Ecology Law Quarterly
Volume 3
Issue 2 Spring
Article 3
March 1973
Abortion: The Five-Year Revolution and Its Impact
Julie Conger
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Recommended Citation
Julie Conger, Abortion: The Five-Year Revolution and Its Impact, 3 Ecology L.Q. (1973).
Available at: http://scholarship.law.berkeley.edu/elq/vol3/iss2/3
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ABORTION:
THE FIVE-YEAR REVOLUTION
AND ITS IMPACT
The most pressing environmental problems in America and
throughout the world are attributable in significant part to rapid and
continuing increase in population. Many have looked to 1he reform
of abortion laws as a means of controlling population growth. In
January 1973 the United States Supreme Court, in Roe v. Wade and
Doe v. Bolton, abruptly overturned restrictive abortion laws throughout
the United States. This Comment analyzes these decisions, particularly
their public health and demographic aspects. The author concludes
that the nation's medical facilities will readily adjust to the increased
demand for abortions and that the primary effect of legalization will
be an improvement in the quality of abortion operations, rather than
an increase in the quantity of operationsperformed.
In Roe v. Wade and Doe v. Bolton,' two landmark decisions an-
nounced January 22, 1973, the United States Supreme Court invalidated abortion laws in 31 states and the District of Columbia and
struck out critical provisions in the statutes of 14 others.2 The decisions marked the climax of over five years of intensive efforts to reform
abortion statutes, a struggle characterized by rapid changes in public,
medical, and judicial opinion on this controversial issue.
Until 1967 the availability of legal abortions was severely restricted throughout the United States by state laws permitting abortion
only when the mother's life was seriously threatened by continuation
of pregnancy. Since 1967, 16 state legislatures have passed variations
of a liberalized therapeutic abortion act which eased many of the restrictions. 3 In addition, legal attacks on both traditional and liberalized
1. 410 U.S. 113 (1973) and 410 U.S. 179 (1973). Justice Blackmun wrote
the majority opinion in both cases while Justices White and Rehnquist filed dissenting
opinions.
At the time of the first argument on December 13, 1971, Justices Powell and
Rehnquist had been nominated to the Court but their appointments were awaiting
Senate approval. On June 26, 1972, the Supreme Court held the cases over for reargument before a full court, postponing until 1973 the announcement of its decision.
Rumors of political rivalries and rifts accompanied the postponement, and it was alleged that Chief Justice Burger had overstepped his traditional role by assigning the
writing of the majority opinion to Justice Blackmun. See N.Y. Times, July 5, 1972,
at 27, col. 1.
2. See Tables I and II, pp. 345, 346 infra. Residency requirements in the Alaska,
Hawaii and Washington statutes have been invalidated; the New York law is the only
one left intact by the decision. See Table III, p. 347 infra, for statutory citations.
3. See text accompanying notes 14-15 infra, and 347 infra.
ECOLOGY LAW QUARTERLY
[Vol. 3:311
abortion laws were begun in state and federal courts, culminating in
the Roe v. Wade and Doe v. Bolton decisions.
This Comment explores the effects of the legalization of abortion
on medical facilities and procedures throughout the nation and evaluates its probable impact on long-term population projections. While
several questions, primarily medical in nature, remain open, these decisions will initiate a radical change in medical practice by removing
almost entirely from the penal code criminal sanctions upon the only
medical procedure so encumbered.
HISTORICAL PERSPECTIVE: ABORTION BEFORE
A.
1973
Abortion Laws: From Prohibition to Statutory Liberalization_-
The medical definition of abortion, both spontaneous and induced,
is "the expulsion of an embryo prior to the start of 'viability' or 'quickening.' "I While abortion has been practiced for almost 5000 years,
prohibitive legal enactments are relatively modern.' Under the common law abortion before quickening was not a crime." Connecticut
passed the first law forbidding abortion of a quick fetus in 182 1,7 and
the other states followed suit, either entirely discarding the quickening
distinction or keeping it solely to vary the criminal penalty."
In addition to traditional abortion statutes, manslaughter penalties
have been enforced for the death of the unborn child or the mother
4. L. HELLMAN & J. PRITCHARD, WILLIAMS OBSTETRICS 493 (14th ed. 1971).
Viability (the time at which the fetus is capable of life outside the womb) has been
determined as falling between 24 and 28 weeks of gestation. Quickening refers to
that period between 16 and 18 weeks of gestation when the fetus first moves in the
mother's uterus. For discussion of these and related medical terms see Roy, Abortion: A Physician's View, 9 WASHBURN L.J. 391 (1970).
5. References to induced abortion have been found in early Chinese and Egyptian accounts and the ancient Greeks favored termination of pregnancy for other than
medical reasons. Guttmacher in "Abortion-Yesterday, Today and Tomorrow" (printed
in THE CASE FOR LIBERALIZED ABORTION Now, pamphlet series, 1967) notes that before
enactment of the first abortion statute in England in 1803, abortion was punishable
only by religious penalties. See also Roe v. Wade, 410 U.S. at 130.
6. For an excellent and thorough coverage of the English common law on
abortion, as adopted by Georgia and Texas, see Means, The Phoenix of Abortional
Freedom, 17 N.Y.L.F. 335, 336-82 (1971). See also Roe v. Wade, 410 U.S. at 132-38.
7. Conn. Stat. Tit. 20, § 14 (1821). The power to penalize or to legalize abortion has been held a matter for the states and not for Congress. Babbitz v. McCann,
310 F. Supp. 293 (E.D. Wis., 1970), appealdismissed, 400 U.S. 1 (170).
8. For a thorough description of abortion codes and practices in other counMedical
tries, see D. CALLAHAN, ABORTION: LAW, CHOICE AND MORALITY (1970).
and demographic experiences with legalized abortion -insome European countries and
Japan are well documented in Tietze, Legal Abortion in Industrialized Countries,
45 STUDIEs IN FAMILY PLANNING 6 (1969).
19731
ABORTION DECISIONS
after abortion.' Thirteen states have feticide statutes which penalize
as manslaughter the killing of an unborn "quick" child by injury to
the mother which would be murder if it had caused the death of the
mother.1" The effect of this legislation was that prior to 1967 every
state prohibited induced abortions other than to save the life of the
mother. The medical profession tended to interpret these laws conservatively, and estimates of the numbers of therapeutic abortions performed between 1963 and 1966 range from 5000 to 9000 a year."
During the early 1960's the dilemma of the pregnant woman seeking an abortion was made public by the problem of children with
physical defects born to women who had unknowingly ingested thalidomide in the first trimester of pregnancy. The problem was further
highlighted in 1964 by a nationwide rubella epidemic, which caused
an estimated 30,000 defective children12 and a sharp increase in the
13
number of abortions.
In 1962 the final draft of the Model Penal Code on abortion was
completed. The Model Code permitted abortion in the first 26 weeks
of gestation where: the pregnancy resulted from rape or incest; there
was a substantial risk that continued pregnancy would endanger the
woman's life or gravely impair her physical or mental health; or there
was substantial risk that the child would be born with grave physical
or mental defects. 14 Performance in a licensed hospital (with the exception of an emergency situation) and written certification by two
physicians before performance of the abortion also were required.
Thus, the Model Code formally introduced the concepts of therapeutic
9. State v. Willson, 113 Ore. 450, 230 P. 810 (1924); Sans v. State, 147 Neb.
67, 22 N.W.2d 385 (1946). In almost all jurisdictions abandonment by the physician
after the performance of an abortion has compounded the crime. Wolcott v. Gaines,
255 Ga. 373, 169 S.E.2d 165 (1969); Henrie v. Griffith, 395 P.2d 80 (Okla. 1964).
In civil suits wrongful death actions have been successful and claims of negligence in
medical aftercare have allowed recovery at least to the extent of injuries suffered.
Henrie v. Griffith, 395 P.2d 809 (Okla. 1964); Lembo v. Donnell, 116 Me. 505, 101
A. 469 (1917).
10. It is interesting to note that three of these states (Arkansas, Georgia, and
South Carolina) have adopted an inconsistent position of liberalizing abortion laws,
thus deemphasizing the legal significance of the fetus, while at the same time promoting fetal rights by protecting it from interference by third parties. For an analysis
of this discrepancy see Note, A Survey of the Present Statutory and Case Law on
Abortion: The Contradictionsand the Problems, 1972 U. ILL. L.F. 177, 191-95 (1972).
11. Tietze, United States: Therapeutic Abortions, 1963 to 1968, 59 STUDIES IN
FAMILY PLANNING, 5-7 (1970).
12. Niswander, Medical Abortion Practices in the United States, 17 CASE W.
REs. L. REV. 403, 412 (1965).
13. Tietze, supra note 11, at 5-7. The high of 9000 reported abortions in
1964 was due to the rubella epidemic.
14. AMERICAN LAW INsTITUTE, MODEL PENAL CODE, § 230.2 (proposed official
draft, 1962).
ECOLOGY LAW QUARTERLY
[Vol. 3:311
abortion ("to preserve the life or health of the mother") and eugenic
abortion (based on the possibility of a defective fetus) into the legal
system.
In response, from 1967 to 1970 the legislatures of twelve states
enacted liberalized therapeutic abortion laws similar to the Model Code.
Limited reforms allowing abortions solely to save the life or health of
the mother were passed in the District of Columbia and in Alabama.
Since 1970 Alaska, Hawaii, and New York have passed laws which
essentially legalize abortion on request by eliminating requirements for
justification; Washington achieved the same result by popular referendum. The abortion laws of the 50 states and the District of Columbia
thus could be divided into four categories: those prohibiting all
abortions; traditional laws permitting abortions only to save the life
of the mother; therapeutic abortion laws modeled after the Model Penal
Code; and laws removing all but minor procedural restraints upon the
performance of abortions up to the period of viability. 15
Louisiana, Massachusetts, New Jersey and Pennsylvania provided
no specific exceptions to the abortion prohibition. However, decisional
law in Massachusetts has construed the standard as similar to that of a
therapeutic abortion statute,'" and the New Jersey Supreme Court has
deemed an abortion justified if performed to preserve the life, but not
the health, of the mother.' 7 In Louisiana, there is no express exception to the "crime of abortion' 8 in the criminal code, but the Louisiana
Medical Practice Act permits abortion if done for the "relief of a woman
whose life appears imperiled after due consultation with another
'
licensed physician."19
In the states with liberalized laws, there was a wide range of limi20
tations on the maximum period of gestation allowing legal abortion.
15. See Tables I and II, pp. 345, 346 infra, for a comprehensive breakdown of all
state abortion laws, detailing both justification and procedural requirements. Four
states permit abortion to save the life of the mother or the child. This seeming contradition in terminology can be explained only if one assumes that it was intended to
specifically exempt induced labor from the scope of the abortion statutes. 23 other
states permit abortion only if necessary to save the life of the mother. 14 states and
the District of Columbia recognize as justification a threat to the physical or mental
health of the woman. Eugenic grounds are permitted in 12 states, rape in 14 states,
and incest or "felonious intercourse" in 11. Four states allow abortion on demand
up to the period of viability.
16. Comm. v. Brunelle, 341 Mass. 675, 171 N.E.2d 850 (1961).
17. State v. Brandenburg, 137 N.J.L. 124, 58 A.2d 709 (Sup. Ct. 1948).
18. LA. REV. STAT. ANN. 14 § 87 (West 1951).
19. LA. REV. STAT. ANN. 37 § 1285(6) (West 1964).
20. See Table II, p. 346 inIra. Most fall between 16 and 26 weeks. Arkansas,
Florida, Georgia, Kansas, North Carolina, South Carolina and Virginia have no durational limits on the length of pregnancy and thus conceivably would permit therapeutic abortions on viable fetuses of eight months or more.
ABORTION DECISIONS
1973]
In addition, several states impose residence requirements, which ranged
from proof of bona fide legal residence to a requirement that the
woman be a resident 120 days immediately preceding the abortion.2 1
Procedural requirements regarding medical approval and qualifications
22
of doctors and hospitals also varied from state to state.
B.
ChangingAttitudes Towards Abortion
Concurrent with the initial liberalization of state abortion laws
came a widespread shift in public attitudes, marking an increased acceptance of abortion as a legitimate medical procedure and method of
birth control.2 3 Although religious advocates of the fetal right to life
continued to maintain their views, 24 it became clear by the late 1960's
that for a variety of reasons public opinion favored reform on the overall issue of abortion.
Opponents of abortion reform claim that the fetus should be regarded as a person for constitutional purposes, and therefore is guaranteed the right to life by the Fifth and Fourteenth Amendments.2 5
21. Id.
22. Id. Preliminary approval by other physicians or a hospital therapeutic abortion committee often must be obtained. In addition, several states require special
approval in rape and incest cases, entailing affidavits, reports to local law enforcement officers, and even compulsory identification of the male involved. Other procedural impediments include requirements of a medical practitioner licensed to practice
in the state, performance in a licensed hospital, accreditation of the hospital, certificates and reports in hospital files, and reports to a state agency. Further statutory
and procedural features involving screening exceptions in emergencies, freedom of
conscience exemptions, requirement of consent, as well as elements of traditional abortion statutes such as proof of necessity, corroboration, quickening tests and defenses
are discussed at length in George, The Evolving Law of Abortion, 23 CASE W. Rm.
