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FOR a century, state laws in the U. S. have generally made abortion a crime except where necessary to save a woman’s life. The ban is enforced by religious beliefs, medical ethics, fear of social scandal. Yet it is flouted throughout the country—in the same pattern, though not in the same numbers, as Prohibition was decades ago. Written by men, anti-abortion laws cannot quell the desperation of women for whom a particular pregnancy is a hateful foreign object. At their time of despair, women agree with Author Marya Mannes, who reviles such laws as the work of “the inseminators, not the bearers.”

How women react to unwanted pregnancy is the most crucial—and least acknowledged—issue in the current debate over U. S. abortion laws. Each year, an estimated 25 million legal abortions occur throughout the world (v. roughly 120 million live births). The fact is that women have always practiced abortion, defying all laws or taboos against it, including the death penalty, which still exists in Pakistan. The inevitable Egyptian papyrus mentions it; Aristotle urged it in general terms, and so did Plato for every woman after 40; Roman husbands were entitled to order it. Anthropologist George Devereux has catalogued dozens of ancient methods—magical incantations, jumping from high places, applying hot coals to the abdomen. Hawaiian women fashioned stilettos representing Kupo, god of abortions, then thrust them into the uterus. Even now, Ceylonese girls brew an abortifacient by boiling a poisonous yam in cow urine or liquid dung, and then swallow the stuff for seven days.

It is a male theory (or unconscious demand) that women feel deep guilt after abortion. In fact, most women react with a feeling of great relief. None of this should obscure the biological fact that abortion is abnormal, a product of grave medical, economic and psychological pressures. Says a twice-aborted schoolteacher: “No one would go through it unless they had to.”

Practice v. Policy

How many women have illegal abortions rather than suffer the far-reaching effects of unwanted pregnancy? Estimates range from 200,000 to 1,500,000 a year in the U. S. (v. 3,700,000 live births). No one records illegal abortions; all statistics are extrapolated from shaky sample studies going as far back as Germany in the 1920s. As for deaths resulting from abortions, which are better recorded, the annual toll is probably about 1,000. No one can accurately add up the number of U. S. women who go to Puerto Rico, Japan, and other places where abortions are easily, if expensively, obtained. The firmest figure is the number of legal abortions (10,000 a year) performed in hospitals—and they are decreasing. In the early 1940s, one pregnancy in 150 was aborted to save women with such diseases as di abetes, tuberculosis and hypertension. Now medical advances have helped to cut the ratio to one in 500.

Today, hospital abortions are usually quite safe, especially during the first trimester of pregnancy. Until the twelfth week, the standard technique is dilation and curettage (“D and C”); a surgeon merely stretches the cervix with dilators, then removes the conceptus with a tiny, scoop-shaped instrument called a curette. After three months, one method is to inject a salt solution into the amniotic sac, thus starting labor contractions that expel the fetus. In Communist countries, where the right to abortion is given or withheld at the whim of the state, a small vibrodilator is inserted in the uterus for 45 seconds; a tiny vacuum then empties the contents. Widely used until the twelfth week, the method minimizes injury, takes only three minutes. In 1964, Czechoslovakia reported no deaths in 140,000 legal abortions, Hungary only two in 358,000.

Despite the safeness, abortion is an emotion-charged equa tion: a maternal life saved equals a fetal life destroyed. Out of deep concern for the fetus—as well as tribal survival—men disapproved of abortion even before the Hippocratic oath. The very first Christians called it infanticide; in A.D. 314, the church prescribed ten years’ penance for it. Thereafter, theologians debated the point at which the fetus is “animated” with a rational soul and hence murderable. By the 12th century, abortion was generally not punished by excommunication when performed within 40 days of conception for a male fetus and 80 days for a female, though it was impossible then (as it is difficult now) to fix the time of conception, and no one ever explained how fetal sex could be predetermined. Pope Sixtus V (1585-90) made abortion an excommunicatory sin at any stage of development, but this order was reversed in the year after his death by Gregory XIV, who approved excommunication only after a fetus was 40 days old. In 1869, Pius IX reverted the Roman Catholic Church to the Sixtus position, which holds that ensoulment begins at conception.

