The management of  unwanted pregnancy  by the medical practitioner is changing radically in California and in the United States. This change is manifested by the rapid increase in the number of abortions being performed in accredited hospitals throughout the state. Before 1967, under the restrictive law in force up to that time, 1.8 abortions per 1,000 live births were performed in California hospitals. In the first year under the new Therapeutic Abortion Act, the statewide rate was 11.2 abortions per 1,000 live births. Single hospital rates were or have since become much higher; 100 to 300 abortions per 1,000 live births or in some university affiliated hospitals more abortions than live births. What are the reasons for and the implication of this change

Moyers, Thomas G.

English

University of San Diego

San Diego Law Review Volume 7 Issue 2 1970 Article 3 5-1-1970 Abortion Laws: A Study in Social Change Thomas G. Moyers Follow this and additional works at: https://digital.sandiego.edu/sdlr  Part of the Law Commons Recommended Citation Thomas G. Moyers, Abortion Laws: A Study in Social Change, 7 SAN DIEGO L. REV. 237 (1970). Available at: https://digital.sandiego.edu/sdlr/vol7/iss2/3 This Article is brought to you for free and open access by the Law School Journals at Digital USD. It has been accepted for inclusion in San Diego Law Review by an authorized editor of Digital USD. For more information, please contact digital@sandiego.edu. ABORTION LAWS: A STUDY IN SOCIALCHANGEDr. Thomas G. Moyers*The management of "unwanted pregnancy" by the medicalpractitioner is changing radically in California and in the UnitedStates. This change is manifested by the rapid increase in thenumber of abortions being performed in accredited hospitalsthroughout the state. Before 1967, under the restrictive law inforce up to that time,' 1.8 abortions per 1,000 live births wereperformed in California hospitals.2 In the first year under the newTherapeutic Abortion Act 3 the statewide rate was 11.2 abortionsper 1,000 live births.4 Single hospital rates were or have sincebecome much higher; 100 to 300 abortions per 1,000 live birthsor in some university affiliated hospitals more abortions than livebirths. What are the reasons for and the implications of thischange?Before 1965, practically all of the statutory jurisdictions inthe United States had passed laws pertaining to abortion.5 One ofthe pervading implications of all these laws was to protect thepregnant female citizen from the real dangers of induced abortion,which in the days prior to the advent of modern medical andanesthetic techniques were considerable.6 All laws limited the legalindications to grave or life-threatening maternal risk. But thedangers of abortion, properly conducted, have been reducedsignificantly in recent years as with many medical procedures. In* B.A., U.C.L.A., 1956; M.D., University of California at San Francisco, School ofMedicine, 1960; Training in Obstetrics and Gynecology, San Diego County Hospital;Board certified by the American Board of Obstetrics and Gynecology; Clinical instrutor,U.C.S.D. School of Medicine; Chairman, Sharp Memorial Hospital Therapeutic AbortionCommittee.1. CAL. PENAL CODE § 274 (West 1955).2. 108 CALIF. MEDICINE No. 4 (May 1968).3. CAL. HEALTH & SAFETY CODE §§ 25950-54 (West Supp. 1970).4. California Department of Public Health, Report to the Legislature . . . Relativeto a Continuing Study on Abortion, Table 2 (January 20, 1969). See also Saylor, PublicHealth Report, 110 CALIF. MEDICINE 362 (1969).5. For an exhaustive discussion of the various statutes, see George, Current AbortionLaws: Proposals and Movements for Reform, 17 W. REs. L. REv. 371, 375-99 (1965).6. See Gleitman v. Cosgrove, 49 N.J. 22, 60, 227 A.2d 689, 709 (1967) (dissentingopinion); R. LUCAS, ANALYSIS OF ABORTION LAWS OF THE UNITED STATES, ASSOCIATIONFOR THE STUDY OF ABORTION, INC., 2-3 (1969). See also, Fox, Abortion Deaths inCalifornia, 98 AMERICAN JOURNAL OF OBSTETRICS AND GYNECOLOGY 645 (1967).SAN DIEGO LA W REVIEWfact, abortion in early pregnancy, performed in idealcircumstances, may well be significantly less hazardous thanpregnancy carried to and beyond delivery.7 Neither course has ahigh rate of complications, but even with modern advancements,the complications of late pregnancy such as toxemia andhemorrhage still result in an overall maternal mortality ofapproximately 2.0 per 10,000 live births8 This fact, as well as theemotionally traumatic effect of unwanted pregnancy,' supports thepreceding comparison of risk between abortion and termpregnancy.The impetus for change in the law as occurred in 1967 camefrom several sources. Physicians themselves were instrumental inthe movement.10 A nation-wide epidemic of "German Measles"(Rubella) in 1964 and 1965 caused many patients, fearing that thepregnancy they were carrying had been damaged by the illness, topresent themselves to their physicians seeking abortion. Somewere turned away and many of these most likely obtainedabortions illegally or in a foreign country." A few physicians,willing to expose themselves to prosecution and supported byscientific data reporting the high incidence of Rubella damage tounborn fetuses, performed therapeutic abortions on thesepatients. 