House Hearings Project 1629 K Street N.W. Suite 520 Washington, D.C. (20006) Paul E. Reimann 1014 E. Center St. Dear Friends: Enclosed is a reduced copy of a paper which I wrote to summarize the development of abortion laws within each state. The basis of it is the exhaustive compendium of state abortion laws up to 1960, compiled by Eugene Quay, in the Georgetown Law Journal. However, Mr. Quay only listed the laws in alphabetical order, beginning with Alabama and ending with Wyoming. I took his exhaustive summary of the exact wording of each state law and organized it in chronological sequence within the United States, on a year-to-year basis of significant changes. These are shown in Appendix A. (Appendix B contains a similar chronological summary of important court cases, year by year, again drawn from Mr. Quay's alphabetical-order listing). The text itself shows the development of four distinct categories of abortion laws (those relating to "manslaughter"; those which punished equally the death of either the mother or child by abortion; those which prohibited only attempts on pregnant women, even though attempts on women thought to be but not actually pregnant carried danger as well; and later statutes prohibiting even attempts, in order to solve the evidentiary problem of proving that the abortionist had actually caused the death of the child. The results, in time sequence and easy-to-read tabular form, utterly demolish the selective Blackmun interpretations on the basis of the statutes' wording itself. The only thing lacking is a continuation from 1960 to the present, but the only source available to me (the University of Utah law library) did not have a lot of current states' statutes available, and so I could not extend it accurately from 1960 to the present. For someone with those resources available, that extension might be a worthwhile project. But even lacking that extension, the paper shows irresistably, I believe, the real protective development of state statutes and court decisions solicitous of the unborn child's life, until the sometimes aberrations of recent years. If you wish to reformat the data, by all means do so. I also apologize for the absence of a section concerning the English common law; but Robert Byrn's work is the best available anyway. Also missing are footnote references, but these will be familiar to you anyway. I also include a copy of Table 3-1 (Fetal Mortality) of Volume II (Mortality) Part A, of the H.E.W.'s Vital Statistics of the United States (1971 or later if available), which lists the minimum period of gestation for which Fetal-Death registration is required in each state, and a table of fetal deaths by each state. The entire Section 3 is devoted to Fetal Mortality, and though Table 3-1 of H.E.W.'s Vital Statistics is the best summary, the entire section could be a valuable addition to any submission to the House Committee, for its treatment of fetal deaths as just that: deaths. Sincerely, Paul Eldren Reimann HOW DID THE AGGREGATE OF STATES' ABORTION LAWS DEVELOP, IN CHRONOLOGICAL CEDER? . In his majority opinion which declared unconstitutional state laws which impeded abortion, Justice Blackrun held that "it was not until after the War Between the States that legislation began generally to replace the common law. liost of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening. Most punished attempts equally with completed abortions", e further stated that "nost state laws were designed solely to protect the woman" and that "the few state courts called upon 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 and fetus". He also accepted the argument that "adoption of the 'quickening' distinction through received common law and state statutes tacitly recognized the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception"3. Whether or not there is any truth in the above assertions can best be determined not by opinion but rather directly from the historical development of state abortion laws themselves, as found in the very wording of the statutes. It is the object of this topic to concisely summarize the individual states' laws, by date of passage (and reconfirmation in later statutes in the same states), and by the content of the states' laws. Greater detail is afforded later, if this is of interest. Obviously, the former English colonies which first formed the United States began with a body of tradition or "common law" which was largely inherited from England, and which was only replaced as explicit state legislation was passed on particular topics, including abortion. Much has been made of the purported meaning of common law abortion in England, and this is summarized at the end of this topic. But of more direct interest are the laws which were not inherited from another country, but were passed by the States themselves, under the framework of the U.S. Constitution. Eugene Quay has exhaustively collected the exact wording of each state's abortion laws, as they were enacted and later re-enacted. However, he lists these in alphabetical order (beginning with Alabama and ending with Wyoring), which