American Medical Association
United States association of physicians and medical students
- I. June 1967
F. Therapeutic Abortion
....This report is addressed only to the medical aspects of therapeutic abortion. It is in no way related or intended to cope with the problem of criminal abortion. The Committee believes that the frequency of criminal abortions would not be reduced at all if the recommendations contained in this report were implemented on a national scale. The Committee on Human Reproduction is unequivocally opposed to any relaxation of the criminal abortion statutes....
The Committee on Human Reproduction is of the opinion that the American Medical Association should have a policy statement on therapeutic abortion in keeping with modern scientific knowledge and medical practice. The Committee realizes, however, that no policy by the AMA on this subject will prove to be acceptable to all physicians. There are some practitioners who honestly believe that there are no circumstances which warrant therapeutic abortion. There are also those equally conscientious physicians who believe that all women should be masters of their own reproductive destinies and that the interruption of an unwanted pregnancy, no matter what the circumstances, should be solely an individual matter between the patient and her doctor.
- American Medical Association Policy Statements, 1967 and 1970; as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012, p.26
- The policy which the Committee advocates is designed to afford ethical physicians the right to exercise their sound medical judgment concerning therapeutic abortion just as they do in reaching any other medical decision.
The Committee on Human Reproduction is aware that one major religious group opposes abortion under any circumstances. The Committee respects the right of this group to express and practice its belief. However, the Committee believes that physicians who hold other views should be legally able to exercise sound medical judgment which they and their colleagues feel to be in the best interest of the patient. In making recommendations on this subject, the Committee does not intend to raise the question of rightness or wrongness of therapeutic abortion. This is a personal and moral consideration which in all cases must be faced according to the dictates of the conscience of the patient and her physician....
- American Medical Association Policy Statements, 1967 and 1970; as quoted in “Before Roe v. Wade” by Linda Greenhouse and Reva B. Siegel, Yale Law School, 2012, p.27
- Physicians’ and pharmacists’ first and foremost ethical obligation in situations of epidemic, disaster or terrorism is to provide urgent medical care and ensure availability and appropriate use of necessary medications. This requires close coordination with the entire health care team to help ensure patients receive the testing, treatments, follow-up care and medications they need. We applaud the innumerable selfless acts by health care professionals across the nation who are putting themselves in harm’s way to provide care to America’s patients.
- We are issuing this joint statement to highlight the important role that physicians, pharmacists and health systems play in being just stewards of health care resources during times of emergency and national disaster. We are aware that some physicians and others are prophylactically prescribing medications currently identified as potential treatments for COVID-19 (e.g., chloroquine or hydroxychloroquine, azithromycin) for themselves, their families, or their colleagues; and that some pharmacies and hospitals have been purchasing excessive amounts of these medications in anticipation of potentially using them for COVID-19 prevention and treatment. We strongly oppose these actions. At the same time, we caution hospitals, health systems, and individual practitioners that no medication has been FDA-approved for use in COVID-19 patients, and there is no incontrovertible evidence to support off-label use of medications for COVID-19. Stockpiling these medications—or depleting supplies with excessive, anticipatory orders—can have grave consequences for patients with conditions such as lupus or rheumatoid arthritis if the drugs are not available in the community. The health care community must collectively balance the needs of patients taking medications on a regular basis for an existing condition with new prescriptions that may be needed for patients diagnosed with COVID-19. Being just stewards of limited resources is essential.
- We are further concerned by the confusion that may result from various state government agencies and boards issuing emergency rules limiting or restricting access to chloroquine, hydroxychloroquine or other emerging therapies or requiring new procedures for physicians and other healthcare professionals and patients. If these bodies promulgate new rules, we urge that they emphasize professional responsibility and leave room for professional judgment. We further urge that patients already on these medications should not be impacted by new laws, rules or other guidance. In a time of national pandemic, now is not the time for states to issue conflicting guidance, however well-intentioned, that could lead to unintended consequences.
