The Historical Appropriateness of the Human Life Bill

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The Historical Appropriateness of the Human Life Bill (S. 158):

Evidence From the History of Anti-Abortion Policy in the United States

W. H. Marshner

BEFORE THE SUBCOMMITTEE ON THE SEPARATION OF POWERS OF THE SENATE COMMITTEE ON THE JUDICIARY
June 1, 1981

The Human Life Bill (S. 158) will be historically appropriate legislation if three claims can be established: (1) that scientific evidence indicating a significant likelihood that actual human life exists from conception was known to physicians and state legislators from the middle decades of the 19th century forward; (2) that the passage of anti-abortion statutes by those legislators in those decades was significantly influenced and motivated by such evidence; and (3) that the medico-moral and legal climate in which the 14th amendment was ratified was therefore a climate in which it was a settled conviction that the unborn human foetus, at every stage of gestation, was a human being entitled to protection of life, and hence a climate in which absolutely no conflicting right having the character of a privacy right of a woman to abort was conceded to exist by any court or any legislature, state or federal, in this country or in any Western nation.

As is well known, these three claims are fully supported by what I shall call the “standard history” of anti-abortion legislation.[1] The standard history begins with the origins of our civilization in the Judaeo-Christian moral tradition. It recognizes a commitment to the protection of foetal life and a condemnation of abortion as distinguishing characteristics of that tradition, in deliberate and studied contrast to ancient pagan practices.[2] It notes the passage of these moral attitudes into canon law[3] and into the civil laws of medieval Christendom.[4] The standard history observes that the severity of punishment in both sorts of law for the abortion offense depended on a philosophical distinction between the animated and pre-animated foetus, a distinction maintained in large part on the basis of inadequate biology.[5] This history further observes that the extent of civil protection of foetal life was limited by evidentiary problems stemming from the same ignorance of reproductive biology.[6] The rather elastic and subjective test of quickening (sensation of the child’s movement in the womb) had to serve both as the indicator of pregnancy and as the indicator of the human life of the child.[7] Hence the great project of Western man to protect unborn life through the criminal prosecution of abortion, though never abandoned in principle, was doomed to be thwarted often in practice, until better science should equip the law with better arms. Such was the impasse in the English common law, during the centuries when these colonies were formed and achieved their independence.[8] The standard history then explores the several medical advances which, beginning in the last decades of the 17th century, first undermined the importance of “quickening” in the eyes of savants and then established the existence of a distinct living being from conception, through the discovery of the ovum in 1827 and other aspects of the fertilization process.[9] As the new knowledge disseminated among American physicians and, through them, among the general public in the 1850s and ’60s, the legislatures of the several states were galvanized to pass tougher anti-abortion laws, which protected the foetus at every stage of gestation.[10] No less than 30 states and territories passed such laws in the years between 1854 and 1876.[11] In other words, the same states which ratified the 14th amendment were busy passing anti-abortion bills explicitly designed to protect human beings in their foetal right to life. The Congressional sponsors of the 14th amendment explicitly stated that it applied to “any human being”[12] and to every member of the human race.[13] Therefore to hold, or to deem, that the unborn, at every stage of gestation, are among those protected by the 14th amendment from state action depriving them of life without due process of law, is eminently plausible on historical grounds.[14] And to hold, with the Blackmun Court, that the 14th amendment not only must not include the unborn but even creates a privacy right to abort them, in the teeth of all state statutes contemporary with the amendment, is historically absurd.[15] Thus far the standard history.

As I have mentioned, so long as the standard history holds up, the three claims necessary and sufficient to establish the historical appropriateness of S. 158 also hold up. The purpose of the present testimony, therefore, is to evaluate a challenge to the standard history.

The challenge takes the form of a revisionist history of anti-abortion legislation.[16] The revisionist picture largely ignores the moral and canonical traditions, concentrating instead on the criminal laws. It holds that certain 14th century precedents in English common law (subsequently misused by Coke) established in fact a woman’s liberty to abort, at least in the early months of pregnancy.[17] American women inherited and enjoyed this common-law right, until it was taken away from them, in the last third of the 19th century, by an anomalous set of circumstances. Exactly what these circumstances were varies somewhat from revisionist to revisionist.

