to give precedence to its desire that this other being be born, unless we provide the state with satisfactory reasons why we should not give birth. We are still owned by the state, and can still be faced with this stunning fact on top of the ordinary problems we face in the search for someone who will help us end a late pregnancy. In this context, the language used by the court, by many state laws, and by careless people generally, when they refer to pregnant women, is very meaningful: over and over everyone of us is called a "mother"; our health is called "maternal" health; and so on. Those of us who have never borne children may or may not think of ourselves as "mothers" when we become pregnant; but when the law calls all pregnant women mothers, we are immediately defined in terms of a relationship that we explicity reject when as separate individuals we choose to abort. Our submerged status in society has long depended upon the disabilities society has chosen to impose on those who have the potential for childbearing, usually calling these protections or even privileges. And again this decision tells us we can be made to justify our desire to refrain from bearing children we do not want, and calls us "mothers," when being a mother (again, or at all) may be the last thing we wish to become. Although few of us need or want late abortions now, and still fewer of us will be in this situation as early abortions be come easier to get, this does not erase the fact that each of us is still imprisoned as long as any woman is owned by the state. The concept that fetuses have priority over women was not completely rejected by the court, while the concept of fully human autonomy for women was clearly not affirmed. And the court's decision did not actually answer the contention of Lynette Perkes and Cheriel Jensen, that fetuses now have more rights than persons: fetuses may use our bodily systems and resources without our permission, but you can refuse an ordinary person who wants to use your kidney or your heart. So Philadelphia's Cardinal Krol was right when he said, apparently the court was trying to straddle the fence and give something to everybody." RIGHT-TO-LIFE'S NEW PLOY Like feminists, the anti-abortion forces obviously feel they have been "given something" though not precisely what they want already a committee of Catholic bishops has called for state legisla tures to restrict the practice of abortion as much as they can," apparently with special emphasis on making sure abortion facilities are limited after the first trimester. New York people have already seen right-to-lifers push for extra local and state regulations ever since the 1970 reform law passed. It is also quite probable that they will try to enact requirements for husband's consent, doctors-only, and time limits in that great majority of states where such specifications do not now exist. Since such conditions appear sensible to many legislators, feminists must be especially on guard against all imaginative "protectproposals - particularly because ive t of Purpose: New Yorkers for Abortion Law Repeal, recogfor Abortion Law Repeal, the statewide membership group that nizing the basic human right to limit one's own reproduction, is dedicated YOU can be active in this vital campaign. Join New Yorkers to the elimination of all laws and practices that would compel any woman spurred the introduction of both these unique repeal bills. to bear a child against her will. In particular, it seeks the repeal of New York State's abortion laws, and it opposes legislation that would merely extend grounds for lawful abortion. Statement many people who are generally pro-abortion but not committed to it as a woman's right find them very reasonable, too. Many states now have laws against disseminating information about how to get abortions; abortion opponents are likely to try to keep these laws, add bans on advertising and certain kinds of referrals, and extend them to other states.The Federal criminal code itself, in a remnant of the 100-year-old Comstock law, forbids mailing of such information; it has not yet been decided whether this law meets a constitutional test. But the manifest fury of anti-abortion people will not be appeased by mere attempts to make abortions as scarce, as costly, and as hard to get as the court permits." At this writing (January 27), their best strategists are meeting in Washington and at the state level to plan ways to circumvent or override the court's zuling. It appears that while they may take some forthright steps, such as pressure on. state legislatures and on Congress to pass laws and constitutional amendments bestowing legal personhood on fetuses, such