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 announced January 22, 1973, the United States Supreme Court invalidated abortion laws in 31 states and the District of Columbia and struck out critical provisions in the statutes of 14 others.2 The decisions 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 restrictions.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 reargument before a full court, postponing until 1973 the announcement of its decision. Rumors of political rivalries and rifts accompanied the postponement, and it was alleged 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 decisions 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 'quickening.' "I While abortion has been practiced for almost 5000 years, prohibitive legal enactments are relatively modern.' Under the common 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 abortion 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 countries, 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 performed between 1963 and 1966 range from 5000 to 9000 a year." During the early 1960's the dilemma of the pregnant woman seeking 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. The abortion laws of the 50 states and the District of Columbia thus could be divided into four categories: those prohibiting all abortions; traditional laws permitting abortions only to save the life of the mother; therapeutic abortion laws modeled after the Model Penal Code; and laws removing all but minor procedural restraints upon the performance of abortions up to the period of viability.15 Louisiana, Massachusetts, New Jersey and Pennsylvania provided no specific exceptions to the abortion prohibition. However, decisional law in Massachusetts has construed the standard as similar to that of a therapeutic abortion statute,'" and the New Jersey Supreme Court has deemed an abortion justified if performed to preserve the life, but not the health, of the mother.' 7 In Louisiana, there is no express excep- tion to the "crime of abortion' 8 in the criminal code, but the Louisiana Medical Practice Act permits abortion if done for the "relief of a woman whose life appears imperiled after due consultation with another licensed physician."1'9 states with liberalized laws, there was a wide range of limi- In the 20 tations on the maximum period of gestation allowing legal abortion.

15. See Tables I and II, pp. 345, 346 infra, for a comprehensive breakdown of all state abortion laws, detailing both justification and procedural requirements. Four states permit abortion to save the life of the mother or the child. This seeming con- tradition in terminology can be explained only if one assumes that it was intended to specifically exempt induced labor from the scope of the abortion statutes. 23 other states permit abortion only if necessary to save the life of the mother. 14 states and the District of Columbia recognize as justification a threat to the physical or mental health of the woman. Eugenic grounds are permitted in 12 states, rape in 14 states, and incest or "felonious intercourse" in 11. Four states allow abortion on demand up to the period of viability. 16. Comm. v. Brunelle, 341 Mass. 675, 171 N.E.2d 850 (1961). 17. State v. Brandenburg, 137 N.J.L. 124, 58 A.2d 709 (Sup. Ct. 1948). 18. LA. REV. STAT. ANN. 14 § 87 (West 1951). 19. LA. REV. STAT. ANN. 37 § 1285(6) (West 1964). 20. See Table II, p. 346 inIra. Most fall between 16 and 26 weeks. Arkansas, Florida, Georgia, Kansas, North Carolina, South Carolina and Virginia have no dura- tional limits on the length of pregnancy and thus conceivably would permit therapeutic abortions on viable fetuses of eight months or more. 1973] ABORTION DECISIONS

In addition, several states impose residence requirements, which ranged from proof of bona fide legal residence to a requirement that the woman be a resident 120 days immediately preceding the abortion.21 Procedural requirements regarding medical approval and qualifications 22 of doctors and hospitals also varied from state to state.

B. Changing Attitudes Towards Abortion Concurrent with the initial liberalization of state abortion laws came a widespread shift in public attitudes, marking an increased acceptance of abortion as a legitimate medical procedure and method of birth control.23 Although religious advocates of the fetal right to life continued to maintain their views,24 it became clear by the late 1960's that for a variety of reasons public opinion favored reform on the overall issue of abortion. Opponents of abortion reform claim that the fetus should be re- garded as a person for constitutional purposes, and therefore is guar- anteed the right to life by the Fifth and Fourteenth Amendments.2 5

21. Id. 22. Id. Preliminary approval by other physicians or a hospital therapeutic abortion committee often must be obtained. In addition, several states require special approval in rape and incest cases, entailing affidavits, reports to local law enforcement officers, and even compulsory identification of the male involved. Other procedural impediments include requirements of a medical practitioner licensed to practice in the state, performance in a licensed hospital, accreditation of the hospital, certifi- cates and reports in hospital files, and reports to a state agency. Further statutory and procedural features involving screening exceptions in emergencies, freedom of conscience exemptions, requirement of consent, as well as elements of traditional abortion statutes such as proof of necessity, corroboration, quickening tests and defenses are discussed at length in George, The Evolving Law of Abortion, 23 CASE W. Rm. L. REV. 708 (1972). 23. See D. CALLAHAN, supra note 8; Peyton, Facog, Starry & Leidy, Women's Attitudes Concerning Abortion, 34 OB. & GYN. 182 (1969); Lamm & Davison, Abor- tion Reform, 1:4 YALE REV. L. & Soc. Ac'rtoN, 55 (1971). See generally Moyers, Abortion Laws: A Study in Social Change, 7 SAN DIEGO L. REV. 237 (1970). 24. Opposition to the reform movement has centered primarily in religious organizations. The Roman Catholic Church, in particular, has maintained steadfast opposition to abortion reform and has submitted amicus curiae briefs in test cases of various state abortion laws. Several other religious denominations, however, have ad- vocated liberalization. For example, while the Greek Orthodox and Orthodox Jewish congregations have condemned indiscriminate abortions, groups representing Reform Jews, United Methodists, United Presbyterians, and Southern Baptists have called for varying degrees of reform. For a comprehensive presentation of religious positions on abortion, see D. CALLAHAN, supra note 8; Noonan, Amendment of the Abortion Law: Relevant Data and Judicial Opinion, 15 CATH. LAw. 124 (1969); Louisell, Abortion, The Practice of Medicine and Due Process of Law, 16 U.C.L.A. L. REV. 233 (1969); Drinan, The Morality of Abortion Laws, 14 CAm. LAw. 190 (1968). 25. Some courts have rejected the notion that fetal life was within the contem- plation of either the Bill of Rights or the Civil Rights Act, 42 U.S.C.A. § 1981 et seq. This point is explored in Roe v. Wade, the Supreme Court concluding that the word ECOLOGY LAW QUARTERLY [Vol. 3:3 11

The. theory of the inviolability of the fetal right to life finds its roots in Judaeo-Christian morality which emphasizes the sanctity of human life. 26 This fundamental right, it is argued, underlies all guarantees in the Constitution, for "without the implicit existence of that right, the other protections become hollow mockeries. ' 7 Having accepted as absolute the fetal right to life, it is difficult to justify any exceptions to abortion prohibition, even for the possibility of the loss of the mother's life. Alternatives such as adoptions and the appointment of a guardian for the fetus to appear at an abortion hearing have been suggested.28 Proponents of the right to life also assert that unborn persons have vested property rights (although subject to divestiture if they are not born alive) and analogize that the right to life is also vested.29 Analysis of the legal recognition of the fetus as a human being, however, reveals an important distinction between the criminal law which recognizes a state interest in the protection of the unborn child and the civil law which generally holds that the rights of the fetus do not at- tach until the accomplishment of a live birth or at least quickening.Y0

"person" as used in the Fourteenth Amendment does not include the unborn. 410 U.S. at 158. McGarvey v. Magee-Women's Hospital, 340 F. Supp. 751 (W.D. Pa. 1972) and Byrn v. N.Y. City Health and Hospitals Corp., 31 N.Y.2d 194, 335 N.Y.S. 2d 390, 286 N.E.2d 887 (1972). No state requires a death certificate for a fetus before 20 weeks, nor are fetuses counted in the census. For an analysis of fetal rights in general, see Note, The Law and the Unborn Child: The Legal and Logical Incon- sistencies, 46 NOTRE DAME LAW. 349 (1971). See also Comment, A Cause of Action for Wrongful Life: A Suggested Analysis, 55 MINN. L. REv. 58 (1970). 26. Abortion can be justified only if society has the right to prescribe the conditions of continuing life, and to authorize the weighing of the right to life against other values. To concede such a societal right is to depart from the Judaeo-Christian ethic of reverence for human life. Louisell, supra note 24, at 253. 27. Comment, In Defense of the Right to Life: The Constitutionality of Thera- peutic Abortion, I GA. L. REV. 693, 698 (1967). The nature of the fetal right to life is explored in Abortion Legislation and the Establishment Clause, 15 CATm. LAW. 108 (1969), which sets forth the amicus curiae brief submitted in People v. Belous, 71 Cal. 2d 954, 458 P.2d 194, 80 Cal. Rptr. 354 (1969). 28. See Louisell, supra note 24, at 251. The New York Court of Appeals rejected this approach in Byrn v. N.Y. City Health and Hospitals Corp., 31 N.Y.2d 194, 335 N.Y.S.2d 390, 286 N.E.2d 887 (1972). 29. Thorough coverage of the position of the unborn child in the laws of property, torts, criminal law and equity may be found in Id. at 235-44; Note, The Law and the Unborn Child, supra note 25, at 351-69. 30. In the law of torts, for example, it has been held that the rights that an unborn infant will enjoy when born can be violated before birth, Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1960); but generally live birth is a prerequisite to recovery for prenatal injuries. A New York Court, however, would deny fetal recovery for wrongful death from injuries sustained prior to birth on the theory that: The considerations of justice which mandate the recovery of damages by an infant, injured in his mother's womb and born deformed through the wrong of a third party, are absent where the foetus, deprived of life while yet unborn, is never faced with the prospect of impaired mental or physical health. 1973] ABORTION DECISIONS

Moreover, the criteria for determining when human life begins have been a source of controversy for scientists and theologians alike for many years.8 ' Even after conception, environmental factors such as nutrition, disease, teratogenic agents, drugs, irradiation, maternal age, psychological elements and socio-economic problems all can affect prenatal development and must be considered in assessing the rights of the fetus. The Model Penal Code and therapeutic abortion laws based upon it have adopted a balance of fetal and maternal interests, concluding that "the evil of destroying the fetus is outweighed by the social evils accompanying forced pregnancy and childbirth. '3 2 Critics of this test contend that the Model Penal Code's justifications for liberalized abortion-i.e., to combat maternal mortality, to reserve the criminal law for substandard behavior, and to recognize inadequacies in current abortion laws-fail to meet the need for an explicit evaluation of the fetus in light of the increasing utilitarianism of our society.3 Louisell, for one, argues: , . . [The Model Penal Code] confronts the law's evolution with a countermovement. It would justify the weighing of the right to life on scales open only to utilitarian weights. . . . The right to life becomes relative not only to others' right to life, but to others' health, happiness, convenience and desires for freedom from avoid- agent able burdens. And the scales-master is to be not a neutral 84 such as the court, but the person who desires to avoid the burden. Despite continuing legal debate over treatment of fetal rights, public attitudes underwent a dramatic change in the last decade on the general issue of abortion. While early opinion polls taken from 1965 to 1968 did not indicate much support for far-reaching abortion reform," the Gallup poll has noted a recent radical shift in public senti- ment. In 1968 less than 15 percent of the public approved of liberalized abortion laws; in 1969 the figure had risen to 46 percent and in August, 1972, the poll reported that for the first time a majority

