Recent Abortion Law Reforms (Or Much Ado About Nothing)

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by  Harvey L. Ziff

Journal of Criminal Law and Criminology
Volume 60|Issue 1 Article 2
1969
Recent Abortion Law Reforms (Or Much Ado
About Nothing)
Harvey L. Ziff
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Harvey L. Ziff, Recent Abortion Law Reforms (Or Much Ado About Nothing), 60 J. Crim. L. Criminology & Police Sci. 3 (1969)
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THE JounN.e., or CatnaA, LAw, CRIMnOLOGY AND POLICE SCIENCE Vol. 60, No. 1
Copyright @ 1969 by Northwestern University School of Law Pri ed in U.S.A.
RECENT ABORTION LAW REFORMS (OR MUCH ADO ABOUT NOTHING)
HARVEY L. ZIFF
The author is a graduate of Northwestern University School of Law's two-year Prosecution-Defense
Graduate Student Program. He received his LL.M. degree in June, 1969, after completing one year in
residence and one year in the field as an Assistant United States Attorney in San Francisco, Califor-
nia. The present article was prepared in satisfaction of the graduate thesis requirement. (It repre-
sents the author's own views and in no way reflects the attitude of the Office of United States Attorney.)
Mr. Ziff received his B.S. degree in Economics from the Wharton School of Finance of the Univer-
sity of Pennsylvania in 1964. His interest turned to medical-legal problems at Stanford University
Law School, where he received an LL.B. degree in 1967. While at Stanford, he was a member of
the Board of Editors of the Stanford Law Review.
After surveying the statutory and case law governing abortions and considering the relevant social
and medical issues, Mr. Ziff recommends unregulated medical control during the first sixteen weeks of
pregnancy.
The law regulating induced abortion is one of The law makes no distinction based on viability.
the most widely discussed medical-legal problems Criminal abortion generally refers to any untimely
of the present time. In recent years literature on delivery voluntarily procured with intent to
the subject has become voluminous, stirring up destroy the fetus before natural birth.5 However,
intense emotional reaction and violent debate. few criminal abortions are performed after the
Recently, four states have revised their laws, third month of pregnancy because abdominal
using the proposal in the Model Penal Code as a operations are required after that time.6 Conse-
guide. This paper will critically evaluate the quently, most criminal abortions are categorized
Model Penal Code proposal. Detailed examination correctly as abortions in medical terminology.
will be made of the social problems which are
responsible for recent legal revisions. This exami- GENEAIL STATE OF THE LAW
nation will be followed by (1) a description of the Every state in the union has a statute which
reasons why the reforms which have been passed makes the termination of pregnancy a crime.
are likely to be ineffective in dealing with the However, all but Louisiana provide exceptions by
conditions which impelled their enactment, (2) statute or case law7 Most states are restrictive
an analysis of the legal problems involved in and limit legal abortion to the narrow grounds of
passing an effective reform, and (3) a proposal necessity to "preserve" s or "save"9 the life of
based on the preceding analysis.
5Many abortion statutes punish the attempt to
The term "abortion" causes confusion because induce an abortion. Thus the crime may be committed
its meaning varies according to the profession with a woman who is not pregnant. See, e.g., ILL. REv.
STAT. ch. 38, §23-1 (1965).
which employs it. In medical usage, abortion 6T AussIo, supra note 2, at 327-40.
generally refers to the premature expulsion from 7LA. REv. STAT. ANN. §14.87 (1950). There is an
inconsistency in the Louisiana statutes, however. Per-
the uterus of the products of conception at a time
formance of an abortion is not a cause for revocation of
before viability, i.e., before the fetus has reached a medical license when "done for the relief of a woman
such a stage of development that it can live out- whose life appears in peril..... . " LA. REv. STAT. ANN.
§37:1285.
side the uterus." The twenty-sixth to the twenty- 8 ALAS. STAT. tit 11, §15.060 (1962).
eighth week of pregnancy is regarded as the time DEL. CODE ANi. tit 11, §301 (1953).
of viability.2 After that time, "miscarriage"' or FLA. STAT. AwN. §782.10 (1965).
GA. CODE ANN..§ 26-1101 (1953).
"premature labor"' are the terms used by medical HAwAnI REv. LAWS §309-3, 4 (1955).
authorities for premature expulsion of the fetus. IDAuO CODE AxN. §18-601 (1948).
IND. AN. STAT. §10-105 (1956).
1 DoRLAwD, ILLUSTRATED MEDICAL DICTIONARY 1689 KAN. GEN. STAT. AwN. §21-437 (1964).
(24th ed. 1965). KY. REV. STAT. §436.020 (1962).
2 TAussiG, ABORTiON, SPONTANEOUS AN INnucED 21 ME.'REV. STAT. ANN. ch. 134, §9 (1954).
(1936). MICH. STAT. AN. §28.204 (1962).
aALOy, MnEDIcA DICTIONARY rOR LAwYERs 380 Miss. CoDE ANN. §2223 (1956).
(1951). MONT. REV. CODE ANN. §94-401 (1947).
4 DosrLAN, supra note 1, at 789. NEB. REv. STAT. §28-405 (1965).
HARVEY L. ZrFF [Vol. 60
the pregnant woman. Some states permit abortions Recent Legislative Revisions
to "preserve"'" or "save"'1 the life of either the Since 1967, Colorado, North Carolina, California,
pregnant woman or the child.
and Maryland have revised their criminal laws
A few states do provide wider grounds for
related to abortion. Each of these states has gen-
justifiably terminating pregnancy. Thus Alabama erally followed the reforms drafted by the
and the District of Columbia permit abortions to American Law Institute.17 The following dis-
preserve the life or health of the mother,12 and
cussion will focus predominantly on the Model
New Mexico legalizes abortions "to preserve the Penal Code provisions since it is likely that other
life of the woman or to prevent serious or perma-
states which are contemplating reforms will also
nent bodily injury" to her.13 use the A.L.I. proposal as a guideline.
