Life Before Roe: A Brief Survey of US Abortion Law Before the 1973 Decision

Author: Brian Young



Abortion did not burst upon the American scene with Roe vs Wade.

Yet, because the facts surrounding abortion and abortion law in the first 200 years of our nation's history are not common knowledge, many are not aware that for nearly all of our country's existence, taking the life of a baby in the womb was prohibited.

In fact, to those who have grown up in the post-Roe era, who have been taught little history, and who listen to pro-abortion rhetoric, the opposite may seem true. To these young people, it may appear that the United States was founded upon and has always guaranteed "freedom of choice" in abortion.

Until 1973, however, the pre-born baby was protected by American law.

In the years prior to and immediately after the American Revolution, colonists and citizens followed the rule of law brought by British settlers, the "common law." Rather than being a code of statutes passed by a legislature and printed in a book, the common law was a set of legal standards established in England through court decisions and legal custom.

According to Sir William Blackstone, the renowned 18th century English jurist, under common law, the abortion of a 'quickened' fetus was a 'very heinous misdemeanor.' At that time the penalty for misdemeanors could be severe; loss of a limb, confiscation of property or life in prison.

'Quickening' - when a pregnant woman first feels her child move - generally occurs in the fourth month. Scholars have noted that the common law requirement of a 'quickened' baby for the crime of abortion was probably based on a very practical consideration. Since there were no pregnancy tests in the 18th century, evidence that a baby's movement had been felt might have been the only way to establish with any certainty in a court of law that a pregnancy had existed.

The first US law against abortion, adopted by Connecticut in 1821, criminalized the administration of poison or of any "destructive substance" to induce a miscarriage. It applied only to cases where the baby had "quickened."

In 1840, however, Maine became the first state to pass a law that expressly protected all babies, "quick or not."

The abandonment of the "quickening" requirement coincided with the 19th century discovery of how conception takes place. The public, lawmakers and jurists were becoming aware of the scientific fact that life begins when a sperm enters an ovum.

In the mid-19th century, the newly formed American Medical Association undertook to organize physicians and medical societies in support of laws against abortion. An 1859 AMA committee investigating abortion stated in its conclusions that one reason for ...

"the frightful extent of [abortion in the US] is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas."

In the 20 years following this AMA report, aided by lobbying from the medical profession, 31 states passed or amended their laws on abortion to protect pre-term infants at all stages of gestation.

Pro-abortion historians claim that these laws were passed primarily, if not solely, to protect women from possibly fatal abortions. Concern for pre-term babies was not a factor, they claim. Yet, as law professor Joseph Dellapenna has noted, all surgeries at that time involved substantial risks of death. If legislators were motivated to pass anti-abortion statutes only to protect women, why did they not protect other patients by banning other potentially dangerous fatal elective surgeries?

Coincidentally or not, during this period of pro-life legislative activity Congress passed and 28 states ratified the 14th Amendment, prohibiting any state from depriving "any person of life, liberty, or property without the due process of law."

By 1910, every state except Kentucky had passed an anti-abortion law (and Kentucky's courts had declared abortion at any stage of gestation to be illegal).

By 1967, not much had changed. In 49 states, abortion was a felony; in New Jersey, it was a high misdemeanor. Furthermore, 29 states banned abortion advertising, and many outlawed the manufacture or distribution of abortifacients.

In 1967, though, state abortion laws began to change, but only after years of organized campaigns by pro-abortion forces.

The American Law Institute (ALI) proposed, in its 1959 model criminal code for all the states, a "reform" abortion law. The model bill, approved by ALI in 1962, declared that abortion should be permitted for the physical or mental health of the mother, for fetal abnormality, and for rape or incest.

While the leaders of the American legal community were promoting radical changes in state abortion law, a 1962 case in Arizona generated sympathetic press coverage of the notion of "justifiable abortion."

Mrs Sherri Finkbine, a married mother, made public her intention to abort her fifth child. She had taken some tranquilizers/sleeping pills her husband had brought home from a trip to England. The pills turned out to be Thalidomide, a drug that had become associated with birth defects. Fearful of giving birth to a handicapped child, Mrs Finkbine traveled from Phoenix to Sweden, where she had her baby aborted.

In June 1967, the American Medical Association voted to change that body's long-standing opposition to abortion. With a new resolution, the AMA now condoned abortion for the life or health of the mother, for a baby's 'incapacitating' physical deformity or mental deficiency, or for cases of rape or incest.

That same year, Colorado, North Carolina, and California became the first states to adopt versions of the ALI "reform" abortion law. By 1970, though, four states - New York, Alaska, Hawaii and Washington - passed laws that basically allowed abortion on demand. Of those four, New York's was the only law without a residency requirement and the state quickly became the nation's abortion capital.

The pro-abortion onslaught was beginning to face opposition, though, as pro-life forces organized. In 1972, the New York legislature voted to repeal the state's liberal abortion law, but Governor Nelson Rockafeller vetoed the repeal. Ballot questions in Michigan and North Dakota that same year attempted to decriminalize abortion; the measures were defeated by majorities of 63 percent and 78 percent, respectively.

Just as pro-lifers were beginning to turn the tide however, the Supreme Court handed down Roe vs Wade in January 1973. With one judicial stroke, over 200 years of legal protection for the unborn was rendered null and void. For the first time in American history, abortion was the "law of the land".

Brian Young is A.L.L.'s Senior Vice President, Policy Research and Development. For a survey of US Supreme Court Decisions on abortion since Roe vs Wade, see ALL "All about Issues", January-February 1993.