Roe v. Wade, the Constitution, and Back-Alley Abortions

We all use the convenient terms "sunrise" and "sunset", even after learning in school that the sun is actually stationary. It is our planet that spins eastward on its axis in a twenty-four hour rotation, giving the appearance that heavenly bodies travel across the sky.

Likewise, pro-life proponents refer to the "legalization" of abortion in 1973 in the Supreme Court decision of Roe v. Wade, although the statement is misleading.

Roe v. Wade didn't legalize abortion procedures in the United States. Women were already obtaining legal abortions in the early stages of pregnancy in some states, citing rape, incest, danger to their health or damage to the fetus. A few other states had similar exceptions. By 1970, New York, Alaska, Washington, and Hawaii were offering unrestricted abortions.

What DID occur because of the 1973 court decision was a federal mandate forbidding the rest of the states from outlawing abortions during the first twenty-four weeks of pregnancy. It also forced them to allow mental and physical exceptions for abortion during the last twelve weeks of pregnancy, including questionable definitions for mental illness during an unwanted pregnancy (such as depression). Subsequent decisions by the court however, have said that states could not prohibit abortion at any time for any reason.

Although many conservatives want stricter federal abortion laws in the United States, such a measure would be just as unconstitutional as the previous Roe v Wade decision. That's right. What the Supreme Court rendered in 1973 was flagrantly unconstitutional!

I believe this stems from many Americans sadly believing the government grants their rights. Not so!

The main part of the Constitution simply establishes the framework for the federal government and its three parts, defines their respective duties and establishes what the federal government can do and what the states can do.

None of that has anything at all to do with individual rights or with social issues.

The Bill of Rights, which is a set of amendments added after ratification to reassure opponents of the Constitution that the new government would not usurp their rights, simply forbids the new federal government from abusing or abridging already-existing rights. The right to free speech and all the others existed prior to the Constitution and the Bill of Rights. The language of the First Amendment tells what the intent was: "Congress shall pass no law." Only the new federal government had a Congress.

The Second Amendment does not grant people the right to keep and bear arms. They already had and continue to have that right. It simply says the already-existing right cannot be abridged. You can't abridge something that doesn't exist. (Charley Reese, We are Revolutionaries) 

 If you believe that your rights come from your government, then you must also concede that the government can take them away.

Once upon a time, governments prohibited abortion because it ended an innocent human life, which was held to be sacred. The courts today now hold that unborn human life has no value and deserves no protection. To put it another way, the government by granting a "right" to abortion to a woman for almost any reason, could do it only by guaranteeing the destruction of human life. In other words, government did not expand rights; it deprived one group of humans a right to life in the process of permitting another group of humans the choice of not carrying their pregnancies to term. (William L. Anderson, On the Anniversary of Roe V. Wade)

 The US Supreme Court claims that the Constitution contains a "penumbra" of rights. The word penumbra means "something that covers, surrounds, or obscures". Supposedly, a hidden "right" to abortion was emanating out of this constitutional cauldron that only the Supreme Court had special powers to find. In 1973, the Court brought it forth and gave substance to shadow.

They awkwardly hinged their decision on the Fourteenth Amendment's Due Process Clause, cleverly spinning a misleading notion of a constitutional "Right to Privacy":

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

First, there is no mention of the word "privacy". But it does clearly state that the States shall not deprive ANY person of life, liberty or property without due process. In the case of Roe v. Wade, the Court favored the stronger over the weaker, the bigger bully over the defenseless...even to the point of refusing to address the personhood of the younger and his rights. And all in the name of the aggressor's right to privacy? Is this justice?

Then using the Court's own "stretched" interpretation, doesn't a fetus deserve to be left alone in privacy to grow and develop, considering he did not ask to be born, but came into being as a result of the FREE choices (albeit, reckless and perhaps uninformed) of his mother and father?

As a libertarian, I value my privacy and do not want the government prying or interfering into how I choose to live my life. But if, in the enjoyment of my privacy, I harm other individuals, use them against their consent to further my pleasure, or coerce others into my pleasures who do not have fully informed consciences, such as children or the mentally impaired, then I am an aggressor!

If you like porn, that's your business. But you lose your "right" to privacy when you force my child against his will to participate with you or look at pornography. Your freedom ends when your actions harm another person.

When plantation owners invoked their legal "right" to do as they privately pleased with their black property, from beatings to rapes and lynchings, was it proper for citizens to side with them...citizens who under normal circumstances would certainly defend the importance of the God-given rights laid out in the Declaration of Independence to life, the liberty to live it as you please, and the acquisition of happiness through personal gain (property)?

