Prosecution
The State of Massachusetts
Defendant
Isaiah Bangs
Crimes Charged
Causing an abortion, committing assault and battery on Lucy Holman and administering a harmful drug to her.
Chief Prosecutor
Solicitor General
Chief Defense Lawyer
Fay
Justices for the Court
Chief Justice Theophilus Parsons, Isaac Parker, Samuel Sewall
Justices Dissenting
None
Place
Cambridge, Massachusetts
Date of Decision
October term, 1812
Decision
Bangs was found not guilty.
Significance
Common law tradition permitted a woman to abort a fetus up until "quickening." This began to change in the nineteenth century, as this case shows.
Common law in both England and America held that abortion became a moral issue only after the mother detected fetal movement, or "quickening," which occurs during the fourth or fifth month of pregnancy. In early America, abortionswere neither forbidden nor prosecuted under common law. Women used herbal abortifacients and other methods to end their pregnancies, and midwives and doctors performed intrusive procedures.
However, during the nineteenth century, abortion became a crime. Massachusetts v. Bangs illustrates how judicial opinion began to change. During the October court term of 1810, Isaiah Bangs was arrested and indicted for theassault and battery of a pregnant woman, Lucy Holman, and for forcing her toswallow a drug causing abortion. The jury found Bangs guilty of assault and battery for the abortion, but not for forcing the woman to take the drug. Thejury thought she had done this voluntarily.
The solicitor general had to withdraw the assault and battery charge. Bangs now appealed that the indictment did not describe a criminal offense except those the solicitor general had withdrawn.
Bangs' lawyer, Mr. Fay, claimed:
The solicitor general disagreed, arguing that the woman's consent to take thedrug did not make administering it lawful. The court decided it could not pass sentence in the case:
Impact
Although Bangs got off on a technicality, the severity of the charges showedthat public attitudes were becoming more restrictive. During the nineteenth century, a few states began to declare abortion illegal after the fourth monthof pregnancy--for example, Connecticut (1821), Missouri (1827), and Illinois(1827). In 1840, 10 of the 26 states had placed restrictions on abortions. In 1965, the laws in all 50 states prohibited abortion, restricting its use tolife-threatening situations.
In some states, legislators modified these laws to make exceptions for rape,incest, or fetal deformity. In 1973, the battle to remove all restrictions onabortion resulted in the U.S. Supreme Court's landmark Roe v. Wade ruling, invalidating all state laws that prohibited abortion during the first 12 weeks after conception.
Related Cases
The State of Massachusetts
Defendant
Isaiah Bangs
Crimes Charged
Causing an abortion, committing assault and battery on Lucy Holman and administering a harmful drug to her.
Chief Prosecutor
Solicitor General
Chief Defense Lawyer
Fay
Justices for the Court
Chief Justice Theophilus Parsons, Isaac Parker, Samuel Sewall
Justices Dissenting
None
Place
Cambridge, Massachusetts
Date of Decision
October term, 1812
Decision
Bangs was found not guilty.
Significance
Common law tradition permitted a woman to abort a fetus up until "quickening." This began to change in the nineteenth century, as this case shows.
Common law in both England and America held that abortion became a moral issue only after the mother detected fetal movement, or "quickening," which occurs during the fourth or fifth month of pregnancy. In early America, abortionswere neither forbidden nor prosecuted under common law. Women used herbal abortifacients and other methods to end their pregnancies, and midwives and doctors performed intrusive procedures.
However, during the nineteenth century, abortion became a crime. Massachusetts v. Bangs illustrates how judicial opinion began to change. During the October court term of 1810, Isaiah Bangs was arrested and indicted for theassault and battery of a pregnant woman, Lucy Holman, and for forcing her toswallow a drug causing abortion. The jury found Bangs guilty of assault and battery for the abortion, but not for forcing the woman to take the drug. Thejury thought she had done this voluntarily.
The solicitor general had to withdraw the assault and battery charge. Bangs now appealed that the indictment did not describe a criminal offense except those the solicitor general had withdrawn.
Bangs' lawyer, Mr. Fay, claimed:
No abortion was produced; and ifthere had been, there is no [proof] that the woman was quick with child; both [of] which circumstances are necessary ingredients in the offense intendedto be charged in the indictment.
The solicitor general disagreed, arguing that the woman's consent to take thedrug did not make administering it lawful. The court decided it could not pass sentence in the case:
The assault and battery are out of the case, and no abortion is alleged to have followed the taking of the potion; and if an abortion had been alleged and proved to have ensued, the [proof] thatthe woman was quick with child at the time is a necessary part of the indictment.In other words, for an indictment to be valid, it must contain the allegations that the woman was pregnant with a "quickened baby" and that an abortion did take place.
Impact
Although Bangs got off on a technicality, the severity of the charges showedthat public attitudes were becoming more restrictive. During the nineteenth century, a few states began to declare abortion illegal after the fourth monthof pregnancy--for example, Connecticut (1821), Missouri (1827), and Illinois(1827). In 1840, 10 of the 26 states had placed restrictions on abortions. In 1965, the laws in all 50 states prohibited abortion, restricting its use tolife-threatening situations.
In some states, legislators modified these laws to make exceptions for rape,incest, or fetal deformity. In 1973, the battle to remove all restrictions onabortion resulted in the U.S. Supreme Court's landmark Roe v. Wade ruling, invalidating all state laws that prohibited abortion during the first 12 weeks after conception.
Related Cases
- Roe v. Wade, 410 U.S. 113 (1973).
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