Criminal Abortion Before the Fourteenth Amendment

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By Daniel Gump

Early Recognition of Criminal Abortion

The earliest known reference to criminal abortion in the United States came in 1812 with Commonwealth v. Bangs. [1] This Massachusetts case alleged that Isaiah Bangs assaulted Lucy Holman — who was pregnant with their unborn child — and forced her to consume poison in an unsuccessful attempt to induce an abortion. The Massachusetts Supreme Court determined that Holman willingly consumed the poison, absolving Banks of liability. Additionally, since no criminal abortion laws existed anywhere in the United States at the time, the ruling was entirely based on English common law with determination that the quickening (the point at which a pregnant woman could feel fetal movement) should be the threshold for criminality. The precedent set by this case eventually served as a common demarcation between misdemeanor and felony in many early criminal abortion laws.

Nine more years passed before the first written law would arise, coming in the Public Acts of Connecticut 1821, §14 (archaic spelling retained).

“Every person who shall, wilfully and maliciously, administer to, or cause to be administered to, or taken by, any person or persons, any deadly poison, or other noxious and destructive substance, with an intention him, her, or them, thereby to murder, or thereby to cause or procure the miscarriage of any woman, then being quick with child, and shall be thereof duly convicted, shall suffer imprisonment, in newgate prison, during his natural life, or for such other term as the court having cognizance of the offence, shall determine.” [2]
Public Statute Laws of Connecticut, 1821, Title 20, §14 (CT, 1821)

This law took the precedent set by Bangs in regards to the quickening but also equally criminalized an attempted abortion, regardless of success, with the penalty of seven to ten years imprisonment. Connecticut remained the only state with a criminal abortion law for over a decade, until Illinois enacted one in 1833, modeling much of the language on that of Connecticut and declaring the penalty for an attempt to be three years imprisonment and a fine of $1000. [3]

The New Science of Embryology

Advancements in biological sciences during the late 1820s started diminishing the importance of the quickening among European academia. Karl Ernst von Baer, now known as the “father of embryology,” published his 1826 discovery of the mammalian ovum in Ovi Mammalium et Hominis Genesi (Mammalian Egg and Human Genesis). [4] He followed in 1828 with his book on comparative embryology, Über Entwickelungsgeschichte der Thiere (About the Evolutionary History of Animals) [5], sharing with the European medical community embryological discoveries of the ovum, blastula, and notochord. The book also described Caspar Friedrich Wolff’s new germ layer theory. During the years that followed, these discoveries also gained prominence among medical professionals in the United States.

In 1834, The Ohio Legislature enacted the nation’s first ever pre-quickening criminal abortion law, alongside a post-quickening law. [6] Both laws provided exemptions in cases where two physicians agreed that the abortion was needed to preserve the mother’s life. The pre-quickening law did not require success and declared a penalty of a year in jail and a fine of $500; the post-quickening law declared the act a high misdemeanor and provided equal punishments for the deaths of either the unborn child or the mother with a penalty of one to seven years in prison.

Acts of 1834, §§1-2 (OH, 1834)

Indiana followed in 1835 with a law covering willful abortion attempts during the entirety of pregnancy (or even supposed pregnancy), regardless of success. If not performed to save the mother’s life, the penalty for such action was a year in jail and $500 fine. [7]

That same year, the Missouri General Assembly enacted three separate laws for the Missouri Revised Statutes concerning death of unborn children. [8] The pre-quickening law (§36) mirrored that of Ohio. The fetal homicide law (§9) and criminal abortion law (§10), however, took the earliest steps toward declaration of prenatal personhood in criminal law by deeming the crimes to be manslaughters. (Interestingly, the criminal abortion law neglected to mention that death must occur for manslaughter conviction.) Michigan mirrored all three laws in 1846. [9] Arkansas, Mississippi, Wisconsin, and the Territory of Minnesota mirrored Missouri’s post-quickening criminal abortion and fetal homicide laws in 1838 [10], 1839 [11], 1848 [12], and 1851 [13], respectively. The Territories of Iowa and Oregon combined the fetal homicide law and post-quickening criminal abortion law into single manslaughter statutes in 1843 [14] and 1849 [15], respectively.