Although legal at the time, owning and abusing imported black Africans was immoral. Abolitionists worked tirelessly to raise awareness and the conscience of the American people that led to a significant overruling by the Supreme Court of the infamous Dred Scott Decision, and then to the eventual end of slavery in this country.

I used to teach high school courses at a private, Christian school. The students were consistently horrified to learn that people of African descent imported to this country for slavery were once legally deemed "chattel" (property), and therefore were not citizens (legal persons) with any Constitutional protections. Slaves could not sue in court, nor could they be taken away from their owners without due process.

I often wonder if one day future generations in America will also find it hard to believe that we gave protective rights to a host of animals from eagles to whales, but none to developing human beings!

Abortion involves the deliberate, terminal removal of a defenseless human being from its property (the fetal membranes are part of the zygote's cells; it takes no tissue or blood from the host) and the destructive dislodging of the fetus and his property from the womb--a place he "entered" not by request, but by the free will actions of the host.

Thus, is the fetus really the property of the host or a temporary guest who comes for room and board? Does a landlord own a renter? Should a renter ever be denied due process? Is citizenship in this country based on size, location, appearance, or ability?

That's why pro-choicers fight so hard against acknowledging the personhood of the fetus, despite the embryological evidence. If we granted these little human beings the status of legal personhood, then everything would change. It did for slavery!

Second, the United States Supreme Court is restricted by the Constitution to interpret existing laws, not "discover" new ones!

It (Roe v. Wade) was a flawed decision, not because it legalized abortion, but because it usurped the authority of 50 state legislatures. Far too many judges, both federal and state, have taken it upon themselves to legislate rather than rule on existing law.

It's important to understand the difference between legislatures and courts. All of the moral and philosophical decisions are the province of legislatures. It is in the legislature that the will of the people expresses itself.

Courts properly have no legislative function. Their function is to look at law as it is written and see if the facts of a particular case fit it. In the case of the Supreme Court, it has taken upon itself the role of deciding if any law conforms to the U.S. Constitution.

The Constitution is dead-silent on abortion and on practically every other moral and philosophical issue you can think of. It was never intended to be a catchall piece of legislation. It was a charter authorized by the sovereign states for a federal government with limited powers. All you have to do is read the document, and you can plainly see it is simply about the structure of government and the powers assigned to the various components. The only crime it even mentions is treason.

Prior to Roe v. Wade, the question of abortion had been left properly to the 50 states. In some it was legal. In some it was not. What the Supreme Court did, without a shred of basis in the Constitution, was to declare its exclusive right to decide the issue for all 50 states. Federal courts in recent years have often done this. The excuse was that prohibiting abortion was an invasion of privacy and that the right of privacy is in the "penumbra" of the Constitution.

That's 200 percent baloney. The Constitution makes no mention of privacy. The closest it comes is saying that homes may be searched and private papers seized if due process of law is followed. That certainly is not a broad grant of privacy. And if prohibiting the murder of an infant in the womb is a violation of a woman's right to privacy, why is it not also a violation of her right to privacy to prohibit her murder of other children? Indeed, following the illogic of that court, the whole criminal code is a violation of people's right to privacy. (Charley Reese, Judges and Solons)

In the 60s, an 1879 law still on the books in Connecticut, forbid any use of contraception or the assisting of anyone seeking contraception. It had not been enforced for years, and women were easily getting contraceptives over the counter in the state as "feminine hygiene" products.

The law was challenged and first came before the Supreme Court in the 1961 case, Poe v. Ullman, where a doctor and his patients claimed that they were denied their Due Process rights under the Fourteenth Amendment. Citing that the law had not been enforced in many years, The Court dismissed the case on the ground that the plaintiffs lacked sufficient standing to sue.

Next, Estelle Griswold, the Director of the Planned Parenthood League of Connecticut, opened a birth control clinic in New Haven to dispense contraceptives. This "hanging out a sign" was designed to challenge the law.

Griswold and C. Lee Buxton, a physician who served as the Medical Director of the League, were arrested and charged with providing contraceptive information, devices, and drugs to a married Connecticut couple.

They appealed their conviction to the Supreme Court, citing the law violated the Fourteenth Amendment. This time, the Supreme Court agreed. Remember the "penumbra of rights and emanations" hocus-pocus?

In a gigantic leap of circus-like judicial activism, the judges in Griswold vs. Connecticut "discovered" guarantees in the First Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, and the Ninth Amendment that emanated a “zone of privacy" that begged to come out into the light of law.  This zone, they insisted, protects the right to privacy in the marriage relationship.