Endresz v. Friedberg, 24 N.Y.2d 478, 483, 301 N.Y.S.2d 65, 69, 248 N.E.2d 901, 903 (1969). See also Comment, supra note 25. 31. See also Brief Amicus Curiae of Certain Physicians, Professors and Fellows of the American College of Obstetrics and Gynecology submitted in Roe v. Wade, 410 U.S. 113 (1973). The data include an assertion that brain waves have been obtained from fetuses of 45 days, and thus implies that a "soul" is present at that time. Id. at p. 8. For an opposing theory, see Means, supra note 6, at 406-10. 32. Clark, Religion, Morality and Abortion: A Constitutional Appraisal, 2 LOYOLA L. REv. 1, 4 (1969); AMEICAN LAW INsTrrUTE, MODEL PENAL CODE § 230.3 (1962). 33. See Gianella, The Difficult Quest for a Truly Humane Abortion Law, 13 VILL. L. REV. 257, 262 (1968). 34. Louisell, supra note 24, at 248. 35. Kutner, Due Process of Abortion, 53 M, NN. L. Rzv. 1, 20 (1968). ECOLOGY LAW QUARTERLY [Vol. 3:311

(64 percent) of the public, including a majority of Roman Catholics, felt that the abortion decision should be made solely by the woman and her physician.8" In addition, national professional organizations adopted resolu- tions calling for liberalized abortion laws. In 1970 the American Medical Association (AMA) adopted a position statement removing limitations it had previously specified in its 1967 statement, which was based upon the Model Penal Code recommendations. The AMA concluded that "the standards of sound clinical judgment . . .together with informed patient consent should be determinative according to the merits of each individual case."37 In 1972 the American Bar Associa- tion approved the Uniform Abortion Act, permitting abortion on request up to 20 weeks of gestation. The Act would also permit abortion after that period on grounds similar to those provided by therapeutic statutes.3" The President's Commission on Population Growth and The American Future in March, 1972, published a formal recommen- dation that all states enact legislation similar to that of New York, that abortion services be publicly funded and that costs be covered by health insurance. Though specifically rejected by President Nixon, 9 the proposals encouraged legislative and judicial campaigns in the lat- ter half of 1972 for repeal of restrictive abortion laws. A combination of social forces stimulated the dramatic change in attitudes: concern with overpopulation and environmental issues; reac- tion to the influence of religious groups in the public sphere; the social pressures of poverty, growing welfare rolls, and illegitimacy rates. Feminism has played an increasingly important part, demanding wom-

36. N.Y. Times, Aug. 25, 1972, at 1, col. 3. See also S.F. Chronicle, Jan. 29, 1973, at 1, col. 1. 37. Proceedings of the AMA House of Delegates 221 (June 1970). See discussion in Roe v. Wade, 410 U.S. at 144-46. The American College of Obstetricians and Gynecologists, the American Public Health Association and local medical organizations in New York and New Jersey also have urged abortion law reform. From a medical standpoint, the reasons for liberalization are twofold. First, there is a high rate of maternal mortality and complications in the United States with concomitant public health problems associated with childbirth; secondly, a reform of the laws would allow "the medical profession the dignity of operating within the legal framework instead of at odds with it." Mahoney, Therapeutic Abortion-The Psychiatric implications-A Double-Edged Sword?, 72 DIcK. L. REv. 270, 292 (1968). 38. Uniform Abortion Act, 58 A.B.A.J. 380 (1972). See Roe v. Wade, 410 U.S. at 146. 39. President Nixon has consistently refused such recommendations. He also intervened in the New York repeal effort in a letter to Cardinal Cook expressing his private concern for the "sanctity of life", and in January of 1971, by Executive Order, he summarily curtailed the policy announced by the military of providing abortion on request for military personnel and their dependents regardless of state or local law. N.Y. Times, Aug. 17, 1972, at 35, col. 1. 19731 ABORTION DECISIONS en's roles outside the home and emphasizing the woman's right to the integrity of her body. 0 Advocates stress the argument that the decision to bear or not to bear a child is one for the woman alone to make and that "a woman's right not to bear a child should be protected 41 equally with a man's right to procreate." The disrespect for existing law and its consequent unenforceabil- ity highlight recent debates on the social, medical, and ethical aspects of abortion. Lamm indicates that since 1967 the focus of public attention on the abortion issue has shifted from a moral stand on fetal rights to concerns over public health, the environment, and overpopulation, indicating a public readiness to disengage the state from mat- 4 2 ters of private morality.

C. Challenges to Abortion Laws While therapeutic abortion laws were being proposed, enacted, and often rejected in state legislatures, constitutional attacks on the various statutes were being mounted through the judicial process. Al- though actions in several states have been stalled on jurisdictional grounds,4" many cases have been decided on the merits and a variety of constitutional arguments have been addressed. Reformers alleged that both therapeutic and traditional laws were vague, overbroad, and in violation of due process. They also argued that the criminal restrictions on induced abortion interfered with the physician's right to practice his profession freely and the woman's right to choose whether or not

40. In 1969 a resolution of the National Council for Women called for repeal of all abortion laws. N.Y. Times, Nov. 2, 1969, at 58, col. 1. Abortion on demand has been a key goal of the Women's Liberation movement, which has spearheaded law reform efforts. In the summer of 1972, however, after a dramatic struggle, the Demo- cratic National Committee rejected the attempts of the women's political caucus to write into the platform the right to abortion. See generally Moore, Abortion and Public Policy: What Are the Issues?, 17 N.Y.L.F. 411 (1971). 41. Forer, The Case for Abortion on Demand, 43 PA. B. Ass'N Q. 203, 207-08 (1972). In the balance of interests between the fetal right to live and the woman's right not to bear the child, it must be considered that the abortion statutes were, almost entirely, written by men and "It is a bit presumptuous of the male to categori- cally posit that the right of the fetus to survive is more important than an interest, whose depth is beyond his appreciation." Gianella, supra note 33, at 282. 42. Lamm and Davison, supra note 23, at 56. 43. See, e.g., Doe v. Rampton, Civ. No. 234-70 (D. Utah, Sept. 14, 1970) (temporary restraining order issued against enforcement of Utah statute); Planned Parent- hood Ass'n v. Nelson, 327 F. Supp. 1290 (D. Ariz. 1971) (jurisdiction denied); Doe v. Randall, 314 F. Supp. 32, rehearing denied, 314 F. Supp. 36 (D. Minn. 1970) (per curiam) appeal docketed sub nom. Hodgson v. Randall, 402 U.S. 967 (1970) (jurisdiction denied); Hall v. Lefkowicz, 305 F. Supp. 1030 (S.D.N.Y. 1969) (challenge to the New York law dismissed as moot when the statute was repealed); Doe v. Dun- bar, 320 F. Supp. 1297 (D. Colo. 1970); but see People v. Norton, No. 25576 (Colo. Sup. Ct. 1970). ECOLOGY LAW QUARTERLY [Vol. 3:311

to bear children. In addition, allegations have been made that the statutes violate the equal protection clause of the Fourteenth Amendment and the religious freedom clause." The first declaration of the unconstitutionality of an abortion law occurred in 1969 and greatly influenced subsequent decisions. In Peo- ple v. Belous,45 the California Supreme Court invalidated a traditional statute which prohibited all abortions except those necessary to save the mother's life and held that a woman has a fundamental right to choose whether or not to bear children.4 6 Though specifically avoid- ing a decision on the newly-enacted therapeutic statute, the court in Belous showed a readiness to recognize abortion as a solely medical 7 practice.1 Despite its widespread influence, the Belous reasoning has been rejected in several state and federal courts.4 In 1970 a federal district

44. For discussion and analysis of these grounds of constitutional attack, see generally Charles & Alexander, Abortions for Poor and Nonwhite Women: A Denial of Equal Protection?, 23 HAST. LJ. 147 (1971); Clark, supra note 32; Kutner, supra note 35; Lucas, Federal Constitutional Limitations on the Enforcement and Admin- istration of State Abortion Statutes, 46 N.C.L. 1Ev. 730 (1967); Oteri. Benjora & Wouweing, Abortion and the Religious Liberty Clause, 7 HARV. Civ. RIGHTS--Ci. Lm. L. REv. 559 (1972); Note, Abortion Statutes-Due Process, 8 DUQUESNE L. REv. 439 (1970); Note, The Right to Equal Access to Abortions, 56 IOWA L. REV. 1015 (1971); Note, A Survey of the Present Statutory and Case Law, supra note 10. 45. 71 Cal. 2d 954, 458 P.2d 194, 80 Cal. Rptr. 354 (1969) cert. denied, 397 U.S. 915 (1969). 46. The Belous reasoning has been followed in other jurisdictions. In 1970 the traditional Wisconsin abortion statute was held unconstitutional by the district court in Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wis. 1970), appeal dismissed 400 U.S. 1 (1970), as a denial of a woman's right of choice to refuse to carry an unquickened embryo. After a temporary injunction restraining enforcement of the abortion statute was entered in Kennan v. Nichol, 326 F. Supp. 613 (E.D. Wis. 1971), the Supreme Court summarily affirmed the decision in Nichol v. Kernan, 404 U.S. 1055 (1972) (per curiam), pending announcement of its decision in Roe v. Wade and Doe v. Bolton. Also in 1970, in Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970), the district court found the traditional Texas abortion law in violation of the woman's Ninth Amendment right of choice whether or not to have children. In 1971 the district court in Doe v. Scott, 321 F. Supp. 1385 (N.D. IlL 1971) appeal docketed sub nom. Hanrahan v. Doe, Heffeman v. Doe, vacated and remanded, 410 U.S. 950 (1973) invalidated the traditional Illinois statute which had forced the birth of every fetus, "no matter how defective or how intensely unwanted by its future parents," and held that "the state may not prohibit, restrict or otherwise limit women's access to abortion procedures performed by licensed physicians operating in licensed facilities." 321 F. Supp. at 1391. 47.. Subsequently, in requiring a therapeutic abortion committee to consider an application from an unmarried pregnant minor who did not have parental consent, the court held that an abortion is "surgical care related to pregnancy" under the applicable medical care statute. Ballard v. Anderson, 4 Cal. 3d 873, 484 P.2d 1345, 95 Cal. Rptr. 1 (1971). 48. In 1970 the Supreme Court of Iowa, in State v. Abodeely, 179 N.W.2d 347 1973] ABORTION DECISIONS court in Rosen v. Louisiana State Bd. of Medical Examiners"9 upheld Louisiana's law against charges of vagueness and violation of due process, concluding that the state could confer upon the fetus "a right to survive to natural termination of prenatal development," and that unless her life was threatened, the woman's interests must be subordinated to those of the fetus. 50 Before 1973, the United States Supreme Court only once addressed the merits of abortion statutes. In United States v. Vuitch,5 1 it upheld the constitutionality of the District of Columbia statute, which permitted abortion to save the life or health of the mother, against a charge of vagueness, holding that the term "health" embraced both physical and psychological well-being.52