Although most states carefully regulate the The Model Penal Code provisions maintain the
grounds on which pregnancy may be justifiably general state of the law in that termination of
terminated,14 the majority, apparently, permit pregnancy continues to be unlawful, unless justified
anyone to perform the operation.15 Prior to 1967, by particular circumstances. However, only a
only ten states and the District of Columbia licensed physician may perform an abortion with
required that a physician or surgeon perform the justification. His reasons for terminating a preg-
operation.j6 nancy may be based upon any of four grounds-
N.H. PEv. STAT. ANN. §583:13 (1955). if he believes that there is a substantial risk that
N.Y. REv. PEN. LAW §§125.05; 125.40; 125.45 (1967). (1) continuance of the pregnancy would gravely
N.D. CENT. CODE §12-25-01 (1939).
Orno REv. CODE ANN. §2901.16 (1964). impair the physical or mental health of the mother,
OKLA. STAT. ANN. tit. 21, §861 (Supp. 1967). (2) the child would be born with grave physical or
R.I. GEN. LAWS ANN. §11-3-1 (1956). mental dfect, (3) the pregnancy resulted from
S.D. CODE §13-3101 (1960).
TEN. CODE ANN. §39-301 (1955). rape, or (4) the pregnancy resulted from incest or
UTAH CODE ANN.§ 76-2-1 (1953). other felonious intercourse. In addition, the
VT. STAT. ANN. tit. 13, §101 (1958).
written concurrence of two physicians on the
Wyo. STAT. ANN. §6-77 (1957).
9A uz. REv. STAT. AoN. §13-211 (1956). designated grounds must be filed, either in the
AREo.S TAT. ANN. §41-301 (1964). hospital where the operation is to be performed
ILL. REV. STAT. ch. 38, §23-1 (1965).
IOWA CODE §701.1 (1950). or in any other place designated by law.
N.J. REv. STAT. §2A:87-1 (1953), as interpreted in The new Colorado law provides for termination
State v. Brandenburg, 137 N.J.L. 124, 58 A. 2d 709
of pregnancy on the grounds recommended by the
(1948).
TEX. PEN. CODE §§1191, 1196 (1961). Model Penal Code, but requires the unanimous
Wis. STAT. §940.04 (1961). approval of a "special hospital board of three
10C ONN. GEN. STAT. REV. §53-29 (1958).
Mnm. STAT. §617.18 (1963). physicians" who are staff members of the hospital
Mo. STAT. ANN. §559.100 (1953). where the operation is to take place.U North
NEv. REv. STAT. §201.120 (1961). Carolina provides for termination on the Model
S.C. CODE ANN. §§16-82, 16-83 (1962).
WASH. REV. CODE ANN. §9.02.010 (1961). Penal Code grounds, but limits the operation to
"VA. CODE ANN. §18.1-62 (1960). women who have been residents for four months,
W. VA. CODE ANN. §61-2-8 (1966). and who have approval of three doctors not
D.C2 .A LCAO.D EC OADNEN .t it§.2 124-2, 0§19 ((11996579)).. engaged in joint private practice 9 California does
For states which permit abortions when "necessary not permit potential defectiveness of the child
to preserve" the life or health of the mother see
as an independent basis for termination, but does
MAss. GEN. LAWS ANN. ch. 272, §19 (1956), as inter
preted in Commonwealth v. Brunelle, 341 Mass. 675, allow termination for the other grounds specified
171 N.E. 2d 850 (1961); ORE. REv. STAT. §163.060 in the Model Penal Code. However, no termina-
(1965).
1 N.M. STAT. AmrN. §40-A-5-3 (1953). tions are permitted after the twentieth week of
14B ut see the Pennsylvania statute which prohibits pregnancy. Prior to that time, approval of a
only "unlawful" abortions, and has not been judicially
hospital board must be obtained in the following
interpreted. PA. STAT. ANN. tit. 18, §4719 (1963). On
Pennsylvania law, see Trout, Therapeutic Abortion manner. Between the thirteenth and twentieth
Laws Need Therapy, 37 T~mp. L.Q. 172, 184-86 (1964).
15A la., Alaska, Ariz., Conn., Del., Fla., Ga., Hawaii, N.Y., Ore., Wis. These statutes are cited in notes 8-13
Idaho, Ind., Iowa, Kan., Ky., Me., Mich., Mo., Minn., supra.
Mont., Neb., Nev., N. D., Ohio., Okla., R. I.,S: C., 17 MODEL PENAL CODE §230.3 (Proposed Official
S. D., Tenn., Tex., Utah, Vt., Va., Wash., W. Va., Draft 1962).
Wyo. These statutes are cited in notes 8-12 supra. I CoLo. REv. STAT. ch. 40, §2-50 (1967).
'6D .C., Ark., IllM.,e. , Mass., Miss., Mo., N. M., 1 N.C. GEN. STAT. §14-45.1 (1967).