A later case established the right of unmarried people to contraception and opened the door to expanding the definition--on a federal level--of what is included in a person's privacy. It thereby set the judicial stage for Roe V. Wade. (source: Griswold vs. Connecticut)

Even one of the dissenting judges in the Griswold case, Potter Stewart, agreed that the Connecticut law was "silly", but not a matter for the US Supreme Court to take up because it was NOT a constitutional issue!

Since 1879, Connecticut has had on its books a law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual's moral, ethical, and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual's choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do. (Griswold vs. Connecticut)

From a 1965 Time Magazine article: "All these emanations failed to impress dissenting Justice Potter Stewart, who could find no constitutional infringements whatever in the law. In what conceivable way, asked he, did Connecticut's birth-control law violate the Third Amendment ban against quartering soldiers in private homes? How could a federal court use the Ninth Amendment to take away rights assigned to the people's elected state representatives? "We are not asked in this case to say whether we think this law is unwise, or even asinine," said Stewart. "We are asked to hold that it violates the United States Constitution. And that I cannot do." (The Law: Emanations from a Penumbra)

 Stewart's solution: Let Connecticut citizens persuade their legislature to repeal the law!

Indeed, by the time of Griswold vs. Connecticut, the birth control pill was already available in some states to physicians. After the Griswold case, contraceptives became available to married women in 1965 and to unmarried women in 1972.

The point is that the birth control pill was bringing about the revolution in contraceptive use and we DID NOT need the federal government's interference!

THE PEOPLE--the citizens in each state--would have pressured for reform in community standards that would have eventually changed their laws...changes made by the state legislatures, not the federal government!

I don't fault Estelle Griswold for opening a clinic and challenging the law. However, I regret she did not keep her fight inside Connecticut. That makes me suspicious as to the entire political agenda of Planned Parenthood from the beginning. Federal mandates translates into federal funding with our tax dollars (which they now receive in the millions) to not only offer contraceptives and counseling, but also abortion services nationwide.

I find Justice Hugo's Black dissent in the Griswold case so compelling, I must include it in this article. Notice his cautions to the Supreme Court against usurping state legislatures and becoming lawmakers instead of staying within their constitutional restraints as interpreters of existing laws. His words were not heeded!

I agree with my Brother STEWART'S dissenting opinion. And like him I do not to any extent whatever base my view that this Connecticut law is constitutional on a belief that the law is wise or that its policy is a good one. In order that there may be no room at all to doubt why I vote as I do, I feel constrained to add that the law is every bit as offensive to me as it is to my Brethren of the majority and my Brothers HARLAN, WHITE and GOLDBERG who, reciting reasons why it is offensive to them, hold it unconstitutional.

There is no single one of the graphic and eloquent strictures and criticisms fired at the policy of this Connecticut law either by the Court's opinion or by those of my concurring Brethren to which I cannot subscribe - except their conclusion that the evil qualities they see in the law make it unconstitutional.

The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities.

Such, for example, is the Fourth  Amendment's guarantee against "unreasonable searches and seizures." But I think it belittles that Amendment to talk about it as though it protects nothing but "privacy." To treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given. The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term "right of privacy" as a comprehensive substitute for the Fourth Amendment's guarantee against "unreasonable searches and seizures."

"Privacy" is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court's judgment and the reasons it gives for holding this Connecticut law unconstitutional.

The due process argument which my Brothers HARLAN and WHITE adopt here is based, as their opinions indicate, on the premise that this Court is vested with power to invalidate all state laws that it considers to be arbitrary, capricious, unreasonable, or oppressive, or on this Court's belief that a particular state law under scrutiny has no "rational or justifying" purpose, or is offensive to a "sense of fairness and justice."

If these formulas based on "natural justice," or others which mean the same thing, are to prevail, they require judges to determine what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary. The power to make such decisions is of course that of a legislative body. Surely it has to be admitted that no provision of the Constitution specifically gives such blanket power to courts to exercise such a supervisory veto over the wisdom and value of legislative policies and to hold unconstitutional those laws which they believe unwise or dangerous.

I repeat so as not to be misunderstood that this Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational.

The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country.

Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.

I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes. For myself, I must with all deference reject that philosophy.

The Constitution makers knew the need for change and provided for it. Amendments suggested by the people's elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and being somewhat old-fashioned I must add it is good enough for me.

And so, I cannot rely on the Due Process Clause or the Ninth Amendment or any mysterious and uncertain natural law concept as a reason for striking down this state law. The Due Process Clause with an "arbitrary and capricious" or "shocking to the conscience" formula was liberally used by this Court to strike down economic legislation in the early decades of this century, threatening, many people thought, the tranquility and stability of the Nation. See, e. g., Lochner v. New York, 198 U.S. 45.