Revised Statutes, Art. II, §§9,10 (MO, 1835)

During the 1840s, several more states began ratifying their own criminal abortion laws, often taking unique approaches. In 1840, The Maine Legislature enacted two separate laws applying throughout pregnancy, one regarding successful abortions with up to five years in prison and one regarding attempted abortions with up to one year in jail. Both had exceptions when preserving the mother’s life. [16] Alabama followed the next year by taking just the attempted abortion aspect of Maine so that the jail time of three to six months would apply regardless of success at any time within pregnancy. [17]

Massachusetts followed in 1845 with a post-quickening criminal abortion law that also applied to any parties assisting. If the mother died during the process, all involved were charged with felonies having five to twenty years in prison. Otherwise, the punishment was a misdemeanor with one to seven years in prison. [18] Vermont adopted a similar law in 1846. [19]

Also in 1845, New York’s legislature enacted statutes mirroring those of Missouri (and correcting the next year to require death for the manslaughter charge [20]) alongside the nation’s first law against attempted self-induced abortions:

“Every woman who shall solicit of any person any medicine, drug, or substance or thing whatever, and shall take the same, or shall submit to any operation, or other means whatever, with intent thereby to procure a miscarriage, shall be deemed guilty of a misdemeanor, and shall, upon conviction, by punished by imprisonment in the county jail, not less than three months nor more than one year, or by a fine not exceeding one thousand dollars, or by both such fine and imprisonment.” [21]

Laws of 1845, Ch. 260, §§1-3 (NY, 1845)

New Hampshire followed with similar Laws to New York in 1848, but with a lesser sentence and the exemption requiring two physicians. [22]

By the mid 1850s, more than half of states and territories had some form of criminal abortion laws.

The American Medical Association

In 1857 came a push by members of the American Medical Association to assert humanity of the unborn from conception. The Committee on Criminal Abortion met in Louisville, KY, under the leadership of Dr. Horatio Storer. In 1859, the AMA published their report, which included three statements:

  1. There is wide-spread ignorance of abortion, including belief that fetal life only begins after the quickening.
  2. Unintentional carelessness of medical professionals causes fetal demise through omission of precautions.
  3. Defects in common and statute laws fail to recognize civil rights of the unborn. [23]

The report unanimously condemned the crime of abortion and called for the following:

  • Educating the general population on fetal development
  • Correcting the errors within their ranks that led to negligence
  • Establishing an obstetrics code
  • Aiding in the drafting of laws that better protect the unborn [24]

As a result, the AMA lobbied to close loopholes in flawed laws to slow the quickly-growing underground abortion industry.

On his own, Dr. Storer was also a driving force in the civil rights push for the unborn. [25] He studied in-depth the quickly-growing underground abortion industry run by physicians and midwives of ill repute, reporting that from 1805 to 1856, the reported stillbirth rate in New York City swelled from 1:1633.4 to 1:11. His studies led him to declare that hundreds of thousands of lives were at stake. [26]

Storer released educational materials for OB/GYNs to provide their patients [27] and their patients’ husbands [28] to inform them on matters of the unborn in hopes of reducing the abortion rates. Additionally, he released numerous essays advancing the sciences of obstetrics and gynecology to better save lives, including by advocating for the novel idea of using anesthetics during labor.

Over the next decade, several states saw amendments to their laws or the creation of completely new laws. These focused on harsher penalties and applications throughout pregnancy. Generally, post-quickening abortions were felonies, and pre-quickening abortions were misdemeanors. Notable among this decade was the Territory of New Mexico, which had laws in 1854 relating to post-quickening abortions and fetal homicides that declared the crimes to be third-degree murders. [29] Additionally, in 1857, Texas’ detailed abortion act had a specific section for what would be called “partial-birth abortion” or “partial-birth infanticide” today. The penalty for this crime was five years to life imprisonment. [30]

Penal Code, Ch. VII, Arts. 534-536 (TX, 1859)

Fourteenth Amendment Ratification

During the 1866-1868 legislative sessions, several states ratified new or amended criminal abortion laws while the Fourteenth Amendment [31] to the US Constitution was circulating among them.

The Alabama Legislature passed an amended law in 1866. [32] It applied only to successful abortions and increased the maximum penalty from six months to twelve months, possibly with hard labor. In 1868, the next legislature went on to ratify the Fourteenth Amendment.