19691 ABORTION LAW REFORMS
week, approval of a hospital board of at least three law is being violated. Generally accepted is the
licensed physicians is required. Prior to the thir- estimate that one million illegal abortions are
teenth week of pregnancy, a board of at least two performed in the United States each year.25
licensed physicians is required. Where the board Based on this estimate, approximately one out of
consists of not more than three physicians, unani- every five pregnancies in the United States ter-
mous approval is required.20 minates in illegal abortion.2 These figures are
These revisions have been hailed as momentous discounted by opponents of reform who readily
steps in combating the social problems caused by point out the impossibility of obtaining ac-
the typical repressive abortion statute. For ex- curate statistics in this area.N They note that
ample, Governor John A. Love, on signing the the same authorities who formulated the one
Colorado bill into law, declared that their new million figure also stated that a plausible estimate
law is "designed to do something about areas of the frequency of induced abortion in the United
of suffering and abuse which have been of concern States could be as low as two hundred thousand,
to a great many people for a great period of time."21 and that there is no objective basis for the selection
The following discussion will demonstrate that of a particular figure.N
these "reforms" fall far short of solving problems Even if one accepts the lower estimates, the
with which they reasonably should be expected to statistics do establish that a serious problem
deal. exists.21 One author reports that police consider
criminal abortion to be the third largest illegal
SocrAL PROBLEMS UNDERLYING THE endeavor in the country, following only gambling
NEED FOR REFORm and narcotics3.0 The potent combination of strong
Although the evils resulting from the repressive demand and opportunity for exploitation make
abortion laws prevalent throughout the United for potentially high profits. "The terrific frustra-
States have been asserted since 1936,22 the thorny tion of a woman who wants a child and cannot
political nature of the subject has retarded official have one... does not compare with the intensity
recognition. "Laws regulating sexual behavior of emotion and determination of the woman who
have no peer at stirring up intense emotional does not want a child, is pregnant, and won't have
reaction; and when the element of life itself is it." 1 At the same time, a woman who goes to an
involved, the reaction is compounded. Abortion abortionist is really an applicant for a favor;32
is perhaps the only problem in which attitudes consequently, she rarely will leave his office with
toward sexual activity itself and toward life and much more than cab fare.n
being arein seething turmoil." 21 The nature of the business requires that it be
Understandably, no legislator wishes to be well organized, although illicit abortion services
denounced from the pulpit as a "murderer in the apparently are not controlled by any single orga-
womb." 24 To minimize the adverse reaction to nization. The professional abortionist needs an
their proposals, advocates of reform emphasize office, medical equipment, and some assistants.
the following distressing social conditions which Customers must be able to locate him, even though
indicate the need for revision of the law: 26 BATES & ZAwADsKy, CRnINAL ABORTION 3 (1964)
[hereinafter cited as CRIMIAL ABORTION].
Extent of Illegal Abortions 26 Ibid.
27S ee Ratner, Abortion: A Public Health Viewpoint,
The starting point for a discussion of the abor- 131 ILL. MED. J. 687 (1967).
tion problem is the extent to which the present 28 ABORTION IN THE UNITED STATES 180 (Calderone
ed. 1958) [hereinafter cited as ABORTION IN T=E UNID
'a CAL. PEN. CODE §274, amended by, CAL. HEALTH STATES].
& SAYxET CODE §25950-54 (1967). 29 Kleegman, in ABORTION IN THE UNrrED STATES
21 Chicago Sun-Times, Apr. 26, 1967, at 8, col. 1. 104.
21T AussiG, supra note 2. 30 See ScHU, CERsS WITHOUT VICTMs 25 (1965)
23 George, Current Abortion Laws: Proposals and [hereinafter cited as CRIEs WITHOUT VICTIMs].
Movements for Reform, in ABORTION AN LAW 1 31 Kleegman, in ABORTION IN THE UNITED STATES
(Smith ed. 1967) [hereinafter cited as ABORTION AN 113. Extremely desperate women have been known to
THE LAw]. shoot themselves in the abdomen in an effort to ter-
24 Address by Rev. Lester Kinsolving, First Annual minate their pregnancy. Koss, Fatal Gunshot Wound of
Dinner Meeting of the Illinois Citizens for the Medical Foetus Inflicted by the Mother, 4 AUST.-NEw ZEAL. J.
Control of Abortion, Nov. 16, 1967, Chicago, Illinois OBSTETRICs &G YNEcOLOGY 125 (1964).
[This organization is hereinafter referred to as CRIMINAL ABORTION 55.
HId. at 58.
I.C.M.C.A.] ABORTION AND T LAW 226.
HARVEY L. ZIFF [Vol. 60
he must maintain a certain amount of anonymity. raid is 'legitimate," has no choice but to agree
Intervention by the police must be avoided as well. to bribe the officers!'
The court records in New York reveal the The activities just described should not be
operations of two complex organizations known as tolerated even if one were to assume that illegal
abortion "mills" and "rings." The mill is com- abortions are performed in a hygienic manner.
4
prised of one or several abortionists working The glaring need for adequate revision of the law
regularly in a single locale and aborting a dozen thus becomes obvious when the suffering inflicted
women daily. The less common ring consists of on women as a result of these activities is revealed.