approaches may serve only as doomed stalking-horses for more "moderate" and thus more dangerous measures that will not put lawmakers so directly on the spot about abortion per se For instance, the court itself, in dealing so extensively with what restrictions the states do and do not have the right to impose, has stirred up states'rights resentments. As Justice Rehnquist said in his dissent, the court's complex. decision about various stages of pregnan-· cy and various "permissible" restrictions partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment. And Justice White agreed that "this issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs." Thus the courses of action most likely to be pursued by anti-abortion forces are ones designed to build upon this sentiment and appeal to a kind of false populism. State and federal lawmakers will be asked to pass legislation returning all regulation of pregnancy-related matters to the people through their state legislatures. This regulation could then become a virtual ban. There are mechanisms to pass state resolutions without governors' signatures, so the views of governors like Nelson Rockefeller may be irrelevant. It will be hard for harassed state legislators to vote against resolutions memorializing Congress to amend the Constitution in this way; and Congress people would find refusal difficult as well, especially since the Catholic lobby is notably powerful on the federal level, having already restricted a 1970 family planning bill to exclude funding for abortion services. Since proposals both for "reasonable" restrictions and for returning "power to the people" will be insidiously attractive to many politicians under fire, feminists and our allies must combat them through providing an alternative of still greater political appeal to state lawmakers. STRATEGY ALTERNATIVES The least attractive alternative would be to try to "liberalize" a state law to fit the template allowed by the court. This is essentially one of right-tolife's tactics, and as has also been noted, in every state it could entail enactment of new restrictions. Another proposed strategy, one often heard from those who don't mind if some women are denied abortions as long as most women can get them, is to "leave well enough alone" and let nonconforming laws be challenged in test cases. To abandon the political field is to leave it to the fervent, well-funded anti-abortion forces. Besides, all states have abortion laws on the books that need change in one respect or another. It's also easy enough to say "let doctors test the laws," but even now physicians shy away from even approaching the boundaries of current laws especially in regard to time limits for fear of accidentally crossing them. If invalid state laws are left on the books, every physician planning a grayarea" abortion will need an attending attorney" to help decide whether or not the law might be enforced in such a case. Clearly, the only effective political alternative is to work for complete abortion law repeal. The prospect of getting the issue off the books, and therefore ་་ off their backs, appeals to weary legislators considerably; it saves them from haggling over the fine points of whole new sets of conditions for abortion - which would plague them again even if they tell Congress to throw it back in their laps later. Most legislators who have voted against abortion in the past are not antiabortion fanatics, and may also find the notion that repeal eliminates both disapproval and approval to be more conciliatory and graceful than the approach of right-to-lifers. For instance, now that the Catholic bishops of Texas cannot have the ban on abortion they want most, they may accept what they claim (in a 1971 statement) that they prefer to reforms: complete state silence. In fact, Sarah Weddington, the attorney who argued the Texas case, has just taken her seat in the Texas legislature, has filed a repeal bill, and even has the backing of the state medical society for its passage. (In the majority of states, where restrictive contraception laws still exist, bills to repeal these can enhance the attractiveness of abortion law repeal still further; not only because such laws are ridiculous, but because you can take the wind out of anti-abortionists' sails by showing that you are trying to help prevent pregnancies and therefore abortions.) Perhaps the most dramatic development has occurred here in New York: as soon as the court decision came down, Ithaca Assemblywoman Constance Cook resumed leading sponsorship of abortion law repeal and announced that she already had over 30 colleagues behind the bill. Mrs. Cook introduced the nation's first such bill in 1969; feminists