Throughout the first half of nineteenth century, American states deferred to English precedent regarding legal questions about abortion. English common law held that abortion was permissible so long as it occurred before the "quickening" or the first 13-16 weeks from the start of the woman's last period. Whether a woman was pre- or post- quickening was at this time determined by a physician and because no precise way of marking its beginning existed in the nineteenth century, abortion might be considered to have been simply legal in a de facto way.Â
In the wake of sexual radicalism which took the form of free love communes, zany developments in contraception, and abortion by âpoisoningâ or âabortifacientsâ ("that which will cause a miscarriage" from Latin abortus "miscarriage" and faciens "making"), interest groups like the American Medical Association (AMA) jockeyed to have abortion criminalized except in cases where the pregnancy threatened the life of the mother. Abortion, claimed the AMA in the late 1850s, was "far more dangerous to life than natural labor at the full period of gestation" because of issues like infection that would not be avoidable until physicians adopted the regular use of antiseptic in the late nineteenth century.Â
Licensing was also on the rise in the mid- to late-nineteenth century, gaining greater momentum after the many botched surgeries of the Civil War revealed the danger posed by unskilled (and unsatisfactorily accredited) country physicians. In a new environment of medical licensing, AMA pronounced on the issue of abortion and recommended that only properly licensed physicians should hold the duty of determining whether or not a pregnancy posed a danger to a mother's health. This didn't wholly criminalize abortion as much as it granted a monopoly to a new tide of licensed, late-nineteenth century doctors who became the sole authority on who did and did not require the procedure. Inspired by this line of thinking and fired by anti-obscenity zeal, many states followed the urging of groups like the AMA Â and criminalized abortion.Â
Despite advances in medicine that might have undermined the AMAâs reasoning, abortion remained criminalized until 1973 when Justice Blackmun argued in Roe v. Wade that the (implicitly) constitutionally-granted right of privacy was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
Bottom line: the rationale on which much early, American discussion about abortion sat concerned the stateâs responsibility to protect citizens/mothers from the danger posed by risky but avoidable medical procedures. The constraint imposed by the state was a necessary intrusion, which took its justification from the need to protect citizens. Though it might have been secular in law but moral in fact, it was possible to justify the criminalization of abortion in a way at least ostensibly consistent with the principles of American government. Is that still possible?
->Individual freedom v. state power: Would requiring a woman to bear a child now represent an over-extension of state control or a necessary protection for its citizens (both mother and child)?
->Individual freedom v. political representation: Should federal funds be used to support abortion clinics though many taxpayers (Gallup 2010: 47% Pro-Choice, 46% Pro-Life) morally oppose its practice?
->Positive law v. Personal will: Would criminalization increase the likelihood of women seeking unqualified medical assistance or practicing abortion on themselves despite prohibitions? Would criminalization actually stop abortions or would it simply create a black market?
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