(Iowa Sup. Ct. 1970), appeal dismissed, 402 U.S. 936 (1971), upheld the constitutionality of the traditional Iowa abortion statute and rejected the Belous holding that the language "necessary to preserve her life" was fatally vague. In the same year a federal district court in Steinberg v. Brown, 321 F. Supp. 741 (N.D. Ohio 1970), ruled against a challenge to the traditional Ohio statute, and specifically denied the extension of the right of privacy to abortion decisions. The court held that the state's interest in affording the fetus an opportunity to survive was "superior to the claimed right of a pregnant woman or anyone else to destroy the fetus except when necessary to preserve her own life." Id. at 746. 49. 318 F. Supp. 1217 (E.D. La. 1970), vacated and remanded for further consideration in light of Roe v. Wade and Doe v. Bolton, 411 U.S. - (May 21, 1973). 50. Id. at 1225. Subsequent challenges to the statute in state courts have also failed. State v. Lessar, 256 La. 201, 235 So. 2d 568 (1970); State v. Shirley, 256 La. 665, 237 So. 2d 676, cert. denied, 401 U.S. 926, rehearing denied, 402 U.S. 925 (1970); State v. Scott, 260 La. 190, 255 So. 2d 736 (1972). The same result obtained in Massachusetts, where a strict statute prohibiting all "unlawful" abortions was held constitutional in Kudish v. Bd. of Registration in Medicine, 356 Mass. 98, 248 N.E.2d 264 (1969). The court relied upon judicial constructions to conclude that the statute was not vague. 51. 402 U.S. 62 (1971). 52. Id. at 71-72. Therapeutic abortion statutes have also been under attack. The decision in Doe v. Bolton, 319 F. Supp. 1048 (N.D. Ga. 1970), held portions of the liberal Georgia statute unconstitutional, stating that "the state may not unduly limit the reasons for which a woman seeks an abortion." Id. at 1055. However, a district court upheld the North Carolina therapeutic statute in Corkey v. Edwards, 322 F. Supp. 1248 (W.D.N.C. 1971), vacated and remanded in light of Roe v. Wade, 410 U.S. 950 (Feb. 27, 1973). The district court found "sufficient public interest in protecting the embryo to permit limited statutory intrusion into what otherwise would be a protected zone of privacy." Id. at 1250. The four-month residency requirement was invalidated as an unconstitutional limit on the right to travel, but has since been replaced legislatively by a 30-day requirement. N.C. GEN. STAT. 14-45.1 (Supp. 1971). Even the most liberal statute in the country, the New York law which allows abortion on demand up to 24 weeks of pregnancy in clinics licensed by the state, has not been immune from constitutional attack. In Byrn v. New York City Health and Hospitals Corp., 38 App. Div. 2d 316, 329 (N.Y.S.2d 722 (1972), a law professor was appointed guardian ad litem for all unborn fetuses and was granted a preliminary injunction against the performance of abortions not necessary to save the mother's life. This ruling was overturned by the Court of Appeals which found no right to life or legal personality for the unborn. 31 N.Y.2d 194, 335 N.Y.S.2d 390, 286 N.E.2d 887 (1972). ECOLOGY LAW QUARTERLY [Vol. 3:3 11

The year 1972 witnessed a rapid acceleration in abortion law challenges and an increasing tendency of the courts to find abortion statutes unconstitutional invasions of privacy rather than violations of other constitutionally protected rights. While state courts in Indiana,53 Michigan,"4 Mississippi, 5 Missouri, 56 and South Dakota, 57 as well as state and federal courts in Kentucky, 8 were reluctant to invalidate traditional statutes which allowed abortion solely for the preservation of maternal life, challenges to procedural as well as justification requirements succeeded in other jurisdictions. 9 For example, a Colorado state court6" and a federal court in Kansas61 struck down the require-

53. Cheaney v. State, 285 N.E.2d 265 (Ind. Sup. Ct. 1972). 54. People v. Nixon, 42 Mich. App. 332, 201 N.W.2d 635 (1972). The court in Nixon, however, concluded that "there is no longer a sufficient state interest to justify continued prosecution of licensed physicians for the mere act of artificially inducing a miscarriage of an unquickened fetus," thus limiting the holding to the prevention of abortions by non-physicians. 42 Mich. at 339, 201 N.W.2d at 640. 55. Spears v. State, 257 So. 2d 876 (Miss. Sup. Ct. 1972) (per curiam), cert. denied, 409 U.S. 1106 (1973). 56. Rodgers v. Danforth, 486 S.W.2d 258 (Mo. Sup. Ct. 1972). 57. State v. Munson, 201 N.W.2d 123 (S.D. Sup. Ct. 1972), judgment vacated and remanded, 410 U.S. 950 (1973). 58. In Crossen v. Att'y Gen'l, 344 F. Supp. 587 (E.D. Ky. 1972), the district court held that the state has a compelling interest in the preservation of potential human life superceding the right to privacy, and denied charges of vagueness, denial of right of choice, equal protection, and the establishment of religion. On October 6, 1972, a state court of appeals also sustained the statute against allegations of vagueness and invasions of the right to privacy. Sasaki v. Commonwealth, 485 S.W.2d 897 (Ky. Ct. App. 1972). 59. In January and February 1972 the supreme courts of Florida and Vermont ruled invalid those states' traditional abortion laws, State v. Barquet, 262 So. 2d 431 (Fla. Sup. Ct. 1972); Beacham v. Leary, 130 Vt. 164, 287 A.2d 836 (1972). Also in February, the district court in Young Women's Christian Ass'n v. Kugler, 342 F. Supp. 1048 (D.N.J. 1972), held the New Jersey statute, which prohibited all abortions "without lawful justification," unconstitutionally vague, a denial of a physician's Fourteenth Amendment right to practice freely, and a violation of the Ninth Amend- ment right to privacy and Fourteenth Amendment due process clause. A district court held the traditional Connecticut law unconstitutional in Abele v. Markle, 342 F. Supp. 800 (D. Conn. 1972), on identical privacy grounds finding the asserted state interests in the fetus "insufficient to warrant removing from the woman all decision-making power over whether to terminate a pregnancy." Id. at 803. In response, the Connecticut legislature one month later passed a new statute prohibiting induced abortion not necessary to preserve the physical life of the mother, with the expressed legislative intent "to protect and preserve human life from the moment of conception." CONN. PUB. ACT No. 1 (May 1972 special session). In June the court entered an order temporarily restraining enforcement of the new statute. Abele v. Markle, Civ. No. B-521 (D. Conn. June 13, 1972). On September 20, 1972, the court held the statute to be an unconstitutional invasion of privacy and personal choice, specifically determining that the fetus was not a person for Fourteenth Amendment purposes. 351 F. Supp. 224 (D. Conn. 1972). 60. People v. Norton, 507 P.2d 862 (Colo. Sup. Ct. 1972). 61. Poe v. Menghini, 339 F. Supp. 986 (D. Kan. 1972). The court also invalidated the requirement of certification by three physicians as a violation of both due 1973] ABORTION DECISIONS

ment of hospital accreditation by the Joint Commission on Accredita- tion of Hospitals (JCAH). In Maryland a federal court in Vuitch v. Hardy62 determined that hospitalization was not necessary for the performance of abortions in the first trimester of pregnancy. In observing that there were reasonable alternatives to hospital abortion which would "entail less of a burden on the exercise of constitutional rights,"63 the court concluded that "the experience of other states has proved that, with appropriate regulations, facilities other than hospitals can and do protect the health of the woman seeking an abortion as adequately '64 as hospitals do." Following a different approach, the California Supreme Court in People v. Barksdale65 held the criterion of the California therapeutic abortion act,66 based on risk of grave health impairment, impermis- sibily vague in establishing grounds for the performance of abortions. The court indicated that the act had not "established meaningful standards for the physicians who must administer it," 67 and invalidated those portions of the act pertaining to the justification for abortions, the establishment of medical committees and their procedures, and special provisions for rape or incest cases. The decision let stand the prohibition of abortions after the 20th week of pregnancy and the requirement that abortions be performed solely by licensed physicians in JCAH-accredited hospitals, recognizing a clear and legitimate legislative intent favoring these provisions. The court also construed the 20- week limit to allow provision for medical emergencies and rejected the argument that reliance upon JCAH standards was an unconstitutional delegation of governmental power to a private agency resulting in economic and geographic discriminations across the state. Although recognizing that "abortion is the only medical procedure required by criminal sanctions to be performed in a hospital,' 68 the court upheld the state's right to legislate these standards for the performance of abortions.

process and equal protection. In finding that "the abortion procedure is among the safest of surgical procedures," the court suggested that the limitation of abortions to state-licensed facilities was also unnecessary, since "JCAH-accreditation provides no more concrete assurance that abortion procedures will be performed in adequate facilities and by competent personnel than does state-licensure.I..." Id. at 994. 62. No. 71-1129-4 (D. Md. June 22, 1972) (unreported). The case was decided on a petition for writ of habeas corpus. 63. Id. 64. Id. 65. 8 Cal. 3d 320, 503 P.2d 257, 105 Cal. Rptr. 1 (1972). 66. CAL. HEALTh & SAFETY CODE §§ 25950-54 (West Supp. 1973). 67. 8 Cal. 3d at 331, 503 P.2d at 265, 105 Cal. Rptr. at 9. The fatal phrase was "gravely impair" as the court found itself unable to precisely "ascertain what degree of impairment must result from a continuance of pregnancy in order to 'gravely impair' a prospective abortee's health." Id. at 328, 503 P.2d at 263, 105 Cal. Rptr. at 7. 68. Id. at 338, 503 P.2d at 270, 105 Cal. Rptr. at 14. ECOLOGY LAW QUARTERLY [Vol. 3:311

This litigation set the stage for the Supreme Court decisions in the companion cases of Doe v. Bolton and Roe v. Wade, which presented the Supreme Court with an opportunity to examine the major issues in the abortion debate. II

THE WADE-BOLTON DECISIONS A. Extension of the Right of Privacy to Abortions In 1970 in Roe v. Wade," the traditional Texas abortion statute, which prohibited procuring or attempting abortion except to save the mother's life,7" was challenged by a pregnant single woman, a licensed physician with two pending state abortion prosecutions, and a childless married couple who wished to avoid pregnancy. The district court held that the law violated the woman's Ninth Amendment right of choice whether or not to have children, and was overbroad and vague in failing to give physicians adequate notice of proscribed acts. The court did specify, however, that the right to choose to have an abortion was not unqualified and that the state had a legitimate concern over the quality of the abortion performed. The State of Texas ap- pealed to the Supreme Court. Justice Blackmun wrote the majority opinion in Wade, as well as in Doe v. Bolton. The former opinion, after carefully exploring the history of medical abortion and abortion laws and stressing recent changes in public and professional opinion,71 expanded the right of privacy under the "Fourteenth Amendment concept of personal liberty and restrictions upon state action" to include a woman's decision whether or not to terminate her pregnancy. 72 Denying, however, that