"interacting abortionists or mills working inter- Illegal abortions are a significant contributor
mittently at several occasionally changing locations to injuries suffered by women. Early commentators
and aborting an even more considerable number estimated five to ten thousand deaths per year
of women daily." 31 The rings are clandestine and are caused by abortions.42 As the use of antibiotics
swiftly-operating organizations. They may give and increased care has become more common,41
the woman a code number by telephone and a lower figure of one thousand deaths per year
order her to meet the abortion contact in a parking may now be more accurate." Nevertheless, recent
lot. There, the contact may blindfold her and give studies in California46 and New York" indicate
her sleep-inducing drugs. After the operation he that criminal abortion remains responsible for
will return her to the parking lot in less than an more maternal deaths than any other cause.
hour' The most common victims are married housewives,
A sizeable portion of the price charged goes to with several children, who attempted to abort
intermediaries because the successful abortionist themselves.0
requires both business and medical assistants. The techniques which cause death are numerous
He needs a shrewd secretary who can gauge the and variable. Several of these are often combined,
financial status of an applicant in order to charge each contributing to the fatality. Oral medications
the highest possible fee.3 He requires channels to are commonly followed by direct assaults upon
direct patients to him. Physicians and druggists the uterus, apparently after the drugs seemed
are the primary source of referral;" others include ineffective.8 These medications range from Castor
women formerly aborted and satisfied with the oil to turpentine.49 Fluids injected into the uterine
results, taxi-drivers, and bell-boys.9 Fees are canal include pine oil, lysol, soap, and alcohol.5"
split with all of these "feeders" except the former Among the rigid objects forced into the uterus
patients. The abortionist also has a business agent are chopsticks, copper wire, curtain rods, knitting
to handle contacts with the landlord, payment of needles, and coat hangers." Air is sometimes
salaries, bills, bribe money and split fees. The forced into the uterus by using a catheter, plastic
agent is usually a relative or a close friend who straw, or football pump.52 Sepsis, i.e., infection,
can be trusted with this confidential position.4° is the basic medical cause of death." Other medical
Few police officers have any illicit connection causes of death, which may be found in combina-
with abortionists; however, some do take advan- tion with each other or with sepsis, include shock,
tage of the opportunities for extorting a known hemorrhage, air or fat embolism, and poisoning.5
abortionist who is working in a fixed location. A 41Id. at 69.
common practice is to send a decoy, willing to 42C RUM WITHouT Vicrmis 28.
U Ibid.
submit to the operation, to the abortionist. The "Barno, CriminalA bortion Deaths,9 8 Am J. OBSTET-
officers stop her as she attempts to leave the ics & Gvxco.oox 357 (1967). But see id. at 364.
office. After "protesting" the legitimate nature of 45M ontgomery & Hammersly, Maternal Deaths in
California, 1957-62, 100 CAL. Mxn. 412, 415 (1964);
her visit, she "breaks down" and "confesses." Fox, Abortion Deaths in California, 98 Am. J. OBSTET-
The abortionist, who cannot know whether the Ries & G'NEcoLoGy 645 (1967).
4"G old, Erhardt, Jacobnizer & Nelson, Therapeutic
" Id. at 51. Abortions in New York City: A 20-Year Review, 55 Am.
5I bid. J. PUB. HBALTr 964, 965 (1965).
ss Lader, The Scandal of Abortion Laws, N.Y. Times, 4 Fox, supra note 45, at 649-51.
Apr. 25, 1965, §6 (Magazine), at 32, 59-60. 8Id. at 649.
agr7e eCdm unpmoAn Lp rAevBiOoRuTsIlOy,N t h52e. aEbvoernti oifn itshte's p sreiccere htaardy bweeilnl 050 IIbdi. da.t 648.
make every effort to raise the price. Id. at 56. Ibid.
"Id. at 53. Ibid.
39I d. at 55. " Id. at 650.
40I d. at 52. "GRADwOHL, LEGAL Mv1EDICINE 814 (1954).
19691
ABORTION LAW REFORMS
Even though the aborted woman usually sur- come from the ranks of elevator operators, barbers,
vives, almost all abortions performed by persons and unskilled laborers 4 Posing as physicians,
other than qualified physicians cause medical they may attempt to perform a standard hospital
complications which require treatment."5 As in operation known as a dilatation and curettage,
fatal cases, the most common after-effect is sepsis or 'TD & C." The surgeon dilates the cervix,
because the uterus is a delicate organ which is introduces a long, semi-sharp, spoon-shaped
highly susceptible to infection." Most women instrument called a curette, and scrapes the
who induce their own abortions fail to take proper uterine cavity. Gentleness is the key to a proper
hygienic precautions. Mill abortionists, also, operation;6 only a physician with obstetrical
often omit elementary aseptic techniques in order training is qualified to evacuate the uterus.0
to save time in performing operations and increase Unskilled hands can easily damage the uterus
profits1 To treat the infections which result, and other nearby organs when they attempt this
forty per cent of women admitted to hospitals delicate procedure.6
after improper abortions require blood trans- The lack of medical training is compounded
fusions; the average hospital stay is seven days.P because anesthetics are seldom used, another
In some cases good medical procedure dictates an attempt to complete operations quickly, and also
immediate and total hysterectomy without a a precaution against a medical accident resulting
delay to assess the effectiveness of antibiotic in complications or homicide." Accordingly, the
therapy. 9 All cases of septic abortion call for following account of an abortion is understandable:
early diagnosis, treatment, and meticulous sup-
portive care.0 Q. What did you feel at that time?
A. Well, there was so much pain-and I just
The amount of pain and humiliation inflicted by
don't-I can't explain it really. I just know it
abortionists is staggering. Although physician- was like my whole stomach was coming out.0
abortionists should be capable of operating in a
professional manner without causing serious When the current laws were originally enacted,
complications, the physician who has become a all abortions were dangerous procedures.70 Im-
professional abortionist is almost invariably a provements have taken place in medical practice
deviate. Some are alcoholics who operate with since that time. The D & C operation will be
disasterous results while they are intoxicated,61 quite harmless when performed in a hospital
and others are sexual perverts, 2 as are many under sanitary conditions today. The renowned
non-physician abortionists.3 Many criminal abor- physician Alan F. Guttmacher stated:
tionists have little or no medical training, and
There is little scientific evidence that in the
55 Cases involving criminal intervention "must be United States today... any marked deterioration
presumed infected." Moritz & Thompson, Septic
in the physical condition of women, aborted for
Abortion 95 Am. J. OBsTETICs & G-mEco oGY 46, 47
(1966). therapeutic reasons in a hospital setting, will take
IsT he risk of infection is ten times greater in abortion place.... If the operation is properly performed
cases than in natural childbirth, since in every case the so that no infection or laceration of the cervix
uterine cavity must be invaded, whereas at childbirth
results, it will have no effect on either the health
this is rarely the case. TAussIG, supra note 2, at 186.