That formula, based on subjective considerations of "natural justice," is no less dangerous when used to enforce this Court's views about personal rights than those about economic rights. I had thought that we had laid that formula, as a means for striking down state legislation, to rest once and for all." (Griswold vs. Connecticut)

 Justice Black died in 1971. Despite his earlier dissent in Griswold, Justice Stewart changed his views on the "Right of Privacy" and was surprisingly a key mover behind the Court's decision in Roe v. Wade. He wrote, in part:

"Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment. It is evident that the Texas abortion statute infringes that right directly. Indeed, it is difficult to imagine a more complete abridgment of a constitutional freedom than that worked by the inflexible criminal statute now in force in Texas."

Often criticized as the judge with the "unpredictable vote", Stewart's inconsistent voting record left only an ambiguous mark on U.S. law. At age forty-three, he was among the youngest appointees to the Court and, at age sixty-six, also one of the youngest justices to retire from it. (Potter Stewart: Biography)

I don't understand how Justice Stewart, who was convinced the Constitution was not so framed nor the judges empowered to change a state law about contraception (or ANY state law), turned to champion the federal usurpation of a state statute concerning abortion eight years later!

The overturning of Roe v. Wade would simply return power to each state to constitutionally regulate the abortion industry within its borders. A few states would probably ban abortions, but most would retain the freedoms worded within the Roe decision for first trimester abortions and, more than likely, put tougher restrictions on second and third trimester abortions that would vary from state to state. Still others would have very liberal laws.

Therefore, a woman with an unwanted pregnancy can travel to a nearby city or state that offers the abortion services she wants during any stage of pregnancy. The couple in Griswold could have done the same thing, but they were being "guided" (used is a better word) by Planned Parenthood's legal team. I'm sure there will be an adequate number of privately funded charities to help with counseling and expenses.

Women would NOT be forced to revert to "back alley "abortions, nor would they be arrested as criminals!

 Mary Calderone, (then Medical Director of Planned Parenthood) and Nancy Howell Lee (a pro-choice researcher) both investigated the practice of criminal abortion in the pre-legalization era.

Calderone estimated that 90% of all illegal abortions in the early 1960s were being done by physicians.

Calderone further estimated that 8% were self-induced and that 2% were induced by someone other than the woman or a doctor. Lee estimated that 89% of pre-legalization abortions were done by physicians, an additional 5% by nurses or others with some medical training, and 6% were done by non-medical persons or the woman herself.

Calderone's numbers came from "43 men and women from the various disciplines of obstetrics, psychiatry, public health, sociology, forensic medicine, and law and demography." Lee interviewed women who had undergone pre-legalization abortions. The discrepancy between Lee's and Calderone's breakdowns of non-physician abortions is probably due to sampling errors.

Lee, who spoke with women who survived abortions, would of course not encounter women whose abortions killed them. Therefore, she would not be exposed to the proportionate number of women who chose the most dangerous alternative. Lee's sample also included only willing survey participants, who would be more forthright and complete in divulging information, such as who really performed the abortion, than women being interviewed by health or law enforcement officials.

Calderone, on the other hand, spoke with those likely to see the botched and fatal abortions, and therefore they would be exposed to a higher percentage of the most dangerous, self-induced abortions. Also, Calderone's informants would have been investigating botched abortions that could be subject to a criminal investigation. Therefore, women speaking to them would be likely to withhold the true identity of their abortionists to protect them. Also, should the woman die, her family and friends might identify the woman herself as the abortionist, rather than admit their own roles in arranging or performing abortions, in order to close the investigation.

Anecdotal data tends to support Lee's research. Stories of abortions by midwives, orderlies, and chiropractors and assorted lay practitioners like Harvey Karman and the Jane Syndicate (underground abortion service) are far too common to represent only 2% of criminal abortions. We would probably not err too far if we relied primarily on Lee's numbers and adjusted them slightly to reflect the slight under-reporting of amateur abortions. Thus, a fair estimate of the breakdown of criminal abortions would probably look like this:

90% performed by physicians, 5% performed by trained non-physicians (medical and lay), 3% performed by an untrained accomplice, and 2% performed by the woman herself.

What did pre-legalization abortions look like in practice?

There were physicians who ran abortion mills, physicians who did selected abortions on their own patients, physicians who worked patients in through loopholes in the law. In addition to physician abortionists, there were the professional non-physicians, often operating with training, equipment, medications, and back-up provided by physicians.
Where, then, does the image of the coat hanger come in?

Lee found a different picture with women who had self-aborted from the women who had sought professional (however illegal) abortions. These self-aborting women tended to be less rational, and more self-destructive, than the women seeking competent abortionists. Lee also found that the women attempting self-abortion were likely to have had a death wish at the time of the abortion.

