Abortion In American Law: The Nineteenth Century
In the United States, the common law as stated by Blackstone generally was held to apply until superseded by statute in the nineteenth century. Abortion after quickening was treated as a common law misdemeanor; abortion before quickening was not considered a crime in the vast majority of states; and the liability of the woman who submitted to an abortion was questionable.
The first American abortion statute was enacted in Connecticut in 1821. It was influenced by the English statute of 1803 and made punishable by life imprisonment any attempt to induce the abortion of a quickened fetus through the use of poison. It was revised in 1830, two years after comparable revision of the English statute, to include attempts to induce abortion through the use of herbs or instruments. At the same time, the maximum penalty was reduced from life to ten years' imprisonment. Statutes based on Connecticut's 1821 law were enacted in Missouri in 1825 and in Illinois in 1827; these applied, by their terms, to all attempts to induce abortion through use of poison, whether or not the fetus had quickened. In 1828 New York, as part of its Revised Statutes of 1829 (which took effect in 1830), enacted a more comprehensive set of provisions containing two further innovations. First, attempt to induce an abortion by any means, at any stage of pregnancy, was treated as a misdemeanor punishable by up to a year in jail, but abortion intended to destroy a fetus after quickening was specified to be second degree manslaughter. (In 1830, this was amended to make clear that it was manslaughter only if the fetus were actually killed.) Second, the New York statute made an exception for abortions necessary to preserve the mother's life or "advised by two physicians to be necessary for that purpose." A revision in 1845 included another innovation—a provision expressly making the woman who submitted to abortion guilty of a misdemeanor. (In 1881, this was amended to make the woman guilty of manslaughter, as the abortionist had been since 1830, if the abortion killed a quickened fetus.)
Every other state enacted abortion legislation during the nineteenth century (except Kentucky, which did so in 1910). Despite differences from state to state, a basic pattern emerged, which largely mirrored the innovations in New York. It prevailed throughout the United States until the 1960s; in about fifteen states, these old statutes, although unenforceable since 1973, remain on the books.
- Abortion at any stage of gestation usually was made a criminal offense. Since most abortions take place in early pregnancy, this represented a drastic change in the law which previously had been understood to permit abortion before quickening. Some states continued to require proof of quickening; in some, as in New York, whether the abortion took place before or after quickening determined the level of punishment. But most rejected the quickening distinction and established the same penalty for all abortions.
- States that used the quickening distinction to determine the level of punishment usually treated destruction of a quickened fetus as manslaughter, as New York did after 1830. A small number treated the destruction of a fetus at any stage of pregnancy as manslaughter. Most states, however, regarded abortion as a separate offense, not as a form of homicide.
- In some states, the pregnant woman who procured her own abortion expressly was treated as a guilty party, as in New York after 1845. This was a largely symbolic condemnation: the woman was almost never prosecuted. Indeed, criminalizing her conduct could complicate prosecution of the abortionist because of evidentiary rules prohibiting compulsory self-incrimination and requiring the testimony of an accomplice to be corroborated.
- Most statutes punished attempted as well as completed abortions in order to sidestep the problems involved in having to prove pregnancy as an element of the crime. Liability turned on whether the defendant acted with intent to destroy a fetus. Some of these statutes applied, however, only when the woman in fact was pregnant.
- An exception was usually made, as in the New York statute of 1828, for abortions designed to save the mother's life. A few states permitted abortion to preserve the mother's health. Otherwise, the prohibition of abortion was absolute.
Nineteenth-century abortion statutes were adopted for several reasons. The immediate occasion for enactment often was consolidation of the criminal law in statutory form. An upsurge in anti-abortion legislation occurred after 1840, as abortion became more frequent, more visible, more widely advertised and publicly discussed. This legislation was actively promoted by the medical profession, which was beginning to organize itself, in part, around opposition to abortion. Medical opposition drew on new understandings of gestation as a continuous process, in which animation or quickening had no scientific significance. It also was linked to the struggle by physicians to monopolize the practice of medicine and exclude "irregular" (nonphysician) practitioners who were then the chief purveyors of abortion and abortifacients. It relied as well on social anxieties about declining birthrates among the established white population, and a sense that abortion had become a common recourse not only of single women "in trouble," but also of otherwise respectable middle-class married women who were unmindful of the fact that maternity was their only proper vocation. The United States was not alone in this: for similar reasons, most western countries adopted restrictive abortion laws during the nineteenth century, just as, beginning with England in 1967, most western countries, including the United States, relaxed restrictions on abortion within two decades of each other.
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