57C annmAL ABORTION 58. of the woman or her reproductive future.'
"Goodno, Cushner, & Molumphy, Management of
Infected Abortion, 85 AM. J. OBSTETRICS & GYNEcOLoGY In addition to the D & C, an even safer, and
16, 17-18 (1963). almost painless, method of performing abortions
59D ecker & Hall, Treatment of Abortion Infected with
Clostridium Welchii, 95 AM. J. OsTEmmIcs & GYNE- in the early stages of pregnancy recently has been
coLoGY 394, 398 (1966). developed. In this procedure, the vacuum aspi-
£0 Moritz &Thompson, supra note 55, at 53.
61 C nNA ABORTION 95. Occasionally a physician 'AC _unANBO RTION 35.
will become a professional abortionist out of a sincere 01T AUssIG, supra note 2, at 193.
concern for the well-being of women who adamantly 6 Id.a t 238.
wish to terminate an unwanted pregnancy. One such 67Shenoi, Massive Removal of Small Bowel During
man is Dr. G. Lotrell Timanus, now retired, who per- CriminalA bortion, 2 BRir. MED. J.92 9 (1966).
fhoardm erdef eorvraelrs 5f0r0o0m ab35o3rt ipohnys siwciiathn so. nSlyt atrw, oT hdee aGthrso.w Hineg "6C0 RIndm.NaN t A4 . ABORTION 58.
Tragedy of Illegal Abortion, LooK MAGAZINE 149, 153 70 Editorial, 199 J.A.M.A. 211 (1967). See STORER,
(Oct. 19, 1965). WHY NOT? A BooK: oR EvERY Womm 36 (1866).
aCRMuNAL ABORTION 95, 177. 71 Guttmacher, The Shrinking Nonpsychiatric Indi-
"See Duprp & HimsRBERG, SEX AND CanRt 136-44 cations for Therapeutic Abortion, in THERAEuTic
(1965). ABORTION 12 (Rosen ed. 1954).
HARVEY L. ZIFF [Vol. 60
ration method, a tube connected to a suction the sudden application of a law that is ordinarily
pump is inserted into the uterus. The uteral a dead letter8
contents are then evacuated by negative pressure
The most crucial problem involved in enforcing
from the pump72 Dilatation is often unnecessary,
laws prohibiting abortion, assuming officials are
thereby eliminating the need for an anesthetic in
interested in enforcing these laws, is the lack of a
many cases. In contrast to the incidence of
complainant. Even after an extremely frightening
perforation of the uterus in normal curettage
which ranges from 0.09 per cent to 6 per cent,74 or distasteful experience, a woman is unlikely to
file a complaint which would surely require her
the chance of perforation with vacuum aspiration
testimony in open court, exposing her willing
is virtually 0 per cent; one study reported no participation in an illicit activity.8' Therefore,
cases of perforation in 4,000 pregnancy termina-
methods other than direct reporting by the aborted
tions.7 Furthermore, the entire procedure requires
only one to three minutes.76 woman must be utilized to develop a case. The
most effective device for obtaining the necessary
Obviously, all the suffering women endure
evidence against a professional abortionist is the
because of the restrictive laws which compel them well-timed, well-organized raid.82 Prior to the
to perform crude and lethal operations on them-
raid, lengthy surveillance must be undertaken
selves, or submit to the butchery and lechery of
in order to apprehend the abortionist in the course
criminal abortionists, is unnecessary. If sanitary
of the operation. Often, medical advisors and
facilities were made available to these women,
female assistants accompany the police to direct
this misery would be eliminated.
the collection of evidence and to calm the woman.
Lack of Enforcement of Present Laws-the Even these expensive and time consuming efforts
Problem of Crime Without Victims may be thwarted. An elaborate organization may
The abortion statutes have been as unsuccessful equip its office with an alarm which, in combination
in prohibiting abortions as the eighteenth amend- with a secret escape door, permits the aborted
ment was in eradicating drinking." Contributing woman and soiled instruments to be removed from
to this situation is the historical lack of vigorous the scene, even as the police enter all known en-
enforcement of these laws. Alabama had 40 pros- trances to the building."
ecutions and 5 convictions in the period between Furthermore, the collection of convincing
1892 and 1935.8 In a similar period Michigan evidence does not assure convictions. The courts
recorded 40 convictionsY9 Commenting on the distinguish between lay abortionists and phy-
California law, which at that time restricted sicians. Sympathetic juries are reluctant to convict
abortions to those necessary to save the life of doctors,84 and judges often impose suspended
the pregnant woman, Alfred Kinsey stated: sentences rather than prison terms86 Also, suc-
cessful prosecutions are commonly reversed on
The chief thing that the abortion laws do is to
provide a basis for yellow journals to put on a 8 ABORTION IN THE UNITED STATES 39.