and others worked hard for her "utopian" bill. that year, and their efforts paved the way for the liberalization of 1970 which itself has been surpassed by the new court ruling. Repeal was in the legislature in 1971 and 72 as the Ohrenstein-Leichter bill, with over 20 sponsors (including Mrs. Cook). No one, of course,expected the bill to pass, but it did keep the goal alive at the same time it provided an invaluable vehicle for those who wanted to counter the opposition through working for their real desires. The paradox this year is that although the Supreme Court's ruling has given comfort to opponents of women's rights, it has also made extreme anti-abortion efforts more difficult, and thus has made passage of repeal bills more possible now than it may ever be again - IF those who want it continue to press their demands. The new potential for New York's bill is shown by the change in its lead sponsors: the fact that Mrs. Cook's co-sponsor is another Republican, NYC Senator Roy Goodman, shows that they feel the bill could go somewhere. In New York's Republican-controlled legislature, a bill led by Republicans gets farther than the same measure led by Democrats. ++ And the contraception law repeal bill is also being reintroduced in New York: under Goodman-Cook sponsorship it got to the floor in 1972 against even the expectations of everyone who worked so hard for it; 1973 could be the year it passes. too. A great many people are being led to believe that the court decision ended the legal problem and that now they can turn their attention entirely to other issues. The media may soon find the politics of abortion a stale topic and resume the ir traditional silence on the work done for repeal But if defeat is not to be snatched from the jaws of victory, it is essential that everyone throughout the country who cares about giving all women the right to abortion seize this opportunity and take action to make it a legal reality. In New York, groups like the Women's Health and Abortion Project, New Yorkers for Abortion Law Repeal, the National Women's Health Coalition, and other participants in the growing "abortion network" described on the first page of January's Majority Report, will be doing all they can to work with you to fight the opponents of abortion and make this session of the legislature a triumphant one for abortion as a right not a privil ege. +(The report was based on current information from Cook's staff; the actual lead sponsor is Sen. Manfred Ohrenstein.) New York City 10024 [212] 799-0620 10 cents, or for $1.00, from New Yorkers for Abortion Law Repeal reprinted from $3 for 12 issues 5/26 Majority Report 20 421 26 540, 74 GROVE 99. February, New York, N.Y. 10024 10014 Abortion Ruling COPYRIGHT 1973, LUCINDA CISLER House Hearings Project 1629 K Street N.W. Suite 520 Washington, D.C. (20006) Paul E. Reimann 1014 E. Center St. Dear Friends: Enclosed is a reduced copy of a paper which I wrote to summarize the development of abortion laws within each state. The basis of it is the exhaustive compendium of state abortion laws up to 1960, compiled by Eugene Quay, in the Georgetown Law Journal. However, Mr. Quay only listed the laws in alphabetical order, beginning with Alabama and ending with Wyoming. I took his exhaustive summary of the exact wording of each state law and organized it in chronological sequence within the United States, on a year-to-year basis of significant changes. These are shown in Appendix A. (Appendix B contains a similar chronological summary of important court cases, year by year, again drawn from Mr. Quay's alphabetical-order listing). The text itself shows the development of four distinct categories of abortion laws (those relating to "manslaughter"; those which punished equally the death of either the mother or child by abortion; those which prohibited only attempts on pregnant women, even though attempts on women thought to be but not actually pregnant carried danger as well; and later statutes prohibiting even attempts, in order to solve the evidentiary problem of proving that the abortionist had actually caused the death of the child. The results, in time sequence and easy-to-read tabular form, utterly demolish the selective Blackmun interpretations on the basis of the statutes' wording itself. The only thing lacking is a continuation from 1960 to the present, but the only source available to me (the University of Utah law library) did not have a lot of current states' statutes available, and so I could not extend it accurately from 1960 to the present. For someone with those resources available, that extension might be a worthwhile project. But even lacking that extension, the paper shows irresistably, I