Modern Catholic clerics increasingly rely on embryology rather than ensoulment to urge that a newly fertilized ovum is virtually a person because it contains all the cell-creating chromosomes that a human ever has. As they see it, the conceptus is a living continuum from the start, a life that dies only by outside interference. In 1930, Pius XI made it clear that abortion is forbidden, even to save a woman’s life, because the fetus is “equally sacred.” The church’s stand is widely ignored in Catholic countries, which ban birth control and have high rates of abortion as a result. In France, illegal abortions roughly equal—and may well exceed—live births. In South America, induced abortion is the No. 1 cause of death for women of childbearing age. Similar patterns exist in no-abortion Moslem countries; an estimated one-third of Iran’s pregnancies are aborted.

In medical eyes, a fetus is usually incapable of independent life before 20 weeks, thus presenting no murder issue in abortion. In contrast to Catholic doctrine, most other Western religions now view the mother’s life as primary. Many Jews accept abortion because they regard a fetus as an organic part of the mother and not as a living soul until its birth. The National Council of Churches has approved hospital abortions “when the health or life of the mother is at stake,” and many clergymen broadly define health to mean social as well as physical wellbeing. Last month the nation’s Episcopal bishops approved limited legal abortion “with proper safeguards against abuse.” The assembly of the Unitarian Universalist Association has decried abortion laws as “an affront to human life and dignity.”

In a Legal Maze

The central problem of abortion in the U. S. is that it is governed by criminal law rather than medical knowledge. Following English common law, the early U. S. regarded abortion as no crime before the fetus quickens in the womb (about five months); a miscarriage before 20 weeks still generally requires no death certificate or interment. But starting in 1860, many states outlawed abortion before as well as after quickening. New Hampshire, for example, bans hospital abortion before quickening, even to save a dying woman. The legal maze is extraordinary. In 17 states, unjustified abortion is a felony that carries sentences ranging up to 21 years. In some states, the woman herself can be charged (but seldom is) for cooperating in the abortion.

Prosecution is rare: women do not testify. Yet doctors in most states can never forget that the sole defense is proven necessity to save the patient’s life. Only seven states even consider her health or safety. Actually, most hospital abortions are performed for admittedly illegal reasons, notably mental illness and German measles (25% of the 1964 total). Unfortunately, fear of the consequences creates vast inequities. To fend off prosecution, special hospital boards often use quotas and render questionable moral judgments.

The inescapable result is that women able to pay fees of $300 to $600 frantically seek illegal abortionists, who seem remarkably available (one middle-class East Coast wife asked five friends, got five names). About 75% of abortionists are doctors, some of them genuine humanitarians. Until he retired a while ago, Dr. Robert Spencer of Ashland, Pa., was considered a saint by thousands of Eastern college girls. Even the police sent him their wives. One New Jersey general practitioner performs 250 abortions a year in his spotless, two-nurse clinic. “Every day I tell myself, This is the last,’ ” he says. “And every day someone else calls and sounds so frightened and alone. I just can’t tell them no.”

Florida currently has an influx of skilled Cuban refugee doctors who once made Havana an abortion mecca and are now doing the same for Miami, where some 30 abortion mills last year paid off assorted officials and took in an estimated $20 million. But all too many U.S. abortionists are dangerous defrocked doctors—alcoholics, drug addicts, sexual perverts—or worse, bungling amateurs who don’t hesitate to finish a sloppy job by tossing clients off tenement roofs or dismembering those who die. Equally sobering are the slum women who cannot afford even amateurs and do it themselves with hatpins, coat hangers and putrid soap solutions, which are often followed by lethal infection. Most desolate of all, perhaps, are those who cannot and dare not abort. Among the poor, who still know little about contraceptives, one result is ever more unwanted children, the key carriers of delinquency, divorce and crime. In 20 years, illegitimate births in the U.S. have more than doubled, to 291,000 a year, rising to 26% of all nonwhite births, compared with 3.6% of whites.

Toward Reform

All the polls show that Americans heavily favor reform. Of 40,089 U.S. physicians who answered a survey by Modern Medicine last spring, 87% favored liberalizing the abortion laws—including 49% of the Catholics. According to the National Opinion Research Center, 71% of Americans favor legal abortion if the woman’s health is endangered, 56% in rape cases and 55% if there is a strong chance that the baby may have a serious defect. Conversely, 80% are against abortion for unwed girls and 83% against it for mothers who do not want more children—the main seekers of abortion.

