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FEATURE | spring 2002

Never Again: Death, Politics and Abortion (1973)

Ms. Spring 2002

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Gerri Santoro

This woman was the victim of a criminal abortion. Her body was photographed exactly as it was found by police in a bloody and barren motel room; exactly as it had been abandoned there by an unskilled abortionist. Becoming frightened when "something went wrong," he left her to die alone.

The photograph is just one bit of evidence in the files of the Connecticut medical examiner who determined the technical cause of her death: an air embolism resulting from the unskilled surgical procedure. But this visible evidence of butchery has come to symbolize far more than an individual case with an individual cause.

Because various abortion-law repeal and reform groups have used this photograph as one answer to the magnified fetus photographs so often displayed by antiabortion forces, this individual woman has come to represent the thousands of women who have been maimed or murdered by a society that denied them safe and legal abortions.

In January, the Supreme Court partially rewarded the long and courageous fight for women's right to choose by ruling that the state laws restricting early abortion were unconstitutional. But the woman in this photograph cannot be brought back to life, nor can the many, many women whose lives have been lost or tragically damaged in the past.

We must not forget. Now that a part of the battle is over, it is important to honor its victims and heroines.

How Abortion Laws Happened...

Until the U.S. Supreme Court decision on January 22, 1973, every state in the union had a history of laws prescribing under what circumstances and conditions abortions could and could not be performed. We were so accustomed to those laws that they seemed to have existed since time immemorial. But the fact is that, until 170 years ago, abortion was a personal and not a legal decision.

1348 The Abortionist's Case helped establish the common law right to terminate a pregnancy at any time. It involved the intentional intrauterine killing of a fetus. The accused was freed on the grounds that no baptismal name was in the indictment and that it could not be proven whether the fetus had been killed by the abortionist or had died of natural causes shortly before he acted. An interesting feature about this case: the justices who refused to regard abortion as criminal were Catholic and were aware that the ecclesiastical courts of the medieval church punished abortion as a spiritual offense. In refusing to make it a secular offense too, they were acknowledging abortion as an individual decision and were maintaining a practical separation of church and state four centuries before that principle was embodied in our own Constitution.

1803 The first restric-tive abortion statute, Lord Ellenborough's Act, was passed by the British Parliament. It forbade the administering of "any deadly poison, or other noxious and destructive substance, with all intention . . . thereby to murder, or thereby to cause or procure the miscarriage of any woman, her being quick with child." An article in an 1832 issue of the London Legal Examiner justified the law on the grounds of protecting women's lives. The reason assigned for the punishment of abortion is not that, thereby an embryo human being is destroyed, but that "it rarely or never can be [e]ffected by drugs without the sacrifice of the mother's life."

1828 American states followed the British example of restricting abortion, ostensibly to protect the woman's life. New York was the first and its abortion law served as a model for many other states. One provision, which was based on common law precedent, authorized the state to destroy certain fetuses under certain circumstances. For instance, a female felon condemned to death could be executed while pregnant if the fetus was not yet quick (moving). If quickening had occurred, usually about the sixteenth week, execution had to be delayed until after delivery of the child. The early distinction between a nonquickened and a quickened fetus is comparable to the modern one between the previable and the viable fetus. Abortion is defined, by both physicians and dictionaries, as the expulsion of a previable fetus.

1858 The New Jersey Supreme Court said of that state's 1849 law: "The design of the statute was not to prevent the procuring of abortions, so much as to guard the health and life of the mother against the consequences of such attempts."

c.1915 The surgical procedures developed by Joseph Lister in the 1860s finally came into common practice in both the operating room and the delivery room: abortion mortality and childbirth mortality began to decline. At some point the two downward curves intersected, and abortion became less dangerous to the woman than childbirth. (Today, properly performed abortions are only one-eighth as dangerous to the pregnant woman's life as childbirth and even less so if performed in the first 12 weeks of pregnancy.) At the point of intersection of those downward curves, the argument that restrictive laws protected the woman's health and life no longer applied. Thus, restrictive abortion laws that had been constitutional when adopted, became unconstitutional by, in effect, forcing women to accept the more dangerous of two procedures.

1962 The Sherri Finkbine case sensitized the public to the need to liberalize abortions laws. Finkbine had taken thalidomide early in pregnancy and had subsequently learned of the possible danger to her fetus from that drug. She arranged for an abortion in Arizona, but local Catholic and fundamentalist clergy forced the hospital to withdraw its permission. She then went to Sweden where an abortion was performed and the fetus was found to be grossly deformed.