2 Some contended the law, although restrictive, could beinterpreted to allow abortion in these cases; others felt that the lawwas simply too rigid and could best be tested and eventuallychanged by proceeding with actions they felt to be the bestmedical practice. These physicians were subsequently brought totask before the State Board of Medical Examiners and eventuallycensured. This decision has subsequently been reversed onappeal. 37. Kolbloya, Legal Abortion in Czechoslovakia, 196 J. Am. MEDICAL ASS'N 371(1969); People v. Belous, 71 Adv. Cal. 996, 1007 and n.7, 458 P.2d 194, 200-01 and n.7,80 Cal. Rptr. 354, 360-61 and n.7 (1969).8. Fox, supra note 6, at 645.9. See Pike, Therapeutic Abortion and Mental Health, 111 CALIF. MiEDICINE 318(1969).10. See e.g., Niswander, Medical Abortion Practices in the United States, 17 W. RES.L. REv. 403 (1965); Ryan, Humane Abortion Laws and the Health Needs of Society, 17W. RES. L. REv. 424 (1965); Rosen, Psychiatric Implications of Abortion: A Case Studyin Social Hypocrisy, 17 W. RES. L. REv. 435 (1965).11. Niswander, supra note 10, at 412, 417; Ryan, supra note 10, at 428-29.12. Kummer, New Trends in Therapeutic Abortion in California, 34 OBSTETRICS &GYNECOLOGY 883 (1969).13. Id. at 884. The sanctions against the physicians, known as the "San Francisco[Vol. 7A BOR TION LAWSEven earlier, but with the implied support of these and otherphysicians, several citizen groups, a majority of them women,were organizing in an effort to bring about some change in thelaw. Groups such as the local Abortion Counseling Service, theClergy Counseling Service of Los Angeles, and others, were activein the community and were lobbying in Sacramento forliberalization or repeal of existing laws. The basic principlesupported by these organizations is that each woman has the rightto decide whether or not she should remain pregnant, andtherefore the question of abortion should become an unrestrictedchoice of the individual, a matter to be decided between thewoman and her doctor.The proponents of liberalization were apparently winning thebattle. First in Mississippi, 4 then in Colorado,15 California, 6Georgia' 7 Maryland,"8 North Carolina, 9 Arkansas, 20 Delaware, 2'Kansas, 22 New Mexico,23 Oregon,24 and most recently Hawaii,25bills liberalizing abortion practices have been passed by theirlegislative bodies. Most of these laws are similar in content to thatproposed by the American Law Institute in its Model PenalCode, 26 and the American Medical Association2  Some of the newNine," ranged from "public reprimand" to revocation of license (suspended for a one-year probationary period), but were reversed by the superior court.14. Miss. CODE ANN. § 2223 (1957).15. COLO. REV. STAT. ANN. § 40-2-50-53 (Supp. 1967).16. CAL. HEALTH & SAFETY CODE §§ 25950-54 (West Supp. 1970).17. GA. CODE ANN. § 26-1201 (Rev. 1969).18. MD. ANN. CODE art. 43, § 149E (Supp. 1969). But see note 28 infra.19. N.C. GEN. STAT. § 14-45.1 (Supp. 1967).20. ARK. STAT. ANN. § 41-304 (Supp. 1969).21. DEL. ANN. CODE § 301 (1953).22. KAN. STAT. ANN. § 21-3407 (Supp. 1969).23. N.M. STAT. ANN. § 40A-5-1 (1953).24. ORE. REV. STAT. § 465.110 (Supp. 1967).25. See Los Angeles Times, Feb. 21, 1970, at 22, col. 1 (home ed.), and Los AngelesTimes, March 12, 1970, at 2, col. 4 (home ed).26. MODEL PENAL CODE § 230.3(2) and (3) (Proposed Official Draft, 1962),provides:(2) Justifiable Abortion. A licensed physician is justified in terminatinga pregnancy if he believes there is substantial risk that continuance of thepregnancy would gravely impair the physical or mental health of the motheror that the child would be born with grave physical or mental defect, or thatthe pregnancy resulted from rape, incest, or other felonious intercourse. Allillicit intercourse with a girl below the age of 16 shall be deemed felonious forpurposes of this subsection. Justifiable abortions shall be performed only in alicensed hospital except in case of emergency when hospital facilities are19701SAN DIEGO LA W REVIEW [Vol. 7laws are even more liberal, Hawaii is the best example, makingabortion a free choice between patient and doctor for the residentof the state.28 Bills are currently pending in the legislatures ofseveral states which are designed to remove the matter entirelyfrom the law and leave it in the hands of the physician andpatient.29 The popular support for this approach has beenconfirmed by several public opinion polls. A recent Harris Pollfound that 64 percent of the respondents agreed with this view.Legal decisions of recent times have also abetted theliberalizing trend. Most important is the well-publicized People v.Belous 0 decision, in which the California Supreme Court held thepre-1967 abortion law to be