81 CRIMINAL ABORTION 92.
campaign once in a while. Then you may see
' CRnHs WIrouT VicTIss 37.
twenty abortionists convicted in a single week, 83 CRIMINAL ABORTION 65.
and there may be at a given time thirty or forty 8 Leavy, CriminalA bortion: Facing the Facts, 34 L.A.
abortionists in prison in the state, as a result of BAR BuLL. 355 (1959). The experience in Chicago
between 1950 and 1965 does not support this contention
2 Peretz, Grunstein, Brandes, & Paldi, Evacuation of very strongly. Although the conviction rate for non-
the Gravid Uterus by Negative Pressure, 98 Am. J. OB- physicians was 54% while the conviction rate for.
sTETRUcs & GYNEcoooY 18 (1967); Vladow, The physicians was 29%, the difference was in large part due
Vacuum Aspiration Method for Interruption of Early to the much greater proportion of guilty pleas entered
Pregnancy, 99 Am. J. OBSTETRICS & GYNECOLOGY 202 by nonphysicians. For those who went to trial, the con-
(1967). viction rate for nonphysicians was 39% while the rate
73 Kerslake & Casey, Abortion Induced by Means of for physicians was 31%. Nevertheless, convictions are
the Uterine Aspirator, 30 OBSTETRICs & GYNECOLOGY difficult to obtain even when guilty pleas are included.
35, 36 (1967). Only 49% of all defendants arrested for abortion
71I d. at 38. offenses were found guilty. (Information obtained from
75 Vojta, A Critical View of Vacuum Aspiration, 30 the files of the Chicago Crime Commission.)
OB7S6T PEeTreICtzS, e&t a Gl.,Y sNuEpCrOaL nOoGteY 7228, ,a 3t1 2 1(.1967). enc8e1 A inB OCRhTiOcaNg oa sd oTeHs En UoNt IsTuEpDp oSrTt AtThEisS a3s7s.e rTtihoen eaxtp earlil-.
77M oore, Antiquated Abortion Laws, 20 WASH. & Of 8 physicians who were found guilty after trial, 5, or
LEE L. REv. 250, 251 (1963). 62%, were sentenced to prison. Of 19 nonphysicians
782 9 J. Cns. L. & C. 595, 596 (1937). who were found guilty after trial, 11, or 57%, were
79N ote, 35 COLVm. L. REv. 87,91 (1935). given prison terms. However, for all defendants, in-
19691 ABORTION LAW REFORMS
appeal. One scandal ridden Illinois case involved a A poll of California obstetricians and gynecologists
"million dollar ring" which operated in downtown revealed similar sentiments. Additionally, thirty-
Chicago around 1940. For some time prior to four per cent of the California physicians replied
their arrest, the abortionists had been bribing that the question of abortion is a purely personal
several members of the State Attorney's office. matter which should be totally outside the scope
The Illinois Supreme Court was forced to reverse of the law." Moreover, half admitted having
the convictions obtained against the illegal abor- performed abortions which violated the criminal
tionists because a search and seizure of records had code which, at that time, limited abortions to
been made without a warrant. According to the those necessary to save the life of the mother. 2
Court, the violation appeared to be deliberate A nationwide poll recently revealed that 86.9 per
because there had been enough evidence to secure cent of physicians throughout the United States
a warrant at least a week before the raid., Un- favor some liberalization of the law, 26.6 per cent
derstandably, critics feel the effort involved in approving of abortion for socio-economic reasons,
developing a successful case against an abortionist and 14.3 per cent approving of abortion at the
is "out of proportion to the results achieved." 7 request of the woman, for any reason.'3
Physicians, feeling strongly that the law is
Disregard of Legal Restrictions by Reputable
unfair, and knowing that it is rarely enforced,
Physicians
oftdn disregard the law on the assumption that
Possibly the most significant impetus to legal they are best qualified to make decisions in this
reform has been the classic study, conducted by area. For using their best medical judgment,
Stanford Professors Packer and Gampell, which many physicians may lose their license to practice
demonstrated that reputable hospitals and phy- medicine. This could occur because the vast
sicians knowingly perform illegal abortions." majority of states authorize revocation of a phy-
Packer and Gampell asked twenty-nine represen- sician's license when he has committed, or par-
tative California hospitals to indicate whether ticipated in, a criminal abortion.4 The astounding
they would perform abortions in eleven hypo- magnitude of the problem is clear when one con-
thetical situations. These situations included siders that physicians perform between fifty"
cases clearly illegal and cases of dubious legality and eighty per cent" of all abortions.
under the California law which, at that time, Threats of license revocation are real.7 Recently,
allowed abortions only if necessary to save the proceedings were instituted against several prom-
life of the pregnant woman. No case, not even the inent San Francisco physicians for performing
one based upon purely socio-economic reasons, abortions on women who had contracted German
was uniformly rejected. There was a significant measles during the early stages of their preg-
diversity of opinion among the hospitals as to nancy. s The physicians had assumed that the
the appropriate medical standard for the per- law was a "dead letter," but they were wrong.9
formance of therapeutic abortions.P The most
commonly approved justifications are embodied 91Obstetricians Back Liberalized Abortion Law in
California,3 4 MOD. MED. 24 (Dec. 1966).
in the Model Penal Code proposal. 2Ibid.
Physicians have also indicated their desire for 3 Abortion: The Doctor's Dilemma, 35 MoD. MED.
No. 9, at 12 (1967).
relaxation of the law in surveys conducted among
4See statutes compiled in George, Current Abortion
members of the profession. In a survey of New Laws: Proposals and Movements for Reform, in ABoR-
York obstetricians, an overwhelming majority TION AND THE LAW 1, 17.