- We applaud the ongoing efforts to conduct to conduct clinical trials and generate evidence related to these and other medications during a time of pandemic. We are also encouraged that some pharmaceutical manufacturers are increasing production of high-demand medications as well as supplying them for use in clinical trials. The nation’s physicians and pharmacists continue to demonstrate remarkable leadership on a daily basis. We are confident in physicians’ and pharmacists’ judgment to make the right decisions for their patients, communities and the health care system overall.
About American Medical Association edit
- During the period from 1840 to 1880, abortion became much more widely practiced and visible than it had been before, chiefly among upper-class Protestant women. During this same period, doctors-particularly through the newly formed American Medical Association-came to dominate the process of abortion legislation in a virtual crusade to outlaw the practice at all stages of pregnancy. The doctors’ rallying cry was a moral claim about fetal life, which perhaps stemmed from their knowledge that the quickening distinction had no basis in science. The motivations behind the physicians crusade, though, surely were more numerous and probably included: the desire to eliminate their nonprofessional competition; the drive to develop a legal code of ethics to further the process of professionalization; the desire to attain status as an important policymaking group; the desire to promote racial purity by fighting the increase in abortion among wealthy, white women; and the tendency to perpetuate a paternalistic social order that pushed women into the childbearing role. The latter two goals likely resulted simply from physicians being members of a society and class that shared certain views of women and minorities.
- The American Medical Association (AMA) was established in 1847 and began organizing opposition to lay healers and herbalists who provided medical care. Herbalists competed with physicians for patients and were believed by the physicians to be incompetent.
- Farrell, Courtney (2008). “Abortion Debate”. ABDO Publishing Company. "Abortion From Past to Present", pp.21-22
- Abortion was an expedient way to frame their campaign to create monopolies on women’s bodies for male doctors. The American Medical Association explicitly contributed to this cause through its exclusion of women and Black people.
Today, as people debate whether anti-abortion platforms benefit Black women, the clear answer is no. The U.S. leads the developed world in maternal and infant mortality. The U.S. ranks around 50th in the world for maternal safety. Nationally, for Black women, the maternal death rate is nearly four times that of white women, and 10 to 17 times worse in some states.
- Michele Goodwin, “The Racist History of Abortion and Midwifery Bans”, ACLU, (July 1, 2020)
- To better understand racial injustice in the anti-abortion movement, remember that American hospitals barred the admission of African Americans both in terms of practice and as patients. And, the American Medical Association (AMA) barred women and Black people from membership. The AMA, founded in 1847, refused to admit Black doctors, informing them, “You come from groups and schools that admit women and that admit irregular practitioners.” For this reason, Black doctors formed the National Medical Association in 1895.
- Michele Goodwin, “The Racist History of Abortion and Midwifery Bans”, ACLU, (July 1, 2020)
- The development of nineteenth century medical ethics seems to parallel the legal principles of Blackstone. Very influential during the early nineteenth century was Thomas Percival's Medical Ethics in which the following was written: "To extinguish the first spark of life is a crime of the same nature, both against our maker and society, as to destroy an infant, a child, or a man. '" These views explain in part the condemnation of abortion as the destruction of "human life" by the American Medical Association at its 1859 annual meeting.
- “The "Right" to an Abortion, the Scope of Fourteenth Amendment Personhood, and the Supreme Court's Birth Requirement” by John D. Gorby, Southern Illinois University Law Review, Volume 4, 1979, T. PERCIVAL, MEDICAL ETHICS 134-35 (Leake ed. 1827)., p.18
- When the medical establishment undertook a campaign against abortion in the second half of the nineteenth century, its very vehemence served as a further indication of the prevalence of illegal abortions. In 1857 the American medical Association (AMA) initiated a formal investigation of the frequency of abortion. Seven years later the AMA offered a prize for the best popular antiabortion tract. Medical attacks on abortion grew in number and virulence until, by the 1870s, both professional and popular journals were virtually saturated with the issue. Physicians bemoaned the widespread lay acceptance of abortion before quickening; in order to break that sympathy, they adopted a new vocabulary that described abortion in terms designed to shock and repel, such as “antenatal infanticide.” Physicians attempted to frighten women away from abortion by emphasizing its dangers. Their common assertion that there was “no” safe abortion may have betrayed ignorance, but more likely it was an exaggeration justified by what they believed was a higher moral purpose. Yet occasionally even antiabortion doctors allowed the truth to slip out, revealing despite themselves why their campaign remained ineffective. It is such a simple and comparatively safe matter for a skillful and aseptic operator to interrupt an undesirable pregnancy at an early date,” wrote Dr. A. L. Benedict of Buffalo, New York, an opponent of abortion, “That the natural temptation is to comply with the request.