L. REV. 708 (1972).
23. See D. CALLAHAN, supra note 8; Peyton, Facog, Starry & Leidy, Women's
Attitudes Concerning Abortion, 34 OB. & GYN. 182 (1969); Lamm & Davison, Abortion Reform, 1:4 YALE REV. L. & Soc. Ac'rtoN, 55 (1971). See generally Moyers,
Abortion Laws: A Study in Social Change, 7 SAN DIEGO L. REV. 237 (1970).
24. Opposition to the reform movement has centered primarily in religious organizations. The Roman Catholic Church, in particular, has maintained steadfast
opposition to abortion reform and has submitted amicus curiae briefs in test cases of
various state abortion laws. Several other religious denominations, however, have advocated liberalization. For example, while the Greek Orthodox and Orthodox Jewish
congregations have condemned indiscriminate abortions, groups representing Reform
Jews, United Methodists, United Presbyterians, and Southern Baptists have called for
varying degrees of reform. For a comprehensive presentation of religious positions on
abortion, see D. CALLAHAN, supra note 8; Noonan, Amendment of the Abortion
Law: Relevant Data and Judicial Opinion, 15 CATH. LAw. 124 (1969); Louisell,
Abortion, The Practice of Medicine and Due Process of Law, 16 U.C.L.A. L. REV. 233
(1969); Drinan, The Morality of Abortion Laws, 14 CAm. LAw. 190 (1968).
25. Some courts have rejected the notion that fetal life was within the contemplation of either the Bill of Rights or the Civil Rights Act, 42 U.S.C.A. § 1981 et seq.
This point is explored in Roe v. Wade, the Supreme Court concluding that the word
ECOLOGY LAW QUARTERLY
[Vol. 3:3 11
The. theory of the inviolability of the fetal right to life finds its roots
in Judaeo-Christian morality which emphasizes the sanctity of human
life. 26 This fundamental right, it is argued, underlies all guarantees in
the Constitution, for "without the implicit existence of that right, the
other protections become hollow mockeries. ' 7 Having accepted as absolute the fetal right to life, it is difficult to justify any exceptions to
abortion prohibition, even for the possibility of the loss of the mother's
life. Alternatives such as adoptions and the appointment of a guardian
28
for the fetus to appear at an abortion hearing have been suggested.
Proponents of the right to life also assert that unborn persons
have vested property rights (although subject to divestiture if they
29
are not born alive) and analogize that the right to life is also vested.
Analysis of the legal recognition of the fetus as a human being, however, reveals an important distinction between the criminal law which
recognizes a state interest in the protection of the unborn child and the
civil law which generally holds that the rights of the fetus do not at0
tach until the accomplishment of a live birth or at least quickening.Y
"person" as used in the Fourteenth Amendment does not include the unborn. 410
U.S. at 158. McGarvey v. Magee-Women's Hospital, 340 F. Supp. 751 (W.D. Pa.
1972) and Byrn v. N.Y. City Health and Hospitals Corp., 31 N.Y.2d 194, 335 N.Y.S.
2d 390, 286 N.E.2d 887 (1972). No state requires a death certificate for a fetus before
20 weeks, nor are fetuses counted in the census. For an analysis of fetal rights in
general, see Note, The Law and the Unborn Child: The Legal and Logical Inconsistencies, 46 NOTRE DAME LAW. 349 (1971). See also Comment, A Cause of Action
for Wrongful Life: A Suggested Analysis, 55 MINN. L. REv. 58 (1970).
26. Abortion can be justified only if society has the right to prescribe the
conditions of continuing life, and to authorize the weighing of the right to
life against other values. To concede such a societal right is to depart from
the Judaeo-Christian ethic of reverence for human life.
Louisell, supra note 24, at 253.
27. Comment, In Defense of the Right to Life: The Constitutionality of Therapeutic Abortion, I GA. L. REV. 693, 698 (1967). The nature of the fetal right to life
is explored in Abortion Legislation and the Establishment Clause, 15 CATm. LAW.
108 (1969), which sets forth the amicus curiae brief submitted in People v. Belous,
71 Cal. 2d 954, 458 P.2d 194, 80 Cal. Rptr. 354 (1969).
28. See Louisell, supra note 24, at 251. The New York Court of Appeals rejected this approach in Byrn v. N.Y. City Health and Hospitals Corp., 31 N.Y.2d 194,
335 N.Y.S.2d 390, 286 N.E.2d 887 (1972).
29. Thorough coverage of the position of the unborn child in the laws of property, torts, criminal law and equity may be found in Id. at 235-44; Note, The Law and
the Unborn Child, supra note 25, at 351-69.
30. In the law of torts, for example, it has been held that the rights that an
unborn infant will enjoy when born can be violated before birth, Smith v. Brennan, 31
N.J. 353, 157 A.2d 497 (1960); but generally live birth is a prerequisite to recovery
for prenatal injuries. A New York Court, however, would deny fetal recovery for
wrongful death from injuries sustained prior to birth on the theory that:
The considerations of justice which mandate the recovery of damages by an
infant, injured in his mother's womb and born deformed through the wrong
of a third party, are absent where the foetus, deprived of life while yet unborn, is never faced with the prospect of impaired mental or physical health.
1973]
ABORTION DECISIONS
Moreover, the criteria for determining when human life begins
have been a source of controversy for scientists and theologians alike
for many years. 8 ' Even after conception, environmental factors such
as nutrition, disease, teratogenic agents, drugs, irradiation, maternal
age, psychological elements and socio-economic problems all can affect
prenatal development and must be considered in assessing the rights of
the fetus.
The Model Penal Code and therapeutic abortion laws based upon
it have adopted a balance of fetal and maternal interests, concluding
that "the evil of destroying the fetus is outweighed by the social evils
accompanying forced pregnancy and childbirth. '3 2 Critics of this test
contend that the Model Penal Code's justifications for liberalized abortion-i.e., to combat maternal mortality, to reserve the criminal law
for substandard behavior, and to recognize inadequacies in current
abortion laws-fail to meet the need for an explicit evaluation of the
fetus in light of the increasing utilitarianism of our society.3 Louisell,
for one, argues:
, . . [The Model Penal Code] confronts the law's evolution with a
countermovement. It would justify the weighing of the right to life
on scales open only to utilitarian weights. . . . The right to life
becomes relative not only to others' right to life, but to others'
health, happiness, convenience and desires for freedom from avoidable burdens. And the scales-master is to be not a neutral agent
84
such as the court, but the person who desires to avoid the burden.
Despite continuing legal debate over treatment of fetal rights,
public attitudes underwent a dramatic change in the last decade on the
general issue of abortion. While early opinion polls taken from 1965
to 1968 did not indicate much support for far-reaching abortion reform," the Gallup poll has noted a recent radical shift in public sentiment. In 1968 less than 15 percent of the public approved of liberalized abortion laws; in 1969 the figure had risen to 46 percent and
in August, 1972, the poll reported that for the first time a majority
Endresz v. Friedberg, 24 N.Y.2d 478, 483, 301 N.Y.S.2d 65, 69, 248 N.E.2d 901, 903
(1969). See also Comment, supra note 25.
31. See also Brief Amicus Curiae of Certain Physicians, Professors and Fellows
of the American College of Obstetrics and Gynecology submitted in Roe v. Wade,
410 U.S. 113 (1973). The data include an assertion that brain waves have been
obtained from fetuses of 45 days, and thus implies that a "soul" is present at that
time. Id. at p. 8. For an opposing theory, see Means, supra note 6, at 406-10.
32. Clark, Religion, Morality and Abortion: A Constitutional Appraisal, 2
LOYOLA L. REv. 1, 4 (1969); AMEICAN LAW INsTrrUTE, MODEL PENAL CODE § 230.3
(1962).
33. See Gianella, The Difficult Quest for a Truly Humane Abortion Law, 13
VILL. L. REV. 257, 262 (1968).
34. Louisell, supra note 24, at 248.
35. Kutner, Due Process of Abortion, 53 M, NN. L. Rzv. 1, 20 (1968).
ECOLOGY LAW QUARTERLY
[Vol. 3:311
(64 percent) of the public, including a majority of Roman Catholics,
felt that the abortion decision should be made solely by the woman
and her physician. 8"
In addition, national professional organizations adopted resolutions calling for liberalized abortion laws. In 1970 the American
Medical Association (AMA) adopted a position statement removing
limitations it had previously specified in its 1967 statement, which was
based upon the Model Penal Code recommendations. The AMA concluded that "the standards of sound clinical judgment . . . together
with informed patient consent should be determinative according to the
merits of each individual case."37 In 1972 the American Bar Association approved the Uniform Abortion Act, permitting abortion on request up to 20 weeks of gestation. The Act would also permit abortion
after that period on grounds similar to those provided by therapeutic
statutes.3" The President's Commission on Population Growth and
The American Future in March, 1972, published a formal recommendation that all states enact legislation similar to that of New York, that
abortion services be publicly funded and that costs be covered by
health insurance. Though specifically rejected by President Nixon, 9
the proposals encouraged legislative and judicial campaigns in the latter half of 1972 for repeal of restrictive abortion laws.
A combination of social forces stimulated the dramatic change in attitudes: concern with overpopulation and environmental issues; reaction to the influence of religious groups in the public sphere; the social
pressures of poverty, growing welfare rolls, and illegitimacy rates.
Feminism has played an increasingly important part, demanding wom36. N.Y. Times, Aug. 25, 1972, at 1, col. 3. See also S.F. Chronicle, Jan. 29,
1973, at 1, col. 1.
37. Proceedings of the AMA House of Delegates 221 (June 1970). See dis-
cussion in Roe v. Wade, 410 U.S. at 144-46. The American College of Obstetricians
and Gynecologists, the American Public Health Association and local medical organizations in New York and New Jersey also have urged abortion law reform. From a
medical standpoint, the reasons for liberalization are twofold. First, there is a high
rate of maternal mortality and complications in the United States with concomitant
public health problems associated with childbirth; secondly, a reform of the laws would
allow "the medical profession the dignity of operating within the legal framework instead of at odds with it." Mahoney, Therapeutic Abortion-The Psychiatric implications-A Double-Edged Sword?, 72 DIcK. L. REv. 270, 292 (1968).
38. Uniform Abortion Act, 58 A.B.A.J. 380 (1972). See Roe v. Wade, 410
U.S. at 146.
39. President Nixon has consistently refused such recommendations. He also
intervened in the New York repeal effort in a letter to Cardinal Cook expressing his
private concern for the "sanctity of life", and in January of 1971, by Executive Order,
he summarily curtailed the policy announced by the military of providing abortion on
request for military personnel and their dependents regardless of state or local law.
N.Y. Times, Aug. 17, 1972, at 35, col. 1.
ABORTION DECISIONS
19731
en's roles outside the home and emphasizing the woman's right to the
integrity of her body. 0 Advocates stress the argument that the decision to bear or not to bear a child is one for the woman alone to make
and that "a woman's right not to bear a child should be protected
41
equally with a man's right to procreate."
The disrespect for existing law and its consequent unenforceability highlight recent debates on the social, medical, and ethical aspects
of abortion. Lamm indicates that since 1967 the focus of public attention on the abortion issue has shifted from a moral stand on fetal
rights to concerns over public health, the environment, and overpopulation, indicating a public readiness to disengage the state from mat42
ters of private morality.
C.
Challenges to Abortion Laws
While therapeutic abortion laws were being proposed, enacted,
and often rejected in state legislatures, constitutional attacks on the
various statutes were being mounted through the judicial process. Although actions in several states have been stalled on jurisdictional
grounds,4" many cases have been decided on the merits and a variety
of constitutional arguments have been addressed. Reformers alleged
that both therapeutic and traditional laws were vague, overbroad, and
in violation of due process. They also argued that the criminal restrictions on induced abortion interfered with the physician's right to practice his profession freely and the woman's right to choose whether or not
40. In 1969 a resolution of the National Council for Women called for repeal of
all abortion laws. N.Y. Times, Nov. 2, 1969, at 58, col. 1. Abortion on demand has
been a key goal of the Women's Liberation movement, which has spearheaded law reform efforts. In the summer of 1972, however, after a dramatic struggle, the Democratic National Committee rejected the attempts of the women's political caucus to
write into the platform the right to abortion. See generally Moore, Abortion and
Public Policy: What Are the Issues?, 17 N.Y.L.F. 411 (1971).
