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common, that whereas in most areas of criminal prohibition, the fact of evil is evident to most people, here there is evil or none at all depending wholly upon a spiritual supposition ...".
In short, people “cannot agree upon the point at which a living thing should be thought to be human in its being."
Opinion of both state and church authorities has swung back and forth over the centuries. The Court noted that until the mid-1800's many Western scholars, theologians and lawmakers maintained that life began when the fetus quickened-that is, when the pregnant woman could feel movement.
However, the common law of England and the Colonies treated abortion lightly, if at all. Thus, at the time the American Constitution was adopted it was “... doubtful that abortion was ever firmly established as a common law crime even with respect to the destruction of the quick fetus." In England it was 1803 before even post-quickening abortions were first made felonies --this "new" law was amended over the years, and finally rescinded in 1967. The first American statute (Connecticut, 1821) prohibited only those abortions performed after quickening. These post-quickening laws were not passed to protect the unborn-rather they were legislated to protect women from the enormous risks of mortality in a period when even simple surgery involved a major risk of death. Referring to our state anti-abortion laws the Court found that such laws ". . . are not of ancient or even of common law origin. Instead they derive from statutory changes effected for the most part in the latter half of the 19th century." Most of the early state statutes (after the Civil War) "dealt severely with abortion after quickening, but were lenient with it before quickening.” Thus, the purpose of these laws was not to protect the unborn, but to protect the mother. Further, “at least with respect to the early stage of pregnancy and very possibly without such a limitation, the opportunity to make this choice (abortion) was present in this country well into the 19th century." Also, “. . . at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently (1972) in effect."
From the above and other facts the Court concluded that the intent of early state laws restricting abortion was to protect the mother, not the unborn. The argument that the states should protect prenatal life from induced abortion rests on the theory that a new human life is present from the moment of conception. This view lacks a legal precedent in the United States. The Court found that no cases in law can be cited “that holds that a fetus is a person within the meaning of the Fourteenth Amendment.” Legal personsthose entitled to protection by the ('onstitution-do not include the unborn.
The Court continued: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine. philosophy, and theology are unable to arrive at any consensus, the judiciary at this point in the development of man's knowledge, is not in a position to speculate as to the answer." "There has always been strong support for the view that life does not begin until live birth ... in areas other than criminal abortion the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations ..." In sum, “the unborn have never been recognized in the law as persons in the whole sense. In view of all this. we cannot agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake."
CONSEQUENCES OF THE DECISION The immediate effects of the Court decision, if it is implemented, can be measured in terms of health, the cost and accessibility of abortion to different groups, the number of induced abortions that replace former illegal abortions, the number of new abortions and the impact of legal abortion on fertility. It is also possible that a shift from illegal to legal abortion may change contraceptive use and patterns of sexual behavior.
It is still too early to obtain an accurate national picture of these various effects, and our best guide to the likely impact of the Court decision comes from the experience of New York City residents under their abortion-onrequest situation after July, 1970. The consequences of the court decision for the nation should be reflected in New York. Fortunately this experience has been evaluated by C. Tietze, M.D., an experienced, competent and reliable researcher.
In his report to the Commission on Population Growth and the American Future (in Westoff and Parke, eds., Social and Demographic Consequences of Population Growth, Vol. I (Washington, D.C., Government Printing Office, 1972: 579ff.)) Tietze examined the probable impact of legal abortion on fertility rates. He found this effect to be relatively small, because (in part) U.S. fertility is already relatively low. Also, many women seeking abortion are unmarried and/or young married persons avoiding timing failures; they may replace the aborted fetus by a live birth later in their lives. Tietze also reports the pre- and post-abortion (i.e., before and after July, 1970) record of infant and maternal mortality in New York. Both measures of health indicate a rapid improvement related to legalization of abortion.
Tietze recently updated his Commission paper with data for the 1971-1972 period (Family Planning Perspective 5 (Winter), 1973:36). The number of legal abortions to New York City residents increased from 67,000 the first year to 75,000 in the 1971-1972 period. The rate of abortions per 1000 women aged 15–44 was 39 in the first and 43 per 1000 women 15–44 in the second year. The legal abortion rate varies by characteristics of the population. For example, the rate per 1000 women aged 15 44 was 72 for nonwhites and 32 for whites and Puerto Ricans in the 1971-1972 period.