- The American Medical Association, which played a central role in the criminalization of abortion in the 19th century, began reconsidering its position in the mid-1960s. Its first steps were tentative, as shown by the policy statement adopted by the organization’s House of Delegates at its annual meeting in June 1967. The delegates adopted a proposal for therapeutic abortion that followed the American Law Institute’s Model Penal Code. The recommendation and its accompanying report made clear that the delegates envisioned nothing more than a modest step that would apply to “an occasional obstetric patient.” The report disavowed any effort to loosen the legal restrictions on abortions that lacked therapeutic indications, noting that “the Committee on Human Reproduction is unequivocally opposed to any relaxation of the criminal abortion statutes....” The report also acknowledged strong opposition from Catholic members to any relaxation of abortion restrictions.
The tone of the AMA’s next effort, a new policy adopted at the June 1970 annual meeting, is very different. The organization was now willing to leave the abortion question to the “sound clinical judgment” of its members, without the definitional strictures of the earlier policy. Taken together, the two documents present a portrait of a profession—like the society it served—on the cusp of change. Justice Harry A. Blackmun had both documents, in manuscript form, in his file when he was working on his opinion in Roe v. Wade, with check marks indicating that he read them closely.
- Linda Greenhouse and Reva B. Siegel, “Before Roe v. Wade”, Yale Law School, 2012, pp.25-26
- Evidence of American standards of medical practice respecting induced abortion is found in the policy statements of professional organizations. Both the American Medical Association and the American College of Obstetricians and Gynecologists have set standards of professional practice in recent years.
ACOG policy sanctions therapeutic and elective abortion “to safeguard the patient’s health or improve her family life situation.” ACOG recognizes that “abortion may be performed at the patient’s request....” A very similar position was taken by the American Medical Association. The AMA at one time had followed the A.L.I. model, listing four or five vaguely defined situations for sanctioned abortion. This proved unworkable, and the policy was changed in order not to limit the physicians’ traditional responsibility for evaluating “the merits of each individual case....”
- Linda Greenhouse and Reva B. Siegel, “Before Roe v. Wade”, Yale Law School, 2012, pp.231-232
- At the Founding and until 1821, when Connecticut passed a law criminalizing abortion, abortion was legal throughout the United States if performed before quickening. In the mid-nineteenth century, however, doctors establishing the American Medical Association (AMA) led a campaign to criminalize abortion, except when necessary to save a pregnant woman’s life, and by the century’s end, all states banned abortion and subjected contraception to a variety of criminal sanctions. By the mid-twentieth century, the tide began to shift again. In the late 1950s, a group of professionals—primarily lawyers, doctors, and clergy—began to question whether abortion ought to be prohibited in all cases.
Just as nineteenth-century advocates for criminalizing access to abortion had appealed to medical authority, so, too, did twentieth-century advocates for liberalizing access to abortion. Soon others joined the cause of reform—and by the 1960s, Americans were debating abortion as a problem concerning poverty, population control, sexual freedom, and women’s equal citizenship. These new ways of talking about abortion were of sufficient persuasive power that states haltingly began to enact legislation that allowed women lawful access to the procedure in certain tightly prescribed circumstances. With the meaning and justifications for liberalizing access to abortion in flux, public support for reform rapidly grew.