41. Forer, The Case for Abortion on Demand, 43 PA. B. Ass'N Q. 203, 207-08
(1972). In the balance of interests between the fetal right to live and the woman's
right not to bear the child, it must be considered that the abortion statutes were,
almost entirely, written by men and "It is a bit presumptuous of the male to categorically posit that the right of the fetus to survive is more important than an interest,
whose depth is beyond his appreciation." Gianella, supra note 33, at 282.
42. Lamm and Davison, supra note 23, at 56.
43. See, e.g., Doe v. Rampton, Civ. No. 234-70 (D. Utah, Sept. 14, 1970) (temporary restraining order issued against enforcement of Utah statute); Planned Parenthood Ass'n v. Nelson, 327 F. Supp. 1290 (D. Ariz. 1971) (jurisdiction denied);
Doe v. Randall, 314 F. Supp. 32, rehearing denied, 314 F. Supp. 36 (D. Minn. 1970)
(per curiam) appeal docketed sub nom. Hodgson v. Randall, 402 U.S. 967 (1970)
(jurisdiction denied); Hall v. Lefkowicz, 305 F. Supp. 1030 (S.D.N.Y. 1969) (challenge
to the New York law dismissed as moot when the statute was repealed); Doe v. Dunbar, 320 F. Supp. 1297 (D. Colo. 1970); but see People v. Norton, No. 25576 (Colo.
Sup. Ct. 1970).
ECOLOGY LAW QUARTERLY
[Vol. 3:311
to bear children. In addition, allegations have been made that the statutes violate the equal protection clause of the Fourteenth Amendment
and the religious freedom clause."
The first declaration of the unconstitutionality of an abortion law
occurred in 1969 and greatly influenced subsequent decisions. In People v. Belous,45 the California Supreme Court invalidated a traditional
statute which prohibited all abortions except those necessary to save
the mother's life and held that a woman has a fundamental right to
choose whether or not to bear children.4 6 Though specifically avoiding a decision on the newly-enacted therapeutic statute, the court in
Belous showed a readiness to recognize abortion as a solely medical
7
practice.1
Despite its widespread influence, the Belous reasoning has been
rejected in several state and federal courts.4 In 1970 a federal district
44. For discussion and analysis of these grounds of constitutional attack, see
generally Charles & Alexander, Abortions for Poor and Nonwhite Women: A Denial
of Equal Protection?, 23 HAST. LJ. 147 (1971); Clark, supra note 32; Kutner, supra
note 35; Lucas, Federal Constitutional Limitations on the Enforcement and Administration of State Abortion Statutes, 46 N.C.L. 1Ev. 730 (1967); Oteri. Benjora &
Wouweing, Abortion and the Religious Liberty Clause, 7 HARV. Civ. RIGHTS--Ci. Lm.
L. REv. 559 (1972); Note, Abortion Statutes-Due Process, 8 DUQUESNE L. REv. 439
(1970); Note, The Right to Equal Access to Abortions, 56 IOWA L. REV. 1015 (1971);
Note, A Survey of the Present Statutory and Case Law, supra note 10.
45. 71 Cal. 2d 954, 458 P.2d 194, 80 Cal. Rptr. 354 (1969) cert. denied, 397
U.S. 915 (1969).
46. The Belous reasoning has been followed in other jurisdictions. In 1970 the
traditional Wisconsin abortion statute was held unconstitutional by the district court
in Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wis. 1970), appeal dismissed 400
U.S. 1 (1970), as a denial of a woman's right of choice to refuse to carry an unquickened embryo. After a temporary injunction restraining enforcement of the abortion
statute was entered in Kennan v. Nichol, 326 F. Supp. 613 (E.D. Wis. 1971), the
Supreme Court summarily affirmed the decision in Nichol v. Kernan, 404 U.S. 1055
(1972) (per curiam), pending announcement of its decision in Roe v. Wade and
Doe v. Bolton.
Also in 1970, in Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970), the district
court found the traditional Texas abortion law in violation of the woman's Ninth
Amendment right of choice whether or not to have children. In 1971 the district
court in Doe v. Scott, 321 F. Supp. 1385 (N.D. IlL 1971) appeal docketed sub nom.
Hanrahan v. Doe, Heffeman v. Doe, vacated and remanded, 410 U.S. 950 (1973) invalidated the traditional Illinois statute which had forced the birth of every fetus,
"no matter how defective or how intensely unwanted by its future parents," and held
that "the state may not prohibit, restrict or otherwise limit women's access to abortion
321
procedures performed by licensed physicians operating in licensed facilities."
F. Supp. at 1391.
47.. Subsequently, in requiring a therapeutic abortion committee to consider an
application from an unmarried pregnant minor who did not have parental consent, the
court held that an abortion is "surgical care related to pregnancy" under the applicable
medical care statute. Ballard v. Anderson, 4 Cal. 3d 873, 484 P.2d 1345, 95 Cal.
Rptr. 1 (1971).
48. In 1970 the Supreme Court of Iowa, in State v. Abodeely, 179 N.W.2d 347
1973]
ABORTION DECISIONS
court in Rosen v. Louisiana State Bd. of Medical Examiners"9 upheld
Louisiana's law against charges of vagueness and violation of due process, concluding that the state could confer upon the fetus "a right to
survive to natural termination of prenatal development," and that unless her life was threatened, the woman's interests must be subordinated
to those of the fetus. 50 Before 1973, the United States Supreme Court
only once addressed the merits of abortion statutes. In United States v.
Vuitch,5 1 it upheld the constitutionality of the District of Columbia
statute, which permitted abortion to save the life or health of the
mother, against a charge of vagueness, holding that the term "health"
embraced both physical and psychological well-being. 52
(Iowa Sup. Ct. 1970), appeal dismissed, 402 U.S. 936 (1971), upheld the constitutionality of the traditional Iowa abortion statute and rejected the Belous holding that
the language "necessary to preserve her life" was fatally vague. In the same year a
federal district court in Steinberg v. Brown, 321 F. Supp. 741 (N.D. Ohio 1970),
ruled against a challenge to the traditional Ohio statute, and specifically denied the extension of the right of privacy to abortion decisions. The court held that the state's
interest in affording the fetus an opportunity to survive was "superior to the claimed
right of a pregnant woman or anyone else to destroy the fetus except when necessary
to preserve her own life." Id. at 746.
49. 318 F. Supp. 1217 (E.D. La. 1970), vacated and remanded for further consideration in light of Roe v. Wade and Doe v. Bolton, 411 U.S. - (May 21, 1973).
50. Id. at 1225. Subsequent challenges to the statute in state courts have also
failed. State v. Lessar, 256 La. 201, 235 So. 2d 568 (1970); State v. Shirley, 256
La. 665, 237 So. 2d 676, cert. denied, 401 U.S. 926, rehearing denied, 402 U.S. 925
(1970); State v. Scott, 260 La. 190, 255 So. 2d 736 (1972). The same result obtained in Massachusetts, where a strict statute prohibiting all "unlawful" abortions was
held constitutional in Kudish v. Bd. of Registration in Medicine, 356 Mass. 98, 248
N.E.2d 264 (1969). The court relied upon judicial constructions to conclude that the
statute was not vague.
51. 402 U.S. 62 (1971).
52. Id. at 71-72. Therapeutic abortion statutes have also been under attack.
The decision in Doe v. Bolton, 319 F. Supp. 1048 (N.D. Ga. 1970), held portions of
the liberal Georgia statute unconstitutional, stating that "the state may not unduly
limit the reasons for which a woman seeks an abortion." Id. at 1055. However, a
district court upheld the North Carolina therapeutic statute in Corkey v. Edwards,
322 F. Supp. 1248 (W.D.N.C. 1971), vacated and remanded in light of Roe v. Wade,
410 U.S. 950 (Feb. 27, 1973). The district court found "sufficient public interest in
protecting the embryo to permit limited statutory intrusion into what otherwise would
be a protected zone of privacy." Id. at 1250. The four-month residency requirement
was invalidated as an unconstitutional limit on the right to travel, but has since been
replaced legislatively by a 30-day requirement. N.C. GEN. STAT. 14-45.1 (Supp.
1971).
Even the most liberal statute in the country, the New York law which allows
abortion on demand up to 24 weeks of pregnancy in clinics licensed by the state,
has not been immune from constitutional attack. In Byrn v. New York City Health
and Hospitals Corp., 38 App. Div. 2d 316, 329 (N.Y.S.2d 722 (1972), a law professor
was appointed guardian ad litem for all unborn fetuses and was granted a preliminary
injunction against the performance of abortions not necessary to save the mother's
life. This ruling was overturned by the Court of Appeals which found no right to life
or legal personality for the unborn. 31 N.Y.2d 194, 335 N.Y.S.2d 390, 286 N.E.2d
887 (1972).
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The year 1972 witnessed a rapid acceleration in abortion law
challenges and an increasing tendency of the courts to find abortion
statutes unconstitutional invasions of privacy rather than violations of
other constitutionally protected rights. While state courts in Indiana,53
Michigan," 4 Mississippi, 5 Missouri, 5 6 and South Dakota, 57 as well as
state and federal courts in Kentucky, 8 were reluctant to invalidate traditional statutes which allowed abortion solely for the preservation of
maternal life, challenges to procedural as well as justification requirements succeeded in other jurisdictions. 9 For example, a Colorado
state court 6" and a federal court in Kansas61 struck down the require53. Cheaney v. State, 285 N.E.2d 265 (Ind. Sup. Ct. 1972).
54. People v. Nixon, 42 Mich. App. 332, 201 N.W.2d 635 (1972). The court
in Nixon, however, concluded that "there is no longer a sufficient state interest to
justify continued prosecution of licensed physicians for the mere act of artificially
inducing a miscarriage of an unquickened fetus," thus limiting the holding to the
prevention of abortions by non-physicians. 42 Mich. at 339, 201 N.W.2d at 640.
55. Spears v. State, 257 So. 2d 876 (Miss. Sup. Ct. 1972) (per curiam), cert.
denied, 409 U.S. 1106 (1973).
56. Rodgers v. Danforth, 486 S.W.2d 258 (Mo. Sup. Ct. 1972).
57. State v. Munson, 201 N.W.2d 123 (S.D. Sup. Ct. 1972), judgment vacated
and remanded, 410 U.S. 950 (1973).
58. In Crossen v. Att'y Gen'l, 344 F. Supp. 587 (E.D. Ky. 1972), the district
court held that the state has a compelling interest in the preservation of potential
human life superceding the right to privacy, and denied charges of vagueness, denial
of right of choice, equal protection, and the establishment of religion. On October 6,
1972, a state court of appeals also sustained the statute against allegations of vagueness and invasions of the right to privacy. Sasaki v. Commonwealth, 485 S.W.2d 897
(Ky. Ct. App. 1972).
59. In January and February 1972 the supreme courts of Florida and Vermont
ruled invalid those states' traditional abortion laws, State v. Barquet, 262 So. 2d 431
(Fla. Sup. Ct. 1972); Beacham v. Leary, 130 Vt. 164, 287 A.2d 836 (1972). Also in
February, the district court in Young Women's Christian Ass'n v. Kugler, 342
F. Supp. 1048 (D.N.J. 1972), held the New Jersey statute, which prohibited all abortions "without lawful justification," unconstitutionally vague, a denial of a physician's
Fourteenth Amendment right to practice freely, and a violation of the Ninth Amendment right to privacy and Fourteenth Amendment due process clause.
A district court held the traditional Connecticut law unconstitutional in Abele v.
Markle, 342 F. Supp. 800 (D. Conn. 1972), on identical privacy grounds finding the
asserted state interests in the fetus "insufficient to warrant removing from the woman
all decision-making power over whether to terminate a pregnancy." Id. at 803. In
response, the Connecticut legislature one month later passed a new statute prohibiting
induced abortion not necessary to preserve the physical life of the mother, with the
expressed legislative intent "to protect and preserve human life from the moment of
conception." CONN. PUB. ACT No. 1 (May 1972 special session). In June the court
entered an order temporarily restraining enforcement of the new statute. Abele v.
Markle, Civ. No. B-521 (D. Conn. June 13, 1972). On September 20, 1972, the court
held the statute to be an unconstitutional invasion of privacy and personal choice,
specifically determining that the fetus was not a person for Fourteenth Amendment
purposes. 351 F. Supp. 224 (D. Conn. 1972).
60. People v. Norton, 507 P.2d 862 (Colo. Sup. Ct. 1972).
61. Poe v. Menghini, 339 F. Supp. 986 (D. Kan. 1972). The court also invalidated the requirement of certification by three physicians as a violation of both due
1973]
ABORTION DECISIONS
ment of hospital accreditation by the Joint Commission on Accreditation of Hospitals (JCAH). In Maryland a federal court in Vuitch v.
Hardy62 determined that hospitalization was not necessary for the performance of abortions in the first trimester of pregnancy. In observing
that there were reasonable alternatives to hospital abortion which would
"entail less of a burden on the exercise of constitutional rights,"6 3 the
court concluded that "the experience of other states has proved that,
with appropriate regulations, facilities other than hospitals can and
do protect the health of the woman seeking an abortion as adequately
'64
as hospitals do."
