Abortion Statutes of the 19th & 20th Centuries
http://www.missourilife.org/law/preroe.htm
During the first decades of the 1800's, scientists began to understand the cellular basis of life and for the first time were able to observe the process of fertilization in mammals. As the stages of development became clear, it also became clear that abortion kills a living human being, no matter what the stage of the child's development. The resulting scientific knowledge about the process of conception and development led to efforts to enact stronger bans on abortion. In addition, scientific progress allowed for surgical means of performing abortion, and abortion was perceived to be on the increase. Beginning in 1859, the American Medical Association called for strong anti-abortion laws and vigorous enforcement of them. In view of the claim by twentieth century abortionists that physicians did this only to protect their own profession or solely to protect women's health, it is useful to quote the doctors themselves on why they wanted action by the states:
The first of these causes is a wide-spread popular ignorance of the true character of the crime--a belief, even among mothers themselves, that the foetus is not alive till after the period of quickening.
The second of the agents alluded to is the fact that the profession themselves are frequently supposed careless of fetal life; . . .
The third reason of the frightful extent of this crime is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being.
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In accordance, therefore, with the facts in the case, the Committee would advise that this body, representing, as it does, the physicians of the land, publicly express its abhorrence of the unnatural and now rapidly increasing crime of abortion; that it avow its true nature, as no simple offence against public morality and decency, no mere misdemeanor, no attempt upon the life of the mother, but the wanton and murderous destruction of her child; . . .13
The AMA adopted the recommendation described above and sponsored initiatives in all states, spurring most legislatures to enact strong prohibitions upon abortion that swept away the "quickening" distinction.14 In the remaining states, abortion remained prohibited by common law. In no state was abortion legal in the nineteenth century or for most of the twentieth century, except to save the life of the mother.15
In the 1960's, calls for loosening abortion restrictions began. In the five years from 1967 through 1972, thirteen states adopted a model statute proposed by the American Law Institute which allowed abortions for certain limited periods upon the certification of doctors that abortion was medically necessary.16 In four states, statutes were enacted which allowed abortion for any reason but only until a certain point in the pregnancy.17 New York's 1970 law was considered the most radical of these because it allowed abortion for almost any reason through the 24th week of the child's development. In 1972, the New York Legislature tried to repeal the law, but the repeal was vetoed by Governor Nelson Rockefeller.18 After New York enacted its law, the drive for loose abortion laws sputtered. Such laws were rejected by over 30 state legislatures and approved in only one more, Florida. In the fall of 1972, just less than three months before the Roe v. Wade decision, the people of two states, North Dakota and Michigan, rejected ballot measures for looser abortion laws by majorities of 77% and 61% respectively.19 Efforts to loosen abortion laws may have continued had the U. S. Supreme Court not interfered with the democratic process in 1973, but the momentum had passed to the pro-life opponents of such laws.
In accord with the spirit of the 1960's, pro-abortionists sought to have the courts change social policy when legislatures would not change it fast enough to suit them. Lawsuits were filed to declare existing abortion laws unconstitutional.20 Two of these lawsuits culminated in the 1973 U. S. Supreme Court decisions, Roe v. Wade and Doe v. Bolton. Together, those two decisions decreed the abortion laws of all 50 states unconstitutional, including the new laws described above, because they did not allow abortion through all nine months of pregnancy if a physician was willing to do the procedure.
What this means is that before Roe v. Wade in 1973, the legality of abortion in the U. S. essentially rested with the legislatures of the several states. However, in 1973, the United States Supreme Court held that abortion was a constitutional right. This ruling turned abortion into an issue of federal constitutional law, the contours of which could only be determined by lawsuit after lawsuit. From then on, the law of abortion depended on the decisions of federal courts in lawsuits brought by abortionists and their defenders.
The abortions decisions of the Supreme Court and lower federal courts are summarized in the article, "Current Law of Abortion." In order to understand the cases, readers who are not lawyers may want to review the process of constitutional adjudication on the page, "General Background of Abortion Lawsuits."