- Linda Greenhouse and Reva B. Siegel, “Before Roe v. Wade”, Yale Law School, 2012, pp.269-270
- Abortion itself only became a serious criminal offense in the period between 1860 and 1880. And the criminalization of abortion did not result from moral outrage. The roots of the new law came from the newly established physicians’ trade organization, the American Medical Association. Doctors decided that abortion practitioners were unwanted competition and went about eliminating that competition. The Catholic Church joined the doctors in condemning the practice.
By the turn of the century, all states had laws against abortion, but for the most part they were rarely enforced and women with money had no problem terminating pregnancies if they wished. It wasn’t until the late 1930s that abortion laws were enforced. Subsequent crackdowns led to a reform movement that succeeded in lifting abortion restrictions in California and New York even before the Supreme Court decision in Roe v. Wade.
- History Staff. "Roe v. Wade is Decided". A+E Networks.
- Until the late 19th century, abortion was legal in the United States before “quickening,” the point at which a woman could first feel movements of the fetus, typically around the fourth month of pregnancy.
Some of the early regulations related to abortion were enacted in the 1820s and 1830s and dealt with the sale of dangerous drugs that women used to induce abortions. Despite these regulations and the fact that the drugs sometimes proved fatal to women, they continued to be advertised and sold.
In the late 1850s, the newly established American Medical Association began calling for the criminalization of abortion, partly in an effort to eliminate doctors’ competitors such as midwives and homeopaths.
Additionally, some nativists, alarmed by the country’s growing population of immigrants, were anti-abortion because they feared declining birth rates among white, American-born, Protestant women.
In 1869, the Catholic Church banned abortion at any stage of pregnancy, while in 1873, Congress passed the Comstock law, which made it illegal to distribute contraceptives and abortion-inducing drugs through the U.S. mail. By the 1880s, abortion was outlawed across most of the country.
- History.com Editors, "Roe v. Wade". HISTORY. (Updated: May 15, 2019 Original: Mar 27, 2018)
- Blackmun noted that the anti-abortion mood in the “late” nineteenth century was shared by the medical profession and that “the attitude of the profession may have played a significant role in the enactment of stringent criminal abortion legislation during that period.” He observed that the American Medical Association (AMA) appointed a Committee on Criminal Abortion in 1857 which in its report two years later deplored abortion and its frequency which it felt was due, first, to a wide- spread belief that the fetus was not alive until quickening; second, to the fact that doctors themselves were often supposed to be careless of fetal life; and, third, to the “grave defects” of both common and statute laws in recognizing the fetus and its inherent rights for civil purposes but in failing to recognize it, and denying it all protection, when “personally and as criminally affected.” He added that the AMA adopted its committee’s resolutions which protested against “such unwarrantable destruction of human life” and which called upon state legislatures to tighten their abortion laws.
- John Keown, “Back to the Future of Abortion Law: Roe's Rejection of America's History and Traditions”, Issues in Law and Medicine, Volume 22, Issue 1, Summer 2006, p.8
- “Nineteenth-century abortion restrictions sought to promote objectives that are today plainly either inapplicable or constitutionally impermissible.”
A major source relied on by the Brief to support this proposition was Professor James Mohr’s Abortion in America.52 Since its publication in 1978 this has been widely regarded as the leading work on the statutory restriction of the abortion law in nineteenth century America (though, as we shall see below, it has been subjected to serious criticism, not least by Professor Dellapenna’s recent book Dispelling the Myths of Abortion History.)53 Quoting Mohr the Brief stated, accurately, that between 1850 and 1880 the American Medical Association (AMA) became the “single most important factor in altering the legal policies toward abortion in this country.” It then stated, inaccurately, that the anti-abortion legislation enacted in the nineteenth century did not have fetal protection as even one of its purposes. The four purposes alleged by the Brief were as follows:
* “From 1820 -1860, abortion regulation in the states rejected broader English restrictions and sought to protect women from particularly dangerous forms of abortion.”
* “From the mid-nineteenth century, a central purpose of abortion regulation was to define who should be allowed to control medical practice.”