This finding is in keeping with psychiatric literature of the time, which treats self-induced abortion as a peculiar manifestation of the self-mutilating behavior common in patients with certain psychiatric disorders. Self-mutilation in patients with these disorders can range from superficial cuts and cigarette burns to self-trepanning (drilling holes in the skull), enoculation (gouging the eyes out), and amputation of limbs.

Mutilation of the genitals is not rare in these patients, and self-induced abortion was often regarded as an extreme form of genital mutilation aimed at attacking the patient's own femininity. It was in the political context, not the psychiatric or psychological context, that self-induced abortions were considered to be the expected behavior of normal women. This politicized view of self-aborting women eclipsed the reality.

This is not to say that all women who self-induce abortions are mentally ill. Investigators of post-Roe self-induced abortion injuries and deaths found other factors, such as distrust of the medical profession, a perception of home herbal abortion as more "natural," cultural preferences, and "idiosyncratic" factors nobody could readily explain. These women, however, carefully research abortion methods and use common sense and intelligence to select a method likely to be efficacious and comparatively safe.

What of the women turning up in emergency rooms and morgues?

The things they put into their bodies illustrate that there is something more going on than just an attempt to dislodge an unwanted fetus: pine oil, drain cleaner, curtain rods, ice picks, coat hangers, bicycle pumps, turpentine... Every year or so a self-induced or rank-amateur abortion death will be reported to the Centers for Disease Control, showing that the problem has not just gone away with legalization. But the problem is now swept under the rug because admitting that it exists poses a threat to the abortion agenda.

The self-induced and amateur abortions that showed up in the emergency room and the morgue gave some people a distorted view of criminal abortion. Abortion proponents capitalized on and magnified that distorted view. But the truth is that most women who were making a self-interested decision to abort found a competent person to do the abortion. All that's changed with legalization is that abortionists have been given a new clientele -- women who would never have sought abortions had they been illegal. While that's a boon to abortionists, it's hard to argue that more abortions for ambivalent women are a real gain to society, or to the women themselves. (The Bad Old Days of Abortion)

Therefore, regardless of any federal or state laws, some women will not turn to readily available medical clinics or competent physicians to end their pregnancies--even if the services are free!

There will always be charlatans who offer assistance at a cut-rate price or for other insidious favors. They will continue to prey upon women frightened of doctors and medical procedures. Modern, more sophisticated Snake Oil "Doctors" still peddle their cures and remedies for everything from gout to abortifacients.

Troubled women, seeking to symbolize their internal pain with the way they abort, will always make up a small percentage of the abortive population.

If Roe v. Wade were overturned, will these desperate women be arrested?

...abortion advocates have claimed—without any evidence and contrary to the well-documented practice of ALL 50 states—that women were jailed before Roe and would be jailed if Roe falls (or if state abortion prohibitions are reinstated).

This claim rests on not one but two falsehoods:

First, the almost uniform state policy before Roe was that abortion laws targeted abortionists, not women. Abortion laws targeted those who performed abortion, not women. In fact, the states expressly treated women as the second “victim” of abortion; state courts expressly called the woman a second “victim.” Abortionists were the exclusive target of the law.

Second, the myth that women will be jailed relies, however, on the myth that “overturning” Roe will result in the immediate re-criminalization of abortion. If Roe were overturned today, abortion would be legal in at least 42-43 states tomorrow, and likely all 50 states, for the simple reason that nearly all of the state abortion prohibitions have been either repealed or are blocked by state versions of Roe adopted by state courts. The issue is entirely academic.

The legislatures of the states would have to enact new abortion laws—and these would almost certainly continue the uniform state policy before Roe that abortion laws targeted abortionists and treated women as the second victim of abortion. There will be no prosecutions of abortionists unless the states pass new laws after Roe is overturned.

This political claim is not an abstract question that is left to speculation—there is a long record of states treating women as the second victim of abortion in the law that can be found and read. To state the policy in legal terms, the states prosecuted the principal (the abortionist) and did not prosecute someone who might be considered an accomplice (the woman) in order to more effectively enforce the law against the principal. And that will most certainly be the state policy if the abortion issue is returned to the states.

Why did the states target abortionists and treat women as a victim of the abortionist?

It was based on three policy judgments: the point of abortion law is effective enforcement against abortionists, the woman is the second victim of the abortionist, and prosecuting women is counterproductive to the goal of effective enforcement of the law against abortionists.

The irony is that, instead of states prosecuting women, the exact opposite is true. To protect their own hide, it was abortionists (like the cult hero and abortionist Ruth Barnett when Oregon last prosecuted her in 1968), who, when they were prosecuted, sought to haul the women they aborted into court. As a matter of criminal evidentiary law, if the court treated the woman as an accomplice, she could not testify against the abortionist, and the case against the abortionist would be thrown out.