69. 314 F. Supp. 1217 (N.D. Tex. 1970). 70. TEx. PEN. CODE ANN. art. 1191-96 (1961). 71. The Court also considered the issue of standing, finding that while the complaint of the childless married couple was too speculative, the first two plaintiffs had standing and presented justiciable actions. Despite the fact that Jane Roe's pregnancy ended before the 1971 filing of the appeal, her case was not declared moot because pregnancy was found to be a condition "capable of repetition, yet evading review," as it "often comes more than once to the same womin, and in the general population, if man is to survive, it will always be with us." Roe v. Wade, 410 U.S. 113, 125 (1973). 72. Id. at 151-52. The Supreme Court had earlier set the stage for placing the right to abortion under the right of privacy in its decision in Eisenstadt v. Baird, 405 U.S. 438 (1972). That case established the right of privacy as a guarantee of freedom from "unwarranted governmental intrusion into matters so fundamentally af- fecting a person as the decision whether to bear or beget a child." Id. at 453. See Note, Constitutional Law-Abortions-Statutory Limitations on Reasons for Abortions is Violation of the Fundamental Right to Privacy, 22 MERCEn L. REv. 461 (1971); Means, supra note 6. Some federal district courts also have invalidated state abortion laws on right of privacy grounds, deriving authority from the Ninth Amendment. 19731 ABORTION DECISIONS the woman's right to abortion is absolute, Justice Blackmun empha- sized that some state regulation is appropriate in areas such as maternal health, where the state interest is legitimate. The majority opinion examined three possible interests to explain the enactment of abortion legislation. The first, discouragement of promiscuity and "illicit sexual conduct," was dismissed as frivolous and an improper state purpose. In discussing the second alleged state interest, the protection of maternal health, Justice Blackmun recognized that abortion before the development of modem surgical techniques was an extremely hazardous operation and suggested that most state laws were designed solely for the woman's protection rather than the protection of prenatal life.7 With the advent of antisepsis and ad- vanced medical technology, early abortion has been made safer than childbirth, thus destroying the rationale for such restrictions. Justice Blackmun maintained that although the state has a legitimate interest in protecting the mother's health, this interest does not vest until the "compelling point"-the end of the first trimester. Before this point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that in his medical judgment the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of 74 interference by the State. The state, moreover, may only regulate the abortion procedure after the first trimester in a manner "reasonably related to the preservation and protection of maternal health. ' 5 The court also considered a third alleged state interest in support of abortion laws-preservation of the fetus. Acknowledging the wide divergence of views on the precise point at which life begins, Justice Blackmun effectively removed this controversy from the scope of judicial resolution 76 by stating, "we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman

See, e.g., Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1971). See Kutner, The Neglected Ninth Amendment: The "Other Rights" Retained by the People, 51 M.ARQ. L. REv. 121 (1967). 73. This hypothesis and evidence supporting it is well developed in Means, supra note 6. 74. Roe v. Wade, 410 U.S. at 163. Blackmun's only restriction on first trimester abortion is that the state can require that it be performed by a physician currently licensed by that state. Id. 75. Id. Examples of permissible state regulation . . . are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like. 76. Id. at 159. ECOLOGY LAW QUARTERLY [Vol. 3:311

. . "'" The state's interest in fetal life reaches the compelling point where it overrides the woman's fundamental right of privacy only at viability (approximately 28 weeks of gestation), when the fetus "pre- sumably has the capability of meaningful life outside the mother's womb."7 In the companion case of Doe v. Bolton79 the Supreme Court had the opportunity to examine several of the procedural requirements im- posed by state abortion statutes. The Georgia law, modeled after the Model Penal Code in allowing therapeutic and eugenic abortions, includ- ed the following procedural conditions in its statutory scheme: (a) performance in a JCAH-accredited hospital; (b) approval by the hospital's staff abortion committee; and (c) confirmation of the physician's judgment by the concurrence of two other licensed physicians. The law was challenged in a class action by an indigent married fe- male who was denied an abortion for failing to meet the conditions, and by licensed physicians, registered nurses, clergymen and social workers who claimed that the law interfered with the practice of their professions. The district court had held portions of the law unconstitutional, finding that although the state may not unduly limit the reasons for which a woman seeks an abortion, it may legitimately require that the decision to terminate her pregnancy be one reached only upon consideration of more factors than the desires of the woman and her ability to find a willing physician.8 0 In assessing the statute's procedural requirements, the court ruled each invalid for failing to exclude the first trimester of pregnancy.8'

77. Id. at 162. The opinion, however, expressly rejects the contention that the fetus should be considered a person within the context of the Fourteenth Amendment. Id. at 158. 78. Id. at 163. "If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period except when it is necessary to preserve the life or health of the mother." Id. at 163-64. Several legal problems are suggested by this language. While medical authorities assume that this provision would apply to allow abortion of fetuses with severe defects only detected in late pregnancy, it is possible that some states will apply the Vuitch interpretation of "health" (see text accompanying footnotes 51-52, supra) and will permit abortions even in the last trimester for psychiatric reasons. 79. 410 U.S. 179 (1973). 80. 319 F. Supp. 1048 (N.D.Ga. 1970). The decision specifically upheld the procedural safeguards requiring accreditation and hospital committee approval, and denied claims of violation of equal protection and unconstitutional restriction of the practice of medicine. The court did find unconstitutional the elaborate screening procedures to be followed for certification of rape, as well as a statutory provision allow- ig the local prosecutor or a would-be relative of the fetus to seek a declaratory judgment if the proposed abortion would "violate any constitutional or other legal rights of the fetus." id. at 1054-55. 81. Doe v. Bolton, 410 U.S. at 195. At the same time the court reiterated Roe v. Wade's denial of a constitutional right to abortion on demand, and its conclusion that the state, after the first trimester, can regulate the quality of the abortion in a manner reasonably related to the furtherance of maternal health. Id. 19731 ABORTION DECISIONS

Moreover, the JCAH-accreditation requirement was held unconstitutional because it was not "reasonably related to the purposes of the Act in which it is found.""2 Justice Blackmun later explored the state's right to adopt standards for licensing abortion facilities after the first trimester. While rejecting the mandatory hospitalization requirement in the Georgia statute since "it fails to exclude the first trimester of pregnancy," he indicated that such a condition would be upheld for later abortions as a regulation "reasonably related to maternal health." 8 The opinion also found invalid the conditions of hospital committee approval and two-doctor concurrence, as "unduly restrictive of patients' rights" and infringing on the physician's right to practice in having "no rational connection with a patient's needs."84 Appellants argued that these two procedural impediments resulted in undue delay in obtaining abortions, effecting a denial of equal access; in addition, they attacked the committee's wide discretion, which conditioned the availability of abortion on the predilections of individual physicians. The court rejected these last contentions as founded on exaggerated suspicion, but nevertheless overturned the procedural requirements on two grounds: first, the law requires prior acquiescence or confirmation by colleagues or committee for no other surgical procedure or medical practice; second, the state's interest in the quality of the decision is already protected by retention of the requirement that the physician be licensed by the state. Reliance on such licensing, the court argued, is a mark of the state's confidence that the performing physician will use his "best clinical judgment that an abortion is necessary," and ob- 8 5 viates the need for additional assurances. The Doe v. Bolton decision also addressed other constitutional challenges. The Court rejected the argument that the Georgia statute was unconstitutionally vague insofar as it criminalized abortions not necessary to preserve "life or health," reasoning that the meaning of "health" was settled in United States v. Vuitch.88 Justice Blackmun agreed with the district court finding that "the medical judgment may be exercised in the light of all factors-physical, emotional, psychological, familial, and the woman's age-relevant to the well-being of the

82. Id. at 194. 83. Id. However, the opinion introduces a note of skepticism on the issue of mandatory hospitalization in light of evidence that early abortions in clinics have fewer complications than do those performed in hospitals: "We feel compelled to agree with appellants that the State must show more than it has in order to prove that only the full resources of a licensed hospital, rather than those of some other appropriately licensed institution, satisfy [the] health interests ... of the patient." Id. at 195. 84. Id. at 199. 85. Id. at 199. 86. 402 U.S. 62 (1971). See text accompanying n6tes 51-52 supra. ECOLOGY LAW QUARTERLY [Vol. 3:311 patient.""" In addition, the decision invalidated residency requirements as lacking a basis in a legitimate state policy. The Court similarly rejected the equal protection argument that poor women were dispro- portionately denied abortions, as the accreditation, approval and confirmation requirements on which it was based had already been over- turned88a Justices Brennan, Burger, Douglas, Marshall, Powell and Stewart joined in the two majority decisions. Justices Stewart and Douglas filed concurring opinions, asserting that protection of freedom of personal choice in matters of family life is inherent in the right of privacy.8 9 Two dissenting Justices each filed separate opinions. Justice Rehnquist attacked the determination in Roe v. Wade that the right of privacy includes a woman's decision whether or not to have an abortion, and alleged that the right to an abortion is " 'not so rooted in the traditions and conscience of our people to be ranked as fundamental'."9 He also challenged the majority's ability to draw the trimester lines as "partaking more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amend- ment. '91 Justice White's dissent questioned the Court's devaluation of prenatal life, when balanced against the convenience of the mother, as constitutionally unwarranted and "an improvident and extravagant exercise of the power of judicial review."92 By this radical approach, the Court far surpassed the speculations of most reform advocates, who had forecast that the Court would strike down certain procedural requirements while retaining the basic restraints on the reasons for obtaining abortions. With an eye to further challenges and the massive litigation engendered by abortion reform, it is apparent that the Court decided not to avoid the underlying issues any longer.

87. Doe v. Bolton, 410 U.S. at 192. 88. Id. at 201. 89. Justice Stewart's opinion draws heavily upon the recent decision in Abele v. Markle, 342 F. Supp. 800 (D. Conn. 1972), quoting its statement that interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters, 268 U.S. 510 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska, 262 U.S. 390 (1923). Roe v. Wade. 410 U.S. at 170. Justice Douglas would expand the right of privacy to include "the right to care for one's health and person and to seek out a physician of one's own choice." Doe v. Bolton, 410 U.S. at 219. On this basis, he argues that the procedural requirements of the abortion statutes invade the privacy of the physician- patient relationship. 90. 410 U.S. at 174, citing Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). 91. 410 U.S. at 174-77. 92. Doe v. Bolton, 410 U.S. at 222. 1973] ABORTION DECISIONS

B. Legal Implications While the decisions in Roe v. Wade and Doe v. Bolton put to rest most legal issues entailed in the abortion controversy, several ancillary questions not presented to the Court remain unsolved. Although at least one state court has ruled that a medical treatment statute emanci- pates unmarried pregnant minors for the purpose of obtaining abortions without parental consent,93 it is unclear whether this right will be recognized in other states. The Supreme Court decisions also did not address the issue of the father's rights, so that the validity of requiring the consent of the father, particularly for abortions performed on married minors, remains an open question. 4 While the extension of the right of privacy to abortions is a far- reaching step, it opens the way to further challenges to state laws on private sexual activity and perhaps all victimless crimes. Although the Court explicitly limited the guarantees of personal privacy to personal rights that "can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' ,9 Douglas, in his concurring opinion, designated as fundamental the "freedom of choice in the basic decisions of one's life respecting marriage, divorce, procreation, contraception and the education and upbringing of children," providing these interests fall "outside of areas of plainly harmful conduct."96 An evaluation of the Court's view of women's rights produces yet another legal question. While emphasizing that the right to an abortion at any time is not absolute, Justice Blackmun strongly asserted that the decision is one to be made by the performing physician; his summary of the basic holding of Roe v. Wade, by omitting all mention of the woman's role in the decision, stresses this point: For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical 7 judgment of the pregnant woman's attending physician. 9 This medical elitism is repeated several times throughout the opinion,9 8