does not give as much perspective as looking at the year-by-year progress of state abortion laws collectively. Accordingly, these are summarized, up through 1960, in tabular form in the accompanying appendix. There is a fairly sharp distinction of state abortion laws into four separate categories: 1) statutes labeling abortion or other killing of at least a "quick" child (generally taken to Lean one who had evidenced life by movement strong enough to be felt) as "manslaughter; 2) statutes which explicitly provided exactly the same punishment for any abortion which killed either the mother or the unborn child (i.e., if either was killed, the penalty was identical); 3) statutes prohibiting attempted abortion on any pregnant woman; and 4) later statutes prohibiting abortion attempts on any woman, whether actually pregnant or not. The common exception allowing abortion when necessary to save the mother's life was so universal that it will not be mentioned again, unless there is some variance in a particular law. Peginning with the first category, the following 17 states listed as "manslaughter" or as "anslaughter in the first degree" or as "manslaughter in the second degree" any abortion which resulted in the willful death of any unborn quick child, as well as any abortion which (successful or not) resulted in the mother's death. (Unless specifically mentioned otherwise, the penalty of manslaughter applied whether the mother or an unborn child was killed). Thirteen of these seventeen sates also labeled as "ranslaughter" the "willful killing of an unborn quick child by any injury to the mother of such child, which would be murder if it resulted in the death of such mother". New York (1628-35, 1846, 1881, 1942): l'anslaughter for abortion causing the death of the rother or quick child. (Up to 1 year confinement for attempted abortion on any pregnant woman (1828-35 orward), until 1872, when attempted abortion on any woman with child was increased to 3 years; in 1942, the penalty was increased to up to four years, this time whether she was pregnant or not). The 1942 law providing up to 4 years for attempted abortion and manslaughter for killing either mother or quick child was repealed by one vote in 1970 and replaced by 24-week elective abortion; but in 1972, the legislature voted (79 to 68 in the Assembly, 30 to 27 in the Senate) to return to the 1942 statute, but Gov Rockefeller ! vetoed this. In his opinion, Ir. Blackmun noted that New York made the killing of a quick Ictus second degree manslaughter in 1028-35, but he failed to note that this was also the sae penalty for killing the mother by abortion, and he failed to note that some sixteen other states had like provisions. Missouri (1835, 1949): Manslaughter if a quick child was killed(1835); manslaughter for "the death of said woman, or any quick child whereof she may be pregnant" (1949). (Up to 1 year for attempted abortion on any pregnant woman (1335); increased to 3-to-5 years for any attempt "whether actually pregnant or not" (1949). Arkansas (1838, 1947): Manslaughter for causing the death of an unborn quick child abortion (1838 & 1947). In addition, 1 to 5 years for attempting abortion on any woman with child (1875 & 1947). Iowa (1843): lianslaughter (up to 7 years) for the abortion of "any woman, pregnant with a child with intent thereby to destroy such child, and thereby cause its death" (1943). (In 1851 all laws not included in the Iowa code of that year were repealed; since abortion was omitted, the Iowa Supreme Court held in 1856 (Abrams v Foshee) that only the common-law prohibition after quickening remained. The next legislature, in 1858, passed a law (effective in 1860) providing up to 1 year for attempting the miscarriage of any pregnant weman; after 1915 the wording read simply "any woman", The penalty after 1562 was up to 5 years for any attempt. In 1839 an act against poisoning included abortion attempts (up to 3 years)). Michigan (1346, 1935, 1954): Manslaughter for any abortion causing the death of the other or the quick child (1845, 1954). Also, for any attempt to procure the miscarriage of any pregnant woman, up to 1 year was specified (1546); it was a "felony" by 1935. Mississippi (1848, 1956): It was manslaughter if quick (1843). It was 1 to 10 years for causing any woman pregnant with child to abort or miscarry, or attempting to produce an abortion or miscarriage, and if the mother died, it was murder (1956). Wisconsin (1849, 1858, 1958): It was manslaughter to cause the death of either mother or child by an abortion attempt on "any woman pregnant with a quick child" (1849), or "any woman pregnant with a child" (1858). In 1958 the penalty was up to 3 years for destroying any unborn child, and up to 15 years for killing the mother or an unborn quick child by abortion. "In this section, 'unborn child' means a human being from the time of conception until it is born alive" (1958). Minnesota (1851): It was manslaughter if either the mother or a quick child died. (To kill an "unborn infant child", if killed by an injury which would be murder if it resulted in the death of the