believe, the real protective development of state statutes and court decisions solicitous of the unborn child's life, until the sometimes aberrations of recent years. If you wish to reformat the data, by all means do so. I also apologize for the absence of a section concerning the English common law; but Robert Byrn's work is the best available anyway. Also missing are footnote references, but these will be familiar to you anyway. I also include a copy of Table 3-1 (Fetal Mortality) of Volume II (Mortality) Part A, of the H.E.W.'s Vital Statistics of the United States (1971 or later if available), which lists the minimum period of gestation for which Fetal-Death registration is required in each state, and a table of fetal deaths by each state. The entire Section 3 is devoted to Fetal Mortality, and though Table 3-1 of H.E.W.'s Vital Statistics is the best summary, the entire section could be a valuable addition to any submission to the House Committee, for its treatment of fetal deaths as just that: deaths. - Sincerely, Paul Eldren Reimann HOW DID THE AGGREGATE OF STATES' ABORTION LAS DEVELOP IN CHRONOLOGICAL ORDER? In his majority opinion which declared unconstitutional state laws which impeded abortion, Justice Blackrun held that "it was not until after the War Between the States that legislation began generally to replace the common law. lost of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening. Most punished attempts equally with completed abortions" e further stated that "most state laws were designed solely to protect the woman" and that "the few state courts called upon in the late 19th and early 20th centuries did focus on the State's interest in protecting the woman's health rather than in preserving the embryo and fetus"2. He also accepted the argument that "adoption of the 'quickening' distinction through received common law and state statutes tacitly recognized the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception"3. Whether or not there is any truth in the above assertions can best be determined not by opinion but rather directly from the historical development of state abortion laws themselves, as found in the very wording of the statutes. It is the object of this topic to concisely summarize the individual states' laws, by date of passage (and reconfirmation in later statutes in the same states), and by the content of the states' laws. Greater detail is afforded later, if this is of interest. Obviously, the former English colonies which first formed the United States began with a body of tradition or "common law" which was largely inherited from England, and which was only replaced as explicit state legislation was passed on particular topics, including abortion. Much has been made of the purported meaning of common law abortion in England, and this is summarized at the end of this topic. But of more direct interest are the laws which were not inherited from another country, but were passed by the States themselves, under the framework of the U.S. Constitution. Eugene Quay has exhaustively collected the exact wording of each state's abortion laws, as they were enacted and later re-enacted. However, he lists these in alphabetical order (beginning with Alabama and ending with Wyoming), which does not give as much perspective as looking at the year-by-year progress of state abortion laws collectively. Accordingly, these are summarized, up through 1960, in tabular form in the accompanying appendix. There is a fairly sharp distinction of state abortion laws into four separate categories: 1) statutes labeling abortion or other killing of at least a "quick" child (generally taken to mean one who had evidenced life by movement strong enough to be felt) as "manslaughter; 2) statutes which explicitly provided exactly the same punishment for any abortion which killed either the mother or the unborn child (i.e., if either was killed, the penalty was identical); 3) statutes prohibiting attempted abortion on any pregnant woman; and 4) later statutes prohibiting abortion attempts on any woman, whether actually pregnant or not. The common exception allowing abortion when necessary to save the mother's life was so universal that it will not be mentioned again, unless there is some variance in a particular law. Beginning with the first category, the following 17 states listed as "manslaughter" or as "anslaughter in the first degree" or as "manslaughter in the second degree" any abortion which resulted in the willful death of any unborn quick child, as well as any abortion which (successful or not) resulted in the mother's death. (Unless specifically mentioned otherwise, the penalty of manslaughter applied whether the