Careful analysis by Tietze indicates that between 70 to 80 percent of all legal abortions would have been done illegally had the New York law not been changed. The evidence behind such estimates notes (among many other details) that the increase in the number of legal abortions from about 5,000 per year to 75,000 was not accompanied by a similar decline in the number of births. Before legal abortion can cause a decrease in the number of births it is necessary that the number of legal abortions exceed the earlier number of illegal abortions. In New York City only some 20-30 percent of the number of legal abortions represent a net increase—hence we find a relatively small drop in total births, as compared to a much larger increase in the number of legal abortions.
The 1971–1972 count of 75 thousand legal abortions thus includes 52 to 60 thousand abortions that would have been performed illegally, had the New York law not been changed. It is the modest increase in the number of abortions that accounts for a reduction of illegitimate births in New York in 1971-1972, the first decline observed since New York's illegitimate births were first reported (1954) separately from legitimate births.
We noted above a large difference in abortion rates by ethnic group. A still larger difference exists between married and unmarried pregnant women. Tietze estimated 1500 legal abortions per 1000 live births among the unmarried ; among married women the abortion ratio per 1000 live births is about 100. By the same measure Tietze also finds that the poor are more likely than the nonpoor to abort a pregnancy. In short, the groups most likely to abort are poor, unmarried and nonwhite the same groups with low levels of effective contraceptive practice.
The money cost of a legal abortion under the New York law is far less than is found in states with more restrictions. Thus, one effect of the Court decision will be to reduce money costs, and make legal abortion available to women otherwise too poor to afford it in the past. Also, legal abortions are covered by various insurance and medical care programs that could not, of course, pay for illegal abortion. Legal abortion is not only safer than illegal abortion, but it is also cheaper-hence the sharp decline in illegal abortions in New York reported by Tietze.
Tietze reports no indication that contraceptive use declined as a result of abortion. Researchers Edwin Daily et al. (Family Planning Perspectives 5 (Spring, 1973:89)) also found no evidence of declining contraceptive use in New York. They studied repeat abortion cases and traced these cases to a relatively small number of abortion facilities that did not provide contraceptive care to their abortion patients. Repeat abortion cases are rare when patients are given contraceptive care. Tietze suggests that contraceptive use may have increased in the population at risk of abortion, due to contraceptive instruction and service in abortion facilities.
The view that sexual promiscuity will increase if abortion is legalized is similar to the view that contraception increases promiscuity. These claims have never been supported by a shred of evidence. All data pertaining to this issue are indirect, but indicate that legal abortion does not stimulate a popu
2 See Appendix for California data.
lation to a frenzy of sexual activity. Making legal abortion available can hardly increase promiscuity among those already married, and about half of all legal abortion cases are married women. The usual indicator of sexual promiscuity among the unmarried-the illegitimacy rate-cannot be used to show the stimulus that abortion allegedly gives to promiscuity because illegitimacy rates in foreign as well as the New York population all declined after the introduction of legal abortion on request. We also know that fear of an out-of-wedlock birth is rarely mentioned by unmarried persons still virginal as a cause of their sexual inexperience. People do not avoid illicit sex because of a fear of pregnancy, but for other reasons.
Finally, the stigma and indignities suffered by women seeking illegal abortion are removed by legalization. In short, the consequences of legalization of abortion seem favorable. (osts and stigma decline while dignity increases. Illegal and risky abortions are converted to safe legal abortions, and the health of women and children benefit. Contraceptive use does not deteriorate and may increase, while illicit sexual activity is unaffected. The small increase in the total number of induced abortions under legal-on-request conditions goes primarily to the poor and the unmarried, with the effect of depressing illegitimate births and welfare dependency.
CONSEQUENCES OF A CONSTITUTIONAL AMENDMENT We now consider the changes that would occur if efforts to pass a Constitutional amendment succeed. The amendment considered here is a “life begins at the moment of conception" type similar to what has already been proposed in the U.S. Congress, the legislatures of Indiana and other states. An alternative amendment returning to the states the power to legislate on abortion could have similar effects to those listed below, if the state then passed (as seems likely in many areas of the nation) its own “moment of conception" law under the influence of the anti-abortion lobby. At best the second type of amendment would take us back to the legal situation prevailing before the Court decision of January 22, 1973.