93. Ballard v. Anderson, 4 Cal. 3d 873, 484 P.2d 1345, 95 Cal. Rptr. 1 (1971). For a thorough coverage of this issue, see Pilpel & Zuckerman, Abortion and the Rights of Minors, 23 CASE W. REs. L. REV. 779 (1972). 94. Blackmun specifically avoids a solution of this issue, citing a North Carolina statute which requires written permission from the husband when the woman is under 18. Roe v. Wade, 410 U.S. at 165, n.67. However, the Attorney General of the State of Washington has asserted that a married woman cohabiting with her husband must obtain his consent for abortion. Ducar, Abortion for the Asking, SATURDAY REvIEw, Apr. 1973, at 35. 95. Roe v. Wade, 410 U.S. at 152. See Palko v. Connecticut, 302 U.S. 319, 325 (1937). 96. Doe v. Bolton, 410 U.S. at 211 (Douglas, J., concurring). 97. Roe v. Wade, 410 U.S. at 164. 98. Justice Blackmun perhaps places too much confidence in the skill and judg- ECOLOGY LAW QUARTERLY [Vol. 3:311 and can be seen as denigrating the role the woman herself must play in making the abortion decision.99 In addition, since Justice Blackmun predicated the removal of early abortion from state regulation on the ground that first trimester abortions are safer than childbirth,' 0 the question remains open whether the state will be permitted to reimpose regulation if childbirth mortality falls lower than early abortion mortality. Justice Stewart, in his concurring opinion, recognized a woman's right to bodily integrity,1"' but there is no firm indication that the full Court is ready to employ this concept in future cases. Finally, the elimination of state regulation in the first trimester poses several problems regarding the quality of the operations. The ruling would invalidate any local health codes prohibiting abortions in doctors' offices and establishing standards for the licensing of abortion clinics to the extent that they handle first trimester abortions. While one study did indicate that complication rates for early abortions were lower for clinics than for hospitals, high-risk patients were specifically excluded. 02 There is little data on morbidity of abortions performed in physicians' offices; however, two deaths resulted from office abortions in New York before the state moved to prohibit them. 0 3 In addition, although the Court dismissed the presence of "rascals" in the medical profession, the experience of New York City in the first six months under the reform law indicates that some caution is in order. Immediately after adoption of the new law, several low-cost clinics opened to provide abortions on a large-scale basis. One report dis- closed an extraordinarily high number of uterine perforations in abor- ment of the medical community: He [the physician], perhaps more than anyone else, is knowledgeable in this area of patient care, and he is aware of human frailty, so-called 'error' and needs. The good physician--despite the presence of rascals in the medical profession, as in all others, we trust that most physicians are 'good'-will have a sympathy and an understanding for the pregnant patient that probably is not exceeded by those who participate in other areas of professional counselling. Doe v. Bolton, 410 U.S. at 196-97. 99. Compare Eisenstadt v. Baird, 405 U.S. 438 (1972), in which the decision to contraceive and its implementation were held reserved to the married couple free from state interference, no mention being made of a necessity for the prescribing physician to be a participant in the decision itself. 100. Roe v. Wade, 410 U.S. at 163. 101. Id. at 170. 102. Tietze & Lewit, Early Medical Complications of Legal Abortions, STUDIES IN FAMILY PLANNING 109 (Joint Program for the Study of Abortion, Population Council, 1972) [hereinafter cited as JPSA Study]. 103. It is conjectured that these deaths were caused by illegal abortionists newly legitimized by the passage of the law. Center for Disease Control, Pub. Health Serv., U.S. Dep't of Health, Educ. & Welfare, Abortion: New York City, July 1, 1970-June 30, 1971 (Atlanta 1971) (staff report, Family Planning Evaluation Activ- ity). 1973] ABORTION DECISIONS tions performed by a single doctor working in such a clinic. 10 4 The New York City Health Department subsequently was given added powers to register, inspect, and close abortion clinics if applicable standards were not met,10 5 and one clinic has been ordered closed by a state court.100 But the decision in Doe v. Bolton apparently prohibits exercise of such licensing powers as applied to first trimester abortions. It is surprising that the Court would eliminate this type of regulation in the absence of more reliable data, and at the same time give as a justifying rationale the public health concerns of safety, quality of practice, and full protection of the patient. 10 7

C. Enforcement As of this writing, implementation of the abortion ruling has been extremely slow.'0 8 Nine states have introduced conforming legislation and nine others are in the process of writing new statutes; however, the Virginia legislature, the only one to have acted thus far on the new laws, has rejected a reform statute. Official delays through attorneys' general offices, governors, and even the courts have impeded the progress of abortion reform in several states. A circuit court judge in Cook County, Illinois, issued a temporary restraining order blocking performance of 30 scheduled abortions. Arizona's Attorney General is attempting to reinstate the traditional statute. 109 In Louisiana the Attorney General and the Board of Medical Examiners have threatened to revoke the licenses of physicians who perform abortions. A state senator in Nebraska has introduced a bill to restrict sharply the availability of abortions in the second trimester. 110 Michigan's Attorney General has stated that a doctor who performs abortions "does so at his own peril.""11 The next few months will be critical ones in the liberalization of nationwide abortion practices. Until other states develop large-scale programs and acceptance of the procedure, states such as New York and California, with experience under already existing liberal legisla-

104. Conger, Tyler & Pakter, A Cluster of Uterine Perforations Related to Suc- tion Curettage,40 OB. & GYN. 551 (1972). 105. N.Y. Times, July 21, 1971, at 31, col. 6. Although the law sets no limits on where the physicians may perform abortions, local public health laws require the licensing of all clinics and hospitals. 106. N.Y. Times, Sept. 15, 1972, at 41, col. 1. 107. Doe v. Bolton, 410 U.S. at 195. 108. S.F. Chronicle, Feb. 19, 1973 at 14, col. 1. 109. Id. 110. An amendment would require doctors to report the names of all abortees. Id. 111. Ducar, supra note 94, at 35. ECOLOGY LAW QUARTERLY [Vol. 3:311 tion, will absorb most referrals and continue to perform the bulk of the nation's abortions. ifi

IMPACT OF LEGALIZED ABORTION A. Effect on PopulationGrowth 1. Experiences of the States and New York City The impact of full abortion legalization upon public health and population growth can be assessed, to a limited extent, through an analysis of the experiences of states with liberalized therapeutic laws and of the four states with minimal restrictions. As a result of abortion reform in several states in the past five years, the term "therapeutic abortion" is no longer entirely appropriate to describe the majority of abortions performed. Many women have been able to obtain abortions on request in state-licensed clinics as well as hospitals in the most liberal states, and several organizations have developed package plans for New York abortions for those women who live in states with less permissive laws and can afford to pay the price. The Center for Disease Control, which has assumed the task of reporting state abortion statistics, provides data for 1970 for 14 states and the District of Columbia indicating that 175,500 legal abortions were performed.11 Data reported from 24 states through June 1971 projected a total of 480,000 legal abortions in 1971,113 but corrections for incomplete reporting have in- flated the estimates to 235,000 in 1970... and over 500,000 in 1971.115 Statistics which analyze both state of abortion and residence of abortee more accurately reflect current abortion levels. Nearly half the abortions reported in the second quarter of 1971 were performed on women outside their states of residence. 116 Since six states with liberalized abortion laws permit non-resident abortions, a calculation of ratios in those states indicates that roughly 39.1 percent of legal abor-

112. CENTER FOR DISEASE CONTROL, PuB. HEALTH SERv., U.S. DEP'T OF HEALTH, EDuc. & WELFARE, ABORTION SURVEILLANCE REPORT-LEGAL ABORTION, UNITED STATES (Annual Summary 1970) [hereinafter cited as CDC ABORTION SURVEILLANCE REPORT]. 113. Bourne & Baker, Abortion Surveillance in the United States, 1971 (paper presented at the centennial meeting of the American Public Health Ass'n, Atlantic City, N.J., Nov. 12-17, 1972). 114. Tyler, Bourne. Conger and Kahn, Reporting and Surveillance of Legal Abor- tions in the United States, 1970, in INT'L CONGRESS SER. No. 255, ABORTION TECH- NIQUES AND SERVICE: PROCEEDINGS OF THE CONFERENCE, NEw YORK, N.Y., June 3-5, 1971, 192-302 (S. Lewit, ed., Amsterdam, Excerpta Medica, 1972). 115. See JPSA Study, supra note 102. 116. The figure of 47.4 percent contrasts with that of 26.1 percent for the first quarter of 1971. CDC ABORTION SURVEMLLANCE REPORT (June 1971), supra note 112, at 8. 1973] ABORTION DECISIONS tions reported in the first half of 1971 were performed on non-resident women.11 7 Another salient feature of the data is that the nationwide abortion ratio was 131 abortions per 1000 live births for this period, while the ratio from the reporting states reached 243 abortions per 1000 live births."18 The immediate effect of statutory liberalization has been a rapid increase in the demand for abortion services, even in states which retained certain procedural impediments. In California, for example, the abortion ratio rose from 1.8 per 1000 live births before 1967 to 11.2 abortions per 1000 live births in the first year under the therapeutic law,"19 with 91 percent of applications for abortion meeting approval.'20 Colorado and Oregon have had parallel experiences under new laws, although Oregon's abortion ratio recently dropped with the liberaliza- 2 tion of the abortion law in the neighboring state of Washington.' 1 The most complete statistics on fully legalized abortion come from experience under New York's reform legislation adopted in 1970. Data collected from New York is most often separated into metropolitan New York City and upstate New York. Since New York City permits abortions to be performed in clinics licensed by the city health department, it represents more accurately a model for the future status of abortion in the United States. In the first two years under the new law, the New York City Health Department reported approximately

117. id. Data on California abortions for the second quarter of 1971 were not yet available when the report was published, so this figure is at best a poor estimate. 118. Id. at 1. Since birth rates in the liberalized states conform to those of other states, these ratios suggest that women in non-liberalized states have found increased access to abortions in states with reform laws. 119. Moyers, supra note 23, at 241. 120. Roy, supra note 4, at 402. Data for March of 1971 reveals a California abortion ratio of 257 per 1000 live births. CDC ABORTION SURVEILLANCE REPORT (June 1971), supra note 112, at 8. 121. The first year of legal liberalized abortion in Colorado saw an eight-fold increase to an abortion ratio of 11.6 per 1000 live births. Roy, supra note 4, at 401-02. In Oregon the abortion ratio reached 165/1000 live births within a year after the change in the law. Tyler & Schneider, Logistics o Abortion Services in the Absence of Restrictive Criminal Legislation in the United States, 61 A.J.P.H. 489, 491 (1971). By mid-1971, the abortion ratios of Colorado and Oregon respectively were 100 and 191. CDC ABORTION SURVEILLANCE REPORT (June 1971), supra note 112, at 8. Table II, infra p. 346, gives the latest available statistics for states with liberalized laws. Observations of abortion patterns in other countries immediately after a legal change to permissive abortion also indicates a sharp rise in abortion demand. Eastern European countries, for example, have abortion ratios ranging from 350 to 1400 per 1000 live births and average 630 abortions to 1000 live births. Japan reached a peak level of 720 abortions per 1000 live births after passage of the Eugenic Protection Law of 1948. Full analyses of available data on abortion patterns in other countries may be found in D. CALLAHAN, supra note 8. See also Tietze, supra note 8; Tietze & Lewit, Abortion, 220 SCIENmcIC AMERICAN 21 (1969). ECOLOGY LAW QUARTERLY [Vol. 3:311

402,000 abortions-173,900 in the first year and 228,100 from July 1, 1971 to June 30, 1972. In the first year 67,400 abortions were performed on New York residents, the figure reported for the second year being 75,100.122 The ratio of legal abortions to live births among residents of New York City rose from 51 per 1000 live births in 1971 to 650 per 1000 live births in 1971-72.123

