“Before Roe v. Wade”

Linda Greenhouse and Reva B. Siegel’s Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling suffers from an excess of exegesis. Half again as many primary documents could have been included in the same number of pages if not for the long, often redundant introductory remarks to each entry. It is, never the less, a fascinating snapshot of an era fast dropping out of living (or accurate) memory. Did you know that more Republicans supported abortion decriminalization than Democrats in the late ’60s? More Catholics than Protestants? That there were clergy organizations dedicated to helping women to obtain safe clinical abortions?

This was an era when “the pill” was new and relatively dangerous. When it wasn’t known that 60-80% of fertilized eggs are rejected by the human body. When a woman would be required by her university to withdraw if she became pregnant, and a woman had no recourse to being fired over a pregnancy. When rape of a woman by her spouse did not exist as a legal concept. It was an era when the social status of an unmarried pregnant woman was vastly lower than it is even today.

A variety of voices and arguments came forth, and I’ve included a number of passages that struck me below. What I didn’t find in Before Roe were a variety of arguments from the opposition to decriminalization. Whether this is a result of the editors’ decisions, or an accurate reflection of the intellectual climate I can’t say. All counterarguments presented seemed to rest on one unstated major assumption: That at the moment of fusion the egg and sperm cell become the moral equivalent of an adult human being. Here is the most succinct attempt to argue the assertion I could find in the text:

“….NRLC sees no point in belaboring the scientifically obvious. Life begins at conception and for practical medical purposes can be scientifically verified within 14 days. Within three weeks, at a point much before the ‘quickening’ can be felt by the mother, the fetus manifests a working heart, a nerve system, and a brain different from and independent of the mother in whose womb he resides; the unborn fetus is now a living human being. It is universally agreed that life has begun by the time the mother realizes she is pregnant and asks her doctor to perform an abortion.”

On closer reading, the National Right to Life Committee here gives only a definition. But just as the watchful parent deprives the child of less and less of her liberty as she develops, the transition from cell to human being would seem logically to be a gradient, absent some metaphysical concept of Creation. (Logically to me at least, but it is my web page. And I really am trying to understand.)

The passages follow.

***

“We continue to believe that birth control should not be based upon a lottery system; i.e. if your means of control breaks down you lose, and gain a child. After all, if a couple does not desire a child, that should be that. It is not a game. Children are not meant to be a punishment…”

***

“…Women are the passive objects that somehow must be regulated–thalidomide, rape, incest, what have you, you know. What right have they to say? What right has any man to say to any woman: you must bear this child?”

***

“Seventh, the law violates the First Amendment prohibition against laws establishing a religion. This argument refers partly to the role of the Catholic Church in opposing abortion reform, and partly to the broader issue of imposing by law upon a woman a belief about the nature of life that is not necessarily her own. In his senior paper at N.Y.U. Lucas had written: ‘If a woman believes that life began in the “prehistoric slime” and is not created but only passed along by conception and that a fetus in early development need not be accorded a right to continue growing within her body, she is nonetheless prohibited from acting freely on that belief.'”

***

“In the 1820s, New York’s lawmakers decided to gather the diverse common law provisions into a modern, unified code of law. The commissioners appointed to this task changed the common law regarding abortion, and made abortion before quickening a misdemeanor and abortion [after] quickening a felony, except when necessary to preserve the life of the mother. Means tried to discover why the revisers had changed the common law, and he thinks he has found the reason in a section of the proposed revisions that the Legislature did not adopt: a prohibition against all surgery, unless necessary to save the patient’s life.

Based on New York hospital records of those day, before the era of antiseptic surgery, about 30 percent of all serious operations, including abortion, resulted in death. During the same period, the death rate from childbirth was about 2 percent.

…In the United States, the maternal mortality rate, excluding deaths from abortion, is about 23 per 100,000, making abortion statistically almost 8 times safer than a term pregnancy instead of 15 times more dangerous.”

***

“Illegal abortions are the single largest cause of maternal death in the United States. The tragedy is compounded by the fact that virtually no deaths result when an abortion is conducted in accordance with proper medical procedures. Tietze and Lewit, in the January 1969 Scientific American state that hundreds of thousands of illegal abortions are done each year. Many authorities believe, however, that the figure should be a million to a million-and-a-half.

Most abortions are done on unwed girls or women who are married and who already have at least one child. It is generally believed that one out of every five pregnancies ends in abortion; that one out of every five women will have an abortion by the time she is 45. Most of the forty-one women who died in New York City as a result of illegal abortions during the last two years were married and left children behind….”

***

“Under the distinguished leadership of retired Court of Appeals Judge Charles W. Froessel, the select committee found that the then existing, 19th-century, near-total prohibition against abortion was fostering hundreds of thousands of illegal and dangerous abortions. It was discriminating against women of modest means who could not afford an abortion haven and the often frightened, unwed, confused young women. It was promoting hypocrisy and, ultimately, human tragedy.