Following a different approach, the California Supreme Court in
People v. Barksdale6 5 held the criterion of the California therapeutic
abortion act,66 based on risk of grave health impairment, impermissibily vague in establishing grounds for the performance of abortions.
The court indicated that the act had not "established meaningful standards for the physicians who must administer it," 67 and invalidated
those portions of the act pertaining to the justification for abortions,
the establishment of medical committees and their procedures, and special provisions for rape or incest cases. The decision let stand the
prohibition of abortions after the 20th week of pregnancy and the requirement that abortions be performed solely by licensed physicians in
JCAH-accredited hospitals, recognizing a clear and legitimate legislative intent favoring these provisions. The court also construed the 20week limit to allow provision for medical emergencies and rejected the
argument that reliance upon JCAH standards was an unconstitutional
delegation of governmental power to a private agency resulting in economic and geographic discriminations across the state. Although recognizing that "abortion is the only medical procedure required by
criminal sanctions to be performed in a hospital,' 6 8 the court upheld
the state's right to legislate these standards for the performance of abortions.
process and equal protection. In finding that "the abortion procedure is among the
safest of surgical procedures," the court suggested that the limitation of abortions to
state-licensed facilities was also unnecessary, since "JCAH-accreditation provides no
more concrete assurance that abortion procedures will be performed in adequate facilities and by competent personnel than does state-licensure.I..." Id. at 994.
62. No. 71-1129-4 (D. Md. June 22, 1972) (unreported). The case was decided on a petition for writ of habeas corpus.
63. Id.
64. Id.
65. 8 Cal. 3d 320, 503 P.2d 257, 105 Cal. Rptr. 1 (1972).
66. CAL. HEALTh & SAFETY CODE §§ 25950-54 (West Supp. 1973).
67. 8 Cal. 3d at 331, 503 P.2d at 265, 105 Cal. Rptr. at 9. The fatal phrase
was "gravely impair" as the court found itself unable to precisely "ascertain what
degree of impairment must result from a continuance of pregnancy in order to 'gravely
impair' a prospective abortee's health." Id. at 328, 503 P.2d at 263, 105 Cal. Rptr. at 7.
68. Id. at 338, 503 P.2d at 270, 105 Cal. Rptr. at 14.
ECOLOGY LAW QUARTERLY
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This litigation set the stage for the Supreme Court decisions in
the companion cases of Doe v. Bolton and Roe v. Wade, which presented the Supreme Court with an opportunity to examine the major issues in the abortion debate.
II
THE WADE-BOLTON DECISIONS
Extension of the Right of Privacy to Abortions
A.
In 1970 in Roe v. Wade," the traditional Texas abortion statute,
which prohibited procuring or attempting abortion except to save the
mother's life,7" was challenged by a pregnant single woman, a licensed
physician with two pending state abortion prosecutions, and a childless
married couple who wished to avoid pregnancy. The district court
held that the law violated the woman's Ninth Amendment right of
choice whether or not to have children, and was overbroad and vague
in failing to give physicians adequate notice of proscribed acts. The
court did specify, however, that the right to choose to have an abortion was not unqualified and that the state had a legitimate concern
over the quality of the abortion performed. The State of Texas appealed to the Supreme Court.
Justice Blackmun wrote the majority opinion in Wade, as well as
in Doe v. Bolton. The former opinion, after carefully exploring the
history of medical abortion and abortion laws and stressing recent
changes in public and professional opinion, 71 expanded the right of privacy under the "Fourteenth Amendment concept of personal liberty
and restrictions upon state action" to include a woman's decision
whether or not to terminate her pregnancy. 72 Denying, however, that
69.
314 F. Supp. 1217 (N.D. Tex. 1970).
70. TEx.
PEN. CODE ANN.
art. 1191-96 (1961).
71. The Court also considered the issue of standing, finding that while the
complaint of the childless married couple was too speculative, the first two plaintiffs
had standing and presented justiciable actions. Despite the fact that Jane Roe's pregnancy ended before the 1971 filing of the appeal, her case was not declared moot
because pregnancy was found to be a condition "capable of repetition, yet evading
review," as it "often comes more than once to the same womin, and in the general
population, if man is to survive, it will always be with us." Roe v. Wade, 410 U.S.
113, 125 (1973).
72. Id. at 151-52. The Supreme Court had earlier set the stage for placing the
right to abortion under the right of privacy in its decision in Eisenstadt v. Baird,
405 U.S. 438 (1972). That case established the right of privacy as a guarantee of
freedom from "unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id. at 453. See
Note, Constitutional Law-Abortions-Statutory Limitations on Reasons for Abortions is
Violation of the Fundamental Right to Privacy, 22 MERCEn L. REv. 461 (1971);
Means, supra note 6. Some federal district courts also have invalidated state abortion
laws on right of privacy grounds, deriving authority from the Ninth Amendment.
19731
ABORTION DECISIONS
the woman's right to abortion is absolute, Justice Blackmun emphasized that some state regulation is appropriate in areas such as maternal
health, where the state interest is legitimate.
The majority opinion examined three possible interests to explain
the enactment of abortion legislation. The first, discouragement of
promiscuity and "illicit sexual conduct," was dismissed as frivolous and
an improper state purpose. In discussing the second alleged state interest, the protection of maternal health, Justice Blackmun recognized
that abortion before the development of modem surgical techniques
was an extremely hazardous operation and suggested that most state
laws were designed solely for the woman's protection rather than the
protection of prenatal life.7 With the advent of antisepsis and advanced medical technology, early abortion has been made safer than
childbirth, thus destroying the rationale for such restrictions. Justice
Blackmun maintained that although the state has a legitimate interest
in protecting the mother's health, this interest does not vest until the
"compelling point"-the end of the first trimester. Before this point,
the attending physician, in consultation with his patient, is free to
determine, without regulation by the State, that in his medical judgment the patient's pregnancy should be terminated. If that decision
is reached, the judgment 74may be effectuated by an abortion free of
interference by the State.
The state, moreover, may only regulate the abortion procedure after
the first trimester in a manner "reasonably related to the preservation
and protection of maternal health. ' 5
The court also considered a third alleged state interest in support
of abortion laws-preservation of the fetus. Acknowledging the wide
divergence of views on the precise point at which life begins, Justice
Blackmun effectively removed this controversy from the scope of judicial resolution 76 by stating, "we do not agree that, by adopting one
theory of life, Texas may override the rights of the pregnant woman
See, e.g., Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1971). See Kutner, The
Neglected Ninth Amendment: The "Other Rights" Retained by the People, 51 M.ARQ.
L. REv. 121 (1967).
73. This hypothesis and evidence supporting it is well developed in Means, supra
note 6.
74. Roe v. Wade, 410 U.S. at 163. Blackmun's only restriction on first trimester abortion is that the state can require that it be performed by a physician currently licensed by that state. Id.
75. Id.
Examples of permissible state regulation . . . are requirements as to the
qualifications of the person who is to perform the abortion; as to the licensure
of that person; as to the facility in which the procedure is to be performed,
that is, whether it must be a hospital or may be a clinic or some other place
of less-than-hospital status; as to the licensing of the facility; and the like.
76. Id. at 159.
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. . "'" The state's interest in fetal life reaches the compelling point
where it overrides the woman's fundamental right of privacy only at
viability (approximately 28 weeks of gestation), when the fetus "presumably has the capability of meaningful life outside the mother's
womb."7
In the companion case of Doe v. Bolton79 the Supreme Court had
the opportunity to examine several of the procedural requirements imposed by state abortion statutes. The Georgia law, modeled after the
Model Penal Code in allowing therapeutic and eugenic abortions, included the following procedural conditions in its statutory scheme: (a) performance in a JCAH-accredited hospital; (b) approval by the hospital's staff abortion committee; and (c) confirmation of the physician's judgment by the concurrence of two other licensed physicians.
The law was challenged in a class action by an indigent married female who was denied an abortion for failing to meet the conditions,
and by licensed physicians, registered nurses, clergymen and social
workers who claimed that the law interfered with the practice of their
professions. The district court had held portions of the law unconstitutional, finding that
although the state may not unduly limit the reasons for which a
woman seeks an abortion, it may legitimately require that the decision to terminate her pregnancy be one reached only upon consideration of more factors than the desires of the woman and her ability
to find a willing physician.8 0
In assessing the statute's procedural requirements, the court ruled
each invalid for failing to exclude the first trimester of pregnancy. 8 '
77. Id. at 162. The opinion, however, expressly rejects the contention that the
fetus should be considered a person within the context of the Fourteenth Amendment.
Id. at 158.
78. Id. at 163. "If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period except when it is
necessary to preserve the life or health of the mother." Id. at 163-64. Several legal
problems are suggested by this language. While medical authorities assume that this
provision would apply to allow abortion of fetuses with severe defects only detected in
late pregnancy, it is possible that some states will apply the Vuitch interpretation of
"health" (see text accompanying footnotes 51-52, supra) and will permit abortions even
in the last trimester for psychiatric reasons.
79. 410 U.S. 179 (1973).
80. 319 F. Supp. 1048 (N.D.Ga. 1970). The decision specifically upheld the
procedural safeguards requiring accreditation and hospital committee approval, and
denied claims of violation of equal protection and unconstitutional restriction of the
practice of medicine. The court did find unconstitutional the elaborate screening procedures to be followed for certification of rape, as well as a statutory provision allowig the local prosecutor or a would-be relative of the fetus to seek a declaratory judgment if the proposed abortion would "violate any constitutional or other legal rights of
the fetus." id. at 1054-55.
81. Doe v. Bolton, 410 U.S. at 195. At the same time the court reiterated Roe v.
Wade's denial of a constitutional right to abortion on demand, and its conclusion
that the state, after the first trimester, can regulate the quality of the abortion in a
manner reasonably related to the furtherance of maternal health. Id.
19731
ABORTION DECISIONS
Moreover, the JCAH-accreditation requirement was held unconstitutional because it was not "reasonably related to the purposes of the
Act in which it is found.""2 Justice Blackmun later explored the
state's right to adopt standards for licensing abortion facilities after
the first trimester. While rejecting the mandatory hospitalization requirement in the Georgia statute since "it fails to exclude the first trimester of pregnancy," he indicated that such a condition would be
upheld for later abortions as a regulation "reasonably related to maternal health." 8
The opinion also found invalid the conditions of hospital committee approval and two-doctor concurrence, as "unduly restrictive of
patients' rights" and infringing on the physician's right to practice in
having "no rational connection with a patient's needs."84 Appellants
argued that these two procedural impediments resulted in undue delay
in obtaining abortions, effecting a denial of equal access; in addition,
they attacked the committee's wide discretion, which conditioned the
availability of abortion on the predilections of individual physicians.
The court rejected these last contentions as founded on exaggerated
suspicion, but nevertheless overturned the procedural requirements on
two grounds: first, the law requires prior acquiescence or confirmation by colleagues or committee for no other surgical procedure or medical practice; second, the state's interest in the quality of the decision
is already protected by retention of the requirement that the physician
be licensed by the state. Reliance on such licensing, the court argued,
is a mark of the state's confidence that the performing physician will
is necessary," and obuse his "best clinical judgment that an 8 abortion
5
assurances.
additional
for
need
viates the
The Doe v. Bolton decision also addressed other constitutional
challenges. The Court rejected the argument that the Georgia statute
was unconstitutionally vague insofar as it criminalized abortions not
necessary to preserve "life or health," reasoning that the meaning of
"health" was settled in United States v. Vuitch.88 Justice Blackmun
agreed with the district court finding that "the medical judgment may
be exercised in the light of all factors-physical, emotional, psychological, familial, and the woman's age-relevant to the well-being of the
82. Id. at 194.
83. Id. However, the opinion introduces a note of skepticism on the issue of
mandatory hospitalization in light of evidence that early abortions in clinics have
fewer complications than do those performed in hospitals: "We feel compelled to
agree with appellants that the State must show more than it has in order to prove
that only the full resources of a licensed hospital, rather than those of some other
appropriately licensed institution, satisfy [the] health interests ... of the patient."
Id. at 195.
84. Id. at 199.
85. Id. at 199.
86. 402 U.S. 62 (1971).
See text accompanying n6tes 51-52 supra.