There are “only two cases in which a woman was charged in any State with participating in her own abortion”: from Pennsylvania in 1911 and from Texas in 1922. There is no documented case since 1922 in which a woman has been charged in an abortion in the United States.

Based on this record—spanning 50 states over the century before Roe v. Wade—it is even more certain that the political claim that any woman might be questioned or prosecuted for a spontaneous miscarriage has no record in history and will certainly not be the policy of any state in the future.

How was abortion law enforced?

Going back as far as English and colonial law, the criminal law classified those involved in crimes as principals and accomplices. A principal is “the person whose acts directly brought about the criminal result.” An accomplice aids or abets the crime.

States did not treat women who had the abortion as either principals or accomplices. As the Oregon Supreme Court held as late as 1968, the abortionist commits the act, and the woman aborted is the object of that act. "A reading of the statute indicates that the acts prohibited are those which are performed upon the mother rather than any action taken by her. She is the object of the acts prohibited rather than the actor."

As one legal scholar in the 1980s who studied this issue concluded after surveying the 50 states, women "were never charged with murder, only seldom were named co-conspirators, and still more rarely were regarded as accomplices."

While some women were prosecuted for their abortions under the English common law, by the 1870s or 1880s, most American states came to recognize that the better policy was to not prosecute women. That was the position of New York by 1885.

With the exception of [four] state cases, the vast majority of the states with reported cases that discussed this issue determined that states could not prosecute women under any theory of criminal liability.

States relied on various techniques of statutory interpretation, along with the generally held belief that women were victims of their abortions, to support their decisions to refrain from prosecuting women. As the appeals court in the District of Columbia wrote in 1901, "by its terms, [D.C. Code Ann. § 809 (1901)] applies to the person or persons committing the act which produces the miscarriage, and not to the person upon whom it is committed, notwithstanding it may be done with her knowledge and consent. Not being liable to indictment thereunder, she is not an accomplice in the legal sense."

Based on the fact that abortion was dangerous and often fatal up to the 19th century, women were seen as victims.

In addition, another main reason for the non-prosecution of women is that relieving women from criminal liability provided states with a better chance of achieving convictions against abortionists—the principal.

While the reported cases in a minority of the states arrived at an opposite conclusion—as a matter of technical legal principle—even these states never took advantage of the opportunity they allotted to themselves to actually prosecute women.

This was expressly affirmed by the Maryland Supreme Court and by the Minnesota Supreme Court in almost identical terms.

Maryland: "While it may seem illogical to hold that a pregnant woman who solicits the commission of an abortion and willingly submits to its commission upon her own person is not an accomplice in the commission of the crime, yet many courts in the United States have adopted this rule, asserting that public policy demands its application and that its exception from the general rule is justified by the wisdom of experience."

Minnesota: "As a first impression, it may seem to be an unsound rule that one who solicits the commission of an offense, and willingly submits to its being committed upon her own person, should not be deemed an accomplice, while those whom she has thus solicited should be deemed principal criminals in the transaction. But in cases of this kind the public welfare demands the application of this rule, and its exception from the general rule seems to be justified by the wisdom of experience."

The target of abortion law was the abortionist—the principal in the crime.

The courts expressly affirmed that the statutes targeted the abortionist with their language. The Arkansas Supreme Court writes in 1970: 'Our own statute, … is directed toward the person who administers or prescribes medicine or drugs to any woman with child, with intent to produce an abortion, or to produce or attempt to produce an abortion by any other means."

The Oregon Supreme Court expressed the same conclusion in 1968: "A reading of the statute indicates that the acts prohibited are those which are performed upon the mother rather than any action taken by her. She is the object of the acts prohibited rather than the actor. The class of persons against whom the statute is directed does not include those upon whom abortions are performed. Most similar state statutes are so construed."

Were women ever prosecuted for SELF-abortion?

Never in the United States. The last was in 1599—the end of the 16th century. As Villanova Law Professor Joseph Dellapenna, author of the encyclopedic book, Dispelling the Myths of Abortion History, has demonstrated, 'in the entire history of Anglo-American law, it appears that the only woman to have been charged with a crime for self-abortion was Margaret Webb—in 1599."

Iowa, as early as 1863, held that a woman could not be indicted for a self-abortion.

Dellapenna also demonstrates that "while several states (including California, Connecticut, Indiana, New Hampshire, and New York) made self-abortion a crime, they did not prosecute any women—they enacted an exception to the accomplice evidence rule or granted women immunity from prosecution in order to obtain her testimony against the abortionist."

