Since it’s an election year in the United States, the topic of abortion has been raised a bazillion times. It seems to me some Right-to-Life people assume that if abortion was criminalized again that no abortions would be performed in the US. This of course is untrue.
I’m old enough to remember what it was like before Roe vs. Wade, but I think it may be somewhat different now if Roe vs. Wade was overturned. I turned 20 in 1973 and became sexually active at the age of 17 so for a few years there this was a topic of vital necessary (but thankfully was something I never needed to know).
Back then, women who wished to terminate a pregnancy and who were wealthy enough to afford it could travel to a place where they could get a legal abortion. I think that at first this was the Bahamas, but later was (for those of us in Illinois) New York. The overturning of Roe vs Wade wouldn’t recriminalize abortion everywhere in the US, right? So women would still have the option of travelling to another state for an abortion. Even if abortion became illegal all across the US, women could still travel to other countries.
Secondly, there was an informal network (of the “my cousin knows someone” ilk) of medical professionals who would (usually for a price) perform abortions for those who needed them. Sometimes these were physicians whose procedures offered no more risk than legal abortions do today; other times it was someone who merely claimed to be a professional who did abortions on a kitchen table with unsterilized equipment. This option would be I’m sure available now if needed.
Thirdly, just about every sexually active woman back then had heard stories about how to abort her pregnancy if she needed to. Some of these procedures were fairly safe but ineffective, others were effective but pretty unsafe. For example, all my friends knew that inserting a sterilized knitting needle through the cervix would terminate the pregnancy; this sometimes resulted in a perforated uterus which could result in the death of the woman. I would be very surprised if there weren’t some women today who try to self-abort and of course there would be many more if abortion became criminalized again.
In addition today we have abortifacient drugs and the internet as a way to discretely order them. In all it seems to me that a woman who is desperate to have an abortion will find a way even if the procedure is criminalized again.
So – are there any fairly reliable sources that estimate what the prevalence of abortion would be in a post-Roe v. Wade world?
Statistics based on speculation are at best, a wild-assed guess.
The claim of the pro-choice types (like me) is of course that once RvW is overturned, congress is free to make restrictive laws that apply across the USA. With modern tech and vindictive laws, perhaps illegal abortions will become less prevalent or more prevalent - who knows? Whether congress can override a state’s laws on abortion - is that the commerce clause argument again?
IIRC, it was mentioned in a novel I read long ago (by Taylor Caldwell?) that a doctor even back in the 50’s and 60’s could detect a recent abortion or D&C by examination. Not sure if that can be distinguished from a miscarriage. If a law included an obligation to doctors to report any sign of an abortion, on threat of loss of license…?
Also, IIRC, a morning-after pill can be simulated with 3 to 5 regular pills taken at once. Would that sort of act be illegal too?
Record-keeping may not be dependable either. Anecdotal evidence warning: someone I know had an abortion in the early 1970’s, before Roe, and her doctor politely handed her all copies of the medical records, so she could take them with her and shred them. This may have been illegal; I don’t know, but it kept the procedure from appearing on anyone’s database.
It wouldn’t recriminalize abortion anywhere. It would merely put the question back to the state legislatures to decide. They would then have the option of making it illegal, and until they voted to do so, and the governor signed on to it, it would still be legal.
Obviously, some states would decide to make it illegal, but since only about 1/4 of the population supports major restrictions, I suspect few states could come up with the votes to totally ban it.
There are many states that hadn’t legalized abortion before Roe v. Wade; most did not repeal the laws afterwards. This mapgives details. A few of the states shown in red may ave legalized it, but those laws are for the most part are still on the books.
As for prevalence, though it’s impossible to know for sure, it’s clear that women had abortions either in other countries or in secret. Some doctors would perform the procedure clandestinely and were rarely convicted. The laws were usually not enforced unless the woman suffered permanant damage or died. It was hard to get cooperation from the women if the abortion was successful, and juries were very reluctant to convict (they sympathized with the woman and, probably more importantly, with the father, putting themselves in his shoes much like they did when dealing with drunk drivers back then). The non-medical abortionists did get convicted; their patients often died.
One anecdote about prevalence that I find illuminating took place in the UK in the 1890s. A group of criminals came up with a blackmail scheme: they wrote to a hundreds of upper class women in London saying that they knew the woman had had taken part or contemplated “the crime of abortion” and demanding money. They got a 20% return.