In January of the 1867 sessions, the legislatures of Ohio [33] and Illinois [34] both passed joint resolutions to ratify the Fourteenth Amendment. (In March of that year, the legislature of Maryland [35] rejected it for shifting too much power from the states to the Federal government.) Later in the same sessions, each legislature also passed abortion laws that applied throughout the entirety of pregnancies with penalties of imprisonment. [36, 37, 38] Ohio’s 1867 Senate journal included a committee report on criminal abortion that referenced essays by the AMA and Dr. Storer and declared quickening was a “ridiculous distinction.” The report's call for increasing criminal abortion penalties on what morally amounted to “child-murder” [39] resulted in the post-quickening penalties of the original 1834 law being expanded to cover conception onward.

Senate Journal, p.233 (OH, 1867)

Vermont’s legislature amended the state’s abortion law in 1867 [40] — the session following the state’s October 1866 ratification of the Fourteenth Amendment [41] — with an expansion to the entirety of pregnancy and imprisonment of three to ten years for any attempted abortion, successful or not.

On June 9, 1868, The Florida Legislature passed a joint resolution to ratify the Fourteenth Amendment. [42] Two months later, the same legislature passed the state’s first abortion laws, declaring deaths of either the unborn quick child or the mother to be the same charges of manslaughter and abortion attempts at any point in pregnancy to receive up to seven years imprisonment. [43]

Why Is the Fourteenth Amendment Important?

After Griswold v. Connecticut (1965) [44] ruled that contraceptive bans for married couples violated privacy rights within the “penumbras” of several constitutional amendments, the Fourteenth Amendment became a major point of argument in court cases concerning abortion.

In 1970, Steinberg v. Brown [45] cited Griswold in defense of Ohio’s then-still-standing 1867 criminal abortion law, by concluding that

“[o]nce human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state the duty of safeguarding it.”  The Court concluded that “[w]e do not find that § 2901.16 Ohio Rev. Code is in any way violative of the equal protection clause of the Fourteenth Amendment,” thereby declaring that personhood applies to the unborn.

The US Supreme Court also cited Griswold in Roe v. Wade (1973) [46], using the Fourteenth Amendment and the premise of the quickening as justifications for legalizing induced abortions. Yet, it is clear that state legislatures during the ratification process saw the quickening as less important than decades earlier, and they were more readily asserting the legal personhood of the unborn in criminal laws. This emphasis of personhood was a key aspect in the Due Process Clause (mirrored from the Fifth Amendment [47]) in the newly-ratified Fourteenth Amendment §1 (emphasis added, based on textual separation in the drafting committee journal [48]):

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.”

In total, by 1868, twenty-one states had pre-quickening criminal abortion laws, asserting importance of the unborn from the moment of conception. Additionally, twelve states declared post-quickening induced abortions (and other fetal homicides in eleven of them) to be either murders or manslaughters under crimes against the person. Combine these with the common civil practice of posthumous inheritance [49], the growing commonality of prenatal child support [50], and quickly-advancing medical science revealing humanity of the unborn, the case for prenatal personhood being accepted by state legislatures by 1868 has a solid foundation.

