Abortion Law - History

History

Abortion has been part of family planning since ancient times, with natural remedies being found amongst a wide variety of tribal people and in all our written sources. Our earliest texts contain no mention of abortion or abortion law. When it does appear, it is entailed in concerns about male property rights, preservation of social order, and the duty to produce fit citizens for the state or community. The harshest penalties were generally reserved for a woman who procured an abortion against her husband's wishes, and for slaves who produced abortion in a woman of high status. Religious texts often contained severe condemnations of abortion, recommending penance but seldom enforcing secular punishment.

As a matter of common law in England and the United States, abortion was illegal anytime after quickening – when the movements of the fetus could first be felt by the woman. Under the born alive rule, the fetus was not considered a "reasonable being" in rerum natura; and abortion was not treated as murder in English law.

In the 19th century, many Western countries began to use statutes to codify or place further restrictions on abortion. Pro-life forces were led by a combination of conservative groups opposed to abortion on moral grounds, and by medical professionals who were concerned about the danger presented by the procedure and the regular involvement of non-medical personnel in performing abortions. It became clear in the following years, however, that illegal abortions continued to take place in large numbers even where abortions were expressly illegal. It was difficult to obtain sufficient evidence to prosecute the women and abortion doctors, and judges and juries were often reluctant to convict. Henry Morgentaler, for instance, was never convicted by a jury. (He was acquitted by a jury in the 1973 court case, but the acquittal was overturned by five judges on the Quebec Court of Appeal in 1974. He went to prison, appealed, and was again acquitted. In total, he served 10 months, suffering a heart attack while in solitary confinement.) Many were also outraged at the invasion of privacy and the medical problems resulting from abortions taking place illegally in medically dangerous circumstances. Political movements soon coalesced around the legalization of abortion and liberalization of existing laws.

By the early 20th century, many countries had begun to legalize abortions when performed to protect the life of the woman, and in some cases to protect the health of the woman. Under Vladimir Lenin, the Soviet Union legalized all abortions in 1920, but in 1936 by Joseph Stalin this was restricted to medically recommended cases only in order to increase population growth. In the 1930s, several countries (Poland, Turkey, Denmark, Sweden, Iceland, Mexico) legalized abortion in some special cases (rape, threat to mother's health, fetal malformation). In 1948 abortion was legalized in Japan, 1952 in Yugoslavia (on a limited basis) and 1955 in the Soviet Union (on demand). Some Soviet allies (Poland, Hungary, Bulgaria, Czechoslovakia, Romania) legalized abortion in the late fifties under Soviet pressure. The adoption of contraceptives in the 1950s and 1960s in Western countries resulted in comparatively few statutory changes on abortion law. In Great Britain, the Abortion Act of 1967 clarified and prescribed abortions as legal up to 28 weeks. Other countries soon followed, including Canada (1969), the United States (1973 in most states, pursuant to Roe v. Wade, the federal Supreme Court decision which legalized abortion nationwide), Tunisia (1973), France (1975), Austria (1975), New Zealand (1977), Italy (1978), the Netherlands (1980) and Belgium (1990). However, these countries vary greatly in the circumstances under which abortion is permitted. In 1975, the West German Supreme Court struck down a law legalizing abortion, holding that they contradict the constitution's human rights guarantees. In 1976 a law was adopted which enabled abortions up to 12 weeks. After Germany's reunification, despite the legal status of abortion in the former East Germany, a compromise was reached which deemed most abortions up to 12 weeks legal.