95 TAUSSIG, supra note 2, at 388.
favored legalization of abortions when performed "8G EBHARD, POIEROY, MARTIN & CHRISTENSON,
for the reasons set out in the Model Penal Code." PREGNANCY, BRTH & ABORTION 198 (1958) [hereinafter
cited as PREGNANCY, BmmT3 & ABORTION]. But see
cluding those who plead guilty and those whose cases ABORTION IN THE UNITED STATES 65, where it is claimed
were dismissed, only 14% were sentenced to prison that the majority are self-induced.
terms. 9Russell & Chayet, Abortion Laws and the Physician
(8 People v. Martin, 382 ll. 192, 46 N.E.2d 997 276 NEw ENG. J. MED. 1027, 1028 (1967). Medical
(1942). journals often advise physicians to be careful in obeying
8C naNAL ABORTION 6. the law. E.g., Abortion, Protect Yourself, 65 Wis. MED.
"Packer & Gampell, Therapeutic Abortion: A Prob- J. 28 (Jan. 1966).
lem in Law and Medicine, 11 STAN.L . Rzv. 417 (1959). "sW hen German measles is contracted before the
81I d. at 447. twelfth week of pregnancy, there is a 30% to 50%
0H all, New York Abortion Law Survey, 93 Am. J. chance that the offspring will suffer from severe con-
OBsTETRIcs & GYNEcoLoGY 1182 (1965). genital abnormalities if the pregnancy is carried to
HARVEY L. ZIFF [Vol. 60
Singling out a few physicians for violating a and made available, millions of people will be
widely disregarded, rarely enforced, and un- forced into a low standard of living and, perhaps,
popular law seems inherently unfair. The lack of starvation.
notice may raise due process questions of con- One of the more promising areas of birth control
stitutional dimension. Even when local authorities research has been in the development of the
do not intend to enforce restrictive statutes, intrauterine contraceptive device, or IUD. These
"physicians may well find it galling that their devices include a ring made of stainless steel
freedom from criminal and civil liability turns spring, a polyethylene spiral, a double-S loop of
merely on the nonenforcement of law." 100U n- plastic, and a double triangle of plastic."3 Insertion
doubtedly, these unenforced laws inhibit phy- by a physician takes only a minute, and it will
sicians from using their best medical judgment. remain effective until removed. In Japan, women
Such statutes provide inadequate criteria by have been known to have them in place for twenty
which physicians can govern their actions. years or more. They have never been known to
"'Dead letter' laws, far from promoting a sense cause a malignant cervical disease, and fertility is
of security in the community, which is the main unimpaired after the device is removed. The
function of penal law, actually impair that IUD's fulfill the requirements for widespread use
security by holding the threat of prosecution over among the groups who need them most because
the heads of people whom we have no intention they are inexpensive and require no daily at-
to punish." 101 From this perspective, a revision of tention."4
the law which would bring it into conformity There is good reason to believe that the IUD
with accepted medical judgment and practice is does not actually prevent pregnancy, but causes
both desirable and necessary. an early termination after conception by pre-
venting,"°5 or disrupting,"' implantation. After
Other Considerations Indicating Need
conception, the fertilized ovum travels down the
for Revision
fallopian tubes, enters the uterus and nidates, or
Those who seek to relax restrictions on the affixes, itself in the uterine tissue. The time between
performance of abortions by physicians often fertilization and implantation is estimated to be
emphasize the problems just described. However, seven or eight days.1" When implantation is
other consequences of the present laws quite prevented or disrupted, the fertilized ovum will
possibly constitute more compelling justifications be discharged, and the pregnancy terminated.
for revising the abortion statutes. Assuming these devices work as theorized,
1. Inhibition of Vital Medical Research. An insertion alone would clearly violate abortion laws
extremely important problem facing this nation of the many states which define the crime in
and the world is the population explosion. Two- terms of attempt because such statutes do not
thirds of the world's people are underfed or under- require a showing that the woman is pregnant.
nourished. Among low-income, poorly educated Proof problems are probably insurmountable
parents, 54 per cent of their children were un- when the statute requires a showing that the
planned and unwanted. Usually they wanted two woman is pregnant; all practical methods used to
or three children, and had four to six. Even in the
0 Meloy, Pre-ImplantationF ertility Control and The
United States approximately 50 million people
Abortion Laws, 41 CHI.-KENT L. REv. 183, 185 (1964).
are living at the poverty or near poverty level. See generally SEGAL, SOUTHAM & SHFER (eds.),
Of these, 22 million are children, nearly one-third INTRAUTERINE CONTRACEPTION, PROCEEDINGS OF =x
of the nation's youth. °2 Unless inexpensive and SMEeCdOiNcaD, InItNerTnEaRtNioAnTaIlO NCAoLn gresCs OSNe rEieRsE NNCo.E 86, (1E9x65e)r.pta
effective methods of birth control are developed I ClinicalR esearch Calms Fears, Raises Hopes About
Intrauterine Contraceptive Devices, 188 J.A.M.A. MED.
term. Rosen, Psychiatric Implications of Abortion, A NEws No. 10, at 40 (1964).
Case Study in Social Hypocrisy, in ABORTION AND THE 105 Bengstson & Mouvad, The Effect of the Lippes
LAW 72, 81. Loop on Human Myometrial Activity, 98 AMxJ.. OBSTET-
92T he National Observer, May 30, 1966, at 3, col. 1. xzcs & GYNECOLOGY 957, 964 (1967).
10G0a mpell, Legal Status of Therapeutic Abortion and 106 Panchalingham, Is the Contraceptive Intrauterine
Sterilization in the United States, 7 CLrx. OBSTERCS Device an Abortifacient?, 1 LANCET 1391 (June 1965).
