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Given the Court's broad definition of health, it is rather odd that

it focused on mortality as the only determinative health factor. Indeed,

*Breakdown data for England and Wales and Sweden are not available. There were no early abortion deaths in Maryland 1968-70, but a relatively small number (3,900) were performed early (101).

The sources for the materials cited above were reported as follows:

92) Olsen, Nielsen & Ostergaard, Complications to Therapeutic Abortion, INT'L J. GYNECOLOGY & OBSTETRICS, Nov., 1970 at 823.

93) The Abortion Act (1967), BRIT. MED. J., May 30, 1970 at 529-35 (findings of an inquiry into the first year's working of the Act, conducted by the Royal College of Obstetrics and Gynecology).

94) C. Tietze, Abortion Laws and Abortion Practices in Europe, in PROCEEDINGS OF THE AM. ASSN. OF PLANNED PARENTHOOD PHYSICIANS 198 (San Francisco, 1969) (ExCERPTA MEDICA INT'L CONG. SERIES No. 207).

95) 23 WORLD HEALTH STATISTICS REPORT, No. 7 (1970) at 546-49.

96) Jurukovski, Complications Following Legal Abortion, in PROCEEDINGS OF THE ROYAL SOCIETY OF MEDICINE, August, 1969, at 830.

97) See source 95.

98) See Klinger, Demographic Consequences of the Legalization of Induced Abortion in Eastern Europe, INT'L J. GYNECOLOGY & OBSTETRICS, Sept., 1970 at 680. 99) See source 95.

100)

OREGON STATE BD. OF HEALTH, THERAPEUTIC ABORTIONS IN OREGON-JANUARYDECEMBER 1970. See H.E.W., CENTER FOR DISEASE CONTROL, Abortion Surveillance Report-Hospital Abortions, January-June (1970) (commenting on the nearly complete nature of the Oregon statistics).

101) Cushner, Pregnancy Termination, The Impact of New Laws, an Invitational Symposium, J. REPRODUCTIVE MEDICINE, June 1971, at 62.

102) 1 VITAL STATISTICS OF THE UNITED STATES, Table 1-35, at 1-30 (1967); 7 (Part B) VITAL STATISTICS OF THE United States, Table 7-6, at 7-233 (1967).

106) Jurukovski & Sukharov, A Critical Review of Legal Abortion, INT'L J. GYNECOLOGY & OBSTETRICS, May, 1971, at 111.

Several points should be kept in mind when considering the relevance of these statistics. First, they do not purport to be the most recent statistical materials on the subject; those materials and the problems associated with them are discussed in the text accompany notes 251-268 infra. Second, since these materials were, in part, the source of the Court's ruling on the relative safety of abortion, their relevance to the present discussion is clear. Third, the maternal mortality figures quoted in the sources numbered 95, 97, and 99 were compiled under a classification system which included abortionrelated deaths, making the maternal mortality figure appear higher than it should have for purposes of such a comparison. Fourth, the inordinately high maternal mortality ratio noted for Yugoslavia and Hungary reflect adversely on the health care delivery systems of these countries. How they were able to show such an extraordinarily good record for abortion while, at the same time, showing such a poor record for maternal care would seem to make their statistics fairly unreliable as indicators of "relative" safety. Finally, it should be noted that even so much as comparing such a limited statistic as "abortion mortality" to the broadly defined statistic of maternal mortality can be misleading in favor of the safety of abortion. See text accompanying notes 282-85 infra.

So, even if one assumes that abortion related mortality is relatively low, it remains fair to inquire just why such an assumption would demand either the total legalization of

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[Vol. 63:1250 there is another extremely important consideration which must be examined before the rational basis of health regulation may be found wanting. That factor is morbidity.246 Its importance is equal to, if not greater than, mortality, in considering the relative safety of any abortion procedure.247 To invalidate abortion-related health regulations solely on the basis of mortality248 is akin to striking down industrial safety standards without considering the incidence of nonfatal injuries.249

Morbidity includes latent, as well as immediate complications. The overall safety of any surgical procedure, especially abortion, can

abortion for the first 6 months of pregnancy, see Part I supra, or the total abrogation of administrative regulation of the health care aspects of the procedure during the first trimester.