mother, brought a penalty of manslaughter also in 1851. In 1873 the penalty for abortion of any "woman with child" was set at 3 to 10 years for killing either rather or child (1873); also in 1873, 1 to 2 years was imposed for attempting to procure the miscarriage of "any woman with child"; this was increased to up to 4 years in 1953). Oregon (1853, 1864, 1959): It was manslaughter for abortion causing the death of a quick child or the mother (1853); in 1864, 1940 and 1959 abortion of "any woman pregnant with (a). child" was manslaughter. (not just 'quick') "in case the death of such child, or of such mother is thereby produced". (Unsuccessful abortion attempts were not mentioned). Kansas (1855, 1859, 1959): It was manslaughter (3 to 5 years in the second degree) for abertion killing the mother or quick child (1855, 1859 & 1959). (An attempt on a pregnant woran drew up to 1 year (1855 & 1959). Florida (1868, 1944): It was manslaughter for abortion causing the death of the mother or a quick child (1868 & 1944). (Up to 7 years was imposed for attempting the miscarriage of any woman (1868 & 1944)). Alaska (1899, 1949): Abortion of "any woman pregnant with a child" was manslaughter if it causes the "death of such child or mother". (Attempted abortion was not mentioned). (In 1970, previable abortion on request was passed but vetoed by Gov. Miller, whose narrow defeat in the next election permitted the next passage to become law. New Mexico (1907): Second degree murder for abortion of "any woman pregnant with a quick child" -- "in case the death of such child or such mother be thereby produced" (1907). (In 1953 it remained second degree murder if the mother died of abortion, but was 1 to 5 years for attempted abortion on "any pregnant woman"). - Oklahoma (1910 & 1958): anslaughter for any abortion causing the death of a quick child or the mother. (Als● în 1910 & 1958, up to 3 years for abortion attempts on "any pregnant woman". Kevada (1911 & 1959): "The willful killing of any unborn quick child, by any injury committed upon the mother of such child" is "manslaughter". That this does not just apply to killing the child by assaults on the mother is evident in the imposition of the penalty for manslaughter also upon "every woman quick with child who shall take or use, or submit to the use of any drus or any instrument or other means, with intent to procure her own miscarriage, unless the same is necessary to preserve her own life or that of the child whereof she is pregnant". (Only a minority of the states penalized the mother explicitly, and the penalties against her were generally less than those imposed upon the abortionist. Vermont (1845, 1967 & 1959) and Rhode Island (1896 & 1956) explicitly excused the mother from prosecution, while New York (1045, 1072 & 1942), New Hampshire (1348 & 1955), Wisconsin (1858), Connecticut (1060 & 1958), California (1872); Minnesota (1873 & 1953); Indiana (1861, 1905, 1956 & 1960), South Carolina (1883, 1932 & 1952), Arizona (1887 & 1956), Idaho (1387 & 1956), Wyoming (1690, 1945 & 1957), Oklahoma (1910 & 1958), Nevada (1911 & 1955, as above), North Dakota (1943), lontana (1947), Utah (1953), and South Dakota (1950), in order of passage, did explicitly impose penalties upon the pregnant woman who submitted to or attempted abortion. This renders rather untenable the view that laws against abortion were only to protect her health). South Dakota (1929 & 1960): It was manslaughter to abort "any woman pregnant with a quick child -- in case the death of the child or of the mother is thereby produced". (Up to 3 years was imposed for any attempt to procure the miscarriage of "any pregnant woman" (same dates)). Borth Dakota (1943): It was manslaughter to abort "any woman pregnant with a quick child in case the death of the child or of the mother is produced". (Up to 3 years was imposed for any attempt to procure the miscarriage of "any pregnant woman" (alse 1943)). - Thirteen of the above 17 states also listed as manslaughter "the wilful killing of an unborn quick child, by any injury to the other of such child, which would be murder if it resulted in the death of such mother: New York (16828-35, 1881 & 1942); Missouri (1835 & 1949); Arkansas (1838 & 1947); Iowa (1543: repealed by omission in 1851); Kichigan (1846 & 1954); Mississippi (1242 & 1956); Wisconsin (1849 & 1058); Minnesota (1851); Kansas (1855, 1859 & 1959); Florida (1066 & 1944); New Nexico (1907: second degree murder); levada (1911 & 1959); North nakota (1943). Besides these 13, Georgia imposed death or life imprisonment (1876 & 1933). Ten more states penalized equally killing the unborn child or the mother by abortion: Ci (154) & 1953): One to seven years for abortion of "any woman, pregnant with a quick child" (143) if either dies, or 1 to 7 years if the woman either miscarries or dies (1953, with no pention of "quick). Up to 1 year (1841) for attempts on a pregnant woman. (1953: none). Washington (1354 & 1951): One to twenty years was imposed for abortion killing a quick child or the rother (1654 & 1951). Up to 5 years was imposed for any attempt on "any woman whom he