unconstitutionally vague, placing thephysician in the untenable position of having an interest, i.e. fearof penalties, which prevented an unbiased determination of propermedical care for his patient. In addition, the court felt the lawunconstitutional on the grounds that it required the woman to riska high probability of death before qualifying for relief throughabortion, infringing upon the woman's right to life, her liberty tochoose whether to bear a child and to obtain proper medicalassistance. The majority opinion in the case serves as an excellentunavailable. [Additional exceptions from the requirement of hospitalizationmay be incorporated here to take account of situations in sparsely settledareas where hospitals are not generally accessible.](3) Physicians' Certificates; Presumption from Non-Compliance. Noabortion shall be performed unless two physicians, one of whom may be theperson performing the abortion, shall have certified in writing thecircumstances which they believe to justify the abortion. Such certificate shallbe submitted before the abortion to the hospital where it is to be performedand, in the case of abortion following felonious intercourse, to the prosecutingattorney or the police. Failure to comply with any of the requirements of thisSubsection gives rise to a presumption-that the abortion was unjustified.For a discussion of the Model Penal Code, see Giannella, The Difficult Quest Jor aTruly Humane Abortion Law, 13 VILL. L. REv. 257 (1968).27. Kummer, supra note 12, at 884.28. See note 25 supra. Maryland has recently surpassed Hawaii's liberal laws. Allabortion laws were repealed, permitting any licensed doctor to perform an abortion in anylicensed hospital without requirements exceeding those he would have to meet for any otheroperation. There is no residence requirement. Los Angeles Times, April 1, 1970, at 2, col.4 (home ed.).29. Colorado state legislator Richard Lamm, who was instrumental in the passageof Colorado's reform bill is reputed to be asking that the Colorado law be voided on thebasis that it (1) violates a woman's right to privacy in sex, marriage, and reproduction,and (2) interferes with a doctor's obligation to practice medicine as he thinks best.Lilliston, Court Ruling on Old Law May Affect Other States, Los Angeles Times, Mar.3, 1970, Part IV, at 6, col. 1 (home ed.).30. 71 Adv. Cal. 996, 458 P.2d 194, 80 Cal. Rptr. 354 (1969).A BOR TION LA WSreview of the social, legal and medical arguments favoring wideruse of abortion. Reference is made in the opinion to the newTherapeutic Abortion Act of 1967 and emphasis placed on theinterpretation that liberalization was the intent of the law?3 In thefinal footnote the court refers to arguments of unconstitutionalvagueness applicable to the new law without reaching the issue3 2Whatever the legislative intent, the result of passage of theTherapeutic Abortion Act of 1967 has been dramatic. In someCalifornia hospitals more abortions than live births are occurring.Every hospital where active staff committees exist has beenreceiving increasing numbers of applications. In San Diego, thefacilities and personnel of some hospitals are being taxed to theirextreme by this increase. An increasing percentage, now 90percent or higher, are being done on the ground that continuationof the pregnancy represents a significant risk to mental health, oneof the indications allowed by law. Although some hospitals in thestate have done away with the requirement, most committees stillrequire psychiatric consultation when a request for abortion ispresented on this ground.3 3 The medical argument as to whatconditions must be met to qualify under the law has been quiteheated. Now more and more, committees have been approvingrequests for abortion simply on the assumption that an unwantedpregnancy is in itself a threat to the emotional stability of thewoman and therefore a threat to mental health; the differencebetween institutions is what is required to document the risk forthe individual patient. Studies in Scandinavia34 and in the UnitedStates35 have produced statistical evidence that a woman forced tocarry an unwanted pregnancy incurs a significant risk ofpsychiatric illness requiring treatment, both in herself and in theunborn child.Thus the present climate is one in which "abortion onrequest" is effectively being practiced3 The heretofore significant31. Id. at 1013,458 P.2d at 204, 80 Cal. Rptr. at 364.32. Id. at 1016 n.15, 458 P.2d at 206 n.15, 80 Cal. Rptr. at 366 n.15.33. See Pike, supra note 9, at 318.34. Hgk, Refused Abortion, 37 ACTA PSYCHIAT. 203 (1961); Aren, The Prognosisin Cases in Which Legal Abortion Has Been Granted, But Not Carried Out, 36 ACTAPSYCMAT. 203 (1961).35. Simon, Psychiatric Indications for Therapeutic Abortion and Sterilization, 7CLINICAL OBSTETRICS AND GYNECOLOGY 67.