Abortion

As Justice Blackmun was to conclude in his opinion in Roe v. Wade, it is doubtful that abortion performed to prevent live birth was ever established as a common law crime, even where a quick fetus was concerned. The law had little to say about abortions performed before quickening. In part, the law's lack of concern for this act was due to the generally held belief that the fetus was not alive before quickening, or at least not independently alive, but was rather a part of the mother's body. As a practical matter, it would have been difficult to detect abortions performed before quickening. In the early weeks of pregnancy, it was very difficult to be sure that a woman was pregnant, and it would have been hard to distinguish between miscarriages and intentional abortions. A few criminal charges of abortion were tried in the American courts, but to convict on charges of abortion, it was necessary to prove not only that the woman was pregnant, but that the child was quick. It was very difficult, if not impossible, to prove either situation in court.

Although the law was largely indifferent to abortion, it was widely used in early America as a method of family limitation. According to historian James C. Mohr, women used a variety of home remedies and potions to cause miscarriage. When folk remedies failed, physicians were capable of terminating unwanted pregnancies and successfully used techniques that were not unduly dangerous by eighteenth- and nineteenth-century standards. Pregnancy and abortion were both dangerous. Throughout the period before the Civil War, abortion was advertised freely in newspapers, especially in the larger cities. Government was not particularly concerned about the practice.

Although the British Parliament passed a statute forbidding abortion in 1803, at that time America had no legislation whatsoever on the subject of abortion. A few state legislatures passed abortion statutes between 1821 and 1841; Connecticut passed the first such statute in 1821, followed by Missouri in 1825, Illinois in 1827, and New York in 1828. The early statutes were not primarily designed to make abortion a crime; they were aimed at unsafe practices, poisonous remedies, and criminally incompetent practitioners. A legal scholar investigating New York's early law found, for example, that the lawmakers had originally written the antiabortion provisions as part of a section of the criminal code dealing with the regulation of surgery, designed to prevent reckless and unnecessary operations.

Legislation of this sort was pushed by the better trained, "regular" physicians, who hoped to drive untrained, careless quacks out of medical practice. "Regulars" were often reluctant to perform abortions for a variety of reasons. Many had moral and ethical objections and subscribed to the Hippocratic oath and its proscription of abortion. Others were aware of the continuity and unity of fetal development and objected to the quickening doctrine with its assumption that the embryo, in early stages of development, was a nonbeing. But some motives were also practical and economic. The practice of medicine in the middle years of the nineteenth century was open to all comers, and many of those offering cures and medical care were untrained. Those doctors who had had formal medical training resented having to compete with abortionists and herb doctors for patients and wanted to see the practice of medicine become respectable, professional, and scientific.