If a moment-of-conception amendment passes, all the benefits from legal abortion on request will be lost, perhaps for the next century. Abortions will not cease--they will revert back to their former hidden, illegal and hence uncounted status.
As illegal abortions increase, we will once again have hospitals treating botched abortions, with the associated declines in maternal health. As the costs of abortions rise, and access becomes more difficult, the poor and the unmarried will, more than the middle-income and the married, be unable to have abortions-thus increasing the numbers of their children. The right to abortion, now defined as legitimate and proper, will be lost, and the indignity of seeking an illegal abortion will be with us once again. However, if the proposed amendment were adopted and enforced the consequences could be even more severe.
When the law, which is to say the government, decrees the point at which life begins, then it must extend protections from that moment on. Until now, for most purposes the law extends protections to post-natal life only, and defines life in those terms. If we ask the government to decree that life begins at conception we ask the government to guarantee maximum protection to one form of life at the expense of another. The government would become the arbiter of the care the woman takes of herself perhaps before, and certainly during pregnancy. Just as the state acts in loco parentis for post-natal children, it would be forced to assume that role in areas where the fetus is dependent on its mother for the rights given it by a Constitutional amendment. The area of negligence law could be greatly expanded, for the fetus as to human with rights from the moment of conception would be able to sue for acts of negligence committed by its mother or third parties. (The government would sue on behalf of the fetus.) This would run contrary to a long tradition of not permitting family members to sue each other for acts of negligence in that such suits tend to destroy familial relationships.
The most extraordinary effect such an amendment could have would be in the determination of pregnancy itself. In order to guarantee Fourteenth and Fifth Amendment rights the government must know the person to be protected actually exists. The only way to be sure that all fetuses are being properly cared for by their mothers and not being aborted is to see who is pregnant. That would require that every female who is unable to prove her
sterility submit to a compulsory monthly pregnancy test from the onset of her first menses.
One pregnancy is determined, the burden would be on the woman to show, in the event of fetal loss, that such loss was not due to an act or omission on her part.
Similarly, if a woman needed to have an abortion to save her own life (for example in the case of ectopic pregnancy) the fetus would have to have its arguments represented since the consequences of a finding for the woman would deprive the fetus of its life. Any deprivation of life under the proposed amendment cannot be made without due process which means a trial with representation by counsel in front of a jury.
It should be obvious that a Constitutional amendment that would convert fetuses into legal persons entitled to due process and equal protection could not and would not be enforced. Even the old laws aimed only at eliminating induced abortion were not seriously enforced over extended periods of time. If the original prohibition of abortion in the past could not reduce by more than 20-30 percent the total number of induced abortions, why would one suspect an amendment aimed at controlling spontaneous as well as induced fetal loss could work in tomorrow's world? How would the pregnancy status of the population be determined each month? Does anyone actually believe that American women would submit to compulsory monthly pregnancy testing? How would the legal system add more than one million jury trials a year to its calendar? Would physicians be able to do anything other than sit in courts day after day offering testimony on the probable cause of fetal loss? The legal and health system would grind to a halt if a serious effort were made to implement the amendment. If the amendment were merely ignored then what purpose would it serve? It would stand only as a symbolic victory for the anti-abortion crusade.
The passage of the amendment would probably have three main consequences.
First, all the benefits of legal abortion on request would be lost.
Second, the majority of Americans who do not share the moral views of the anti-abortion lobby would be subjected to a tyranny of the minority, and their continued faith in the American political and legal system would be jeopardized by the passage of an amendment which is to them hypocritical on its face, unjust and brutalizing in its consequences.
Third, induced abortions would continue under illegal conditions at about 70 to 80 percent of the number under legal conditions—with the reduction in numbers occurring disproportionately among the poor and the unmarried.