ECOLOGY LAW QUARTERLY
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patient.""" In addition, the decision invalidated residency requirements
as lacking a basis in a legitimate state policy. The Court similarly
rejected the equal protection argument that poor women were disproportionately denied abortions, as the accreditation, approval and confirmation
requirements on which it was based had already been overturned88a
Justices Brennan, Burger, Douglas, Marshall, Powell and Stewart
joined in the two majority decisions. Justices Stewart and Douglas
filed concurring opinions, asserting that protection of freedom of personal choice in matters of family life is inherent in the right of privacy.8 9 Two dissenting Justices each filed separate opinions. Justice
Rehnquist attacked the determination in Roe v. Wade that the right
of privacy includes a woman's decision whether or not to have an abortion, and alleged that the right to an abortion is " 'not so rooted in
the traditions and conscience of our people to be ranked as fundamental'."9 He also challenged the majority's ability to draw the trimester lines as "partaking more of judicial legislation than it does of a
determination of the intent of the drafters of the Fourteenth Amendment. '91 Justice White's dissent questioned the Court's devaluation
of prenatal life, when balanced against the convenience of the mother,
as constitutionally unwarranted and "an improvident and extravagant
exercise of the power of judicial review." 9 2
By this radical approach, the Court far surpassed the speculations
of most reform advocates, who had forecast that the Court would strike
down certain procedural requirements while retaining the basic restraints on the reasons for obtaining abortions. With an eye to further challenges and the massive litigation engendered by abortion reform, it is apparent that the Court decided not to avoid the underlying
issues any longer.
87.
Doe v. Bolton, 410 U.S. at 192.
88.
89.
Id. at 201.
Justice Stewart's opinion draws heavily upon the recent decision in Abele v.
Markle, 342 F. Supp. 800 (D. Conn. 1972), quoting its statement that
interests of a woman in giving of her physical and emotional self during
pregnancy and the interests that will be affected throughout her life by the
birth and raising of a child are of a far greater degree of significance and
personal intimacy than the right to send a child to private school protected in
Pierce v. Society of Sisters, 268 U.S. 510 (1925), or the right to teach a
foreign language protected in Meyer v. Nebraska, 262 U.S. 390 (1923).
Roe v. Wade. 410 U.S. at 170. Justice Douglas would expand the right of privacy to
include "the right to care for one's health and person and to seek out a physician of
one's own choice." Doe v. Bolton, 410 U.S. at 219. On this basis, he argues that the
procedural requirements of the abortion statutes invade the privacy of the physician-
patient relationship.
90. 410 U.S. at 174, citing Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
91.
410 U.S. at 174-77.
92. Doe v. Bolton, 410 U.S. at 222.
1973]
ABORTION DECISIONS
B.
Legal Implications
While the decisions in Roe v. Wade and Doe v. Bolton put to rest
most legal issues entailed in the abortion controversy, several ancillary
questions not presented to the Court remain unsolved. Although at
least one state court has ruled that a medical treatment statute emancipates unmarried pregnant minors for the purpose of obtaining abortions without parental consent,9 3 it is unclear whether this right will be
recognized in other states. The Supreme Court decisions also did not
address the issue of the father's rights, so that the validity of requiring
the consent of the father, particularly for abortions performed on married minors, remains an open question. 4
While the extension of the right of privacy to abortions is a farreaching step, it opens the way to further challenges to state laws on
private sexual activity and perhaps all victimless crimes. Although the
Court explicitly limited the guarantees of personal privacy to personal
rights that "can be deemed 'fundamental' or 'implicit in the concept
of ordered liberty,' ,9 Douglas, in his concurring opinion, designated
as fundamental the "freedom of choice in the basic decisions of one's
life respecting marriage, divorce, procreation, contraception and the
education and upbringing of children," providing these interests fall
"outside of areas of plainly harmful conduct." 96
An evaluation of the Court's view of women's rights produces
yet another legal question. While emphasizing that the right to an
abortion at any time is not absolute, Justice Blackmun strongly asserted that the decision is one to be made by the performing physician;
his summary of the basic holding of Roe v. Wade, by omitting all
mention of the woman's role in the decision, stresses this point:
For the stage prior to approximately the end of the first trimester,
the abortion decision and its effectuation must be left to the medical
97
judgment of the pregnant woman's attending physician.
This medical elitism is repeated several times throughout the opinion,9 8
93. Ballard v. Anderson, 4 Cal. 3d 873, 484 P.2d 1345, 95 Cal. Rptr. 1
(1971).
For a thorough coverage of this issue, see Pilpel & Zuckerman, Abortion
and the Rights of Minors, 23 CASE W. REs. L. REV. 779 (1972).
94. Blackmun specifically avoids a solution of this issue, citing a North Carolina
statute which requires written permission from the husband when the woman is under
18. Roe v. Wade, 410 U.S. at 165, n.67. However, the Attorney General of the
State of Washington has asserted that a married woman cohabiting with her husband
must obtain his consent for abortion. Ducar, Abortion for the Asking, SATURDAY
REvIEw, Apr. 1973, at 35.
95. Roe v. Wade, 410 U.S. at 152. See Palko v. Connecticut, 302 U.S. 319,
325 (1937).
96. Doe v. Bolton, 410 U.S. at 211 (Douglas, J., concurring).
97. Roe v. Wade, 410 U.S. at 164.
98. Justice Blackmun perhaps places too much confidence in the skill and judg-
ECOLOGY LAW QUARTERLY
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and can be seen as denigrating the role the woman herself must play
in making the abortion decision.99 In addition, since Justice Blackmun
predicated the removal of early abortion from state regulation on the
ground that first trimester abortions are safer than childbirth,' 0 the
question remains open whether the state will be permitted to reimpose
regulation if childbirth mortality falls lower than early abortion mortality. Justice Stewart, in his concurring opinion, recognized a woman's
right to bodily integrity, 1"' but there is no firm indication that the full
Court is ready to employ this concept in future cases.
Finally, the elimination of state regulation in the first trimester
poses several problems regarding the quality of the operations. The
ruling would invalidate any local health codes prohibiting abortions in
doctors' offices and establishing standards for the licensing of abortion
clinics to the extent that they handle first trimester abortions. While
one study did indicate that complication rates for early abortions were
lower for clinics than for hospitals, high-risk patients were specifically
excluded. 02 There is little data on morbidity of abortions performed
in physicians' offices; however, two deaths resulted from office abortions in New York before the state moved to prohibit them. 0 3 In addition, although the Court dismissed the presence of "rascals" in the
medical profession, the experience of New York City in the first six
months under the reform law indicates that some caution is in order.
Immediately after adoption of the new law, several low-cost clinics
opened to provide abortions on a large-scale basis. One report disclosed an extraordinarily high number of uterine perforations in aborment of the medical community:
He [the physician], perhaps more than anyone else, is knowledgeable in this
area of patient care, and he is aware of human frailty, so-called 'error' and
needs. The good physician--despite the presence of rascals in the medical
profession, as in all others, we trust that most physicians are 'good'-will
have a sympathy and an understanding for the pregnant patient that probably is not exceeded by those who participate in other areas of professional
counselling.
Doe v. Bolton, 410 U.S. at 196-97.
99. Compare Eisenstadt v. Baird, 405 U.S. 438 (1972), in which the decision to
contraceive and its implementation were held reserved to the married couple free from
state interference, no mention being made of a necessity for the prescribing physician
to be a participant in the decision itself.
100. Roe v. Wade, 410 U.S. at 163.
101. Id. at 170.
102. Tietze & Lewit, Early Medical Complications of Legal Abortions, STUDIES IN
FAMILY PLANNING 109 (Joint Program for the Study of Abortion, Population Council,
1972) [hereinafter cited as JPSA Study].
103. It is conjectured that these deaths were caused by illegal abortionists newly
legitimized by the passage of the law. Center for Disease Control, Pub. Health
Serv., U.S. Dep't of Health, Educ. & Welfare, Abortion: New York City, July 1,
1970-June 30, 1971 (Atlanta 1971) (staff report, Family Planning Evaluation Activity).
1973]
ABORTION DECISIONS
tions performed by a single doctor working in such a clinic. 10 4 The
New York City Health Department subsequently was given added powers to register, inspect, and close abortion clinics if applicable standards were not met, 10 5 and one clinic has been ordered closed by a state
court.100 But the decision in Doe v. Bolton apparently prohibits exercise of such licensing powers as applied to first trimester abortions.
It is surprising that the Court would eliminate this type of regulation
in the absence of more reliable data, and at the same time give as a
justifying rationale the public health concerns of safety, quality of prac10 7
tice, and full protection of the patient.
C.
Enforcement
As of this writing, implementation of the abortion ruling has been
extremely slow.' 0 8 Nine states have introduced conforming legislation
and nine others are in the process of writing new statutes; however, the
Virginia legislature, the only one to have acted thus far on the new
laws, has rejected a reform statute. Official delays through attorneys'
general offices, governors, and even the courts have impeded the
progress of abortion reform in several states. A circuit court judge
in Cook County, Illinois, issued a temporary restraining order blocking
performance of 30 scheduled abortions. Arizona's Attorney General
is attempting to reinstate the traditional statute. 10 9 In Louisiana the
Attorney General and the Board of Medical Examiners have threatened
to revoke the licenses of physicians who perform abortions. A state
senator in Nebraska has introduced a bill to restrict sharply the availability of abortions in the second trimester. 110 Michigan's Attorney
General has stated that a doctor who performs abortions "does so at
his own peril.""11
The next few months will be critical ones in the liberalization of
nationwide abortion practices. Until other states develop large-scale
programs and acceptance of the procedure, states such as New York
and California, with experience under already existing liberal legisla104. Conger, Tyler & Pakter, A Cluster of Uterine Perforations Related to Suction Curettage,40 OB. & GYN. 551 (1972).
105. N.Y. Times, July 21, 1971, at 31, col. 6. Although the law sets no limits
on where the physicians may perform abortions, local public health laws require the
licensing of all clinics and hospitals.
106. N.Y. Times, Sept. 15, 1972, at 41, col. 1.
107. Doe v. Bolton, 410 U.S. at 195.
108. S.F. Chronicle, Feb. 19, 1973 at 14, col. 1.
109. Id.
110. An amendment would require doctors to report the names of all abortees.
Id.
111.
Ducar, supra note 94, at 35.
ECOLOGY LAW QUARTERLY
[Vol. 3:311
tion, will absorb most referrals and continue to perform the bulk of the
nation's abortions.
ifi
IMPACT OF LEGALIZED ABORTION
A.
1.
Effect on PopulationGrowth
Experiences of the States and New York City
The impact of full abortion legalization upon public health and
population growth can be assessed, to a limited extent, through an
analysis of the experiences of states with liberalized therapeutic laws
and of the four states with minimal restrictions. As a result of abortion
reform in several states in the past five years, the term "therapeutic
abortion" is no longer entirely appropriate to describe the majority of
abortions performed. Many women have been able to obtain abortions on request in state-licensed clinics as well as hospitals in the most
liberal states, and several organizations have developed package plans
for New York abortions for those women who live in states with less
permissive laws and can afford to pay the price. The Center for Disease
Control, which has assumed the task of reporting state abortion statistics,
provides data for 1970 for 14 states and the District of Columbia indicating that 175,500 legal abortions were performed.11 Data reported
from 24 states through June 1971 projected a total of 480,000 legal
abortions in 1971,1 13 but corrections for incomplete reporting have inflated the estimates to 235,000 in 1970... and over 500,000 in 1971.115
Statistics which analyze both state of abortion and residence of
abortee more accurately reflect current abortion levels. Nearly half the
abortions reported in the second quarter of 1971 were performed on
women outside their states of residence. 116 Since six states with liberalized abortion laws permit non-resident abortions, a calculation of ratios in those states indicates that roughly 39.1 percent of legal abor112.
CENTER FOR DISEASE CONTROL, PuB. HEALTH SERv., U.S. DEP'T OF HEALTH,
EDuc. & WELFARE, ABORTION SURVEILLANCE REPORT-LEGAL ABORTION, UNITED STATES
(Annual Summary 1970) [hereinafter
113. Bourne & Baker, Abortion
presented at the centennial meeting
City, N.J., Nov. 12-17, 1972).
114. Tyler, Bourne. Conger and
tions in the United States, 1970, in
cited as CDC ABORTION SURVEILLANCE REPORT].
Surveillance in the United States, 1971 (paper
of the American Public Health Ass'n, Atlantic
Kahn, Reporting and Surveillance of Legal AborINT'L CONGRESS SER. No. 255, ABORTION TECHNIQUES AND SERVICE: PROCEEDINGS OF THE CONFERENCE, NEw YORK, N.Y., June 3-5,
1971, 192-302 (S. Lewit, ed., Amsterdam, Excerpta Medica, 1972).
115. See JPSA Study, supra note 102.
116. The figure of 47.4 percent contrasts with that of 26.1 percent for the first
quarter of 1971. CDC ABORTION SURVEMLLANCE REPORT (June 1971), supra note 112,
at 8.