Status of Criminal Abortion Laws by State per Year

References

  1. Commonwealth v. Isaiah Bangs, 9 Mass. 387, 1812 WL 1295 (Mass., 1812), archived at https://cite.case.law/mass/9/387/
  2. Public Acts of 1821, §14. “Crimes and Punishments”, p.96. (Conn., 1821) https://hdl.handle.net/2027/mdp.35112105063657
  3. Illinois Revised Code, Div 5, §46. “Offenses Against the Persons of Individuals.” (Ill., 1833) https://archive.org/stream/revisedlawsofill00illi?ref=ol
  4. von Baer, Karl Ernst. (1827) Ovi Mammalium et Hominis Genesi. https://www.google.com/books/edition/De_ovi_mammalium_et_hominis_genesi/cKZkAAAAcAAJ?hl=en&gbpv=1&dq=Ovi+Mammalium+et+Hominis+genesi
  5. von Baer, Karl Ernst. (1828) Über Entwickelungsgeschichte der Thiere. Beobachtung und Reflexion. https://www.google.com/books/edition/Über_Entwickelungsgeschichte_der_Thiere/ev7OAAAAMAAJ?hl=en&gbpv=0
  6. Acts of 1834, pp.21-22, §§1-2. “An act to provide for the punishment of certain crimes therein names.” (Ohio, 1834) https://hdl.handle.net/2027/iau.31858017022355
  7. Acts of 1835, Ch. 47, §3, p.66. “Medicine administered to a pregnant woman to produce miscarriage.” (Ind., 1835) https://hdl.handle.net/2027/uc1.aa0002921237
  8. Missouri Revised Statutes, Art II, §§9, 10, 36 “Crimes and Punishments.” (Mo., 1835) cdm16795.contentdm.oclc.org/cdm/ref/collection/p16795coll26/id/1158
  9. Michigan Revised Statutes, Title XXX, ch. 153, §§32-34, p.662. “Offenses against the lives of persons of individuals.” (Mich., 1846) https://hdl.handle.net/2027/nyp.33433007045952
  10. Revised Statutes of Arkansas, Ch. 44, Div. III “Offenses Against the Lives of Persons of Individuals”, Art. II “Manslaughter”, §§5-6, p.240. (Ark., 1838) https://hdl.handle.net/2027/nyp.33433009077029
  11. Acts of 1839, Ch. 66, Art. 1, Tit. 3, Art. 1, §§8-9 “Manslaughter.” (Miss., 1839), incorporated into Mississippi Revised Code of 1857 with degrees of the manslaughter stricken.
  12. Wisconsin Revised Statutes of 1858, Ch. 164 “Offenses Against the Lives and Persons of Individuals”, §§10-11, p.930. (Wis., 1848) https://hdl.handle.net/2027/nyp.33433007185147
  13. Territory of Minnesota Revised Statutes, ch. 100 “Offences Against the Lives and Persons of Individuals”, §§10-11, p.493 (Minn., 1851) https://hdl.handle.net/2027/nyp.33433007047073
  14. Revised Statutes of the Territory of Iowa, Ch. 49, “Manslaughter,” §10, p.119. (Iowa, 1843) https://hdl.handle.net/2027/nyp.33433019605611
  15. Acts of the Territory of Oregon, “Manslaughter,” §10. (Ore., 1849) https://hdl.handle.net/2027/mdp.35112204566923
  16. Revised Statutes of Maine, Ch. 160, §13 “Procuring Abortion”, §14 “Attempting to Procure Abortion.” (Maine, 1840) lldc.mainelegislature.org/Open/RS/RS1840/RS1840_c160.pdf
  17. Acts of 1841, No. 138, Ch. 6, §2, p.143, “Offenses against the Public Morals.” (Ala., 1841) https://archive.org/details/alabama-acts-1840-1841/page/n101/mode/1up, incorporated into Penal Code of Alabama, Ch. 6, §2
  18. Acts of 1845, Ch. 27 “Unlawful attempts to cause Abortion,” p.406. (Mass., 1845) https://hdl.handle.net/2027/hvd.li2iq2
  19. Public Acts of 1846, No. 33, §1 “Penalties for Procuring Abortion,” pp.34-35. (Vt., 1846) https://hdl.handle.net/2027/nyp.33433007054038
  20. Laws of 1846, Ch. 22 “To punish the procurement of Abortion, and for other purposes,” p.19. (NY, 1846) https://hdl.handle.net/2027/iau.31858017075965
  21. Laws of 1845, Ch. 260 “To punish the procurement of Abortion, and for other purposes,” pp.285-‘6. (NY, 1845) https://hdl.handle.net/2027/iau.31858017076005
  22. Laws of 1848, Ch. 743 “Offenses Against the Life or Person,” §§1-4. (NH, 1848), incorporated into Compiled Statutes of New Hampshire, 1853, Title XXVI, ch. 227, §11, pp. 544-‘5. https://hdl.handle.net/2027/nyp.33433009060173
  23. The Transactions of the American Medical Association v.XII i.0. (1859) “The Report of the Committee on Criminal Abortion,” p.75-76. Philadelphia: Collins. https://ama.nmtvault.com/jsp/viewer.jsp?doc_id=ama_arch%2FAD200001%2F00000012