According to some, what triggered the end of the liberty was a rising incidence of abortion-related maternal deaths. The abortifacient pills and decoctions of the mid-19th century were often dangerous, especially in large doses, and the surgical procedures, innocent of antisepsis, would easily cause infection. Hence the original and controlling motivation for anti-abortion legislation was state concern to protect women’s health.[18] With the emergence of safe, modern abortion techniques, this state interest collapses, of course, and along with it, the constitutionality of statutes abridging the common law right to terminate early pregnancy.

According to another school, what put an end to this right (temporarily) was a combination of two factors. First, in the 1840s abortion ceased to be a relatively uncommon thing (the resort of unmarried women desperate to preserve their reputations) and became instead a common way for middle- and upper-class Protestant house-wives to control their family size.[19] This sudden upsurge in feminine demand met with an equal upsurge of medical supply, but — and here was the rub — the supply did not come from the nation’s regular physicians. These men, the graduates of reputable medical schools, bound by the Hippocratic Oath and influenced by the mounting scientific evidence against quickening, refused to prescribe abortifacients as such and so were losing a steady stream of patients (not to mention a lucrative source of income) to “irregular” physicians or quacks.[20]

Now enters the second factor. These “irregulars” (eclectics, botanics, homoeopaths and charlatans) could not be put out of business by licensing restrictions, because licensing did not exist in the laissez-faire medical market of mid-century America. Moreover, the high standing of the “regulars” among learned folk did not extend to the masses. In the popular mind, there was little to choose between regulars and irregulars because, frankly, until the discovery of the connexion between disease and bacteria in the 1860s, the regulars could cure little more than the quacks.[21] Therefore, in order to defend their position in society, the regular physicians espoused the anti-abortion cause as the best way of putting their competition out of business. Soon after the founding of the AMA in 1847, the regulars began in earnest to lobby the state legislatures, often using the nativist argument that abortion was depleting the ranks of the old, Anglo-Protestant stock.[22] Hence, according to this school of revisionism, the anti-abortion statutes of the 1860s to ’80s arose out of a combination of nativist depopulation scare with the AMA’s struggle to consolidate its power over American medical practice.[23] Today, since the AMA has won its struggle, and since the demand for abortion has risen again, everyone’s interests are served by voiding the statutes, restoring the right to abort, and allowing the AMA to reap the profits.

Both forms of revisionism challenge the standard history (1) by replacing the protection of unborn life with other, more transient motives for the rise of American abortion statutes, and (2) by positing a primordial, common law liberty of abortion, which the Supreme Court could plausibly reinvigorate, when the transient motives lost their point. And since these transient motives have nothing to do with the aims of the 14th amendment, nor with the determination of when a human life begins, the revisionist history makes S. 158 appear to contain an idea new to serious legislative history, a kind of new foundation for anti-abortion policy.

I shall now argue that the revisionist challenge, although it offers a number of interesting and valuable sidelights on the 19th century struggle, fails to dislodge the standard history.

I begin with the contention that state concern to protect maternal health, rather than to protect unborn life, was the original and controlling motive for anti-abortion statutes. The contention is based primarily on a section of the New York Revised Statutes of 1829 and on an 1858 New Jersey decision, State v. Murphy. Indeed, apart from these two loci, the contention has no basis whatsoever.

The New York law of 1829 had two anti-abortion sections. The first (N.Y. Rev. Stat. (1829) pt. IV, ch. 1, tit. 2, section 9) concerned abortion attempted on “any woman pregnant with a quick child” and provided that such action was second degree manslaughter in case either the child or the mother died. The intent to protect foetal life is already clear, and it becomes clearer in the light of the exception clause: “unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose.” The clause is quite stringent, requiring objective necessity or medical judgments of objective necessity of the procedure to avoid the mother’s death.