1964 A rubella epidemic broke out in the U.S. The damage that rubella could do to a fetus in early pregnancy was then widely understood and many women, primarily those with money and/or influence, demanded and got legal abortions. But tens of thousands were prevented by restrictive laws and out-of-date attitudes from getting abortions. Two other developments of the sixties contributed to the growing abortion-law reform movement. One was the civil rights movement, which highlighted those individual rights that no state could abridge. (To many people, abortion was one of those rights.) The other was the growing honesty and openness about human sexuality. This made it easier to discuss abortion in public as well as in private.

1967 Colorado, California, and North Carolina became the first states to liberalize their abortion laws, along lines suggested by the American Law Institute. The ALI model abortion statute provided, briefly, that abortion be made legal to preserve the woman's life and health (physical or mental), in cases of rape or incest, and in cases where there was reason to believe the fetus might be defective. Thirteen states adopted statutes based on that model.

1970 Legislatures in Hawaii, Alaska, and New York and the electorate in the state of Washington adopted laws that, though varying in detail, essentially made abortion on request possible. This was another step toward the goal of a nationwide policy of reasonably priced, safe, easily available abortion

1973 On January 22, the U.S. Sup- reme Court declared the restrictive Texas and Georgia abortion statutes unconstitutional. In the 7 to 2 decision, the Court overruled all state laws that prohibit or restrict a woman's right to obtain an abortion during the first three months of pregnancy. The Court held that "the right of privacy . . . is broad enough to compass a woman's decision whether or not to terminate her pregnancy." After discussing some of the reasons why a woman might decide to have an abortion, the Court said, "All these factors the woman and her responsible physician necessarily will consider in consultation." The Court held that after the end of the first trimester of pregnancy, the state may have a compelling interest in the health of the mother, because abortion becomes more dangerous at that point. Justice Harry Blackmun, speaking for the Court, declared that "from and after this point, the State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health." Reasonable regulation, according to the Court, may be concerned with such things as the qualifications of the person who performs abortions and the facility where the abortions are performed. In dismissing the contention that the State has a compelling interest in protecting the embryo from conception on, the Court concluded: "In short, the unborn have never been recognized in the law as persons in the whole sense." The State's interest in potential life arises only at viability-which the Court defined as starting from 24 to 28 weeks of gestation. During this final period, the court held: "If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period except when it is necessary to preserve the life or health of the mother."

1976 Trying to undermine Roe v. Wade through regulation, Congress enacted the Hyde Amendment, which cut Medicaid funding for abortions to poor women. In 1977, Rosie Jimenez, a 27-year-old single mother, became the first woman to die of an illegal abortion as a result.

1989 In Webster v. Reproductive Health Services, the Supreme Court upheld a Missouri ban on the use of public employees and facilities for abortions, except in emergencies. This case marked the first time that only four justices voted to uphold Roe in its entirety-Antonin Scalia suggested that it be overturned entirely.

1991 In July, tens of thousands of anti-abortion protesters converged on Wichita, Kansas, for a "Summer of Mercy" in which they blockaded abortion clinics. The siege went on for 46 days and led to 2,700 arrests.

1992 In response to growing anti- abortion violence and the backlash against women, the March for Women's Lives on April 5 drew more than 750,000 pro-choice supporters to Washington, D.C., in one of capital's largest demonstrations.

1993 Dr. David Gunn was shot to death on March 10 outside a Pensacola, Florida, clinic, becoming the first U.S. doctor killed during an anti-abortion demonstration. Michael Griffin was convicted and is serving a life sentence. Since then, seven more abortion clinic staff people have been killed and at least 17 wounded in shootings and bombings. In 2001, a free speech ruling by a federal appeals court allowed the "Nuremberg Files" website to continue publishing a "hit list" of abortion providers.

1994 On May 26, responding to violence against abortion clinics, Bill Clinton signed the Freedom Of Access to Clinic Entrances (FACE) Act which has become an important legal defense against anti-abortion terror.

2000 On September 28, the Food and Drug Administration approved the use of the early-abortion pill RU-486 (mifepristone), already available to women in 13 countries. But the battle continues as abortion opponents in Congress and the Bush administration plan to impose restrictions on the drug.