LEGAL STATUS OF ABORTION THROUGHOUT AMERICAN HISTORY

Legal abortion has been part of American life for much of the nation’s history. Under English common law, the cornerstone of American jurisprudence, abortions performed prior to “quickening” (the first perceptible fetal movement, which usually occurs after the fourth month of pregnancy) were not criminal offenses. With no state enacting specific legislation during nearly the first third of the nation’s history, this traditional principle prevailed. The medical literature of the day, both popular and professional, included frequent references to methods of abortion.

In the mid-1800s, Massachusetts enacted the first state law making abortion or attempted abortion at any point in pregnancy a criminal offense. By the turn of the century, almost all states had followed suit. In the early 1960s, only Pennsylvania prohibited all abortions, but 44 other states only allowed abortion when the woman’s life would be endangered if she carried the pregnancy to term. Alabama, Colorado, New Mexico, Massachusetts and the District of Columbia permitted abortion if the life or physical health of the woman was in jeopardy; Mississippi allowed abortions in case of life endangerment or rape.

Violating these laws could have serious legal consequences, not only for the provider but potentially for others as well. In nine states, the laws considered it a criminal offense to aid, assist, abet or counsel a woman in obtaining an illegal abortion. Fourteen states explicitly made obtaining an abortion, as well as performing one, a crime. Women were rarely convicted for having an abortion; instead, the threat of prosecution often was used to encourage them to testify against the provider.

One of the first national calls for a change in abortion law came in 1962 from the American Law Institute (ALI)—a prestigious panel of lawyers, scholars and jurists that develops model statutes on a range of topics—with the publication of its “Model Penal Code on Abortion,” which called for abortion to be legal when the pregnant woman’s life or health would be at risk if the pregnancy were carried to term, when the pregnancy resulted from rape or incest, or when the fetus had a severe defect.

In 1967, Colorado became the first state to reform its abortion law based on the ALI recommendation. The new Colorado statute permitted abortions if the pregnant woman’s life or physical or mental health were endangered, if the fetus would be born with a severe physical or mental defect, or if the pregnancy had resulted from rape or incest. Other states began to follow suit, and by 1972, 13 states had so-called ALI statutes. Meanwhile, four states repealed their antiabortion laws completely, substituting statutes permitting abortions that were judged to be necessary by a woman and her physician (see map). By 1973, when the Supreme Court handed down its decision in Roe, abortion reform legislation had been introduced in all but five states.

State Abortion Laws Before Roe
Note: Status of state laws in 1972. Source:Rachel Benson Gold, Abortion and Women’s Health: A Turning Point for America?, The Alan Guttmacher Institute, New York, 1990

Gutttmacher.org