As the Michigan Supreme Court held in 1963, "The majority view is that not only may she not be held for abortion upon herself but neither as an accomplice."

Those states with statutes on the books that prohibited women from aborting [self-abortion] did not prosecute.

As researcher Paul Linton has pointed out, "[a]lthough more than one-third of the States [including Arizona, California, Connecticut, Delaware, Indiana, Minnesota, Montana, Nevada, North Dakota, Oklahoma, South Carolina, South Dakota, Utah, Washington, and Wyoming] had statutes prohibiting a woman from aborting her own pregnancy [self-abortion] or submitting to an abortion performed on her by another, no prosecutions were reported under any of those statutes."

In the 1911 case in Pennsylvania, the trial court threw out the charge and the Pennsylvania Superior Court concurred, stating that 'in the absence of clear statutory authority, "the woman who commits an abortion on herself is regarded rather as the victim than the perpetrator of the crime."

Based on this review of the 50 states, Linton concluded, "no American court has ever upheld the conviction of a woman for self-abortion or consenting to an abortion and, with the exception of [the Pennsylvania case from 1911 and Texas case from 1922], there is no record of a woman even being charged with either offence as a principal or as an accessory."

Which States treated women as victims?

At least: California, the District of Columbia, Iowa, Maryland, Oklahoma, South Dakota, Tennessee, and Texas.

As long ago as 1880, a Texas court affirmed that the woman was a victim, not rhetorically but in the law: "The rule that she does not stand legally in the situation of an accomplice, but should rather be regarded as the victim than the perpetrator of the crime, is one which commends itself to our sense of justice and right, and there is certainly nothing in our law of accomplices which should be held to contravene it." Many other state courts said the same thing:

California: "The abortee is considered the victim of the crime."
Delaware: Zutz v. State, 52 Del. 492, 160 A.2d 727 (1960)
District of Columbia (DC): “She is regarded as his victim, rather than an accomplice."
Idaho: State v. Rose, 75 Idaho 59, 267 P.2d 109 (1954)
Kentucky: Richmond v. Commonwealth, 370 S.W.2d 399 (KY 1963)

Maryland: "In Maryland a woman upon whom an abortion has been performed is regarded by the law as a victim of the crime, rather than a participant in it."

Minnesota: "in cases of this kind the public welfare demands the application of this rule, and its exception from the general rule seems to be justified by the wisdom of experience…She was the victim of a cruel act."

South Dakota (1924): "She does not, by consenting to the unlawful operation, become an accomplice in the crime. She should be regarded as the victim of the crime, rather than a participant in it."

Which states did NOT treat women as an accomplice?

At least 30: Arkansas, California, Connecticut, Delaware, District of Columbia, Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Vermont, and Virginia.

As long ago as 1915, one Texas court held, "It has been so many times decided by this court that the woman upon whom an abortion is committed is not an accomplice that we regard the question as settled."

As late as 1960, the Delaware Supreme Court wrote: '"It is generally held in most states that a woman in an abortion case is not an accomplice. [citing Commonwealth v. Fisher, 189 Pa. Super. 13, 149 A. 2d 666 (1959); State v. Montifoire, 95 Vt. 508, 116 A. 77 (1921); State v. Hyer, 39 N. J. L. 598 (1877)] The reasoning of the courts seems to be that the woman is generally regarded as the victim of the crime rather than a participant in it.' [citing Wilson v. State, 36 Okla. Cr. 148, 252 P. 1106 (1927); Smart v. State, 112 Tenn. 539, 80 S. W. 586 (1904)]).

Basoff v. State, 208 Md. 643, 653-654, 119 A. 2d 917, 923 (1956) ("it is also held in this State that a pregnant woman upon whom an abortion is produced is not an accomplice of the person who administers the substance or performs the operation to produce the abortion…In Maryland, a woman upon whom an abortion has been performed is regarded by the law as a victim of the crime, rather than as a participant in it."

See Thompson v. United States, 30 App. D.C. 352, 362-363 (1908) at 364 ("As the victim of an unlawfully procured miscarriage was not an accessory before the fact, she is not indictable as a principal offender…").

Which states did treat a woman as an accomplice?

There were 20 states in which statutes technically made it a crime for the woman to participate in her own abortion: Arizona, California, Connecticut, Delaware, Idaho, Indiana, Minnesota, Montana, Nevada, New Hampshire, New York, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Washington, Wisconsin, and Wyoming. However, these were not enforced or applied against women. There is no record of any prosecution of a woman as an accomplice even in these states.

Alabama: In 1916, an appeals court held that, as an evidentiary matter, the woman was considered an accomplice, but the woman’s guilt was not actually at issue in the case.

Some states did treat the woman as a conspirator.

