 reported abortions in 1964 was due to the rubella epidemic. 14. AMERICAN LAW INsTITUTE, MODEL PENAL CODE, § 230.2 (proposed official draft, 1962). ECOLOGY LAW QUARTERLY [Vol. 3:311 abortion ("to preserve the life or health of the mother") and eugenic abortion (based on the possibility of a defective fetus) into the legal system. In response, from 1967 to 1970 the legislatures of twelve states enacted liberalized therapeutic abortion laws similar to the Model Code. Limited reforms allowing abortions solely to save the life or health of the mother were passed in the District of Columbia and in Alabama. Since 1970 Alaska, Hawaii, and New York have passed laws which essentially legalize abortion on request by eliminating requirements for justification; Washington achieved the same result by popular referen- dum.
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