1973]
ABORTION DECISIONS
tions reported in the first half of 1971 were performed on non-resident
women.11 7 Another salient feature of the data is that the nationwide
abortion ratio was 131 abortions per 1000 live births for this period,
while the ratio from the reporting states reached 243 abortions per
1000 live births."18
The immediate effect of statutory liberalization has been a rapid
increase in the demand for abortion services, even in states which retained certain procedural impediments. In California, for example, the
abortion ratio rose from 1.8 per 1000 live births before 1967 to 11.2
abortions per 1000 live births in the first year under the therapeutic
law,"19 with 91 percent of applications for abortion meeting approval.' 2 0
Colorado and Oregon have had parallel experiences under new laws,
although Oregon's abortion ratio recently dropped with the liberaliza2
tion of the abortion law in the neighboring state of Washington.' 1
The most complete statistics on fully legalized abortion come from
experience under New York's reform legislation adopted in 1970. Data
collected from New York is most often separated into metropolitan
New York City and upstate New York. Since New York City permits
abortions to be performed in clinics licensed by the city health department, it represents more accurately a model for the future status of
abortion in the United States. In the first two years under the new
law, the New York City Health Department reported approximately
117. id. Data on California abortions for the second quarter of 1971 were not
yet available when the report was published, so this figure is at best a poor estimate.
118. Id. at 1. Since birth rates in the liberalized states conform to those of other
states, these ratios suggest that women in non-liberalized states have found increased
access to abortions in states with reform laws.
119. Moyers, supra note 23, at 241.
120. Roy, supra note 4, at 402. Data for March of 1971 reveals a California
abortion ratio of 257 per 1000 live births. CDC ABORTION SURVEILLANCE REPORT
(June 1971), supra note 112, at 8.
121. The first year of legal liberalized abortion in Colorado saw an eight-fold
increase to an abortion ratio of 11.6 per 1000 live births. Roy, supra note 4, at
401-02. In Oregon the abortion ratio reached 165/1000 live births within a year
after the change in the law. Tyler & Schneider, Logistics o Abortion Services in the
Absence of Restrictive Criminal Legislation in the United States, 61 A.J.P.H. 489,
491 (1971). By mid-1971, the abortion ratios of Colorado and Oregon respectively
were 100 and 191. CDC ABORTION SURVEILLANCE REPORT (June 1971), supra note
112, at 8. Table II, infra p. 346, gives the latest available statistics for states with liberalized laws.
Observations of abortion patterns in other countries immediately after a legal
change to permissive abortion also indicates a sharp rise in abortion demand. Eastern
European countries, for example, have abortion ratios ranging from 350 to 1400 per
1000 live births and average 630 abortions to 1000 live births. Japan reached a peak
level of 720 abortions per 1000 live births after passage of the Eugenic Protection Law
of 1948. Full analyses of available data on abortion patterns in other countries may
be found in D. CALLAHAN, supra note 8. See also Tietze, supra note 8; Tietze &
Lewit, Abortion, 220 SCIENmcIC
AMERICAN
21 (1969).
ECOLOGY LAW QUARTERLY
[Vol. 3:311
402,000 abortions-173,900 in the first year and 228,100 from July
1, 1971 to June 30, 1972. In the first year 67,400 abortions were
performed on New York residents, the figure reported for the second
year being 75,100.122 The ratio of legal abortions to live births among
residents of New York City rose from 51 per 1000 live births in 1971
to 650 per 1000 live births in 1971-72.123
2.
ForecastDemand for Abortions
Based on the New York City experience with abortions on resident women, Dr. Christopher Tietze has calculated that the annual
nationwide demand for abortions in the United States after legalization
will be 37 abortions per 1000 women of reproductive age. 12 4 Applying this ratio to estimates of the number of women of reproductive
age in 1973125 produces a projection of approximaely 1,675,000 abortions to be performed this year. Tyler arrives at the same estimate by
a different method. By calculating the number of women currently
having therapeutic abortions, those seeking criminal abortions, and
those with unwanted pregnancies carried to term, he concludes that the
number of legal abortions per year immediately after liberalization
will be 1.7 million and will reach approximately 2.0 million in 1975
and 2.4 million in 1980.126 Multiplying the latest Census Bureau
figures by Tietze's estimate of 37 abortions per 1000 women of reproductive age, the projected total of abortions may be lowered to 1.75
million in 1975 and 1.9 million in 1980.
Abortions in future years also can be estimated using a predicted
abortion per 1000 live births ratio, which both Tietze and Tyler agree
127
will settle to approximately 500 nationwide within five to ten years.
This method takes into account fluctuations in family size and birth
expectations which are considered by the Census Bureau in its fore122. Tietze, Two Years' Experience with a Liberal Abortion Law: Its Impact on
Fertility Trends in New York City, 5 FAMILY PLANNING PERSPECTIVES 36 (1973).
123. Id. at 38-39.
124. C. Tietze, The Potential Impact of Legal Abortion on Population Growth in
the United States, 1972 (unpublished paper prepared for the Comm'n on Population
Growth and the American Future).
125. BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, POPULATION ESTIMATES
AND
PROJECTIONS, PROJECTIONS
OF THE POPULATION OP THE UNITED
STATES By AGE
1972 to 2000, SERIES P-25, No. 493, (1972) [hereinafter cited as the Census
Report]. The estimated total is approximately 45.25 million women.
126. Tyler & Schneider, supra note 121, at 490-91. Their calculations, however,
are based on outdated Census Bureau forecasts. Hardin, in Blueprints, DNA and
Abortion: A Scientific and Ethical Analysis, 3 MED. Op. REv. 74, 76 (1967) estimates
that if every married woman of childbearing age who did not want a child were using
the most effective contraceptive available there would still be 200,000 unwanted pregnancies each year.
127. Tyler & Schneider, supra note 121, at 490.
AND SEX:
1973]. .•
.93ABORTION DECISIONS,
casts of the number of births. Thus, while the Census Bureau predicts
from 3,075,000 to 3,996,000 births in 1973, a high assessment of the
abortion/live birth ratio results in an estimated demand for 1.5-1.8
million abortions in 1973, rising to a range of 1.6-2.2 million in 1975
and 1.8-2.6 million in 1980.128
One should be cautious, however, in relying on these statistics.
First, while the applicable law in New York City most closely resembles the status of state abortion laws after the Supreme Court decisions,
the New York City experience used for Tietze's projections may not
serve as an accurate model for the nation for several reasons; the growing preference for a smaller family in a crowded urban environment,
the depersonalization of urban living, the higher concentration of physicians, and greaterpublic acceptance of abortion would tend to inflate
the number of abortions performed there.. Offsetting these factors,
however, is New York City's unusually large Roman Catholic population, which may tend to lower the demand for abortions.
Secondly, Tyler's calculations are founded on a series of relatively
crude estimates: his figure of one million criminal abortions per year
may be unduly high and, more importantly, his projections to 1975
and 1980 are based on 1970 Census Bureau forecasts which were
drastically lowered by data published in December, 1972.129 It. can
safely be said that any distortions in Tietze's or Tyler's analysis err on
the high side, and that the forecast of 1.7 million abortions in 1973 is
a reasonable upper limit.
All calculations for years beyond 1975 are admittedly tenuous
and rest on a series of rough assumptions: that all ratios and factors
employed in the computations will remain constant. For example, fertility trends may alter dramatically (as recent census data suggests):
contraceptive efficacy may be so improved in the near future that it will
be unrealistic to assume that 37 per 1000 women of reproductive age
will want abortions each year, or that there will be one-half as many
abortions as live births. In addition, the census data itself is concedly uncertain and presents only a range of predictions.1 10 Moreover, the dramatic change in age distribution projected for the year
2000 would undermine these estimates. While in 1972 over 60 percent of women of reproductive age (15-44 years) fall in the 15-29
128. Census Report, supra note 125, at 11-13.
129. Id. at 1-2. The new low set of projections calculates, for example, that
the total population in 2000 may fall 20 million short of that previously anticipated.
130. "[Tjhe future population may fall outside the range provided by the high
and low series, since the alternative projection series do not provide for radical shifts in
present trends of birth, death and immigration." Id. at 2. The four series range
from one estimating an average of 2.9 births per woman to one assuming 1.8 births
per -woman. -
ECOLOGY LAW QUARTERLY
[Vol. 3:3 11
year age bracket, the latest census report suggests that this distribution
will decrease to 58 percent in 1980 and less than 50 percent in the
year 2000.131 This trend toward a higher proportion of older women
in the reproductive age bracket will significantly affect pregnancy,
abortion, and birth ratios. In addition, the census figures are based
upon projections calculated before the Wade-Bolton decisions, and thus
they do not reflect any estimates of the impact of unrestricted abortion
on population trends. Thus, though the above predictions are admittedly uncertain, they most probably err on the side of overestimation
and represent an upper limit to future abortion demand."3 2
3.
Population Forecasts
Concern over expanding population has been largely responsible
for stimulating the move toward abortion reform. In 1967 Kingsley
Davis recognized that "[n]o nation has yet demonstrated that population growth can be slowed by voluntary family planning methodsunless selective abortion is also used," and that abortion "is one of
the surest means of controlling reproduction, and one that has been
proved capable of reducing birth rates rapidly."' 3 Since it was and
is still highly unlikely that any significant breakthrough in contraceptive
methods would occur before 1980,134 the availability of legal abortion
appeared as an immediate and viable alternative to restrain population
growth.
In several Eastern European countries the number of legal abortions steadily increased for several years after implementation of liberal
abortion laws. While a corresponding decline in the birth rate was observed, it was not as large as the increase in the abortion rate. After
some years, however, the birth and abortion rates have stabilized. 3
Data from Japan substantiate the hypothesis that abortions contribute
to a declining birth rate. 3 '
131.
132.
Id. at 14-15.
A more conservative estimate based on the Colorado and California experi-
ences is presented by Hall, who predicts 900,000 abortions a year under full legalization. Hall, Abortion: Physician and Hospital Attitudes, 61 A.J.P.H. 510, 526 (1971).
133.
(1967).
134.
Davis, Population Policy: Will Current Programs Succeed?, 158 SCIENcE 730
See Djerassi,Birth Control after 1984, 169 SCIENCE 94 (1970).
135. In Rumania and Bulgaria. a drop in the birth rate caused a conservative revision in the abortion laws, which immediately led, at least in Rumania, to a marked
upswing in the number of births. Tietze & Lewit, Abortion, 220 SCIENTIFIC AMEMCAN
21, 25 (1969).
Alarm has been expressed in the Warsaw Pact countries over the
declining birth rate. N.Y. Times, Mar. 5, 1972, at 18, col. 1; Nov. 14, 1971, at 17,
is
col. 1. A Russian professor has suggested that over the longterm, if abortion
banned, the birth rate rises for only 1-1% years and then falls again.
1971, at 2, col. 4.
136. Tietze & Lewit, supra note 135, at 26.
Id., Mar. 23,
Care should be taken not to extrapo-
19731
ABORTION DECISIONS
Tietze has developed a hypothetical model to test the initial impact of abortion legalization. Using New York City statistics, he analyzed the proposed sources of legal abortions, concluding that virtually
all abortions performed on New York City residents under the liberalized law ended unwanted pregnancies which would have been terminated anyway. Thus the sharp decline in the American birth rate
must be explained by other factors such as radical changes in attitudes
and reproductive behavior."'
Tietze obtained identical results by a different formula as well.
He observed that 62,625 legal abortions on New York City residents
in 1970 corresponded to a decline of 17,400 births in 1971. Applying
the same ratio to the birth rate of the United States outside of New
York, where, with a few exceptions, abortion was less available, he
predicted that the birth rate for the rest of the country should have
dropped by 1.2% in 1971, instead of the actual 3.7% decline. He
concluded that
Itlhe majority of women for whom abortion was an acceptable solution for an unwanted pregnancy had been able to obtain illegal abortions and that for most women who would not resort to illegal abortions, legalization by itself has not made the procedure acceptable,
1 s
at least not during the first nine months under the new law. "
On a nationwide basis, Tietze predicted that national legalization of
abortion on request initially would reduce the crude birth rate by about
1.6 births per 1000 population (330,000 births).,'
140
Experts attribute the radical change in reproductive behavior
to several factors. Today there is widespread postponement of marlate the experiences of these countries to the United States, since use and knowledge
of contraceptives were not widespread in the 1940's and 1950's when their abortion
statutes were liberalized. Tietze, supra note 124, at 10.
Tietze noted a 12.5% decline in the
137. Tietze, supra note 122, at 40-41.
number of New York City births from 1970-71 to 1971-72. The decrease is in no
way explained by the moderate increment of 7,700 abortions performed on New York
City residents in the corresponding period. However, a decline in birth rate represents pregnancies prevented or terminated up to nine months previously. Tietze's
analysis thus may be somewhat inaccurate in failing to consider timing factors. In
addition, he implicitly assumes that prior to full legalization the number of pregnancies terminated by legal abortion is small. The use of statistics from New York,
a forerunner state, to predict nationwide abortion trends may be challenged in light of
the recent ease of access to states with reform abortion laws.
138. Tietze, supra note 124, at 7. This method also is not without its faults.
Tietze's conclusion that the declining birth rate is attributable to factors other than
available legalized abortion must also be taken into consideration in his initial analysis
of the New York City data which showed a decline in births.