2. ForecastDemand for Abortions Based on the New York City experience with abortions on resident women, Dr. Christopher Tietze has calculated that the annual nationwide demand for abortions in the United States after legalization will be 37 abortions per 1000 women of reproductive age. 124 Apply- ing this ratio to estimates of the number of women of reproductive age in 1973125 produces a projection of approximaely 1,675,000 abortions to be performed this year. Tyler arrives at the same estimate by a different method. By calculating the number of women currently having therapeutic abortions, those seeking criminal abortions, and those with unwanted pregnancies carried to term, he concludes that the number of legal abortions per year immediately after liberalization will be 1.7 million and will reach approximately 2.0 million in 1975 and 2.4 million in 1980.126 Multiplying the latest Census Bureau figures by Tietze's estimate of 37 abortions per 1000 women of reproductive age, the projected total of abortions may be lowered to 1.75 million in 1975 and 1.9 million in 1980. Abortions in future years also can be estimated using a predicted live births ratio, which both Tietze and Tyler agree abortion per 1000 127 will settle to approximately 500 nationwide within five to ten years. This method takes into account fluctuations in family size and birth expectations which are considered by the Census Bureau in its fore-

122. Tietze, Two Years' Experience with a Liberal Abortion Law: Its Impact on Fertility Trends in New York City, 5 FAMILY PLANNING PERSPECTIVES 36 (1973). 123. Id. at 38-39. 124. C. Tietze, The Potential Impact of Legal Abortion on Population Growth in the United States, 1972 (unpublished paper prepared for the Comm'n on Population Growth and the American Future). 125. BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, POPULATION ESTIMATES AND PROJECTIONS, PROJECTIONS OF THE POPULATION OP THE UNITED STATES By AGE AND SEX: 1972 to 2000, SERIES P-25, No. 493, (1972) [hereinafter cited as the Census Report]. The estimated total is approximately 45.25 million women. 126. Tyler & Schneider, supra note 121, at 490-91. Their calculations, however, are based on outdated Census Bureau forecasts. Hardin, in Blueprints, DNA and Abortion: A Scientific and Ethical Analysis, 3 MED. Op. REv. 74, 76 (1967) estimates that if every married woman of childbearing age who did not want a child were using the most effective contraceptive available there would still be 200,000 unwanted pregnancies each year. 127. Tyler & Schneider, supra note 121, at 490. 1973]. .• .93 ABORTION DECISIONS, casts of the number of births. Thus, while the Census Bureau predicts from 3,075,000 to 3,996,000 births in 1973, a high assessment of the abortion/live birth ratio results in an estimated demand for 1.5-1.8 million abortions in 1973, rising to a range of 1.6-2.2 million in 1975 and 1.8-2.6 million in 1980.128 One should be cautious, however, in relying on these statistics. First, while the applicable law in New York City most closely resem- bles the status of state abortion laws after the Supreme Court decisions, the New York City experience used for Tietze's projections may not serve as an accurate model for the nation for several reasons; the growing preference for a smaller family in a crowded urban environment, the depersonalization of urban living, the higher concentration of physicians, and greaterpublic acceptance of abortion would tend to inflate the number of abortions performed there.. Offsetting these factors, however, is New York City's unusually large Roman Catholic population, which may tend to lower the demand for abortions. Secondly, Tyler's calculations are founded on a series of relatively crude estimates: his figure of one million criminal abortions per year may be unduly high and, more importantly, his projections to 1975 and 1980 are based on 1970 Census Bureau forecasts which were drastically lowered by data published in December, 1972.129 It. can safely be said that any distortions in Tietze's or Tyler's analysis err on the high side, and that the forecast of 1.7 million abortions in 1973 is a reasonable upper limit. All calculations for years beyond 1975 are admittedly tenuous and rest on a series of rough assumptions: that all ratios and factors employed in the computations will remain constant. For example, fertility trends may alter dramatically (as recent census data suggests): contraceptive efficacy may be so improved in the near future that it will be unrealistic to assume that 37 per 1000 women of reproductive age will want abortions each year, or that there will be one-half as many abortions as live births. In addition, the census data itself is con- cedly uncertain and presents only a range of predictions.110 More- over, the dramatic change in age distribution projected for the year 2000 would undermine these estimates. While in 1972 over 60 percent of women of reproductive age (15-44 years) fall in the 15-29

128. Census Report, supra note 125, at 11-13. 129. Id. at 1-2. The new low set of projections calculates, for example, that the total population in 2000 may fall 20 million short of that previously anticipated. 130. "[Tjhe future population may fall outside the range provided by the high and low series, since the alternative projection series do not provide for radical shifts in present trends of birth, death and immigration." Id. at 2. The four series range from one estimating an average of 2.9 births per woman to one assuming 1.8 births per -woman. - ECOLOGY LAW QUARTERLY [Vol. 3:3 11 year age bracket, the latest census report suggests that this distribution will decrease to 58 percent in 1980 and less than 50 percent in the year 2000.131 This trend toward a higher proportion of older women in the reproductive age bracket will significantly affect pregnancy, abortion, and birth ratios. In addition, the census figures are based upon projections calculated before the Wade-Bolton decisions, and thus they do not reflect any estimates of the impact of unrestricted abortion on population trends. Thus, though the above predictions are admittedly uncertain, they most probably err on the side of overestimation and represent an upper limit to future abortion demand."3 2

3. Population Forecasts Concern over expanding population has been largely responsible for stimulating the move toward abortion reform. In 1967 Kingsley Davis recognized that "[n]o nation has yet demonstrated that population growth can be slowed by voluntary family planning methods- unless selective abortion is also used," and that abortion "is one of the surest means of controlling reproduction, and one that has been proved capable of reducing birth rates rapidly."' 3 Since it was and is still highly unlikely that any significant breakthrough in contraceptive methods would occur before 1980,134 the availability of legal abortion appeared as an immediate and viable alternative to restrain population growth. In several Eastern European countries the number of legal abortions steadily increased for several years after implementation of liberal abortion laws. While a corresponding decline in the birth rate was observed, it was not as large as the increase in the abortion rate. After some years, however, the birth and abortion rates have stabilized. 3 Data from Japan substantiate the hypothesis that abortions contribute to a declining birth rate. 3 '

131. Id. at 14-15. 132. A more conservative estimate based on the Colorado and California experiences is presented by Hall, who predicts 900,000 abortions a year under full legalization. Hall, Abortion: Physician and Hospital Attitudes, 61 A.J.P.H. 510, 526 (1971). 133. Davis, Population Policy: Will Current Programs Succeed?, 158 SCIENcE 730 (1967). 134. See Djerassi,Birth Control after 1984, 169 SCIENCE 94 (1970). 135. In Rumania and Bulgaria. a drop in the birth rate caused a conservative re- vision in the abortion laws, which immediately led, at least in Rumania, to a marked upswing in the number of births. Tietze & Lewit, Abortion, 220 SCIENTIFIC AMEMCAN 21, 25 (1969). Alarm has been expressed in the Warsaw Pact countries over the declining birth rate. N.Y. Times, Mar. 5, 1972, at 18, col. 1; Nov. 14, 1971, at 17, col. 1. A Russian professor has suggested that over the longterm, if abortion is banned, the birth rate rises for only 1-1% years and then falls again. Id., Mar. 23, 1971, at 2, col. 4. 136. Tietze & Lewit, supra note 135, at 26. Care should be taken not to extrapo- 19731 ABORTION DECISIONS

Tietze has developed a hypothetical model to test the initial impact of abortion legalization. Using New York City statistics, he ana- lyzed the proposed sources of legal abortions, concluding that virtually all abortions performed on New York City residents under the liberalized law ended unwanted pregnancies which would have been terminated anyway. Thus the sharp decline in the American birth rate must be explained by other factors such as radical changes in attitudes and reproductive behavior."' Tietze obtained identical results by a different formula as well. He observed that 62,625 legal abortions on New York City residents in 1970 corresponded to a decline of 17,400 births in 1971. Applying the same ratio to the birth rate of the United States outside of New York, where, with a few exceptions, abortion was less available, he predicted that the birth rate for the rest of the country should have dropped by 1.2% in 1971, instead of the actual 3.7% decline. He concluded that Itlhe majority of women for whom abortion was an acceptable solution for an unwanted pregnancy had been able to obtain illegal abortions and that for most women who would not resort to illegal abortions, legalization by itself has not made the procedure acceptable, 1 s at least not during the first nine months under the new law. " On a nationwide basis, Tietze predicted that national legalization of abortion on request initially would reduce the crude birth rate by about 1.6 births per 1000 population (330,000 births).,' 140 Experts attribute the radical change in reproductive behavior to several factors. Today there is widespread postponement of mar- late the experiences of these countries to the United States, since use and knowledge of contraceptives were not widespread in the 1940's and 1950's when their abortion statutes were liberalized. Tietze, supra note 124, at 10. 137. Tietze, supra note 122, at 40-41. Tietze noted a 12.5% decline in the number of New York City births from 1970-71 to 1971-72. The decrease is in no way explained by the moderate increment of 7,700 abortions performed on New York City residents in the corresponding period. However, a decline in birth rate represents pregnancies prevented or terminated up to nine months previously. Tietze's analysis thus may be somewhat inaccurate in failing to consider timing factors. In addition, he implicitly assumes that prior to full legalization the number of pregnancies terminated by legal abortion is small. The use of statistics from New York, a forerunner state, to predict nationwide abortion trends may be challenged in light of the recent ease of access to states with reform abortion laws. 138. Tietze, supra note 124, at 7. This method also is not without its faults. Tietze's conclusion that the declining birth rate is attributable to factors other than available legalized abortion must also be taken into consideration in his initial analysis of the New York City data which showed a decline in births. 139. Id. 140. Census Bureau data has indicated that total births in 1972 dropped nine percent, even though there were three percent more women of reproductive age. N.Y. Times, Sept. 24, 1972 at 1, col. 1. More recent statistics have indicated that ECOLOGY LAW QUARTERLY [Vol. 3:311 riage, more effective use of contraceptives, and a growing acceptance of abortion and sterilization. Rapid gains in the field of women's rights have resulted in desires for freedom from child-bearing to pursue careers, causing increased attention to be focused on family planning and the spacing of children. The stresses of crowded modern living have enhanced the desirability of a small family. Formal organizations such as Zero Population Growth, reinforced by new environmental concerns, advise a slower pace of growth.141 It is difficult to evaluate exactly what role abortion reform plays among these many factors. A radical decline in births occurred in the past year. There were 3,407,000 reported births from July 1, 1971, to June 30, 1972, a drop of 298,000 from the previous year. 142 While abortion data for 1971 are incomplete, the 235,000 estimated 1970 abortions indicate that the decline in births has to some extent already reflected the greater access to legal induced abortion. Under Tietze's model, then, it is probable that we have already experienced much of the immediate demographic effect of abortion reform, and that the primary impact of the Supreme Court decision will be to vastly improve public health by removing the dangers of illegal abortions and improving overall maternal care.