mother or an unborn child was killed). Thirteen of these seventeen sates also labeled as "manslaughter" the "willful killing of an unborn quick child by any injury to the mother of such child, which would be murder if it resulted in the death of such mother". New York (1628-35, 1846, 1881, 1942): l'anslaughter for abortion causing the death of the rother or quick child. (Up to 1 year confinement for attempted abortion on any pregnant woman (1828-35 orward), until 1872, when attempted abortion on any woman with child was increased to 3 years; in 1942, the penalty was increased to up to four years, this time whether she was pregnant or not). The 1942 law providing up to 4 years for attempted abortion and manslaughter for killing either mother or quick child was repealed by one vote in 1970 and replaced by 24-week elective abortion; but in 1972, the legislature voted (79 to 68 in the Assembly, 30 to 27 in the Senate) to return to the 1942 statute, but Gov Rockefeller vetoed this. In his opinion, 'r. Blackmun noted that New York made the killing of a quick Letus second degree manslaughter in 1020-35, but he failed to note that this was also the saje penalty for killing the mother by abortion, and he failed to note that some sixteen other states had like provisions. lissouri (1835, 1949): Manslaughter if a quick child was killed(1835); manslaughter før "the death of said woman, or any quick child whereof she may be pregnant" (1949). (Up to 1 year for attempted abortion on any pregnant woman (1335); increased to 3-to-5 years for any attempt "whether actually pregnant or not" (1949). Arkansas (1833, 1947): Manslaughter for causing the death of an unborn quick child by abortion (1838 & 1947). In addition, 1 to 5 years for attempting abortion on any woman with child (1875 & 1947). Iowa (1843): Manslaughter (up to 7 years) for the abortion of "any woman, pregnant with a child with intent thereby to destroy such child, and thereby cause its death" (1:43). (In 1851 all laws not included in the Iowa code of that year were repealed; since abortion was omitted, the Iowa Supreme Court held in 1856 (Abrams v Foshee) that only the comen-law prohibition after quickening remained. The next legislature, in 1858, passed a law (effective in 1860) providing up to 1 year for attempting the miscarriage of any pregnant venan; after 1915 the wording read simply "any woman", The penalty after 1862 was up to 5 years for any attempt. In 1839 an act against poisoning included abortion attempts (up to 3 years)). Michigan (1846, 1935, 1954): Manslaughter for any abortion causing the death of the nother or the quick child (1846, 1954). Also, for any attempt to procure the miscarriage of any pregnant woman, up to 1 year was specified (1846); it was a "felony" by 1935. Mississippi (1848, 1956): It was manslaughter if quick (1843). It was 1 to 10 years for causing any vocan pregnant with child to abort or miscarry, or attempting to produce an abortion or miscarriage, and if the mother died, it was murder (1956). Wisconsin (1949, 1858, 1958): It was manslaughter to cause the death of either mother or child by an abortion attempt on "any woman pregnant with a quick child" (1849), or "any woman pregnant with a child" (1858). In 1958 the penalty was up to 3 years for destroying any unborn child, and up to 15 years for killing the mother or an unborn quick child by abortion. "In this section, 'unborn child' means a human being from the time of conception until it is born alive" (1958). Minnesota (1851): It was manslaughter if either the mother or a quick child died. (To kill an "unborn infant child", if killed by an injury which would be murder if it resulted in the death of the mother, brought a penalty of manslaughter also in 1851..In 1873 the penalty for abortion of any "woman with child" was set at 3 to 10 years for killing either mother or child (1873); also in 1873, 1 to 2 years was imposed for attempting to procure the miscarriage of "any woman with child"; this was increased to up to 4 years in 1953). Oregon (1853, 1864, 1959): It was manslaughter for abortion causing the death of a quick child or the mother (1853); in 1864, 1940 and 1959 abortion of "any woman pregnant with (a), child" was nanslaughter. (not just 'quick') "in case the death of such child, or of such mother is thereby produced". (Unsuccessful abortion attempts were not mentioned). Kansas (1855, 1859, 1959): It was manslaughter (3 to 5 years in the second degree) for abortion killing the mother or quick child (1855, 1859 & 1959). (Mattempt on a pregnant woran drew up to 1 year (1855 & 1959). Florida (1868, 1944): It was manslaughter for abortion causing the death of the mother or a quick child (1868 & 