I supported the majority recommendations of the Froessel committee throughout the public debate of this issue extending over three years, until the Legislature acted to reform the state’s archaic abortion law. I can see no justification now for repealing this reform and thus condemning hundreds of thousands of women to the dark age once again.”

***

“I am Francis Harwood, Assistant Professor of Anthropology. I live in Middletown, Connecticut. I would like to say that a number of speakers today have stressed the control by women over their own bodies. I would be for this entirely. However, it is often out of our hands. I was assaulted and raped six years ago. I was impregnated at that time. I then had to make a decision. I did not want the child. I did not think I could care for it and so I went and obtained an abortion. I had five hundred dollars in my savings, luckily. For those who don’t, things can get and be much worse. You go, you put the cash on the barrelhead and it is then done, often without any anesthesia. In my case, the abortionist insisted on further intercourse. This is not something a woman should be subjected to….”

***

“The existence of a woman’s constitutional right to such privacy has been set forth by the Supreme Court. Eisenstadt v. Baird (1972); Griswold v. Connecticut (1965). Indeed, Baird may have anticipated the outcome of cases such as this when the Court observed:

‘If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.'”

***

“If the fetus survives the period of gestation, it will be born and then become a person entitled to the legal protections of the Constitution. But its capacity to become such a person does not mean that during gestation it is such a person. The unfertilized ovum also has the capacity to become a living human being, but the Constitution does not endow it with rights which the state may protect by interfering with the individual’s choice of whether the ovum will be fertilized. Griswold.

***

“It is obvious that the legislative decision forbidding abortions also destroys potential life–that of the pregnant woman–just as a legislative decision to permit abortions destroys potential life. The question then becomes not one of destroying or preserving potential, but one of who shall make the decision. Obviously some decisions are best left to a representative process since individual decisions on medical facilities, wars, or the release of a convict would tend toward the chaotic. It is our contention that the decision on abortion is exactly the opposite. A representative or majority decision making process has led to chaos. Indeed, in the face of two difficult, unresolvable choices–to destroy life potential in either a fetus or its host–the choice can only be left to one of the entities whose potential is threatened.

The above argument is perhaps only another way of stating that when fundamental rights are infringed upon, the State bears the burden of demonstrating a compelling interest for doing so. The question of the life of the fetus versus the woman’s right to choose whether she will be the host for that life is incapable of answer through the legislative fact-finding process. Whether one considers the fetus a human being is a problem of definition rather than fact. Given a decision which cannot be reached on the basis of fact, the State must give way to the individual for it can never bear its burden of demonstrating that facts exist which set up a compelling state interest for denying individual rights.”

***

“A doctor has a direct, personal, substantial interest for his decision may send him to jail. Not only does the State prevent the physician from making an impartial decision about terminating his patient’s pregnancy, it unfairly influences this decision in a shocking way. The State says that only if the physician wrongly decides that the operation is needed to preserve her life is he criminally liable. If he wrongly decided the operation is not needed to preserve her life, he is subject to no criminal penalties. The State of Texas thus requires that all errors in a doctor’s evaluation of his patient’s need for termination of pregnancy be on the side of her death…”

***

“Certain assumptions must be made and constitutionally accepted to find that there is a basis of rationality to the exclusion of the above-mentioned classes of women from the statute’s protection. One is that human-life begins with fertilization of egg by sperm. Another is that this ‘life’ is equivalent to the life of the woman, and the life-saving exception to the abortion law is a rational balancing of interests by the state, analogous to the laws of self-defense.

It is remarkable that the existence of a one-day-old fetus is to be equaled with the life of a grown woman. The woman is–beyond doubt–a human being, one upon whom other human beings (husbands, children, etc.) depend in a variety of ways essential to the sanctity of the family, and whose impaired health may be critically disruptive to that family; or one who may not have consented to sexual intercourse made felonious by the state, yet who is forced to bear the consequences of that same felonious act. This equivalency of interest between a microscopic embryo and the woman who bears it must be assumed in the Texas law, however, since that statute draws no line, such as viability, as the time to invoke the state’s protection.”

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“The religious view that the product of every conception is sacred may not validly be urged by the States as a justification for limiting the exercise of constitutional liberties of all persons to conduct their private lives without unwarranted governmental interference.”

***

“Let us assume, for the time being, that the pregnant woman and the fetus she carried within her body have come before the law as equal ‘persons.’ …[T]he laws prohibiting and regulating abortion, unlike all other laws in respect of persons, compel this pregnant woman to breathe, process food, and donate blood for the sustenance of another human entity, either fully or partially developed. In no other instance does the law give another human–even a fully developed human–a right to life beyond that which the person himself can sustain.”

 “Before Roe v. Wade”

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