I don’t think there’s any evidence that Roe v. Wade had any effect on the abortion rate in the US (it did, of course, change the legal abortion rate).
Some anecdotes from Canada, demographically somewhat similar to the USA -
The original law in Canada had a loophole big enough to drive a truck through; if the local doctors’ committee was sympathetic or the person had the right connections, they used the “health of mother” clause. It could include mental health, so they would rule the woman was likely to suffer mental health problems if they did not have an abortion. So some areas of the country, abortions were freely available, in others - not at all.
Dr. Henry Morgentaler had a practice in Montreal, allegedly a very catholic city, where abortions were freely available. 3 times he was tried for the (same) crime, and 3 times a jury refused to convict him. In that case, the only way they got the woman’s cooperatin was by threatening to revoke her student visa, send her home to Nigeria and tell her family what she did.
An older friend of mine, growing up in the 40’s, never mentioned abortions as an option but he said that a lot of teen girls would drop out of school and spend a few months with their “aunt in the countryside”. Similar to the USA, there are a lot of sad stories of women who gave up newborns since they were given very little choice and then were looking for these children.
This is I think the difference; not so much abortions happened in secret, but that today abortions or social acceptance of single mothers means a lot more babies are not given up for adoption at birth.
So - does the US federal government have the power to outlaw abortion too, or is this something that requires a constitutional amendment.
At this point in time, since Roe is held to be a settled constitutional issue, it would require either a constitutional amendment, or another case in front of the Supreme Court, reversing Roe. Once that happened, Congress could pass a law banning abortion.
(The joy of this is that the power of the Supreme Court to determine constitutional issues is not anywhere specified in the constitution!)
But… would they have to define it as an interstate commerce issue (like growing your own pot), or define it as a tax like Obamacare? Or is medical procedures a federal jurisdiction? Or can congress define “life” so as to make abortion a form or murder? (That would be a tricky law to write).
In the book “Intern” the doctor states that, pre Roe v. Wade, any emergency room doctor treating a woman for a “miscarriage” had to find fetal tissue or alert the authorities.
In the Taylor Caldwell book I recall from around 1970, one issue was the doctor was required to report evidence of an abortion (in this case,visible evidence during an internal exam that she had undergone an unexplained D&C).
A minor correction to this. The first jury acquitted him (unanimously) accepting his “medical necessity” defense. There is no double jeopardy rule in Canada and “not guilty” can be appealed. This was and the appeal judge rules that the judge should not have permitted a “medical necessity” defense and had it not been used, the jury would surely have convicted him and so he unilaterally changed the verdict to “guilty”. A higher appellate court accepted the first part of his rule but said he could not simply replace the jury’s verdict by his own. At the time, Canada had no written constitution, so there was apparently no law on the subject. So he was tried again and this time the jury hung. He was tried a third time and again the jury hung. Then the prosecutor gave up and parliament passed a law legalizing abortion. A month or so ago, a bill was proposed (a “private member’s bill” meaning not offered by the government) to ban abortion. Although I suspect the Conservative government would like to do so, it recognizes that it is just not politically possible and the prime minister and most of his party (along, I believe, with virtually all members of opposition parties) voted against it.
A few minor quibbles -IIRC Morgentaler’s verdict of not guilty was replaced by a guilty verdict by the appeal court. The Supreme Court instead ordered a new trial. The justice minister at the time, Otto Lang, a devout catholic, saw nothing wrong with an appeal court replacing a jury acquittal and in fact offered to bet a reporter it was so rare it would not happen again in his lifetime. It happened again within a year after the second trial. Not sure, I think that’s when the Supreme Court said in future that exception to double jeopardy w not allowed. The persecution / prosecution stopped because the more left Patrick Québécois won the next provincial election.
IANAD but what I gather is that D&C a curette is used to scrape the lining of the uterus (plus, the “dilate” part). The scrape marks are visible for a certain amount of time afterward, usually when the woman goes in for real medical help due to additional complications in the next few weeks?
Checking for fetal tissue after a miscarriage is normal procedure - sometimes not all is expelled, and any remains of the placenta etc. embedded in the wall can fester and cause major infections. Also a danger with back alley abortions, so it’s safety not government intrusion.
So, question is, can the Congress also legislate on abortion procedures? Or would this be a technical question about jurisdiction dragging in the whole commerce-clause, this-is-a-tax issue?