1944). (Up to 7 years was imposed for attempting the miscarriage of any woman (1868 & 1944)). Alaska (1899, 1949): Abortion of "any woman pregnant with a child" was manslaughter if it causes the "death of such child or mother". (Attempted abortion was not mentioned). (In 1970, previable abortion on request was passed but vetoed by Gov. Miller, whose-narrow defeat in the next election permitted the next passage to become law. New Mexico (1907): Second degree murder for abortion of "any woman pregnant with a quick child" -- "in case the death of such child or such mother be thereby produced" (1907). (In 1953 it remained second degree murder if the mother died of abortion, but was 1 to 5 years for attempted abortion on "any pregnant woman"). Oklahoma (1910 & 1958): Manslaughter for any abortion causing the death of a quick child or the mother. (Also in 1910 & 1958, up to 3 years for abortion attempts on "any pregnant woman". Kevada (1911 & 1959): "The willful killing of any unborn quick child, by any injury committed upen the mother of such child" is "manslaughter". That this does not just apply to killing the child by assaults on the mother is evident in the imposition of the penalty for manslaughter also upon "every woman quick with child who shall take or use, or submit to the use of any drug -- or any instrument or other means, with intent to procure her own miscarriage, unless the same is necessary to preserve her own life or that of the child whereof she is pregnant". (Only a minority of the states penalized the mother explicitly, and the penalties against her were generally less than those imposed upon the abortionist. Vermont (1846, 1967 & 1959) and Rhode Island (1896 & 1956) explicitly excused the mother from prosecution, while New York (1045, 1872 & 1942), New Hampshire (1848 & 1955), Wisconsin (1858), Connecticut (1860 & 1958), California (1872); Minnesota (1873 & 1953); Indiana (1881, 1905, 1956 & 1960), South Carolina (1883, 1932 & 1952), Arizona (1887 & 1956), Idaho (1387 & 1956), Wyoming (1690, 1945 & 1957), Oklahoma (1910 & 1958), Nevada (1911 & 1955, as above), North Dakota (1943), Montana (1947), Utah (1953), and South Dakota (1960), in order of passage, did explicitly impose penalties upon the pregnant woman who submitted to or attempted abortion. This renders rather untenable the view that laws against abortion were only to protect her health). South Dakota (1929 & 1960): It was manslaughter to abort "any woman pregnant with a quick child in case the death of the child or of the mother is thereby produced". (Up to 3 years. was imposed for any attempt to procure the miscarriage of "any pregnant woman" (same dates)). Forth Dakota (1943): It was manslaughter to abort "any woman pregnant with a quick child -in case the death of the child or of the mother is produced". (Up to 3 years was imposed for any attempt to procure the miscarriage of "any pregnant woman" (also 1943)). Thirteen of the above 17 states also listed as manslaughter "the wilful killing of an unborn quick child, by any injury to the mother of such child, which would be murder if it resulted in the death of such mother: New York (1026-35, 1881 & 1942); Missouri (1835 & 1949); Arkansas (1838 & 1947); Iowa (1043: repealed by omission in 1851); Kichigan (1846 & 1954); Mississippi (1842 & 1956); isconsin (1849 & 1858); Minnesota (1851); Kansas (1855, 1859 & 1959); Florida (1066 & 1944); New Mexico (1907: second degree murder); Nevada (1911 & 1959); North nakota (1943). Besides these 13, Georgia imposed death or life imprisonment (1876 & 1933). Ten more states penalized equally killing the unborn child or the mother by abortion: Chip (184) & 1953): One to seven years for abortion of "any woman, pregnant with a quick child" (143) if either dies, or 1 to 7 years if the woman either miscarries or dies (1953, with no pention of "quick). Up to 1 year (1841) for attempts on a pregnant woman. (1953: none). Washington (1354 & 1951): One to twenty years was imposed for abortion killing a quick child or the rother (1854 & 1951). Up to 5 years was imposed for any attempt on "any woman whom he supposes to be pregnant" (1854) or "with intent thereby to produce the miscarriage of a woman, whether pregnant or not" (1951). (In 1970, 19-week abortion on request was adopted after a 55% to 45% margin in a state-wide referendum). Pennsylvania (1260, 1939 & 1945): "If such woman, or any child with which she may be quick, shall die -- ", up to 7 years was imposed in 1960, and increased to up to 10 years in 1939 and 1945. (For attempts "to procure the miscarriage of any woman" ("quickening" was not mentioned), up to 3 years was imposed in 1860, and increased to up to 5 years in 1939 & 1945), |