139. Id.
140. Census Bureau data has indicated that total births in 1972 dropped nine
percent, even though there were three percent more women of reproductive age.
N.Y. Times, Sept. 24, 1972 at 1, col. 1. More recent statistics have indicated that
ECOLOGY LAW QUARTERLY
[Vol. 3:311
riage, more effective use of contraceptives, and a growing acceptance of
abortion and sterilization. Rapid gains in the field of women's rights
have resulted in desires for freedom from child-bearing to pursue
careers, causing increased attention to be focused on family planning
and the spacing of children. The stresses of crowded modern living
have enhanced the desirability of a small family. Formal organizations
such as Zero Population Growth, reinforced by new environmental concerns, advise a slower pace of growth.141 It is difficult to evaluate
exactly what role abortion reform plays among these many factors.
A radical decline in births occurred in the past year. There were
3,407,000 reported births from July 1, 1971, to June 30, 1972, a drop
of 298,000 from the previous year. 142 While abortion data for 1971
are incomplete, the 235,000 estimated 1970 abortions indicate that the
decline in births has to some extent already reflected the greater access
to legal induced abortion. Under Tietze's model, then, it is probable
that we have already experienced much of the immediate demographic
effect of abortion reform, and that the primary impact of the Supreme
Court decision will be to vastly improve public health by removing the
dangers of illegal abortions and improving overall maternal care.
B.
1.
Impact of Abortion Reform on Public Health
Direct Effects: Lowered Complication, Maternal and Infant Mortality Rates
The most immediate effect of legalized abortion will be to reduce
the number of complications and maternal and infant deaths associated with pregnancy. In addition, data compiled thus far in jurisdictions having liberal abortion laws indicate that overall maternal and
infant health is improved by wider access to abortion.
In 1972 the Population Council published a comprehensive study
of 72,988 abortions performed between July 1970 and June 1971 in
66 institutions participating in the Joint Program for the Study of Abortion.14 The findings show that three of four abortions were performed
within the first 12 weeks of pregnancy,1 44 with almost 98 percent ocprojected family size has dropped from 2.1 to 1.8 children per family, below the replacement level for the first time, lowering the estimated population range for the
year 2000 to 251-300 million. Census Report, supra note 125, at 11-13.
141. Hopefully the results of this deceleration will be an older population with
increased leisure time, higher employment rates (particularly for women), better education, stronger families, a higher standard of living and earlier retirement.
142. Census Report, supra note 125, at 11.
143. See note 102 supra.
144. The Center for Disease Control reports comparable totals of 68 and 70o
in the first and second quarters of 1971; 45% of abortions occurred between nine and
12 weeks of gestation. CDC ABORTION SURVEILLANCE REPORT (July 1972), supra note
1973]
ABORTION DECISIONS
curring before the twentieth week. It is significant that the proportion
of early abortions increased substantially during the study year, indicating greater familiarity with procedural requirements and increasing
public acceptance of abortion as a legitimate medical procedure. With
legalized abortion now available to all women on request with few procedural impediments, the percentage of early abortions will continue to
grow. Tyler estimates that 95 percent of abortions will be performed
by suction or dilation and curettage in abortion clinics in the first 13
weeks of pregnancy, with three percent saline replacement and two perThe duration of most of these
cent entailing abdominal surgery.14
preoperative and posthours,
including
abortions will be less than five
4
6
With few exceptions, second trioperative care and counselling.'
mester and later abortions will be employed for health reasons only and
will be performed under stricter medical supervision in hospitals.
The complication rate from abortion, as expected, varies directly
with the length of the pregnancy, and the risk to health is three to four
147
times as high in the second trimester of pregnancy as in the first.
The JPSA study showed that 22 percent of women who aborted after
13 weeks developed complications and over three-fourths of all major
complications stemmed from saline injections, hysterectomies and hysterotomies, procedures all performed after the first trimester only. Complication rates were lowest for abortion by suction, but increased with
length of pregnancy, and, after the first trimester, with age of the
woman and parity (number of pregnancies carried to live birth).
While nonprivate patients had, overall, significantly higher complication rates than did private patients, particularly after the first trimester,
complications from suction abortions performed in the first trimester
still were lower for clinics than for hospitals.14 s
All statistics thus indicate that with earlier and safer abortions
available on demand, the overall complication rate for abortions will
decrease. However, the complication rate for second trimester and
112, at 3. 1971 data for New York State shows that 79% of abortions were performed in the first trimester. New York Dep't of Health, Report on Induced Abortions
Recorded in New York State, Jan-Dec., 1971, at 1-2.
145. Tyler & Schneider, supra note 121, at 492. Current methods of procuring
induced abortion in the United States depend primarily on the length of gestation of
the fetus. Most abortions performed in the first trimester are accomplished by suction
(vacuum aspiration) or classical dilation and curettage; after the first 14 weeks techniques such as saline injection, hysterectomy and hysterotomy are more commonly
employed.
146.
Overstreet, Logistics Problems o1 Legal Abortions, 61 A.J.P.H. 496 (1971).
147. JPSA Study, supra note 102, at 109.
148. Id. at 104-08, 111-13. Tietze and Lewit speculate that the discrepancy
between clinic and hospital statistics results from variations in periods of gestation and
type of service, greater physician experience, more rigorous selection of patients, and
less accurate reporting and follow-up by clinics. id. at 98.
[Vol. 3:311
ECOLOGY LAW QUARTERLY
later abortions probably will increase because a higher proportion of
these abortions necessarily will be performed for health reasons on
women with pre-existing medical problems who are more susceptible
to complications.
One clear beneficial result of liberalization of abortion laws has
been a drop in maternal mortality rates in states with reform legislation.
The overall maternal death rate from legal abortions in New York, for
example, has dropped to 3.7 per 100,000 abortions in the last half of
1971 ;149 there were no maternal deaths reported from 3643 abortions
performed in the first year of liberalized legal abortion in Hawaii. 150
The JPSA study recorded six deaths, all but one from abortions
performed after the first trimester, giving a mortality rate of 8.2 per
100,000 abortions. 5 ' Since 1970, New York City has experienced the
lowest overall maternal mortality rate on record. 5 2 Similar experiences
have been observed in other countries with liberalized abortion laws.' 5 '
An even more dramatic result of the liberalization of abortion
laws in New York has been a decrease in the maternal mortality rate
from illegal abortions' and a decline of almost 60 percent in maternal
149.
PARENTHOOD
PLANNED
FEDERATION
OF
AMERICA,
INC.,
THE
NEW
YORK
See also NEW YORK CITY HEALTH SERVICES ADMINISTRAIt has
TION, NEW YORK CITY ABORTION REPORT: THE FIRST Two YEARS 2 (1972).
been impossible accurately to estimate abortion mortality prior to liberalization due to
lack of reporting.
150. UNIVERSITY OF HAWAII, REPORT TO THE LEGISLATURE: ABORTION IN HAContrast these figures to the maternal death rate
WAII, THE FIRST YEAR 7 (1970).
from childbirth in 1967 which was 28.0 per 100,000 births. U.S. BUREAU OF THE
CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES 58, Table 69 at 55 (1970).
151. JPSA Study, supra note 102, at 108.
152. 5.3 per 100,000 abortions. Chase, Twelve-Month Report on Abortions in
New York City, June 29, 1971 at 2 (staff report to N.Y. City Health Dep't). The
death rate has dropped to 3.7 in 1971, with a strong decline in the last three months.
New York State Dep't of Health, Report on Induced Abortions Recorded in New
York, Jan.-Dec. 1971 (Aug. 1972). Tietze has estimated that today in the United
States it is six to eight times more dangerous to complete a pregnancy than it is to have
a legal abortion. Tietze, quoted in Lamm & Davison, supra note 22, at 56.
153. Maternal mortality rates fell as low as 1.2 per 100,000 abortions in Hungary
between 1964 and 1967. UNITED NATIONS, MEASURES, POLICIES AND PROGRAMMES AFABORTION
FECTING
STORY
(1972).
FERTILITY
PRoGRAMMES 101
WITH
PARTICULAR
REFERENCE
TO
NATIONAL
FAMILY
PLANNING
(1972).
154. Maternal deaths from criminal abortions probably peaked in 1961, accounting for 47% of all maternal deaths. In the first half of 1971, only one death directly tied to criminal abortion was reported. See Pakter & Nelson, Abortion: New
York City, FAMILY PLANNING PERSPECTIVES 10 (July 1971). See generally Hardin,
Abortion Techniques and Services: A Review and Critique, 61 A.J.P.H. 2085 (1971).
Nationally the anticipated reduction in numbers of illegal abortions will be difficult to
assess. Current estimates of illegal abortions range from 200,000 to 1,200,000 annually, at an approximate cost of $350 million per year. See Lucas, supra note 44, at
751. Experience with the reform New York law, however, has already shown a significant drop in hospital admissions for incomplete or "spontaneous" abortions. Pakter
& Nelson, supra, at 7. Tietze estimates that 70% of the legal abortions performed in
1973]
ABORTION DECISIONS
mortality unassociated with abortion.' 5 5 The most logical explanation
for this dramatic improvement in public health is that a large number
of abortions are being performed on women in high-risk age and health
groups, thus significantly lowering childbirth fatality. It can be expected that the index of maternal and public health will continue to
improve and that childbirth morbidity and mortality will decline significantly. As a result, there will be a greater tendency to treat childbirth as a natural process, requiring less hospitalization and entailing
fewer risks than is possible today.
In addition, liberalization of the New York law has precipitated a
20 percent decline in infant deaths since the law took effect in July
of 1970.158 In New York City, the infant mortality rate dropped from
24.4 per 1000 live births in 1969 to 20.7 per 1000 live births in 1971.17
Now that abortions are available on demand to terminate high-risk pregnancies, and as medical techniques are developed to detect possible
eugenic problems earlier in pregnancy, the infant death rate should continue to drop.
2.
IndirectEffects
a. IncreasedAccess-Sociological Impact
Several studies of states with reform legislation have given a fairly
accurate picture of the women who have obtained legal abortions in
recent years. Sixty percent of legal induced abortions today are performed on unmarried women under 25, pregnant for the first time.' 5 "
The JPSA study also indicates that over the course of the study year,
the proportions of married, black, and nonprivate patients increased
significantly, with little change in age distribution. 159 Reports concerning abortions performed on New York City residents indicate that
discrimination against the poor and the nonwhite in obtaining abortions has been eliminated to a great extent, with the number of abortions per 1000 live births being 338 for Puerto Ricans, 418 for whites,
and 774 for blacks. 160 Thus, reform legislation is making an impact
New York City under the new law replace illegal abortions. Tietze, supra note 122, at
41. Based on these data, Tietze concluded that the major initial impact of legalized
abortion has been and will continue to be the replacement of illegal abortion by safe,
legal procedures. Tietze, supra note 124, at 7.
155. Guttmacher, The Genesis of Liberalized Abortion in New York: A Personal
Insight, 23 CASE W. RES. L. REv. 756, 768 (1972).
156. N.Y. Times, Apr. 26, 1971, at 31, col. 2.
157.
Tietze, supra note 122, at 39; New York City Health Services Administra-
tion, supra note 146, at 2.
158. Overstreet, supra note 146, at 497.
159. JPSA Study, supra note 102, at 100, 102, 119. Lowered cost has contributed to this increase.
160. Tietze, supra note 122, at 39. The New York data showing high abortion/
ECOLOGY LAW QUARTERLY
[Vol. 3:311
in curtailing births of unwanted children in poverty areas.161
As social attitudes toward abortion become more liberal, there will
be an increased acknowledgment of abortion as an acceptable method
of birth control. Examination of the 1971 New York City data shows
that resident women tend to use abortions to limit their family size
and are more likely to abort in municipal and voluntary hospitals; in
contrast, out-of-state abortees are younger, more likely to be white,
to abort in clinics, and to have an abortion for a first out-of-wedlock
pregnancy. 162 The import of this analysis is that many out-of-state
married women do not yet consider abortion because of the difficulty of
obtaining one; yet once legal abortion is made available, married
women more readily will utilize the procedure when contraception fails.
b.
Impact on Health Delivery Service
To meet increased demand for legal induced abortions, health
professionals in each state will be confronted with the task of providing
the safest and most efficient facilities for abortion services. Four types
of facilities have been proposed: hospital operating rooms with overnight admissions, hospital operating rooms on an outpatient basis, freestanding licensed clinics, and physicians' offices. While prophecies of
overtaxed and inadequate medical facilities and concerns over public
health hazards were frequently voiced when the elective abortion law
of New York first went into effect, such problems failed to materialize.16 3
The current number of physicians, combined with innovative uses of
facilities, para-professionals, counselling, and new technology can accommodate the expected increase in abortions.
There are enough physicians in the country to handle the projected demand for abortions. Tietze estimates that if half of the
18,000 obstetricians each performed four abortions a week (four hours
work), 1,800,000 abortions could easily be handled annually. 164
live birth ratios among nonwhite women can be interpreted, as double-edged: while
undoubtedly evidence of nondiscriminatory service, it also fuels charges -of genocide
by ethnic minorities. See N.Y. Times, Sept. 8, 1967, at 42, col.-5.