* “Enforcement of sharply-differentiated concepts of the roles and choices of men and women underlay regulation of abortion and contraception in the nineteenth century.”
* “Nineteenth-century contraception and abortion regulation also reflected ethnocentric fears about the relative birthrates of immigrants and Yankee Protestants.”
- John Keown, “Back to the Future of Abortion Law: Roe's Rejection of America's History and Traditions”, Issues in Law and Medicine, Volume 22, Issue 1, Summer 2006, pp.13
- Notwithstanding involvement on the part of Catholic and Protestant clergy and others, physicians were the leading force in the campaign to criminalize abortion in the USA. The American Medical Association (AMA), founded in 1847, argued that abortion was both immoral and dangerous, given the incompetence of many practitioners at that time. According to a number of scholars, the AMA’s drive against abortion formed part of a larger and ultimately successful strategy that sought to put “regular” or university-trained physicians in a position of professional dominance over the wide range of “irregular” clinicians who practiced freely during the first half of the 19th century.
What followed was a “century of criminalization” characterized by a widespread culture of illegal abortion provision. Thousands of women died or sustained serious injuries at the hands of the infamous “back alley butchers” of that period, and encountering these victims in hospital emergency rooms became a nearly universal experience for US medical residents. However, safe abortions were available to some women, performed by highly skilled laypersons and physicians with successful mainstream practices who were motivated primarily by the desperate situations of their patients. These “physicians of conscience” were instrumental in convincing their medical colleagues of the necessity to decriminalize abortion. By 1970, the AMA reversed its earlier stance and called for the legalization of abortion.
- Paul, M; Lichtenberg, ES; Borgatta, L; Grimes, DA; Stubblefield, PG; Creinin, MD; Joffe, Carole (2009). "1. Abortion and medicine: A sociopolitical history" (PDF). Management of Unintended and Abnormal Pregnancy (1st ed.). Oxford: John Wiley & Sons. ISBN 978-1-4443-1293-5. OL 15895486W. Archived (PDF) from the original on 19 January 2012. p.2
- The Means–Blackmun narrative’s claim that protection of unborn children played no part in the enactment of increasingly restrictive 19th-century abortion laws blatantly defies a clear historical record. At its May 1859 meeting, for example, the American Medical Association (AMA) heard a report that rejected the “mistaken and exploded medical dogma” that the unborn child has no “independent and actual existence...as a living being.” The AMA unanimously adopted a resolution that condemned the “unwarrantable destruction of human life”38 and “the slaughter of countless children” and sought “the zealous co-operation of the various state Medical Societies” in pressing for laws prohibiting abortion, “at every period of gestation,” except when necessary to save the mother’s life.
- Sarah Parshall Perry and Thomas Jipping, “Dobbs v. Jackson Women's Health Organization: An Opportunity to Correct a Grave Error”, Legal Memorandum No. 293, Edwin Meese III Center for Legal and Judicial Studies, November 17, 2021, p.4
- In one of the many curious twists that mark the history of abortion, the campaign to criminalize it was waged by the same professional group that, a century later, would play an important role in legalization: physicians. The American Medical Association's crusade against abortion was partly a professional move, to establish the supremacy of "regular" physicians over midwives and homeopaths. More broadly, anti-abortion sentiment was connected to nativism, anti-Catholicism, and, as it is today, anti-feminism. Immigration, especially by Catholics and nonwhites, was increasing, while birth rates among white native-born Protestants were declining. (Unlike the typical abortion patient of today, that of the nineteenth century was a middle- or upper-class white married woman.) Would the West "be filled by our own children or by those of aliens?" the physician and anti-abortion leader Horatio R. Storer asked in 1868. "This is a question our women must answer; upon their loins depends the future destiny of the nation." (It should be mentioned that the nineteenth-century women's movement also opposed abortion, having pinned its hopes on "voluntary motherhood"—the right of wives to control the frequency and timing of sex with their husbands.)
