Journal of Criminal Law and Criminology Volume 60 | Issue 1 Article 2 1969 Recent Abortion Law Reforms (Or Much Ado About Nothing) Harvey L. Ziff Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Harvey L. Ziff, Recent Abortion Law Reforms (Or Much Ado About Nothing), 60 J. Crim. L. Criminology & Police Sci. 3 (1969) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THE JounN.e., or CatnaA, LAw, CRIMnOLOGY AND POLICE SCIENCE Vol. 60, No. 1 Copyright @ 1969 by Northwestern University School of Law Pri ed in U.S.A. RECENT ABORTION LAW REFORMS (OR MUCH ADO ABOUT NOTHING) HARVEY L. ZIFF The author is a graduate of Northwestern University School of Law's two-year Prosecution-Defense Graduate Student Program. He received his LL.M. degree in June, 1969, after completing one year in residence and one year in the field as an Assistant United States Attorney in San Francisco, Califor- nia. The present article was prepared in satisfaction of the graduate thesis requirement. (It repre- sents the author's own views and in no way reflects the attitude of the Office of United States Attorney.) Mr. Ziff received his B.S. degree in Economics from the Wharton School of Finance of the Univer- sity of Pennsylvania in 1964. His interest turned to medical-legal problems at Stanford University Law School, where he received an LL.B. degree in 1967. While at Stanford, he was a member of the Board of Editors of the Stanford Law Review. After surveying the statutory and case law governing abortions and considering the relevant social and medical issues, Mr. Ziff recommends unregulated medical control during the first sixteen weeks of pregnancy. The law regulating induced abortion is one of The law makes no distinction based on viability. the most widely discussed medical-legal problems Criminal abortion generally refers to any untimely of the present time. In recent years literature on delivery voluntarily procured with intent to the subject has become voluminous, stirring up destroy the fetus before natural birth.5 However, intense emotional reaction and violent debate. few criminal abortions are performed after the Recently, four states have revised their laws, third month of pregnancy because abdominal using the proposal in the Model Penal Code as a operations are required after that time. 6 Conse- guide. This paper will critically evaluate the quently, most criminal abortions are categorized Model Penal Code proposal. Detailed examination correctly as abortions in medical terminology. will be made of the social problems which are responsible for recent legal revisions. This exami- GENEAIL STATE OF THE LAW nation will be followed by (1) a description of the Every state in the union has a statute which reasons why the reforms which have been passed makes the termination of pregnancy a crime. are likely to be ineffective in dealing with the However, all but Louisiana provide exceptions by conditions which impelled their enactment, (2) statute or case law 7 Most states are restrictive an analysis of the legal problems involved in and limit legal abortion to the narrow grounds of s 9 passing an effective reform, and (3) a proposal necessity to "preserve" or "save" the life of based on the preceding analysis. 5Many abortion statutes punish the attempt to The term "abortion" causes confusion because induce an abortion. Thus the crime may be committed its meaning varies according to the profession with a woman who is not pregnant. See, e.g., ILL. REv. STAT. ch. 38, §23-1 (1965). which employs it. In medical usage, abortion 76TAussIo, supra note 2, at 327-40. generally refers to the premature expulsion from LA. REv. STAT. ANN. §14.87 (1950). There is an inconsistency in the Louisiana statutes, however. Per- the uterus of the products of conception at a time formance of an abortion is not a cause for revocation of before viability, i.e., before the fetus has reached a medical license when "done for the relief of a woman such a stage of development that it can live out- whose life appears in peril...... " LA. REv. STAT. ANN. §37:1285. side the uterus." The twenty-sixth to the twenty- 8 ALAS. STAT. tit 11, §15.060 (1962). eighth week of pregnancy is regarded as the time DEL. CODE ANi. tit 11, §301 (1953). of viability.2 After that time, "miscarriage"' or FLA. STAT. AwN. §782.10 (1965). GA. CODE ANN..§26-1101 (1953). "premature labor"' are the terms used by medical HAwAnI REv. LAWS §309-3, 4 (1955). authorities for premature expulsion of the fetus. IDAuO CODE AxN. §18-601 (1948). IND. AN. STAT. §10-105 (1956). 