As in other sex-law issues, the surveys suggest that Americans tend to disapprove publicly what they practice privately. Now the consensus is having political effects. Last spring Colorado became the first state to legalize hospital abortions on three principal medical grounds. Based on a model code drafted by the American Law Institute, the new statute authorizes abortion whenever a pregnancy 1) threatens grave damage to the woman’s physical or mental health, 2) results from rape or incest, or 3) is likely to produce a child with a severe mental or physical defect. Even then, abortions require unanimous approval by a hospital panel of three doctors. North Carolina has followed suit, but does not require panels. California’s new law is similar to Colorado’s but bars abortion of potentially defective children. In varying degrees, the same formula is up for debate in at least ten other state legislatures.

The key question is whether limited legislation is any solution. In fact, the new laws merely codify what hospitals are already doing. They do embolden doctors, but in practice they may prove more restrictive—and even increase illegal abortions. So it seems in Sweden, which in 1938 enacted a law almost exactly like Colorado’s. Far from being an abortion mecca (foreigners are rarely accepted), Sweden puts women through a multilayered screening that creates excruciating delays; 56% of Stockholm-area legal abortions occur after the 16th week of pregnancy. Bureaucratic paper shuffling often holds up legal operations until the 24th week—producing live babies that sometimes cry for hours before dying. To avoid de facto infanticide, Swedish women flock to Poland for early, efficient $60 abortions. Appalled, the Swedish government has concluded that the law must be broadened to allow more and faster abortions.

More complicated objections to limited legislation are now being raised by Catholic clerics, who regard Colorado-style laws as a blatant c^se of state-approved eugenics, never before established in U.S. law. To abort a rubella (German measles) victim, they say, is to rely on the purely statistical chance (average odds: 50-50) that her child may be defective—and to doom a possibly perfect baby in the process. To abort a fetus produced by rape or incest, they say, is to execute the most innocent partv in the trianele purely for the mother’s social convenience. Even the rapist is guaranteed a trial based on all of law’s due-process standards. Why no due process for the fetus? Not only that: some states already grant an unborn child rights of inheritance and recovery for prenatal injuries. Since those rights are contingent on his being born alive, does he not also have a right to be born in order to exercise them?

Conscience & Intelligence

Beyond these profound moral questions, however, lies the stubborn reality that women denied legal abortions go on getting illegal ones—and that those unborn babies get even less due process than would a rape-fetus in Colorado. This leads to the argument that the real immorality is the retention or enactment of laws that drive women to illegal abortion. In empirical terms, the debaters are mired in side issues. Vital as fetal rights unquestionably are, the bedrock problem is not whether the fetus is inchoate and hence expendable, as law reformers claim, or whether it is human and inviolable, as opponents insist. The problem is unwanted pregnancy and how to treat it.

How? The reformers have solid answers: not by public indifference but by more birth control information and family support. Not by moral absolutes toward unwed pregnancy but by moral concern for each concrete situation. Not by punitive laws but by medical freedom to help panicky women make rational choices—and if need be, have safe, early, cheap abortions. For both mother and fetus, the reform movement holds, such is the real due process required. Much of this might come about simply by more liberal interpretation of existing state laws. Court cases going back to 1929 give U.S. doctors almost the exclusive right to decide when abortion is necessary to save maternal life; several decisions hold that the danger need not be imminent or certain; in the future, even life-shortening unhappiness might be a legal ground. But few doctors are ready to rely on those decisions in the absence of a Supreme Court ruling.

That leaves state legislatures facing the most important question in the debate: Why not repeal all abortion laws? Last month that suggestion came from Jesuit Theologian-Lawyer Robert F. Drinan, dean of Boston College Law School and chairman of the American Bar Association’s family-law section. In attacking the limited-abortion plan, Father Drinan argued that repeal has “at least the merit of not involving the law and society in the business of selecting those persons whose lives may be legally terminated.”

Ultimately, of course, the issue may become academic. The rapid development of contraceptives suggests that women may some day become essentially infertile and thus free to decide precisely when they wish to become fertile. Such safe, do-it-yourself abortifacients as the morning-after and the once-a-month pill are also likely to make abortion entirely a private matter. Still, those pills are far from being perfected—and may well run afoul of anti-abortion laws. Meanwhile, even present contraceptives do not solve the abortion problem.

Along with poverty, ignorance and moral strictures against birth control, the unpredictability of human sexual practices makes unwanted pregnancy inevitable. The way to deal with the problem forthrightly is on terms that permit the individual, guided by conscience and intelligence, to make a choice unhampered by archaic and hypocritical concepts and statutes.

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