Abortion laws of the past

[Lumpy]

Before Roe v. Wade did the laws against having or performing an abortion have penalties closer to those against infanticide, or to the penalties for laws against birth control such as were in effect before Griswold v. Connecticut? IOW was abortion really seen as the murder of an unborn child or more like an immoral attempt to practice birth control?

[Monty]

Wiki’s article on the history of abortion has some interesting bits in it.

[md-2000]

Dr. Henry Morgentaler waged a long battle against Canada’s absurd abortion laws in the 1970’s. Basically, abortion was allowed among other reasons, if a hospital panel of 3 doctors found the mother’s health was in danger. So the rule was interpreted toward the 70’s to include the mental health of the mother; for some hospitals, this meant abortion pretty much on demand, or with the right connections. Forr others nothing was available in large areas of the country. Morgentaler set up a clinic in Montreal, it was not a hospitla and so provided abortions without benefit of the panel. he was tried and acquitted by a jury three times. The first two times, the jury conviction was overturned by the appeal court and he was given a sentence of 18 months. When the Supreme court kept sending back the case to retry, saying a jury acquittal should not be overturned, the government the third time (a) was replaced by a more left-wing party and (b) decided not to pursue the case any more.

But there’s the view - deliberately breaking the law to provide an abortion for no reason other than the woman wanted it, in 1973 in Canada, in Catholic Quebec - 18 months in jail, out on parole after 6. Obviously, nowhere near the sentence for a murder.

(How did they “convict” him? Once of his patients was a single foreign student, and the authorities told her if she did not testify against him, they would send her back to her country and let her family know why - implying she would likely be subject to an honor killing back home.)

[Moriarty]

The Roe decision speaks of the subject:

Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed. Bracton, writing early in the 13th century, thought it homicide.23 But the later and predominant view, following the great common-law scholars, has been that it was, at most, a lesser offense. In a frequently cited passage, Coke took the position that abortion of a woman ‘quick with childe’ is 'a great misprision, and no murder.'24 Blackstone followed, saying that while abortion after quickening had once been considered manslaughter (though not murder), ‘modern law’ took a less severe view.25 A recent review of the common-law precedents argues, however, that those precedents contradict Coke and that even post-quickening abortion was never established as a common-law crime.26This is of some importance because while most American courts ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law,27others followed Coke in stating that abortion of a quick fetus was a ‘misprision,’ a term they translated to mean 'misdemeanor.'28 That their reliance on Coke on this aspect of the law was uncritical and, apparently in all the reported cases, dictum (due probably to the paucity of common-law prosecutions for post-quickening abortion), makes it now appear doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus…

The American law. In this country, the law in effect in all but a few States until mid-19th century was the pre-existing English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough’s Act that related to a woman 'quick with child.'29 The death penalty was not imposed. Abortion before quickening was made a crime in that State only in 1860.30 In 1828, New York enacted legislation31 that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickend fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it ‘shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose.’ By 1840, when Texas had received the common law,32 only eight American States had statutes dealing with abortion.33 It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening. Most punished attempts equally with completed abortions. While many statutes included the exception for an abortion thought by one or more physicians to be necessary to save the mother’s life, that provision soon disappeared and the typical law required that the procedure actually be necessary for that purpose.

Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950’s a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother

Jane ROE, et al., Appellants, v. Henry WADE.