Abortion Two Periods of Debate and Reform – Stage One –1960-PresentStage Two –Stage One Woman centered process “quickness” Common law: quickness standard “Restoration of the menses”

Criminalization of Abortion Abortion was not illegal in the history of the United States until 1800s 1800s physicians condemned abortion as a symptom of “demoralization” –1821 states began to enact legislation against abortion –Post Civil War criminalization spread Abortion rates increased in 1800s from poor to wealthier classes –Physicians took direct action 1859 to prevent it –AMA passed a resolution defining a fetus as a living being –Most states permitted abortion for therapeutic reasons, usually to save the life of the mother –Classification had changed: quickened/unquickened to therapeutic/criminal

Why Criminalization? The campaign of regulars to gain control and drive nonregulars from the practice of medicine –Read M.D.s versus women/midwives Concerns about increases in death rate, unsafe procedures, incompetence in practitioners, other health threats –These are the reasons law prosecuted the practitioner not the procurer of abortion Lawmakers understood unlikelihood of compliance –Regulated advertising for this reason – slow the flow of information –Abortion moved underground for next 80 years

Abortion: Stage One 1880s Feminists opposed abortion –Viewed women as doubly victimized: By men who impregnated them By doctors who butchered them (in the process of performing the abortion) Reform/repeal of abortion laws –Pre-stage two: 1950s Doctors and Lawyers bring abortion back to the policy agenda Doctors to reduce regulations on medically necessary abortions –In pattern of loosening control over contraception Lawyers to make laws consistent with social attitudes

Abortion: Stage Two Public attention moves to abortion because of birth defects –Rubella and German measles Women having abortions despite illegality Main effect of illegality was to restrict doctors –Women still getting abortions 12 states reform anti-abortion laws in 1967 National Organization for Women –Included reproductive rights in its Bill of Rights

Reform versus Repeal American Law Institute suggests reforming abortion law Women’s movement decides this is still too burdensome for women –Demand repeal of abortion laws Roe v. Wade 1973 –Challenge to Texas statute illegalizing abortion except to preserve the life of the mother.

Roe v. Wade 1973 Supreme Court –Viewed the case as representative of need to reconcile competing demands Right of women to privacy (Griswold-65/Eisenstadt- 72) Right of physicians to treat patients without unnecessary interference Interest of state governments to protect health of pregnant women State responsibility to protect “potential life”

Compromise Compromise was rooted in a common law framework with a modern twist: –Trimesters of pregnancy follow a shift in governmental interest and thus regulation of abortion –First Trimester Simple out-patient procedure, no government interest –Second Trimester Serious but safe hospital procedure, limited government interest – limited regulation –Third Trimester Potentially life threatening procedures “viability” State interest to protect life becomes compelling

Meaning for Doctors and Women? This was arguably not about giving women the “right” to abortion. Roe v. Wade was about giving doctors the right to practice abortion. Reaction? –Movement to restrict access and funding –No absolute right to abortion has ever existed

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