supposes to be pregnant" (1854) or "with intent thereby to produce the miscarriage of a woman, whether pregnant or not" (1951). (In 1970, 19-week abortion on request was adopted after a 55% to 45% margin in a state-wide referendum). - Pernelvania (1260, 1939 & 1945): "If such woman, or any child with which she may be quick, shall die ", up to 7 years was imposed in 1960, and increased to up to 10 years in 1939 and 1945. (For attempts "to procure the miscarriage of any woman" ("quickening" was not mentioned), up to 3 years was imposed in 1860, and increased to up to 5 years in 1939 & 1945), He Jersey (1872, 1831 & 1953): An attempt to "procure the miscarriage of a veran then preg nant with child" drew up to 15 years for the death of the "other or child" (1072 and 1:01 wording) or the "vonan or child" (1953 wording), with none of these referring to "quickening". An attempt on "a woman then pregnant with child" (1549, 1872 & 1031) er on a "pregnant tio an" (1953 vording) drew up to 7 years in 1949, and up to 5 years in 1961 if neither netver nor child died, and was a "high misdemearer" in 1953). Kebraska (1873 & 1956): One to ten years was specified for the death of the mother, or "a vitalized embryo, or foetus, at any stage of utero gestation" (1873 & 1956). (Up to 1 year was specified for an abortion attempt on "any pregnant woman" (1573 & 1956)). Georgia (1876 & 1933): Abortion of "any woman pregnant with a child in case the death of such child or other be thereby produced -- be declared guilty of an assault with intent to murder" (1876 & 1933). Georgia also had a provision as follows: "The wilful killing of an unborn child, so far developed as to ordinarily be called 'quick', by any injury to the cother of such child, which would be murder if it resulted in the death of the mother shall be punished by death or imprisonment for life" (1876 & 1933). (An abortion attempt on "any pregnant woman" is a "misdemeanor" (1876 & 1933). Indiana (1531, 1905 & 1956): Three to 14 years for an abortion attempt on "any pregnant woman -- if the woman miscarries or dies in consequence thereof" (1851, 1905, 1956, 1950). (Up to 1 year was imposed for abortion attempts on "any pregnant woman" (1833) "or to any voman whom he supposes to be pregnant" (clause added in 1852). South Carolina (1003, 1932 & 1952): For the abortion of "any woman with child-in case the death of such child or of such woman results in whole or in part thereof -- (it is) a felony (punishable from) -- 5 to 20 years".(1883, 1932 & 1952). (Up to 5 years was imposed in the same statutes for abortion attempts, with no mention of death). " Wyoming (1890 & 1959): For an abortion attempt on "any woman then being with child", it was manslaughter if she dies unless done by a doctor to save her life or to "prevent serious and permanent bodily injury to her", in the 1869 statute, which added permanent health to the universal exception to save the mother's life. But in the 1890 and 1959 statutes, abortion was only allowed to save her life (no mention of permanent injury), as with other state laws, and the penalty for abortion was up to 14 years "if the woman either dies er iscarries". District of Columbia (1901, 1953, & 1960): For abortion attempts with intent to precure the -- if the miscarriage of any woman unless when necessary to preserve her life or health woman or her child dies in consequence of such act -- the penalty for either deat As 3 to 20 years (1901). The 1953 revision by Congress made it second degree murder if the mother died from abortion. (In 1901, up to 5 years was the penalty for attempting to procure the miscarriage of any woman, increased to 1 to 10 years for such an attempt in 1953 and 1867. In addition to the above ter states which specified equal penalties for killing either the mother or the unborn child (usually this was not restricted to only "quick" children) by abortion, two of the seventeen states listing abortion of a "quick" child as manslaughter later applied equal penalties for killing either the mother or unborn child by abortion (Minnesota in 1873 and 1953, and Wisconsin in 1958 (up to 15 years for killing any "quick" child or the mother, and up to 3 years for destroying any unborn child). Still another six states provided explicit penalties for causing the death of the untern child (not merely attempting abortion on a pregnant woman, or one thought to be pregnant): Haine (1840, 1857 & 1940): For abortion of "any woman pregnant with child, whether such child is quick or not" -- if he "shall thereby destroy such child before its birth", up to 5 years was imposed, but only up to 1 year was imposed for the (unsucessful) atterpt (1840, 1857,19) Virginia (1848, 1879 & 1960): In 1848, one to five years was imposed for abortion of "any pregnant woman if the death of a quick child be thereby produced", and 1 to 12 months "15 the death of a child, not quick, be thereby produced". In 1879 and 1960, one to ten years was imposed for destroying her unborn child (no mention of gestation age or "quick"), or producing miscarriage or abortion. (None of these statutes penalized mere attempts). - |