LOCAL COMMUNITY WORK
Meeting with Other Organized Groups
At the national level the American Medical Association, the American Bar Association, the American Public Health Association, the American Association of University Women, the American Civil Liberties Union, the National Organization of Women, the Izaac Walton League as well as other conservation, women's medical and legal groups have supported abortion on request. All major organizations concerned with human fertility (Planned Parenthood-World Population, the Population Association of America, National Organization for the Repeal of Abortion Laws, ZPG, the Association for Voluntary Sterilization) and other similar groups support abortion on request. A variety of national religious organizations representing Protestant and Jewish organizations, humanistic and ethical associations are also on the record. In theory all these groups provide a basis for organized opposition to proposed Constitutional amendments originating in Washington, or in the States. The fact that no established secular national organization dealing with medical, legal and the human problems of childbearing opposes the Court's decision should be brought to the attention of legislators and the public. Direct contact at the state and local levels between leaders of these organizations should be encouraged. There is no reason for Planned Parenthood to "go it alone,” when all these other groups share views similar to ours. Public Opinion
All public opinion polls in the year or so before the Court decision showed a large majority (around two-thirds) in all areas of the nation favoring a change in laws so abortion would be a matter between the woman and her
physician. All polls showed an overwhelming majority of adults approving of abortion in the case of risk to the mother's health, in cases of rape and incest, and in the instance of fetal deformity. Some 30-40 percent also said they approved abortion in the case of the unmarried, or when a married couple did not want another child. Thus, the public responds in different ways according to the question asked. The flexibility and inconsistency of attitudes makes the public vulnerable to propaganda campaigns which redefine the abortion issue. Thus in Michigan the issue was redefined from a referendum question asking whether the voter approved of changing the law, to the issue (defined by the "right to life" groups) of whether the voter was in favor of murdering fetuses.
Although the legislators and the public are ill-informed about abortion and thus vulnerable to emotional appeals, we assume both are educable. Also, it seems likely that while the public and their representatives are loath to favor abortion under all circumstances, they will be dead set against the consequences associated with a Constitutional amendment. We doubt that Americans care about extending due process and equal protection to the unborn, with all that these legal rights entail.
The public supports contraception as a means to reduce abortion, and for its own sake. Many anti-abortion groups oppose contraception and sterilization, as well as abortion. Vocal opponents of legal abortion have never assisted in the struggle to make contraception or sterilization available to the public, nor can they count among their membership people who have devoted their lives to reducing infant and maternal mortality. They have no past record of public service on which they may stand and claim some right to public respect. They are dedicated zealots whose "spiritual supposition" allows them to find evil where the rest of us find none at all.
Some recent data are reported in Table 251. In the note at the bottom of the table we report the number of legal abortions per 1000 live births, by marital status and race. These ratios are similar to those from New York City, reported by Tietze. The rates are lower than in New York because access to abortion in California was restrictive through 1972. The California data are superior to those of New York because one need not estimate the marital status of abortion patients, as in New York. When we break up the data by marital status and year we have an opportunity not only to have a descriptive picture of the trend in California's abortion and birth rates, but to also see whether or not the recent decline in California birth rates is still that one could confidently attribute declines in birth rates to increases in abortion rates. If you cannot do this then it is likely that the increase in legal abortion rates represents, for the most part, a replacement of former unreported illegal abortions with legal reported abortions.
We have abortion rates per 1000 women aged 15-44, by race and marital status, related to birth by race and marital status in 1969, 1970, 1971 and 1972. We also show birth rates in 1966—a year when virtually no legal abortions were performed. The legal abortion rate for 1966 is not shown because it is not available--it may have been about 1 or 2 for the unmarried, and was certainly less than 1 per 1000 for married women.
The top panel shows rates for unmarried women (i.e., separated, widowed, never-married and divorced). We find an illegitimacy rate of 26 per 1000 unmarried in 1969, and a rate of 22 in 1972-a decline of 4 births per 1000. In contrast, the legal abortion rate moved from 4 to 45 per 1000-an increase of 41. The increase in the abortion rate of 41 per 1000 is accompanied by a decline of only 4 per 1000 in illegitimacy rates. Other things being equal, this indicates that the bulk of the rise in the abortion rate to unmarried women represents replacement of former illegal with legal abortion. Inspection of data for the unmarried by race allows a similar conclusion. The 1969–1972 decline in illegitimacy is larger among blacks than whites.
In one adds together the birth and abortion rate the total rate yields an estimate of change in the pregnancy rate, under the assumption that there were no illegal abortions in earlier years, and spontaneous fetal loss rates did not change. The latter assumption seems more credible than the former assumption. It is difficult to believe that the pregnancy rate among unmarried women more than doubled between 1969 and 1972-a conclusion would have to accept if one believed that no illegal abortions were performed in 1969.