B. Impact of Abortion Reform on Public Health 1. Direct Effects: Lowered Complication, Maternal and Infant Mor- tality Rates The most immediate effect of legalized abortion will be to reduce the number of complications and maternal and infant deaths associated with pregnancy. In addition, data compiled thus far in jurisdictions having liberal abortion laws indicate that overall maternal and infant health is improved by wider access to abortion. In 1972 the Population Council published a comprehensive study of 72,988 abortions performed between July 1970 and June 1971 in 66 institutions participating in the Joint Program for the Study of Abor- tion.14 The findings show that three of four abortions were performed within the first 12 weeks of pregnancy,1 44 with almost 98 percent oc- projected family size has dropped from 2.1 to 1.8 children per family, below the replacement level for the first time, lowering the estimated population range for the year 2000 to 251-300 million. Census Report, supra note 125, at 11-13. 141. Hopefully the results of this deceleration will be an older population with increased leisure time, higher employment rates (particularly for women), better education, stronger families, a higher standard of living and earlier retirement. 142. Census Report, supra note 125, at 11. 143. See note 102 supra. 144. The Center for Disease Control reports comparable totals of 68 and 70o in the first and second quarters of 1971; 45% of abortions occurred between nine and 12 weeks of gestation. CDC ABORTION SURVEILLANCE REPORT (July 1972), supra note 1973] ABORTION DECISIONS curring before the twentieth week. It is significant that the proportion of early abortions increased substantially during the study year, indicating greater familiarity with procedural requirements and increasing public acceptance of abortion as a legitimate medical procedure. With legalized abortion now available to all women on request with few procedural impediments, the percentage of early abortions will continue to grow. Tyler estimates that 95 percent of abortions will be performed by suction or dilation and curettage in abortion clinics in the first 13 weeks of pregnancy, with three percent saline replacement and two percent entailing abdominal surgery.14 The duration of most of these abortions will be less than five hours, including preoperative and post- operative care and counselling.' 46 With few exceptions, second trimester and later abortions will be employed for health reasons only and will be performed under stricter medical supervision in hospitals. The complication rate from abortion, as expected, varies directly with the length of the pregnancy, and the risk to health is three to four 147 times as high in the second trimester of pregnancy as in the first. The JPSA study showed that 22 percent of women who aborted after 13 weeks developed complications and over three-fourths of all major complications stemmed from saline injections, hysterectomies and hys- terotomies, procedures all performed after the first trimester only. Com- plication rates were lowest for abortion by suction, but increased with length of pregnancy, and, after the first trimester, with age of the woman and parity (number of pregnancies carried to live birth). While nonprivate patients had, overall, significantly higher complication rates than did private patients, particularly after the first trimester, complications from suction abortions performed in the first trimester still were lower for clinics than for hospitals.14 s All statistics thus indicate that with earlier and safer abortions available on demand, the overall complication rate for abortions will decrease. However, the complication rate for second trimester and

112, at 3. 1971 data for New York State shows that 79% of abortions were performed in the first trimester. New York Dep't of Health, Report on Induced Abortions Recorded in New York State, Jan-Dec., 1971, at 1-2. 145. Tyler & Schneider, supra note 121, at 492. Current methods of procuring induced abortion in the United States depend primarily on the length of gestation of the fetus. Most abortions performed in the first trimester are accomplished by suction (vacuum aspiration) or classical dilation and curettage; after the first 14 weeks techniques such as saline injection, hysterectomy and hysterotomy are more commonly employed. 146. Overstreet, Logistics Problems o1 Legal Abortions, 61 A.J.P.H. 496 (1971). 147. JPSA Study, supra note 102, at 109. 148. Id. at 104-08, 111-13. Tietze and Lewit speculate that the discrepancy between clinic and hospital statistics results from variations in periods of gestation and type of service, greater physician experience, more rigorous selection of patients, and less accurate reporting and follow-up by clinics. id. at 98. ECOLOGY LAW QUARTERLY [Vol. 3:311 later abortions probably will increase because a higher proportion of these abortions necessarily will be performed for health reasons on women with pre-existing medical problems who are more susceptible to complications. One clear beneficial result of liberalization of abortion laws has been a drop in maternal mortality rates in states with reform legislation. The overall maternal death rate from legal abortions in New York, for example, has dropped to 3.7 per 100,000 abortions in the last half of 1971 ;149 there were no maternal deaths reported from 3643 abortions performed in the first year of liberalized legal abortion in Hawaii. 150 The JPSA study recorded six deaths, all but one from abortions performed after the first trimester, giving a mortality rate of 8.2 per 100,000 abortions. 5' Since 1970, New York City has experienced the lowest overall maternal mortality rate on record. 5 2 Similar experiences have been observed in other countries with liberalized abortion laws.' 5' An even more dramatic result of the liberalization of abortion laws in New York has been a decrease in the maternal mortality rate from illegal abortions' and a decline of almost 60 percent in maternal

149. PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., THE NEW YORK ABORTION STORY (1972). See also NEW YORK CITY HEALTH SERVICES ADMINISTRA- TION, NEW YORK CITY ABORTION REPORT: THE FIRST Two YEARS 2 (1972). It has been impossible accurately to estimate abortion mortality prior to liberalization due to lack of reporting. 150. UNIVERSITY OF HAWAII, REPORT TO THE LEGISLATURE: ABORTION IN HA- WAII, THE FIRST YEAR 7 (1970). Contrast these figures to the maternal death rate from childbirth in 1967 which was 28.0 per 100,000 births. U.S. BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES 58, Table 69 at 55 (1970). 151. JPSA Study, supra note 102, at 108. 152. 5.3 per 100,000 abortions. Chase, Twelve-Month Report on Abortions in New York City, June 29, 1971 at 2 (staff report to N.Y. City Health Dep't). The death rate has dropped to 3.7 in 1971, with a strong decline in the last three months. New York State Dep't of Health, Report on Induced Abortions Recorded in New York, Jan.-Dec. 1971 (Aug. 1972). Tietze has estimated that today in the United States it is six to eight times more dangerous to complete a pregnancy than it is to have a legal abortion. Tietze, quoted in Lamm & Davison, supra note 22, at 56. 153. Maternal mortality rates fell as low as 1.2 per 100,000 abortions in Hungary between 1964 and 1967. UNITED NATIONS, MEASURES, POLICIES AND PROGRAMMES AF- FECTING FERTILITY WITH PARTICULAR REFERENCE TO NATIONAL FAMILY PLANNING PRoGRAMMES 101 (1972). 154. Maternal deaths from criminal abortions probably peaked in 1961, account- ing for 47% of all maternal deaths. In the first half of 1971, only one death directly tied to criminal abortion was reported. See Pakter & Nelson, Abortion: New York City, FAMILY PLANNING PERSPECTIVES 10 (July 1971). See generally Hardin, Abortion Techniques and Services: A Review and Critique, 61 A.J.P.H. 2085 (1971). Nationally the anticipated reduction in numbers of illegal abortions will be difficult to assess. Current estimates of illegal abortions range from 200,000 to 1,200,000 annually, at an approximate cost of $350 million per year. See Lucas, supra note 44, at 751. Experience with the reform New York law, however, has already shown a significant drop in hospital admissions for incomplete or "spontaneous" abortions. Pakter & Nelson, supra, at 7. Tietze estimates that 70% of the legal abortions performed in 1973] ABORTION DECISIONS mortality unassociated with abortion.'5 5 The most logical explanation for this dramatic improvement in public health is that a large number of abortions are being performed on women in high-risk age and health groups, thus significantly lowering childbirth fatality. It can be expected that the index of maternal and public health will continue to improve and that childbirth morbidity and mortality will decline significantly. As a result, there will be a greater tendency to treat childbirth as a natural process, requiring less hospitalization and entailing fewer risks than is possible today. In addition, liberalization of the New York law has precipitated a 20 percent decline in infant deaths since the law took effect in July of 1970.158 In New York City, the infant mortality rate dropped from 24.4 per 1000 live births in 1969 to 20.7 per 1000 live births in 1971.17 Now that abortions are available on demand to terminate high-risk pregnancies, and as medical techniques are developed to detect possible eugenic problems earlier in pregnancy, the infant death rate should continue to drop.

2. Indirect Effects a. Increased Access-Sociological Impact Several studies of states with reform legislation have given a fairly accurate picture of the women who have obtained legal abortions in recent years. Sixty percent of legal induced abortions today are performed on unmarried women under 25, pregnant for the first time.' 5" The JPSA study also indicates that over the course of the study year, the proportions of married, black, and nonprivate patients increased significantly, with little change in age distribution. 159 Reports concerning abortions performed on New York City residents indicate that discrimination against the poor and the nonwhite in obtaining abortions has been eliminated to a great extent, with the number of abortions per 1000 live births being 338 for Puerto Ricans, 418 for whites, and 774 for blacks. 160 Thus, reform legislation is making an impact

New York City under the new law replace illegal abortions. Tietze, supra note 122, at 41. Based on these data, Tietze concluded that the major initial impact of legalized abortion has been and will continue to be the replacement of illegal abortion by safe, legal procedures. Tietze, supra note 124, at 7. 155. Guttmacher, The Genesis of Liberalized Abortion in New York: A Personal Insight, 23 CASE W. RES. L. REv. 756, 768 (1972). 156. N.Y. Times, Apr. 26, 1971, at 31, col. 2. 157. Tietze, supra note 122, at 39; New York City Health Services Administra- tion, supra note 146, at 2. 158. Overstreet, supra note 146, at 497. 159. JPSA Study, supra note 102, at 100, 102, 119. Lowered cost has con- tributed to this increase. 160. Tietze, supra note 122, at 39. The New York data showing high abortion/ ECOLOGY LAW QUARTERLY [Vol. 3:311 in curtailing births of unwanted children in poverty areas.161 As social attitudes toward abortion become more liberal, there will be an increased acknowledgment of abortion as an acceptable method of birth control. Examination of the 1971 New York City data shows that resident women tend to use abortions to limit their family size and are more likely to abort in municipal and voluntary hospitals; in contrast, out-of-state abortees are younger, more likely to be white, to abort in clinics, and to have an abortion for a first out-of-wedlock pregnancy. 162 The import of this analysis is that many out-of-state married women do not yet consider abortion because of the difficulty of obtaining one; yet once legal abortion is made available, married women more readily will utilize the procedure when contraception fails. b. Impact on Health Delivery Service To meet increased demand for legal induced abortions, health professionals in each state will be confronted with the task of providing the safest and most efficient facilities for abortion services. Four types of facilities have been proposed: hospital operating rooms with over- night admissions, hospital operating rooms on an outpatient basis, free- standing licensed clinics, and physicians' offices. While prophecies of overtaxed and inadequate medical facilities and concerns over public health hazards were frequently voiced when the elective abortion law of New York first went into effect, such problems failed to materialize.16 3 The current number of physicians, combined with innovative uses of facilities, para-professionals, counselling, and new technology can ac- commodate the expected increase in abortions. There are enough physicians in the country to handle the projected demand for abortions. Tietze estimates that if half of the 18,000 obstetricians each performed four abortions a week (four hours work), 1,800,000 abortions could easily be handled annually. 164 live birth ratios among nonwhite women can be interpreted, as double-edged: while undoubtedly evidence of nondiscriminatory service, it also fuels charges -of genocide by ethnic minorities. See N.Y. Times, Sept. 8, 1967, at 42, col.-5. 161. New York City's illegitimacy rate has declined since the passage of the reform abortion law. Tietze calculates that over one-third of the decline in total births in 1971 is attributable to a reduction of out-of-wedlock deliveries. Tietze, supra note 124, at 8. Simultaneously New York City has experienced a discernible drop in the number of infants available for adoption since the law was passed. N.Y. Times, Sept. 27, 1972, at 27, col. 1. 162. N.Y. Times, Feb. 20, 1972, at 61, col. 1. 163. Chase, supra note 152, at 3. 164. Tietze, supra note 124, at 4. However, if efficient utilization of physician resources is to be achieved, the opposition of many doctors and hospitals must be over- come or controlled. A 1970 survey of obstetricians in New York indicated.that only 54% were willing to perform abortions under the new law, though the percentage had risen t. 60 percent by the beginning of -1971. IUrner, Arnold &-Wassertheil, Dep't of 1973] ABORTION DECISIONS