& GYNEco.oGY 22, 27 (1964). But see Sammour, Combined Histolic and Cytologic
01M ODEL PENAL CODE §207.11, Comment at 151 Study of Intrauterine Contraception, 98 Ar. J. OBsTET-
(Tent. Draft No. 9, 1959). xxcs & GYNECOLoGY 946 (1967).
1 NATIONAL HEALTH EDUCATION COMMrTTEE, WHAT "'BENSON, HANDBOOK OF OBSTETRICS & GYNE-
ARE THE FACTS ABOUT THE POPULATION CRISIS? (1966). coLoGY 53 (1964).
1969] ABORTION LAW REFORMS
determine early pregnancy require the physio- Ninety-three per cent of all New York City [ther-
logical state present after implantation.'1' How- apeutic abortions] .. in the last few years were
performed on white patients, almost all in private
ever, prosecution is still possible under abortion-
rooms at voluntary hospitals, who could enlist
related statutes which prohibit the advertisement,
the aid of prominent doctors to support their
manufacture, transportation, distribution, and applications. Only 7 per cent went to Negroes,
sale of abortifacients.1'9 Puerto Ricans, and others116
Swedish scientists have recently developed a
"morning after" pill which would cause a woman Most legal abortions are justified on psychiatric
to menstruate even if conception had taken placeY0 grounds.' 7 While wealthier women can afford the
Use of this pill also would be illegal. One should services of a psychiatrist who will report that the
seriously question the wisdom of laws which pregnancy poses a serious threat to the woman's
permit the manufacture and use of a pink con- life, the cost of such opinions are beyond the
traceptive pill, but penalize the manufacture and means of most women.' Surely, however, the
use of a green contranidation pill, when both are wealthy do not need abortions more than the poor.
Ingested by women in identical fashion. A simple The results of this economic discrimination are
distinction between abortion during early preg- reflected in the grim statistics on abortion mor-
nancy and contraception is no longer possible, tality. In New York, twice as many deaths caused
but present laws fail to recognize this."' by abortion occur among nonwhites as among
2. Economic Discrimination. The difference whites.1 9 In California, women from low income
between an illegal and a therapeutic abortion is backgrounds are the most frequent fatalities
$300 and knowing the right person."2 Any woman from improper abortions.120 This double standard,
with sufficient funds can have her pregnancy safely nurtured by present statutes, is incompatible
terminated. A round trip flight from Chicago to with any notion of justice.'1' It reflects poorly
Japan, where abortions have been legal since on the law's concern with the welfare of disad-
1948, costs $953.00. In Japan, more than eight vantaged citizens at a time when millions of
thousand physicians are licensed to perform the dollars are being spent to equalize the medical
operation, which costs between $3 and $10. The care available to all people in this country.
woman can have the operation performed by a 3. Miscellaneous Problems. Unwanted preg-
recognized gynecologist, and stay in the hospital nancies cause certain problems which are difficult
for one to three days for $100 to $150."' An esti- to categorize. Almost 300,000 illegitimate births
mated ten thousand women also fly to San Juan, occur in the United States each year, and the
Puerto Rico, where abortions are illegal, but number continues to increase. Undoubtedly,
readily available."4 American abortion applicants many of the women did not want their preg-
in Sweden uniformly come from upper economic nancies. The babies frequently become partial
and educated classes."' In the United States, the wards of the state, supported by welfare.'22 Adop-
private, rather than the ward, patient is far more tion is no solution. The majority of these infants
likely to obtain a hospital-approved abortion. are nonwhite, and prospects for adoption of
Negro children are dim.' Also, many women,
10sT he commonly used Ascheim-Zondeck, Friedman,
ML ader, supra note 36, at 59.
American male frog and other endocrine pregnancy
WS ee Guttmacher, supra note 71.
tests are ineffective until development of chorionic
tissue. The chorionic tissue is not developed until im- n8 BoRTioN IN Tim UNITED STATEs 101; Williams,
plantation, and the tests often are not positive until Euthanasia and Abortion, 38 U. CoLo. L. REv. 178,
about three weeks after implantation. WnLrrms, 187 (1966).
OBSTzmzcs 273 (12th ed. 1961). 11- Gold, et al., supra note 46, at 965.
102M eloy, supra note 103, at 187-92. Note, 46 ORE. 2"2'T0F oo x,a rsguuper at nhoatte 4th5e, a"ti l6le4g5a.lity" of abortions ac-
L. REv. 211 (1967).
ol.1 110S .an Francisco Examiner, Dec. 20, 1967, at 21, qpuriiareted bigyn orriecsh ptehoep lfea cretsn.d eErsa cthh e ysetaart,e mtheonut siannadpsp roo-f
m Illinois Abortion Law Should Be Repealed, pam- abortions which are performed because the pregnant
phlet distributed by the I.C.M.C.A., 5638 S. Woodlawn woman had contracted German measles are, openly
Ave., Chicago, Illinois 60637. recorded in hospital records throughout the United
m ABORTION IN TE UNITED SrATEs 121. States. (Personal communication from Christopher
"'Star, The Growing Tragedy of Illegal Abortion, Tietze). Although these operations may be technically
Loox MAGAzIm 149,153 (Oct. 19,1965). illegal, there is no threat of prosecution.
"' Id. at 154. " Illegitimacy in the U.S.-It's on the Rise, U.S.
usRapoport, American Abortion Applicants in News & World Report 87 (July 18, 1966).
Sweden, 13 AcEmvEs oF GEN. PsYcHIATRY 24 (1965). n'See Grove, Children Without Homes: the Adoption