(1964).36. Kummer, supra note 12, at 885.1970]SAN DIEGO LAW REVIEWproblem of medical complications following illegal andimproperly performed abortions 7 has been drastically reduced. Infact, there seems no valid reason to dispute the frequently madestatement that any woman desiring an abortion may obtain itthrough legal channels. Still, the so-called "red tape" necessaryto obtain an abortion legally is a significant factor. Delaysnecessitated by seeing a psychiatrist, awaiting preparation anddelivery of his report, presentation of the request to a hospitalcommittee which meets at specific intervals, and scheduling theprocedure into the already busy activities of the hospital, oftenresult in increased risk to the woman seeking abortion. As statedearlier, abortion performed by curettage in the first three monthsof pregnancy is quite safe. But after the first three months, simplecurettage becomes more hazardous, and other methods ofinterrupting pregnancy, such as abdominal operation(hysterotomy) or injection of solutions into the uterine cavity, e.g.intra-amniotic hypertonic saline,3 carry with them increased risksof complication. Even the cost of these procedures becomes anincreased problem since abortions performed later in pregnancyfrequently require longer periods of hospitalization for treatmentand observation even when uncomplicated.Some argue that since abortion on request is presentlyavailable, why should there be continued efforts to repeal orchange the law? In dicta, Belous interpreted the new abortion lawas making the matter of abortion a strictly medical concern; thedecision to allow an abortion to be done, when made accordingto statute, is not a matter for review by the courts. The opinionstates, "At least in cases where there has been adherence to theprocedural requirements of the statute, physicians may not be heldcriminally responsible, and a jury may not subsequently determinethat the abortion was not authorized by statute. '39 Nevertheless,the argument seems compelling that even the new law is toovague, since the court's decision suggests that argumentsquestioning the validity of the old law apply to the wording usedin the 1967 legislation. Specific words and phrases used, such as"significant risk," "dangerous," and "in need of supervision and37. Fox, supra note 6, at 645.38. See Goodlin, Therapeutic Abortion with Hypertonic Intra-amniotic Saline, 34OBSTETRICS AND GYNECOLOGY 1 (1969). See also Niswander, supra note 10, at 420.39. 71 Adv. Cal. at 1016,458 P.2d at 206, 80 Cal. Rptr. at 366.[Vol. 7A BOR TION LAWSrestraint," leave much latitude for interpretation.40 Even theprovision in section 2595311 that, "In no event shall thetermination be approved after the 20th week of pregnancy .... "leaves considerable doubt. Does this refer to 20 weeks fromconception or 20 weeks from the onset of the last menstrualperiod? How is this time to be determined-by history obtainedfrom the patient correlated by the findings on physicalexamination? Certainly. Yet these data are often inaccurate evenin the most experienced hands. Is the physician who delivers a livefetus while intending to do an abortion liable to a charge ofmurder should the fetus inevitably die? This is a question whichremains unanswered.As cited previously, the delays inherent in the presentprocedures also serve to increase the hazards of the event the lawallows. In practice, the law serves to allow abortions to be donefreely, not to limit them to a select few. But at the same time itmakes the process more difficult, to the advantage of no one. Inthe final analysis, the decision-making rests with the pregnantwoman and should abortion be chosen, she need only find awilling physician who knows the procedural requirements.Petitions are now being circulated in this state which would placea referendum on the ballot amending the laws to allow abortionto be performed by any licensed physician when requested by anypregnant woman. It seems only a matter of time until thisbecomes law as it has become the practice.Abortion is neither the only nor the best answer to theproblem of unwanted pregnancy. What is needed most is anintensive program of education to the responsibilities-social,moral, and biological responsibilities, inherent in sexualintercourse. Society has apparently accepted abortion as proper.The hope is that abortion will be necessary only when responsibleefforts to prevent pregnancy have failed, an infrequent occurrencewith the safe modern contraceptive techniques. When necessary,abortion can then be performed early with minimum risk,minimum expense, and minimum social or psychologicaltrauma240. See CAL. HEALTH & SAFETY CODE §§ 25951(1), 25954 (West Supp. 1970).41. CAL. HEALTH & SAFETY CODE § 25953 (West Supp. 1970).42. See Peck and Marcus, Psychiatric Sequelae of Therapeutic Interruption ofPregnancy, 143 J. NERV. & MENTAL Dis. 417 (1966); Kummer, Post-Abortion Psychiatricllness-A Myth?, 119 AMER. J. PSYCHIAT. 980 (1963).1970]

Abortion Laws: A Study in Social Change

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Abortion Laws: A Study in Social Change

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