While it is probable that most revised abortion statutes will require performance by a licensed physician,"6 5 some liberal states may encourage technical training and licensing of other personnel as qualified to perform abortions. The Supreme Court in Doe v. Bolton, in removing hospitalization requirements for early abortion, specifically relied upon the JPSA study which indicated that first trimester abortions are more safely performed in clinics than in hospitals." 6" This clearly will give a strong impetus to health personnel and concerned groups throughout the country to establish non-profit abortion clinics. Organizations such as Planned Parenthood, with experience in setting up such clinics in New York City, have announced plans to assist in a nationwide network of clinics which should make commercial abortion referral agencies and 167 clinics obsolete. Significant contraceptive failure rates and widespread lack of in- formation about and access to contraceptives are two factors which contribute in large part to the demand for abortions. 6 ' Recent sur- veys indicate that approximately 4.3 million women are in need of subsidized family planning services.' 69 In response to this need, Con- gress enacted the Family Planning Services and Population Research Act of 1970, appropriating over $380 million to "assist in making comprehensive voluntary family planning services readily available to all persons. "170' By Executive Order, the implementation of this Act specifically excludes abortion as a method of family planning; but, in light of the Wade-Bolton decisions, full abortion services will probably supplement federally-funded family planning programs. As an immediate step, however, safe abortion clinics must also include public edu-

Community Health, Albert Einstein College of Medicine, New York State Obstetricians and the New Abortion Law (New York 1970). Again, the high Roman Catholic population of New York State may distort these figures. See also Roy, supra note 4; Lamm & Davison, supra note 23, at 61; Ducar, supra note 94, at 33-34; N.Y. Times, Mar. 14, 1971, at 58, col. 3. 165. JPSA Study, supra note 102, at 98. Note also that Roe v. Wade expressly upholds the right of the state to require that abortions be performed by licensed physicians. 410, U.S. at 165. 166. 410 U.S. at 195, referring to the JPSA study presented by the Planned Par- enthood amicus curiae brief at the 1972 reargument. 167. However, even nonprofit single-procedure clinics may not survive economic competition by doctor's office abortions. N.Y. Times, Mar. 19, 1973, at 6, col. 1. But see text accompanying notes 102-07 supra. 168. During a period in early 1970 when the birth control pill lost favor due to adverse publicity, New York City reported a sharp rise in both therapeutic and criminal abortions. N.Y. Times, Feb. 15, 1970, at 28, col. 3. 169. Dryfoos, et al., Eighteen Months Later: Family Planning. Services in the United States, 1969, 3 FAMILY PLANNING PERSPECTIVES 29 (1971). •170. 42 U.S.C.A. § 300 et seq. (1973 Supp.). ECOLOGY LAW QUARTERLY [Vol. 3:3 11 cation and counselling on available contraceptive services."' New medical techniques of abortion are now being developed which may replace the traditional methods of pregnancy termination. Postcoital high-dosage estrogens ("morning-after" pills) disrupt the process of implantation,' 72 while techniques such as vaginal insertion of prostaglandins and menstrual extraction may entirely alter abortion technology."' Other alternatives to abortion, such as embryo trans- plantation to receptive mothers, are in the stage of preliminary research. 7 4 An essential requirement of safe mass legal abortion must be the development of a comprehensive nationwide surveillance system similar to that already assumed on a limited scale by the Center for Disease Control. Current techniques of follow-up now utilized in abortion clinics are minimal at best; efforts must be directed to expanding follow-up so that complications of abortions are rapidly treated 7 and minimized. 1

CONCLUSION The Supreme Court decisions in Wade and Bolton transcend strictly legal concepts. They encompass moral, philosophical, medical, demographic, and sociological facets as well, and mark the climax of a five-year revolution in the law. Until 1973 abortion was the only medical procedure governed by the criminal law. This factor, combined with the recognition of abortion reform as a partial remedy for the population explosion, inundated the courts with litigation. With legal abortion now readily available, much of the public stigma associated with the procedure will dissipate and it will soon be considered an acceptable method of family planning. The demographic impact of liberalization remains uncertain. The primary effect will be a demonstrable improvement in public health, rather than a radical change in birth and population patterns. Nationwide medical resources and facilities must adjust immediately to meet the predicted large-scale demand for abortions and institute comprehensive surveillance and follow-up techniques. Julie Conger

171. Tyler & Schneider, supra note 121, at 491. 172. Recent evidence, however, has linked this treatment with subsequent vaginal cancer in daughters of mothers so treated. Guttmacher, supra note 155, at 770-71. 173. Id. at 771-74. See also David, Abortion: Public Health Concerns and Needed Psycho-Social Research, 61 A.J.P.H. 510 (1971); Speroff, Prostaglandins, 171 SCIENCE 502 (1971); Speroff & Ramwell, Prostaglandins in Reproductive Physiology, 107 AM. J. OB.& GYN. 1111 (1970). 174. See D. Browie, The New Biology and the Prenatal Child, 9 J. FAM. L. 391 (1970). 175. Care must be taken in late-pregnancy abortions; even before the 28-week mark, aborted fetuses are capable of survival. New York City reported 27 live births from abortion attempts during the first six months of liberalized abortion, and one fetus has since survived and been placed for adoption. See N.Y. Times, Dec. 19, 1970, at 21, col. 2. Plans for the disposition of these infants must be carefully considered. 1973] ABORTION DECISIONS

TABLE I STATUTORY REQUIREMENTS-JUSTIFICATIONS FOR ABORTIONt Statute Ruled Invalid No Life Health by Excep- of of Eugenic Free Court State tions Mother Mother Reasons Rape Incest Choice Decision Ala. X X Alas. Ariz. X Ark. X X Cal. X X Colo. X X Conn. X Del. X X D.C. X X Fla. X X Ga. X X Haw. Idaho X Ill. X Ind. X Iowa X Kan. X X X X X Ky. X La. X Me. X Md. X X X X Mass. X Mich. X Minn. X Miss. X X Mo. X Mont. X Neb. X Nev. X N.H. X N.J. X N.M. X N.Y. N.C. X N.D. X Ohio X Okla. X Ore. X X X X X Pa. X R.I. X S.C. X X X X X S.D. X Tenn. X Tex. X Utah X Vt. X Va. X X X X X Wash. W. Va. X Wis. X Wyo. X

t General source: George, "The Evolving Law of Abortion," 23 Case W. Res. L. Rev. 708 (1972). * Held overbroad by county court judge. ECOLOGY LAW QUARTERLY [Vol. 3:311

TABLE II STATUTORY REQUIREMENTS-PROCEDURALt Special_ Length Required JCAH Li zensed Other Commit- Approval of Preg- Rest- Licensed Accredi Phiysi- vDIJ ap- tee Ap- if Rape/ State nancy dency Hospital tation ciian proval proval Incest Ala. Alas. nonviable 30 days X Adz. Ark. 4 months X X X X X Cal. 20 wks. X X X X* X* Colo. 16 wks. X X* X X X Conn. X X X Del. 20 wks. 120 days X X X D.C. X X Fla. X X X* Ga. Bonafide X X X X Haw. nonviable 90 days X X Idaho Ill. X Ind. Iowa X* Kan. X X* X Ky. La. X Me. Md. 26 wks. X* X* X X X Mass. Mich. Minn. Miss. X Mo. X Mont. Neb. Nev. N.H. X N.J. N.M. 16 wks. X X N.Y. 24 wks. X N.C. 30 days X X N.D. Ohio Okla. Ore. 150 days resident X X Pa. R.I. S.C. 90 days X X S.D. Tenn. Tex. Utah Vt. Va. 4 months X X X X X Wash. 16 wks. 90 days X W. Va. Wis. X X Wyo.

t General source: George, "The Evolving Law of Abortion," 23 Case W. Res. L. Rev. 708 (1972). * Requirement ruled invalid by court decision. 1973] ABORTION DECISIONS

TABLE M

STATE ABORTION LAWS

ALA. CODE tit. 14, § 9 (1959). ALASKA STAT. § 11.15.060 (1970). ARiz. REV.STAT. ANN. § 13-211 (1956). ARK. STAT. ANN. § 41-304 (Supp. 1969). CAL. HEALTH AND SAFETY CODE § 25951 (West Supp. 1971). CoLo. REv. STAT. ANN. § 40-6-101(3)(a) (1971). CONN. GEN. STAT. ANN. § 53-29 (1958, amended in 1972). DEL. CODE ANN. tit. 24, § 1790(a)(1) (Supp. 1970). D.C. CODE ANN. § 22-201 (1967). FLA. SEss. LAwS ch. 72-196 (West 1972). GA. CODE ANN. § 26-1202 (1970). HAWAII REV. LAws § 453-16 (Supp. 1971). IDAHO CODE ANN. § 18-1506 (Supp. 1971). ILL. ANN. STAT. § 10-105 (1956). IOWA CODE ANN. § 701.1 (1950). INDIANA ANN. STAT. § 10-105 (1956). KANSAS STAT. ANN. § 21-3407 (Supp. 1970). KY. REV. STAT. § 436.020 (1969). LA. REV. STAT. § 14:87 (Supp. 1972). ME. REV. STAT. ANN. tit. 17, § 51 (1964). MD. ANN. CODE art. 43, § 137 (1971). MASS. GEN. LAWS ANN. ch. 272, § 19 (1968). MicH. COMP. LAWS ANN. § 750.14 (1968). MINN. STAT. ANN. § 617.18 (1963). Miss. CODE ANN. § 2223 (Supp. 1971). Mo. ANN. STAT. § 559.100 (1953). MONT. REV. CODES ANN. § 94.401 (1969). NEB. REV. STAT. H8 28-404, -405 (1965). NEV. REV. STAT. § 201.120 (1967). N.H. REV. STAT. ANN. § 585.13 (1955). N.J. REV. STAT. § 2A:87-1 (1969). N.M. STAT. ANN. §§ 40A-5-1 to -3 (Supp. 1971). N.Y. PENAL LAW § 125.05, 125.40 to .55 (McKinney Supp. 1971). N.C. GEN. STAT. § 14-45.1 (Supp. 1971). N.D. CENT. CODE § 12-25-01 (1960). OHIO REV. CODE § 2901.16 (Page 1953). OKLA. STAT. ANN. tit. 21, § 861 (Supp. 1971). ORE. REV. STAT. § 435.415 (1971). PA. STAT. ANN. tit.18, § 4719 (1963). R.I. GEN. LAWS ANN. § 11-3-1 (1969). S.C. CODE ANN. § 16-87 (Supp. 1971). S.D. CODE § 22-17-1 (1969). TENN. CODE ANN. § 39-301 to -302 (1955). TEX. PENAL CODE ANN. art. 1191 (1953). UTAH CODE ANN. § 76-2-1 (1953). VT. STAT. ANN. tit. 13, § 101 (1958). VA. CODE ANN. § 18.1-62.1 (Supp. 1971). WASH. REV. CODE § 9.02.060 (Supp. 1970). WIS. STAT. ANN. § 940.04 (1958). WYO. STAT. ANN. § 6-77 (1959).