Technically, courts in a handful of states treated the woman as a possible conspirator: Colorado, Iowa, New York, North Dakota, and Wisconsin.

Even in these states, however, the issue in the recorded cases was not the woman’s guilt—no woman was charged or was a co-defendant in the cases—but the admissibility of evidence against the abortionist. No woman was prosecuted.

Other states rejected treating the woman as a conspirator: California, New Jersey, and Pennsylvania.

But statutes in these states have been repealed, and the legislatures would have to enact wholly new legislation to address abortion.

Some states had statutes prohibiting solicitation of abortion—under the general rule that solicitation of any crime is a crime—but these were evenhandedly applied to men and women...at least Arizona, California, Connecticut, Idaho, South Dakota, and Utah.

For example, South Dakota had an anti-solicitation law for abortion: S.D. Compiled Laws Ann. 22-17-2 (1967).

However, there’s no record of any woman being prosecuted under this law, let alone convicted.

Even pro-abortion historians admit this record.

The pro-abortion historian Leslie Reagan, in her 1997 book When Abortion Was A Crime, admits that states did not prosecute women for their abortions and that women did not face criminal liability as principals, accomplices, conspirators, solicitors, or murderers, and concedes that the purpose behind that law was not to degrade women but to protect them.

Conclusion: The wisdom of not prosecuting women was based on extensive practical law enforcement experience in many states, over many years.

It will certainly be influential with prosecutors and state policy makers when Roe is overturned, and that should be the policy of legislators who are interested in the effective enforcement of abortion law.

Prolife legislators and pro-life leaders do not support the prosecution of women and will not push for such a policy when Roe is overturned. This is demonstrated by abortion regulations enacted in the past 20 years—like the federal partial birth abortion ban—in which women are expressly excluded from any possible prosecution. Instead, pro-life legislators are advocating laws that defend the unborn and protect women from the negative impact of abortion. (Steven Ertelt, States Didn’t Put Women in Jail for Abortions Before Roe, Won’t if Overturned (Article contains footnotes.)

 This thorough research bears out that abortion providers--trained or otherwise--will be the focus of any future state laws restricting abortion procedures.

Pro-choicers often cry about "keeping the government out of our personal lives", but supporting Griswold v. Connecticut and subsequently Roe v. Wade opened the door for just that very thing--allowing our central government to address issues for which they have no constitutional authority and flaunt their judicial activism in the faces of state legislatures.

As a result, we now have the fat and soda police scouring our nation's schools and fast food restaurants. Regulations abound, including what kind of light bulbs we can use. Our daily electricity consumption (under the threat of a temporary shut down if deemed excessive) and the water level in our showers will be monitored soon for 'acceptable' levels. Our eligibility for healthcare will be determined by our liability to society--not our ability to pay. The federal government has become both Big Brother and Nanny--surveilling, assessing, and deciding what's best for its citizens.

The notion that an all-powerful, centralized state should provide monolithic solutions to the ethical dilemmas of our times is not only misguided, but also contrary to our Constitution.

Remember, federalism was established to allow decentralized, local decision-making by states. Today, however, we seek a federal solution for every perceived societal ill, ignoring constitutional limits on federal power. The result is a federal state that increasingly makes all-or-nothing decisions that alienate large segments of the population.

Why are we so afraid to follow the Constitution and let state legislatures decide social policy?

Surely people on both sides of the abortion debate realize that it's far easier to influence government at the state and local level. The federalization of social issues, originally championed by the left but now embraced by conservatives, simply has prevented the 50 states from enacting laws that more closely reflect the views of their citizens. Once we accepted the federalization of abortion law under Roe, we lost the ability to apply local community standards to ethical issues. (Representative Ron Paul)

In our final article in the series, we will look at the difference between God-given (or natural) rights and legal rights, and the tension that exists between the rights of the fetus and the host.

Does the host have a right to evict? Is continuing an unwanted pregnancy tantamount to slavery? Is the "It's my body" claim valid under such circumstances? Do individual rights trump states' rights?

Previous articles in the series:

Is There Such a Thing as a Pro-Life Libertarian? A Former Right-Wing Conservative Takes a New Look at the Issue

Human Life, A Human Being, and Personhood

I'm also in the middle of a series that speaks on the abortion issue to the Christian church. I share my personal story as a post-abortive woman, along with the dynamics that affected my decision in 1978.

Christian women are having abortions proportionate to the rest of the abortive population. Even though overall numbers for abortions are lower than in previous years, the percentage of Christian women having the procedures remain the same.

The Church at Topeth: A Christian's Story of Abortion and Redemption  Part I

The Church at Topeth: A Christian's Story of Abortion and Redemption  Part II