246. Morbidity is a collective term. For purposes of the present discussion it is taken to mean all manner of complications, immediate as well as latent, which may arise as a consequence of legal or illegal induced abortion. These include, but are not limited to laceration of the cervix, hemorrhaging, uterine perforation, infertility, susceptibility to miscarriage, and psychological sequelae.

247. See Editorial, How Safe is Abortion? THE LANCET, December 4, 1971, at 1239:

The high incidence of post-abortion complications reported by Professor Stallworthy and his colleagues is deeply disturbing, particularly since almost identical results have lately been reported by [other sources]. Healthy young women, whose only complaint is that they are pregnant, are entering the hospital and being subjected to procedures that may permanently affect their fertility and occasionally jeopardize their lives. Clearly, the time has come for a critical assessment of these complications.

248. If mortality associated with legal abortion is to be used as the sole indicia of its safety, the following figures reporting abortion related deaths occurring in New York City during the period 1970-1972 are instructive:

*includes two deaths subsequently discovered.

Pakter, O'Hare, Nelson, and Svigir, A Review of Two Years' Experience in New York City With the Liberalized Abortion Law, in THE ABORTION EXPERIENCE 47 at 63 (Osofsky & Osofsky eds. 1973) [hereinafter the article by Pakter, O'Hare, Nelson and Svigir will be cited as Pakter, and the book edited by Osofsky & Osofsky will be cited as OSOFSKY & OSOFSKY].

249. The folly of using abortion related mortality as the sole indicator of the operation's safety vis-a-vis normal child-birth becomes apparent upon examination of all the relevant health factors which would be considered were any other surgical procedure under scrutiny. To fully appreciate the scope of the problem one need only consider the remarks of Professors Stallworthy, Moolgaker and Walsh noting that while “[t]he morbidity and fatal potential of criminal abortion is accepted widely . . . [t]here has been almost a conspiracy of silence concerning [the] risks [of legal abortion]." Stallworthy, Moolgaker, and Walsh, Legal Abortion: A Critical Assessment of its Risks, THE LANCET, December 4, 1971, at 1245 [hereinafter cited as Stallworthy]. Unfortunately, they noted, the emotional response evoked in any contemporary discussion of abortion has obscured the perspectives of the public, the courts, and the medical profession itself. See id.

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not be judged solely upon its immediate impact on the patient; its longterm effects must be considered. This is especially true when the procedure is performed on young women, 250 for not only is their own health and fertility251 at stake, but also the health of any future "wanted" offspring which the woman may produce.252 Too little is known of the long-term effects of induced abortion in this country for any court to attempt to determine its safety; it has only been available on any analytically meaningful basis since 1970. Were the Court to base its conclusions on the data available from countries where legal abortion has been available for a much longer period, the decision might not have been any more defensible from a legal point of view, but the conclusion might have been different.

When morbidity is considered, the statement that an "early", or first trimester, abortion is less dangerous than one obtained at a later stage of gestation,253 becomes much less persuasive. It discloses nothing about the risks of the abortion procedure as compared to those of normal childbirth or any other medical procedure. Because there is considerable controversy within the medical profession over the safety and advisability of any abortion, regardless of the stage of gestation,254 it should be clear that early abortion is not so trivial an opera

250. Compare Pakter, supra note 248, at 56 (207,366 of 334,865 abortions performed in New York City during 1970-72 (61.8%) were upon women aged 24 or younger. Of these, 89,264 (26.6%) were under twenty years of age), with Tietze and Lewit, A National Medical Experience: The Joint Program for the Study of Abortion (JPSA), in OsOFSKY & OSOFSKY, supra note 248, at 5 (61.0% and 24.2% respectively). 251. See Stewart and Goldstien, Medical and Surgical Complications of Therapeutic Abortions, 40 OBSTETRICS & GYNECOLOGY, October 1972, at 539, 548 [hereinafter cited as Stewart & Goldstien]; A. Wŷnn, Some Consequences of Induced Abortion to Children Born Subsequently: A Supplementary Note of Evidence, (Foundation for Education and Research in Child Bearing, London, England (1972)), reprinted in 4 MARRIAGE AND FAMILY NEWSLETTER, February-April, 1973, at 12, 14-22 [hereinafter cited as A. Wynn].