Nonetheless, having achieved their legal goal, many doctors—including prominent members of the AMA—went right on providing abortions. Some late-nineteenth-century observers estimated that two million were performed annually (which would mean that in Victorian America the number of abortions per capita was seven or eight times as high as it is today). Reagan argues persuasively that our image of nineteenth-century medicine is too monolithically hierarchical: while medical journals inveighed against abortion (and contraception), women were often able to make doctors listen to their needs and even lower their fees. And because, in the era before the widespread use of hospitals, women chose the doctors who would attend their whole families through many lucrative illnesses, medical men had self-interest as well as compassion for a motive. Thus in an 1888 exposé undercover reporters for the Chicago Times obtained an abortion referral from no less a personage than the head of the Chicago Medical Society. (He claimed he was conducting his own investigation.) Unless a woman died, doctors were rarely arrested and even more rarely convicted. Even midwives—whom doctors continued to try to drive out of business by portraying them, unfairly, as dangerous abortion quacks—practiced largely unmolested.
- Katha Pollitt, "Abortion in American History", Atlantic Magazine. (May 1997).
- Reagan's discussion of "dying declarations" makes particularly chilling reading: because the words of the dying are legally admissible in court, women on their deathbeds were informed by police or doctors of their imminent demise and harassed until they admitted to their abortions and named the people connected with them—including, if the woman was unwed, the man responsible for the pregnancy, who could be arrested and even sent to prison. In 1902 the editors of the Journal of the American Medical Association endorsed the by then common policy of denying a woman suffering from abortion complications medical care until she "confessed"—a practice that, Reagan shows, kept women from seeking timely treatment, sometimes with fatal results. In the late 1920s some 15,000 women a year died from abortions.
- Katha Pollitt, "Abortion in American History", Atlantic Magazine. (May 1997).
- As the sociologist Carole Joffe has noted, most of the nation’s leading medical organizations failed to issue any significant guidelines on abortion immediately after Roe was decided. That reticence reflected the conflicted feelings many doctors had about a procedure that some linked to infamous back-alley “butchers,” and that others associated with feminists who were claiming authority over their bodies in ways that made many male doctors uncomfortable. (Notably, although the American Medical Association asserted in a 1970 resolution that the principles of medical ethics “do not prohibit a physician from performing an abortion,” the document stated that abortion procedures should be determined by the “sound clinical judgment” of medical professionals, not “mere acquiescence to the patient’s demand.”) Some doctors also believed that abortion was morally wrong.
In subsequent decades, professional associations such as the American College of Obstetricians and Gynecologists “danced around the issue” of abortion for fear of alienating members who might not support abortion rights, said Doug Laube, an abortion provider who served as ACOG’s president from 2006-2007. Though the organization is formally pro-choice, Dr. Laube told me that during his tenure as president he observed that the stigma associated with abortion made ACOG reluctant to “advocate for abortion services as regular, normal medical care.”
- Eyal Press, “Why the Medical Establishment Shied Away From Abortion”, The New York Times, (Jan. 21, 2022)
- The American Medical Association endorsed legalized abortion in 1967. Medical professionals reported that each year they were treating thousands of women who had obtained illegal abortions and had been injured as a consequence. Believing that abortions were inevitable in American society, they argued that legalizing the practice would allow trained medical staffs to perform safe procedures in medical facilities. Religious leaders in more liberal Christian denominations also became advocates. These included the United Church of Christ, the United Methodist Church, the Episcopalian Church, and the United Presbyterian Church.
The anti-abortion movement also began to grow in the 1960s and became a leading opponent of the Roe v. Wade ruling. The Roman Catholic Church became a powerful voice in opposition to abortion in the 1960s, when the National Conference of Catholic Bishops organized the Family Life Division (FLD). After 1973, leaders of the FLD formed the National Right to Life Committee, which became the largest-antiabortion organization. Led by John Wilke, the group fought for changes to abortion laws at the legislative level through lobbying and sponsored publication of anti-abortion materials for distribution to voters.