161. New York City's illegitimacy rate has declined since the passage of the reform abortion law. Tietze calculates that over one-third of the decline in total
births in 1971 is attributable to a reduction of out-of-wedlock deliveries. Tietze, supra
note 124, at 8. Simultaneously New York City has experienced a discernible drop
in the number of infants available for adoption since the law was passed. N.Y.
Times, Sept. 27, 1972, at 27, col. 1.
162. N.Y. Times, Feb. 20, 1972, at 61, col. 1.
163. Chase, supra note 152, at 3.
164. Tietze, supra note 124, at 4. However, if efficient utilization of physician
resources is to be achieved, the opposition of many doctors and hospitals must be overcome or controlled. A 1970 survey of obstetricians in New York indicated.that only
54% were willing to perform abortions under the new law, though the percentage had
risen t. 60 percent by the beginning of -1971. IUrner, Arnold &-Wassertheil, Dep't of
1973]
ABORTION DECISIONS
While it is probable that most revised abortion statutes will require performance by a licensed physician,"6 5 some liberal states may encourage
technical training and licensing of other personnel as qualified to perform abortions.
The Supreme Court in Doe v. Bolton, in removing hospitalization requirements for early abortion, specifically relied upon the JPSA
study which indicated that first trimester abortions are more safely performed in clinics than in hospitals." 6" This clearly will give a strong
impetus to health personnel and concerned groups throughout the
country to establish non-profit abortion clinics. Organizations such as
Planned Parenthood, with experience in setting up such clinics in New
York City, have announced plans to assist in a nationwide network of
clinics which should make commercial abortion referral agencies and
167
clinics obsolete.
Significant contraceptive failure rates and widespread lack of information about and access to contraceptives are two factors which
contribute in large part to the demand for abortions. 6 ' Recent surveys indicate that approximately 4.3 million women are in need of
subsidized family planning services.' 69 In response to this need, Congress enacted the Family Planning Services and Population Research
Act of 1970, appropriating over $380 million to "assist in making
comprehensive voluntary family planning services readily available to
all persons. '"170 By Executive Order, the implementation of this Act
specifically excludes abortion as a method of family planning; but, in
light of the Wade-Bolton decisions, full abortion services will probably
supplement federally-funded family planning programs. As an immediate step, however, safe abortion clinics must also include public eduCommunity Health, Albert Einstein College of Medicine, New York State Obstetricians
and the New Abortion Law (New York 1970).
Again, the high Roman Catholic
population of New York State may distort these figures.
See also Roy, supra note 4;
Lamm & Davison, supra note 23, at 61; Ducar, supra note 94, at 33-34; N.Y. Times,
Mar. 14, 1971, at 58, col. 3.
165. JPSA Study, supra note 102, at 98. Note also that Roe v. Wade expressly
upholds the right of the state to require that abortions be performed by licensed
physicians. 410, U.S. at 165.
166. 410 U.S. at 195, referring to the JPSA study presented by the Planned Parenthood amicus curiae brief at the 1972 reargument.
167. However, even nonprofit single-procedure clinics may not survive economic
competition by doctor's office abortions. N.Y. Times, Mar. 19, 1973, at 6, col. 1.
But see text accompanying notes 102-07 supra.
168. During a period in early 1970 when the birth control pill lost favor due to
adverse publicity, New York City reported a sharp rise in both therapeutic and
criminal abortions. N.Y. Times, Feb. 15, 1970, at 28, col. 3.
169. Dryfoos, et al., Eighteen Months Later: Family Planning.Services in the
United States, 1969, 3 FAMILY PLANNING PERSPECTIVES 29 (1971).
•170. 42 U.S.C.A. § 300 et seq. (1973 Supp.).
ECOLOGY LAW QUARTERLY
[Vol. 3:3 11
cation and counselling on available contraceptive services."'
New medical techniques of abortion are now being developed
which may replace the traditional methods of pregnancy termination.
Postcoital high-dosage estrogens ("morning-after" pills) disrupt the
process of implantation,' 7 2 while techniques such as vaginal insertion
of prostaglandins and menstrual extraction may entirely alter abortion
technology."' Other alternatives to abortion, such as embryo transplantation to receptive mothers, are in the stage of preliminary research. 7 4 An essential requirement of safe mass legal abortion must
be the development of a comprehensive nationwide surveillance system similar to that already assumed on a limited scale by the Center
for Disease Control. Current techniques of follow-up now utilized
in abortion clinics are minimal at best; efforts must be directed to expanding follow-up so that complications of abortions are rapidly treated
17
and minimized.
CONCLUSION
The Supreme Court decisions in Wade and Bolton transcend
strictly legal concepts. They encompass moral, philosophical, medical,
demographic, and sociological facets as well, and mark the climax of
a five-year revolution in the law. Until 1973 abortion was the only
medical procedure governed by the criminal law. This factor, combined
with the recognition of abortion reform as a partial remedy for the
population explosion, inundated the courts with litigation.
With legal abortion now readily available, much of the public
stigma associated with the procedure will dissipate and it will soon be
considered an acceptable method of family planning. The demographic impact of liberalization remains uncertain. The primary effect will be a demonstrable improvement in public health, rather than
a radical change in birth and population patterns. Nationwide medical resources and facilities must adjust immediately to meet the predicted large-scale demand for abortions and institute comprehensive
surveillance and follow-up techniques.
Julie Conger
171. Tyler & Schneider, supra note 121, at 491.
172. Recent evidence, however, has linked this treatment with subsequent vaginal
cancer in daughters of mothers so treated. Guttmacher, supra note 155, at 770-71.
173. Id. at 771-74. See also David, Abortion: Public Health Concerns and
Needed Psycho-Social Research, 61 A.J.P.H. 510 (1971); Speroff, Prostaglandins, 171
SCIENCE 502 (1971); Speroff & Ramwell, Prostaglandins in Reproductive Physiology,
107 AM. J. OB.& GYN. 1111 (1970).
174. See D. Browie, The New Biology and the Prenatal Child, 9 J. FAM. L. 391
(1970).
175. Care must be taken in late-pregnancy abortions; even before the 28-week
mark, aborted fetuses are capable of survival.
New York City reported 27 live births
from abortion attempts during the first six months of liberalized abortion, and one
fetus has since survived and been placed for adoption. See N.Y. Times, Dec. 19, 1970,
at 21, col. 2. Plans for the disposition of these infants must be carefully considered.
1973]
ABORTION DECISIONS
TABLE I
STATUTORY REQUIREMENTS-JUSTIFICATIONS FOR ABORTIONt
State
No
Exceptions
Ala.
Alas.
Ariz.
Ark.
Cal.
Colo.
Conn.
Del.
Fla.
Ga.
Haw.
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Md.
X
X
X
X
X
X
X
X
N.Y.
N.C.
N.D.
Utah
Vt.
Va.
Wash.
W. Va.
Wis.
Wyo.
X
X
X
X
X
X
X
Free
Choice
X
X
X
X
X
X
X
Ohio
Okla.
Tex.
Incest
X
Miss.
Mo.
Mont.
Neb.
Nev.
N.H.
N.J.
N.M.
S.C.
S.D.
Tenn.
Rape
X
Minn.
Ore.
Pa.
R.I.
Eugenic
Reasons
X
Me.
Mass.
Mich.
Health
of
Mother
X
D.C.
Idaho
Ill.
Ind.
Iowa
Kan.
Ky.
La.
Life
of
Mother
Statute
Ruled
Invalid
by
Court
Decision
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
t General source: George, "The Evolving Law of Abortion," 23 Case W.
Res. L. Rev. 708 (1972).
* Held overbroad by county court judge.
[Vol. 3:311
ECOLOGY LAW QUARTERLY
TABLE II
STATUTORY REQUIREMENTS-PROCEDURALt
State
Ala.
Alas.
Adz.
Ark.
Cal.
Colo.
Conn.
Del.
D.C.
Fla.
Ga.
Haw.
Idaho
Ill.
Ind.
Iowa
Kan.
Ky.
La.
Me.
Md.
Mass.
Mich.
Minn.
Miss.
Mo.
Mont.
Neb.
Nev.
N.H.
N.J.
N.M.
N.Y.
N.C.
N.D.
Ohio
Okla.
Ore.
Pa.
R.I.
S.C.
S.D.
Tenn.
Tex.
Utah
Vt.
Va.
Wash.
W. Va.
Wis.
Wyo.
Length
of Pregnancy
Required
Restdency
nonviable
30 days
JCAH
Licensed Accredi
Hospital tation
Special_
Li zensed Other
Commit- Approval
vDIJ ap- tee Ap- if Rape/
PhiysiIncest
proval
proval
cii an
X
4 months
X
X
X
X
X
X*
X
X
X
X
20 wks.
120 days
X
X
X
X
X
nonviable
Bonafide
90 days
X
X
X
X
X
20 wks.
16 wks.
X
X*
X
X*
X
X
X
X
X
X
X
X*
X
X
X
X
X
X
X*
X
X*
X
X*
26 wks.
X*
X
X
X
X
30 days
X
X
X
X
resident
X
X
90 days
X
X
4 months
90 days
X
16 wks.
24 wks.
150 days
16 wks.
X
X
X
X
X
X
t General source: George, "The Evolving Law of Abortion,"
Res. L. Rev. 708 (1972).
* Requirement ruled invalid by court decision.
23 Case W.
1973]
ABORTION DECISIONS
TABLE
M
STATE ABORTION LAWS
ALA. CODE tit. 14, § 9 (1959).
ALASKA STAT. § 11.15.060 (1970).
ARiz. REV.STAT. ANN.§ 13-211 (1956).
ARK. STAT. ANN. § 41-304 (Supp. 1969).
CAL. HEALTH AND SAFETY CODE § 25951 (West Supp. 1971).
CoLo. REv. STAT. ANN. § 40-6-101(3)(a) (1971).
CONN. GEN. STAT. ANN. § 53-29 (1958, amended in 1972).
DEL. CODE ANN. tit. 24, § 1790(a)(1) (Supp. 1970).
D.C. CODE ANN. § 22-201 (1967).
FLA. SEss. LAwS ch. 72-196 (West 1972).
GA. CODE ANN. § 26-1202 (1970).
HAWAII REV. LAws § 453-16 (Supp. 1971).
IDAHO CODE ANN. § 18-1506 (Supp. 1971).
ILL. ANN. STAT. § 10-105 (1956).
IOWA CODE ANN. § 701.1 (1950).
INDIANA ANN. STAT. § 10-105 (1956).
KANSAS STAT. ANN. § 21-3407 (Supp. 1970).
KY. REV. STAT. § 436.020 (1969).
LA. REV. STAT. § 14:87 (Supp. 1972).
ME. REV. STAT. ANN. tit. 17, § 51 (1964).
MD. ANN. CODE art. 43, § 137 (1971).
MASS. GEN. LAWS ANN. ch. 272, § 19 (1968).
MicH. COMP. LAWS ANN. § 750.14 (1968).
MINN. STAT. ANN. § 617.18 (1963).
Miss. CODE ANN. § 2223 (Supp. 1971).
Mo. ANN. STAT. § 559.100 (1953).
MONT. REV. CODES ANN. § 94.401 (1969).
NEB. REV. STAT. H8 28-404, -405 (1965).
NEV. REV. STAT. § 201.120 (1967).
N.H. REV. STAT. ANN. § 585.13 (1955).
N.J. REV. STAT. § 2A:87-1 (1969).
N.M. STAT. ANN. §§ 40A-5-1 to -3 (Supp. 1971).
N.Y. PENAL LAW § 125.05, 125.40 to .55 (McKinney Supp. 1971).
N.C. GEN. STAT. § 14-45.1 (Supp. 1971).
N.D. CENT. CODE § 12-25-01 (1960).
OHIO REV. CODE § 2901.16 (Page 1953).
OKLA. STAT. ANN. tit. 21, § 861 (Supp. 1971).
ORE. REV. STAT. § 435.415 (1971).
18, § 4719 (1963).
PA. STAT.ANN.tit.
R.I. GEN. LAWS ANN. § 11-3-1 (1969).
S.C. CODE ANN. § 16-87 (Supp. 1971).
S.D. CODE § 22-17-1 (1969).
TENN. CODE ANN. § 39-301 to -302 (1955).
TEX. PENAL CODE ANN. art. 1191 (1953).
UTAH CODE ANN. § 76-2-1 (1953).
VT. STAT. ANN. tit. 13, § 101 (1958).
VA. CODE ANN. § 18.1-62.1 (Supp. 1971).
WASH. REV. CODE § 9.02.060 (Supp. 1970).
WIS. STAT. ANN. § 940.04 (1958).
WYO. STAT. ANN. § 6-77 (1959).