252. N. BUTLER & D. BONHAM, PERINATAL PROBLEMS: FIrst Report of THE 1958 BRITISH PERINATAL SURVEY 288 (1963) (noting that past medical history of one abortion increased overall perinatal mortality by fifty percent) [hereinafter cited as BRITISH PERINATAL SURVEY]; M. Wynn, Some Consequences of Induced Abortion to Children Born Subsequently, (Foundation for Education and Research in Child Bearing, London, England (1972)), reprinted in 4 MARRIAGE AND FAMILY NEWSLETTER, February-April, 1973, at 5-7 [hereinafter cited as M. Wynn].

253. See, e.g., CALIFORNIA BUREAU OF MATERNAL AND CHILD HEALTH, THERAPEUTIC ABORTION IN CALIFORNIA: A BIENNIAL REPORT PREPARED FOR THE 1974 LEGISLATURE PURSUANT TO SECTION 25955.5 OF THE HEALTH AND SAFETY CODE 2 (1974) (“in the early and most safe part of their pregnancy”).

254. See Editorial, Latent Morbidity After Abortion, BRITISH MEDICINE, Mar. 3, 1973, at 506; Editorial, How Safe is Abortion?, THE LANCET, Dec. 4, 1971, at 1239; Fitzgerald, Abortion on Demand, MED. OPIN. AND REV., (1970); Nigro, A Scientific Critique of Abortion as a Medical Procedure, PSYCHIATRIC ANNALS, Sept., 1972, at 22 [hereinafter cited as Nigro]; Stallworthy, supra note 249. In Legalized Abortion, Report

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[Vol. 63:1250 tion as the low mortality figures based upon the New York experience might seem to indicate.25! Indeed, a recent study, based mainly on German sources, reveals that "there is a serious latent morbidity following an induced abortion that only becomes apparent during the course of a subsequent pregnancy or confinement."256 This morbidity includes cervical incompetence, 257 intrauterine damage,258 including perforation, 259 iso-immunization,260 extrauterine (ectopic) pregnancy,

of the Council of the Royal College of Obstetricians and Gynecologists, BRITISH MEDICINE, April 12, 1966, at 850 it was stated:

Those without specialist's knowledge, and these include members of the medical profession, are influenced in adopting what they regard as a humanitarian attitude to the induction of abortion by a failure to appreciate what is involved. They tend to regard induction of abortion as a trivial operation, free from risk. In fact, even to the expert working in the best conditions, the removal of an early pregnancy after dilating the cervix can be difficult and is not infrequently accompanied by serious complications. This is particularly true in the case of women pregnant for the first time. For women who have a serious medical indication for termination of pregnancy, induction of abortion is extremely hazardous and its risks need to be weighed carefully against those involved in leaving pregnancy undisturbed. Even for the relatively healthy woman, however, the dangers are considerable.

255. It is important to note at this point that no meaningful distinction can be drawn between the terms "elective" and "therapeutic" abortion. Essentially the terms describe the same indications, since most proponents of legal abortion admit that elective removal of the fetus is without substantial psychiatric or medical justification. See, e.g., Halleck, Excuse Makers to the Elite: Psychiatrists as Accidental Social Movers, MED. OPINION, December 1971, at 48; Sloane, The Unwanted Pregnancy, 280 NEW ENGLAND J. MED. 1206 (1969). See also, Fleck, Some Psychiatric Aspects of Abortion, 115 J. NERVOUS AND MENTAL DISEASE 42 (1970):

The phrase [therapeutic abortion] compounds the ethical confusion and intellectual dishonesty which are characteristic of popular and professional attitudes and notions about abortion. Obviously abortion is not a treatment for anything unless pregnancy is considered a disease, and if it were that, it is the only disease which is 100 percent curable by abortion or delivery at term. The identity of the two terms is borne out by the experiences of California and Oregon where the abortion laws provided for abortion based on mental health. See CALIFORNIA BUREAU OF MATERNAL AND CHILD HEALTH, A REPORT TO THE 1971 LEGISLATURE: FOURTH ANNUAL REPORT ON THE IMPLEMENTATION OF THE CALIFORNIA THERAPEUTIC ABORTION ACT PURSUANT TO CHAPTER No. 177 (ACR 113) 1967 4 (1971) (63,872 of 65,044 [98%] of abortions performed in calendar 1970); OREGON STATE HEALTH Div., VITAL STATISTICS ANN. REP. 93 (1971) (97.9% for mental health).