- Claire E. Ramussen, “Abortion”; in Chapman, Roger. “Culture wars: an encyclopedia of issues, viewpoints, and voices", M.E. Sharpe. Inc, (2010), pp.1-2
- To avoid the social disaster of single motherhood, turn-of-the century physicians and women’s charity groups urged unwed women to bear their children in maternity homes. Some homes arranged for adoption of illegitimate infants; others insisted that the new mothers keep them. The Journal of the American Medical Association viewed these homes as a way “to combat the crime of induced abortion.” Yet many homes refused African American women. One African American physician established a hospital in Louisville, Kentucky, in order to provide a place where unmarried African American women could deliver their babies and give them up for adoption instead of having abortions. The policies of unwed mother’s homes could be oppressive. Maternity homes expected mothers to repent and required them to stay long periods of time, perform domestic tasks and participate in religious services. State agencies and private charities required the women, whether keeping or giving up their newborns, to breast-feed for several months. Some women surely concluded that an abortion, though illegal, could be a simpler solution to a pregnancy out of wedlock. Regina Kunzel has found that many women in maternity homes had tried but failed to abort their pregnancies. One maternity home inmate gave her new friends at the home valuable information for the future; she described how to do their own abortions.
- Leslie J. Reagan, “When abortion was a crime: women, medicine, and law in the United States, 1867-1973”, “Introduction”, (December 31, 1996), pp.28-29
- ”Roe” ultimately gives physicians, not pregnant women, the ability to determine whether and when abortion is warranted. In the nineteenth century, women of all social classes could legally procure abortion, often using herbal abortifacients. As “regular” physicians distinguished themselves from midwives and homeopaths, many lobbied state legislatures to criminalize induced abortion. Shortly after its formation in 1847, the American Medical Association (AMA) declared human life to begin at conception and not, as women apparently believed, at “quickening,” midway through gestation, when a woman first feels fetal movement in the womb. In taking an anti-abortion stance, physicians not only professionalized but moralized their practice through association with saving lives. By end of century, abortion was criminalized throughout the United States and recognized to be a medical issue. It is an historic irony that abortion was medicalized to restrict its practice, only to be legalized a century later precisely based on its status as medical procedure, a private matter between patient and doctor.
- Restivo, Sal P., ed. (2005). “Science, Technology, and Society: An Encyclopedia”. Oxford University Press. ISBN 978-0-19-514193-1. Archived from the original on 15 March 2015. p.1
- The American Medical Association’s Code of Ethics states that “[a] physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution.”
- Mark L. Rienzi, “The Constitutional Right Not to Kill”, Emory Law Journal, Volume 62, Issue 1, 2012, p.138
- In Roe and Lawrence, the Court found facts more favorable to the proposed due process rights. In Roe, the Court found some support for an abortion right in the limited evidence of a trend toward legalization—a stronger trend toward legalization than anything the Glucksberg Court could find, but hardly an overwhelming one. The Court noted that “about one-third” of the states had recently changed their abortion laws to make them “less stringent.” The Roe Court also emphasized the official positions of American professional associations. For over 100 years, the American Medical Association maintained the position that abortion should generally be illegal and doctors should not participate in the procedure before finally changing its position in 1970 to support abortion.222 Similarly, in 1970 the American Public Health Association adopted new “Standards for Abortion Services” calling for abortion referral to be easily available, and the American Bar Association called for abortion to be largely unrestricted in the first twenty weeks of pregnancy. Though the Court did not explicitly rest its holding on these professional associations’ positions, they did support its reasoning, and the Court spent six pages of the majority opinion discussing them.
- Mark L. Rienzi, [https://scholarlycommons.law.emory.edu/cgi/viewcontent.cgi?article=1244&context=elj “The Constitutional Right Not to Kill”, Emory Law Journal, Volume 62, Issue 1, 2012, pp.167-168
- [T]he best example of contemporary trends and consensus in favor of a right not to kill comes in the abortion context, where protection of conscience has been almost universal and has all occurred within the last fifty years.