A mere threat to her health created no exception at all, no matter how many physicians perceived that threat. If maternal health had been the primary issue, the exception would surely have been made for a reasonable appearance or supposition of necessity, or simply for the advice of two physicians, regardless of whether they advised abortion for life or health-saving reasons. As Robert Byrn has commented, the stringent exception clause can only mean that “The child’s life was considered so precious, that in the view of the legislature, it could not be sacrificed to a lesser value than life itself.”[24]

The second anti-abortion section (ibid. tit. 6, section 21) provided a jail term and/or a fine for all other abortional acts (i.e. before quickening), whether successful or not. It is this section on which the revisionists seize, because it is thought to resemble a poison-control law. But this section also carries an exception clause, and, astonishingly enough from the point of view of maternal health, it is the same stringent exception as in the section previously discussed. If, despite the fact that the foetus was unquickened and therefore had no common-law standing, his offering an appearance of danger to his mother’s life was not deemed sufficient grounds for an exception, the section as a whole can hardly be interpreted to have maternal health as its primary concern.[25]

The New Jersey case, State v. Murphy, arose under an 1849 statute which made all attempted abortions criminal, made it a crime to offer advice or directions for performing an abortion, and provided penalties in case the woman died. Against revisionist interpretation, the point of the statute itself and of a famous comment on it in Murphy[26] is not primarily to address maternal health but to remedy a defect of the common law, whereby the guilt of the defendent depended wholly upon the relation of his act to the child, irrespective of the consequences to the mother. New Jersey wanted to add additional penalties in case of maternal death, so as to hang that around the abortionist’s neck as well.

Finally, if we look at other states, or other dates, the maternal health contention is contradicted by abundant facts. In 1851, the Maine Supreme Court applauded the elimination of quickening from a statute: “There is a removal of the unsubstantial distinction, that it is no offense to procure an abortion, before the mother becomes sensible of the motion of the child, notwithstanding it is then capable of inheriting an estate; and immediately afterwards it is a great misdemeanor.”[27] In 1881, the New Jersey Supreme Court wrote of the law already discussed: “This law was further extended March 26th, 1872 … to protect the life of the child also, and inflict the same punishment in case of its death, as if the mother should die.”[28] In 1916 an Alabama court asked: “Does not the new being, from the first day of its uterine life, acquire a legal and moral status that entitles it to the same protection as that guaranteed to human beings in extrauterine life?”[29] These statements, and there are many more like them, flatly contradict the revisionist claim of Roe v. Wade that “the few state courts called upon to interpret their laws 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 or foetus.”[30]

I now pass on to the contention that the AMA promoted anti-abortion legislation in its own, professional interest, as a means of eliminating its competition.

I note first that the public reasons, published all over the country in the 1840s to ’70s, for which the AMA advocated abortion legislation, were clearly, directly and unequivocally centered on the moral duty to stop the slaughter of unborn children, from conception forward. These reasons were frankly noted even in Roe v. Wade.[31]

Therefore the medical self-interest contention is merely a complement to the standard history, not a challenge to it, unless the revisionists also contend that the AMA’s publicized reasons were hypocritical or insincerely professed. This last contention is not in fact made, however; it has even been denied by a prominent revisionist historian.[32] Therefore we have at most a situation in which sincere scientific and moral conviction coincided with self-interest, hardly a rare state of affairs in any epoch, and hardly a challenge to the standard history.

Secondly, I note that even this harmless coincidence cannot really be sustained, given the logic of the AMA’s alleged situation. The regulars sought to consolidate power in the medical

market, we are told, through the legislatures. Why? Because they were losing position and losing patients to the quacks, we are told. Why were they losing patients to the quacks? Because they couldn’t compete with them for the abortion business, we are told. But why couldn’t they compete? To this question there is no revisionist answer; there is only a standard-historical answer. They couldn’t compete because they believed it would be scientifically unwarranted and morally bankrupt to do so. At the bottom of the so-called self-interest of the AMA lay nothing but the very same moral principle which lay on the top of its public rhetoric.

I turn, finally, to the contention that a common law right to early abortion had existed for some centuries prior to the “recent era” of abortion proscription.