  24. The Transactions of the American Medical Association, p.76-77. Ibid.
  25. Storer, Horatio Robinson, MD. (1860) On Criminal Abortion in America. Philadelphia: J.B. Lippincott & Co. Archived by Google at https://books.google.com/books/about/On_Criminal_Abortion_in_America.html?id=4kprAAAAMAAJ
  26. Storer. On Criminal Abortion in America, pp.65, 91. Ibid.
  27. Storer, Horatio Robinson, MD. (1866) Why Not? A Book For Every Woman. Boston: Lee and Shepard. Archived at https://archive.org/details/whynotbookforeve00stor
  28. Storer, Horatio Robinson, MD. (1868) Is It I? A Book For Every Man. Boston: Lee and Shepard. Archived at https://archive.org/details/isitibookforever00stor
  29. Laws of 1854, Ch. 3 “Offences Against Lives and Persons,” §§10-11, p.88. (NM, 1854) https://hdl.handle.net/2027/mdp.35112203960150
  30. Penal Code of Texas, Ch. VII “Abortion,” Art.535, p.104. (Texas, 1857) https://hdl.handle.net/2027/nyp.33433007054772
  31. Fourteenth Amendment to United States Constitution (US, 1868) https://constitution.congress.gov/constitution/amendment-14/
  32. Acts of 1866, ch. 5, §64 “Offenses Against Public Morality and Decency.” (Ala., 1866) for incorporation into Penal Code of Alabama 1867, §3605, p.690
  33. Joint Resolutions of 1867, pp.320-321. (Ohio, 1867) https://hdl.handle.net/2027/iau.31858017022611
  34. Joint Resolutions of 1867, pp.29-30. (Ill., 1867) https://archive.org/details/reportstogeneral12illi/page/n35/mode/2up (committee report recommending ratification)
  35. Joint Resolutions of 1867, pp.880-911. (Md., 1867) http://aomol.msa.maryland.gov/000001/000133/html/am133--5106.html (includes committee report discussion rejection)
  36. General Laws of 1867, pp.135-136, §2. (Ohio, 1867) https://hdl.handle.net/2027/iau.31858017022611
  37. Statutes of Illinois, 1868, ch. 30, §47 “Offences Against the Persons of Individuals.” (Ill., 1867) https://hdl.handle.net/2027/uc1.b3682969
  38. Laws of 1867, ch. 182, §11 (Md., 1867) https://msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/000001/000133/html/am133--4554.html
  39. Journal of the Senate, pp.233-235. “Additional Report from the Select Committee to Whom was Referred SB No. 285.” (Ohio, 1867) https://hdl.handle.net/2027/chi.78242783
  40. Public Acts of 1867, No. 56, §1 “Penalties for Procuring Abortion,” pp.64-65. (Vt., 1867) https://hdl.handle.net/2027/nyp.33433007053915
  41. Joint Resolutions of 1867, No. 73, pp.81-82. (Vt., 1866) https://hdl.handle.net/2027/nyp.33433007053907
  42. Journal of the Senate, c.1, v.15, pp.7-8 (Fla., 1868) https://hdl.handle.net/2027/chi.096237768
  43. Acts 1st Session of 1868, Ch. 1637, subch. 3, §10 “Killing of unborn child by injury to mother”, §11 “Abortion.”, ch. 8 §9 “Administering poison to produce miscarriage.” (Fla., 1868) incorporated into Compiled Laws of Florida, §2-3211-‘2
  44. Estelle T. Griswold, et al. v. State of Connecticut (381 U.S. 479, 1965) https://supreme.justia.com/cases/federal/us/381/479/
  45. A.H Steinberg, MD, et al. v. Paul Brown, Atty Gen of Ohio (321 F. Supp. 741; ND Ohio, 1970) https://law.justia.com/cases/federal/district-courts/FSupp/321/741/2597111/
  46. Jane Roe, et al. v. Henry Wade (410 US 113, 153-54; 1973) https://www.oyez.org/cases/1971/70-18
  47. Fifth Amendment to United States Constitution (US, 1791) https://constitution.congress.gov/constitution/amendment-5/
  48. Journal of the Joint Committee on Reconstruction, 39th Congress, 1st Session (US, 1865) Washington: Government Printing Office. https://archive.org/details/journalofjointco01unit/page/1/mode/2up
  49. Laws of 1838, §51 “Provisions for Posthumous Children of Intestates", p.520. (Iowa, 1838) https://www.legis.iowa.gov/docs/publications/iactc/1838.1/CH0073.pdf
  50. Gump, Daniel (2000) “The History of Prenatal Child Support in the United States,” Human Defense Initiative. https://humandefense.com/the-history-of-prenatal-child-support-in-the-united-states/
Criminal Abortion Before the Fourteenth Amendment
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