1 DoRLAwD, ILLUSTRATED MEDICAL DICTIONARY 1689 KAN. GEN. STAT. AwN. §21-437 (1964). (24th ed. 1965). KY. REV. STAT. §436.020 (1962). 2 TAussiG, ABORTiON, SPONTANEOUS AN INnucED 21 ME.'REV. STAT. ANN. ch. 134, §9 (1954). (1936). MICH. STAT. AN. §28.204 (1962). aALOy, MnEDIcA DICTIONARY rOR LAwYERs 380 Miss. CoDE ANN. §2223 (1956). (1951). MONT. REV. CODE ANN. §94-401 (1947). 4 DosrLAN, supra note 1, at 789. NEB. REv. STAT. §28-405 (1965). HARVEY L. ZrFF [Vol. 60 the pregnant woman. Some states permit abortions Recent Legislative Revisions 1 to "preserve"'" or "save"' the life of either the Since 1967, Colorado, North Carolina, California, pregnant woman or the child. and Maryland have revised their criminal laws A few states do provide wider grounds for related to abortion. Each of these states has gen- justifiably terminating pregnancy. Thus Alabama erally followed the reforms drafted by the and the District of Columbia permit abortions to American Law Institute.17 The following dis- 12 preserve the life or health of the mother, and cussion will focus predominantly on the Model New Mexico legalizes abortions "to preserve the Penal Code provisions since it is likely that other life of the woman or to prevent serious or perma- states which are contemplating reforms will also 13 nent bodily injury" to her. use the A.L.I. proposal as a guideline. Although most states carefully regulate the The Model Penal Code provisions maintain the grounds on which pregnancy may be justifiably general state of the law in that termination of 14 terminated, the majority, apparently, permit pregnancy continues to be unlawful, unless justified 15 anyone to perform the operation. Prior to 1967, by particular circumstances. However, only a only ten states and the District of Columbia licensed physician may perform an abortion with required that a physician or surgeon perform the justification. His reasons for terminating a preg- 6 operation.j nancy may be based upon any of four grounds- N.H. PEv. STAT. ANN. §583:13 (1955). if he believes that there is a substantial risk that N.Y. REv. PEN. LAW §§125.05; 125.40; 125.45 (1967). (1) continuance of the pregnancy would gravely N.D. CENT. CODE §12-25-01 (1939). the mother, Orno REv. CODE ANN. §2901.16 (1964). impair the physical or mental health of OKLA. STAT. ANN. tit. 21, §861 (Supp. 1967). (2) the child would be born with grave physical or R.I. GEN. LAWS ANN. §11-3-1 (1956). mental dfect, (3) the pregnancy resulted from S.D. CODE §13-3101 (1960). TEN. CODE ANN. §39-301 (1955). rape, or (4) the pregnancy resulted from incest or UTAH CODE ANN.§76-2-1 (1953). other felonious intercourse. In addition, the VT. STAT. ANN. tit. 13, §101 (1958). written concurrence of two physicians on the Wyo. STAT. ANN. §6-77 (1957). 9Auz. REv. STAT. AoN. §13-211 (1956). designated grounds must be filed, either in the AREo.STAT. ANN. §41-301 (1964). hospital where the operation is to be performed ILL. REV. STAT. ch. 38, §23-1 (1965). IOWA CODE §701.1 (1950). or in any other place designated by law. N.J. REv. STAT. §2A:87-1 (1953), as interpreted in The new Colorado law provides for termination State v. Brandenburg, 137 N.J.L. 124, 58 A. 2d 709 on the grounds recommended by the (1948). of pregnancy TEX. PEN. CODE §§1191, 1196 (1961). Model Penal Code, but requires the unanimous Wis. STAT. §940.04 (1961). approval of a "special hospital board of three 10CONN. GEN. STAT. REV. §53-29 (1958). physicians" who are staff members of the hospital Mnm. STAT. §617.18 (1963). Mo. STAT. ANN. §559.100 (1953). where the operation is to take place.U North NEv. REv. STAT. §201.120 (1961). Carolina provides for termination on the Model S.C. CODE ANN. §§16-82, 16-83 (1962). WASH. REV. CODE ANN. §9.02.010 (1961). Penal Code grounds, but limits the operation to "VA. CODE ANN. §18.1-62 (1960). women who have been residents for four months, W. VA. CODE ANN. §61-2-8 (1966). 2 and who have approval of three doctors not ALA. CODE tit. 14, §9 (1959). 9 D.C. CODE ANN. §22-201 (1967). engaged in joint private practice California does For states which permit abortions when "necessary not permit potential defectiveness of the child see to preserve" the life or health of the mother basis for termination, but does MAss. GEN. LAWS ANN. ch. 272, §19 (1956), as inter as an independent preted in Commonwealth v. Brunelle, 341 Mass. 675, allow termination for the other grounds specified 171 N.E.