On one level, this contention is quickly disposed of. It is based on a mishandling by the revisionists of certain 14th century cases, later cited by Coke. Both cases involved indictment of a man for causing an abortion; the outcome of the first case, and even the nature of the surviving report of it, are confused and controversial; the outcome of the second case is clear: the indictment was dismissed (a) because of a defect in pleading and (b) because it was impossible to prove that the man had actually killed the child.[33] Revisionists conclude that abortion was not a crime in 14th century England. But the cases prove the contrary on their face. The second case was not dismissed on the ground that abortion was not a common law crime, but for other reasons. Transparently, if abortion had not been a common law crime, there would have been no indictment in the first place.[34] The distinction between a thing’s not being a crime and its being a crime for which hardly anyone is ever convicted is neither fine nor fuzzy; it is straightforward and clear. For the difficulty, the rarity, indeed the virtual non-existence of successful prosecution for what is nevertheless a recognized crime does not create a liberty or a right to do that crime. Else there was, until almost the day before yesterday, a right to child and spouse abuse. Revisionist talk of a common law “right” to abortion is historically untenable and conceptually disingenuous.

More deeply, however, what flaws the celebration of a long-lost right is its ahistoricality, where ideas and beliefs are concerned. Talk of a pre-scientific right to abortion takes a modern term, ‘abortion,’ which means the intentional termination of pregnancy, indeed, the intentional expulsion of a living fetus, and projects that term back into a time when what was often happening was no more than the de facto termination of pregnancy by some intentional act, a time when women did not even know they were pregnant, when they took potions to “release stopped menses,” on the advice of physicians who distinguished sharply between that therapeutic intent and the intent to abort, a time when the unborn child was not even known to be a living entity before the fifth month, so that our distinction between abortion and contraception was very imperfectly understood.

Above all, the revisionist picture leaves out of focus the genuine problem of the law in its relation to scientific progress. We now know what no farmer knew twenty years ago about the effects of DDT. Would we hail a Supreme Court decision striking down all federal and state measures banning the use of DDT? Would we hail it as a restoration of a farmer’s “historic common law right” to use the pesticide of his choice?

Conclusion: the revisionist history of the rise of anti-abortion legislation in the U.S. fails to refute or displace the standard history, and that history speaks loudly in favor of S. 158.

  1. Extended presentations of the standard history include Robert M. Byrn, “An American Tragedy: The Supreme Court on Abortion,” Fordham Law Review 41 (1973) 807-849); Germain Grisez, Abortion: The Myths, the Realities, and the Arguments (New York: Corpus, 1970) chapters 4 and 5; John T. Noonan, Jr., Contraception (Harvard, 1965) and “An Almost Absolute Value in History,” in John T. Noonan, ed., The Morality of Abortion (Harvard, 1970) pp. 1-59; the same standard view is presented in innumerable judicial opinions cited in these works. ↑

  2. Exodus 21:22 (LXX); Galatians 5:20; Didache 2:2; Clement of Alexandria, Paedagogus 2.10; Athenagoras, Embassy for the Christians 35; Tertullian, Apologeticum 1,15; Jerome, Epistle 22; Augustine, De nuptiis et concupiscentia 1.15.17; John Chrysostom, Homily 24 on the Epistle to the Romans; etc. ↑

  3. Council of Ancyra, canon 21 (314 A.D.); Council of Elvira, canon 53 (305 A.D.); Gratian, Decretum 2.32.2.7 (= the canon Aliquando); Pope Gregory IX, Decretales 5.12.5 (= the canon Si aliquis) and 5.12.20 (= the canon Sicut ex). ↑

  4. Grisez cites provisions of the Visigothic code, Frankish law, and Anglo-Saxon law prior to the Norman conquest, op.cit., p. 186; the criminality of abortion in the English common law in the high Middle Ages is reflected in the well-known comments of Bracton and Fleta; see Byrn, op.cit., p. 816f. ↑

  5. A full discussion of the Scholastic positions on animation and “formation,” as well as the moral and canonical applications of these positions is found in the article, “Animation,” in the Dictionnaire de Theologie Catholique I, 2, s.v. ↑

  6. Byrn, op.cit., pp. 817-827. ↑

  7. 7Coke, Third Institute 50 (1644); William Blackstone, Commentaries 1 at *129-30, and 4 at *198; Byrn, loc.cit. ↑