This is not to say, however, that an abortion can never be truly "therapeutic." An abortion to prevent the death of the mother clearly falls within this very limited category.

256. A. Wynn, supra, note 251, at 12 (emphasis in original).

257. See Wright, Campbell, and Beazley, Second-trimester Abortion After Vaginal Termination of Pregnancy, THE LANCET, June 10, 1972, at 1278 (noting a 10-fold increase in spontaneous second-trimester abortion after one which had been induced during the first).

258. A. Wynn, supra note 251, at 18-19. See also Stewart & Goldstien, supra note 251, at 548 (ncting the risk of postabortal infertility due to high rate of infection); M. Wynn, supra note 252, at 6 (noting that the tendency of induced abortion to increase the rate of prematurity in subsequent pregnancies may have the overall effect of raising the rate of infants born with some type of handicap).

259. See Stallworthy, supra note 249; Stewart & Goldstien, supra note 251, at 545.

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and psychological sequelae.261 The very existence of these conditions, as a result of first trimester abortions as well as from those performed later in pregnancy, has led many medical experts to conclude that abortion is clearly not as safe as carrying a pregnancy to term.262

While a study of the comparative incidence of fatal and morbid consequences subsequent to full term pregnancy and elective induced abortion 263 is beyond the scope of this work, one difficulty inherent in this task is worth mentioning. Since abortion-related mortality is often compared with maternal mortality in an attempt to show that early abortion is "safer" than carrying the pregnancy to term, it is necessary to consider not only the number of deaths resulting from each procedure,264 but also the characteristics of the woman electing either abortion or full-term pregnancy. If the safety of abortion is to be compared in any meaningful way to that of normal childbirth, one of the following methodologies should be employed: (1) define abortion-related mortality and morbidity as broadly as those terms are defined in regard to maternal mortality265 and morbidity; (2) restrict considera

260. A. Wynn, supra note 251, at 21.

261. Much of the research into psychological sequelae of induced abortion has focused upon feelings of guilt and depression. See e.g., Osofsky, Osofsky, & Rajan, Psychological Effects of Abortion: With Emphasis Upon Immediate Reactions and Followup, in OSOFSKY & OSOFSKY, supra note 248, at 188. However, a recent study has noted the possible psychological trauma which may be associated with post-abortal complications, especially infertility and sterility. See M. Wynn, supra note 252, at 6-7. 262. See, e.g., Nigro, supra note 254, at 37-38.

263. See note 255 supra.

264. In addition to the fact that reporting and followup are seriously incomplete, certain abortion-related deaths may be mentioned, but not counted, in tabulating the mortality ratio. Consider Tietze and Lewit, A National Medical Experience: The Joint Program for the Study of Abortion (JPSA) in OsOFSKY & OSOFSKY, supra note 248, at 1, wherein it was noted that of the four deaths "directly attribut[able] to" abortion, one involved a young woman, “18 years old, who committed suicide three days after a suction procedure because of guilt feelings about having 'killed her baby,' before she could be informed that she had not been pregnant." Id. at 13. But see Tietze, Pakter and Berger, Mortality with Legal Abortion in New York City, 1970-72, 225 J.A.M.A. 507 (same death not counted) (hereinafter cited as Tietze & Pakter), and Rovinsky, Abortion in New York City, April 5-6, 1971 (paper presented to the meeting of the American Association of Planned Parenthood Physicians, President Hotel, Kansas City, Mo.), quoted in Brief for Certain Physicians, supra note 245, at 36:

There is at least one apocryphal story circulating about an abortion death in a physician's office from air embolisation when an aspiration pump acted as a pressure rather than a suction device; following which the woman's corpse was transported back to her home state and the true cause of death there was not recorded.

265. Maternal mortality has been defined as: "[T]he death of a woman dying of any cause whatsoever while pregnant or within ninety days of termination of the pregnancy, irrespective of duration of pregnancy at the time of termination or the method by which it was terminated." REID, RYAN, AND BENIRSCHE, PRINCIPLES AND MANAGEMENT Of Human ReprODUCTION 164 (1972).