In the years prior to Roe, at least fourteen states had already liberalized their abortion laws. These pre-Roe liberalization laws frequently came with the creation of express statutory protection for physicians and other healthcare personnel and institutions that refused to participate in abortions. Likewise, when it decided in 1970 to support greater access to abortion, the American Medical Association also resolved that “[n]either physician, hospital, nor hospital personnel shall be required to perform any act violative of personally-held moral principles.”
Once the Court’s decision in Roe established a constitutional right to abortion, state and federal legislatures acted quickly and decisively to confirm that no physician could be forced to provide an abortion. At both the state and federal levels, legislators quickly enacted conscience statutes to protect individuals and institutional healthcare providers from being forced to participate in abortions. These laws were not limited solely to the direct performance of abortion. Instead, they protected against compulsion to participate even indirectly, including by referral or providing space.
The speed and near unanimity of these legislative actions confirm that the right not to be forced by the government to perform abortions is implicit in the concept of ordered liberty. For decades, abortion has been the most divisive political, social, and ethical issue in the country. Yet amidst this widespread, heated, and seemingly endless disagreement, we see something remarkable: essentially unanimous agreement from state and federal governments that providers should not be forced to participate in abortions. Moreover, this widespread agreement has occurred in the past fifty years—the time period the Lawrence Court deemed most important.
- Mark L. Rienzi, “The Constitutional Right Not to Kill”, Emory Law Journal, Volume 62, Issue 1, 2012, pp.170-171
- Today, abortion practitioner in the United States are targeted and reviled by the radical right and isolated by their communities. Many wear bulletproof vests in public, and almost all have unlisted home telephone numbers. The need for such precautions is relatively recent. During the illegal era (from the mid-nineteenth century until 1973), abortion practitioners operated with varying degrees of secrecy, but they did not fear for their lives. In fact, a number of abortionists in the illegal era provided their services for years-twenty, thirty, forty years, and more-completely unimpeded by the law. In many communities, the local abortion practitioner’s name and address were well known, not only to women who might require the service but also to police and politicians, who generally regarded the presence of a good abortionist a public health asset. For decades after the American Medical Association worked with state legislatures in the nineteenth century to outlaw abortion, abortion prosecutions were rare relative to the number of abortions performed. In most communities an unwritten agreement prevailed between law enforcement and practitioners: no death, no prosecution.
But after World War II the old agreement was rather suddenly canceled, and practitioners-chiefly the female ones (presumed by law enforcement to be unskilled, untrained, and unprotected in comparison to their male counterparts, and therefore more likely to be convicted)-were arrested, convicted, and sent to jail in unprecedented numbers, even when there was no evidence of a botched abortion. Many of these practitioners were highly skilled and experienced, having performed twenty some abortions a day, year after year.
- Rickie Solinger, (1998) "Introduction", in Solinger, Rickie (ed.), “Abortion Wars: A Half Century of Struggle, 1950–2000”, University of California Press, ISBN 978-0-520-20952-7, pp.17-18
- Most states criminalized abortion at the time of Roe v Wade. Although abortion performed before ‘quickening’ had been legal at the nation’s founding (‘quickening’ refers to the time when the mother can first feel fetal movement), the American Medical Association, starting in the 1850s, promoted the criminalization of abortion, except to save the mother’s life (Greenhouse and Siegel 2035). Texas, the state whose law was challenged in Roe v Wade, made abortion criminal in 1854, and a majority of US states had similar laws at the time the Supreme Court decided Roe v Wade (Roe v Wade 118 n.2; Doe v Bolton 181–82). Consequently, prior to the decision, illegal abortions were common in the United States, with estimates of 1,000,000 a year or ‘one to every four births’ (Calderone 950). The danger of the procedure differed by class. Many doctors ‘secretly performed abortions for women whom they knew and who could pay’, while other women were relegated to ‘unsafe circumstances’ (Garrow (1999) 834).
- Merle H. Weiner, "Roe v. Wade Case (US)", Oxford Constitutional Law, August 2016, p.2