  8. The same impasse is reflected in an 1812 Massachusetts Supreme Court decision, Commonwealth v. Bangs, which remained influential until the 1850s. ↑

  9. Fienus and Harvey had already made observations which cast doubt on the discontinuity alleged to occur at “quickening”; on the discovery of the ovum, see Byrn, op.cit., p. 825. In the United States, the accumulating medical evidence against the quickening test was effectively presented by John B. Beck, “Infanticide,” in T. R. Beck, ed., Elements of Medical Jurisprudence, 5th edition (Albany, 1835). Thirty years later, a more complete case was made in the seminal works of the Harvard medical professor, Horatio R. Storer. In 1868 Storer collaborated with F. F. Heard to produce the classic treatise, Criminal Abortion: Its Nature, Its Evidence, and Its Law (Boston: Little, Brown & Co.). ↑

  10. The tighter protection was accomplished by dropping references to “quickening” and by wording the statutes in such a way that, in most cases, pregnancy did not have to be proved; attempted abortion or abortifacient action was itself the crime. As to determining what was abortifacient, the progress of the law was helped, paradoxically, by the commercial standardization of abortive pills, potions and procedures in the 1840s. ↑

  11. 11A detailed survey of these statutes is given in James Co Mohr, Abortion in America (Oxford, 1978), chapters 5 and 8. ↑

  12. Rep. John A. Bingham, Cong. Globe, 39th Congress, 1st session (1866), p. 1089. ↑

  13. Sen. Jacob Howard, ibid., p. 2766. ↑

  14. Grisez, op.cit., pp. 410-423; Byrn, op.cit., pp. 835-9. ↑

  15. Byrn, loc. cit. ↑

  16. The foremost revisionists are Cyril C. Means, Jr., “The Law of New York concerning Abortion and the Status of the Fetus, 1664- 1968: A Case of Cessation of Constitutionality,” New York Law Forum XIV, no. 3 (Fall, 1968) and “The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Rise from the Nineteenth Century Legislative Ashes of a Fourteenth Century Common Law Liberty?” ibid. XVII (1971); James C. Mohr, Abortion in America, cited above, note 11; and of course Justice Balckmun himself, Roe v. Wade in United States Reports, vol. 410, pp. 113ff. ↑

  17. Means, “The Phoenix,” p. 335; cited with approval in Roe v. Wade, p. 135. Mohr seems to agree, speaking passim of early abortion as a “common law right.” E.g., in the context of American abortion statutes before 1840, Mohr observes: “the right to attempt an abortion prior to quickening, though challenged in a few states, remained essentially intact…” op.cit., p. 119. ↑

  18. Thus Means, “The Law of New York,” and Roe v. Wade, p. 151. ↑

  19. Mohr, op.cit., chapter 4. ↑

  20. Ibid., chapters 3, 5, and 6. ↑

  21. Ibid., pp. 32-34. ↑

  22. Ibid., pp. 166-7. ↑

  23. Mohr’s thesis is most succinctly stated on p. 258. ↑

  24. Byrn, op.cit., p. 831. ↑

  25. For further remarks, see Byrn, loc.cit. ↑

  26. Andrew Dutcher, reporter, Reports of Cases Argued and Determined in the Supreme Court and the Court of Errors and Appeals of the State of New Jersey (Trenton, 1859), III, p. 114. The comment is quoted in Mohr, op.cit., p. 137. ↑

  27. Smith v. State, 33 Me. 48, 57 (1851); cited in Byrn, op. cit. p. 829. ↑

  28. State v. Gedicke 43 N.J.L. 86, 90 (Sup. Ct. 1881); cited in Byrn, op.cit. p. 828. ↑

  29. Trent v. State, 15 Ala. App. 485, 488, 73 So. 834, 836 (1916). ↑

  30. Roe v. Wade, p. 151. ↑

  31. Ibid. pp. 141-142. ↑

  32. Mohr, op.cit., pp. 164-66. ↑

  33. Means, “The Phoenix,” pp. 336-341; Byrn, op.cit., pp. 816f. ↑

  34. Byrn, loc.cit. ↑

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